Re Attorney-General's
[1998] TASSC 12
•26 February 1998
12/1998
PARTIES: ATTORNEY-GENERAL'S REFERENCE No 1 of 1996
WEIDERMAN, David John, Re
TITLE OF COURT: COURT OF CRIMINAL APPEAL (TAS)
JURISDICTION: APPELLATE
FILE NO/S: CA 138/1996
DELIVERED: 26 February 1998
HEARING DATE/S: 28 August 1997
JUDGMENT OF: Cox CJ, Underwood, Wright, Crawford, Zeeman JJ
CATCHWORDS:
Criminal Law - Particular offences - Offences against the person - Homicide - Murder - Code provisions - Offender knew or ought to have known act likely to cause death - Whether evidence of intoxication (on its own or in conjunction with mental disease not amounting to insanity) relevant to whether offender "knew or ought to have known".
Criminal Code 1924 (Tas), s17 and s157(1)(c).
Aust Dig Criminal Law [115]
Criminal Law - General matters - Criminal liability and capacity - Defence matters - Intoxication - Particular offences - Whether relevant to crimes not involving specific intent.
Aust Dig Criminal Law [48]
Palmer v R [1985] Tas R 138; Boughey v R (1986) 161 CLR 10; Hawkins v R (1994) 179 CLR 500; Hawkins v R (No 3) (1994) 4 Tas R 376, considered.
REPRESENTATION:
Counsel:
Appellant: D J Bugg QC and M A Stoddart
Respondent: K J Levis
Solicitors:
Appellant: Director of Public Prosecutions
Respondent: Crisp Hudson & Mann
Judgment category classification:
Court Computer Code:
Judgment ID Number: 12/1998
Number of pages: 34
Serial No 12/1998
File No CA 138/1996
ATTORNEY-GENERAL'S REFERENCE No 1 of 1996
RE DAVID JOHN WEIDERMAN
REASONS FOR JUDGMENT COURT OF CRIMINAL APPEAL
COX CJ
UNDERWOOD J
WRIGHT J
CRAWFORD J (dissenting in part)
ZEEMAN J (dissenting)
26 February 1998
Orders of the Court:
Answer the question:
"Did the Learned Trial Judge err in law by directing the jury that evidence of intoxication of the accused David John Weiderman, was relevant in considering his knowledge of the consequences of his conduct or, insofar as it interacted with a mental disorder falling short of providing a defence of insanity under Section 16 of the Criminal Code, was relevant in considering his knowledge of, or capacity to appreciate, the consequences of his conduct."
Answer: Yes.
Serial No 12/1998
File No CA 138/1996
ATTORNEY-GENERAL'S REFERENCE No 1 of 1996
RE DAVID JOHN WEIDERMAN
REASONS FOR JUDGMENT COURT OF CRIMINAL APPEAL
COX CJ
26 February 1998
The Attorney-General has referred to the Court the following (amended) question of law:
"Did the Learned Trial Judge err in law by directing the jury that evidence of intoxication of the accused David John Weiderman, was relevant in considering his knowledge of the consequences of his conduct or, insofar as it interacted with a mental disorder falling short of providing a defence of insanity under Section 16 of the Criminal Code, was relevant in considering his knowledge of, or capacity to appreciate, the consequences of his conduct."
The factual context in which the question is posed is set out in the reasons for judgment of Zeeman J and I do not stay to repeat it in detail.
The Reference directly raises for consideration the validity of the decision of this Court in Palmer v R [1985] Tas R 138 in which it was held that the trial judge in that case had not erred in law in directing the jury that evidence of intoxication was not relevant to the Criminal Code, s157(1)(c), a proposition inconsistent with a negative answer to the first part, at least, of the amended question. Since the date upon which Palmer was delivered, there has been a number of decisions of the High Court (in particular Boughey v R (1986) 161 CLR 10 and Hawkins v R (1994) 179 CLR 500) and of this Court in Hawkins v R (No 3) (1994) 4 Tas R 376 in which the law, as it affects s157(1)(c) has been expounded and new insights revealed, and for this reason the question, though initially heard by three judges, was referred to a bench of five judges in accordance with the practice laid down in Gardenal-Williams v R [1989] Tas R 62.
Section 157(1) provides:
"157 ¾ (1) Subject to the provisions of section 160, culpable homicide is murder if it is committed ¾
(a)with an intention to cause the death of any person, whether of the person killed or not;
(b)with an intention to cause to any person, whether the person killed or not, bodily harm which the offender knew to be likely to cause death in the circumstances, although he had no wish to cause death;
(c)by means of any unlawful act or omission which the offender knew, or ought to have known, to be likely to cause death in the circumstances, although he had no wish to cause death or bodily harm to any person;
(d)with an intention to inflict grievous bodily harm for the purpose of facilitating the commission of any of the crimes hereinafter mentioned or the plight of the offender upon the commission, or attempted commission, thereof;
(e)by means of administering any stupefying thing for either of the purposes mentioned in paragraph (d); or
(f)by wilfully stopping the breath of any person by any means for either of such purposes as aforesaid,
although, in the cases mentioned in paragraphs (d), (e), and (f), the offender did not intend to cause death, and did not know that death was likely to ensue.”
The crime of murder as defined by all paragraphs of that subsection, save par(c), requires proof of a specific intent. As defined in par(c), however, a specific intent in the sense of an intention to bring about a particular consequence is not required. Palmer so decided (at 148 and 154) following Masnec v R [1962] Tas SR 254 at 264 and that proposition has not been challenged on this Reference.
Section 13 relevantly provides:
"13 ¾ (1) No person shall be criminally responsible for an act, unless it is voluntary and intentional; nor, except as hereinafter expressly provided, for an event which occurs by chance."
The section of the Criminal Code dealing with intoxication is s17, which reads as follows:
"17 ¾ (1) The provisions of section 16 shall apply to a person suffering from disease of the mind caused by intoxication.
(2) Evidence of such intoxication as would render the accused incapable of forming the specific intent essential to constitute the offence with which he is charged shall be taken into consideration with the other evidence in order to determine whether or not he had that intent.
(3) Evidence of intoxication not amounting to any such incapacity as aforesaid shall not rebut the presumption that a person intends the natural and probable consequences of his acts."
This section first received detailed consideration in Snow v R [1962] Tas SR 271 where the question was whether on a trial for rape evidence of the accused's intoxication was relevant to the mens rea of that crime. It was held that as the crime of rape was not a crime of specific intent and required only proof of the voluntary and intentional penetration of the complainant without her consent, evidence of the accused's intoxication was not relevant to that issue. The effect of the Court's decision is that, irrespective of whether a crime is one of specific intent or not, the answer to the question whether the voluntary and intentional character of the act required by s13(1) can be influenced by the accused's intoxication, is in the negative, unless it has caused disease of the mind so as to bring the case within s17. As part of the reasoning process in Palmer, the last proposition was repeated (at 145 and 150) and again I do not understand it to be under challenge in this Reference. It also follows from Snow that in a case where a specific intent must be proved, as in murder under all paragraphs of s157(1) other than par(c), intoxication will be relevant to the existence of that specific intent, provided it is of the kind referred to in s17(2), ie, intoxication to such an advanced stage that the accused does not have the capacity to form the requisite specific intent (or "blind drunkenness", as Nettlefold J described it in Palmer at 146). If the jury find that it reached that stage or that it is reasonably possible that it reached that stage, the accused cannot be convicted of murder under any of those paragraphs other than par(c) but no amount of intoxication is deemed to be relevant to the issue of the voluntary and intentional character of the act causing death and if the jury, putting that consideration aside, infer from the rest of the evidence that he did perform that act voluntarily and intentionally, he will be criminally responsible therefor to the extent that the jury finds the existence of all the elements of any crime available as an alternative, eg, manslaughter. In this respect the law in Tasmania differs from the common law of Australia as expounded in R v O'Connor (1980) 146 CLR 64 where, by a majority, the High Court decided that intoxication was relevant to the existence or absence of the voluntary and intentional character of the act sought to be criminated. It was held in R v Kusu [1981] Qd R 136 that O'Connor had no application to the Queensland Criminal Code and in Palmer, at 154, I took a similar view in respect of the Code of this State. In Bennett v R 68/1989, Neasey J, at 4, expressed his full agreement with that view.
In Snow, at 278, Burbury CJ and Cox J cited a dictum of Crisp J in R v Vallance [1960] Tas SR 51 at 86 to the effect that the Code, Ch4:
"... is both by design and in expression comprehensive and authoritative so as to exclude competing or supplementary common law doctrine in relation both to the actus reus and the mens rea of every crime therein provided for. As to mens rea, it goes even further in its application to summary offences, as I have already pointed out."
They went on:
"We respectfully agree with that general conclusion. We think that ss 12 to 17 inclusive must be taken to state exhaustively the general principles of criminal responsibility relating to the mental element in crime (including insanity and intoxication). That is perhaps subject to one qualification. The Code makes no distinction between voluntary and involuntary intoxication. It may be that the rare common law defence of involuntary intoxication (see Kenny's Outlines of Criminal Law, 17th edn, par 41) is preserved as an independent ground of excuse under s 8 of the Criminal Code Act 1924. But it is unnecessary for the purposes of the present case to decide that point and we express no opinion on it."
It was this approach, reaffirmed by Neasey J in Arnol v R [1981] Tas R 157 at 168, that led me to conclude in Palmer (at 155):
"Though s17 (apart from the relationship of intoxication to insanity) is expressly concerned only with the effect of intoxication upon crimes of specific intent and is silent as to its effect upon crimes not requiring proof of such intent, the clear implication of expressing an exculpatory exception in respect of crimes of specific intent is to exclude the possibility that intoxication could have an exculpatory effect upon other crimes."
If the elements of a crime include a state of knowledge or foresight of consequences, there is a strong logic in the proposition that evidence of intoxication to any degree must be relevant to the determination of whether it existed or not. Yet this logic does not extend to the determination of the existence or absence of a specific intention. Under s17(2), it is only intoxication to the degree specified (or blind drunkenness) which can negative the specific intent. Any milder state of intoxication is accorded no exculpatory effect. As the joint judgment in Snow said at 282:
"Partial intoxication not resulting in incapacity to form a specific intention is not under our section relevant as it is under s 28 of the Queensland and Western Australian Codes (see R v O'Regan 1961 Qd R 78 and R v Dodd [1960] WAR 42). It must under our Code be intoxication so gross as to result in incapacity to form the intention."
Section 17, as their Honours said in Snow at 283:
"... was unquestionably intended to declare the common law as expressed in Beard's Case [1920] AC 479. It (as in the case of other provisions of Chapter IV) must be taken to be intended to 'cover the field' as to drunkenness in relation to mens rea. No justification or excuse by reason of voluntary drunkenness is to be found in any principle of the common law not defined in s 17 so as to form any basis for invoking s 8 of the Criminal Code Act 1924. That we think would be so even in the absence of s 17(3) but that subsection supports the conclusion we have reached apart from it."
Policy appears to have supplanted the logic of making partial intoxication relevant to the proof of the existence of a specific intent but there is no doubt in my mind that that was the intention of Parliament when the Code was enacted.
Snow's case was not, of course, concerned with any issue of knowledge or foresight, but in expressing the view that "s 17 exhaustively states the law as to intoxication so far as it forms part of the general principles of criminal responsibility in Chapter IV of the Code" (at 285) Burbury CJ and Cox J did advert "to the question whether drunkenness may be relied upon as showing absence of knowledge (as distinct from intent) where specific knowledge is a defined ingredient of a crime or offence, (eg, receiving)" (ibid). Having referred to an article by H A Snelling QC entitled "Drunkenness and Criminal Responsibility", 30 ALJ 3, they said that they agreed that on principle:
"... there is no reason to distinguish knowledge from specific intent. But while it might be easy at common law to extend the principle from specific intent to specific knowledge it could hardly be done under the guise of statutory interpretation of s 17. The question is one of some difficulty and it does not fall for decision in the present case." (At 285 - 286).
In the case of Bennett v R where the Court declined to allow Snow and Palmer to be re-argued in respect of the effect of intoxication on s13, Neasey J said at 4 of his judgment:
"I do not say that difficult considerations, some of which can be discerned in the judgment of Crawford J in Snow, may not still arise in some situations in applying ss17(2) and (3) in accordance with Palmer and Snow, for example in respect of the meaning and application of 'shall not rebut the presumption ...' in s17(3), but those are for another day and I am satisfied there is no reason whatever for re-agitating the correctness of those two cases."
In Snow, Crawford J held, at 295:
"Where specific knowledge is an ingredient of an offence, eg knowing that the goods were stolen, in a case of receiving, intoxication may be relevant to explain why the accused did not have that knowledge, when one might, otherwise, have expected him to have it. Evidence of intoxication is admissible as relevant to such matters."
In Boughey v R (1986) 161 CLR 10 at 43, Brennan J said:
"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 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."
I respectfully agree that an intention to kill is not necessarily the same mental state as knowledge that death will probably result and that foresight does not necessarily imply the existence of intention, but the inquiry as to the existence of intention cannot be conducted in a vacuum and requires a consideration of what the accused knew or realised the consequences of his act could be. This is particularly apparent when one considers par(b). The intention required under this paragraph is one of inflicting grievous bodily harm which the offender knew to be likely to cause death in the circumstances. Even under par(a), however, the accused cannot intend his act to cause death unless he is capable of appreciating that the act he employs to achieve that result at least has the potentiality to do so. The standard of intoxication laid down in s17(2) must surely apply to the entirety of that enquiry. It would be anomalous and unrealistic for a jury to apply a blind drunk standard to intention and a standard of any degree of intoxication to the accused's knowledge of likely consequences or, alternatively, to treat intoxication to any degree as not relevant at all to his knowledge.
It is anomalous that in determining which of the heinous states of mind necessary to constitute murder have been made out in any given case where the Crown relies, as it most commonly does, on s157(1)(a) or (b) and (c), voluntary intoxication to the state of blind drunkenness would be relevant in respect of actual intent and the knowledge necessary to its formation under (a) and (b) but not in respect of actual knowledge under (c). It seems illogical that a jury, having found as a fact or as a reasonable possibility that the accused was so drunk as to be incapable of forming the specific intent necessary to constitute murder under s157(1)(a) or (b), should be required to put the evidence on which that conclusion was based out of their minds in addressing the question under par(c) whether he knew that his act was likely to cause death.
On the other hand there are sound reasons for a policy which, save as expressly laid down in s17, denies exculpatory effect to self-induced intoxication. Underlying s17 is the undefined, much criticised and misleading "presumption" that a person intends the natural and probable consequences of his acts. It is not, of course, a presumption of law, although there may be a presumption of fact in the sense of an inference of fact (Snow at 286) "which it is for the jury to apply if they think the circumstances warrant" (Bennett, per Neasey J at 3). But to intend the natural and probable consequences of one's acts, one must be capable of knowing their natural and probable consequences.
In Palmer, at 145, Nettlefold J referred to the criticism of the maxim by Dixon CJ in Parker v R (1963) 111 CLR 610 at 632 and Smyth v R (1957) 98 CLR 163 as one which imposed a view on the jury and said that no valid objection could be taken to its restatement in the form "as a matter of fact in the great majority of cases the jury could infer that the accused intended the natural and probable consequences of his act". He continued, "In fact, such a statement is a valid and useful intellectual tool." I think the statement necessarily implies that in the same way and subject to the same qualifications, the jury could infer that the accused knew the natural and probable consequences of his act. What s17 engrafts onto that process of reasoning is that for policy reasons, self-induced intoxication is not to be taken as a factor militating against the drawing of either of these inferences save in respect of crimes of specific intent and then only if it is gross intoxication. The maxim, however, has nothing to say about drawing inferences as to the state of a person's particular belief, such as a belief that goods are stolen. The effect of intoxication on such a crime was referred to in Snow in the joint judgment of Burbury CJ and Cox J (at 285 - 286) as one which raised difficulties which did not need to be resolved in that case; while Crawford J, at 295, in the dictum already cited, stated that evidence of intoxication is admissible as relevant to such matters. But, in my view, to hold that intoxication is relevant to the existence of a belief that goods are stolen in no way conflicts with s17 any more than it would to say that intoxication was relevant to an accused person's capacity to perform some physical act and hence to the question whether in fact he performed it. In neither case is intoxication a potentially exculpatory factor.
When the Criminal Code was first enacted, the self-defence provisions took into account reasonable apprehension and beliefs based on reasonable grounds. There was no scope for intoxication as a matter relevant to self-defence. The original self-defence provisions sit comfortably with a policy decision implicit in s17 to confine the relevance of intoxication as a matter of exculpation to the existence of a specific intent (and then only intoxication to a gross degree). If that is not so and any degree of intoxication may be taken into account by the jury in determining any relevant state of mind (leaving aside those requiring reasonable grounds for their formation), it would seem to follow that the amendments to the law of self-defence introduced in 1987, two years after the decision in Palmer, would permit an accused person to rely upon a completely false belief of danger induced only by voluntary intoxication as justification for the deliberate killing of an innocent person so that the drunken assailant would not be guilty of even manslaughter. I find it hard to imagine that Parliament ever contemplated the possibility that this might be the case and intended it to be so.
However, if I am wrong in taking the view that intoxication is not relevant to actual knowledge under s157(1)(c), it matters little at the end of the day if, when the jury consider whether the accused ought to have known that his act was likely to cause death in the circumstances, they are required to leave out of account intoxication as an exculpatory factor.
Section 157(1)(c) provides that culpable homicide is murder if it is committed "by means of an unlawful act or omission which the offender knew, or ought to have known, to be likely to cause death in the circumstances, although he had no wish to cause death or bodily harm to any person." The essence of the turpitude condemned as murder by this paragraph is the doing of an act which is unlawful and inherently dangerous because it is likely to cause death in the circumstances and in fact does so, and doing that act in the realisation that death is a probable consequence, or, absent that realisation, doing it when "the particular accused, with the knowledge and the capacity which he or she actually possessed, ought to have thought about the likely consequence of his or her action." (Boughey per Mason, Wilson and Deane JJ at 29). In the latter event, the jury must also be persuaded that "if the particular accused had stopped to think to the extent that he ought to have, the result would, as a matter of fact, have been that he or she would have known or appreciated that the relevant act or acts were likely to cause death." (Ibid). Accordingly, the Crown must prove a mental state of gross recklessness and indifference to the probability that death will occur if the act is performed. It may be proved by evidence of actual knowledge of or advertence to the risk which may be furnished by an admission or by proof of circumstances which, in the jury's view, admitted no other conclusion or by evidence from which the jury concludes that the accused acted in circumstances where he ought to have known of the likely consequences of his act.
If self-induced intoxication, itself reckless and indifferent conduct, is, as a matter of policy, excluded as a factor excusing a failure to advert to consequences as the accused ought to have done, it does not seem to me to matter whether or not intoxication is taken into account in determining actual knowledge under the so-called first limb. If the jury are satisfied, whatever the accused's state of intoxication was, that he did know the likely consequences of his unlawful act, the case for murder will be made out. If they are not so satisfied, they must, in any event, exclude the fact of his intoxication, whatever its degree, in assessing whether he ought to have known.
The question which now arises is whether Parliament has in fact incorporated into the test of whether the accused "ought to have known" an objective standard of sobriety. In respect of this, the second limb of par(c), as Brennan J said in Boughey at 45:
"... introduces an objective and therefore novel mental state as an element in murder. The phrase 'ought to have known to be likely to cause death' appeared in s 174(d) of the Draft Code of 1879 in reference to an act done 'for an unlawful object', where it was criticized as an unsatisfactory provision in the Draft Code which generally maintains the requirement of a subjective intention as the condition of liability to conviction for murder: see Russell on Crime, p 495. Its introduction into the Code may have been intended to cover cases where an accused had killed while intoxicated and his intoxication precluded the drawing of an adverse inference as to his intention or state of mind at the time. However that may be, it covers cases where the accused does not have the knowledge prescribed by the first limb of the paragraph but where he ought to have had that knowledge when he was doing the unlawful act which caused death. The character of the act, the fact that it was likely to cause death (as the accused would have known had he thought about it) and the surrounding circumstances are material to a finding ¾ I do not say that they are the only facts material to a finding ¾ as to whether the accused 'ought to have known'. The criterion to be applied to these facts is whether any sober and reasonable man, having the accused's knowledge, experience and acumen, would have adverted to the possibility that his action might cause death and, adverting to that possibility, would have known that his action was likely to cause death. If the hypothetical sober and reasonable man would have known, it is right to find that the accused ought to have known that his action was likely to cause death."
Although Brennan J was in dissent as to the outcome of the appeal, that was on a point in respect of the trial judge's direction equating the requisite degree of probability to "a good chance". Boughey's case did not raise questions of intoxication at all and consequently the absence of any reference to it in the formulations of the Justices in the majority, at 28 - 29, does not necessarily indicate any disagreement by them with the formulation insofar as it speaks of sobriety advanced by Brennan J.
In Hawkins v R at 517, the High Court proceeded upon an assumption that evidence of mental disorder not amounting to insanity within the meaning of the Code, s16 would have been relevant and admissible on the issue whether the accused knew that his conduct was likely to cause death in the circumstances and directed this Court to consider whether such evidence was relevant to the second limb of s157(1)(c). In Hawkins v R (No 3) (supra) this Court held that it was relevant under both limbs. In respect of the second limb, I said, at 380, "The inquiry is a subjective one and evidence of this kind must be relevant and admissible on it". Crawford J, at 382, said of this issue:
"This in turn raises the question whether the test of what he ought to have known is a purely objective one or, if not, the extent to which it is a subjective one."
After referring to the test laid down in Boughey in the majority judgment at 28 - 29, he concluded that the evidence was admissible. Zeeman J, at 389, said:
"There appears to be no reason to exclude mental disease from the factors relevant to a consideration as to whether a particular person ought to have known. ... Once the test is seen to be subjective, in the sense that it refers to what the particular accused ought to have known, then all factors affecting that accused's capacity to know must be relevant. Those factors include any relevant mental disease from which the accused was suffering at the material time."
Once again, in the cases involving Hawkins, no question of the relevance of intoxication was raised.
Although the test is a subjective one in the sense of requiring consideration of what is to be expected of the particular accused, it is not necessarily a wholly subjective one. Indeed, the very concept that, though not in fact appreciating the fatal act to be likely to cause death, he would have done so had he stopped to think to the extent that he ought to have involves an acceptance that there has been a departure from an objective standard which the accused had the capacity to observe but culpably failed to observe. While we are not concerned with "some hypothetical reasonable person in the position of the accused" ... but "the particular accused, with his or her actual knowledge and capacity" (Boughey at 29), the accused cannot, in my view, rely on a self-induced condition which diminishes the knowledge and capacity with which he is otherwise endowed. While it is only right that, for example, an abnormal mental condition for which he was in no way responsible should be taken into account in making the assessment required by the second limb of par(c), there is no justification for excusing his failure to observe the standard if the reduction of his capacity is induced by reason of intoxicants, knowingly and willingly taken. The adoption of a totally subjective test in which not only the accused's intelligence, mentality, knowledge and experience is taken into account, but also self-induced intoxication and ingrained habits of misanthropy, thoughtlessness and indifference to the effect of one's actions on others, would render the second limb of par(c) completely ineffectual.
I remain of the opinion that, on a proper reading of the Criminal Code, self-induced intoxication for reasons of policy is irrelevant in a consideration of whether or not s157(1)(c) has been made out.
For the same reasons, I consider that evidence that such intoxication may have interacted with or compounded some mental disorder falling short of providing a defence of insanity under the Criminal Code, s16 so as to affect his knowledge of or capacity to appreciate the consequences of his conduct is irrelevant in considering whether that paragraph has been made out.
I would answer the questions asked in the affirmative.
UNDERWOOD J
26 February 1998
By this Attorney-General's reference, the Court is required to re-consider its decision in Palmer v R [1985] Tas R 138. The question of law raised by the reference is expressed in these terms:
"Did the Learned Trial Judge err in law by directing the jury that evidence of intoxication of the accused David John Weiderman, was relevant in considering his knowledge of the consequences of his conduct or, insofar as it interacted with a mental disorder falling short of providing a defence of insanity under Section 16 of the Criminal Code, was relevant in considering his knowledge of, or capacity to appreciate, the consequences of his conduct."
There was no dispute at trial that the respondent killed his father by shooting him. There was evidence to the effect that the deceased was suffering from a permanent and serious illness, such that he was unable to care for himself, and wished to end his life. The Crown case was that the respondent killed his father either as an act of mercy to relieve him of further suffering, or to relieve himself from the burden of having to care for him. The respondent told the jury that he wanted to be with and support his father when he committed suicide. However, it was the respondent and not the deceased who discharged the fatal shot. The respondent said that he had no recollection of pulling the trigger and had no intention of taking his father's life. There was psychiatric evidence that the respondent suffered from a mental illness — an adjustment disorder — not being a mental disease within the meaning of the Code, s16(1), the effect of which was to reduce the respondent's ability to form any of the states of mind specified in the Code, s157(1)(a) and (b), and to reduce his ability to monitor his behaviour. There was evidence that before the fatal shot was fired, the respondent had consumed a considerable amount of alcohol. The expert opinion evidence (and common knowledge) was to the effect that the consumption of alcohol also affected the ability to monitor behaviour so that the consumption of alcohol and the respondent's mental illness both had the same effect, one compounding the other.
On the hearing of the reference before a Bench of five member of the Court it was accepted that at the trial of David John Weiderman:
The crime of murder, committed contrary to the provisions of the Code, s157(1)(c), is not a crime of specific intent. In this respect there was no challenge to Palmer. See Masnec v R [1962] Tas SR 254 at 264.
The Code, s16, required the jury to put to one side the evidence of mental illness upon the issue of whether the actus reus was a voluntary and intentional act.
The Code, s17(2) and (3) required the jury to put to one side evidence of intoxication if it fell short of rendering the respondent incapable of forming a relevant specific intention when considering guilt under either s157(1)(a) or (b). In this respect too, there was no challenge to Palmer.
Hawkins v R (1994) 179 CLR 500, and Hawkins v R (No 3) (1994) 4 Tas R 376, required the jury to take into account evidence of mental illness when considering whether the respondent had one or more of the specific intentions enacted in s157(1)(a) or (b), and when considering whether he had the actual or imputed knowledge prescribed by s157(1)(c).
This reference raises for re-consideration the question alluded to by this Court in Snow v R [1962] Tas SR 271 at 285 and 295 and by Neasey J in R v Bennett 68/1989 at 4, of the relevance of evidence of intoxication short of causing incapacity to form a relevant intention, upon the issue of the actual or imputed knowledge that an accused must have had before he or she can be found guilty of murder "by means of any unlawful act or omission which [he] knew, or ought to have known to be likely to cause death in the circumstances, although he had no wish to cause death or bodily harm to any person" contrary to the Code, s157(1)(c). In Palmer, Nettlefold J (with whose reasons I expressed agreement) and Cox J (as he then was) reached the conclusion that such evidence must be excluded from the jury's consideration of that issue. Since Palmer, the High Court has authoritatively determined in Boughey v R (1986) 161 CLR 10 that the test in s157(1)(c) is a subjective one in that the question is what the particular accused knew or ought to have known, and as mentioned, Hawkins v R (supra) and Hawkins v R (No 3) (supra) have determined that evidence of mental illness falling short of insanity within the meaning of the Code, s16(1) is admissible as relevant to the issues of the accused's intention and actual or imputed knowledge in s157(1)(a), (b) and (c). The question for this Court is whether Palmer was correctly decided, particularly in the light of those subsequent decisions.
Whatever the result of this Reference, some might think that the task of the jury has been made almost impossible by the split between the common law and the Code that has already occurred (R v O'Connor (1979 - 1980) 146 CLR 64) as the Crown invariably rely in the alternative on all three of the first three paragraphs of s157(1). The difficulties are highlighted by a case such as this where the effects of intoxication and the effects of mental illness were the same.
At the very outset it must not be forgotten that this Reference involves a question of statutory interpretation and thus requires the Court to ascertain the intention of Parliament in the enactment of the Code, s17, and related provisions. In this context, it is appropriate to cite the concluding passage from the judgment of Nettlefold J in R v Bennett (supra):
"The law of Tasmania concerning the effect of self induced intoxication on criminal responsibility is to be ascertained by applying the ordinary rules for the construction of a statute to the Code, regard being had, of course, to the history of the development of the relevant law and the event in legal history from which, obviously, s17 is derived."
In Vallance v R (1962 - 1963) 108 CLR 56 Windeyer J made it very clear at 74 - 76 that the Criminal Code Act 1924, ss3, 4, 5 and 6 have effect so that the criminal law of Tasmania is "to be found in the Code and not in the common law or in earlier statutes" (74). His Honour excepted from that proposition the provisions of the Act, s7 which preserve common law defences except insofar as they are altered by or are inconsistent with the provisions of the Code. In the well known passage in his judgment at 75 - 76, Windeyer J spelt out how to approach the task of interpreting the Code:
"The Code is to be read without any preconception that any particular provision has or has not altered the law. It is to be read as an enactment of the Tasmanian Parliament. And, interesting though it is to compare it with other codes, such as that of Queensland from which it is derived, or with projected codes such as Stephen's Code, they cannot govern its interpretation. But it was enacted when it could be said of the criminal law that it was 'governed by established principles of criminal responsibility'. And for that reason we cannot interpret its general provisions concerning such basic principles as if they were written on a tabula rasa, with all that used to be there removed and forgotten. Rather is ch iv of the Code written on a palimpsest, with the old writing still discernible behind. Some parts of that chapter may be a further step towards a full acceptance of the idea that legal guilt should accord with moral blame; that a man should not be punished for something that he did not mean to do. Because of the supreme importance of homicide in early law, the law of homicide provides the most striking illustration of this development. But the tendency is general; and if the Code, properly read, confirms that development or completes it, we should not hesitate to give it its full meaning."
The old writing still discernible on the palimpsest on which the provisions of the Code, Ch4, "Criminal Responsibility", is set out in the judgment of Lord Birkenhead LC in the Director of Public Prosecutions v Beard [1920] AC 479 at 494 - 502. It reflects the development in the concept of mens rea in the criminal law. 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 about 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. 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."
The similarity between his Lordship's expression and the words of the Code, s17(1) and (2) are plain to see. There can be no doubt that when the Tasmanian Parliament enacted the Criminal Code Act in 1924, four years after Beard, it intended to enact the common law as expounded by Lord Birkenhead in that case. It is true that s17 says nothing about the effect of drunkenness on knowledge of the consequences of an act, but in Snow v R [1962] Tas SR 271, Burbury CJ and Cox J approved of the passage in the judgment of Crisp J in Vallance [1960] Tas SR 51 at 80 when he said that the Code, Ch 4:
"... is both by design and in expression comprehensive and authoritative so as to exclude competing or supplementary common law doctrine in relation both to the actus reus and the mens rea of every crime therein provided for. As to mens rea, it goes even further in its application to summary offences, as I have already pointed out."
Neasey J expressed agreement with that view in Arnol v R [1981] Tas R 157 at 168.
After expressing their approval, at 278, Burbury CJ and Cox J in Snow said:
"We think that ss 12 to 17 inclusive must be taken to state exhaustively the general principles of criminal responsibility relating to the mental element in crime (including insanity and intoxication). That is perhaps subject to one qualification. The Code makes no distinction between voluntary and involuntary intoxication. It may be that the rare common law defence of involuntary intoxication (see Kenny's Outlines of Criminal Law, 17th edn, par 41) is preserved as an independent ground of excuse under s 8 of the Criminal Code Act 1924. But it is unnecessary for the purposes of the present case to decide that point and we express no opinion on it."
At 283, there appears this passage in the joint judgment:
"Section 17 must we think be taken to assume that the general principle of law as firmly established at the time the Code was passed is that drunkenness cannot be relied upon as an exculpatory factor and we think it must be interpreted as defining exhaustively the limited exceptions to this principle. Section 17 was unquestionably intended to declare the common law as expressed in Beard's Case [1920] AC 479. It (as in the case of other provisions of Chapter IV) must be taken to be intended to 'cover the field' as to drunkenness in relation to mens rea. No justification or excuse by reason of voluntary drunkenness is to be found in any principle of the common law not defined in s 17 so as to form any basis for invoking s 8 of the Criminal Code Act 1924. That we think would be so even in the absence of s 17(3) but that subsection supports the conclusion we have reached apart from it."
In its review of Beard, the House of Lords in R v Majewski [1977] AC 443 referred to R v Tolson (1889) 23 QBD 168 and R v Morgan [1976] AC 182 and the historical development of mens rea in the criminal law. With respect to Beard's place in that historical development, Lord Elwyn-Jones LC said at 473:
"From this it seemed clear ¾ and this is the interpretation which the judges have placed upon the decision during the ensuing half century ¾ that it is only in the limited class of cases requiring proof of specific intent that drunkenness can exculpate. Otherwise in no case can it exempt completely from criminal liability." [Emphasis added.]
The policy behind the decision is apparent from this passage in his Lordship's speech at 474 - 475:
"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] QB 421, per James LJ at p 429."
I remain in agreement with Nettlefold J in Palmer (supra) at 146 when he said that "s17 states the law in accordance with the explanation in R v Majewski (supra) of the decision in R v Beard (supra)". In that passage I understand his Honour to have meant that under the Criminal Code, Ch4, the only circumstances in which drunkenness will operate with exculpatory effect are those spelled out in s17 as expounded by Beard and Majewski. This was the policy the Tasmanian Parliament intended to enact. The policy owes its origins to the much criticised maxim: a person is presumed to know the natural and probable consequences of his or her act. As Nettlefold J observed in Palmer at 145, the criticism is that the maxim imposes a view of the facts upon the mind of the jury. The criticism may be well founded, but the plain fact is that at the time the Code, s17 was enacted, the common law was, in this respect, founded on this presumption, born of public policy, which denied exculpatory effect to (voluntary) intoxication unless it had reached the stage of causing an inability to form a relevant specific intention. Barwick CJ doubted the policy was soundly based in O'Connor (supra) and accordingly declined to follow Majewski. However, that is all beside the point when considering the intention of the Tasmanian Parliament.
In Snow, the joint judgment later concerned itself specifically with the question of knowledge and the operation of the Code, s17. At 285 - 286, their Honours said obiter dicta:
"In passing we would refer to the question whether drunkenness may be relied upon as showing absence of knowledge (as distinct from intent) where specific knowledge is a defined ingredient of a crime or offence (eg receiving). In his Article on 'Drunkenness and Criminal Responsibility' 30 ALJ 3, at p 4, H A Snelling, QC says:
'There appears to be no reported English authority on the point but it is hard to see any rational ground for distinguishing such a case from the specific intent doctrine. There is no room here for the introduction of the criterion of the sober and reasonable man, as the prosecution must prove that the accused actually knew the fact and the accused is entitled to claim and endeavour to prove that he did not (for whatever reason).
One may suspect that this and other possible extensions of the specific intent exception to be referred to later are avenues of defence not envisaged by the judges who developed the exception.'
On principle we agree there is no reason to distinguish knowledge from specific intent. But while it might be easy at common law to extend the principle from specific intent to specific knowledge it could hardly be done under the guise of statutory interpretation of s 17. The question is one of some difficulty and it does not fall for decision in the present case."
Crawford J observed, at 294 - 295:
"Where specific knowledge is an ingredient of an offence, eg knowing that the goods were stolen, in a case of receiving, intoxication may be relevant to explain why the accused did not have that knowledge, when one might, otherwise, have expected him to have it. Evidence of intoxication is admissible as relevant to such matters."
With respect to the view of the majority when regard is had to the presumption underpinning Parliament's intention, it will be seen that Crawford J was correct with respect to the crime of receiving. That crime, unlike s157(1)(c), is not concerned with the consequences of an act. The knowledge that forms the mental element of the crime of receiving is not a consequence of the act of receiving. Intoxication causing lack of knowledge that the received goods were stolen is not exculpatory evidence of the natural and probable consequence of the act of receiving goods.
It would be nonsensical to think that in 1924 Parliament intended drunkenness to have exculpatory effect when knowledge is an ingredient in a crime but not when a specific intent is an ingredient. Intention is dependent upon there being knowledge. With respect to the majority opinion in Snow at 285 - 286, cited above, I find little difficulty, as an exercise of statutory construction, in concluding, as did the Court in Palmer, that by the enactment of s17 the intention was to exhaustively set out the circumstances in which intoxication will have exculpatory effect.
With respect to the test to be applied to the second limb of s157(1)(c), Brennan J (as he then was) said in Boughey (supra) at 45:
"The character of the act, the fact that it was likely to cause death (as the accused would have known had he thought about it) and the surrounding circumstances are material to a finding ¾ I do not say that they are the only facts material to a finding ¾ as to whether the accused 'ought to have known'. The criterion to be applied to these facts is whether any sober and reasonable man, having the accused's knowledge, experience and acumen, would have adverted to the possibility that his action might cause death and, adverting to that possibility, would have known that his action was likely to cause death. If the hypothetical sober and reasonable man would have known, it is right to find that the accused ought to have known that his action was likely to cause death."
Although s17 was not under consideration in Boughey, application of the test propounded by Brennan J clearly requires the jury to exclude intoxication from part of its consideration of guilt pursuant to s157(1)(c), albeit not as a result of the application of s17 but as a result of the requirement to apply an objective standard to a subjective test. If intoxication to any degree is relevant to the issue of the knowledge of the accused to which Brennan J referred in the passage set out above, but not relevant to the issue of whether the accused, with that knowledge, ought to have adverted to the possibility of his act causing death, the task of the jury is indescribably difficult. The majority judgment in Boughey, with which Gibbs CJ expressed substantial agreement, described the test, at 29, for s157(1)(c) in slightly different terms from those used by Brennan J, but also introduced an objective standard into the subjective test by referring to "the particular accused [stopping] to think to the extent he ought to have ...". The majority went on to discuss the meaning of knowledge in s157(1)(c) and held it meant the actual knowledge of the accused. Intoxication was not mentioned in Boughey (except by Brennan J in a passing historical reference), but it is difficult to rationalise the proposition that intoxication is not relevant to the formation of a specific intent but is relevant to negative knowledge, in the sense that intoxication may prevent the accused bringing to the forefront of his or her mind material that would have been so brought but for drink taken. Such evidence, if relevant, would be exculpatory on the issue of knowledge raised in s157(1)(c). However, it seems to me that Boughey is of little assistance on a determination of this Reference.
With respect to the common law of Australia turning its face away from Beard and Majewski so that evidence of intoxication falling short of a state where it renders the accused incapable of forming the requisite specific intent is admissible on the issue of whether the intent existed (R v O'Connor (supra)), Nettlefold J correctly observed in R v Bennett (supra):
"On the essential aspect of the problem, that is, the construction of the Code, the reasons in O'Connor have nothing to say."
To bring Nettlefold J's expression of opinion in Bennett up to date, one could add that although Boughey, Hawkins and Hawkins (No 3) were all decisions on the Criminal Code (Tas), none of them considered the essential question decided in Palmer.
I would answer the Reference in the affirmative.
WRIGHT J
26 February 1998
The High Court, in Hawkins v R (1994) 179 CLR 500, decided that evidence of mental disorder which is insufficient to support a finding that the accused was insane when the allegedly criminal act was committed, is irrelevant to the issue whether such act was "voluntary and intentional" within the meaning of the Criminal Code, s13. On the other hand, the Court also held that evidence of such mental disorder is relevant and admissible in relation to the issue of formation of the specific intent required by such provisions as the Code, s157(1)(a) and (b).
The High Court reserved for the further consideration of the Tasmanian Court of Criminal Appeal, the question whether or not such evidence is also relevant and admissible in respect of the question whether the incriminated act was one which the appellant "knew or ought to have known" was "likely to cause death" under the terms of the Code, s157(1)(c).
The Court of Criminal Appeal held (Hawkins v R (No 3) (1994) 4 Tas R 376) that the test as to what the accused "ought to have known" is subjective (see Boughey v R (1986) 161 CLR 10) and consequently the evidence of the accused's mental state was relevant and admissible.
The relevant paragraphs of s157(1) have been set out in the opinions of other members of this Court and need not be repeated.
The Attorney-General in the present reference has asked the Court to determine whether or not evidence of intoxication, short of that providing a defence under the Code, s17, would be admissible in conjunction with evidence of insanity, falling short of providing a defence under the Code, s16, on the question of what the accused "knew or ought to have known" within the meaning of s157(1)(c) in an appropriate case.
The logical approach which compelled the High Court and the Court of Criminal Appeal to the conclusions which were reached in relation to mental condition in Hawkins, do not necessarily apply in relation to intoxication. Whereas it is easy to reason that a man whose mental condition renders him unable to appreciate that his act is likely to cause death should not be punished for his failure to do so, the same cannot be said so readily of a man who has voluntarily confused his faculties with liquor or drugs. Should it not be said that such a man "ought to know" that his drunken act is likely to cause death? In short, is the test in its entirety a subjective test as has been suggested in Boughey and Hawkins.
The American Model Penal Code, s2.08(2), reproduced in the judgment of the Lord Chancellor in R v Majewski [1977] AC 443 at 465, provides as follows:
"When recklessness establishes an element of the offence, if the actor, 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".
In my opinion, such a proposition is completely appropriate as a foundational test for criminal responsibility. If, by getting drunk, a man precludes himself from awareness of the danger which his voluntary and intentional act may pose to another person he cannot be heard to say, "I didn't know and I can't be blamed". Commonsense seems to dictate the appropriate response to that proposition, viz, "If you weren't drunk and had been able to think about your deed, you would or should have realised the risk of death inherent in that conduct."
I am in full agreement with Zeeman J in his conclusion that as a consequence of decisions, both of the High Court and this Court delivered since Palmer v R [1985] Tas R 138, it is necessary in an appropriate case to consider evidence of intoxication falling short of that provided for in s17 when considering whether an accused person actually knew that his allegedly criminal conduct was likely to cause death under the first limb of s157(1)(c).
As Zeeman J points out, there may be difficulties in directing a jury in a case in which a mentally disturbed offender was also drunk. For one thing, such a jury may need to ask, would his mental condition preclude him from appreciating that liquor would deprive him of the capacity to know that which his mental condition alone would not have prevented him from knowing. However, it seems to me that such problems should not stand in the way of concluding, if appropriate, that where liquor or drugs, voluntarily consumed, have been instrumental in depriving a man of the capacity to be aware that the outcome of an unlawful act or omission is likely to be the death of another human being, a jury may convict under s157(1)(c) on the basis that he ought to have known that such result was probable.
To my mind the Beard ([1920] AC 479) philosophy which finds direct expression in the Code, s17, should not be confined or discarded as though it were an outworn and obsolete approach belonging to the past and constituting a fetter upon more appropriate modern jurisprudence. In this respect I respectfully endorse what was said by Cox J (as he then was) in Palmer v R (supra) at 154, where, after endorsing the authority of Snow v R [1962] Tas SR 271, he said:
"If it is thought that the Criminal Code, ChIV in this respect expresses outmoded considerations of social policy and that the view of the majority in Reg v O'Connor is a true expression of fundamental legal principle with which the Code should accord, it is for the legislature to provide the remedy."
Briefly stated, the Beard principle is that, unless liquor, either alone or in combination with other circumstances, has rendered the alleged offender incapable of forming a specific intent to achieve a particular outcome which is a necessary component of the crime in question, liquor consumed has no ameliorative effect upon criminal responsibility. Although Beard deals with intent and not with knowledge, it seems to me that the basic legal policy acknowledged by Beard should apply to all situations provided for in the Code where a subjective mental element is an ingredient of the crime alleged.
It is in accordance with this outlook that I find it impossible to agree that when assessing what a person who has committed a homicide ought to have known about the probable consequences of his conduct, he may be judged guilty of murder under the second limb of s157(1)(c) if completely sober, but not guilty if intoxicated to such a degree that his memory or capacity for clear thought may have been impaired by liquor or drugs which he has ingested freely and with an awareness of their intoxicating effects.
Zeeman J has convincingly demonstrated that to make a subtle and sophisticated distinction between that which they may consider (mental instability) and that which they may not (intoxication) in relation to the "ought to have known" alternative in s157(1)(c), casts a very difficult burden upon the jury, but I think that observation must be considered in light of the fact that in many, if not most, trials for murder, the alternative grounds of criminal responsibility under s157(1)(a) and (b) will also need to be considered by the jury.
Consequently, albeit regrettably, there will be just as much scope for confusion and difficulty in a case where the accused was intoxicated if the level of that intoxication, not being sufficient to deprive him of capacity to form the specific intent required and therefore irrelevant for the purposes of those two subsections, it is still open to them to consider the same level of intoxication as exculpatory under s157(1)(c).
In any event, mere difficulty cannot provide a proper basis for declining to place an otherwise appropriate construction on the subsection. I see no reason to depart from the approach described by Nettlefold J in Palmer and R v Bennett A68/1989.
In Palmer v R (supra), he said, at 148:
"With respect, we should accept and apply the statement in Masnec v R [1962] Tas SR 254, at p 264, to the effect that there is no specific intent required in s157(1)(c). There being no specific intent, there was no excuse in law that because of drink, taken knowingly and willingly, the appellant had deprived himself of the ability to exercise self-control, to realise the possible consequences of what he was doing or even to be conscious that he was doing it. In effect, the learned trial judge gave the jury the same directions in relation to a crime of basic intent as the trial judge did in R v Majewski [1977] AC 443 and he was right to do so."
In R v Bennett (supra), Nettlefold J said, at 2:
"The law of Tasmania concerning the effect of self induced intoxication on criminal responsibility is to be ascertained by applying the ordinary rules for the construction of a statute to the Code, regard being had, of course, to the history of the development of the relevant law and the event in legal history from which, obviously, s17 is derived. On the essential aspect of the problem, that is, the construction of the Code, the reasons in O'Connor have nothing to say."
Where their Honours, Mason, Wilson and Deane JJ said in Boughey:
"The starting point of the inquiry on the question whether an accused ought to have known that his or her actions were likely to cause death must be the knowledge, the intelligence and, where relevant, the expertise which the particular accused actually possessed"
and later in the same passage they refer to "his or her actual knowledge and capacity", they were obviously referring to the individual's general fund of knowledge derived from life's experiences, rather than the particular knowledge present in the individual's mind at the time of performing an unlawful act likely to cause death.
There is a temporal dimension to "knowledge" which is not necessarily present with "intent". To "know" something implies a pre-existing process of learning awareness and comprehension which has been productive of a memory to which reference may be made, if and when required, on a later occasion. Temporary forgetfulness does not necessarily deprive a person of knowledge of a particular fact or circumstance. Reflection can reproduce the memory, and thus the knowledge, as was recognised by Mason, Wilson and Deane JJ in Boughey at 29, where they said:
"It is what the particular accused, with his or her actual knowledge and capacity, ought to have known in the circumstances in which he or she was placed. Inevitably, the word 'ought' requires the making of a subjective judgment by a jury. The jury must be persuaded, on the criminal onus in the context of a murder trial, that the established circumstances were such that the particular accused, with the knowledge and the capacity which he or she actually possessed, ought to have thought about the likely consequences of his or her action. They must also be persuaded, again on that onus and in the context of such a trial, that if the particular accused had stopped to think to the extent that he ought to have, the result would, as a matter of fact, have been that he or she would have known or appreciated that the relevant act or acts were likely to cause death."
Brennan J at 45, dealing with the origin and purpose of the second limb of s157(1)(c) said:
"The phrase 'ought to have known to be likely to cause death' appeared in s 174(d) of the Draft Code of 1879 in reference to an act done 'for an unlawful object', where it was criticized as an unsatisfactory provision in the Draft Code which generally maintains the requirement of a subjective intention as the condition of liability to conviction for murder: see Russell on Crime, p 495. Its introduction into the Code may have been intended to cover cases where an accused had killed while intoxicated and his intoxication precluded the drawing of an adverse inference as to his intention or state of mind at the time. However that may be, it covers cases where the accused does not have the knowledge prescribed by the first limb of the paragraph but where he ought to have had that knowledge when he was doing the unlawful act which caused death. The character of the act, the fact that it was likely to cause death (as the accused would have known had he thought about it) and the surrounding circumstances are material to a finding ¾ I do not say that they are the only facts material to a finding ¾ as to whether the accused 'ought to have known'. The criterion to be applied to these facts is whether any sober and reasonable man, having the accused's knowledge, experience and acumen, would have adverted to the possibility that his action might cause death and, adverting to that possibility, would have known that his action was likely to cause death. If the hypothetical sober and reasonable man would have known, it is right to find that the accused ought to have known that his action was likely to cause death."
Brennan's J's opinion on these issues are not in conflict with the views expressed by the majority of the High Court and, in my opinion, are entirely supportive of the approach which I have been suggesting.
If a person manifests ignorance of a given fact, the reproachful observation "you ought to know that" can mean one of two things. It may mean "I would expect you to know that because most other people do" or it could mean "I am aware that you have been taught about that matter and if you pause to consider your professed lack of knowledge, you are likely to recall it".
The High Court in Boughey recognised that the former proposition has no place in the test propounded by s157(1)(c) and it may be said that in considering the latter proposition, it would be an acceptable excuse if the individual failing to recollect the subject matter of the rebuke were to give consideration to the relevant matter and, having thought about it, were to find that his memory, and thus his knowledge, has vanished beyond recall.
What the individual ought to know is not predicated on the basis of his assumed capacity to learn from experience or on the presumption that he has a perfect memory. The foundational test must be related to the individual with his idiosyncrasies and imperfections of character, reason and intellect which, as the High Court clearly says, requires a subjective approach, but it must also be remembered that the final and crucial assessment as to what he "ought to have known", is subjective only in the sense that it is the collective judgment of the jury. It is possible to be satisfied as a fact about what someone knew on the basis of evidence given at the trial and legitimate inferences drawn from that evidence, but to consider what someone ought to have known is to make a value judgment based upon that material. There is no inconsistency in recognising that the test is a subjective one whilst at the same time excluding from the jury's judgmental purview a temporal self-created impediment to clear perception on the part of the accused. Were it otherwise, it would be virtually impossible to conceive of a situation in which it could be said that an accused person who did not actually know of the probable consequences of his conduct "ought to" have had that knowledge. If one were obliged to accept an individual with all his faults, flaws and failings, whether permanent or transitory, as the subject matter for assessment and to have no regard to external standards of normative conduct, there would simply be no room for being adversely critical of that person's actual failure to appreciate a particular fact or circumstance. To do so would be to condemn a want of capacity or ability which formed part of given characteristics of the subject individual.
In my opinion, the question of drunkenness, whilst relevant to what the offender actually "knew" is not relevant to what "he ought to have known", but as the Crown only has to prove one or the other in any given case, such a distinction can be of little avail to an accused person. A reasonable doubt as to whether an accused knew that death was a likely outcome of his actions would not entitle him to an acquittal if the jury were satisfied to the requisite degree that he should have been aware of that probability.
In my opinion, the following proposition correctly states the law:
"Evidence of self-induced intoxication of an accused person is relevant for the purposes of the Criminal Code, s157(1)(c) so that a jury may take it into account in considering whether or not the accused actually knew that the relevant act or omission was likely to cause death in the circumstances but such evidence may not be taken into account in considering whether or not the accused ought to have known that such act or omission was likely to cause death in the circumstances."
The question posed should be answered, "Yes".
CRAWFORD J
26 February 1998
The question of law referred by the Attorney-General under the Criminal Code, s388AA, for the determination of the Court is:
Did the learned trial judge err in law by directing the jury that evidence of intoxication of the accused David John Weiderman, was relevant in considering his knowledge of the consequences of his conduct or, insofar as it interacted with a mental disorder falling short of providing a defence of insanity under s16 of the Criminal Code, was relevant in considering his knowledge of, or capacity to appreciate, the consequences of his conduct?
The respondent shot and killed his father and was charged with murder. The jury acquitted him of that crime but found him guilty of the alternative crime of manslaughter. The Crown case was that he deliberately killed his father.
The following facts appear from the reasons given by the learned trial judge for ruling that he would direct the jury in the way he did and which has led to this reference. The respondent's father was suffering from frontal lobe dementia or Altzheimer's disease. The respondent was caring for him at home. The father was sufficiently unwell to be eligible for admission to a hospital or home and arrangements were in the course of being made for his admission there. On one view of the evidence it was possible that the father decided to take his own life rather than be committed to such an institution. There was also cogent evidence which would have permitted the jury to conclude that the respondent killed his father to put an end to the latter's suffering, although one possibility raised at the trial was that he may have done so to remove from himself the intolerable burden of caring and being responsible for a seriously impaired dependant.
During the course of the day of the homicide the respondent consumed a considerable amount of alcohol and at about 5 pm was taken home in an intoxicated state by a friend. The friend found the father at the house drinking, with a 12 gauge shotgun at his feet. The friend removed two cartridges from the gun and replaced it in a gun rack inside the house. At about 6.10 pm a neighbour observed the respondent, followed by his father, leave the house and go to a shed. The respondent was carrying two firearms. Shortly after he shot and killed his father in the shed, with a single shot fired from a .22 rifle. From what he told the police, murder was indicated. At the trial he gave evidence that at the time he fired the rifle his father had hold of a shotgun which was pointing towards the ground. He said that he had no recollection of pulling the trigger and did not know why he fired. He claimed that he had no intention of taking his father's life, but had simply intended to be present when his father took his own life. There was evidence corroborating his claim that his father intended suicide. The learned trial judge said that the claim by the respondent that his father had intended to take his own life by means of the shotgun was not implausible.
The respondent called evidence from a psychiatrist who stated that in his opinion the respondent suffered from a mental condition at the time of the homicide. The psychiatrist diagnosed the condition as being an adjustment disorder, the nature of which did not give rise to the conditions required by the Criminal Code, s16, for the defence of insanity to be made out. The psychiatrist was however of the opinion that both the adjustment disorder and the alcohol the respondent had consumed, particularly with the effects of one acting on the effects of the other, would have interfered with the respondent's thinking processes and his ability to form an intention of any sort. The learned trial judge referred to the effect of the evidence as being that the disorder, together with the effects of intoxication, may have caused confused thinking which could have inhibited the ability of the respondent to appreciate consequences, and the issue raised was whether such evidence might be used by the jury in considering whether the "offender knew, or ought to have known" that his act was "likely to cause death in the circumstances". The Code, s157(1)(c).
The question of law raised by the reference concerns the use to which evidence of intoxication may be put by the jury when considering the question whether an accused is guilty of murder by virtue of s157(1)(c), which is in these terms:
"157 — (1) Subject to the provisions of section 160, culpable homicide is murder if it is committed —
...
(c)by means of any unlawful act or omission which the offender knew, or ought to have known, to be likely to cause death in the circumstances, although he had no wish to cause death or bodily harm to any person;" (my italics)
The only reference to intoxication in the Code is in s17, which follows immediately after the provisions of s16 identify the defence of insanity. Section 17 is in these terms:
"17 — (1) The provisions of section 16 shall apply to a person suffering from disease of the mind caused by intoxication.
(2) Evidence of such intoxication as would render the accused incapable of forming the specific intent essential to constitute the offence with which he is charged shall be taken into consideration with the other evidence in order to determine whether or not he had that intent.
(3) Evidence of intoxication not amounting to any such incapacity as aforesaid shall not rebut the presumption that a person intends the natural and probable consequences of his acts."
The learned trial judge firstly ruled, and he instructed the jury accordingly, that for the purpose of determining under s157(1)(c) whether the respondent knew his act was likely to cause his father's death, the evidence of his intoxication was relevant. His Honour held that the Code did not preclude the use of evidence of intoxication in the course of considering the actual knowledge of the respondent. The learned judge secondly ruled, and he so instructed the jury, that for the purpose of determining under s157(1)(c) whether the respondent ought to have known that his act was likely to cause his father's death, the evidence of his intoxication was relevant, but only to the extent that his intoxication may have interacted with some mental disorder suffered by him. His Honour held that if the respondent was not suffering from a mental disorder at the time of shooting his father or if a mental disorder was not operating on his mind at that time, evidence of his intoxication was irrelevant to the question whether he ought to have known that his act was likely to cause his father's death. His Honour directed the jury that the question was, absent a mental disorder, "ought he sober to have known that".
I will deal first with the question of the relevance of the evidence of intoxication to the issue whether, for the purposes of s157(1)(c), the respondent knew that his act of shooting his father was likely to cause death. Plainly in the circumstances of this case, the evidence of intoxication was relevant for the consideration of the jury with regard to that question unless there is something within s17(2) or (3) which requires a contrary conclusion. That necessarily follows from the fact that the subject of intoxication is not mentioned anywhere else in the Code.
Sub-section (2) applies only to the consideration of evidence of intoxication when determining whether an accused had "the specific intent essential to constitute the offence with which he is charged", and therefore does not apply to issues arising under s157(1)(c). The question of knowledge which is raised by par(c) is not one of specific intent. Masnec v R [1962] Tas SR 254 at 264 - 265; Palmer v R [1985] Tas R 138 at 148, 154; Snow v R [1962] Tas SR 271 at 283, 294. There is nothing in s17(2) which required that the jury could not consider the evidence of intoxication, when determining whether the respondent knew that his act was likely to cause his father's death. Ignoring for now s17(3), there is no sound reason for concluding other than that the jury was required to have regard to the evidence going to the state of intoxication of the respondent, together with all the other evidence logically relevant to the question of fact concerning his knowledge of the likely consequences of his act, when determining that question. That is not to suggest that drunkenness might be regarded as an excuse for what, apart from the question of drunkenness, would amount to the crime of murder. But before an accused can be found guilty of murder under the first limb of s157(1)(c) there is required proof of knowledge that death was a likely consequence, and all evidence relevant to that issue must, as a matter of logic and justice, fall to be considered by the tribunal of fact. Nothing is contained in the Code, s17(2), which requires a contrary conclusion.
The question then arises whether a contrary conclusion is to be found in s17(3). It states that evidence of intoxication not amounting to any incapacity such as is stated in subs(2), shall not rebut the presumption that a person intends the natural and probable consequences of his acts. In Snow v R (supra) at 294 - 295, Crawford J thought that both subss(2) and (3) of s17 applied only to offences to constitute which a specific intent was an ingredient, and it followed that the Code was silent as to the effect of evidence of intoxication on crimes not requiring a specific intent. His Honour said that where specific knowledge is an ingredient of an offence, as it is under part of s157(1)(c), intoxication may be relevant to explain why the accused did not have that knowledge when one might, otherwise, have expected him to have it. Evidence of intoxication is admissible as relevant to such matters. I agree with what was said by Crawford J about the matter.
However if it is incorrect to say that subs(3) does not apply to a case where a specific intent is not an ingredient of the crime charged, and instead subs(3) ought to be taken as providing for the purposes of a case such as this that evidence of intoxication shall not rebut the presumption that a person intends the natural and probable consequences of his acts, I would nevertheless hold that the evidence of intoxication was admissible and relevant.
Nowhere in the Code is the exact form and nature of that presumption declared. Section 17(3) simply accepts that it exists and is not rebutted by evidence of intoxication not amounting to such intoxication as would render the accused incapable of forming the specific intent essential to constitute the offence with which he is charged. As was said by Burbury CJ and Cox J in Snow v R (supra) at 286, the Code "does not positively enact the presumption as a rule of the criminal law. It refers to it as a presumption which exists apart from the Code without defining its content".
The source of the so-called presumption that a person intends the natural and probable consequences of his acts is the common law. It has been much debated and misunderstood but its status in this jurisdiction is no longer in doubt. It is a presumption in name only, and not in reality. References to it are merely to a process of logic whereby a tribunal of fact may infer a fact from other facts. Having regard to what was said by the Full Court of the High Court in Smyth v R (1957) 98 CLR 163, Burbury CJ and Cox J in Snow v R (supra) at 288 - 289 said:
"We think this Court is bound to adopt what the High Court has said notwithstanding the enshrinement of this misleading maxim in s17(3) of our Code. All that the maxim means in the context of s17 is that the jury may infer from the nature of the accused's act and the attendant circumstances that the accused intended to cause the result which in fact resulted. In the absence of any other evidence or acceptable explanation from the accused that conclusion may be inescapable. There may be many cases where the accused's act speaks for itself. One may call it a presumption or inference that the results which follow were intended."
In Palmer v R (supra) Nettlefold J, with whom Underwood J agreed, did not dissent from that. In R v Bennett 68/1989, Neasey J at 3 - 4, after referring to Snow and Palmer concluded that "all the judges in both cases were concerned to stress that it is no more than a presumption of fact which it is for the jury to apply if they think the circumstances warrant, that it is for the jury alone to say whether the conclusion indicated by the presumption is to be reached".
The conclusion I have come to is that if s17(3) applies to this case, and I do not think it does, its application is only to provide that evidence of intoxication not amounting to a state of intoxication as would render the accused incapable of forming the specific intent, if any, essential to constitute the offence with which he is charged, but "merely establishing that (the accused's) mind was affected by drink so that he more readily gave way to some violent passion" (Director of Public Prosecutions v Beard [1920] AC 479 at 502) or, to put it another way, to more readily commit the crime, will not alone amount to a defence. Nevertheless the onus of proving all of the elements of the crime remain at all times on the Crown and evidence of intoxication, together with all other evidence relevant to the issue, may be relied upon by the accused to raise a reasonable doubt concerning his state of knowledge relevant to s157(1)(c). My conclusion is in accordance with the common law declared by the High Court in O'Connor v R (1981) 146 CLR 64 and will help to ensure that a person charged with murder under s157(1)(c) will not be found guilty upon a fiction concerning his or her state of knowledge.
I turn to consider the second limb of s157(1)(c), that is to say the issue concerning whether the evidence of intoxication could be regarded by the jury as relevant to the question whether the respondent ought to have known that his act of shooting his father was likely to cause death in the circumstances, whether or not it was his wish to cause death or bodily harm. There is nothing in the Code which provides an answer, but it is clear from the judgments of the majority of the High Court in Boughey v R (1986) 161 CLR 10 that in an appropriate case an accused's state of intoxication at the relevant time may be considered along with all the other evidence which may be relevant to the question of what he or she ought to have known. At 28 - 29 Mason, Wilson and Deane JJ said:
"The words 'ought to have known' are included in s157(1)(c) as an alternative to 'knew'. Reliance upon them is necessary only in a case where it is not positively established that an accused actually knew that his act was likely to cause death. That does not, however, mean that the content of the knowledge laid at the door of an accused is to be assessed by reference to the notional knowledge and capacity of some hypothetical person. The starting point of the inquiry on the question whether an accused ought to have known that his or her actions were likely to cause death must be the knowledge, the intelligence and, where relevant, the expertise which the particular accused actually possessed. The relevant question is not whether some hypothetical reasonable person in the position of the accused would have appreciated the likely consequences of the applicant's act. It is what the particular accused, with his or her actual knowledge and capacity, ought to have known in the circumstances in which he or she was placed. Inevitably, the word 'ought' requires the making of a subjective judgment by a jury. The jury must be persuaded, on the criminal onus in the context of a murder trial, that the established circumstances were such that the particular accused, with the knowledge and the capacity which he or she actually possessed, ought to have thought about the likely consequences of his or her action. They must also be persuaded, again on that onus and in the context of such a trial, that if the particular accused had stopped to think to the extent that he ought to have, the result would, as a matter of fact, have been that he or she would have known or appreciated that the relevant act or acts were likely to cause death.
The learned trial judge's above direction to the jury adequately conveyed the essence of what was involved in the requirement that the applicant 'ought to have known' that his act was likely to cause death in the circumstances. The repeated reference to the applicant, the emphasis which his Honour placed upon factors peculiar to the applicant, and the reference to whether the applicant should, in the circumstances, have been alerted to the dangers of his action, combined to make it clear that what was relevant was what the applicant himself, with his actual knowledge and capacity, ought to have known in the circumstances in which he was placed."
Their Honours regarded the question as being what the particular accused, with his or her actual knowledge and capacity, ought to have known in the circumstances in which he or she was placed. That the respondent's capacity was affected by intoxication was one of the circumstances in which he was placed. The jury was entitled therefore to have regard to the evidence relating to his state of intoxication.
Their Honours approved of the direction to the jury of the trial judge in Boughey. In that direction the judge referred to evidence concerning the training and experience of the accused as a medical practitioner and directed the jury that those matters would seem to be relevant factors to the question of what the accused ought to have known about whether his act was likely to cause death in the circumstances. His Honour then concluded the relevant passage in his direction with the following words:
"I have named only some of the relevant circumstances and it will be for you to consider all the circumstances which you consider relevant in order to decide what he ought to have known."
His Honour, thereby directed the jury in accordance with the Code, making it clear that the question of what Boughey ought to have known was one of fact for the jury and a question to be determined having regard to all the circumstances which the jury considered to be relevant.
Gibbs CJ in Boughey, agreed with the judgment of Mason, Wilson and Deane JJ, so far as it concerned the present topic. There was only one dissenting judgment, that of Brennan J, who at 45 considered that the question of what the accused ought to have known was to be tested from the point of view of a "sober and reasonable man, having the accused's knowledge, experience and acumen".
In Hawkins v R (No 3) (1994) 4 Tas R 376, the three members of this Court held that evidence of a mental disease, not amounting to insanity within the provisions of s16, may be taken into account by a jury when determining what an accused ought to have known for the purposes of s157(1)(c). By the same logic it follows that evidence of a state of intoxication not having either of the effects referred to in s17(1) and (2), may be regarded by the jury for the same purpose.
What the accused ought to have known is plainly a question of fact for the jury. It is inappropriate for this Court to make rules which will fetter the determination of juries by excluding a category of evidence from their consideration. The Code does not in its terms authorise it.
It is likely that experience will show that evidence of a state of intoxication will affect the minds of jurors in different ways, depending on the circumstances. If an accused acted in a self-induced drunken state and as a result initiated the relevant and violent episode, he will be less likely to receive a favourable determination from the jury concerning what he ought to have known would be the likely result of his unlawful act. On the other hand, an accused whose state of intoxication was not self-induced, or an accused who through no fault of his own became unwillingly embroiled in a violent episode at a time when he happened to be intoxicated, will be more likely to attract a favourable determination from the jury concerning that question.
I would answer the question of law referred to the Court in the following way:
The learned trial judge did not err in law by directing the jury that evidence of intoxication of the accused, David John Weiderman, was relevant in considering his knowledge of the likely consequences of his conduct. However the learned trial judge did err in law by directing the jury that for the purpose of determining whether the accused ought to have known that his act of shooting his father was likely to cause death evidence of his intoxication was only relevant to the extent that such intoxication may have interacted with some mental disorder suffered by him. The jury was entitled to regard that evidence as relevant regardless of whether the accused's intoxication interacted with some mental disorder suffered by him.
ZEEMAN J
26 February 1998
At a sittings of the Court at Burnie, David John Weiderman ("the respondent") stood trial on an indictment whereby he was charged with the murder of his father. On 30 November 1996 the jury brought in a verdict of not guilty of murder but guilty of manslaughter. The Attorney-General has now referred to the Court a question of law pursuant to the Criminal Code ("the Code"), s388AA. Initially, the reference was heard by the Court constituted by three members. After judgment had been reserved, it became apparent that, in the light of subsequent decisions of the High Court, consideration ought to be given to whether the previous decision of this Court in Palmer v R [1985] Tas R 138 should be followed. Accordingly, consistently with the practice laid down in Gardenal-Williams v R [1989] Tas R 62 at 71, it was directed that the reference be re-argued before the Court constituted by five members.
As amended, the question of law which has been referred is as follows:
"Did the Learned Trial Judge err in law by directing the jury that evidence of intoxication of the accused David John Weiderman, was relevant in considering his knowledge of the consequences of his conduct or, insofar as it interacted with a mental disorder falling short of providing a defence of insanity under Section 16 of the Criminal Code, was relevant in considering his knowledge of, or capacity to appreciate, the consequences of his conduct."
The question raises the following matters:
whether evidence of intoxication of the offender is relevant to the jury's consideration of the first limb of the Code, s157(1)(c);
whether evidence of intoxication of the offender, insofar as it interacts with a mental disorder falling short of providing a defence of insanity under the Code, s16, is relevant to the jury's consideration of the first limb of s157(1)(c); and
whether evidence of intoxication of the offender, insofar as it interacts with a mental disorder falling short of providing a defence of insanity under the Code, s16, is relevant to the jury's consideration of the second limb of s157(1)(c).
The first matter was not raised by the question as it was referred to the Court by the Attorney-General but was introduced by amendment. The amendment was made without objection when the reference first was called on before the Court, which was then constituted by three members. Whilst s388AA makes no provision for the amendment of a question which has been referred, s388AA(5) permits the Court to extend the time within which a question may be referred. The effect of the amendment is that a further question has been referred and the order of the Court operates as an extension of time so as to permit that to be done.
The unchallenged evidence before the jury was that the respondent had shot and killed his father. The Crown case was that the respondent had done so either to relieve himself of the burden of caring for his father, whose health was seriously impaired, or to release his father from his suffering. The respondent gave evidence at the trial that he had no recollection of pulling the trigger, that he did not know why he fired and that he had had no intention of taking his father's life. The respondent claimed that he had accompanied his father to the place where he was shot, believing that his father intended to take his own life and that he wished to be present when that occurred. There was evidence to suggest that the deceased previously had expressed an intention to commit suicide.
The respondent called evidence from a psychiatrist who expressed the opinion that at the relevant time the respondent suffered from a mental condition, an adjustment disorder, which did not have the characteristics necessary to give rise to the conditions required before a defence of insanity is available under the Code, s16, but which would have altered, perhaps substantially, the respondent's impulse control. There was evidence that prior to the respondent inflicting the fatal injury on his father, he had consumed a considerable quantity of alcohol. Relevant opinions were expressed by the witness in the course of the following exchanges which occurred during examination-in-chief:
"Are you able to pass an opinion as to the effect of alcohol on somebody who has an adjustment disorder of the type you have given evidence about? .... Yes. Generally speaking an adjustment disorder is an ability to monitor one's own behaviour is diminished. And alcohol has a very similar effect. So that it is folk lore that people will do things when they are drunk that they wouldn't dream of doing otherwise. And so alcohol and adjustment disorder in this situation I believe, are likely to have a compound effect. Well the two are likely to be so intermixed that if you were to say is that aspect due to alcohol or is this aspect due to adjustment disorder I would have extreme difficulty separating the two.
...
Would the - he said 'I didn't form the intention. I didn't intend to shoot my father'. Is it likely that the adjustment disorder had any direct relevance to the fact that he says he didn't form that intention, but the act, he's admitted carrying the act out anyway? .... Well it's going to interfere with his thinking processes and therefore, thereby with his ability to form an intent of any sort.
Are you able to say to what extent the adjustment disorder might have interfered with it on this night? .... I don't think I can quantify it. But all I can say -. I think this is important. I think it's substantial. But I can't quantify it.
Would the alcohol that he ingested have any effect on that lack of intention that I asked you about? .... I think that it would diminish it, yes.
...
But as with the earlier question about adjustment disorder can you separate the discrete effects of alcohol from intent and the discrete effects of the adjustment disorder? .... I don't think I can. They are both moving in the same directions, one is compounding the other."
Before proceeding to sum up to the jury, the learned trial judge heard argument as to what directions ought to be given to the jury as to the relevance, if any, of intoxication to the question of whether the respondent, in the terms of the Code, s157(1)(c), "knew or ought to have known" that his unlawful act was likely to cause death in the circumstances. The relevance to this question of a mental disorder which falls short of giving rise to the defence of insanity was established by Hawkins v R (No 3) (1994) 4 Tas R 376.
The learned trial judge ruled (R v Weiderman (1996) 90 A Crim R 250, at 257 - 258) that:
"5 The Code, s17(3) does not preclude the use of evidence of intoxication in the consideration of the question of actual knowledge.
...
The direction which will be given to the jury is that regard may be had to the evidence of disorder and the inter-relationship of intoxication with such disorder in its consideration of whether the accused ought to have known of the probability of death
occurring by reason of his conduct. If the jury is not satisfied that such a disorder was existent at the time of the act of shooting or did not operate on the mind of the accused at such time, then evidence of intoxication is irrelevant to the deliberations of the jury with respect of this question."
The learned trial judge provided the jury with a memorandum concerning certain relevant matters of law. In the course of his summing up he adopted and referred to the contents of that memorandum. The memorandum included the following:
"3 MURDER
3.1Before you can convict the accused you must be satisfied beyond reasonable doubt on the evidence admissible against him:
3.1.1 that by a voluntary and intentional act he killed the deceased, and
3.1.2that act was done with the intention of causing the death of the deceased; or
3.1.3 that act was an unlawful assault
3.1.3.1 which the accused knew; or
3.1.3.2 ought to have known
to be likely to cause death in the circumstances although he had no wish to cause death or bodily harm.
...
4 MENTAL DISORDER
...
4.3The operation of a mental disorder may be considered by the jury in relation to the question of whether the accused possessed any of the states of mind referred to in 3.1.2 or 3.1.3.
4.4Evidence of the effect of alcohol on the manifestation of the disorder may be considered by the jury in relation to the question contained in 4.3.
5 INTOXICATION
5.1Intoxication of itself provides no excuse or basis for acquittal of the accused. It may be relevant as explaining conduct.
5.2 Evidence of such intoxication
-as would render the accused
- incapable of forming the specific intent
- essential to constitute the offence
shall be taken into consideration
- with the other evidence
in order to determine whether or not he had that intent.
5.3Intoxication may provide a basis for acquittal if, either alone or in combination with other factors, it were to reach such a stage as to render an accused incapable of forming the specific intent essential to constitute the crime charged.
5.4Evidence of intoxication may be considered by the jury in relation to the question of whether the accused had actual knowledge of the likely consequence of his conduct (see 3.1.3.1).
5.5Evidence of intoxication alone (if the jury does not find that a mental disorder existed at the relevant time) may not be considered by the jury in relation to the question of whether the accused ought to have known of the likely consequence of his conduct (see 3.1.3.2).
5.6It is for the prosecution to prove beyond reasonable doubt that intoxication did not render incapable any essential state of mind."
Although some of the material contained in that memorandum concerning intoxication might be thought to be potentially confusing, pars4.4, 5.4 and 5.5 are in conformity with the ruling and the learned trial judge directed the jury in accordance with it when he told them:
"Now you may also pay regard to alcohol but in a very limited way, 4.4, evidence of the effect of alcohol on that disorder. You don't just say 'Oh well, he was drunk, he doesn't have a disorder but he was drunk and therefore he's not guilty.' that's not how the law operates. It's only evidence of the effect of alcohol on the disorder itself, that may be used by you in considering the question raised above, in other words the state of mind. So that if you found, for example, that there was a disorder, if you did, and it worked at about X but if you add alcohol to it it usually comes out at 2X then you can consider the effect of intoxication, not in its own right but how it made or worsened the disorder that he had. That's a limited way of using it. But it made the disorder worse or you couldn't - it impacted on the disorder, then you can pay regard to that, intoxication, and the disorder in any of the states of mind that we've dealt with in 3.1.2 and 3.1.3.
But I should tell you, 5.5, because I'll be going back to these two in the morning, 5.5, if you found that the mental disorder did not exist or was not operating on his mind at the time of the shooting, evidence of intoxication alone may not be used by you to determine whether he ought to have known something.
...
So just bear in mind that intoxication may be used by you for 4.4; how it impacts on the mental disorder, but may not be used in the absence of a mental disorder on 3.1.3.2. So 4.4 and 5.5 are important matters for your consideration."
Senior counsel for the Attorney-General submitted that intoxication is irrelevant for a jury's consideration when determining whether an offender comes within either limb of s157(1)(c). He submitted that it is irrelevant because murder within the meaning of s157(1)(c) is not a crime of specific intent. Both counsel accepted the authority of previous decisions of this Court that this crime is not a crime of specific intent. In Masnec v R [1962] Tas SR 254, at 264-265, this Court, speaking of s157(1)(c), said:
"There is no specific intent required under this paragraph. The act causing death must be intentional (s13) but this is a requirement relating to the initial or causative physical act and not to its results or subsequent events. So much is clear from the majority of the judgments in Reg v Vallance [1960] Tas SR 51 and Vallance v The Queen (1961) 35 ALJR 182. The offender's state of mind is material, but it is to knowledge of consequences and not intention or desire that the section looks. If that knowledge exists or in the jury's opinion should have existed in the mind of the offender at the relevant time, then death caused by excessive force within the meaning of Reg v Howe (1958) 100 CLR 448 must be murder and cannot be manslaughter under the Tasmanian Code."
Relevant legal consequences of the crime not being a crime of specific intent were expressed by Nettlefold J (with whom Underwood J agreed) in Palmer v R (supra). His Honour said, at 148:
"With respect, we should accept and apply the statement in Masnec v The Queen [1962] Tas SR 254, at p264, to the effect that there is no specific intent required in s157(1)(c). There being no specific intent, there was no excuse in law that because of drink, taken knowingly and willingly, the appellant had deprived himself of the ability to exercise self-control, to realise the possible consequences of what he was doing or even to be conscious that he was doing it. In effect, the learned trial judge gave the jury the same directions in relation to a crime of basic intent as the trial judge did in Reg v Majewski [1977] AC 443 and he was right to do so."
The approach taken by his Honour generally accords with what was said in Snow v R [1962] Tas SR 271. In that case, Burbury CJ and Cox J said, at 283:
"Section 17 must we think be taken to assume that the general principle of law as firmly established at the time the Code was passed is that drunkenness cannot be relied upon as an exculpatory factor and we think it must be interpreted as defining exhaustively the limited exceptions to this principle. Section 17 was unquestionably intended to declare the common law as expressed in Beard's Case [1920] AC 479. It (as in the case of other provisions of Chapter IV) must be taken to be intended to 'cover the field' as to drunkenness in relation to mens rea. No justification or excuse by reason of voluntary drunkenness is to be found in any principle of the common law not defined in s17 so as to form any basis for invoking s8 of the Criminal Code Act 1924. That we think would be so even in the absence of s17(3) but that subsection supports the conclusion we have reached apart from it."
However, in that case the majority, at 285 - 286, made the following obiter observations:
"In passing we would refer to the question whether drunkenness may be relied upon as showing absence of knowledge (as distinct from intent) where specific knowledge is a defined ingredient of a crime or offence (eg receiving). In his Article on 'Drunkenness and Criminal Responsibility' 30 ALJ 3 at 4, HA Snelling, QC says:
'There appears to be no reported English authority on the point but it is hard to see any rational ground for distinguishing such a case from the specific intent doctrine. There is no room here for the introduction of the criterion of the sober and reasonable man, as the prosecution must prove that the accused actually knew the fact and the accused is entitled to claim and endeavour to prove that he did not (for whatever reason).
One may suspect that this and other possible extensions of the specific intent exception to be referred to later are avenues of defence not envisaged by the judges who developed the exception'.
On principle we agree there is no reason to distinguish knowledge from specific intent. But while it might be easy at common law to extend the principle from specific intent to specific knowledge it could hardly be done under the guise of statutory interpretation of s17. The question is one of some difficulty and it does not fall for decision in the present case."
The question squarely falls for determination in the present case. Whilst the judgment of Nettlefold J in R v Palmer (supra) does not specifically deal with the element of knowledge, it unequivocally adopts the position that the Code, s17 states the law in accordance with Director of Public Prosecutions v Beard [1920] AC 479 as explained in R v Majewski [1977] AC 443. The effect of Palmer is that by s17(3) self-induced intoxication is incapable of affording any defence to a criminal charge, except in the specific circumstances provided for by subsections (1) and (2) and therefore is not a matter which is relevant to s157(1)(c) for any purpose. The question which arises is whether Palmer is good law insofar as would make self-induced intoxication irrelevant to the element of knowledge or imputed knowledge.
That knowledge or imputed knowledge is an element of murder in the terms of s157(1)(c) is clear. At common law a person who does an act causing death knowing that the act will cause death or grievous bodily harm is guilty of murder, but there is a divergence between the common law of Australia and the common law of England on the question whether such knowledge is an ingredient of the crime. The position in England appears from the speech of Lord Bridge of Harwich in R v Moloney [1985] AC 905, at 928:
"I am firmly of the 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. Here again I am happy to find myself aligned with my noble and learned friend, Lord Hailsham of St Marylebone LC, in Reg v Hyam [1975] AC 55, where he said, at p. 65: ' Knowledge or foresight is at the best material which entitles or compels a jury to draw the necessary inference as to intention.' 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 dealing with the same common law form of murder, the High Court took a contrary view in R v Crabbe (1985) 156 CLR 464, decided a few days before R v Moloney (supra). At 470 - 471, the Court said:
"A person who does an act causing death knowing that it is probable that the act will cause death or grievous bodily harm is, as Stephen's Digest states, guilty of murder although such knowledge is accompanied by indifference whether death or grievous bodily harm is caused or not or even by a wish that death or grievous bodily harm might not be caused. That does not mean that reckless indifference is an element of the mental state necessary to constitute the crime of murder. It is not the offender's indifference to the consequences of his act but his knowledge that those consequences will probably occur that is the relevant element.
...
The question is whether the accused knew or foresaw that his actions would probably cause death or grievous bodily harm and actual knowledge or foresight is necessary; imputed knowledge is not enough. Deliberate abstention from inquiry might, of course, be evidence of the actual knowledge or foresight of the accused."
It is implicit from the decision of the High Court in Boughey v R (1986) 161 CLR 10 that the knowledge or imputed knowledge required by s157(1)(c) is an element of the crime and that is consistent with R v Crabbe (supra). The decision of this Court in Hawkins v R (No 3) (supra) accepted that to be the case. The question for determination is whether, leaving aside disease of the mind caused by intoxication which affords a defence by force of the Code, ss16 and 17(1), s17 has any relevance to the mental element of knowledge or imputed knowledge required by s157(1)(c).
I do not understand Director of Public Prosecutions v Beard (supra) or R v Majewski (supra) to say anything about this question, each case being limited to a consideration of matters concerning intent. That is entirely understandable when it is remembered that the common law did not consider knowledge or imputed knowledge to be an ingredient of the crime (R v Moloney (supra)). In my view, s17 is not concerned with questions of knowledge. The irrelevance of s17 to matters of knowledge was suggested by the majority in Snow v R (supra) at 285 - 286 when they said that "while it might be easy at common law to extend the principle [embodied in s17 concerning specific intent] from specific intent to specific knowledge it could hardly be done under the guise of statutory interpretation of s17".
The element of knowledge or imputed knowledge required by s157(1)(c) is something that must be proved and any evidence relevant to its existence must be taken into account by the jury. Insofar as actual knowledge is concerned, any state of intoxication of the offender must be relevant. It is inconsistent with reason to suggest that a jury ought to be invited to consider whether an offender actually knew that his act or omission was likely to cause death in the circumstances on the assumption that the mind of the offender was unaffected by the consumption of intoxicating liquor when requires that a jury be asked to undertake. Whether or not combined with a mental condition falling short of affording a defence under s16, intoxication, whether self-induced or not, is relevant to a consideration of the question of actual knowledge.
In Boughey v R (supra) Mason, Wilson and Deane JJ said at 28 - 29 :
"The words 'ought to have known' are included in s157(1)(c) as an alternative to 'knew'. Reliance upon them is necessary only in a case where it is not positively established that an accused actually knew that his act was likely to cause death. That does not, however, mean that the content of the knowledge laid at the door of an accused is to be assessed by reference to the notional knowledge and capacity of some hypothetical person. The starting point of the inquiry on the question whether an accused ought to have known that his or her actions were likely to cause death must be the knowledge, the intelligence and, where relevant, the expertise which the particular accused actually possessed. The relevant question is not whether some hypothetical reasonable person in the position of the accused would have appreciated the likely consequences of the applicant's act. It is what the particular accused, with his or her actual knowledge and capacity, ought to have known in the circumstances in which he or she was placed. Inevitably, the word 'ought' requires the making of a subjective judgment by a jury. The jury must be persuaded, on the criminal onus in the context of a murder trial, that the established circumstances were such that the particular accused, with the knowledge and the capacity which he or she actually possessed, ought to have thought about the likely consequences of his or her action. They must also be persuaded, again on that onus and in the context of such a trial, that if the particular accused had stopped to think to the extent that he ought to have, the result would, as a matter of fact, have been that he or she would have known or appreciated that the relevant act or acts were likely to cause death."
Although no question of intoxication arose in Boughey, on one reading of that passage it might be said that the intoxicated state of an accused is a factor which must be taken into account as being relevant to the capacity actually possessed by the accused. On the other hand, it might be said that the word "ought" permits the introduction of a policy that self-induced intoxication should be left out of account. Such a policy consideration underlies Director of Public Prosecutions v Beard (supra) and its codification in the form of s17. Beard was rejected by the High Court as stating the common law of Australia in O'Connor v R (1981) 146 CLR 64. That rejection indicates that it would be contrary to the relevant principles of the criminal law, as espoused by the High Court, to introduce, by way of construction of the word "ought", a requirement that self-induced intoxication is irrelevant for the purposes of the second limb of s157(1)(c). I observe that Beard also has been rejected in Canada (R v Robinson (1996) 105 CCC (3d) 97) and in New Zealand (R v Kamipeli [1975] 2 NZLR 610).
Logic would demand that if intoxication is to be irrelevant, it would remain irrelevant whether or not the offender suffers from a mental disorder which is relevant on the basis referred to in Hawkins v R (No 3) (supra). Yet to require a jury to consider whether an offender ought to have known of the relevant consequences taking into account one factor operating on the mind, a mental disorder, and at the same time to ignore another factor concurrently operating on the mind, intoxication, is to ask the jury to engage in an exercise in metaphysics which should have no place in the criminal law and which would be calculated to bring the law into disrepute.
The principles laid down in Director of Public Prosecutions v Beard (supra) and R v Majewski (supra) have been criticised (eg, Howard's Criminal Law 5th edn at 439) and rejected by the High Court as to the common law jurisdictions in O'Connor v R (supra). The principles remain part of the law of this State by force of the Code, s17 insofar as questions of basic intent and specific intent are concerned. Section 17(2) and (3), properly construed, are limited to questions of intent and are irrelevant to knowledge as an ingredient of a crime. There is no reason to import analogous principles into s157(1)(c). To the extent that Palmer v R is to contrary effect it should no longer be followed.
Accordingly, I am of the view that the learned trial judge did not err in giving any of the directions referred to in the question referred to the Court. His error was in directing the jury that self-induced intoxication which did not interact with a mental disorder was irrelevant to the question of whether the respondent knew that his act was likely to cause death in the circumstances. I would answer the question referred as follows:
Evidence of self-induced intoxication of an accused person is relevant for the purposes of the Criminal Code, s157(1)(c) so that a jury may take it into account in considering whether the accused knew, or ought to have known, whether the relevant act or omission was likely to cause death in the circumstances so that the learned trial judge did not err in giving the directions the subject of the question referred to the Court.
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