Royall v The Queen

[1990] HCATrans 270

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M -!.J AUSTRALIA I.!'

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IN THE HIGH COURT OF AUSTRALIA

Office of the Registry

Sydney No S86 of 1989

B e t w e e n -

KYM WILLIAM ROYALL

Applicant

and

THE QUEEN

Respondent

Application for special

leave to appeal

MASON CJ
BRENNAN J
DEANE J

DAWSON J

TOOHEY J
GAUDRON J.

Royall 46 7/11/90

McHUGH J

TRANSCRIPT OF PROCEEDINGS

AT CANBERRA ON WEDNESDAY, 7 NOVEMBER 1990, AT 10.16 PM

(Continued from 6/11/90)

Copyright in the High Court of Australia

MASON CJ:	Yes, Mr James.
MR JAMES:	Your Honours, much of what I had wished to say in

relation to grounds 1 and 2 has already been

covered by the dialogue yesterday. However, there

are some matters that have only been touched on

peripherally and, indeed, in answer to certain of

the questions put to me yesterday, particularly
those by Mr Justice Deane and Mr Justice McHugh,
there are some matters still remaining to which I

should go.

If I might take Your Honours in the outline to

page 2, the third paragraph commencing nowhere does

the Court of Criminal Appeal adeq~ately define the accused's act for causation, coi_ ;idence of intent

with act and to enable the evide e to define

intent, and the references there re to the passag~ from Sir Garfield Barwick's judgment in Ryan and to

the judgment of the majority in the Victorian Court

of Criminal Appeal in Demirian, and add to that

what appears in the outline at page 4 concerning

the discussion of causation and recklessness in the

light of causation, the New Zealand decision in

Ramsay, it can be seen, Your Honours, that the

propositions for which we contend, not only was

there an inadequate definition of the act for the

purposes of causation, coincidence of intent with

act, and to enable the evidence to define the

intent but, in addition, what was referred to was

the outcome of the series of acts or a body of

conduct without precise analysis.

McHUGH J:  Mr James, I was thinking about this case last

night. You have not put it this way, but it seemed

to me that your client could only be convicted of

murder if he had an intention to push her out the

window, and all the rest is manslaughter only.

Even if he had an intention to commit grievous

bodily harm on her in the bathroom and she fell out

the window, that could only constitute

manslaughter, could it not?

MR JAMES:  That is our submission, Your Honour. I have not

put it as clearly obviously as I should have, but

it really came down, as indeed I put to

Justice Gaudron yesterday, to the proposition she

advanced yesterday at best for the Crown.

The practicality of the case meant that the

way in which it was left to the jury there may have

been a speculative verdict based on all the bases

thrown in.

McHUGH J: But leaving aside any question of speculative

verdict, but as a matter of legal theory, even if

your client had had a struggle with her in the

Royall 47 7/11/90

bathroom on the window-sill, could a verdict of

murder pass against him unless he intended to push

her out the window so as to cause her grievous

bodily harm or death?

MR JAMES: 

No, Your Honour. There could be no, in our submission, other basis for murder; manslaughter,

maybe.

TOOHEY J: 

What if she was so terrified by what he had done

and what he appeared to be about to do that she
took that course of action?

MR JAMES: That would satisfy causation, Your Honour, but it

would not satisfy the other elements and that is
why I apprehend that Mr Justice McHugh has put it

in that fashion to me.

McHUGH J: Yes.

MR JAMES:  It would not make it murder and this is precisely

the matter to which I wish to go this morning. I made a concession to what Mr Justice Deane put to

me in which I used entirely inapposite words in

reference to causation, and that concession was

wrong and, indeed, Justice Gaudron pointed out to

me why it was wrong. It was a concession that was

wrong because the way in which I expressed it

seemed to try dealing separately with elements that

must combine. Sir Garfield Barwick in Ryan points

about the necessity for the subject and the

predicates, the "concomitants" as he calls them, in

section 18, to coincide, and that is what is

essential. Once one analyses it in that fashion

one reaches the conclusion Mr Justice McHugh has

put to me, or Justice Gaudron has put me, or

Justice Dawson has put to me.

DAWSON J:  And the vice in the charge to the jury was that

the judge did not identify with clarity, when he

was speaking of grievous bodily harm, what grievous

bodily harm he was referring to.

MR JAMES: Precisely.
DAWSON J:	If you read the charge, he may well have been

referring to - when he said there was an intention to cause grievous bodily harm it was murder - for,

instance, the waving of the ashtray, something

anterior to the fall from the window. Whereas, in

fact, the only grievous bodily harm which was

relevant to intention, in the context in which I am

speaking, was the grievous bodily harm caused by

the fall. Really, in this case, what had to be

proved was that the accused - putting constructive malice on one side - intended the deceased to fall

from the window because that would either cause

Royall 48 7/11/90

death or grievous bodily harm, but that is all.

But the judge seemed to be talking about an

intention to cause grievous bodily harm in some

other sense, anterior sense.

MR JAMES:  Yes, and indeed, there was nothing to suggest

that a total course of conduct started outside the

bathroom through to the going out of the window was

designed to achieve that end. That is the great

distinction between this case and Thabo Meli and

such like cases and, indeed, that distinction is

precisely enunciated in Demirian and in the New

Zealand decision of Ramsay, which can be found on

our list, and by Sir Garfield Barwick in the

passages in Ryan that we have set forth.

DEANE J:  Would it be the same, on your submission, if he

intended to kill her one way but not by her

departing through the window, because that is

implicit in what you are saying?

MR JAMES:  No, Your Honour, with respect, it is not implicit in what I am saying.

DEANE J: Is it not?

MR JAMES:	If it was a plot, as in Thabo Meli, to kill - - -
DEANE J:	No, I thought it would be implicit in your saying

that the intent to cause grievous bodily harm must

be to causes it in the precise way that the harm

and killing eventuated.

MR JAMES:  Your Honour, the problem is what did the jury

try?

DEANE J: Well, I am trying to work out the theory now when

you say it is not enough that he intended to cause

grievous bodily harm with the ashtray and that that

caused, in terms of causation, the departure

through the window, it being not enough because he

did not intend to cause the grievous bodily harm in

the way it happened.

MR JAMES:  No, Your Honour. What Your Honour put to me

yesterday, indeed, was dealing with a course of

conduct.

DEANE J:  I was trying to understand what was being put and

accepted now.

MR JAMES:  Yes. If there was a proved intention to kill at

all times, then the question, we accept, does not

arise.

DEANE J:  Even though he never intended her to go out the

window?

Royall 49 7/11/90

MR JAMES:  I do not think I can go that far, Your Honour, in the context of this case.

DEANE J: But, if he intends to cause grievous bodily harm

and the act that he intended or the threat of it

sent her out the window, there is a difference.

MR JAMES:  Then one has both a causation problem

DEANE J: Well, I asked you to assume causation.

MR JAMES:  Yes. One also has the problem of the coincidence

of that intention with the act and the necessity
for an adequate definition of the time at which the

relevant act is done so as to enable the

coincidence of intention with act to be found.

DEANE J: But we have got the intent existing in the

directions to the jury at the time she went out the

window. I thought what was being put was that the

intent was to cause grievous bodily harm in a

different way to that which actually caused the

death.

MR JAMES:  Yes, and if that is so it is not murder.

DAWSON J: Because the intent must be an intent to cause the

event which causes death?

MR JAMES: Yes.

TOOHEY J:  Then what you are putting to us now seems to be

at odds with Grimes and Lee?

MR JAMES:  No, but Grimes and Lee was not concerned with

intent to cause the death at all or intent to cause

the event. Grimes and Lee was a case in which they

were liable because since they had embarked upon

the statutory murder felony, the constructive

malice aspect to which Mr Justice Dawson had

referred, there did not have to be the coincidence

of the intents required by section 19 and the act

causing death.

Indeed, Ryan itself was a murder felony case

in New South Wales of exactly that kind. The

section 98 felony arose and the reason why special

leave was not granted in Ryan was that, despite the

discussion that is there, when one looked at it it
could be found that the murder felony aspect had
been satisfactorily put but it was necessary to

examine those aspects because Ryan again was a case

on which the Crown relied on the much broader

approaches, putting not just the murder felony but

also intent to kill, reckless indifference and so

forth.

Royall so 7/11/90

Sir Garfield Barwick, in Ryan, made it clear

that in his view the Crown unnecessarily relied on
the murder felony but when it came to examining the
other bases on which the Crown had put its case
there had- not been that analysis that section 18
requires in the summing up and the summing up was
inadequate.

If that was all that was involved in Ryan,

His Honour would have granted special leave but

because there was more and because, on one basis,

the conviction was unavoidable, the Grimes and Lee

basis, special leave was refused.

DAWSON J:  But if you apply to Grimes and Lee the analysis

you have to apply here the intent necessary for

there to be murder would have been an intent that

the deceased jumped from the train or reckless

indifference to the probability that he would, but

it is an intent accompanying the act which either

is to result in death or cause grievous bodily

harm.

MR JAMES:  Your Honours, following the report of the

commissioners, the Criminal Law Consolidation Act,

the predecessor to the Crimes Act, enacted the

predecessor to this section and in the Crimes Act

originally and at the time of Ryan's case and,

indeed up until 1974, the Act also contained a

provision that one was liable for murder if one did

an act obviously dangerous to human life and the

death had a particular temporal relationship with

that Act. That provision was removed from the Act

in 1974 and it was removed because, amongst other

things, the legislature - and perhaps I should hand

up to Your Honours, and notice has been given of

this - we rely, of course, on the New South Wales

Interpretation Act section 34 provisions - the

second reading speeches in both Houses.

DEANE J: Mr James, I am sorry, I am just trying to follow.

Can I put this to you: if somebody was on the

window and attacked by somebody else ferociously

and intending to cause grievous bodily harm and the

effect of that attack is that he falls out the

window, in other words, the attack with intent to

cause grievous bodily harm causes him to fall out

the window, is a submission that that is not murder unless one can also find intent to kill or reckless

indifference? You may well be right, it just does

not seem to me to be what the section says.

MR JAMES: There is that submission, Your Honour, but -

DAWSON J:  The answer must be yes.

Royall 51 7/11/90

MR JAMES: There is that submission, but there is an

additional submission - - -

DEANE J: Well, I know Justice Dawson says the answer is

yes, but what is it that causes that departure from

the words of the section in your submission?

MR JAMES: Because, Your Honour, the application of the

principles of causation and foreseeability as well

as the necessary intents. It is necessary to put

them together, and when one does put them together,

in this case, whether it be correct mathematically

or not, despite all the permutations and

combinations, when you start analysing them down

you come down to a practical statement that the

only basis on which murder was open as in this case being the forcing or pushing out the window, either intending she will die or intending she will be

seriously injured.

TOOHEY J: 

Is there anything in Grimes and Lee that suggests

the necessity of the accused adverting to the
possible consequences of the act?

MR JAMES: 

Not because of the way in which the charge was

put in respect of Grimes and Lee. Your Honour, with murder felony, with constructive malice, it was not necessary to have malice in the true sense

in the sense of the adversion to consequences or

the basic or specific intent.

All that was necessary was, indeed as this

Court observed in Mraz when coming to look at the question of how malice related to section 18, was

to have the intent to commit the basal crime. In

Mraz's case it was rape. All rapes were per se - per ..... and malicious. The basal crime supplied

the malice, and that is why this Court said that
the definition of "malice" in the Crimes Act in its

application to section 18 by Mr Justice Fullagar

was merely a question-begging definition.

It can be seen that malice is not an element of:murder felony, or was not considered to be, at

the time of Grimes and Lee, and indeed the section says nothing that is not malicious shall be within the meaning of the section. Section 5 says that

the extended definition of "malice" only applies

when malice is made an ingredient.

DAWSON J: But Mr James, you make it unnecessarily

complicated. Murder does not happen by accident.

Accidental death is not murder. And if these two

people were struggling on the window-sill and he

was assaulting her in a way which constitutes an

attempt to do grievous bodily harm, but neither of

them intending that she should fall and she by

Royall 52 7/11/90

accident fell to the ground, that is not murder.

It is manslaughter. It is an unlawful and

dangerous act.

MR JAMES: I accept that, and I should have put it in that

fashion.

DAWSON J: But there is not the necessary intent. Why is it

any more complicated than that?

MR JAMES:	I cannot do better than that, Your Honour.
TOOHEY J:	What do you then make of the words "with reckless

indifference to human life" in section 18?

MR JAMES:  That he adverts to the probability that she will

go out and die.

DAWSON J:	And continues indifferent to that risk?
MR JAMES:	Yes.
BRENNAN J:	Mr James, this case seems to me to involve one

basic problem for the jury and that is, did he
force her directly, or indirectly, out the window?

Now, if he forced her directly out the window there

is no problem about it. If he forced her

indirectly out the window that means that he did

something which led her to take herself out the

window and so we have got the problem of causation
with an intermediate act by the deceased. Now, if

the intermediate act was within the contemplation

of the accused, as I understand your submission

yesterday, the verdict is one of guilty.

MR JAMES:  If that contemplation is contemplation of a

probability of death, yes.

BRENNAN J: Yes. Well no, my question to you was, if her

defenestration was within the contemplation of the

accused, then - - -

MR JAMES:  We say, yes, if he contemplated her going out a

seventh storey window as a probability.

BRENNAN J: That is right. Yes, well that is a probability.

Let us put that aside for the moment, but in all

events contemplated her either probably or perhaps

otherwise, but let us leave the probability aside

for the moment. Now, the problem arises because

there was some direction to the jury about

intention at the moment of falling.

MR JAMES:  Not only that, but because of that as well, yes.

BRENNAN J: Well, because of that. Now, the judge told them

they had to be satisfied of the relevant state of

Royall 53 7/11/90

mind at the moment of her falling. So that the prospect of miscarriage arises, if I understand

your argument correctly, because the jury may have

found, or may have been satisfied only, that he

formed that intention, not at the moment when he

did the last act which led to her going, but only

at the moment that she is teetering on the window-

ledge.

MR JAMES:  No, Your Honour. His Honour left to the jury

that question of intent to cause grievous bodily

harm at the time of going out or departing from the building. He did leave the other intents as at the time of parting from the building but in addition

the way in which the summing up went was such as to

show a sort of connected narrative course of

conduct exercise which, in effect, could have

allowed them to attribute that intention to him at

that time if he had had it at any time before.

Now, with respect, the analysis is not quite

as simple as the analysis Your Honour put to me and

that is why we raise Ryan, Demirian and Ramsay.

BRENNAN J: But, I do not understand why it is not as simple

and perhaps you would explain it to me because if

the jury have found that he had the requisite state

of mind at the moment of her falling and they are

satisfied beyond reasonable doubt that it was his

actions which directly or indirectly caused her to

fall, it seems to me that the only prospect of

miscarriage arises because of the possibility that
the jury may not have found the requisite intention
at the moment when he did the last of the acts in

the chain of causation which led to her

defenestration.

MR JAMES:  Yes. The last of which acts may have been an

assault outside the bathroom entirely.

BRENNAN J: Well, be it so.

DAWSON J:  Why do you take it so far back? On the judge's

charge, the jury could have found that the accused

intended to cause the deceased grievous bodily harm

by swiping at her with the ashtray but had no

intention and no recklessness with regard to

falling, but on the judge's charge, that intent to

cause her grievous bodily harm by swiping at her

with the ashtray was sufficient intent to convict

him of murder. That is the point.

MR JAMES: That is so.

BRENNAN J: Well, how do you reconcile that with the

direction at the top of page 39?

Royall 7/11/90

MR JAMES:  Your Honour, that is not the only direction. It

is contained in a mass of directions as to how the

permutations and combinations are said to affect

the State. That direction, at the top of page 39,

deals with the reckless indifference at page 38,

and - - -

DAWSON J: It is pages 35 to 36.

MR JAMES:  - - - page 35 to 36, and when one reads the

summing up as a whole, and in particular at page

35, line 10 to line 25 - - -

DAWSON J: Well, at the top of page 35, the last four lines

in the first paragraph, His Honour seems to get it

right.

MR JAMES:	Yes.
DAWSON J:	But he is only doing it describing what sort of

injury; he then departs from that and does not

return to it.

MR JAMES:	And at 34, Your Honour, he does mention leaving the building, but the relationship to put it
together, when looks at this line of conduct is, in
our submission, anything but clear on a number of aspects in the summing up.

BRENNAN J: Well, is this the proposition, that the

direction was given by the trial judge, linking

intent to act, in one part of the summing up, but

then at another part of the summing up, linking

intent to her falling from the window?

MR JAMES: Yes, Your Honour.

BRENNAN J:  And it was that dichotomy between the two which

gives rise to the prospect of a miscarriage of

justice?

MR JAMES:

Not just the prospect, Your Honour, because the

Court of Criminal Appeal, in the task that it

undertook when seeking to review the summing up and

the trial itself, itself, because of the way in

which the directions were given, has, in our

submission, fallen into confusion which indicates -

it is a very good indication that it is a strong

prospect of a miscarriage of justice. Indeed, we

would express it in terms of the language, a

perceptible risk of injustice is the bottom line of

it;	it would be much more than that.
On one view of it, we say that the summing up

has not performed the tasks that Ryan, Demirian and

Ramsay says it should perform in a case of this

nature and that, to express it in this fashion, it

Royall 55 7/11/90

has left it to the jury to discriminate between

inference and speculation in order to find the

offence to the requisite standard, the most

difficult task, without the precision in the

relevant evidence, the pleading and the summing up

that they are entitled to by reason of the cases.

Indeed, what would happen in a proper summing up is the judge would avoid this by leaving only open to
the jury those propositions which clearly make out

the offence.

Adding in all the extras, even if the

directions were otherwise impeccable, must have

had, in our submission, the effect of confusing the

jury entirely as to how to relate act, intent and

the consequence which is what leads to what is

expressed by Mr Justice Dawson in terms of
accident.

BRENNAN J: Mr James, I just say, for myself, I think I see

all structural or intellectual difficulties that

you are arguing but I am faced with a factual

problem and that is that if, in the circumstances

of this case, there was such a gap between the last
of the acts done by the accused and, on the open

hypotheses, the departing from the window of the

deceased that the directions of the trial judge may

have left the jury in a state of confusion about the state of mind of the accused when he did the last of the acts, I should think there would be

much force in your argument. But having regard to

the statement made by the accused that his first

knowledge of her leaping was when he opened the

door and saw her depart - so it was instantaneous

or the last thing that he did when he saw that -

and having regard to the other evidence of what

happened in the bathroom, it seems to me to be

fanciful to suggest that only when he saw her on

the ledge did he form one of the requisite

intentions.

MR JAMES:. Not only necessarily on the ledge, Your Honour;

it may on one view of it have been as she left the

ledge.

BRENNAN J: Well, as she left the ledge.

MR JAMES:  That was too late for that intent to have any

significance.

BRENNAN J:  I appreciate that, but the proposition is that

only then that he formed the intention and that

seems to me to be fanciful.

MR JAMES:	But what intention, Your Honour.
BRENNAN J:	One of the intentions prescribed by section 18.

Royall 56 7/11/90

MR JAMES:	Your Honour, there is nothing in our submission unusual from the point of view of dealing with
these provisions, the New Zealand provisions which are analogous or co-provisions which are analogous,
of· seeking to define the act, the event, the
consequence, particularly in the light of accident.
I do not want to get into Vallance and the
controversy over that but at least here the submissions we make on the factual basis are that, on a factual analysis performed in terms of what
was open and what was not, then the crucial matter
was not either supported or properly explained at the trial.

Now, there is a miscarriage of justice

factually, in our submission, and also procedurally

and whether it be that it has to be dealt with at a

new trial or whether there should be a substituted

verdict of manslaughter as has occurred in such

cases as Pemble and so forth, is a matter that one

may have to look at but one cannot in the context

really say, in our submission, in this case that

there may have been a technical miscarriage of

justice but it was not a substantial miscarriage of
justice so as to apply the proviso because he

really has not had that which he was entitled to

have which is a trial on proper directions and

proper directions concentrating on the precise

aspect which might make it murder.

Now, with respect, one cannot get there by

simply taking his statement and narrowing the Crown

case by utilizing his statement. It is one
potential way of doing it but the Crown put its

case much; much more widely and for all we know in

this case the jury has found a verdict on an
entirely different basis and he has never had a

trial by jury on the right basis in the sense that the jury has considered that basis which was open.

Your Honours, the very controversy here, the confusion which, we submit, exists in the summing

up and the minds of the Court of Criminal Appeal

show us that there has been, in our submission, a

perceptible risk of injustice in this court

on - - -

DAWSON J: Indeed, the Court of Criminal Appeal made the

very mistake which the jury may have made.

MR JAMES:  Yes.

DAWSON J: But this was a situation in which there was a

fight in the bathroom - the facts are entirely

consistent with that - a fight during the course of
which neither intended, either actually or

constructively, that the deceased should fall from

Royall 57 7/11/90

the window. During the course of the fight she

accidentally fell from the window and what the

Court of Appeal said, "But because he intended to

cause her grievous bodily harm, presumably by

swiping her with the ash tray or some other way,

that was sufficient to justify a verdict of

murder", but in essence no intent accompanied her

falling from the window at all.

MR JAMES:  Your Honours, in New Zealand, in one of the cases

on our list, Reg v Grant, (1966) NZLR 968, about

fights resulting in death, they say this at

page 973, line 5:

Fighting is always the act of more than one

person - it is ex hypothesi made up of the

composite acts of two or more. Before any one

participant in a fight can be held criminally

responsible for the death of another

participant it must, of course, be shown that

the death was caused by some "unlawful act" of

the person charged -

and that is emphasized:

It will not be enough to say "the accused was
"fighting, and the fight caused the death";
for the fight is comprised partly of his acts,

and partly of the acts of others, and the

death must be caused by his "unlawful act" if

he is to be convicted of manslaughter. No

participant in a fight can be held criminally

responsible for acts of voluntary aggression

on the part of any other, though these acts be

part of the "fight".

The court goes on to consider the question of manslaughter in the light of self-defence and counter-assault, but it is the starting point for

the analysis that Your Honour Mr Justice Dawson has

given me in terms that one has to add to that for

murder the requisite intent and if one cannot add

it in properly, then it is not murder and the jury

may well have convicted on a wrongful basis.

TOOHEY J: But, what is meant by a "fight" in that

situation?

MR JAMES: That is an affray.

TOOHEY J: Well, I understand it in that sense, but if by

"fight" you mean an incident in which one person is

defending himself or herself against the actions of another, it is hardly a fight in the sense in which

it is contemplated in that judgment.

Royall 58 7/11/90

MR JAMES:  Your Honour, that is one of the great problems of

this case in that there is very, very limited

evidence, and that only circumstantial, as to what

took place, if anything, in the bathroom from which

one is asked to construct primary facts from which

inferences can be drawn sufficient to warrant a

conclusion of guilt. Now, the grave difficulty in

this case is to do so excluding - well it is not
really a matter even of excluding alternative

hypotheses but to be satisfied of an act of

causation and intent and the coincidence of act and

intent. Now, the evidence simply was not

sufficient and that really is recognized, we

submit, by the Crown itself because if the evidence

was sufficient, why then complicate the case with

reckless indifference, these four causal hypotheses

- that is the three for the Crown, one for the

defence - and why put it in that fashion?

BRENNAN J: Because those causal hypotheses had to be put

for the manslaughter charge.

MR JAMES: Certainly on manslaughter, but that, Your Honour,

is a very good reason again, we would submit, why

this case should be treated as almost all the other

cases of this sort have been treated, as a

manslaughter case, not murder.

McHUGH J:  One difficulty I have about the matter though is

the terms of section 18 because if you read it

literally there need not be any coincidence between

the harm which befell the accused and the kind of

harm which the accused intended.

MR JAMES:	Yes.
McHUGH J:	I mean, if you translate it to this case, it is:

Murder shall be taken to have been committed where -

a blow -

of the accused, or -

a swipe of the accused

causing the death charged, was done ..... with

intent to ..... inflict grievous bodily harm

upon -

the deceased, and so literally, if he made a swipe

at her in the bathroom and she backed away and fell

out the window, it would seem to fall within the

section unless you say that there has got to be an

intent to inflict grievous bodily harm of the kind

which she sustained.

Royall 59 7/11/90

MR JAMES:	Your Honour, that gets us to a certain extent to subsection (2) because we do not now talk in the
law about malice in a sort of general wickedness
sense. Ever since Cunningham and the English cases successive to that, malice involves envisaging harm of the sort the person suffered and that - - -

McHUGH J: Well, you have to argue that, I think, to get

away from the terms of subsection (1). I mean,

supposing he made a swipe at her and she stepped

back and the floor gave way and so she fell to her

death. Literally, that would be within 18(1).

MR JAMES:  Well, one way it would not, Your Honour, is his

swipe would not have been causative in the

requisite sense to the requisite extent because it

is not foreseeable.

McHUGH J: Well, maybe it is because she steps back as a

result of it.

MR JAMES:  She steps back but the floor giving way or, in

this case, going out that window voluntarily or

otherwise, we say is beyond what he foresees and

beyond what is the extent of causation to be

permitted for homicide.

McHUGH J: But you, I thought, accepted legal theory was

that foresight marks the limits of causation but

itself is not a test of causation.

MR JAMES: Yes, it has been the accepted theory - well, in

crime there has been almost no discussion of what

are the limits of causation or the tests of

causation. The very rudimentary propositions are

put up: is there the absence of a novus
interveniens; is there a substantial cause, not

merely historical, and that primarily comes in

murder? In manslaughter there has always been a

necessity to prove that the act was dangerous; that

is, there was an objective criterion of

-foreseeability attached, which delimited the area

of. manslaughter and which really applies to

causation as much as it does to anything else, and

in that sense, causation has been limited in

manslaughter and, in our submission, there is no

reason why it should not be so delimited in murder.

But that is causation properly so called.

BRENNAN J: There is every reason, is there not?

MR JAMES:  I am sorry, Your Honour.

BRENNAN J: There is every reason why it should be different

in murder.	In manslaughter you have got no
intention to cause the result.	You have got merely

the doing of an act, and to punish somebody for

Royall 60 7/11/90

causing a death which was unintended in any
relevant sense, would be Draconian unless one could
say, of the act, that it was objectively likely to
cause the death and was foreseeably likely to cause

the death.

MR JAMES:  Yes.

BRENNAN J: Well, that is quite different from a case where

an accused intends to cause that which in fact

happens.

MR JAMES: With actual intent, yes, Your Honour, but we are not here dealing solely with actual intent, we are dealing with an intent to cause grievous bodily

harm, which may have been by going out the window,

or may have been much anterior and different.

BRENNAN J:  I see.

MR JAMES: Further, we are dealing with foresight of

something, whether it be probability or

possibility, to some degree, given that we say

there should be a limiting factor, common to

manslaughter.

BRENNAN J: If the accused, in truth, had one of the states

of mind which is necessary for the conviction of

murder in New South Wales, the direction with

respect to the deceased, taking herself out the

window because of reasonable apprehension - - -

MR JAMES: Well-founded and - - -

BRENNAN J:  - - - was unduly favourable a direction to the

accused on the charge of murder.

MR JAMES:	Your Honour, we would submit not.
BRENNAN J:	I can understand - - -

MR JAMES:  If it was limited to causation then, certainly, there is much to be said for it but if it is meant

to:encompass the whole complex of act, intent,

causation or is meant to concentrate the viewpoint

on looking backwards, that is from what happened to

what occurred before, so that a course of conduct

of some sort can be said to lead to this
apprehension, then it fails to answer the tests, in
our submission, that have been enunciated for
applying section 18 as a mini code with its

reference to acts to the facts the jury must have

found.

It may well be that in some cases it is a

perfectly proper test. Grimes and Lee was one

because of the murder felony aspect of it. But in

Royall 61 7/11/90

this case, in our submission, it is simply either

wrong or not enough.

MASON CJt Mr James, could I interrupt you? In response to

Justice McHugh a short time ago you relied on section 18(2) as throwing light on subsection (1).

Now, can you put the proposition in succinct form

because I did not understand what you were saying

in response to Justice McHugh?

MR JAMES: Right. Subsection (2) refers to malice. It does

not incorporate the definition under section 5 of

the Crimes Act which refers to both common law

malice and extends that definition to offences

whereof malice is made by statute an ingredient. Subsection (2) does not, in fact, make malice an

ingredient of murder. At the time that the section

was first enacted it was intended to disavow all

constructive malice except the murder felony and

act obviously dangerous to human life areas.

MASON CJ:  Where do you get that from?

MR JAMES: Stephen and Oliver which Your Honours will find

is the Criminal Law Manual. I think it is on our friend's list of authorities and on ours as well.

Your Honours will find it in appendix A. Stephen

and Oliver, Your Honours, took the view that no act

or omission causing death will amount to murder unless it is both within the ninth and also the

seventh sections of the then Criminal Law Amendment

Act of 1883.

MASON CJ:  What page are we looking at in Stephen?

MR JAMES: It is called the appendix - perhaps I should

simply take Your Honours, firstly, to - I can give

Your Honours the various references. There is a

number of references in the volume:

Introduction VII, paragraph 1; the section 7 of

that Act at page 7 sets out the then understood

~eaning of common law malice in the notes to that

to cover additional elements when malice is made an	section and the expansion of that common law malice	ingredient by statute; section 9, on page 9
defines murder and the notes again set out the observations concerning malice and they continue
through to page 10; manslaughter, section 13, at
page 11; section 18(2) was itself a substantive
section in this Act and that can be found at
section 14 on page 11; and the short notes refer
back to section 9.

Then one goes to the form of indictment for

murder, at page 123, section 318; then the

insertion of the defences of provocation and the

alternative verdict of manslaughter at section 370,

Royall 62 7/11/90

the predecessor to what was considered in Parker's

case; and at what is simply headed "Appendix"

which is at, I apprehend, page 199, note A, there

is the description in the appendix of the various

circumstances and illustrations of how the authors

expected the provision to work.

TOOHEY J: But, Mr James, how does section 18 work in

practice? Is subsection (2) regarded as, as it were, by way of a defence to a charge, or is it

treated as an ingredient - somehow inserting an

ingredient into section 18(1), the onus as to which

lies on the Crown?

MR JAMES:  Ever since Mraz v Reg it has effectively been

disregarded in New South Wales, simply disregarded.

TOOHEY J:	But if an accused was able to show that the act or omission which was said to constitute the
offence was not malicious, and putting it that way
seems to suggest that the onus is on the accused,
but I do not necessarily mean that, but let us say that emerges, then that is the end of the matter,
is it not?
MR JAMES:	That is what we say, Your Honour, yes, and, indeed, we would say that no verdict could be
reached unless there was a jury satisfaction that the act was not malicious in the common law sense.

TOOHEY J:  Perhaps I put that a bit starkly. It may not

be the end of the matter. It simply means that

that act or omission which was not malicious cannot

constitute an offence for the purposes of

section 18(1).

MR JAMES:	Yes.
TOOHEY J:	Is that the way in which the subsection has been

treated by the courts?

MR JAMES:  Since Mraz and Mr Justice Fullagar's statement

in Mraz - and that passage appears in Watson and

Purnell, taken from Mr Justice Fullagar at page 50

paragraph 82 dealing with section 5 -

TOOHEY J:  I am sorry, what are you taking us to at the

moment?

BRENNAN J:	What is the reference to Mraz?
MR JAMES:	Mraz v Reg, (1955) 93 CLR 493, page 510, and the discussion to be found in Howard's fifth edition
appears at pages 44 to 45 of that recently
published text; but really it is said that in that the case the felony murder circumstance, that was -
that was a crime of rape in which the girl was

Royall 63 7/11/90

killed. It was said that the malice necessary was supplied by the fact of the rape. Section 5 added

nothing to section 2, that really the intents of

th~ states of mind in section 18(1) were what one

was talking about and effectively, thus,
section 18(2) was deprived of any real

significance.

TOOHEY J:	Is that on the basis that if an act is done, say with an intent to kill or inflict grievous bodily
harm then it is not within contemplation that the
act was not malicious?
MR JAMES:	Certainly. Practically it means that if it is

done with intent to kill then it is not malicious.

It is said that - - -

TOOHEY J:	I am sorry? What did you say?
MR JAMES:	Sorry;  if it is done with intent to kill it is

malicious. It is said that if it is done with

intent to cause grievous bodily harm it is not

malicious, but that is one of the questions with

which we are taking issue here, that to make it

malice it has to involve more than simply such an

intent at some stage. It has to go further and

look towards the consequences.

DEANE J:  You said, if it is done with grievous bodily harm

it is not malicious; Justice Fullagar says the

opposite.

MR JAMES:  Yes. We are taking issue, Your Honour, with the

suggestion that the mere fact of intent to cause

grievous bodily harm does not necessarily get you

there; it may.

DEANE J:  I think you threw in a "not" where you did intend

it.

MR JAMES: Right, and indeed, there has been some

considerable development in the law of common law	malice going through to the point now where it is	not merely the sort of old concept of general
wickedness; you have to advert to the sort of harm
that is, in fact, suffered for malice to nowadays
apply, and that is the cases from Cunningham onwards.

Could I give Your Honours the last of the

references to Stephen and Oliver. At page 203, the

various other code provisions which had been

examined before the predecessor to section 18 was

enacted, are referred to, through to page 204, but

Your Honours, that is not where New South Wales left it, and I have handed up to Your Honours the

second reading speeches in respect to the 1974

Royall 7/11/90

amendment to section 18. That removed from the Act

"act obviously dangerous to human life". In doing

so, the legislature considered how those words had

been interpreted by the courts in the history of

section 18.

TOOHEY J:  Where did those words appear precisely in

subsection (1), Mr James?

MR JAMES:  If I might take Your Honour simply to Stephen and

Oliver because the current editions of Watson and Purnell do not have where the words appeared, and

that appears in section 9:

Whosoever commits the crime of Murder shall be

liable to suffer death - And Murder and shall

be taken to be 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 an act obviously dangerous to

life, or a crime punishable by death or penal

servitude for life.

Now, Your Honours, if I can just simply read it in

this fashion for a moment:

Murder shall be taken to be -

committed -

where the act of the accused, or thing by him

omitted to be done, causing the death charged,

was done ..... with intent to kill or -

with intent to -

inflict grievous bodily harm upon some person.

It is the act causing death as taken as one,

as it were, concept and that is what
Chief Justice Barwick spoke about as being the

subject to which the predicates must be attached

and that, in our submission, gets us to the point

of saying it was never properly put in this case.

The Hansard and second reading speech -

Your Honours will find the reference in the

Legislative Assembly at page 1355, the right-hand column, last paragraph, where the committee that

had reported to the Parliament was of the view

that:

Royall 65 7/11/90

act or omission causing the death charged was

done or omitted during the commission of an

act obviously dangerous to life ..... is

unanimously of the opinion that, according to

which of these lines is adopted -

there were errors. Three lines of interpretation

have been applied:

the concept either unnecessarily increases the

Crown's difficulties of proof, or is mere

surplusage, or operates with unreasonable

harshness against the accused.	The bill
accordingly omits the concept.

In the legislative council, those three lines are explained in a little more detail at page 1830,

left-hand column, the first paragraph commencing in

that column with the words:

The definition of murder in the Act

includes, quite unnecessarily, the situation

where the act or omission causing the death

charged was done or omitted during the

commission of an act obviously dangerous to

life. Three different lines of interpretation

have been applied by the courts to this

concept, and the committee is unanimously of

the opinion that, whatever be the

interpretation adopted, the concept ought to

be omitted. if the words objected to mean

that there must be two acts - one act causing

the death charged and done during the
commission of another act obviously dangerous
to life - then the Crown's difficulty of proof

are increased to an absurd degree. If they

mean that the act must be, to the accused,

obviously dangerous to life, they achieve
nothing; because the section already includes
the concept of an act done with reckless

indifference to human life. If they mean that

the act must be, to a hypothetical reasonable

man, obviously dangerous to life, they are

unconscionably harsh; because for such a

serious crime the accused ought to be tried

for his own recklessness, or intent, and not

by some impersonal test.	The bill accordingly
omits the concept.

Now, that concept when one looks at Stephen

and Oliver is part of an overall calculation of

what they say is the meaning of the section and, in

our submission, what has been done by the

legislature in 1974 is to re-emphasize the

necessity for looking at the accused's state of

mind in relation to the consequences of his

behaviour.

Royall 66 7/11/90

BRENNAN J: There is no felony murder in New South Wales.

MR JAMES: Yes, there is, Your Honour. In section 18 does

now provide for felony murder in the most limited

circumstances, that is:

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.

But none the less it is still required for felony murder that there be an act or omission of the

accused causing the death charged and that is - - -

BRENNAN J:  What is the penalty for assault with intent to

cause grievous bodily harm?

MR JAMES: It is not life or 25 years.

TOOHEY J: Well, is there any offence that would fall within

that category other than - - -

MR JAMES:  I am sorry, I might be wrong but I am pretty sure

it is not.

TOONEY J:	- - - murder or some of the drug penalties?
MR JAMES:	I am sorry, Your Honour.
TOOHEY J:	It would have to be a drug penalty, would it not,

or murder?

MR JAMES:  No, for instance section 98, Robbery with arms

etc and wounding" or robbery in company which was

the Grimes and Lee basal offence, the Ryan basal
offence - section 33 deals with wounding but

assault, if I recall correctly - yes, section 54: Whosoever by any unlawful or negligent act, or

omission, causes grievous bodily harm -

is liable to two years imprisonment; section 33,

which my friends reminds me is:

Whosoever:

maliciously ..... inflicts grievous bodily harm

upon any person ..... with intent in any such

case to do grievous bodily harm to any

person ..... shall be liable to penal servitude

for 25 years.

And you have got to get both the maliciously and the intent to do the grievous bodily harm to that person.

Royall	67	7/11/90
BRENNAN J: Well - - -?

MR JAMES: Well, in that case we should have had, at the

very least, what Ryan had and if the Crown put a

case on murder felony that is one thing but they

did not.

BRENNAN J:  Your proposition, as I understood it, was that a

case which falls within section 33, being an act

which causes the death, may have been the

foundation of the jury's verdict of conviction and

wrongly so.

MR JAMES: Because murder felony was never put to the jury.

BRENNAN J:  I appreciate that.

MR JAMES: It is a very good argument. In fact,

Your Honour - - -

BRENNAN J: But if it had been put, does it eliminate the

prospect of any miscarriage?

MR JAMES:  Not at all, because section 18 itself requires

that precise temporal examination that Your Honour was referring to me in relation to the question of intent and act, that is, the jury would have to

decide whether it was done in an attempt - whether
the act causing death was done in an attempt to

commit, or during or immediately after, but not

before. Now, Your Honour - - -

BRENNAN J:  Your proposition is this, is it not, that there

was an assault by the applicant on the accused?

The case against him is that he forced her out the

window. That is the relevant act. He did it with

intention. That is the end of the case.

Your argument, as I understand it, is: not so,

because he may have formed the intention, as the

jury found, as she was falling from the window, but

.the direction given to the jury, they might have	up until that stage he might have intended simply to have assaulted her. Perhaps, having regard to	found that he intended to assault her at the time
that he was assaulting her with the intention of
doing grievous bodily harm. And that would not be
sufficient to carry the malice, as it were, forward
to the time of her falling out the window.

But if one looks at the last part of

section 18(l)(a) does one find that that situation,

had it been a live situation at the trial, would
none the less have courted a direction which would

have resulted in a conviction?

Royall 68 7/11/90

MR JAMES:	No, Your Honour, because if he had assaulted her with intent to cause grievous bodily harm and that
assault had concluded, it would never fit within
the last part of the section to enable the felony to· have its relevance to the act causing death by
being done -

during or immediately after the commission, by

the accused -

of the crime.	The jury might well have said, "This
is not immediate."	He was never tried on that.

BRENNAN J:  What was the act?

MR JAMES: That is the problem. That is why Ryan insisted

upon the necessity, even with a felony murder case,

of defining the act.

BRENNAN J: Well, the judge gave the jury the direction of

what the act had to be. It had to be an act which

resulted in one of the three ways and her leaving

the window.

MR JAMES: Yes, Your Honour, but that, you see, does not

define the act. It does not define the act at all.

It does not assist the jury as to what is available

on the evidence as his act. That is precisely why

the three cases we have referred to contain those

passages criticizing any such summing up as leaves

the matter in that fashion.

In Grimes and Lee the act was very, very

clear. It was a clean, clear specific act and was

so found in the statement of the facts by the

learned trial judge to the Full Court. But that
cannot be the end of it, and in any event the

question of a trial for murder felony has been

raised by Your Honour for the first time here.

Indeed, there is a very good argument to say

that if the reasoning Your Honour has put to me is	right and the section is intended to embrace that,
then the intent to cause grievous bodily harm was intended to have something more associated with it,
and it is meant to contribute more than the murder
felony aspect. Otherwise, in effect, it would not
be necessary.
Your Honours, I should point out in relation to this question of malice that one argument might
well be that the section has not been properly
interpreted for the relationship of the concepts
each to the other. Another argument might well be
that the modern view of malice means the section
should be reinterpreted.

Royall 69 7/11/90

Still another argument would be that malice in the true sense is an element of the section, but

narrowed and defined by what was done in 1883 and

in_ 1974.

On any of them, in our submission, this is a

case for special leave, and on any of them, in our

submission, we should succeed. That does not mean

that there should not be a new trial or a

substituted verdict for manslaughter.

BRENNAN J:  What would the order for a new trial be; quashing the verdict completely?

MR JAMES: With murder it may have to be. That gets us into

another controversy, Your Honour. There is a line

of discussion, at least, if not authority, that

homicide is one crime at common law, divided more

recently into two concepts or species: murder and

manslaughter. New South Wales, however, defines

murder in statutory form. In our submission, what

should occur is a new trial limited to manslaughter

in this case, and the reason we put that is, one,
in our submission, it was really only on an

examination of the facts manslaughter that was

open; two, the Crown chose to put its case so

widely and to have the advantage of all possible

ways in which it could be put and if there is .an

error, then it should not have the opportunity to,

in effect, have its case settled by the Court of

Criminal Appeal and the High Court of Australia, so

as to put it again, and that, in the light of the

analysis of the factual material.

DAWSON J:  Why should one not just - if the error i

s found as you describe it - substitute a verdict of
manslaughter?

MR JAMES: That might well be done, Your Honour.

DAWSON J:  The jury must have found an unlawful and

dangerous act; must have found causation.

MR JAMES:- Yes. The only matter we can put in relation to

that is our argument concerning causation.

DAWSON J: They must have found causation.

MR JAMES: Yes, and they were, we do have to accept,

directed on manslaughter. That is the ambit. Any

of those courses, of course, would be appropriate

to this Court and they have been embarked upon by

this Court in such cases as Pemble and examined in

that case. Now, Your Honours - - -

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TOOHEY J: It may be, Mr James, that subsection (2) has got

more work to do in relation to manslaughter than it

has in relation to murder.

MR JAMES: Subsections (2) and (3), Your Honours, were

examined by Mr Justice Windeyer in Mamote-Kulang
and it can be seen that subsections (2) and (3) do

have varied tasks to perform.

TOOHEY J:	Now, speaking of (2) and (3), do you mean that?
MR JAMES:	Yes, Your Honour.  They have varied tasks to

perform in the light of the background of common

law.

TOOHEY J: But section 18 stops short with subsection (2),

does it?

MR JAMES:  I am sorry, section 2(a) and 2(b).

TOOHEY J: Yes.

MR JAMES:  Now, Your Honour, there is a controversy as to

how manslaughter relates to section 18.

Manslaughter is a crime punishable by virtue of

section 24 of the Act which appears merely to set

forth the punishment for manslaughter and a proviso

to allow an acquittal in certain circumstances.

TOOHEY J: But the definition of manslaughter, if you can

call it a definition, is to be found in

section 18(l)(b), is not it:

Every other punishable homicide

MR JAMES: Well, to a certain limited extent, Your Honour,

because the Act also creates various other

punishable homicides including culpable driving and

so forth.

TOOHEY J: But, could I just - and I do not want to take you

away from the thread of your argument, but does the

expression "punishable homicide" - and you will

understand this question coming from someone from a

Code State - does it refer to homicide as defined

in the Crimes Act or homicide at common law, or

does it include both? I suppose it is not a

punishable homicide unless it is dealt with in the

Crimes Act?

MR JAMES:  I can certainly understand, Your Honour, why that

question is put and particularly in the light of the Code cases. There has never been, except in

Mr Justice Windeyer's analyses, in particular, in

Mamote-Kalang, and in Stephen and Oliver and in one

unreported - I think it is still unreported - my

friend might correct me if I am wrong - decision of

Royall 71 7/11/90

the New South Wales Court of Criminal Appeal in

Downs - it may be reported in the Australian

Criminal Reports - a discussion of the

interrelationship of sections 24 and 18 because in

Parker v Reg an examination was made of the

predecessor to the present section 23.

Your Honour will recall that in Stephen and

Oliver I mentioned that the provocation section - the indictment section at 318 and the provocation

section had been inserted as particular sections in

the Act. That provocation section provided for a

statutory basis for an alternative verdict of

manslaughter to murder. At common law,

manslaughter was only available on an indictment

for murder which charged murder in the common law

terms of "did feloniously and maliciously slay" and if the jury did not accept the "maliciously", there was left within the indictment at common law the

allegation that there was a "felonious slaying" and

that was enough to make it manslaughter.

TOOHEY J: But as an exercise of statutory construction,

does the expression "punishable homicide" refer to

anything other than a homicide that is punishable

in terms of the Crimes Act?

MR JAMES:  I cannot concede that it could, Your Honour,

refer to anything other than that which is

punishable either under 18 or 24.

TOOHEY J: Well, one more question then I will let you go on

this, but does that mean that the homicide itself,

or the definition of a homicide must be found in
the Crimes Act or is it that one goes to a section
and finds that a certain type of homicide is

punishable but one has to go to the common law, as

it were, to throw light upon the nature of that

homicide?

MR JAMES:  Your Honour, it has been argued once, that I know

of, before a single trial judge that an act could	not be manslaughter, in a trial for manslaughter,
because it was within section 18(1). That argument
was rejected. That was Mr Justice Roden, and I
think the person putting forth the argument is now
Mr Justice Einfeld. But there is no clear authority enabling me to answer your question.
What I would say is, the current view in New South
Wales seems to be that manslaughter is a common law
proposition, that the common law concepts are
adopted, and on a trial for manslaughter there has
not been an attempt, other than the one I have
referred to, to seek to exclude manslaughter on the
basis that it might fit within section 18(1).

Royall 72 7/11/90

TOOHEY J:  The questioning has some relevance as to what we

might do if we were minded to accede to your

substantive argument.

MR JAMES:  Your Honour, we have to accept, and we do accept,

that it would be open to this Court in the light of

the findings of fact which must have been made and
the facts that we accept must have been proved to

substitute a verdict of manslaughter without there

being any miscarriage of justice.

DEANE J:  Now, what would be those findings of fact which

must have been made on which we would substitute a

verdict of manslaughter?

MR JAMES:  But when I have said we accept that that is open,

Your Honour, we are also putting the new trial.

Might I, before I forget, Your Honours, simply on

the transcript give Your Honours the reference to

Downs, (1985) 3 NSWLR 312, and I should, in

passing, remark that that was another case where

there was not, in the summing up, sufficient

analysis of what the act and the intent were and

the defence was not properly put.	It went back for
retrial.	He had been acquitted of murder but was

convicted of manslaughter.

Your Honours, if one were to take the same

view as was taken in Pemble for the purpose of

substituting a verdict, then one would have to
substitute that verdict on the basis of an unlawful

and objectively dangerous act which, in fact,

caused death although not accompanied by the

requisite intentional states to make it murder.	It
is a shorthand description.

DEANE J: That would exclude what Justice Brennan put to you

as fanciful and that is that the attack outside had

concluded and that the door was opened and nothing

further was done.

MR JAMES:  But, Your Honour, one does not have to have for

manslaughter that coincidence of act and intent and

complex. Manslaughter is still defined so widely

and so generally at common law as to permit of a

verdict. It may be that perhaps the day will come

when a case should be brought here seeking to
define manslaughter in the same way that we submit

is appropriate for murder but we, in this case,

would not seek to argue that though we do point out

that the Victorian Full Court, in Demirian, and

this Court, in Ryan, did examine it and examine the

bases available for manslaughter in the same sort

of concept. In fact, there was examination of the

point in Pemble as to whether one could

appropriately substitute a verdict of a difference

of opinion in this Court.

Royall 73 7/11/90

TOOHEY J: 

But in the absence of an admission from the

applicant which would, as it were, ground a verdict
of manslaughter, it might be unwise for this Court

if. it were in favour of your general argument to
substitute a verdict of manslaughter.

MR JAMES: That is why, indeed, I said that it might be that

if there were to be a new trial it might even have

to be limited to manslaughter alone because of the

way this trial was conducted, on the Crown's part,

and the way in which the material was put forward.

TOOHEY J:  I was not suggesting that that was the inevitable

consequence but rather the matter should go back

generally.

MR JAMES:  No, I appreciate that. We put that they were all

open but that is as far as we go.

BRENNAN J:  Mr James, no objection was taken to the

formulation of the manslaughter tests of causation.

MR JAMES:	Yes, Your Honour.
BRENNAN J:	And what was directed to the jury, and speaking

for myself it seems to me to have been an incorrect

direction, was that before they could convict of

murder they had to be satisfied of that

manslaughter causation test. So that the jury must

be taken to have been satisfied with the

manslaughter causations test.

MR JAMES: That is why I accepted what Mr Justice Dawson put

to me, what Your Honour has put to me and what I

put to Mr Justice Toohey concerning the

manslaughter verdict being open, that is the

substituted verdict.

Now, Your Honours, I think there is little

more that I wish to say. Whatever else I would

wish to say is contained in the outline on grounds

·1 and 2. However, Your Honours, there remains from

ground 2 the question of the direction on

foresight. Really all we wish to say about that

appears in our written submissions and in the

cases, that is, White, Annakin and Solomon in New

South Wales support the proposition that there must

be for reckless indifference an adversion to

probability and that it has got to be the

probability of death rather than the probability of

inflicting grievous bodily harm.

We note, in passing, that when it comes to a

consideration of section 18 that those cases seem

clearly enough to establish that recklessness to

the causing of grievous bodily harm is not within

the meaning of the words ."intent to cause grievous

Royall 74 7/11/90

bodily harm so that when section 18 speaks of

intents it means actual desired intents and thus
reckless indifference to human life, there is a

different thing, we accept, to actual desire

intent. It encompasses what was once held to be

part of intent, or malice more correctly, because

the crime of murder did not have an intent element

it had an element of malice aforethought, but which

was separated out and is intended to mean as the

Act specifically says:

reckless indifference to human life.

The adversion to probability, in our submission,

has been accepted in New South Wales, accepted at

common law and when one looks at the taking out of

act obviously dangerous to human life and sees that

one of the bases is that if the accused thought it

was obviously dangerous to human life that equates

with reckless indifference, it can be seen that a

dramatic amendment was made to the section, at that

time, which suggests that reckless indifference

requires more than mere adversion to possibility.

The direction given in this case includes risk

of a probability which almost precisely paraphrases

what Sir Garfield Barwick said in Pemble in the

adversion to possibility when he was talking about

the risk of a possibility, the risk of a

likelihood, and that is precisely the passage this

Court has considered in Crabbe and the only matter

in Crabbe that would take New South Wales out of

the mainstream of authority, in our submission, is

something clearly in the New South Wales section

which would permit the Court to take the view that

previous New South Wales authority should be

overruled and that so much is there as to require

in New South Wales an adversion of a much lesser

degree than elsewhere.

DEANE J: But New South Wales has always been different from

the Code States and the common law.

MR JAMES: In a lot of ways, yes, Your Honour.

DEANE J:  Has it ever been accepted or suggested in any case

that section 18 of the New South Wales Act should

not be construed in accordance with its words?

MR JAMES:	No, not at all.
DEANE J:	Or that if you had an intention to cause grievous

bodily harm, the only question was one of

causation?

MR JAMES:  I am sorry, Your Honour?

Royall 75 7/11/90

DEANE J:	What I was asking is, has it ever been suggested
in any case that in so far as section 18 of the

Code was concerned if there was an act done with

intent to cause grievous bodily harm which resulted

in· a killing, the only question was one of

causation?

MR JAMES:	No, such has never been suggested, Your Honour.
DEANE J: Yes.	I understand your argument about causation

but viewed in the context of my understanding of the construction of section 18, for so long as I

have been around anyway, this case, if you get an

attack in the bathroom with intent to cause

grievous bodily harm would only be seen as

involving causation. Well now, I am not saying

that is right, I am just asking you, is that wrong

on your understanding of the cases?

MR JAMES:  I thought Your Honour put to me, has it been said

in any case in New South Wales that if one gets an

act and an intent, the only question is causation,

and I was answering - - -

DEANE J: Is there any thing against that proposition that

you are aware of?

MR JAMES: Yes, Ryan, which was section 18.

McHUGH J:	What is it?
DEANE J:	Ryan .

MR JAMES : Ryan.

McHUGH J:	Oh, Ryan?
MR JAMES:	Ryan, which was section 18.
McHUGH J:	I do not know that Ryan is against it. Supposing

two people are having a fight on a footpath and as

_a result of the fight one person is forced off the

road and steps into a car, that is murder under

section 18, is it not?

MR JAMES:	No, Your Honour.
McHUGH J:	Why not, because that seems to me to be quite

critical here?

MR JAMES: Because if you are simply having a fight, as it

is pointed out, what act are we defining that is

doing the causing? It cannot be the having a

fight.

DEANE J: Well then, reframe that; suppose one person is

walking along the footpath and another person

Royall 76 7/11/90

attacks him intending to cause grievous bodily
harm, and the attack pushes him under a car, my

understanding of section 18 was always that that

could only give rise to an issue of causation.

MR JAMES: If that is so, Your Honour, then we are

submitting that what has gone on so far is wrong.

That when one comes to construe the full section,

that is not 18(1), but the full section, then that

is inappropriate, and indeed the illustration: if

what happens is unforeseeable and unforeseen - - -

DEANE J: That may go to causation.

MR JAMES: That may, and the second, unforeseen, that is the

event, the consequence, it is unintended and

unwilled, to use the language of "accident",

causation should not be so narrowly - sorry, the

section:

No punishment of forfeiture shall be incurred

by any person who kills another by misfortune

only. Section (2)(b), may well in combination with

nothing being malicious being within this section,
have meant that that unforeseen consequence should

not attract to him liability for murder.

DEANE J: But that is contrary to Mraz and it is contrary to

the definition of"maliciously" in the Act.

MR JAMES:  Mraz, firstly, Your Honour, is another murder

felony case; not the sort of circumstance

Your Honour is describing at all, which is not

murder felony, and secondly - - -

DEANE J:  It is contrary to what was said in the majority

judgment and the judgment of Mr Justice Fullagar in

Mraz.

MR JAMES: Yes, but that is because Mraz was a murder felony

case and you did not have to have the intent

accompanying the act. All you had to have was the

act punishable as set out, coupled with causation.

But in addition, section 5, the extended definition

of malice, does not by its very terms apply to

section 18 because the old common law malice is not

made an ingredient of the offence; it simply

provided that nothing that is not also malicious

shall be within the section.

The authors, Stephen and Oliver, referred to

an intent that the extended definition should

apply, but when one reads the words it plainly does

not, and indeed - - -

Royall 77 7/11/90

DEANE J: But, section 5 is not confined, is it, to a case

where malice is an ingredient?

MR JAMES·:  Yes .

McHUGH J: It defines it.

DEANE J: It says:

shall be taken to have been done maliciously,

within the meaning of this Act.

MR JAMES:  No, but could I take Your Honour a little further

back; that is:

Every act done of malice ..... or done without

malice but with indifference to human life or

suffering, or with intent to injure ..... 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.

So, that as Mr Justice Fullagar points out, what

the section seems to be saying is, "Everything done

of malice 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 and everything not done

with malice but hereinafter listed shall have been

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", so

that what one gets from that is the extended

definition applies where, within the meaning of

this Act, the crime is defined as including an

ingredient of malice and where the indictment or charge has as its ingredient a matter of malice.

McHUGH J: Well, that is not the way I read section 5.

MR JAMES:· .Well, Your Honours will see that the grappling

with section 5 and its relationship with

section 18(2) has resulted in a view that section 5

is a mere question begging definition that in no way assists to ascertain the state of mind under

section 18 in Mraz generally as well as applying it to murder felony and the only way to give it sense,

in our submission, in the light of the current

views of what is malice and in the light of the

fact that malice was not made an ingredient of

murder is to take the view that section 18 requires

that there be an advertence to the kind of harm

suffered.

Royall 78 7/11/90

TOOHEY J: But, do you suggest that the Crown would, in an

indictment, include the word "maliciously" in a

charge under section 18?

MR JAMES:  Your Honour, that gets us into another problem. This was argued in - - -

TOOHEY J: Well, does it in fact happen in practice?

MR JAMES:  No, Your Honour, not - well, sometimes yes,

sometimes no. This was argued in Downs

specifically. In New South Wales, there were

prescribed forms of indictment. The common law

form of indictment did require feloniously and

maliciously. The prescribed forms required it.

The prescribed forms had been unprescribed some

years ago. The forms of indictment have been left

up in the air. The form of indictment used in this

case and often used in murder cases, certainly pre-

Downs, was simply "did murder". No particulars and

no basis for the offence is specifically charged.

TOOHEY J:  But it seems that if the Crown does that it may

be taking a burden upon itself that is not required

by section 18, if subsection (2) really goes to

exculpatory matters.

MR JAMES:  It may, Your Honour, but it may also be that the

Crown has the advantage of the most wide pleading

and the most wide allegations unparticularized and

otherwise unspecified, so that it can have the

benefit of all approaches.

TOOHEY J: 

Yes, but if the Crown does not need to prove

malice then it is hardly assisting its case by
including some reference to malice in the
indictment.

MR JAMES: 

Certainly, Your Honour.

TOOHEY J: 

But in any event, there is no allegation of

malice in the indictment in this case, is there?

MR JAMES:	:No, there is not.
TOOHEY J:	It is just murder.
MR JAMES:	Well, in one sense we could say that, taking the

simply pleading point, no allegation of malice,

leave aside the question of who bears the onus and

whether it should be pleaded - perhaps I should

leave that. Your Honour, the pleading position in

New South Wales - it was described by Lord Hailsham

in one of the decisions, and it may have been

Sperotto as jejune, which is about the all-time

understatement when it comes to criminal matters.

This Court has had to deal with far more specific

Royall 79 7/11/90

pleadings in John L. Motors and in Giorgianni and

in Leslie Morris King and has made some remarks

about it.

There are a number of decisions in New South

Wales now in which the form of pleading has been

criticized, but it has been left in that way and it

was left in that way in this case; and that is one

of the things that supported the proposition that
the Crown could put such a broad ranging case.

Indeed, if it was a civil case it might well have been appropriate, had it been pleaded as

extensively, to strike out large portions of the

pleading.

TOOHEY J:  Well, I do not know that the analogy is

particularly useful but it is enough, is it not, as

a matter of indictment to allege murder? It is

then, I suppose, for the defence to seek

particulars from the Crown which the Crown, I take

it, would be obliged to give.

MR JAMES:  Since Downs it seems to be enough, Your Honour,

because section 23 having the statutory entitlement

to an alternative verdict of manslaughter having

gone, section 18, it is said, supports that

entitlement so one does not have to go to the

common law rules which required one to plead all

the elements of the lesser offence in language
adopting the lesser offence so that if the greater
was not found the lesser could be found on that

indictment, but it still has some technical

applicability in New South Wales because under the

Criminal Appeal Act certain powers of the Court of

Criminal Appeal are limited to the circumstance

where the charges or the allegations in the

indictment can be separated out from the wording

and, indeed, in particular section 7 talks about a

person being:

not properly convicted on some count or part

of an indictment but properly convicted on

another count, or, where the court can

substitute a verdict of an alternative

offence -

as was done in a case that came to this Court,

Clayton Joseph Brown, that in subsection (2), or

where there is a special verdict in subsection (3)

or where - and the form of the indictment, and what

is charged in it, can very much limit the powers of

the Court of Criminal Appeal.

TOOHEY J:  Yes, but as a matter of sufficiency it may be

enough to indict in terms that X murdered Y, but it may be another question again as to whether defence

counsel will let the matter go to trial without

Royall 80 7/11/90

requiring the Crown to identify by reference to

section 18 the basis upon which murder was said to

have been committed.

MR JAMES:  Yes, Your Honour. As to the second, one wishes

it had been done and, indeed, this Court has

pointed out in Giorgianni, that the appropriate way

to charge, for instance, for accessories to murder

is to charge in the form hitherto adopted. Indeed,

the Crimes Act still contains, I think, as did the

Criminal Law Consolidation Act, a specific

reference to how it should be indicted and how it

should be tried in those circumstances. But,

Your Honours, before Mr Justice Deane put that

question to me I was going to that question of the

direction on foresight.

RENNAN J: Before you go back to your argument could I delay

you a little longer. If one looks at

section 18(l)(a) one finds what seems to be the

definition of the elements of the offence of

murder.

MR JAMES:	I am sorry, Your Honour.
BRENNAN J:	One finds what there seem to be defined as the

definition of murder there is to be relevantly an:

act of the accused -

which causes -

the death charged.

So we have got an act and causation and a result, namely death, and that act has to be done with one

of the requisite states of mind or in one of the

requisite circumstances. Now, in the case of an

intent to kill that is an intention that the result

of the act should be death. In the case of

reckless indifference to human life there is a

conscious animadversion to death and a deliberate

running of the risk.

MR JAMES: Yes.

BRENNAN J:  We can leave aside the felony murder part of the

end of that but come back to the intention to inflict grievous bodily harm. As a matter of construction, does not 18(l)(a) read as though the

crime of murder is committed if the act which

causes the death is done with that intention even
though the intention does not encompass the causing
of grievous bodily harm by the event which causes

death and if that Draconian reading of 18(l)(a) be

right, is there any method of reading it down

except by the notion of accident, and I raise that

Royall 81 7/11/90

question because under the Queensland Code and the

judgment of this Court in Stuart, 134 CLR 438,

accident was regarded as the alleviating factor.

MR JAMES:  Yes. There are two ways if that be correct:

firstly, accident; and secondly, malice; that is to
say 2(a) and (b) read down 18(l)(a) but also so
does 18(l)(b) when taken in conjunction with 2(a)

and (b). In addition, Your Honour has not read

certain of the words of section 18(1). It is a

very peculiar way to start a definition:

Murder shall be taken to have been committed -

and the question has always arisen as to whether

this is a total code, or whether it is meant to
incorporate concepts or some of the concepts from

the common law, in order to enable it to be

understood and those words do not make it entirely

clear.

And it says -

where the act of the accused ..... done ..... with

intent to inflict grievous bodily harm upon

some person -

caused the death charged - this is the James

paraphrase, of course, rather than the precise

words.

Now, to interpret it in that Draconic fashion

would mean that if, taking the car examples given
by Mr Justice Deane, you assaulted a person with

intent to cause grievous bodily harm and another stepped back appalled by the experience into the

face of the oncoming car, it would be arguable that

that was murder. That is the clearest example of

what could be called a constructive malice or

transferred constructive malice-type proposition.

McHUGH J:- _But why do you talk about constructive malice?

It is within the terms of the section. Supposing I

punch somebody in the face intending to break his

nose, and as a result of my blow he knocks somebody

who falls under a passing car and is killed. I am

guilty of murder of the person who falls under the

car.

MR JAMES:  And what I am putting, Your Honour, is

Your Honour is not, because there are limitations

on those words in section 18(1), in 18(1) itself,

and also because of 18(l)(b) and 18(2)(a) and (b);

because when one looks it can be seen that

constructive malice is -

sought to be set aside by this section -

Royall 82 7/11/90

this is Stephen and Oliver -

entirely except in the specific cases

enunciated by the section murder felony, and

act obviously dangerous to human life.

Now, in the circumstance Your Honour describes,

what might well have been chosen by the Crown as a

practical proposition of charging you if what you

did was obviously dangerous to human life and not

charging you if you were not, that is not an

answer, as I appreciate, to a question of statutory

interpretation, but I cannot conceive of any case

there has been in New South Wales. There may have

been, but I cannot conceive of one, which has

sought to define the section so widely as has been

suggested.	And there have been limitations,
thus - - -

BRENNAN J:  What is the limitations on what seems to be the

plain meaning?

MR JAMES:  It has to be the contemplation of the event.

BRENNAN J: Well, that is accident.

MR JAMES: That is accident, and it has to be a limitation

on the intent. That is malice.

TOOHEY J:	Why does not the limitation arise from causation?
MR JAMES:	It, in addition, may arise form causation where you - except where - - -

TOOHEY J: Well, you say "in addition" but why would you put

it that way?

MR JAMES: Because I have already argued that.

TOOHEY J:  If an act is done with intent to kill or inflict

grievous bodily harm and death results, or death

occurs to use a neutral term, there has been no

murder unless the act done with intent to kill or

intlict grievous bodily harm causes the death.

MR JAMES: Yes. And, Your Honour, I have argued that the

causation in homicide would not support it except

with intent to kill. In the Thabo Meli, or lengthy

transaction scheme, where there is always

persisting intent, I accept that the causation may

not limit it, but I have continued to assert that

with intent to cause grievous bodily harm causation

may be an applicable limitation.

TOOHEY J:  No, but you are imposing, I think, Mr James, a

limitation in the sense that you assume that the

cause of death and the intent to kill are the same

Royall 83 7/11/90

but you could have an intent to kill or inflict

grievous bodily harm which causes death where the

cause of death was something other than that

. _intended by the accused -

MR JAMES:	Yes, and that would not be murder.
TOOHEY J:	- - - so long as there was a sufficient causal

connection between the two .

McHUGH J: But it would be murder because the section

contemplates that you may be guilty of murder

although your act has consequences which you did

not intend.

MR JAMES:  I am sorry, Your Honour. Causation

contemplates that - - -?

McHUGH J: The act. Section 18, itself, contemplates that

you may be guilty of a murder in a situation where

the death is a consequence which you did not

intend.

MR JAMES:	Yes, it does, depending upon how you define reckless indifference and depending upon how you
see intent to cause grievous bodily harm as
relating to the result but it clearly does in the
case of murder felony and it clearly did on one of the interpretations for act obviously dangerous to
human life and that interpretation was thought by
the legislature to be too Draconic in 1974 and that
is why they too it out; or one of the reasons why they took it out. All of that suggests, however,
that that Draconic - as Mr Justice Brennan has
referred to it - analysis, does not accord with the
sense of the section, at least since 1974.

Your Honours, if I might return to that

argument on the question of the degree of

foresight: when one looks at section 18, it is clearly to be noted that reckless indifference,

~hich was formerly a species of intent but not

actual intent, is separated out but, as I put

previously, it requires that animadversion and as

to the degree, the necessary degree of reckless

indifference, prior to its separation out, was, as

we now know, from the English cases on intent,

adversion to a high degree of probability.

Why then, when it is separated out, should one

give to it the status of merely referring to a

lesser degree, mere possibility? And adversion to

a mere possibility, in our submission, is required

for some species of manslaughter. This would be,

in effect, to bring much of that under the rubric

of murder.

Royall 84 7/11/90

Your Honours, in our submission, most of the

arguments on this have already been made before the High Court in relation to the concept of common law murder and in Crabbe. And, indeed, there is

nothing, really, that amounts to a statutory

provision affecting the position, to use the words

of Chief Justice Gibbs in Crabbe, which would

warrant New South Wales differing from the law of

Australia otherwise.

TOOHEY J: Except that the Act might say so.

MR JAMES: It does not, Your Honour. It says "reckless

indifference to human life" and that is the only
clue it gives us unless one has to turn to this
question of whether it is within malice or without
malice. It is only, for instance, if one could,

contrary to what was said by Mr Justice Fullagar in

Mraz, utilize something out of the definition in

section 5 to create a statutory warrant for

defining "reckless indifference" in any different

fashion, in our submission.

TOOHEY J:  But ..... it in section 18 or, in particular, in

the words "reckless indifference to human life"

that requires adversion to the probable

consequences of the act?

MR JAMES:  Because in terms of "reckless indifference to

human life" per se, if one is simply talking about

that one is, we submit, talking about a probability

and Crabbe seems to support that proposition, as do

the other cases. Secondly, the history of taking

it out, in our submission, supports that it is a

species of intent less than actual desire and

purpose but a contemplation of the likelihood

which, we say, is the probability that the

consequence will occur and it was -

TOOHEY J: Well, I understand that argument. That is, as it

were, an argument derived from the meaning to be

attached to the words "reckless indifference".

MR JAMES: Yes, and its history.

TOOHEY J: Well, I do not even know that you need to go to

its history. One can understand an argument one

cannot be recklessly indifferent to something that

is not within contemplation; that is not to say

that that necessarily is the right view of the

section but you seem not disposed to take comfort

in the words of section 18 itself.

MR JAMES: Well, I certainly take comfort in those words,

Your Honour. I do not know if I have failed to put

the argument precisely but certainly our submission

is that what is required there is adversion to a

Royall 85 7/11/90

probability. The very nature of the things

concentrates, except for murder felony, on

Jntentional concepts.

Your Honours, really as to that, there is also

the fact that this direction adverts to a mere
risk. At one point it refers to risk of a
probability but the direction as fully put to the

jury really fails, in our submission, to define the

degree of risk sufficient to bring it above a mere

possibility. There is nothing, in our submission,

in the authorities or in the interpretation of the
section or in section 5 that would create the

position whereby an intentional state for murder in

New South Wales should fall below at least

adversion to a probability. In the United Kingdom,

the intentional state for murder appears to be

adversion to a high probability in order to make it

part of intent. That does not support, in our

submission, the proposition that other things must

mean advertance to possibilities.

Your Honours, unless there is any other

matter, that really is what we would seek to put on

all, except ground 4, and that is the question of

sentence. As to that, we only wish to say what

appears in our outline of submissions. When one comes to see the course the trial judge took and

the course the Court of Criminal Appeal took, they

really did not deal with the submission that when

it comes to looking at section 19 of the New South

Wales Crimes Act which provides for a sentence of

penal servitude for life unless it appears to the

judge that the person's culpability for the crime

is significantly diminished by mitigating

circumstances, whether disclosed by the evidence in
the trial or otherwise, the court, both at first

instance and on appeal, failed to apply the

reasoning of this Court in Ibbs v Reg and, as it

were, seems to have taken the view that if any

causal connection is proved or any intentional

state, whatever the intentional states be under

section 18 is proved, that is a starting point for

culpability that you cannot get a differing

inculpability in mitigating circumstances by reason

that, for instance, the man had not intended to

kill or was not intending to kill in the way in

which the death happened or was only intending to

inflict grievous bodily harm and did not, in any
way, advert to the consequence, if that is within

the section, all of which, in our submission, would

plainly enough, working on the same sort of

principles as applied in Ibbs be mitigating

circumstances which should have been considered to

see whether the person's culpability for the crime

was significantly diminished.

Royall 86 7/11/90

But that argument, Your Honours, we appreciate the problems in Jones and Pantorno that the court

simply has not dealt with our argument in what they

put in their reasons.

Now, we would not ask this Court to sentence,

in these proceedings and, in our submission, if the

Court were to take the view that it should come to

that question the matter could well be remitted to

the Court of Criminal Appeal or to the trial judge.

Unless there is anything further that I can offer

to assist the Court they are the submissions we

make in this application.

MASON CJ: Thank you, Mr James. Yes, Mr Blanch.

MR BLANCH:  May it please the Court, I hand up an outline of

our submissions.

McHUGH J:  Your submissions seem to have been prepared in

contemplation of a different argument, Mr Blanch?

MR BLANCH:  Yes, Your Honour, certainly on the basis of

safety and not the basis that has been contemplated

today, Your Honour.

MASON CJ:	You had better deal with the argument that has been presented by the Bench.
MR BLANCH:	Yes, Your Honour.
BRENNAN J:	However, extensive that may be.
MR BLANCH:	The first matter that I would wish to address is that, Your· Honour, because of the development of
that argument this morning.  We would take our
stand on the words of section 18.  The argument
that has developed here this morning is an argument
that I think in the words of Justice Dawson that it is possible to interpret into section 18 into the
intent to kill an intent to kill or that the person
dies in the manner intended by the accused and not
in some other manner. In our submission, it is not pepnissible to read that further qualification into
section 18.

The reason that we say that is simply this:

the words of the section, as my friend has said,

evolved in 1883, it was intended to be an

encapsulation of the law of murder as it applied in

New South Wales, and at that time it was

contemplated that there be five special categories
of murder. It was clearly - and I think this point

has already arisen - in the contemplation of the

draftsman of the legislation that a person would be

convicted of murder although he did not intend that

death occurred, even though he - certainly that he

Royall 87 7/11/90

did not intend the death occurred if he only

foresaw grievous bodily harm - that he would also

be liable in the situation of reckless

indifference, whatever the meaning of that phrase

is, and then also in two further constructive

categories of acts obviously dangerous which was

interpreted in New South Wales in the early 1970s

after 90 years of non-usage, as an objective test.

And that, of course, occurred in the period

immediately after Parker's case and there was some

concern then that a head of murder in the New South

Wales definition was being interpreted to have an

objective test, as opposed to the subjective test

which was clearly said to have applied to the other

tests, and for that reason it was removed.

If that removal is placed in its historical

context it may be that some unusual effects have
occurred and perhaps it may be appropriate to come

to that later when dealing with the interpretation

of "reckless indifference". I am simply making

the point at this stage that it was clearly in the

contemplation of the section that there would be

constructive categories of murder and the

categories are set out in terms that were being

read out this morning and it is:

Murder shall be taken to habe been committed

where the act of the accused -

which causes the death was done, such that it was

done fitting into one of those special categories.

Looking back at the summing up of the trial

judge in this case, that is exactly the way he

summed the case up to the jury. So that he was

looking at the words of the section and telling the

jury in precisely those terms. It is very

difficult to criticize what the trial judge did in

this case unless you can read into the section a

further requirement that the death occur in the

way - in an attempt to kill case - in which the

accused intended the death occur. For example, if

-the accused were to intend to kill someone by

shooting them in the head, and in the course of

raising the gun it accidentally went off and shot

the victim through the heart, it may be said that
that was not the way the accused intended that

death occur.

In our submission, the appropriate way to

examine the problem is very much in the way

Justice Toohey was raising it, that the question is

a question of causation whether the act of the

accused was effectively the cause of the death of

the deceased.

Royall 88 7/11/90

McHUGH J: Well, you use the words "effectively caused". Is

that a considered statement as opposed to "but for
causation", "substantial contribution", "scope of
the risk causation" and you have got all

these -

MR BLANCH:  Yes, I appreciate the range of possibilities,

Your Honour, and there are a million examples that

can be given; two men having a fight and one steps

backward and steps on to a snake which bites him
and he dies; there are a series of examples where

that question would need to be determined as to

causation in that sense but certainly within the

plain words of section 18 in a case such as this

where it is left to the jury in the terms of the
words of the section and the jury returns a verdict

it would be very difficult to criticize either the

judge or the jury's verdict in that context.

I am simply saying that in order to do so it

is necessary to read something else into the

section and, in saying that, I suppose I am simply

acknowledging the fact that although I suggest that

the requirement of causation is the effective means

of preventing some Draconian situation arising, I

am also acknowledging that I have no solution as to

exactly how far that causation should be; whether

it is the proximate cause; whether it is a

contributing cause or whether it is the substantial

cause and I know of no - - -

BRENNAN J: Are you contending for a literal construction

of 18(l)(a) - - -

MR BLANCH:  Yes, Your Honour.

BRENNAN J - - - which says that if an accused does an act

intending by that act to cause grievous bodily harm

to another and as a result of doing that act the

other dies, then it is murder?

MR BLANCH:	Yes, if that act is the cause of - - -
BRENNAN J:	And the question is, therefore, whether the act

caused the death?

MR BLANCH:	Yes.
BRENNAN J:	And that is all.
MR BLANCH:	Yes.
McHUGH J:	And there is no necessity for an intention to

cause the type of harm which the person suffers.

Royall	89	7/11/90
MR BLANCH:	Yes, no intention to cause the death in that particular manner.	And the alleviation of any

injustice that might be thought to arise from that

is in the interpretation of the causation and there

is· no injustice in that situation if the accused

goes out with an intention to kill and commits an

act which then causes the death and that is - if I

can just opt, without thinking too much about it -

the effective cause of death, then the accused is

guilty of murder.

BRENNAN J:  Does that amount to malice at common law so as

to make section 18(2) irrelevant?

MR BLANCH:	I would say yes, Your Honour, although Grimes and Lee and Tavai, the two cases of death by
reasonable apprehension of fear, are not common law
cases.  I am sorry, it would depend also on the
interpretation at common law because if - - -
BRENNAN J:	My question was directed to the existence of

malice rather than causation.

MR BLANCH:  Yes.

TOOHEY J: Because it is the act or omission which is not

malicious in terms of subsection (2), not the death

that is caused by the act.

MR BLANCH:  Yes, but the act is malicious if done with

wicked intent and what has been said about malice

in section 18 in Mraz but it adds little - it does,
in fact, add something. It adds little because if

you satisfy the various states of intent that exist

then your act is, in fact, malicious. If you are

doing the act with an intent to kill, which I would

postulate as being an appropriate state of mind or

intent to do grievous bodily harm or any of the

other states of mind, then I would maintain that

that is a malicious act and therefore comes within

the section and is not excluded by section 18(2).

The meaning of subsection 18(2) as to malice

_in New South Wales was really given in the case of

Reg v Stones, (1956) SR. Perhaps it is worth going

to that, but very quickly what was said about it is

this: if you look at malice in the New South Wales

section, what it means is that there is a common

connecting thread between intent and recklessness

and that common thread is not a desire of the

consequences but a foresight of the consequences;
so that the existence of the requirement of malice

in section 18(2) provides the bonding, as it were,

between intention and recklessness. The reference

to Stones is in (1956) 56 SR 25, and the relevant

bit is at page 33, the fourth line up from the

bottom:

Royall 90 7/11/90

Generally speaking, malice aforethought means

only intention, but the combined effect of

section 5 and of section 18 of the

Crimes Act 1900, in New South Wales, is to set up exceptional cases of constructive murder where it includes states of mind other than an

intention to kill. It seems probable that the

attempt to define "maliciously" and "murder"

by statute was to overcome difficulties in

proof of the accused's mental state and to add

to intent such note which must be taken to be
the natural and probable consequences of the

unlawful act done, or, as it has been phrased

"it is a device for relieving the prosecution

from the duty of proving the wicked intent

appropriate to the crime". The important

thing is not the desire of consequences, i.e.

motive or intent, but merely foresight of

consequence which is the common factor to

intention and recklessness.

DAWSON J:  I do not follow that. In this particular case,

you would say that the verdict of murder could be

sustained if the accused had swiped at the deceased

with the ashtray, intending to cause her grievous

bodily harm, but certainly not intending that she should fall from the window, positively intending the contrary, but you would say that that would

amount to murder. But, it would not even be a

situation in which there was recklessness; there is

no connection at all. In other words, he may not

have adverted to that possibility at all, that she

should fall from the window. Well, how does

that - - -

MR BLANCH: It amounts to murder, Your Honour, in a

situation where he embarks on a course of action

where his state of mind is an intent to cause

grievous bodily harm, and - - -

DAWSON J: It is certainly not connected with foreseeability

of the consequences. In the position I put to you

he did not foresee that at all.

MR BLANCH: Well, Your Honour is postulating a fact. One

other proposition that I would put in answer to

that is this, the Court of Criminal Appeal does not

necessarily agree with that in respect of one set

of circumstances, but factually it is difficult to see where a person embarks upon a course of action foreseeing, or intending to inflict grievous bodily

harm, where it cannot also be said that there is

some evidence there upon which a jury might

conclude that he was recklessly indifferent to

human life.

Royall 91 7/11/90

TOOHEY J: But why is not the question there one of

causation? If there is evidence of an act done
with intent to inflict grievous bodily harm, let us

_say in this case by the use of the ashtray, and the

evidence is that somehow or other the victim met

her death by her fall, is the question not then

whether that fall was caused by the act?

MR BLANCH:  Yes, Your Honour, and that was the formulation

that I was putting before, and the formulation
that, in our submission, is the formulation that

alleviates what might otherwise be - - -

DAWSON J: It does not because - take the situation I put to

you. He swipes at the deceased with the ashtray.

In an effort to avoid the blow she topples over to her death.

MR BLANCH: Well, Your Honour, he is guilty of murder

because he has embarked upon a course of action, he

has intended to cause grievous bodily harm, and his

actions have caused the death of the deceased.	In
Grimes and Lee there is no evidence that anyone
foresaw that Ah Choy was going to jump off the
train.

TOOHEY J: But it may be it did not cause the death.

MR BLANCH:  Yes, that is possible, Your Honour, and

TOOHEY J: There are two ways of looking at it, but the

point is, I think, that that is what in the end the

question focuses onto, whether that act was the

cause of death. You can answer that without going

into an inquiry into what the accused may or may

not have foreseen.

MR BLANCH:  Yes, Your Honour, and that is why, in my

submission, there is a degree of unreality about

this discussion in terms of the summing up given by

the trial judge, because if one goes back and looks

·reading out the words of the section and was	at what the trial judge told the jury he was
telling them that they had to be satisfied; it was
the accused's act; that his act caused the death
of the deceased; he gave a far too favourable
direction in terms of intent in the sense that he
was talking about intent not only at the time of the act of the accused but right up until the time
that she fell out of the window and, in practical
terms as far as the judge was concerned, he was
following precisely the words of the section.

McHUGH J:  One problem I have though is with what the judge

said at page 31 about the third possibility. He

does not define that in terms of the act of the

Royall 92 7/11/90

accused, you have to read it in. In the third

allegation, at line 17.

MR BLANCH:	Yes.
McHUGH J:	What is the act of the accused which is

identified for the purpose of the jury?

MR BLANCH:  There is no specific act that is identified there but it is implicit in she had a:

reasonable apprehension -

of, and then -

violence as would endanger her life -

so, obviously, the judge is talking about and

telling the jury that she is in apprehension of

violence from the accused and she escaped.	So it
is - - -

McHUGH J: But then that raises the question then as to what

act of the accused gave rise to that reasonable

apprehension.

MR BLANCH:  Yes. I understand that problem, Your Honour,

which is a separate matter. There are two things

to be said about that: one of them, of course, is

that it is, in our submission, somewhat fanciful to

suggest that the jury's verdict could possibly have

been based upon her fleeing through the window

before he came into the bathroom because of the ash

tray and the gouge marks, et cetera, in the

bathroom.

There would be more of a problem for us if

that were a real possibility although, if it were a

real possibility, what I would say about it is

this, that there had been a sustained attack upon

her in this flat; she had gone into the bathroom

and his act of breaking through the door was simply

a continuation of a course of violence up until

that time.

McHUGH J:  Can I just interrupt you just to say I have some

problem about that. It seems to me that a better

view would be that there was some break in what

happened.

MR BLANCH:  Yes.

McHUGH J:  She had retreated into the bathroom. She was

obviously cleaning up. It is difficult to think

that she would have got undressed and that if it

was all part of the one incident. Something must

Royall 93 7/11/90

have happened that started them off again; maybe

something he said or she said?

MR BLANClt:, Yes. Well, there certainly was a break - well,

r-do not know that there certainly was a break but,

of course, in the Crown's case, the Crown does not

know.

McHUGH J:	No.
MR BLANCH:	The only indication of the possibility of a

break is in what he said and his estimation of it

was five, 10 or 15 minutes so there was a period

and, as Your Honour says, there is some objective

evidence about some cleaning-up attempt in the

bathroom or evidence that might indicate that that

was cleaning up rather than related to an assault

in the bathroom, which would give some semblance of

credit to the fact that there was a break.

The point that I simply make about it is that

even on his version, it is a very short break and
the appropriate way to interpret the set of

circumstances as they existed in the flat at the

time was that there was virtually a continuous

assault upon her interrupted, perhaps, for a short

time but in terms of looking at her apprehension

and how she would perceive it if she had been

subjected to a violent assault before and, on that

version, a violent assault which would have

presumably fractured her nose and caused other

things outside the bathroom; that is, before she even got in there, then to hear him bursting him

through the bathroom door could quite properly lead

her to the conclusion that she better escape as

best she could.

TOOHEY J:  What is the significance of that last part,

Mr Blanch? I take it that the reference to

"reasonable apprehension" in the judge's direction

is really to maintain the notion of causation, is

~t?

MR BLANCH: Yes, it is, yes.

TOOHEY J:	It does not seem to have any other significance.
MR BLANCH:	No, Your Honour, that would be my interpretation

of the whole thing as - and I know what Your Honour

said about the causation factor before and, with

respect, I would adopt. The way that scenario

would then appear would be that there was an

attack, a serious attack, interrupted for a short

period of time; he comes to the door intending to

cause her grievous bodily harm and then she flees

through the window in order to escape that and that

his state of mind is a state of mind of intent to

Royall 94 7/11/90

-

cause grievous bodily harm, even though he did not

intend for her to go through the window and did

not -

GAUDRON J:	By opening the door he intended to cause grievous bodily harm?
MR BLANCH:	Yes.

GAUDRON J: That is the way you must put it, Mr Blanch, is

it not?

MR BLANCH:  Yes, and I do put it that way, Your Honour,

because - - -

GAUDRON J:	By opening the door he intended to cause grievous bodily harm?
MR BLANCH:	Yes.

GAUDRON J: That is that he intended it should come down on

top of her?

MR BLANCH:	No, Your Honour.
GAUDRON J:	Or on some part of her body?
MR BLANCH:	No, Your Honour, with respect, I do not have to

put it in that way at all. I would put it this

way: that there had been an attack and he pursued

the attack, and he pursued it not just by opening the bathroom door, but by breaking in through the

bathroom door; there was a degree of force used in

terms of getting into the bathroom, and if there

had been such an attack upon her with intent to

cause grievous bodily harm, and one would have

thought that the jury must have, in this case, come

to the conclusion and were satisfied that he did

intend grievous bodily harm at some stage, that

going through the door in the bathroom, in a

forceful way, was done with intent to pursue the

assault upon her -

GAUDRON J: _To do a further act which would cause grievous

bodily harm?

MR BLANCH:	Yes, but it is artificial, in my submission, to attempt to break that up and to isolate each of the
things that he did. When one is looking at that,
one has to look at the course of conduct because if
it is true to say that you are guilty of murder by
causing someone to behave to their detriment by
escaping through a window or some such way as at
you have got to look at the course of conduct.

GAUDRON J: Is it true to say that? That is what this case

is about. Is it true to say that?

Royall 95 7/11/90

MR BLANCH:  Yes, well, I appreciate that that question has

been raised.

McHUGH J: But it is an artificial section, in a sense.

MR BLANCH:	Yes, it is.
McHUGH J:	And so you have got to analyse it in these

artificial terms but if the act which created the

fear in her, sufficient for her to go out the

window, was the breaking down of the door, does not the section require that act to be done with intent

to cause her grievous bodily harm?

MR BLANCH: 

Yes, Your Honour, but intent to cause her

grievously harm in a general sense, not by hitting
her with the door.

McHUGH J: 

No.

DEANE J: 

Must not your answer to what Justice McHugh put to

you be, if there is an answer, that that third

alternative can only be read in the context of the

two paragraphs on the preceding page?

MR BLANCH:	I am sorry, Your Honour has lost me.
DEANE J:	You see, the third alternative in page 31 on one

approach is only sensible in terms of the two

paragraphs on page 30 which, of course, can only be

understood with knowledge of the forensic contest

and of the facts but it seems to me if there is an

answer to what Mr Justice McHugh put to you it must

lie in those paragraphs.

MR BLANCH:  Your Honour is suggesting that the third

alternative be read in conjunction with the first

and - - -

DEANE J: Well, it must be read in the context of those

paragraphs.	How far that takes you, I do not know,
because we do not really know what the forensic

contest was precisely.

MR BLANCH:  Yes, but my answer would ultimately be the same,

Your Honour, that if he came to the door and broke

the door down, that has to be looked at in the

context of the events that occurred in the flat up

until then, to look at her apprehension.

DEANE J:  What I was suggesting to you really was, it has

been squarely put to the jury that there must be an

act causing death. Now, it is not for a trial

judge to isolate the mental processes of a jury by saying, "You can find it this way, this way and no other way". It is for a trial judge to indicate

the parameters and to assist on factual matters.

Royall 96 7/11/90

MR BLANCH:  Yes, and in that context, Your Honour, I can

only repeat what I said 10 minutes ago, that in

this case it is very difficult to criticize this

judge for having strayed in that respect because he

has been meticulous to give directions to the jury

in accordance with section 18.

TOOHEY J: But in the end the jury has to be told that in

order to convict the accused they must find an act

done with intent to kill or inflict grievous bodily

harm for that part of section 18 and that that act

caused the death of the victim.

MR BLANCH:  Yes, and indeed, that is so and since we are at

page 31, if Your Honour turns back to page 29 at

the bottom of the page where the trial judge
begins, he says:

The Crimes Act in this State defines the offence of murder in a number of

ways ..... unlawful act of the accused causing

the death alleged where the unlawful act was

done with an intention to kill or an intention

to do grievous bodily harm -

and at about line 28 he says:

I will repeat that -

and he does, so I will not, but he said exactly the

same thing again. At page 30 at line 6:

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 -

et cetera. In fact, there are a couple of other

references to that which I might - - -

BRENNAN J:  The critical question was put at page 30

line 21, was it not?

Did the acts of the accused bring about that

consequence?

That is, the fall of the deceased.

MR BLANCH:	Yes, Your Honour.
BRENNAN J:	And so the jury were directed to the acts

which, if they found that they did cause death,

were those acts, whatever they might be.

MR BLANCH:  Yes, that is so, Your Honour. I was

concentrating more on the intent aspect.

Royall	97	7/11/90
TOOHEY J:	Yes.	That really was what I was about to say,

that you	cannot, of course, divorce those acts from
the acts	done with intent to cause grievous bodily
harm.

MR BLANCH:  No. I have given Your Honour three repeats of

that basic statement that the trial judge gave to

the jury right at the very beginning of his summing

up about this, on those pages. The other page I

was going to refer to was page 38 line 25:

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.

That is simply repeating all of that again. I have

also noted it at pages 131 and 132.	I think that
might have been when he came back to	it - page 131
at line 7 or 8:

It must be an act of the accused which caused

death. Thirdly, at the time of doing the act,

the act must have been accompanied by an

attitude of mind on the part of the accused,

which here would be an intent either to kill

or to do grievous bodily harm -

et cetera. I have noted page 132 line 15:

I put to you that if you are satisfied beyond

reasonable doubt that the accused caused the
death ..... but you cannot say which it was,

then provided you were satisfied that the

accused had, at the relevant time, an

intention to kill or to inflict grievous

bodily harm.

TOOHEY J:  It may be that the word "caused" will come to be

treated in the same way as the words "beyond

reasonable doubt"; the less said about them the

better.

MR BLANCH:  Yes, Your Honour, that could be right. Page 138

I have also noted it, at line 31:

Recklessness involves foresight of or

advertence of 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 -

and -

Royall 98 7/11/90

the accused did not care whether his or her

act - in this case his act took the life

concerned -

Now, they are all the ones that I have noted but I

simply put to Your Honour that there are multiple
references throughout the course of the summing up,

at the beginning and again, at the end, and in the

middle, to the fact that there has to be the state

of mind accompanying the act of the accused itself.

Now, my friend has also read out other parts

dealing with the causation aspect of it where

His Honour mentioned at various stages that the

accused had to have the intent at the time her death occurred; that is, when she went out the

window. And I mentioned in passing earlier that

the only reasonable reading or interpretation of the totality of that is that the trial judge not

only told them that he had to have the intent at

the time he did the act, but also he had to have

the intent at the time she went through the window.

Now, in practical terms, that may not be, and

I would suggest in this case, in practical terms, there is no real difference because it is not

suggested in this case that there is any enormous

time difference between whatever act he did and the

time she went through the window.

TOOHEY J:  Mr Blanch, could I ask you something somewhat by

way of digression? We have been taken to that

passage on page 31 where the trial judge referred

to the victim seeking 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. What was the state of the outside wall?

was there a ledge or anything which might have
provided some safety for the victim by going

through the window?

MR BLANCH:

I cannot answer that question precisely,

Your Honour. There was a ledge but my

understanding of it that the ledge was not of

sufficient size for a person to feel that they

could go and sit on it. We have a problem - - -

TOOHEY J:  I think there was a sheer wall outside the window

of the sixth floor. One wonders, and I appreciate

it is very difficult to put one's self in the

position of the victim in this case but what was

sought to be achieved, if anything, by going

through the window?

MR BLANCH:  I know there are two interpretations.

Royall 99 7/11/90

TOOHEY J: And I am not inviting speculation, I am just

wondering whether there was any means of security

or access from outside the window.

MR BLANCH:  No, Your Honour, I am not aware of any access

that going on to the ledge would involve. There

are photographs and I think they would indicate
that the width of the ledge or the bottom of the

window is about a foot wide, not enough to sort of

get out of the window and move anywhere else.	So
it is either a matter of sitting on the window

ledge or taking your chances of just going through

the window and falling. So there is no suggestion

of any refuge existing outside the window.

TOOHEY J: At some stage, could you let us have the exhibit

numbers of those photographs that show the outside

wall? You need not worry about it now.

MR BLANCH:  I am not sure that there are any photographs of the outside wall, Your Honour.

BRENNAN J: Are there any photographs inside which show the

position of the window in the wall?

MR BLANCH:  No, Your Honour, not in a satisfactory fashion.

I think some of them were given to

Mr Justice Dawson.

TOOHEY J:	I am holding exhibits llA, B, and C and 12A.
MR BLANCH:	And they are the photographs, Your Honour, that

show a part of the window but they do not show the

whole of the window. The window was otherwise

described in evidence as being six foot high but

opening to three feet at the bottom and being

shoulder width wide.

BRENNAN J: Well, how far was the bottom of the window from

the floor?

MR BLANCH:

It is above a vanity unit. The layout of the

bathroom is that you come in through a door and

straight ahead is a toilet, to the right is the

bath and the left is a vanity unit and the window

is above the vanity unit.

TOOHEY J:  I am not sure that that is strictly accurate, it

may not matter, but the window appears to be

between the - I am sorry, by "vanity unit" you are

not including the hand basin, are you?

MR BLANCH:  Your Honour, I have this difficulty that I have

with me copies of the plans but the plans that were

tendered were given back to the police and we have

been unable to retrieve them from the police in

spite of some efforts to do that. However, my

Royall 100 7/11/90

friend is content with the fact that they are, in

fact, copies of the plans and I can provide the

Court with copies of the plans.

TOOHEY J:  The photograph suggest that there is a towel rack

immediately below the window which would suggest

that the hand basin is to one side rather than

directly in front.

MR BLANCH:  Yes. Might I hand Your Honour up this plan

because it is a large plan and it does, in fact,

show all of those - well there are two of them, a

small one and a large one, and they do demonstrate

the dimensions and the positioning in the bathroom.

The bottom of the window is 930 millimetres from

the floor.

GAUDRON J:	Was that 3 feet?
MR BLANCH:	I am trying to work it out, Your Honour, I think

it is.

BRENNAN J: According to this plan the window is between a

sink and the WC on a wall that does not appear

otherwise to be encumbered?

MR BLANCH:  Yes. The window is above a vanity unit,

Your Honour. It is a ledge vanity unit my friend

says. It may be shown in the larger plan. The

window itself is about 3 feet up from the floor.

BRENNAN J: Well, the question is, is it conceivable that a

person might accidentally fall back out through the

window?

MR BLANCH:  No, I do not think so, Your Honour.

BRENNAN J: There had to be some deliberation on the part of

either somebody pushing, or somebody deliberately

leaping out?

MR BLANCH: 

Yes, or my friend says, getting up there

deliberately and slipping. All the photographs are
available. There is just one photograph in

particular - a graze on the back of the legs of the

deceased - in looking at it it probably has to be
borne in mind that the photographs were taken at

the post-mortem when there was a degree of post-
mortem staining and the effect of it is exaggerated

to some extent in the colour, but these are the

photographs of the grazing.

MASON CJ:  Mr Blanch, we might adjourn at this stage. We

will return at 2.15.

Royall 101 7/11/90

UPON RESUMING AT 2.17 PM:

MASON CJ: Yes, Mr Blanch?

MR BLANCH: If the Court pleases. Before lunch I was taking

my stand on the words of the section. I would only

add this, that there is no more reason to read into
the words of section 18, the requirement that the
deceased die by the means intended by the accused,

than there is to read into the section a

requirement that the person killed be the person

the accused intended to kill.

GAUDRON J: Except for the possibility that it is written

out of the section by subsection (2).

MR BLANCH:  Yes, Your Honour, but, in my submission, that is

not the case. Subsection (2), the requirement of

malice is satisfied in the section by the fact that

the accused had one of the necessary intentions and

that, in my submission, was the effect of the

decision in Mraz and the meaning, or the import, of

subsection (2) has been explained in Stones.

GAUDRON J: But why would you not say, if you were intending

to do (a) causing - we will say grievous bodily

harm, but it does not matter, but (b) was

unintended and unforeseen and was the last act, if

you like, that caused death, why is it not a

misfortune?

MR BLANCH:  It would also be a misfortune on the same

principle to shoot the wrong person.

DAWSON J: Well, in that case, you intend to do the act that

causes death.

GAUDRON J: Yes.

MR BLANCH: Yes, Your Honour, but you do not intend that

that person be killed in the same way that you may

not intend that this person be killed in this

particular way.

GAUDRON J: But you do not intend the last act which

results, whether it is your own or not.

MR BLANCH:  Yes, I appreciate what Your Honour is putting to

me about that. My answer to it is that the

requirement of malice is satisfied by - and I

suppose one cannot help but talk in terms of common

law malice - the wicked intent in the mind of the

accused at the time, and that wicked - - -

Royall 102 7/11/90

GAUDRON J:  Even if the actual act which results in death,

immediately results in death, is unintended and

unforeseen?

MR BLANCH:	Yes.
GAUDRON J:	And at common law that is malice?
MR BLANCH:	I cannot answer that because I do not know of

any cases one way or the other on that particular

point at common law.

GAUDRON J: Is it malice under section 5?

MR BLANCH:  It is malice under section 18, and malice under

section 5, yes.

GAUDRON J: Well, whereabouts does it come in section 5?

MR BLANCH:  Because it is done with an intent, an intent to

do one of these things, and that is the wicked

intention, and they are constructive categories of

murder as was pointed out in that passage of Stones

that I read, and that was what was intended in the

New South Wales Act.

BRENNAN J:  Does that mean that the common law is more

stringent than the Code which was interpreted in

Vallance?

MR BLANCH: That may be, Your Honour, except for the fact

that I must keep confessing my ignorance about any

cases dealing with the common law on this

particular aspect.

I could only reason that from principle and

the reasoning from principle that occurs to me in

favour of my submission is that at common law the

idea of malice arose from a wicked intention on the

part of the accused, and certainly on this

definition there is a wicked intention on the part

of the accused. That wicked intention is there and

malice where somebody else gets killed, and that	common law there are plenty of cases of transferred in existence, and the death occurs. Certainly at
was always encompassed in the definition.

GAUDRON J: But that is the doing of the particular act of

common law.

MR BLANCH: Yes, but without intending that that particular

person be killed.

GAUDRON J: Yes, but it is "the" particular act.

MR BLANCH:  Yes.

Royall 103 7/11/90

GAUDRON J: Here what is in contemplation or the hypothesis

really is that the act itself is unforeseen and

unintended and you have to transfer malice from

somewhere else and your first step, if you cannot

find it in the common law, must be to put section 5

into section 18(1).

MR BLANCH:  Yes. My submission is that the malice is there,

the intention is there, the evil intention is there

if one of those states of mind exist. In my

submission, you do not have to go past that

particular point, it just exists, and if you were

looking at, as the common law in its original form

did, at the wicked intention and the moral

culpability of what was happening, I cannot

envisage that the common law looked at in that

context would have any problem about ending up in a

situation where a person who went out with that

state of culpability of mind intending that

somebody gets killed and they did an act which in

fact caused the death of that person that it would

matter at all that the death did not occur in the

way envisaged.

I can understand that in some situations - I

quoted an instance, an example, before of an

accused going out to shoot somebody through the

head and as he raised the gun it accidentally went

off and shot him through the heart. It may be that

in a situation like that you could charge the

accused with murder on the basis of felony murder,

the felony being attempted murder so that what the

charge would end up being would be one that while

the accused was attempting to commit murder he

killed the person and, logically, that would be

sound but it is not necessary, in my submission, to

go to those lengths to get to those results in the

face of a section that is very clear in its terms.

DEANE J:  Does subsection (2) operate to take a case to

which it applies out of manslaughter as well as

murder? Is that relevant if it does?

MR BLANCH: That question did arise - I think,

Justice Toohey raised that question during the

course of my friend's argument.

DEANE J: Or, indeed, (2) (b) says "no punishment".

MR BLANCH:  Yes, I do not know what the answer to that is,

Your Honour, because one possible interpretation of

it is that section 18 does not in any way define

manslaughter. All section 18 is doing, and I would

put as the preferred interpretation of section 18,

is saying that any other unlawful homicide shall be

taken to be manslaughter whether it was murder or

whatever it was at common law. For example, there

Royall 104 7/11/90

were categories of murder at common law that were

removed by this section in 1883, though the one

that was known to be removed at the time was felony

murder where the felony was something less than one

punishable by life imprisonment. It was intended

to do that.

DEANE J:	Is (2)(b) confined to section 18?
MR BLANCH:	Yes, Your Honour.
TOOHEY J:	Mr Blanch, are you saying that section 18 somehow preserves the common law offence of
manslaughter?
MR BLANCH:	It does not seek to define it or abolish it,

Your Honour. It simply presumes that it exists and

it simply says that in those other unlaw homicides

that we had not categorized as murder there will

now be manslaughter.

TOOHEY J: But it does not say that. It says, "punishable

homicides". Presumably you have to find some

conduct which is punishable at law.

MR BLANCH:	Yes, Your Honour.
TOOHEY J:	If you do not find that conduct in the Crimes

Act, where, if anywhere, do you find it?	I mean,
do you go back to the common law?

MR BLANCH:  Yes, Your Honour. I am sorry, we may be talking

at cross purposes but that is what I am say, that

section 18 was never intended to be a code as to

homicide.. Section 18 was to be a statutory

definition of murder. They knew at the time that

they put the section forward that they were

changing the common law by removing those cases of

felony murder where the felony was not one that was

punishable by life imprisonment and they

deliberately removed them from the murder

definition.

The other category of cases that I am not sure

that they knew they were removing but which have

been removed are those cases where the accused was
acting with recklessness indifference to grievous

bodily harm rather than life and, in New South

Wales, it has been interpreted that if you act with

reckless indifference to life then you are guilty within the section but not if you are acting with reckless indifference to death or grievous bodily

harm because the section speaks in terms of

reckless indifference to life.

They are two categories that would have been caught up certainly at the end of the 19th century

Royall 105 7/11/90

by common law murder so they knew that they were removing some cases and they were simply putting them in the basket of manslaughter but it is all on

the assumption that manslaughter continues to exist

at common law and those are the offences that fall

into that category; but the demystification of

subsection (2) and section 5 of the Crimes Act
occurred in Mraz and there is an unreported

decision of the Court of Criminal Appeal of Coleman

that I have put on my list of authorities in which

the Court of Criminal Appeal fairly recently has

been through section 5 again and - I will not take the Court to it now, but I just mention in passing

that that is a case dealing with section 5, its

history. In a very potted version section 5 has

long been regarded in New South Wales as a very

unsatisfactory section that achieves very little

and, really, ought to be redone and has led to a

degree of confusion rather than anything else.

Except for the fact that, as I indicated

before, in Stone's case, when they were looking at

section 18 in the context of "recklessness" and in

the context of the debate as to whether "reckless

indifference" was an objective or a subjective

intent, the Court looked at subsection (2) and

said, "Well, as a common state of mind it has to be

malicious", whatever that means, and that means

"foresight of consequences" which means a
subjective test for "reckless indifference" and it

is in that way that the section was developed subject only to the matter that arose when my

friend was addressing the Court and that is that

acts obviously dangerous to human life were removed

and that category was removed in 1974 because the

courts in New South Wales had interpreted it to

mean an act obviously dangerous to a reasonable

person, not the accused, and it would have meant,

if it had stayed in the Act or if those decisions
had not been overturned, that effectively, the test

for murder in New South Wales would have been

objective rather than subjective. However, that having been the purpose of	removing "acts obviously dangerous to human life"
from the section, leaves the New South Wales
section in a slightly odd position vis-a-vis the
common law, if one goes back to Stephen's digest
and comes forward with the definition of what
murder was at common law, but that is something
that I would like to speak to in the context of the
meaning of "reckless indifference to human life".

Would Your Honour excuse me for just a

second - I think I do not wish to say anything more

as to that question of reading into section 18 that

requirement, unless the Court wishes to hear from

Royall 106 7/11/90

me, but would the Court excuse me? I would then

like to pass to the other aspect of the case, and

that is the question of "reckless indifference to

human life", and the problem that arises with that

can be seen from the direction given at page 38 of

the appeal book, where, at line 19, the trial judge

said to 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 ..... and he committed the act with such

an attitude of mind.

Now, that same direction was repeated at the

end of the summing up at page 138, and it was dealt

with by the Court of Criminal Appeal at pages 168

and 169 of the appeal book. At page 168 the Court

of Criminal Appeal quoted the passage that I have

referred to and at line 26 noted the:

degree of awkwardness in accommodating the

statutory phraseology of "reckless

indifference to human life" to the

contemplation of the probability of death.

Which is the way the common law and the Tasmanian

statute have been interpreted by this Court, and

went on to say at the bottom:

I consider that the direction by Cole Jin the present case 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. The concept of willingness to run a
risk is central to the meaning of the words
"reckless indifference". In the absence of a
reference to probabilities there is, of
course, a danger that talk of risks could

convey to a jury the notion that contemplation

of a bare possibility would suffice.

However, in the present case, the jury were

told that they should concern themselves with
the risk of a probability.

There are two ways that the direction by the learned trial judge might be interpreted. The

Royall 107 7/11/90

Court of Criminal Appeal has interpreted what was

said as being that the accused foresaw the

probability of death and then was prepared to run

the risk of that occurring.	The way it was put
was, at page 38:

to run the risk of the probability of those

consequences occurring.

And then went on to say:

By reckless indifference -

meant he contemplated a risk and went ahead with it

without caring. Another possible interpretation,

of course, of the words was that what he was doing

was risking the probability of a consequence and

the question arises, on my friend's argument, as to

whether there has been conveyed to the jury the

requirement that the accused for reckless

indifference to human life foresee the probability

of death.

Our first submission is that the Court of

Criminal Appeal was correct in that what His Honour

was really telling the jury was that the accused

foresaw the probability of death and was prepared

to run that risk and the risk he was running was

the probability of death rather than that he was

embarking on a course of action which risked the

probability of death. If it were understood as, or

could be understood as the risk of a probability,

then I would not seek to argue that the risk of a

probability was the same thing as a probability.

But, the Court of Criminal Appeal has interpreted

it in the sense that it was running a risk of a

perceived probability of death arising.

If it is thought that the direction is unclear

or that it can be attacked on that, then raises the question as to what the test is in New South Wales,

bearing in mind the statutory provisions and, in

our submission, that is certainly a matter of some

great moment because the definition of "murder" in

the New South Wales Act has not really been the

subject of any interpretation by this Court except

for the Mraz and Ryan cases dealing with felony

murder or murder cases from New South Wales dealing

with some peripheral matter but not with the

interpretation itself. The definition of "murder" in section 18 does raise a number of problems that

are peculiar to the New South Wales definition.

If I might just take the Court very quickly

through that argument which is outlined in very

bare form but, none the less, all the points in the

argument appear in the outline.

Royall 108 7/11/90

It is this, that of course this Court in

Crabbe, (1985) 156 CLR 464, indicated that at common law, and reading at page 469, this Court

said:

It should now be regarded as settled law

in Australia, if no statutory provision

affects the position -

that foresight of probability of death is something

that is necessary for the second head of murder at

common law.

The other thing that the Court said, apart

from the fact that if no statutory provision

affects the position, is at the top of page 470

about eight lines down:

That does not mean that reckless indifference

is an element of the mental state necessary to

constitute the crime of murder.

So that there are both of those points that we

would draw to the Court's attention - firstly, that
there is a statutory provision in New South Wales,

and secondly, that the statutory provision in New

South Wales does include, as a separate head,

reckless indifference to human life.

To understand that problem in its context, it

is probably necessary to briefly look at the

history which begins, for effective purposes, in

Stephen's Digest at page 144, where he lists four

categories of common law murder, the first being:

An intention to cause the death of, or

grievous bodily harm to any person -

and the second is:

Knowledge that the act which causes death will

probably cause the death of or grievous bodily	harm to some person, whether such person is
the person actually killed or not, although
such knowledge is accompanied by indifference
whether death or grievous bodily harm is caused or not, or by a wish that it may not be caused.

It is that formulation, that second formulation,

that the draftsmen in New South Wales in 1883

sought to capture to the extent that they did in

the formulation that my friend read out in

section 9 of the 1883 Act which, with the deletion

of "acts obviously dangerous to human life" now

appears in section 18 of the present Act.

Royall 109 7/11/90

It will be immediately seen that the way it

was sought to be done in 1883 was to interpret that

form of murder as reckless indifference to human

life, although the formulation itself is not

expressed in those words. The formulation reckless indifference makes the indifference a major part of the categorization of murder, so that the accused

has to act with indifference and it has to be

reckless; whereas the formulation was that the

accused embarked upon a course knowing the

probability of death even if he was indifferent.

And it was just a qualification in the formulation,

but it becomes a central part in the New South

Wales definition.

The other peculiarity about that is that if

one were to interpret the section in its literal

form it might be possible for an accused to raise

as a defence the fact that he was not indifferent

at all, that he really did not want any harm to

occur and, of course, that is one of the
formulations in Stephen's code formulation in the

second part even if he wished that no harm occur. In New South Wales that may have been caught

up previously by acts obviously dangerous to human

life, that the accused embarked upon a course that

was obviously dangerous to human life, and it may

be that that was the reason for that part of the

formulation which, as I said, was removed in 1974

for the purpose of removing an objective test; but

it has never been decided whether by so doing it

actually leaves open to an accused in a murder

trial now in New South Wales to say, "Well, I

really did not want them to die", or, "I foresaw

the probability of death, but I did not want them

dead", and whether that would be a sufficient

defence now that the definition has been changed.

It is significant to look at that definition in

terms of understanding how in 1883 it was sought to

translate it into the New South Wales law.

While looking at this digest there are some

illustrations of the points involved given there

and if I might just quickly refer to

illustration (4) on page 145, where it said:

A waylays B, intending to beat, but not

intending to kill him or do human grievious

bodily harm. A beats Band does kill him.

This is manslaughter at least, and may be

murder if the beating were so violent as to be

likely, according to common knowledge, to

cause death.

In example (7) on page 146, he says:

Royall 110 7/11/90

It is A's duty to put a stage at the mouth of

the shaft of a colliery. He omits to do so.

A truck falls down the shaft in consequence

and kills B. If by omitting to erect the

stage A intended that B's death should be

caused, A is guilty of murder. If the

omission was caused only by the culpable

negligence of A, and without any intention to
kill or injure B, or a reckless disregard to

the chance of his being killed, A is guilty of

manslaughter.

I read those examples because those two same

factual situations were then put forward by Stephen

and Oliver in their book when they put forward the

manual propounding the new definition and in the

appendix in Stephen and Oliver's manual, which has

been referred to by my friend, and at page 200 of

the appendix, at the bottom of the page, it is said

this, once again illustrations having now redefined

murder, five lines up from the bottom:

A man waylays another, intending to beat him -

but neither to kill nor do him grievous bodily

harm. The beaten man dies of the beating.

The learned writer, observing that this is at the least Manslaughter, suggests that it might

be Murder if the beating were "so violent as

to be likely, according to common knowledge,

to cause death."

The first case is not that case:

In the second case, assuming the extreme

degree of violence suggested, the beating

would probably be deemed an act done with

reckless indifference to human life, or in the

commission of an act obviously dangerous to

life.

And they have no problem in categorizing those

facts as murder within the definition.	A few lines
further down, the example of the man at the mouth

of the colliery shaft:

A person, whose duty it is to put a stage at the mouth of a colliery shaft, omits to do so; in consequence of which a truck falls down the

shaft, and kills a workman there. If the

omission was caused by reckless disregard to the chance of such a result, it is suggested

that this was Murder. If workmen were known

to be about, it was certainly a case of

"reckless indifference to human life."

Royall 111 7/11/90

So that it appears that they were intending to

slightly broaden the concept of murder in those

circumstances.

I have already taken the Court to Stones and

the way Stones interpreted that. Stones was the

case in (1956) SR at page 25. I read to the Court

from page 34 but it is interesting to note at

page 34, further down from where I stopped reading,

the court in New South Wales in 1956, at about

point 4 of the page:

If he applied his mind to the consequences, and without concluding that they would

probably happen (which is criminal intent) his state of mind was he did not care whether that happened or not, that is recklessness.

So that it may be nothing more than an historical

note that in 1956 they were certainly still

interpreting reckless indifference as to foresight

of a consequence that may happen.

The next point that I wish to make about this is - and I am just going through - at point l(c) of

my outline, that the common law situation in

Australia, looking at that second proposition in

Stephen's Digest, came to interpret that second

head of murder as reckless indifference to human life and the cases that I have referred to there

are all cases where that was said. It may be

because some of the judges involved in those cases

in New South Wales law are used to a concept of

reckless indifference to human life and it must

naturally carried through to the common law but

when this Court came to deal with this head of

murder in Crabbe the terminology of recklessness

was avoided and it was made plain that what was

being spoken of was embarking upon a course of

action where death was foreseen as a probable

consequence without adverting to it as recklessness

at all and in the passage that I read to the Court

from Crabbe the Court, in fact, made it perfectly

plain that that did not mean that reckless

indifference was part of the common law.

Of course, that approach to the common law is

also the approach taken by the House of Lords in

the series of cases, Moloney, Hancock and Nedrick

that have been dealt with in England over the last

5, 6, 7 years.

The short point that I make about the matter

is this, that the common law has been interpreted

and reinterpreted. In New South Wales we are in a

situation where we have an interpretation of the

common law which was made in 1883 which

Royall 112 7/11/90

encapsulates - perhaps, in a time capsule if need

be - but it encapsulates an interpretation and

enshrines the words "reckless indifference" in the

Act.

The question is whether the existence of those

words is such as to make the New South Wales law

different to the common law as it applies in interpretation exists.

It has already been read in the judgment of the Court of Criminal Appeal, in this case, the

complaint by the Chief Justice in his judgment that

it is difficult to force the terminology of

"foresight of probability of consequences" into the

words "reckless indifference". A similar complaint

was made by Mr Justice Pincus in the case of Brown

which is referred to in the authorities.

Against any argument to the contrary that I

might put Justice Pincus was able to find that he

could squeeze that interpretation into the words

"reckless indifference" in the ACT applying the

New South Wales' provision. I bring it to the

Court's attention as a matter of some concern

because it is a matter not addressed here. It is

the point. It is the same point that came here

when special leave was refused in the case of

Annakin which was the bikies' massacre that

occurred in Sydney where a number of convictions
for murder were overturned because the trial judge,
instead of saying the accused must foresee the
probability of death, used the expression "foresaw
that death might well occur" and the Court of

Criminal Appeal in New South Wales, attempting to apply Crabbe, said that foresight that death might

well occur was not good enough. It had to be

probabilities and that is an example of the problem

that has occurred in New South Wales in this

context.

The short point that I wish to put is (e)(6)

and that is that if one speaks of reckless

indifference to human life, the test for

recklessness is well settled and I have referred to

some cases there where commonly "reckless", as a

concept used in the criminal law, is a concept that

refers to foresight of a real possibility as

opposed to a remote possibility.

BRENNAN J:  How are you applying all of this to the facts of

this case?

MR BLANCH:  Because of the direction at page 38,

Your Honour; that is susceptible of the attack that

is being made on it that what the jury in this case

Royall 113 7/11/90

have been asked to do is to find that the accused

ran the risk of the probability of death and what

those words mean.

TOOHEY J: Is that something, Mr Blanch, that you apply in

the objective test too, or is it a subjective test;

that is, the foreseeability of a possibility that

death might result?

MR BLANCH:	A subjective test, Your Honour, and the reason for that is the passage that I read from Stones and
that was the case dealing with malice in 18(2),
where the Court of Criminal Appeal in 1956 in New
South Wales, said, "An intentional act or a
reckless act, both need to be done with malice.
The common connecting factor is foresight of
consequences". That was a case where the question arose whether drunkenness could provide a fact in
defence to a charge of murder by reckless
indifference to human life and the courts - - -

BRENNAN J: Is this the test, that recklessness involves

foresight of or advertence to the probability that
death will result and a willingness to run that

risk? Is that the test?

MR BLANCH: That I think is something akin to what

Sir Garfield Barwick said in Pemble and that would be the test as propounded in Crabbe.

TOOHEY J: But I rather took you to be saying not the test

applicable to section 18.

MR BLANCH: Well, Your Honour, yes, that is a position that

is open to interpretation.

TOOHEY J: What, the difference being probabilities,

possibilities, real possibilities?

MR BLANCH:  Yes, and of course that raises the question

which is the next point in the outline and that

is - - -

BRENNAN J: Before you get to the next point on the outline

can we just come back to your answer to

Justice Toohey? Do you submit that it is

sufficient for section 18 to establish recklessness

that involves foresight of or advertence to the

possibility of death and a willingness to run the

risk?

MR BLANCH:	A real possibility, yes, Your Honour.
BRENNAN J:	A real possibility?
MR BLANCH:	Yes.

Royall 114 7/11/90

BRENNAN J: But there are many actions, are there not, which

are undertaken which involve a real possibility of

death - the construction of the Snowy Mountains

Scheme?

MR BLANCH:	Yes.
BRENNAN J:	To put it on possibilities in an area where it

is almost impossible to predicate any kind of

criminal liability as what ordinarily would be

understood.

MR BLANCH:  I know that Your Honour has expressed that view

in a number of judgments, but the fact of the

matter is that in order for an offence to be

criminal there has to be a guilty mind going to a

particular act in particular circumstances, and it

is fairly hard not to go on to the next point

because part of the answer to this lies in what was
said in the joint judgment of three members of the

Court in Boughey, where this test of probability

was looked at and the statement made that it, in

fact, meant the same as likelihood - or likelihood

and probability were equated and so on. It is

fairly difficult to avoid looking at that in that

context.

BRENNAN J:  You do not put the test as any different from,

or any lower than that which the joint judgment in

Boughey put it. Is that right?

MR BLANCH:  Yes, that is so, Your Honour - well subject only

to what the impact of the words "reckless

indifference to human life" may mean, but the other

matter and the main matter that I wish to raise

arising out of this last page of my outline of

submissions, and I know that most of these problems

will be familiar to the Court so I will not go

through each detail of it, but it comes simply to

this, that it always is a policy decision as to

where murder will be defined, whether it be only at

the stage of an intention to kill, or an intention

to grievous bodily harm, or whether it be cut off

at the point where the accused does an act

expecting that death will follow, and that would

appear to be the situation arrived at in England

and Wales as a result of the decision of the House

of Lords.

The question that arises is what do you do

with the next series of events where the accused

does an act expecting that there is more than a

50 per cent chance that death will follow or where

the accused does an act where he appreciates death

is a real possibility?

Royall 115 7/11/90

The question that I would put to the Court as

a question that is worth considering in these

circumstances simply is this: that when the test is

left as a test of probability, that that is not an

appropriate or satisfactory test to be applied by a

jury in serious criminal cases, and I say that

because of the statements made by the Court over a
period of time about the vagueness of the word

"probabilities", the statements in the Court over a

period of time that you cannot expect a jury to

weigh up the probabilities and say whether it was

more probable than not and even less can you ask a

jury to think back to the mind of the accused as to

whether the accused weighed things up to determine

whether it was more probable than not that death

would occur. In other words, by adopting a test

that uses the word "probability" and no more, you

are not using a test that is well understood, like,

"beyond reasonable doubt" or whatever term may be

well understood, you are, in fact, using a test

which everybody understands it capable of a vast

array of meanings from the point of a probability

in the sense of a real chance to more probable than

not, to a point of near certainty and that it is,

in fact, an unsatisfactory state for the law to be

in when a jury is sent into a jury room with the
injunction to determine whether the accused foresaw
death as a probable consequence of his actions.

I have quoted a number of authorities, Chan Wing Siu and Tillmann Butcheries and Maloney are

all cases where those sorts of comments have been

made about a probability test and what I put to the

Court now about that test is not necessarily its

correctness in one form or another but the

desirability of having a test in an intensely

practical area such as the criminal law which has

to be applied by juries and where it is not

susceptible of an easy explanation.

TOOHEY J:  The expression "reckless indifference" seems to

which the primary word was "reckless", although as have been treated in a number of the decisions in	a matter of language it is an adjective qualifying
"indifference".

MR BLANCH:  Yes, Your Honour, and that was the point that I was making before. In spite of the fact that it is

the murder definition in New South Wales the

section itself really has not been subjected to

that degree of critical analysis that might be

expected. I hope it is not unfair to say at least

that the attempt to redefine common law murder in

New South Wales in 1883 was a lot less successful

than attempts that have been made in many of the

Code States, or in other countries that have

adopted the various forms of the Stephen codes.

Royall 116 7/11/90

TOOHEY J: It is really a composite expression, is it not,

but it tends to be analysed first in terms of, "Was

the conduct reckless?" That is analysed in the way

that we have seen, and then, "Being reckless, was

there an indifference to human life?"

MR BLANCH:  Yes. It leads to - they are not matters that

concern this Court, but it obviously leads to some

problems in terms of applying for a jury's

deliberation, and a very good example is in the

summing up by the judge in this case because as in common with the rest of this judge's summing up he was following very literally the words of the

murder definition. And at page 38 in the passage

that I have been reading from, he said:

Recklessness involves foresight of or
advertence to the consequences of a

contemplated act and a willingness to run the

risk of the probability ..... By reckless

indifference to human life -

and he is obviously now concentrating on the
indifference aspect rather than the recklessness

aspect -

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.

TOOHEY J:  But maybe you should start off by asking whether

the conduct involved indifference to human life,

and if you do not get beyond that point you do not

ask whether the conduct was reckless.

Justice Brennan mentioned the Snowy Mountains scheme, and I suppose you could envisage

construction jobs in which there is a risk to human

life but there is no indifference to human life.

MR BLANCH: Yes. Indeed, on a strict grammatical

interpretation of the words that are used, that is

precisely where that phrase gets to. We are

really talking about indifference of a reckless

kind.

In 1883 the person who really was not

indifferent, the person who really did not want to

cause anybody any death but knew that he probably

would, was caught up by "act obviously dangerous to

human life", the bit that has been now taken out of

the section. Of course, many of those problems

are problems because of the format that the New

South Wales section now finds itself in.

Royall 117 7/11/90

The problem in hand is really the problem of reckless indifference itself, and it is easy to see

looking at that history, how the section has come

into the position it is at the present time, but my

submission is that the "reckless indifference" in

the New South Wales Act is not necessarily the same

as the second head of murder at common law, and

that, in any event, the direction of the trial

judge was correct, however it be interpreted.

BRENNAN J:	What is the difference in New South Wales between manslaughter by criminal negligence and
murder under this category?

MR BLANCH: Well, if you were to interpret reckless

indifference as a foresight of the real possibility
of death then the difference would be for murder,

that the accused foresaw that, for manslaughter

that it was an objective test.

BRENNAN J:	An objective test?
MR BLANCH:	Yes, Your Honour.

BRENNAN J: Is that the received wisdom about manslaughter

in New South Wales?

MR BLANCH:  By recklessness, Your Honour, unlawful by, yes.

DAWSON J: The accused does not have to foresee

anything - - -

MR BLANCH:  No. It is objectively reckless conduct which

leads to - I hope I am not getting that wrong,

Your Honour - the - - -

BRENNAN J: What if recklessness is objective?

MR BLANCH: Yes, Your Honour.

DAWSON J: That is Newbury?

MR BLANCH: Yes.
BRENNAN J:	Bateman, all those cases?

MR BLANCH:  Yes, Your Honour, yes. Your Honour had me

worried me for a moment.

DEANE J: Well, that means the direction was too favourable?

MR BLANCH:	If it is understood in a certain way, Your Honour, yes.
DEANE J:	If it is understood the way the Court of Criminal

Appeal understood it?

Royall	118	7/11/90
MR BLANCH:	Yes, Your Honour.	The Court of Criminal Appeal

interpreted it as meaning running a risk of seeing

the probability of death and being prepared to take

that risk. It would be too favourable on that

basis and even if you interpreted it the other way

or suggest that because of the way it was framed it

could lead the jury to conclude that the foresight

of the risk of a probability would be enough, then

it would still be all right because of the peculiar

New South Wales situation.

DEANE J: Except the Court of Criminal Appeal did not hold

that?

MR BLANCH:  No, they did not hold that, Your Honour, no. I

am reminded of just one other matter where it

appears in the outline and that is the problem with

the present test as it applies to accessaries and

Johns' case and that is the situation that if two

joint venturers go out, or an accessary before the
fact joins an enterprise perceiving that death is a
possible eventuality in the enterprise and death
occurs, then that accessary before the fact is
liable for murder on the basis that he foresees the

possibility of death according to the decision in

Johns and if those tests are not married together

then you can end up with a situation where the

accessary can be found guilty because he foresaw

the possibility of death but the person who commits

the act is not guilty unless he foresees the

probability of death, and one answer to that may

have been that at law the accessary could not be

guilty of a higher crime than the principal.

However, the House of Lords in the case of

Howe which I referred to on the last page of the

submissions has held that that is not so and it

would lead to a peculiar position in the law, on

one interpretation, if that were allowed to

continue to be the situation. On the other hand,

one might say that the accessary before the fact is

liable for murder only in circumstances where his

intention was that that occur and certainly that

was the situation in Howe's case.

I simply draw it to the Court's attention in

the overall context of the debate about Crabbe and

Baughey, and the decision of the Court in Baughey

has been applied in New Zealand in the case of Piri

which is not in the outline but I am sure is in the
list of authorities that I forwarded to the Court.

They, briefly, are the problems in this area with the decision of this Court in Baughey and Crabbe

and their application to this area of the law.	It
all becomes relevant back to the point that I was making about the direction at page 38 of the
summing up.

Royall 119 7/11/90

The only other matter in the outline is the question of sentence which my friend referred to

and I have referred to the case of Bell, which is

the - I might draw the Court's attention to the

fact that the section under which this applicant

was sentenced is now repealed. He was sentenced at

the time when there was a gateway in section 19

that you could only have the mandatory life penalty

reduced if you could show special reason. That has

now been entirely removed from the section so that

the New South Wales position now is that life is no

longer a mandatory sentence for murder and it is

left to the judge's discretion, the sentence to be

imposed. That change came in at the same time in

New South Wales as the change which means that if a

person is sentenced to life imprisonment, it means

for the term of natural life. I only make that

observation because the question involved in this
case on the sentence is a question of significance

but it is limited significance in the sense that it

is a section that existed only for a short period

of time.

Those are the submissions that I wish to make

unless the Court wishes to hear from me about any

other matter.

MASON CJ:  Mr Blanch, there is one question I may raise with

you.	You appear to have custody of the documents
in the file.	Would you ensure that they are left

with the Court?

MR BLANCH: 

The transcript, Your Honour?

MASON CJ: 

I was not thinking of the transcript so much, but

take, for example, the plan that was handed up and,
perhaps, we would include the transcript as well.

MR BLANCH:  Yes, Your Honour. And the exhibits,

Your Honour, which are photographs? There is not a

large body - body of photographs, I mean - and the only other thing which - there is a video which is

of not much use because it is on a commercial video

machine which needs a special machine to show it

and it would be of limited use in any event because

it is the video of the stunt men going out of the

window to demonstrate. However, if that is of any

benefit, I could leave that behind.

MASON CJ:  I do not think we have the equipment to use that,

but otherwise, I think the document should remain,

or be left in the custody of the Court.

MR BLANCH: Yes, Your Honour, that will be done.

MASON CJ: Thank you. Yes, Mr James?

Royall 120 7/11/90

MR JAMES:  Your Honours, if I might deal with the last

matter that my friend raised first and that is the

perceived inconsistency between the possession of

an accessary before the fact and the principle in

relation to the mental element. It is to be noted

that in the most recent edition of Archbold, the

43rd edition, in the preface at page vi, is

referred to the English decision in Ward which

permits a reconciliation between Anderson and

Morris, the English equivalent, as it were, of

Johns, and Chang Wing-Siu and Maloney, to deal

with, as it were, the English analogy to any

suggested conflict between Johns and Crabbe.

In fact, when one turns to Johns itself, it

can be seen that Mr Justice Stephen gave very good

reasons indeed why an accessary before the fact

would not necessarily be in the same situation as a

principal in the first degree and he took those

reasons from the judgment of Sir Laurence Street

sitting as Chief Justice of New South Wales in the

instant case on appeal dealing with the position of

the accessary before the fact. So it is our

submission that to pray in aid a perceived

inconsistency between the position of the accessary

before the fact and the principal is not

necessarily to help with the question.

If I could deal with the second-last point, the

trial counsel who argued Nydam v Reg (1977) VR 430,

in the Victorian Full Court was Your Honour

Justice Dawson, according to the report, and that

seems to be the last word on manslaughter, on that

head of manslaughter, both in Victoria and in New
South Wales, but it does involve an intentional act

and it does involve the perception of that

intentional act. Simply looking at the headnote,

that:

In order to establish manslaughter by

negligence it is necessary to show an intent

to do the act which in fact caused the death

of the victim in circumstances falling short
of the standard of care required of a

reasonable man in the circumstances, and a
high degree of risk or likelihood of the
occurrence of death or serious bodily harm if

the standard of care was not observed, and not

a consciousness by the accused of the

likelihood of his act causing death or serious bodily harm to the victim or persons placed in

a similar relationship as the victim was to

the accused.

Pemble, Hyam and Newbury were considered and some of what His Honour Mr Justice Smith said in Holzer

was not followed. It is also a case that raises in

Royall 121 7/11/90

Victoria the necessity in a case of murder by recklessness of offering to the jury precise

assistance on the evidence which might "bear upon

the formation of the relevant state of mind of the

accused" and the manner in which it can be used and

it joins with the other cases to which I had

referred in my argument in-chief when it comes to

the analysis of the summing up and the necessity
for an appropriate analysis.

Your Honours, Archbold, also, when it comes to the examination of homicide, commences that

examination with the proposition that appears at

paragraph 20(5) on page 1925, the short proposition

which states a proposition that has been repeated in

Archbold through many editions:

If a man does any act other than perjury of

which the probable consequence may be, and

eventually is death, such killing may be

murder although no stroke was struck by

himself -

and then goes on to give various illustrations, but

it is interesting that Archbold repeats the

proposition when dealing with murder and, in this

respect, the English Homicide Act does not in any

way restrict the common law propositions, that it

has to be a probable consequence and it has to be

attached to the doing of the act.

The matter raised, however, goes further

because although there is no discussion of accident

in Archbold dealing with murder, there is in the

New South Wales practice of Watson and Purnell at paragraph 49 on page 30 and all but two of the

cases cited in relation to accident are, in fact,

Code cases.

The general rule is expressed in this fashion.

The general rule is that a person is not

criminally responsible for an act which is
done independently at the exercise of his will

or by accident. It has been succinctly stated

that any act that is unintended, unforeseen

and unforeseeable occurs by accident.

And then:

If a person kills or injures another -

and these cases thereafter referred to appear to be

Code cases -

Royall 122 7/11/90

by a "willed" blow with his fist, although the

death or particular injury is not reasonably
foreseeable, the death or injury is not an

event which occurs by accident. The event

occurs by reason of something which is

intended and is not merely accidental. It is

the direct and immediate result of an

intentional act.

And this relates back again to Sir Victor Windeyer

and Mamote-Kulang, as well as the references given

at point 3:

However, a person may not be criminally responsible for an event which is caused by

his "willed" act but which is an accidental

consequence of it.

And again there is reference to the direct and

remoteness connection when one comes to look at

Mamote-Kulang and the cases that are thereafter

cited.

However, there is a New South Wales case from which these propositions are said to flow in this

Court, and that is Hardgrave v R,(1906) 4 CLR and
appears to deal with a rule of statutory

construction in relation to crime in New South

Wales. It was a case that arose in respect of the

Audit Act, an offence against the laws of the

Commonwealth of misappropriation of public moneys,

and in the judgment of Sir Samuel Griffith,

appearing at page 237 appears this proposition:

The second ground of objection taken by counsel for the prisoner was that the defence

of accident or negligence was not admissible

in prosecutions under this section, and that

therefore any evidence to negative such a

defence must be irrelevant. Respecting the

contention that it is not necessary to show

anything more than the mere fact there there

is a deficiency

that is a deficiency in the moneys -

I do not think that that is supported by the language of the section. The general rule is

that a person is not criminally responsible

for an act which is done independently of the

exercise of his will or by accident. It is

also a general rule that a person who does an

act under a reasonable misapprehension of fact

is not criminally responsible for it even if

the facts which he believed did not exist.	I
do not think the first rule has ever been
excluded by any Statute.

Royall 123 7/11/90

And His Honour then goes on to deal with the facts

of that particular case. It appears to be a

question of a presumption being called in aid which

presumption has received a great deal more

attention in the Code States when construing those

provisions that relate to events occurring by

chance, and so forth.

New South Wales has appeared to forget the

presumption, as it were, by dint of the fact that

we are not used to reasoning as Code lawyers might

well be. But one could certainly submit that

Stephen and Oliver had some attention to it,

because when one looks at the manual, and in

particular page 200 of the manual, interpreting

section 14, section 14 being the section that has

the "misfortune" reference in it, in the second

paragraph appearing at page 200:

Such defence -

and there the authors are dealing with matters of

defence in which the proof lies on the accused, ie,

circumstances showing lawful cause or excuse -

will be, according to the legal distinction

between Homicides "justifiable" or

"excusable," either that the killing was

"justified by command or permission of the

law, or excused on account of accident or

self-preservation." (4 Blac. Comm. C.4.) On

the other hand, the killing - although

unlawful - may, by reason of the circumstances

attending it, "be alleviated into the crime of

Manslaughter."

And, of course, the remarks there as to onus have to be understood in the light of the later

decision in Woolmington v Reg. The other argument,

of course - and I have not handed it up to the
Court and perhaps I should do so is the former

Mr Justice Neasey's paper on the mental element in

the law of homicide, recently delivered at the

conference in Hobart where the point is made that

essentially the Code, often enough, sought to

reproduce the common law concepts but in form

precisely expressed and the defence of accident is

one that perhaps could be looked at - and I should

not call it defence because really it is a matter

that has to be rebutted. But what one has in the

Code is the expression of the more general concept but in particular language, dependent on the Code.

That paper does appear on our list of references but, in addition to that, we have also,

Your Honours, and I have neglected to pass up

although it is also referred to on our list of

references as to the more general question of

Royall 124 7/11/90

causation the paper by Mr Colvin - Professor Colvin

as he now is - on that question of causation and

the ambit of causation.	And perhaps I should hand
that also.

Your Honours, it is our submission that there

must be - and this is in answer to the questions -

the answers put by my learned friend to

Justi ~ Gaudron - an intentional act and an

intention to achieve the result. The transferred

malice example is something that is entirely

different. Indeed, the Act - when it came to the drafting of the section, the intention was except in peculiarly specified instances, to avoid

constructive malice completely and it can be seen

to get away entirely from common law malice

aforethought in any of its more artificial senses.

That appears from both the introduction in the

manual and also from the notes.

The examples that my friend gave can all be

seen as so affected by act obviously dangerous to

human life that, indeed, once that is removed a

great deal of change is made in the section.

Reckless indifference in the "he did not want

her dead" sense would, of course, avoid the Snowy

Mountains Authority guilt problem, but there is nothing, as far as we know, to the contrary of that

by way of authority. There is very little, in

fact, nothing on it by way of authority also.

All the remarks that my friend made, with the

greatest respect, concerning probability and

problems -that have been noted with it may well have

considerable significance as to difficulties on a

policy basis, but why is that significance to be

avoided by reference to possibility? It could

only, in our submission, be compounded rather than

assisted.

As to reference to Coleman in which there is

an examination of history, the whole point in

Coleman was that the court drew a sharp distinction

between malice aforethought at common law which it

said required "advertence to probability", and

malice at common law which it said required only

"adversion to possibility". And in any event,

Coleman is a case which is presently the subject of

an application for special leave to this Court

itself awaiting hearing.

Your Honours, we would put that what the Crown

appears to have opted for in its submissions here

is a continuous sustained attack with a continuous

intent, so that everything done was thereby

causative, and thus produced murder by the

Royall 125 7/11/90

continued combination of the concomitance with the

subject. But in our submission there is great room

for confusion between acts which evidence the

intent with which other acts may be carried out,

and acts causing death.

Mr Justice McHugh raised with my learned friend the break. In our submission, the time

break was not artificial at all, either legally nor

in this case, factually. A 15 minute time break,

which the Crown has put that it may well have been,

may have quite dramatic results for the alteration

of the minds of those engaged in a domestic

dispute. In those circumstances, we would submit

that there simply is not the evidentiary basis to
support as safe the proposition of a continuous

sustained attack with the continuous intent to

achieve the eventual object.

In our submission it is not good enough to say

to the jury, "Whatever acts accompanied an intent

which you think might have caused or did cause to

describe the available acts", and we would not only

call in aid Ryan, Demirian and Ramsay, but also

Phillips and also Nydam.

The defining by the trial judge of that time

for the applicability of his legal instruction that

intent must accompany act is, in our submission, a wrong application of the general legal doctrine to

the circumstances of the case, and it has very

great problems in that in our submission it is

perfectly clear that if he knew she was going out

the window he must have adverted to the probability

of death suffered by her going out the window - an

unintended act on his part - but as he sees that

she has gone out the window, he must at that time

factually have adverted to the likelihood,

probability, possibility - call it what one

will - that she will die as a result of the fall.

TOOHEY J:  Mr James, at this point are you dealing with reckless indifference or death caused by an act

done in an attempt to kill or with intent to kill

or inflict grievous bodily harm.	What part of
section 18 does this refer to?

MR JAMES: Reckless indifference, Your Honour, and also the

way in which causation in the summing up are put

because the reference to the time at which he had

the requisite mental state, in relation to the

well-founded apprehension, means that the two may

never have come together appropriately. He must

have adverted to her falling to her death when she

is falling out but that does not mean that he did

so at the time he did, whatever it may have been,

Royall 126 7/11/90

that might have caused a well-founded apprehension

on her part.

It is a short answer to a question raised by

Mr Justice Brennan with my friend and we would

submit that there is a miscarriage of justice if

the jury assessed the state of mind of the accused

at that time because what will happen is the jury

might well have, without specifying any acts for

themselves, gone back looked through general

conduct and concentrated only on the mind of the

deceased as they saw it. The risk of that

happening was, in fact, exacerbated by the factual

break because that factual break may well have

broken the causal chain, but on these directions

the jury would never have really come to consider

it as being possible to have that effect.

Now, Your Honours will see that in relation to the murder felony questions, if one looks at

section 33, for instance, often enough those

felonies themselves require an ingredient of malice

within the individual felony. That, however, is

not the same as talking about the malice or mental

states required or absence of non-malice required

of section 18 and it does involve great care in

looking at, for instance, maliciously wounding

with intent to wound where, clearly, the

"maliciously" cannot be entirely supplied by the

intent to wound and then translating that through
to section 18 without giving significance to

section 18(2).

Your Honours, in relation to the Code approach

to manslaughter and the appropriate tests, as well

as the fact that it also involves an examination of

the acts, we would refer the Court to Phillips

which is in our list of authorities and which can be found (1971) 45 ALJR 467, and in particular in

the judgment of Sir Garfield Barwick at page 470,

left-hand column, through to 471C.

Lastly, Your Honours, could I indicate that

the approach the Crown makes is to seek the

advantage on an interpretation of section 18 of

both a rigorous and literal interpretation for the
purposes of avoiding causation problems, accident

problems and intent problems, but an expensive

approach when it comes to the consideration of

reckless indifference such as to permit indeed of

an interpretation of that term even in the context

of section 2 so widely as to expand the intent to

the point where it almost, if it does not, reach

what is commonly understood by manslaughter.

From our viewpoint, whichever way the Court might view the appropriate approach if confronted

Royall 127 7/11/90

with those two different approaches, either way

would produce, in our submission, a clear result

that there has been one error or the other in this

present case.

Really, that is all, I think, I can usefully

put to the Court in reply unless there is any other

matter on which I could assist the Court.

MASON CJ:  Thank you, Mr James. The Court will consider its

decision in this matter.

AT 3.37 PM THE MATTER WAS ADJOURNED SINE DIE

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