Royall v The Queen

[1991] HCA 27

HIGH COURT OF AUSTRALIA

Mason C.J., Brennan, Deane, Dawson, Toohey, Gaudron and McHugh JJ.

ROYALL v. THE QUEEN

(1991) 172 CLR 378

25 June 1991

Criminal Law (N.S.W.)

Criminal Law (N.S.W.)—Murder—Causation—Self-preservation—Intention—Reckless indifference—Direction to jury—Crimes Act 1900 (N.S.W.), s. 18.

Decisions

MASON C.J. This application for special leave to appeal raises a variety of questions, including important questions concerning the directions with respect to intent to be given by the trial judge to the jury on a trial for murder as defined by s.18 of the Crimes Act 1900 (N.S.W.) ("the Act"). The application for special leave is brought from orders of the New South Wales Court of Criminal Appeal dismissing an appeal by the applicant from a conviction of murder and refusing leave to appeal against the sentence imposed upon him of imprisonment for life with no non-parole period. A short summary of the relevant facts will suffice as the reasons for judgment prepared by Deane and Dawson JJ. set out in detail the circumstances in which the offence is alleged to have taken place.

2. The deceased, Kelly Louise Healey, died in the early hours of 16 November 1986 when she fell from the bathroom window of the sixth floor flat in which she and the applicant had lived for the previous four months. How the deceased came to fall and just what part the applicant played in the events which precipitated the deceased's fall were central to the issues which the jury were called upon to determine at the trial.

3. The relationship between the applicant and the deceased in the days immediately preceding her death had been far from serene. There had been a serious quarrel between them which led to the deceased moving out of the flat and staying with a friend, Ms Boyd, for three days. She returned to the flat on the evening of 15 November and the applicant arrived home some hours later. A violent argument ensued. The applicant admitted to punching the deceased in the face, shaking her and pulling her hair. There was other evidence that pointed to a greater degree of violence, for there was blood in various parts of the flat apart from the bathroom. The deceased's body was naked when found in the street and her hair was wet. This, it was said, was consistent with the hypothesis that the deceased had undressed and taken a shower.

4. There was evidence of a forcible entry into the bathroom, which was extremely confined, and of a struggle there. The deceased's blood was found splashed in the bathroom and throughout the flat. There was a chipped glass ashtray in the washbasin as well as hair and glass chips, evidently from the ashtray, on the bathroom floor. There were gouge marks in the bathroom wall which, according to evidence, were consistent with an arc created by someone swinging his or her right arm while holding an object such as the ashtray. The location of these marks on the wall was said to support an inference that the deceased may have involuntarily jumped backwards to avoid a swinging arm, whether it was clutching an object or not. There were no marks on the deceased's scalp to indicate that she had been struck by the ashtray. There were neither bloodstains nor fingerprints on the ashtray, though the ashtray was wet and, on that account, might not have yielded fingerprints.

5. The Crown case was that the applicant murdered the deceased in one of three ways: 1. that the applicant pushed or forced the deceased out of the

window;

2. that the applicant physically attacked the deceased in the

bathroom and that, in retreating from or avoiding that attack, she fell from the window; or

3. that, immediately before her fall from the window, the deceased

had a well-founded and reasonable apprehension that, if she remained in the bathroom, she would be subjected to life-threatening violence from the applicant and, in order to escape from the violence, she jumped out the window.

6. The applicant's case at the trial, as expressed in his unsworn statement, was that, after the deceased had entered the bathroom to take a shower, he had become concerned for her. He had heard a thump on the wall. He said that he knew that the deceased had used amphetamines over a long time and that she suffered from epilepsy which caused her to faint or become unconscious. This knowledge, it was suggested, was the foundation of his concern for the deceased and of the claim that she took her own life by voluntarily jumping out the window. The applicant forced the lock with a knife and banged against the door until it opened. He said: "When I finally got it open she was going out the window." There was evidence that, in his record of interview, he said that, when the bathroom door opened, "I just saw the back of Kelly going out the window. She just jumped out." The applicant denied that any violence was done to the deceased or that he touched her in the bathroom. Moreover, his case was that he did not cause her death or intend to injure her.

7. The case was left to the jury on the footing that it was for them to determine whether the applicant had caused the deceased's death in any of the three ways suggested by the Crown. The trial judge instructed them that, if they were satisfied that the applicant caused the deceased's death, they should consider whether he had the requisite intent. His Honour stated that the requisite intent would be satisfied by an intent to kill, an intent to inflict grievous bodily harm or reckless indifference to human life. In making this statement his Honour did not differentiate between the three ways in which the Crown suggested that the applicant had caused the deceased's death; in other words, the jury was left with the impression that, if they were satisfied on the issue of causation in any one of the three suggested ways, the requisite intention would then be satisfied by an intent to kill or an intent to inflict grievous bodily harm or reckless indifference to human life.

8. With respect to the issue of intention, the trial judge told the jury:

"The first question is whether, at the time of the act bringing about the death, that being the time when the deceased left the building and fell to the ground below, there was present in the accused an intent to kill; and if you are satisfied that there was such an intent to kill you would not need to consider the next two matters, namely whether there was an intent to do grievous bodily harm or whether the act of the accused, done at that time, was done with a reckless indifference to her life. If you are not so satisfied of an intent to kill then you must consider whether the accused had the intent, at the relevant time, to inflict grievous bodily harm. ... Grievous bodily harm means nothing more and nothing less than really serious bodily harm such as might be suffered by a person who fell from a height."

A little later, in the context of his instructions relating to reckless indifference, the trial judge told the jury that they were to consider the applicant's actual state of mind at "the time when the deceased fell from the building to the ground below". Subsequently his Honour instructed the jury on manslaughter, stating that they could bring in a verdict of manslaughter if they were satisfied of death and causation, but not intention.

9. Except in relation to the issue of reckless indifference, no directions were sought by counsel for the applicant as to the three ways in which the jury were directed to consider the Crown case of causation; in particular, no direction was sought as to the instructions given in relation to intent to kill or inflict grievous bodily harm.

10. The Court of Criminal Appeal (Gleeson C.J., with whose judgment Wood and Newman JJ. agreed) acknowledged that there was difficulty for an appellate court evaluating intent by reference to the nature of the act causing death when the trial judge had left to the jury three significantly different possibilities as to the way in which the deceased met her death. However, Gleeson C.J. pointed out that, if the jury accepted the first possibility, it was easy to see how they would have concluded that the applicant intended to kill or inflict grievous bodily harm. Likewise, Gleeson C.J. thought that, if the jury accepted the second possibility, it was open to them to accept that the applicant intended to inflict serious bodily harm. However, his Honour could not see how the jury could have safely concluded that the applicant intended to kill the deceased in that situation. Nor did his Honour consider that in that situation there was a probability that the applicant's actions would cause death or that he adverted to that possibility. But his Honour concluded that the jury were entitled to find that the applicant's attack forced the deceased, in her endeavours to avoid it, backwards out the bathroom window. It was because the court considered that this ground was safely open that they rejected the submission that the verdict was unsafe or unsatisfactory.

11. The applicant contends that the Court of Criminal Appeal erred in upholding the verdict on the footing that there was one ground safely open to the jury while finding that there were other grounds left to the jury which were unsafe. As will appear later in these reasons, the answer to this contention is that none of the grounds left to the jury as a basis for conviction was unsafe. But I should not let the contention pass without observing that the Court of Criminal Appeal appears to have proceeded on the footing that there was no danger that the jury had arrived at its verdict on a basis other than that which the Court of Criminal Appeal considered to be safe. Gleeson C.J. plainly thought that the jury would have concluded that the ferocity of the applicant's attack resulted in the deceased falling from the window, instead of acting upon any other basis on which the Crown case was left to them. In these circumstances it does not seem to me that the Court of Criminal Appeal impliedly adopted the proposition that a conviction will necessarily be safe if one ground on which the case was left to the jury was safely open, though other grounds were not. Accordingly, I am not persuaded that in this respect there was an error of principle on the part of the Court of Criminal Appeal.

12. The other grounds of appeal rejected by the Court of Criminal Appeal included a challenge to the correctness of the trial judge's directions on reckless indifference and manslaughter. The applicant contends that the trial judge's directions to the jury with respect to causation, intent and reckless indifference were erroneous and that, in the result, the jury arrived at the verdict which was unsafe and unsatisfactory, the Court of Criminal Appeal not having conducted an adequate examination of the case with a view to ascertaining whether the verdict should be set aside on that ground. The applicant also contends that the trial judge erred in principle in imposing the sentence which was imposed and that the Court of Criminal Appeal failed to deal with this submission.
Causation

13. It is convenient to deal initially with the question of causation. The applicant submits that neither the trial judge nor the Court of Criminal Appeal defined adequately the act done by the applicant which was alleged to have caused the death of the deceased, thereby creating difficulties in determining the issues of causation and intent, in particular the coincidence of act and intent. Ordinarily there is no occasion for a trial judge to spend much time on the identification of the act causing death, but there is a "logical and practical necessity to isolate that act, for it is of it, and it alone, that one or more of the several specified conditions or concomitants must be predicated if the terms of s.18 are to be satisfied", to repeat the words of Barwick C.J. in Ryan v. The Queen (1967) 121 CLR 205, at pp 217-218. In Ryan the trial judge's directions were deficient in that they failed to isolate the particular act or acts which the jury might identify as the cause of death. In that case there was room for argument about what was the act which caused death. Different considerations arose for determination in ascertaining whether Ryan's state of mind satisfied the requirements of s.18, depending upon which act was identified as the cause of death. The Crown case was that Ryan went to rob a service station. While he had his finger on the trigger of a loaded, cocked gun pointed at the deceased's back, with his other hand he tried to find a cord in his pocket. The deceased made a sudden movement, Ryan stepped back and the gun discharged, killing the deceased. If pressing the trigger was identified as the act causing death, the question was whether Ryan willed that act and intended to kill or inflict grievous bodily harm or whether it was an unwilled reflex movement. If, however, presentation of the gun was identified as the act causing death, the question was whether Ryan knew that in the circumstances the involuntary discharge of the gun was probable. See per Barwick C.J. at p 219; and note Reg. v. Crabbe (1985) 156 CLR 464 (where the test applied by Barwick C.J. in Ryan was discarded in favour of that just stated).

14. Thus the case was one in which identification of the act causing death required "specific and close consideration". Yet the directions given to the jury "appeared at times to treat the whole conduct of the applicant from the inception of his exploit as the act causing death", without descending to particularity: see, generally, per Barwick C.J. at pp 218-220.

15. In Ryan, the Chief Justice pointed out (at p 218) that "the choice of the act causing death is not for the presiding judge or for the Court of Criminal Appeal: it is essentially a matter for the jury under proper direction". So the question on this aspect of the present case is whether the trial judge adequately directed the jury as to the particular acts any one of which they might regard as the cause of the deceased's death. In this respect there was, in my view, just as there was in Ryan, a need for the trial judge to give specific and close attention to the identification of the various acts which, on the Crown case, might have been the cause of death. It is not to the point to say that in the present case the requirement of intent under s.18 was the same, no matter which of the acts identified by the Crown was selected by the jury as the cause of death. The point is that, in ascertaining whether there was the requisite intent, different matters may need to be taken into account, depending upon which act is identified as the act which caused death. As Stephen J. said in White v. Ridley (1978) 140 CLR 342, at p 359:

"(I)t is always necessary, if there is said to be any lack of temporal coincidence between act and intent, accurately to identify the relevant act. It was to this need that Barwick C.J. drew attention in Ryan v. The Queen (at p 219)."

Aickin J. agreed with Stephen J.: at p 363. The relationship of act to intent is a matter to which I shall return later. At this stage it is sufficient to say that, if the jury concluded that the applicant pushed the deceased out the window, it would have been easy to find that the applicant intended to kill or inflict grievous bodily harm. If, however, the jury concluded that the deceased met her death in one of the two other ways suggested by the Crown, the drawing of such an inference would not be quite as straightforward.

16. However, accepting the necessity in this case for the trial judge to isolate the various acts which the jury might regard as the act which caused death, I would reject the applicant's submission that the summing up was deficient in this respect. The trial judge clearly identified the three acts alleged to have been done by the applicant which may have led to the deceased's death. In so far as the applicant submits that the trial judge did not correctly instruct the jury as to the intent which must accompany the act in order to constitute the offence of murder, that is another question which can be considered apart from causation.

17. Indeed, I did not understand the applicant to contend, apart from the submission that there must be an interaction between act and intent, that any of the three possibilities put forward by the Crown could not amount to an act which was causative of the deceased's death, if the jury accepted that the act took place. The issue of causation was left to the jury to decide as one of fact. In this respect I agree with the statement made by Burt C.J. in Campbell v. The Queen (1981) WAR 286, at p 290; (1980) 2 A Crim R 157, at p 161, that it is "enough if juries (are) told that the question of cause for them to decide is not a philosophical or a scientific question, but a question to be determined by them applying their common sense to the facts as they find them, they appreciating that the purpose of the enquiry is to attribute legal responsibility in a criminal matter"; see also Timbu Kolian v. The Queen (1968) 119 CLR 47, per Windeyer J. at p 69. That is the test that has been applied in negligence cases by this Court: see March v. E and M.H. Stramare Pty. Ltd. (1991) 65 ALJR 334; 99 ALR 423. Although the trial judge's direction was not so explicit, the jury would have plainly understood it in the sense expressed in the statement just quoted.

18. Of the three ways in which the Crown case was left to the jury on the issue of causation, only the third calls for comment. His Honour put it this way:

"The third allegation is that Kelly Healey at the time immediately before her fall from the window, had a well-founded and reasonable apprehension that if she remained in the bathroom she would be subjected to such further violence as would endanger her life and if in those circumstances she sought to escape by jumping out the window thinking that by so doing she had a better chance of saving her life than by staying inside, and was killed in that fall, the causal link between the acts of the accused and the death are established."

No exception was taken to this direction at the trial.

19. Generally speaking, an act done by a person in the interests of self-preservation, in the face of violence or threats of violence on the part of another, which results in the death of the first person, does not negative causal connection between the violence or threats of violence and the death. The intervening act of the deceased does not break the chain of causation. But the governing principle has been expressed in a variety of different ways. The trial judge's direction was based on that approved by the Full Court of the Supreme Court of New South Wales in Reg. v. Grimes and Lee (1894) 15 NSWR 209 (where the deceased jumped to his death from the window of a railway carriage in order to escape from the accused who had assaulted and robbed him). The key element in the chain of causation, as contemplated by the direction, is that an accused's conduct creates in the mind of the victim a well-founded and reasonable apprehension of danger as a result of which the victim takes steps to escape leading to his or her death. According to this view, it is enough that the victim's apprehension of danger is well-founded and reasonable; there is no requirement that the steps taken to escape should be reasonable. However, in England, formulations have been applied from time to time which pay more attention to the mode of escape chosen by the victim which results in death, no doubt with a view to emphasizing the causative link between the accused's conduct and the death of the victim. Thus, it has been held that a reasonable act performed for the purpose of self-preservation in attempting to escape the violence of the accused does not destroy the causative connection with the accused's violence: Reg. v. Pitts (1842) Car and M 284 (174 ER 509); Pagett (1983) 76 CrAppR 279, per Robert Goff LJ. at p 289. In this context, "reasonable" means reasonable in the light of the accused's conduct and the apprehension of danger which it induced in the mind of the victim. A variant on this formulation is to say that the victim's act which results in death is caused by the accused's violence if the act is "the natural consequence" of that violence, something that is very likely to happen: Beech (1912) 7 CrAppR 197, per Darling J. (where the victim was injured after jumping out of a window to escape from a man whom she had reason to fear). The natural consequence test has been explained as a test which poses the question whether the victim's act "was something that could reasonably have been foreseen as the consequence of what (the accused) was saying or doing": Roberts (1971) 56 CrAppR 95, per Stephenson L.J. at p 102. So if an act is so unexpected that no reasonable person could be expected to foresee it, then it is a voluntary act on the part of the victim which breaks the chain of causation between the accused's conduct and the ultimate injury: Roberts, at p 102.

20. In Director of Public Prosecutions v. Daley (1980) AC 237, the Judicial Committee appears to have endorsed the approach adopted in Roberts. In so doing, their Lordships pointed out that the fear of physical harm induced by the accused's conduct must be "reasonable" and such that it caused the victim to try to escape: per Lord Keith of Kinkel at pp 245-246. It is important to note that in Daley their Lordships were dealing with the elements of "constructive manslaughter"; they were not isolating the issue of causation for examination on its own. Moreover, the case was one in which the victim sought to escape by running away rather than by engaging in a hazardous act such as jumping out of a window or from a speeding train. So the mode of escape did not call for separate attention.

21. It seems to me that, in the context of causation, the principle is best formulated as follows: where the conduct of the accused induces in the victim a well-founded apprehension of physical harm such as to make it a natural consequence (or reasonable) that the victim would seek to escape and the victim is injured in the course of escaping, the injury is caused by the accused's conduct. Whether it is necessary for the prosecution to establish also that the mode of escape adopted is a natural consequence of the victim's apprehension for his or her safety does not arise here for the deceased had no means of escape other than jumping out of the window in the situation posited. The question could arise only in circumstances where the victim does something irrational or unexpected, in which event it might be more difficult to establish that the injury sustained was a consequence of the accused's act and not the product of the victim's voluntary act. In such a situation much may turn on the nature and extent of the well-founded apprehension of the victim; and it is to be expected that persons fearful for their own safety forced to react on the spur of the moment will not always make a sound or sensible judgment and may act irrationally.

22. In the English cases the natural consequence test has been linked to the concept of foreseeability. Because the natural consequence test inevitably invites conjecture about the likelihood of an occurrence, it is impossible to divorce completely the application of the test from the concept of foreseeability. However, in my view, to invite the jury to consider foreseeability would be more likely, at least in the majority of cases, to confuse than to clarify the issue of causation. In many cases, for much the same reason, I see no point in linking that issue to the accused's state of mind. On the other hand, in some situations, the accused's state of mind will be relevant to that issue as, for example, where there is evidence that the accused intended that injury should result in the way in which it did and where, in the absence of evidence of intention, the facts would raise a doubt about causation.
The trial judge's directions to the jury on the issue of intent to kill or inflict grievous bodily harm

23. The applicant makes two specific criticisms of the directions given to the jury with respect to the question of intent, apart from an independent argument aimed at the trial judge's directions on the topic of recklessness with which I shall deal separately. The applicant submits that the trial judge failed to direct the jury, first, that it was an essential element of the offence of murder that the doing of the act which caused the death of the deceased was accompanied by an intent to kill or inflict grievous bodily harm or that it was done with reckless indifference to human life and, secondly, that the intent to kill or inflict grievous bodily harm to be established was an intent to kill or cause such harm by the doing of the act causing death.

24. It is convenient to consider, first, the second of the two submissions. It concerns the necessity for coincidence between act and intent and the way in which the deceased met her death. Is it enough to constitute murder that the applicant intended to kill or inflict grievous bodily harm upon the deceased by striking her with the ashtray if, in consequence of the intended or attempted assault, she jumped to her death from the window in attempting to escape, having a well-founded apprehension of physical harm?

25. The answer to this question turns on the provisions of s.18(1)(a) and (2)(a), together with the definition of "Maliciously" in s.5. Section 18(1)(a) provides that "(m)urder shall be taken to have been committed where the act of the accused ... causing the death charged, was done ... with intent to kill or inflict grievous bodily harm upon some person". Further, s.18(2)(a) provides that "(n)o act ... which was not malicious ... shall be within this section." This provision must be read with the definition of "Maliciously" in s.5 which speaks of "(e)very act done with malice ... or done without malice but done with indifference to human life or suffering, or with intent to injure some person". Thus, the provisions of s.18(2)(a) and the definition of "Maliciously", as well as the provisions of s.18(1)(a), link the doing of the act causing death with the requisite intent on the part of the accused. Putting to one side reckless indifference to human life, the intent required by s.18(1)(a) is related to the intended impact of the accused's conduct on the deceased, that is, an intent to kill or inflict really serious physical harm; the definition does not stipulate that there must be an intent to kill or inflict such harm by means of the accused's act which causes death. There is, in my view, no compelling reason why the provision should be read more narrowly so as to require an intent to kill or injure by means of such an act.

26. In terms of the moral culpability which is a core element of the offence of murder, the existence of the intent of the kind described should be sufficient without the need to link the intent to the mode in which death actually takes place. There is no sound basis for drawing a distinction in terms of moral culpability between a person who intends to commit the offence of murder whose intent as to the mode of death is not precisely fulfilled and a person whose intent is fulfilled in this respect: see Ashworth, "The Elasticity of Mens Rea" in Crime, Proof and Punishment: Essays in Memory of Sir Rupert Cross, (1981); see also Glanville Williams, Criminal Law: The General Part, 2nd ed. (1961), par.44. The point is that the doing of the act which causes death is accompanied by an intent to kill or inflict grievous bodily harm. The fact that death occurs in a way different from that actually intended may, in some situations, possibly generate a problem of causation but that is a different question. As McGarvie and O'Bryan JJ. said in Reg. v. Demirian (1989) VR 97, at p 113:
"If a person creates a situation intended to kill and it
does kill it is no answer to a charge of murder that it caused death at a time or in a way that was to some extent unexpected."

27. What I have just said is supported by the cases in which an accused has been convicted of murder at common law when his or her act which caused the death of the deceased was done not with the intention of killing the deceased but with the intention of disposing of the body, the accused believing, incorrectly, that he or she had already killed the deceased. In Meli v. The Queen (1954) 1 WLR 228; (1954) 1 All ER 373, the four defendants intended to kill the deceased and to disguise the killing by staging an accident. They assaulted the deceased and, thinking they had killed him, rolled his body over a cliff. In fact, his death was caused from exposure from lying at the foot of the cliff. Lord Reid, speaking for the Judicial Committee, said (at p 230; p 374 of All ER):

"It appears to their Lordships impossible to divide up what was really one transaction in this way. There is no doubt that the accused set out to do all these acts in order to achieve their plan and as parts of their plan; and it is much too refined a ground of judgment to say that, because they were under a misapprehension at one stage and thought that their guilty purpose had been achieved before in fact it was achieved, therefore they are to escape the penalties of the law."

See also Reg. v. Church (1966) 1 QB 59 where the accused threw the deceased's body into a river whereby she drowned, the accused believing he had already killed her, having intended so to do. It was held that the jury might have convicted of murder if they regarded the accused's behaviour from the moment when he first struck her to the moment when he threw her into the river as a series of acts designed to cause death or grievous bodily harm.

28. The reasoning in these cases is inconsistent with the applicant's submission that in murder it is essential that there should be an intent to bring about death or injury in the manner in which death actually occurs. It is enough that the accused has the requisite intent at the outset of his or her execution of a series of acts designed to cause, and causative of, death. Those cases illustrate the proposition that, where the death is caused solely by the acts of the accused, the accused's mistake as to the precise manner and time of the occurrence of death is not a factor upon which the accused can rely: S. v. Masilela (1968) 2 SA 558, at p 559.

29. For my part, I doubt that assistance in resolving the question just discussed is provided by the "transferred malice" cases which hold that the accused's intention to kill A will sustain his or her conviction for the murder of B where the act done with the intention of killing A results by mischance in the murder of B: see, for example, Reg. v. Supple (1870) 1 VR (L) 151. In the context of s.18(1)(a), an intent to kill or injure the deceased is not required; it is enough that there is an intent to kill or inflict grievous bodily harm "upon some person". In this respect, the definition is designed to reflect the common law as stated in decisions such as Supple.

30. The applicant's submission that there must be a temporal coincidence between act and intent finds support in the language of s.18(1)(a) and (2)(a) and the definition of "Maliciously" in s.5. As I have already noted, they link the doing of the act causing death with the requisite intent on the part of the accused. What is more important, they do so in such a way that there must be a temporal coincidence of act and intention.

31. In this respect the statutory definition reflects the requirement of the common law that "(t)he intent and the (a)ct must both concur to constitute the crime": Fowler v. Padget (1798) 7 TR 509, per Lord Kenyon C.J. at p 514 (101 ER 1103, at p 1106); and see the authorities cited and the discussion in Reg. v. Scott (1967) VR 276, per Gillard J. at p 289.

32. The generality of this principle, as expressed in the statutory definition, might require some qualification if it is to accommodate Meli and Church. On the other hand, it has been suggested that these decisions may be explained as turning on the issue of causation - in each instance the initial assault, which was accompanied by the requisite intention, was the primary cause of sequential events resulting in death: see Howard's Criminal Law, 5th ed. (1990), p 53. If that explanation is put to one side, the approach taken in Meli and Church is perhaps more easily accepted in cases where there is a pre-arranged plan to kill the deceased than in cases where there is no such plan and there is merely a series of acts from which death results. But there is no occasion to decide the question now and I am prepared to assume, without deciding, that there was here a need for temporal coincidence between the act causing death and the intent.

33. The trial judge's direction that the jury should consider the applicant's state of mind when the deceased fell from the building was appropriate to the first way in which the Crown case was left to the jury. On the other hand the direction, in its application to the second and third ways in which the case was left to the jury, was not temporally related to the acts of the applicant alleged to have caused the death of the deceased. However, in this case, according to the statements made by the applicant, the lapse of time between his entry into the bathroom and the departure of the deceased from the window was insignificant. More importantly, even if one disregards the applicant's statements, it is apparent that there was no significant interval of time between the act of the applicant causing death (whichever it was) and the deceased's departure from the window. In the result, the direction, though it may well have been theoretically objectionable, identified a point of time which sufficiently coincided with any of the acts of the applicant which were alleged to have caused the death.
The trial judge's directions with respect to reckless indifference to human life

34. On this issue, the trial judge instructed the jury in these terms:
"Recklessness involves foresight of or advertence to the
consequences of a contemplated act and a willingness to run the risk of the probability of those consequences occurring. By reckless indifference to human life is meant that the accused was aware that the act contemplated carried a risk to the life of the human being concerned, that the accused did not care whether his act threatened the life concerned. That is, he was indifferent to whether or not his act took that life and he committed the act with such an attitude of mind to its result that you, as jurors, should consider it to be reckless indifference." His Honour went on to say:

"Thus your task would be to consider the accused's actual state of mind at the relevant time which, as I have said, is the time when the deceased fell from the building to the ground below."

35. The applicant contends that the reference to "a willingness to run the risk of the probability" in the first sentence of the passages quoted above was erroneous in that it failed to bring home to the jurors the need for the Crown to establish that the applicant actually realized that the deceased would probably die as a result of the applicant's conduct and nonetheless went on to engage in that conduct. It is well settled that the jury in a trial for murder at common law should be told that it is only if the accused actually knew that his or her act would probably cause death or grievous bodily harm that he or she can be convicted of murder on the footing of reckless indifference to human life: Pemble v. The Queen (1971) 124 CLR 107, per Menzies J. at p 135; La Fontaine v. The Queen (1976) 136 CLR 62, per Gibbs J. at p 77; Crabbe, at p 469. I agree, for the reasons given by Deane and Dawson JJ., that knowledge of the probability of the consequences is an element in the concept of "reckless indifference to human life" in s.18(1)(a). The Court of Criminal Appeal was correct in so deciding in Annakin (1988) 37 ACrimR 131 and Reg. v. White (1988) 17 NSWLR 195 (in both cases the Court held erroneous directions which enabled a jury to convict for murder by reference to the possibility rather than the probability of death). Section 18 departs from the common law in that it requires foresight of the probability of death; foresight of the probability of grievous bodily harm is not enough: Reg. v. Solomon (1980) 1 NSWLR 321.

36. Here the Court of Criminal Appeal considered that the direction sufficiently conveyed to the jury that the death of the deceased must be foreseen as a probability rather than as a mere possibility and that the reference to "risk" did not obscure that message. I have had considerable misgivings about the accuracy of that statement because the instruction to the jury did not spell out, as it should have, the need for knowledge, awareness, foresight or realization of the probability of death. Generally speaking, it is important to spell out this element of recklessness in order to distinguish murder from manslaughter. In this respect the Crown case of murder was to be contrasted with a careless act causing death done without conscious acceptance of the risk involved or such an act done with the knowledge that death or serious injury is only a possible consequence: see Pemble, per Menzies J. at p 135. On the other hand, the words used, when considered carefully, necessarily implied the requisite state of mind on the part of the applicant. It was plain enough that by his reference to "consequences" his Honour meant the death of the deceased; so much was apparent from the statements concerning "indifference to human life" and the expression "took that life". In that context, the first sentence of the direction which I have quoted must be read as a reference to foresight of death as a consequence of the contemplated act and a willingness to proceed notwithstanding foresight of the probability of that consequence.
Was the verdict unsafe and unsatisfactory?

37. The Court of Criminal Appeal doubted that the jury could properly have concluded that the applicant foresaw that the deceased would fall or jump from the window as a probable consequence of his acts such that he took the chance that such an event would occur. If that doubt were well-founded, the direction on recklessness should not have been given. Such a direction should only be given where recklessness is an appropriate issue on the evidence (Pemble, per Barwick C.J. at pp 118-119; La Fontaine, per Barwick C.J. at p 69; Gibbs J. at p 77; Stephen J. at pp 85-86; Mason J. at p 87); otherwise the direction is likely to confuse the jury.

38. In this situation the applicant contends that the verdict was unsafe and unsatisfactory in that the jury may have arrived at their verdict as a result of the direction on recklessness. The short answer to this contention is that, when account is taken of the extremely confined space within the bathroom, it was well open to the jury to conclude that the applicant foresaw the probability that the deceased would fall or jump from the window in consequence of the ferocity of the alleged attack, in attempting to avoid that attack or to escape from the bathroom. As a matter of causation I have already concluded that falling from the window to escape from the bathroom in consequence of a well-founded apprehension of physical harm would be a natural consequence of the applicant's conduct. I see no difficulty in the jury inferring that the applicant had foresight of that natural consequence.

39. The applicant's contention that the verdict was unsafe and unsatisfactory rested partly on submissions which I have already rejected. The contention was based on the suggestion that the trial judge should have instructed the jury concerning the separate elements of intent in relation to each of the three ways in which the applicant was alleged to have brought about the deceased's death. No direction was sought at the trial in relation to this matter and, in the circumstances, I am not persuaded that there was any defect in the summing up on this score.
The appeal against sentence

40. The applicant was sentenced to penal servitude for life pursuant to s.19 of the Act. As it then operated, s.19 provided a mandatory life sentence for the offence of murder and, by the operation of a proviso, confined the discretion of the court to pass a lesser sentence to instances where the judge was of the view that there were "mitigating circumstances" which significantly diminished the accused's culpability for the crime.

41. The applicant does not seek to challenge the correctness of cases such as Reg. v. Burke (1983) 2 NSWLR 93 and Reg. v. Bell (1985) 2 NSWLR 466 where the Court of Criminal Appeal considered the various factors which were capable of constituting "mitigating circumstances" within s.19. This question would be of limited significance since the repeal of s.19 and the introduction of s.19A restoring the discretion of the judge in sentencing for the crime of murder.

42. The contention of the applicant is that it was open to the trial judge to find that, whatever the applicant's intent, he had not intended that the deceased's death be brought about in the manner in which it ultimately occurred. It was argued that this was capable of operating as a mitigating circumstance and that the trial judge and Court of Criminal Appeal had erred in failing to so consider it.

43. In accordance with what I have already said, when a person possesses the intent necessary to constitute murder, that person's moral culpability is not reduced by the fact that the intention as to the mode of death was not precisely fulfilled. Accepting in this case that the applicant had ferociously attacked the deceased, with the requisite intent, it is ludicrous to suggest that his culpability for the death was in any way diminished by reason of the circumstance that the death occurred because the deceased may have fallen or escaped from the window, instead of the death occurring as a direct result of the applicant's assault.
Conclusion

44. In the result I would refuse the application for special leave so far as it relates to sentence. Otherwise, I would grant special leave to appeal and dismiss the appeal.

BRENNAN J. The circumstances out of which this application for special leave arises are set out in the judgment of Deane and Dawson JJ. They give rise to some questions of importance relating to proof of causation in homicide and to proof of murder when the manner of death is not the manner intended or foreseen.
Causation.

2. The external elements of crimes of homicide include the doing of an act or the making of an omission by the offender, the death of the victim and a causal relationship between the two. The question whether the required causal relationship exists is usually a simple question of fact, but this is a more complex case.

3. The basic proposition relating to causation in homicide is that an accused's conduct, whether by act or omission, must contribute significantly to the death of the victim: Pagett (1983) 76 CrAppR 279, at p 288. It need not be the sole, direct or immediate cause of the death. However, when the death is not caused directly by the conduct of the accused but by something done by the victim or by a third person in response to the conduct of the accused, there is a question whether the chain of causation has been broken. If the response is a reflex or automatic reaction to the conduct of the accused, the chain of causation is not broken. It is also well established that the death may be held to have been caused by an accused's conduct though the direct or immediate cause of death is a final fatal step taken by the victim where that step is taken in an attempt to preserve himself or herself from physical harm which unlawful conduct on the part of the accused has induced the victim to fear, provided the victim's attempt at self-preservation is reasonable having regard to the nature of the accused's conduct and the fear it was likely to have induced (or, as I would prefer, provided the attempt is proportionate to that conduct and the fear it was likely to have induced): Reg. v. Pitts (1842) Car and M 284 (174 ER 509); Reg. v. Grimes and Lee (1894) 15 NSWR 209; Curley (1909) 2 CrAppR 96; (1909) 2 CrAppR 109; Director of Public Prosecutions v. Daley (1980) AC 237, at pp 245-246. In such a case, the taking of the final fatal step is not a novus actus interveniens breaking the chain of causation: Pagett, per Robert Goff LJ. at pp 288-289. On the other hand, where the victim's attempt at self-preservation is not reasonable (or proportionate), the chain of causation is broken and the victim's death is not treated as having been caused by the accused's conduct. Subject to a qualification presently to be mentioned, the question whether the chain of causation is broken by the victim's taking of the final fatal step is a question of fact to be answered by reference to the objective circumstances. Nevertheless, an accused cannot be held criminally responsible for a death that has been caused in fact by his conduct if the final fatal step taken by the victim was neither foreseen nor reasonably foreseeable. Foresight or reasonable foreseeability marks the limit of the consequences of conduct for which an accused may be held criminally responsible. In Roberts (1971) 56 CrAppR 95, at p 102, Stephenson L.J. said (in a case of an assault occasioning bodily harm):
"The test is: Was it the natural result of what the alleged
assailant said and did, in the sense that it was something that could reasonably have been foreseen as the consequence of what he was saying or doing? As it was put in one of the old cases, it had got to be shown to be his act, and if of

course the victim does something so 'daft,' in the words of the appellant in this case, or so unexpected, not that this particular assailant did not actually foresee it but that no reasonable man could be expected to foresee it, then it is only in a very remote and unreal sense a consequence of his assault, it is really occasioned by a voluntary act on the part of the victim which could not reasonably be foreseen and which breaks the chain of causation between the assault and the harm or injury."

The question whether an accused whose conduct has led to a death is criminally responsible for the death when the death has been caused by a final fatal step taken by the victim thus depends on the reasonableness (or proportionality) of the victim's attempt at self-preservation and the accused's foresight, or the reasonable foreseeability, of the possibility that a final fatal step might be taken by the victim in response to the accused's conduct.

4. The question whether the accused is criminally responsible for the victim's death when the death was directly and immediately caused by the victim's taking of the final fatal step is resolved at common law by applying the same tests as those which would be applied under the several Criminal Codes to determine whether such a final fatal step is an event that has occurred "by accident" or "by chance". The first stage of the test is whether the victim's taking of the step is a novus actus interveniens breaking the chain of causation; the second stage of the test is whether, at the time when the accused engaged in the unlawful conduct which induced in the victim the fear that caused him or her to take the final fatal step, the taking of such a step was not in fact foreseen by the accused and would not reasonably have been foreseen by an ordinary person: Vallance v. The Queen (1961) 108 CLR 56, at pp 61,65,82; Kaporonovski v. The Queen (1973) 133 CLR 209, at pp 231-232; Stuart v. The Queen (1974) 134 CLR 426, at p 438.

5. These propositions are subject to a qualification in cases where the accused intends his conduct to cause the death of his victim. In such cases, foresight is subsumed in the intent and, as the ultimate result of the accused's conduct - the death of the person who took that step - is intended, it is immaterial that the victim's attempt at self-preservation is objectively unreasonable (or disproportionate) having regard to the nature of the accused's conduct and the fear it is likely to induce. As McGarvie and O'Bryan JJ. said in Reg. v. Demirian (1989) VR 97, at p 113:
"If a person creates a situation intended to kill and it
does kill it is no answer to a charge of murder that it caused death at a time or in a way that was to some extent unexpected." In such a case, it is impossible to regard the taking of the final fatal step as a novus actus interveniens and the victim's death, being intended, is foreseen. But it should not be thought that proof of an intent to kill or of any other specific mental element in murder is either essential or (except in the case just mentioned) necessarily sufficient to prove causation of death in homicide cases.

6. Causation of death is concerned solely with the external elements of homicide; it is not a mental element of any crime of culpable homicide: see Archbold: Pleading, Evidence and Practice in Criminal Cases, 43rd ed. (1988), vol.2, par.20-8, p 1927. Nevertheless as causation requires proof that the taking of a final fatal step by a victim was objectively reasonable (or proportionate) and was foreseen by an accused or was reasonably foreseeable, the facts tendered to prove a specific mental element necessary to establish the crime of murder may be relevant in some cases to the existence of facts tending to prove causation. It is difficult to envisage a case where proof that the conduct causing death was engaged in with an intent to inflict grievous bodily harm would not establish that at least the possibility of death was foreseen or was reasonably foreseeable. In a case of reckless indifference to life, the probability of death must be foreseen: Reg. v. Crabbe (1985) 156 CLR 464. The specific mental elements in murder and an unforeseen fatal step.

7. In addition to the external elements of the crime of murder, s.18(1)(a) of the Crimes Act 1900 (N.S.W.) prescribes the respective mental elements which, if accompanying the conduct which causes the death, establishes the crime of murder in New South Wales. It reads as follows:
" Murder shall be taken to have been committed where the

act of the accused, or thing by him omitted to be done, causing the death charged, was done or omitted with reckless indifference to human life, or with intent to kill or inflict grievous bodily harm upon some person, or done in an attempt to commit, or during or immediately after the commission, by the accused, or some accomplice with him, of a crime punishable by penal servitude for life or for 25 years."

The mental elements of reckless indifference to human life, intent to kill and intent to inflict grievous bodily harm must exist "with" the relevant act or omission. Therefore in determining whether any of the mental elements of murder has been proved in a given case, it is necessary to identify the conduct of the accused which causes the death. The mental elements prescribed by s.18(1)(a) must accompany that conduct if the crime of murder is to be established: see per Barwick C.J. in Ryan v. The Queen (1967) 121 CLR 205, at pp 217-218; and see Demirian, at pp 112-115. The relevant conduct, whether act or omission, is identified by the result it causes - "causing the death charged" - but s.18(1)(a) does not require that the actual result be the result intended. Even when the relevant intent is an intent to kill, it is not necessary that the intent relate to the death of the person killed rather than to the death of "some (other) person". Thus the statute, like the common law, separates the specific mental element in murder from the death actually caused by the offender's conduct; it is sufficient that the conduct causing the death of the victim be accompanied by one of the specific mental elements.

8. However, proof of one of the specific mental elements may tend to prove the legal chain of causation linking the conduct of the accused with the death of the victim. In the present case, for example, if the accused attacked the deceased intending to cause her death, it is immaterial whether her fall from the bathroom window to the pavement below was immediately caused by his pushing her out the window or by her jumping out the window in an attempt to save herself from his murderous attack. But if his intent in attacking her was reckless indifference to her life or an intent to inflict no more than grievous bodily harm on her, the jury would be required to determine, as a matter of inference from all the facts, whether the victim's death was caused by the accused's conduct. The available hypotheses were put clearly by the learned trial judge:
" You may think that there are four alternatives open to
you on the evidence and it is for you to contemplate and decide upon these. The first alternative is that Kelly Healey was pushed or forced out of the window in a physical way by the accused. It would not matter if it was a slight push or the result of a violent struggle. If the physical contact of the accused resulted in her going out the window, the causative link between her death and the acts of the accused would be established. ...

A second factual circumstance open to you is that Kelly Healey fell from the window whilst avoiding a blow or an attack from the accused. Such a circumstance would not be an intentional endeavour by her to escape from the accused but rather an avoiding action on her part which resulted in a fall through the window. Again, if you were satisfied beyond reasonable doubt that this occurred, then the causative link between the death of the deceased and the acts of the accused would be established. This is another of the allegations made by the Crown.

The third allegation is that Kelly Healey at the time immediately before her fall from the window, had a well-founded and reasonable apprehension that if she remained in the bathroom she would be subjected to such further violence as would endanger her life and if in those circumstances she sought to escape by jumping out of the window thinking that by so doing she had a better chance of saving her life than by staying inside, and was killed in that fall, the causal link between the acts of the accused and the death are established. That is the third allegation of a factual area put to you by the Crown and the three I have given you are assertions put to you, on the basis of evidence, by the Crown upon which you may contemplate.

The fourth factual circumstance that is open to you is that Kelly Healey jumped of her own volition, whether as a result of drugs or depression or epilepsy or otherwise would not matter. What would be important is that the act of leaving the window was not the result of or causatively linked to the acts of the accused. It would be suicide. If you found that then you must acquit the accused ... Quite equally, if you were not satisfied of any of the first three alternatives that I have put to you beyond reasonable doubt, you must acquit the accused."

The second and third hypotheses clearly directed the jury's attention to the reasonableness (or proportionality) of the avoiding action which the victim may have taken. The third hypothesis does not direct the jury's attention to the test of reasonable foreseeability of the possibility that the victim might jump out of the window in an attempt to save her life, but the hypothesis postulates conduct on the part of the accused which induces "a well-founded and reasonable apprehension that ... she would be subjected to such further violence as would endanger her life". In circumstances where the window offered the only possible avenue for escape from the accused's further violence, and in a case where the accused is found to have acted either with reckless indifference to the victim's life or with an actual intent to kill or to inflict grievous bodily harm, it would be perverse not to find that the accused could reasonably have foreseen that she might attempt to escape by jumping out the window. It may be that, if the third hypothesis be true, the accused neither intended the deceased to jump out the window nor foresaw that she might do so but that state of mind is not inconsistent with his guilt of murder. Provided it was reasonably foreseeable by the accused in the circumstances postulated in the third hypothesis that the victim might jump out the window, the jury was entitled to be satisfied that her death was caused by the accused's conduct in one or other of the ways mentioned in the first three hypotheses. If the external elements of the offence were thereby proved, the jury could properly convict of an offence of culpable homicide and, if any of the mental elements specified in s.18(1)(a) were also proved, of murder. It was immaterial that there might have been a disconformity between the mental element (intent to inflict grievous bodily harm or reckless indifference to human life) and the actual steps in the chain of causation between the accused's conduct and the victim's death.

9. Pursuant to the statutory definition of the crime of murder, the learned trial judge directed the jury as to the mental elements as follows:
"First, there must be an unlawful act which is the act of
the accused, which means that it must be an act which is a (conscious) or willed or deliberate act. Secondly, it must be the act of the accused which causes the death and thirdly, at the time of the doing of the act the act must have been accompanied by an attitude of mind on the part of the accused which here would be either intent to kill or to do grievous bodily harm or was an act done with reckless indifference to human life." The direction was both accurate and appropriate. Subsequently, his Honour expanded his direction as to the mental state requisite to constitute the crime of murder. He said:

" The first question is whether, at the time of the act bringing about the death, that being the time when the deceased left the building and fell to the ground below, there was present in the accused an intent to kill; and if you are satisfied that there was such an intent to kill you would not need to consider the next two matters, namely whether there was an intent to do grievous bodily harm or whether the act of the accused, done at that time, was done with a reckless indifference to her life. If you are not so satisfied of an intent to kill then you must consider whether the accused had the intent, at the relevant time, to inflict grievous bodily harm."

And later -

" Thus your task would be to consider the accused's actual state of mind at the relevant time which, as I have said, is the time when the deceased fell from the building to the ground below."

10. This direction was not strictly accurate, for it was necessary for the jury to be satisfied that the accused had one of the prescribed mental states at the time when he did the acts which caused the deceased to fall to her death and, on one view of the facts, the last of those acts may have occurred before, albeit only momentarily before, "the time when the deceased left the building" or "the time when the deceased fell from the building to the ground below." However, the inaccuracy in the direction could not have produced a miscarriage of justice. There is not the slightest evidentiary foundation for the possibility that the accused formed one of the prescribed mental states (intention to kill, intention to cause grievous bodily harm or reckless indifference to life) between the time when the last of his violent acts occurred and the moment of the deceased's defenestration. In his unsworn statement at the trial, the accused gave his version of the deceased's going out the window: "I was panicking. I tried to force the door. It was locked.
I tried to force the lock on the door with my knife. I don't remember chopping the door with the knife at all. I threw the knife down I think and I just banged the door. When I finally got it open she was going out the window. I did not touch her at all." In his record of interview, this statement was attributed to him:

"Then I said, 'open the bloody door', and she wouldn't answer. Then I banged the door once with my arm and tried to open it, and it didn't open, so I banged it again with my arm and it opened, and I just saw the back of Kelly going out the window. She just jumped out."

In neither version does he account for the signs of his attack upon her in the bathroom. Nor, of course, does he suggest that he formed any of the prescribed mental states after committing the last of his violent acts.

11. Having regard to the evidence adduced in the prosecution case and the directions of the learned trial judge, the jury could not have been left in any doubt that, in order to convict of murder, they had to be satisfied that the accused had one of the prescribed mental states when he was engaged in the violent conduct which caused his victim's death.

12. In most cases of alleged murder, a precise identification of the act which causes death is attempted in order to furnish a foundation for the inference of the mental state with which that act was done. But where the accused has engaged in a course of violent conduct after which the victim does something that directly causes his or her death, it is not essential in point of law to identify which act or series of acts in the course of that conduct caused the victim to take the final fatal step provided the jury be satisfied on the whole of the evidence that some or all of those acts caused the death and was accompanied by one of the mental states prescribed by s.18(1)(a). Nor is it essential in point of law to identify which of those mental states accompanied the doing of those acts, provided the jury is satisfied on the whole of the evidence that one of those mental states accompanied the doing of the acts or any of the acts which contributed to the death. In this case, it is immaterial to a finding of guilty that the jury may not have been able to pick or may not have picked which of the three mental states the applicant entertained at the relevant time. It was sufficient that the jury was satisfied beyond reasonable doubt that, at that time when the accused committed an act causing death, he entertained one or other of the mental states referred to in s.18(1)(a).

13. In this case, as the review by Deane and Dawson JJ. reveals, there was sufficient evidence to support the jury's findings on these issues adversely to the accused. It is unnecessary to consider the analysis of the jury's findings made by the Court of Criminal Appeal. The relevant considerations are the issues which fell for determination at the trial, the adequacy of the directions given and the sufficiency of the evidence to support the verdict of guilty.

14. I respectfully agree with Deane and Dawson JJ. that the learned trial judge's direction as to the element of reckless indifference to human life was, in its context, an adequate direction. In my opinion, there was no error of law in the summing up, apart from the error as to the time relevant to the entertainment of the prescribed mental elements. That error produced no miscarriage of justice. I would grant special leave to appeal on the issues other than sentence, but I would dismiss the appeal.

DEANE AND DAWSON JJ. The applicant was convicted of the murder of Kelly Healey. The deceased fell six floors to her death from the bathroom window of a flat in Kings Cross on 16 November 1986. When the police arrived at the scene, they found the applicant sitting sobbing on the roadway beside the body of the deceased. For four months before her death the applicant had shared the flat with the deceased.

2. The deceased's fall followed an argument between the deceased and the applicant. For some days the deceased had been staying with a friend and had discussed with her the prospect of living with her permanently. During this time the deceased and the applicant quarrelled. The deceased returned to the flat late on Saturday night, 15 November 1986, and cleaned it up. In the early hours of Sunday morning the applicant arrived home, having been drinking beer since 9 o'clock on Saturday evening. He admitted that a quarrel arose between the deceased and himself. He said that he "backhanded" her and punched her twice in the face and in the nose. He admitted that he grabbed her by the hair at one stage and shook her.

3. Photographs showed that the deceased had sustained significant facial injuries. It appears that the applicant had held the deceased around the throat with one hand leaving bruises on her neck and that while he was doing that he slapped and punched her, causing the dislocation of her nose and considerable bleeding. There was a cut to one of the deceased's eyes and cuts to her lips which were both internal and external. Clearly there had been considerable violence. Blood was found in a number of places in the bed-sitting room: on the bedclothes, on clothing, on the video, on walls and on the refrigerator door. The television set had been knocked over on to the floor and there was blood on it.

4. The deceased went into the bathroom, locked the door, undressed and began to shower. It appears that the applicant and the deceased continued to shout at one another. After a short time, estimated by the applicant to be five, ten or fifteen minutes, the applicant tried to force the lock on the bathroom door with a large clasp knife. The applicant also banged on the door with his arm. It is apparent that the door was forced open by pressure applied by the applicant from outside.

5. What exactly happened in the bathroom is unclear. In his first record of interview, taken on the morning the deceased died, the applicant said that when he broke into the bathroom:

"She (the deceased) was through the window virtually, most of her was out. She was crouched on the ledge, below the window. Her head and arms were out the window. As that door opened she just stepped out the window."

In his unsworn statement at trial, the applicant repeated this explanation. The applicant also suggested that the deceased may have been suffering from depression, perhaps related to epilepsy, or from withdrawal symptoms connected with the use of amphetamines.

6. The bathroom was a very small room. Upon entering the room, a toilet was straight ahead. To the right was a bath and to the left was the window between a hand basin and the toilet. Below the window was a vanity unit. The window itself was about a metre up from the floor. It was shoulder-width wide and less than a metre high.

7. A glass ashtray was found broken in the bathroom. There were glass chips on the bathroom floor and there were gouge marks on two of the walls consistent with the applicant's having swung the ashtray with his right arm commencing at the centre of the base of the window, thence to a first gouge mark on some tiles and continuing through to a second gouge mark on the adjacent wall. There were, however, no bruises or marks on the deceased's scalp which were consistent with her being struck by the ashtray. When a police witness was asked in cross-examination what the applicant had said to him when questioned as to whether he had struggled in the bathroom with the deceased, he said the applicant replied: "No. If I did I only grabbed her by the hair." In the first record of interview the applicant said that he had only yelled at the deceased in the bathroom, and could not recall whether he had thrown anything at her in there. In his unsworn statement the applicant denied having touched the deceased in the bathroom at all.

8. The deceased's blood was found on the bathroom walls above her height, near the window and on the window sill and surrounds. The pattern was consistent with a bloodied object having struck a target, spraying the window, tiles and walls with blood. There were strands of hair lying in the bathroom, some with roots attached. Hair was attached to the tiles at the location of the gouge marks. Water and tissues, discoloured with blood, and hair were found in the toilet bowl.

9. There were abrasions to the back of the deceased's legs, consistent with her having fallen backwards out of the bathroom window, scraping her legs on the exterior brickwork as she fell. Also consistent with her having fallen in this manner was the evidence of stuntmen who attempted to reproduce her fall. An expert witness gave evidence that there were two possibilities: that the deceased had her back facing outwards, her legs inside, and she toppled out backwards or that she was sitting on the window sill, her legs dangling outside, and she fell forwards. The deceased appeared to have landed in an almost-sitting position, taking the impact of the fall on the base of her spine and her hand and falling backwards.

10. It was upon this material that the applicant was convicted of murder under s.18 of the Crimes Act 1900 (N.S.W.). That section provides:

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

be manslaughter. (2)(a) No act or omission which was not malicious, or for which the accused had lawful cause or excuse, shall be within this section. (b) No punishment or forfeiture shall be incurred by any person who kills another by misfortune only, or in his own defence."

"Maliciously" is defined in s.5 in these terms:

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

11. The applicant seeks special leave to appeal against his conviction, primarily upon the ground that the act or acts of the applicant alleged to have caused the death of the deceased were never properly identified at the trial, with the consequence that the jury were never adequately instructed concerning the intent which was required to accompany that act or those acts in order to constitute the crime of murder. Essentially, the defence of the applicant was that he did not cause the death of the deceased but that, if he did, it was without reckless indifference to human life, without intent to kill and without intent to inflict grievous bodily harm.

12. The trial judge charged the jury that there were three alternative ways in which the jury might be satisfied beyond reasonable doubt that the applicant caused the death of the deceased. He told them:

"the question immediately arises for you: was there an unlawful act of the accused causing death. Death, we know, resulted from the fall from the window ... Are the acts of the accused that have been proved before you causatively linked to that fall. ... The first alternative is that Kelly Healey was pushed or forced out of the window in a physical way by the accused. ...

A second factual circumstance open to you is that Kelly Healey fell from the window whilst avoiding a blow or an attack from the accused. Such a circumstance would not be an intentional endeavour by her to escape from the accused but rather an avoiding action on her part which resulted in a fall through the window. ... The third allegation is that Kelly Healey at the time immediately before her fall from the window, had a well-founded and reasonable apprehension that if she remained in the bathroom she would be subjected to such further violence as would endanger her life and if in those circumstances she sought to escape by jumping out of the window thinking that by so doing she had a better chance of saving her life than by staying inside, and was killed in that fall, the causal link between the acts of the accused and the death are established. ...

The fourth factual circumstance that is open to you is that Kelly Healey jumped of her own volition, whether as a result of drugs or depression or epilepsy or otherwise would not matter. What would be important is that the act of leaving the window was not the result of or causatively linked to the acts of the accused. It would be suicide. If you found that then you must acquit the accused".

Upon the request of counsel for the applicant, the trial judge also put to the jury the possibility that the deceased fell out of the window accidentally; that she may have been sitting on the window sill and slipped. He directed the jury that such an occurrence would fall within the fourth category mentioned by him, indicating an absence of the required causal connection between the acts of the applicant and the death. This stood in contrast with the second category in accordance with which the deceased would have moved to avoid a swinging arm, with or without a weapon, being backed up against the open window with nowhere to flee.

13. Whilst the trial judge left the jury with possible alternative views of the evidence, he made it clear to them that the applicant would not be guilty of murder unless he caused the death of the deceased. He said:

"The elements of murder involve that there be an unlawful act which is the act of the accused, which means that it must be an act which is conscious and willed and a voluntary act. It must be an act of the accused which caused death."

14. In identifying the second and third possible views of the evidence, the learned trial judge clearly had in mind those cases which have been referred to as fright, escape or self-preservation cases in which the accused causes the victim to flee or take other steps to avoid harm threatened by the accused, whereby the victim suffers injury, fatal or otherwise. Where the injuries are fatal, the offence committed may be either murder or manslaughter depending on the circumstances of the case. The basic principle was stated by Lord Coleridge C.J. in Reg. v. Halliday (1889) 61 LT 701, at p 702:

"If a man creates in another man's mind an immediate sense of danger which causes such person to try to escape, and in so doing he injures himself, the person who creates such a state of mind is responsible for the injuries which result."

That principle has been elaborated in a number of cases over the years: R. v. Evans (1812) in Cecil Turner (ed.), Russell on Crime, 12th ed. (1964), pp 414-415; Reg. v. Pitts (1842) Car and M 284 (174 ER 509); Reg. v. Grimes and Lee (1894) 15 NSWR 209; Curley (1909) 2 Cr App R 109; Beech (1912) 7 CrAppR 197; Reg. v. Lewis (1970) Criminal Law Review 647; Roberts (1971) 56 CrAppR 95; Mackie (1973) 57 CrAppR 453; Director of Public Prosecutions v. Daley (1980) AC 237. Lewis, Curley, Halliday, Evans and Beech were cases of defenestration. To these might be added the American case of Whiteside v. State (1930) 29 SW (2d) 399.

15. In New South Wales in Reg. v. Grimes and Lee the accused were charged with the murder of Ah Choy, who was a fellow passenger with them in a railway carriage. They had robbed and assaulted Ah Choy causing him to jump to his death from the window of the carriage. The Full Court approved a direction to the jury which was in the following terms:

"If, then, you are satisfied that Ah Choy left the window immediately after the robbery and wounding took place, and if you are satisfied that, though Ah Choy was not actually put through the window by the prisoners, yet that when he jumped through he had a well-founded and reasonable fear or apprehension that if he stayed in the carriage he would be subjected to such further violence as would endanger his life, and if he left the carriage thinking that by doing so he had a better chance of saving his life than by staying in, and was killed in the fall, then the prisoners are guilty of murder, and are just as responsible for the man's death as if they had taken him in their hands and thrown him out of the window."

16. Where in a case of that kind the charge is murder, the prosecution must not only prove that the accused caused the death by inducing a well-founded fear or apprehension on the part of the deceased such as to make it a natural consequence that he or she should take steps to flee or escape, but it must also prove that the words or conduct which induced that fear or apprehension were accompanied by the intent which is a necessary ingredient of the crime of murder. In New South Wales, where the common law concept of malice aforethought is replaced by the statutory formula contained in s.18 of the Crimes Act, the requisite intent is a reckless indifference to human life, or an intent to kill or an intent to inflict grievous bodily harm upon some person. But the intent need not embrace the events which actually occur. While the death of the deceased must be caused by the accused, it may occur in a manner not contemplated by the accused, provided that the acts or words of the accused which cause the death are accompanied by the necessary intent. As was observed by McGarvie and O'Bryan JJ. in Reg. v. Demirian (1989) VR 97, at p 113: "If a person creates a situation intended to kill and it does kill it is no answer to a charge of murder that it caused death at a time or in a way that was to some extent unexpected."

17. In a defenestration case such as the present one it is as likely as not that the accused will not have intended the deceased to meet his or her death by jumping from a window, but it is important to keep the question of causation separate from that of the mental state required for murder. Provided that the words or actions of the accused which cause the deceased to jump or fall from the window (that is, the words or actions which cause death) are accompanied by the requisite intent, that will be sufficient to constitute murder.

18. Of course, there may be no single cause of the death of the deceased, but if the accused's conduct is a substantial or significant cause of death that will be sufficient, given the requisite intent, to sustain a conviction for murder. It is for the jury to determine whether the connection between the conduct of the accused and the death of the deceased was sufficient to attribute causal responsibility to the accused: Pagett (1983) 76 Cr App R 279.

19. In Timbu Kolian v. The Queen (1968) 119 CLR 47, at pp 68-69, Windeyer J. referred to the warning of Sir Frederick Pollock that "the lawyer cannot afford to adventure himself with philosophers in the logical and metaphysical controversies that beset the idea of cause". Windeyer J. continued by observing (at p 69) that "in ascribing effects to causes, and in seeking the cause of an event, the purpose of law, civil and criminal, is to attribute legal responsibility to some person - 'to fix liability on some responsible person', Lord Sumner said in Weld-Blundell v. Stephens ((1920) AC 956, at p 986)". Burt C.J. in Campbell v. The Queen (1981) WAR 286, at p 290; (1980) 2 ACrimR 157, at p 161, said much the same thing:
"It would seem to me to be enough if juries were told
that the question of cause for them to decide is not a philosophical or a scientific question, but a question to be determined by them applying their common sense to the facts as they find them they appreciating that the purpose of the enquiry is to attribute legal responsibility in a criminal matter." It may not be possible to take the matter usefully much beyond that. No doubt in some cases of murder it may assist the jury if the trial judge points out not only that there must be a causal connection between the acts (or, more rarely, omissions) of the accused and the death of the deceased, but that the causal connection must be sufficiently substantial to enable responsibility for the crime to be attributed to the accused. However, in many cases of murder, particularly where a single act such as shooting or stabbing is alleged, it may be unnecessary to elaborate the requirement that the death should have been caused by the accused. In other cases it may be appropriate to point out that the causal chain must not be broken by some intervening event which operates to relieve the accused of responsibility, but such a direction would ordinarily be better put by reference to the actual facts of the case than couched in abstract terms.

20. If, in a case of fright or self-preservation, the victim over-reacts to the threatening acts or words of the accused, that may be sufficient to break the chain of causation. That proposition is sometimes put in terms of reasonable foreseeability: when the act done in self-preservation is "unreasonable" it negatives causal connection: Roberts, at p 102; Hart and Honore, Causation in the Law, 2nd ed. (1985), p 332. On occasions foreseeability may play some part in a jury's enquiry into the cause of death but, in directing a jury, it is, for practical purposes, desirable to keep causation and intent separate as far as possible and to avoid the introduction of questions of foreseeability in relation to causation. It is, we think, going too far to say, as the Full Court of the Supreme Court of South Australia did in Reg. v. Hallett (1969) SASR 141, at p 149, that "(f)oresight by the accused of the possibility or probability of death or grievous bodily harm from his act, though very relevant to the question of malice aforethought, has nothing to do with the question of causation", but in a fright or self-preservation case, where the question is whether the victim's reaction was an over-reaction and therefore a coincidence, the matter is best dealt with in terms other than those of foreseeability. A direction that the victim's fear or apprehension must be well-founded or well-grounded or reasonable in all the circumstances will adequately raise the issue, as will a direction that the act of escape or self-preservation must be the natural consequence of the accused's behaviour. It is for the jury to decide those questions: see Grimes and Lee, at p 223. Although it would not necessarily be wrong to do so, there is generally no need to elaborate the requirement of causation which is implicit in these directions, other than to make clear that the prosecution must establish that the accused caused the act of escape or self-preservation upon which the prosecution relies.

32. In Reg. v. Blaue (1975) 1 WLR 1411; (1975) 3 All ER 446, the Court of Appeal held that the chain of causation was not broken because the victim of a stabbing, who was a Jehovah's Witness, had refused to have a blood transfusion which would probably have saved her life. The Court said (at p 1415; p 450 of All ER):
"It has long been the policy of the law that those who use
violence on other people must take their victims as they find them. This in our judgment means the whole man, not just the physical man. It does not lie in the mouth of the assailant to say that his victim's religious beliefs which inhibited him from accepting certain kinds of treatment were unreasonable. The question for decision is what caused her death. The answer is the stab wound. The fact that the victim refused to stop this end coming about did not break the causal connection between the act and death."

33. On the other hand in Reg. v. Dalby (1982) 1 WLR 425; (1982) 1 All ER 916, the Court of Appeal set aside a conviction of manslaughter where the appellant had supplied drugs to a person who subsequently died of an overdose. The trial judge had directed the jury to ask themselves whether supplying the drugs "was a substantial cause of the victim's death". The Court said (at pp 428-429; p 919 of All E.R.) that supplying the drugs was not an act which caused direct harm and would have caused no harm "unless the deceased had subsequently used the drugs in a form and quantity which was dangerous". Ingestion of the drugs by the victim was seen as a novus actus interveniens.

34. A quite different test of causation was applied in the earlier case of Beech (1912) 7 CrAppR 197, where the accused was convicted of inflicting grievous bodily harm after the complainant had jumped out of a window to escape his threatened attack and injured herself. The Court of Criminal Appeal upheld the conviction and said (at p 200) that no one could say "that if she jumped through the window it was not the natural consequence of the prisoner's conduct. It was a very likely thing for a woman to do as the result of the threats of a man who was conducting himself as this man indisputably was."

35. The "natural consequence" test applied in Beech was formulated in different terms in Roberts (1971) 56 CrAppR 95, where a young woman who was a passenger in the appellant's car injured herself by jumping out of it while the car was in motion. She alleged that she had jumped because of what the appellant had said he would do to her. The Court of Appeal rejected a submission that the accused must foresee the actions of a victim which result in the grievous bodily harm or the actual bodily harm. Their Lordships said (at p 102):
"The test is: Was it the natural result of what the alleged
assailant said and did, in the sense that it was something that could reasonably have been foreseen as the consequence of what he was saying or doing? As it was put in one of the old cases, it had got to be shown to be his act, and if of course the victim does something so 'daft', in the words of the appellant in this case, or so unexpected, not that this particular assailant did not actually foresee it but that no reasonable man could be expected to foresee it, then it is only in a very remote and unreal sense a consequence of his assault, it is really occasioned by a voluntary act on the part of the victim which could not reasonably be foreseen and which breaks the chain of causation between the assault and the harm or injury."

36. The foresight principle laid down in Roberts was approved in Mackie (1973) 57 CrAppR 453, where the appellant was convicted of the manslaughter of a small boy who fell down stairs when running away in fear of being ill-treated by the appellant who had ill-treated the boy in the past. The Court of Appeal said (at pp 459-460):

"Where the injuries are not fatal, the attempt to escape must be the natural consequence of the assault charged, not something which could not be expected, but something which any reasonable and responsible man in the assailant's shoes would have foreseen. Where the injuries are fatal, the attempt must be the natural consequence of an unlawful act and that unlawful act 'must be such as all sober and reasonable people would inevitably recognise must subject the other person to, at least, the risk of some harm resulting therefrom, albeit not serious harm'".

37. The Judicial Committee of the Privy Council approved the law concerning manslaughter as laid down in Mackie in Director of Public Prosecutions v. Daley (1980) AC 237, where the defendants had quarrelled with the deceased and had thrown stones at him. The deceased tripped and fell while running away. He was later found to be dead. Death could have been caused by a blow from one of the stones or by the impact of the fall. Their Lordships said (at pp 245-246):
"It is sufficient to paraphrase what in their Lordships'
view were there (i.e. in Mackie) held to constitute the essential ingredients of the prosecution's proof of a charge of manslaughter, laid upon the basis that a person has sustained fatal injuries while trying to escape from assault by the defendant. These are: (1) that the victim immediately before he sustained the injuries was in fear of being hurt physically; (2) that his fear was such that it caused him to try to escape; (3) that whilst he was trying to escape, and because he was trying to escape, he met his death; (4) that his fear of being hurt there and then was reasonable and was caused by the conduct of the defendant; (5) that the defendant's conduct which caused the fear was unlawful; and (6) that his conduct was such as any sober and reasonable person would recognise as likely to subject the victim to at least the risk of some harm resulting from it, albeit not serious harm."

38. The law as to causation laid down in Mackie and Daley - where the victims were seeking to escape the violence of the accused - is different from the direction as to causation which Cole J. gave the jury in the present case. The direction of his Honour was based on a direction approved by the Full Court of the Supreme Court of New South Wales in Reg. v. Grimes and Lee (1894) 15 NSWR 209. There, the defendants and the victim were travelling in the same compartment in a railway carriage. After being robbed and assaulted by the defendants, the victim, thinking that his life was in danger, jumped out of the train and was killed. The Full Court approved the direction of the trial judge that the defendants were guilty of murder if immediately after the robbery and wounding had taken place the victim jumped through the window because of "a well-founded and reasonable fear or apprehension that if he stayed in the carriage he would be subjected to such further violence as would endanger his life, and if he left the carriage thinking that by doing so he had a better chance of saving his life than by staying in, and was killed in the fall".

39. The direction in Grimes and Lee concentrated on the state of mind of the victim and required a finding of causal connection if the objective facts made the fear well-founded and reasonable. Thus, on a Grimes and Lee direction, it is not enough that the conduct of an accused person has induced the victim to take a course of action which resulted in injury or was a substantial, operating cause. The fear of the victim must be both "well-founded and reasonable". It is, however, not easy to understand what is meant by a well-founded and reasonable fear. If the fear was well-founded, it is difficult to see how any question of reasonableness could arise. Further, the direction in Grimes and Lee did not take into account whether the conduct of the victim was reasonably foreseeable; nor did it take into account whether what the victim did was the natural consequence of the defendants' conduct. Consequently, the law as laid down in Grimes and Lee is difficult to reconcile with the law as laid down in many of the cases decided in this century.

40. The purpose of this extended discussion of the case law has been to demonstrate that the rules concerning causation are in an inconsistent and unsatisfactory state in cases where harm to the victim has occurred because of the subsequent acts or omissions of the victim or a third party. This branch of the law is in evident need of rationalisation. When such a situation exists, it is the duty of this Court, as the ultimate appellate tribunal of the nation, to seek to achieve that object by recourse to the underlying principles of the common law.

41. Judicial and academic efforts to achieve a coherent theory of common law causation have not met with significant success. Perhaps the nature of the subject matter when combined with the lawyer's need to couple issues of factual causation with culpability make achievement of a coherent theory virtually impossible. But there is little hope of obtaining a coherent theory of causation if the principles of causation in criminal cases are significantly different from those in the civil law. No doubt the object of the civil law is not the same as the object of the criminal law. But both areas of law use principles of causal responsibility to limit liability for the consequences of wrongful acts. Tort and contract law do so, inter alia, by rules of remoteness of damage which are based on notions of justice and morality: cf. Overseas Tankship (U.K.) Ltd. v. Morts Dock and Engineering Co. Ltd. (The Wagon Mound (No.1)) (1961) AC 388, at pp 422-423. Criminal law does so by reference to rules which are based on notions of moral culpability. Speaking generally, the broad principles of causation applicable in civil cases should be equally applicable in criminal cases. The law of negligence, where issues of causation have arisen frequently, has used the doctrines of reasonable foreseeability and novus actus interveniens to limit responsibility for negligent acts and omissions which are causally connected with injury suffered: Mahony v. J. Kruschich (Demolitions) Pty. Ltd. (1985) 156 CLR 522, at p 529. Reasonable foreseeability has been used to limit the liability of a tortfeasor because "it does not seem consonant with current ideas of justice or morality that for an act of negligence, however slight or venial, which results in some trivial foreseeable damage the actor should be liable for all consequences however unforeseeable and however grave, so long as they can be said to be 'direct'": The Wagon Mound (No.1), at p 422. The novus actus interveniens doctrine has been used to limit the liability of a tortfeasor because he or she is perceived as having no moral responsibility for damage when a fully-informed actor, not acting under constraint or pressure flowing from the tortfeasor's actions, has intervened and produced that damage even though it would not have occurred but for the tortfeasor's act or omission. For the same reasons, in a criminal case, a person should not be held liable for a wrongful act or omission which has caused harm in a "but for" sense if that harm was the product of a novus actus interveniens or was not a reasonably foreseeable consequence of the act or omission. It goes almost without saying, however, that a person should be held liable for harm which is causally linked with his or her conduct and which he or she intended should be brought about by that conduct: cf. Hart and Honore, Causation in the Law, 2nd ed. (1985), p 79.

42. The test of reasonable foresight is to be preferred to the "natural consequence" test and the "operating cause and ... substantial cause" test. The balance of authority favours the reasonable foresight test over the "natural consequence" test. Moreover, the word "natural" is ambiguous. In Overseas Tankship (U.K.) Ltd. v. The Miller Steamship Co. Pty. ("The Wagon Mound (No.2)") (1967) 1 AC 617, Lord Reid said (at p 634), "(t)he word 'natural' is found very often and is peculiarly ambiguous." In Beech, Darling J., in using the term "natural consequence", seemed to mean that the consequence was one which "was a very likely thing". But the expression can also mean a consequence that might be expected to occur. In Roberts (at p 102), Stephenson L.J. approved the test in Beech. Yet his Lordship said that the test was: "Was it the natural result of what the alleged assailant said and did, in the sense that it was something that could reasonably have been foreseen as the consequence of what he was saying or doing?" Furthermore, despite the enthusiasm which some courts and writers have shown for the "operating cause and ... substantial cause" test, I do not think that it is a satisfactory formula. The adjective "operating" adds nothing. Either an accused's act is a cause or it is not a cause. The word "substantial" means no more than not de minimis. The result of the application of the "operating cause and ... substantial cause" test in most cases is that the "but for" test has been applied under another label.

43. In Hallett, however, the Full Court said (at p 149):
"Foresight by the accused of the possibility or probability
of death or grievous bodily harm from his act, though very relevant to the question of malice aforethought, has nothing to do with the question of causation." As I have already pointed out, however, for the purposes of the criminal law, causation cannot be separated from questions of moral culpability. And a person should not be regarded as morally culpable in respect of harm which he or she did not intend and which no reasonable person could foresee.

44. However, notwithstanding what was said in Daley and Grimes and Lee, I do not think that either principle or policy requires the conclusion that an accused is not causally responsible for the harm suffered by the victim simply because the accused's act or omission has caused the victim to act unreasonably. One of the basic objects of the criminal law is the preservation of the Queen's peace. If the conduct of the accused in fact induces the victim to do something which "causes" harm to him or her, the act of the victim ought not to be regarded as a novus actus interveniens merely because it was unreasonable. Persons subjected to violence or the threat of violence do not always think rationally or act reasonably. The instinct of self-preservation often causes them to flee or to take action which, while avoiding the immediate danger, places them in greater peril. Indeed, in some cases, the suicide of the victim should not be regarded as breaking the causal chain of responsibility. If a person suicided to avoid further torture and eventual death, I do not see why the causal chain should be taken as broken: cf. People v. Lewis (1899) 57 Pac. 470. The unreasonable failure of a victim to receive medical attention will not constitute a novus actus interveniens: Blaue. How then can unreasonable conduct on the part of a victim in escaping an attack automatically constitute a novus actus interveniens? It is true that in the first case the victim has refused to take action which would prevent his or her death, while in the second case the victim has taken action which causes his or her death. But in each case, the death occurs only because of conduct on the part of the victim which is unreasonable by objective standards. It is not easy to see any distinction in principle between the two cases. It is even more difficult to see why the conduct of the victim should absolve the accused in one case and not the other.

45. The fact that the victim's act is unreasonable in seeking to escape from the violent conduct of the accused, therefore, does not seem enough by itself as a matter of either principle or policy to enable the accused to escape causal responsibility for the harm which ensues. On the other hand, even though the victim's act is not a novus actus interveniens, to hold that the accused was criminally responsible for harm which was not intended and which no reasonable person could have foreseen was likely to result from his or her conduct would be an onerous imposition of the criminal law.

46. Consequently, in a case such as the present, an accused should not be held to be guilty unless his or her conduct induced the victim to take action which resulted in harm to him or her and that harm was either intended by the accused or was of a type which a reasonable person could have foreseen as a consequence of the accused's conduct. In determining whether a reasonable person could have foreseen the harm suffered by the victim, any irrational or unreasonable conduct of the victim will be a variable factor to be weighed according to all the circumstances of the case. The verdict on the third alternative was not unsafe or unsatisfactory

47. When the evidence relied on by the Crown in this case is examined in the light of the principles of causation to which I have referred, a reasonable jury were entitled to find the applicant guilty of murder on the basis of the third alternative. If the deceased jumped out of the window to avoid his attack, a causal link existed between the applicant's attack and her death and the applicant should be held to be causally responsible for her death unless her death was not a reasonably foreseeable consequence of the attack. The conduct of the applicant in relation to the deceased makes it impossible to regard her act in jumping (if it occurred) as a novus actus interveniens for which the applicant has no responsibility. So the question is: was the death of the deceased a reasonably foreseeable consequence of the applicant's conduct?

48. Unfortunately, the learned trial judge did not instruct the jury of the need to isolate a particular act as the cause of the deceased jumping out of the window. If the jury found that the deceased jumped, it was open to them to find that she did so because of what occurred in the bathroom or because of the applicant's act in forcing the door open. The causal act most favourable to the applicant is that she jumped as the result of his forcing the door open. But, having regard to the ferocity of the attack which had taken place in the living room, the arguing which continued after the deceased locked herself in the bathroom, and the banging on the door, I think that a reasonable jury were entitled to hold that the deceased's death was a reasonably foreseeable consequence of the breaking down of the door. It was reasonably foreseeable because the conduct of the applicant up to and including that time was capable of inducing such fear in the deceased that she would take any step to avoid his violence even if it meant going out the window. The irrational act of a person in the deceased's position, having regard to the circumstances, was not beyond the limits of reasonable foresight.

49. Moreover, I think that a reasonable jury were entitled to find that even at the time of the breaking open of the door the applicant had the intention to kill her or cause her grievous bodily harm or was recklessly indifferent to her life. A reasonable jury were entitled to find that, having regard to the violence which had taken place at the earlier stage, the applicant broke open the door with intent to kill the deceased or to inflict grievous bodily harm upon her or realised that his actions would probably cause death to the deceased and was recklessly indifferent to that occurring. It is beside the point that the applicant may not have intended to kill the deceased or inflict grievous bodily harm on her, or may not have foreseen the probability of the deceased dying, by jumping or falling out out of the window. As McGarvie and O'Bryan JJ. said in Reg. v. Demirian (1989) VR 97, at p 113:
"If a person creates a situation intended to kill and it
does kill it is no answer to a charge of murder that it caused death at a time or in a way that was to some extent unexpected."

50. For these reasons, I am of the opinion that a reasonable jury were entitled to find on the third alternative that the applicant was causally responsible for the death of the deceased and that, whichever of the three states of mind was selected as the relevant one, it was a state of mind which a reasonable jury were entitled to find. Accordingly, the verdict of the jury, based on the third alternative, was not unsafe or unsatisfactory.

51. The important principles of law which had to be discussed in reaching the conclusion that the verdict was not unsafe or unsatisfactory make the case one for the grant of special leave to appeal. But the appeal on this ground must be dismissed.
Direction on the third alternative

52. I have already set out the judge's direction on the third alternative. It was clearly based on Grimes and Lee. It departs from the reasonable foresight model of causation in two respects. First, it required that the deceased should have had a well-founded and reasonable apprehension that she would be subjected to violence which would endanger her life. This was an unduly favourable direction from the point of view of the applicant. Persons do not always and cannot always be expected to act rationally. Secondly, the judge did not direct the jury as to the need for reasonable foresight of the consequences of the applicant's act. In this respect, however, the trial judge's direction was unfavourable to the applicant and amounted to a misdirection.

53. Further, the trial judge failed to direct the jury as to the need to identify the act which caused the death of the deceased. In Ryan v. The Queen (1967) 121 CLR 205, at pp 217-218, Barwick C.J. drew attention to the "logical and practical necessity to isolate that act, for it is of it, and it alone, that one or more of the several specified conditions or concomitants must be predicated if the terms of s.18 are to be satisfied". I have already said that the verdict was not unsafe or unsatisfactory irrespective of which of the acts of the applicant was the act which caused death. But, of course, it was still open to the jury in the present case to find that the death of the deceased was not a reasonably foreseeable consequence of whatever was the relevant causal act of the applicant.

54. In my opinion, however, the direction of the trial judge on causation did not constitute any miscarriage of justice. I do not think that there is a real possibility that the failure of the trial judge to instruct the jury as to the need to identify the precise act which caused death or his failure to direct the jury in terms of reasonable foreseeability affected the result. Having regard to the evidence of the attack in the bathroom, I do not think that there is a significant possibility that the jury accepted that the deceased jumped out of the window because the door was forced open. The evidence strongly favours the view that the deceased did not jump out of the window. The only evidence that she did so is the assertion of the applicant. His assertion seems quite inconsistent with the abrasions on the back of the legs of the deceased. Moreover, if the jury rejected the applicant's account that there was no violence in the bathroom, his story about the deceased jumping out of the window as the door was forced open lost its credibility. The evidence is overwhelming that, despite the applicant's denials, a violent struggle took place in the bathroom. Consequently, I do not think that there is any significant possibility that the jury found that she jumped out of the window as the result of the door being forced open. If the jury found that a struggle took place in the bathroom, as I think they certainly did, and that the deceased jumped out of the window to avoid that attack, there is no doubt in my mind that the jury would have come to the conclusion that death was a reasonably foreseeable consequence of the applicant's attack. It is not necessary that the reasonable person could foresee the precise manner in which the act caused death.

55. In the circumstances, I am not persuaded that the trial judge's directions on the third alternative constituted a miscarriage of justice.
Reckless indifference to human life

56. His Honour instructed the jury:
"Recklessness involves foresight of or advertence to the
consequences of a contemplated act and a willingness to run the risk of the probability of those consequences occurring.

By reckless indifference to human life is meant that the accused was aware that the act contemplated carried a risk to the life of the human being concerned, that the accused did not care whether his act threatened the life concerned. That is, he was indifferent to whether or not his act took that life and he committed the act with such an attitude of mind to its result that you, as jurors, should consider it to be reckless indifference."

57. This Court has held that it is only if an accused knew that his or her act or omission would probably cause death or grievous bodily harm that he or she can be convicted of murder in a case where the Crown alleges that the act done or omitted was done with "reckless indifference": Reg. v. Crabbe (1985) 156 CLR 464.

58. Counsel for the applicant contended that, when the Crown in New South Wales alleges that an act was done or omitted "with reckless indifference to human life", the trial judge must direct the jury that the accused cannot be convicted of murder unless he or she knew that his or her act or omission would probably cause death. Counsel for the Crown, on the other hand, contended that the principles expounded in Crabbe are not relevant to a charge of murder under s.18.

59. The principle which this Court applied in Crabbe was an adoption of Art.223 of Stephen's A Digest of the Criminal Law, (1877), which was concerned to explain what was meant by the common law concept of "malice aforethought". That term is not used in s.18 although sub-s.(2)(a) provides that no act or omission which was not "malicious" shall be within the section. Section 5 defines malice. But if the prosecution establishes that the accused had one of the three states of mind specified in s.18, there is no room for the operation of s.5. Section 5 has operation in relation to s.18 only in the case of felony-murder. Indeed the object of s.18 and its predecessor was to do away with the phrase "malice aforethought": Parker v. The Queen (1963) 111 CLR 610, per Windeyer J. at p 655. Why then should the principles in Crabbe be applied to the statutory concept of "reckless indifference to human life"? Stephen's definition, which this Court adopted in Crabbe, did not use the term "reckless". Furthermore, that definition extended to knowledge that an accused's act or omission would probably cause grievous bodily harm. But the most important distinction between Stephen's definition and s.18 is that "indifference" was not an element in his definition. As this Court pointed out in Crabbe (at p 470): "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." In contrast, "reckless indifference" is the criterion in this part of s.18.

60. The foregoing considerations constitute a formidable barrier to the application of the principles expounded in Crabbe to the element of "reckless indifference" in s.18. It is a barrier which is not weakened by recognising that the term "reckless" in its ordinary meaning covers cases where the actor does not know that the consequences of his or her action are probable. Thus, The Macquarie Dictionary, 2nd rev.ed. (1987), defines "reckless" to mean "1. utterly careless of the consequences of action; without caution ... 2. characterised by or proceeding from such carelessness". Moreover, in statutory offences the term "recklessness" is often interpreted as including the case where the accused knew or recognised that there was a substantial risk that his or her action would bring about the prohibited consequences: cf. Smith (1982) 7 A.Crim.R. 437, at p 440. See also Commissioner of Police v. Caldwell (1982) AC 341, at pp 353-354.

61. Despite the force of the foregoing considerations, however, I think that the better interpretation of s.18 is that the element of "reckless indifference to human life" requires proof of knowledge on the part of an accused that his or her act or omission would probably cause death. The New South Wales Court of Criminal Appeal took this view of s.18(1) in Annakin (1988) 37 A.Crim.R. 131. In determining the meaning of "reckless indifference" in s.18(1)(a), it is a matter of considerable importance that the paragraph is defining the elements of the offence of murder. It is not to be supposed that the legislature would intend that a person who was conscious of no more than the possibility that his or her act or omission might cause the death of a person should be found guilty of murder. Still less is it likely that the legislature intended that carelessness or heedlessness as to the possibility that a person's act or omissions might endanger life was sufficient to constitute murder if the acts or omissions resulted in the death of a human being. The state of mind of a person who knows that his or her act or omission, if done or omitted, will probably cause death cannot be distinguished in terms of moral culpability from the state of mind of the person who intends to kill or inflict grievous bodily harm. But there is a real distinction in terms of moral culpability between the latter two states of mind and the state of mind of a person who acts or fails to act even though he or she knows that there is a possibility that the act or omission might cause death. If acts or omissions accompanied by knowledge of the possibility that they might result in death were within s.18(1)(a), many acts and omissions previously classified as manslaughter would have to be regarded as murder.

62. A further factor pointing in favour of the application of the Crabbe test to s.18(1)(a) is that the state of mind described in that test was often described at common law as "reckless indifference": see, e.g., La Fontaine v. The Queen (1976) 136 CLR 62, per Gibbs J. at p 76, and the authorities to which he refers; Crabbe, at p 470.

63. For the foregoing reasons, I think that the better view is that the principle in Crabbe is applicable to the element of "reckless indifference to human life" in s.18(1)(a).

64. The remaining question is whether the direction of the learned judge was in accordance with the requirements of Crabbe.

65. The direction of the learned trial judge is far from satisfactory. The second paragraph of the direction, standing on its own, is a misdirection. The central element of the definition of "reckless indifference to human life" in that paragraph was that the applicant had to be aware that his act "carried a risk to ... life". That is not the law. However, the previous paragraph, in clarifying the meaning of "recklessness", did refer to that term as involving "a willingness to run the risk of the probability of those consequences occurring". The Court of Criminal Appeal thought the two paragraphs read together "sufficiently conveyed to the jury that they were concerned with probabilities rather than possibilities and that the reference to 'risk' has not displaced that idea". Although the matter is not free from doubt, I think that the view of the Court of Criminal Appeal is the better one as to how the jury would have understood the trial judge's direction. Consequently, the direction was not a misdirection.

66. The important principles of law involved in the direction concerning "reckless indifference to human life" make the challenge to that direction also an appropriate ground for the grant of special leave to appeal. But the appeal on this ground must be dismissed.
The time at which the relevant state of mind was held

67. Early in his summing up, when the learned trial judge was directing the jury as to the elements of the offence of murder, he instructed them that there must be an act of the accused which caused death and "at the time of the doing of the act the act must have been accompanied by an attitude of mind on the part of the accused, which here would be either intent to kill or to do grievous bodily harm or was an act done with reckless indifference to human life". When his Honour went on to deal with the question of the accused's mental state, however, he erroneously directed the jury that the accused's mental state must exist at the time when the deceased fell from the building. His Honour said:

"The first question is whether, at the time of the act bringing about the death, that being the time when the deceased left the building and fell to the ground below, there was present in the accused an intent to kill; and if you are satisfied that there was such an intent to kill you would not need to consider the next two matters, namely whether there was an intent to do grievous bodily harm or whether the act of the accused, done at that time, was done with a reckless indifference to her life. If you are not so satisfied of an intent to kill then you must consider whether the accused had the intent, at the relevant time, to inflict grievous bodily harm."

Later, after directing the jury concerning the meaning of reckless indifference to human life, his Honour said that their "task would be to consider the accused's actual state of mind at the relevant time which, as I have said, is the time when the deceased fell from the building to the ground below". When dealing with the question of manslaughter, the trial judge also directed the jury that they must consider the unlawful acts, if they found any, at the time when the deceased went out the window.

68. All the foregoing directions were substantially repeated towards the end of the summing up.

69. After a request by the Crown, the learned judge repeated his direction concerning reckless indifference to human life. He then went on to say:

"Your task, therefore, is to consider the accused's actual state of mind at the relevant time, which I have said to you on a number of occasions is the time when the deceased fell to her death."

70. Against this background, there is little doubt that the jury must have had the impression that the applicant had to have the relevant state of mind at the time the deceased went out the window. If the jury did retire under the impression that this was the time at which they had to consider the applicant's state of mind, they were acting under a legal error. It is trite law that the relevant state of mind and the harm-causing act "must both concur to constitute the crime": Fowler v. Padget (1798) 7 TR 509, at p 514 (101 ER 1103, at p 1106). Section 18 of the Crimes Act gives effect to this common law principle. All that s.18 requires is that the act of an accused causing death be accompanied by one of the relevant states of mind. This means that the state of mind of an accused does not have to coincide with the time of the deceased's death. In those cases of murder where death follows instantaneously from the act of the accused, there will be no practical difference between the time of the accused's act and the time of death. But in other cases, a considerable time lapse may occur between the act of the accused and the death of the deceased. Section 18(1)(a) requires that the relevant state of mind accompany the relevant act or omission causing death. It is irrelevant that, at the time of death, an accused no longer had that state of mind or acquired it after the occurrence of his or her act or omission. The directions of the learned trial judge on this matter were erroneous.

71. However, the misdirections could not have affected the result. No matter which act of the applicant caused the death of the deceased, the interval between that act and her fall from the window was too short for the jury to have thought that, although he had an innocent state of mind at the time of the act, he had a guilty state of mind at the time of the fall.

72. The challenge to the trial judge's directions on this issue also warrants the grant of special leave to appeal, but the appeal on this ground should be dismissed.
Sentence

73. The applicant contended that the trial judge, in sentencing the applicant, could have held that the applicant had no intention to bring about death in the manner in which it occurred and that this constituted "mitigating circumstances" entitling the applicant to a lesser sentence than life imprisonment. It was contended that the trial judge erred in not considering this possibility. The contention is without substance. If the deceased died because she jumped or was forced out of the window as a result of the ferocity of the applicant's attack, the culpability of the applicant is the same even though he only intended to attack her in the bathroom and cause her grievous bodily harm - which is the version of the case most favourable to him. In New South Wales, death as the result of an act done with the intention to inflict grievous bodily harm is murder. It is immaterial that the death was caused in a way which the applicant did not precisely foresee. The matter is not one for the grant of special leave to appeal.
Conclusion

74. Special leave to appeal should be granted except in relation to sentence. But the appeal must be dismissed.

Orders

Application for special leave to appeal granted except in relation to sentence.

Appeal dismissed.