Ryan v The Queen

[1967] HCA 2

HIGH COURT OF AUSTRALIA

Barwick C.J., Taylor, Menzies, Windeyer and Owen JJ.

RYAN v. THE QUEEN

(1967) 121 CLR 205

3 March 1967

Criminal Law

Criminal Law—Murder—Killing during armed robbery—Reflex action causing weapon to discharge—Voluntary act—Accident—"Act" of accused—Relevant state of mind—Wounding—No intent to wound—Crimes Act 1900 (N.S.W.), ss. 18 (1), 98.

Decisions

1967, March 3.
BARWICK C.J. Robert Patrick Ryan was convicted on 15th September 1964 by a jury at the Central Criminal Court, Sydney, of the murder of Noel Francis Taylor at Carramar, a suburb of Sydney, on 10th March of that year. He was sentenced to life imprisonment according to the statute (Crimes Act 1900-1961 (N.S.W.)). (at p207)

2. He now seeks the special leave of this Court to appeal against the dismissal by the Court of Criminal Appeal of his appeal against his conviction and sentence. His complaint is as to certain aspects of the summing up of the learned trial judge. (at p207)

3. The basic facts, with one notable exception, do not appear to have been in dispute at the trial. The applicant at the time of the occurrence giving rise to this charge against him was twenty years of age. His father was a merchant seaman and had gone to some trouble and expense to educate his son at a private school, hoping he would take up veterinary science as a profession. But, though initially attracted by that subject, the lad decided upon the trade of a plumber to which he was duly apprenticed. By March 1964 he was almost out of his time. He appears to have been a steady lad, not given to keeping bad company and attached and attentive to his home and to his parents. Indeed, it was this attachment and a sense of obligation to his father and mother which is claimed to have been the mainspring of the conduct which brought him to the dock. For the applicant, as he said, by a chance purchase, came into possession of a novel in which the hero, feeling obliged to his parents, decided to rob a service station to obtain the wherewithal to "invest" in the Irish sweepstake. Armed with a gun, he did so, tying up the garage attendant's hands behind his back after having obtained his money and before decamping with it. His subsequent "investment" of that money was successful. He repaid the owner of the service station handsomely and gave the balance of his winnings to his parents. This story, it is claimed, fanciful though it might be, worked on the mind of the applicant, who was sufficiently susceptible to its influence to decide to emulate its hero. His father had given him a single shot .22 rifle when he was about fourteen and as far as appears he had up to the critical time been responsible in its use. But, as he claims, under the influence of this novel, he sawed off a great length of barrel and shortened its butt. He carved on the remaining butt the name of the hero of the novel. (at p207)

4. What span of time these events covered does not appear, nor does the evidence disclose the interval which elapsed between the reduction in size of the rifle and the night of 10th March 1964. But clearly some time elapsed, because the applicant had taken the precaution of planting the sawn-off rifle under a dog kennel in the back yard of his home lest his father should observe the absence of the rifle and inquire its whereabouts. He was to be told that it had been lent to a friend. (at p208)

5. On the night in question the applicant enlisted the aid of a young man named White to whom he confided his intentions and upon the applicant's motor cycle the two journeyed at about 11 p.m. a relatively short distance from the applicant's home to a service station at Carramar where the deceased Taylor was in sole attendance. The applicant left his friend in charge of the cycle at the kerbside with the engine running and entered the service station. He was carrying the sawn-off rifle in his hand cocked and loaded, without the safety catch on. He had in his pocket a length of cord which he had brought to enable him to tie up the service station attendant. He presented the gun at the deceased and demanded money. The deceased took a sum of money out of a till drawer and laid it on the counter in front of the applicant who took and pocketed it. The applicant then told the deceased to turn round and place his hands behind his back as he intended to tie him up. The deceased did as bidden and the applicant approached him apparently still pointing the gun in some fashion towards the back of the deceased, at the same time reaching with his other hand into his pocket for the piece of cord. At this instant the deceased dropped his hands, "crouched down" and swung round. The applicant says he was "surprised and stepped back" whereupon "the gun discharged". The bullet entered the back of the neck about the hairline of the deceased, who was killed instantly. (at p208)

6. This account I have taken from the applicant's statement in court, not made on oath. Except for an undoubtedly voluntary statement to the like general effect which he made to the arresting police officers, we have no other account of the events of the evening: nor is there any other material except the admitted behaviour of the applicant on which any other account could be based. But the applicant's presence at the scene was independently proved. The one objective fact in contest, it seems to me, was as to the circumstances in which the gun was discharged. (at p208)

7. There can be no doubt that the applicant at the critical time - and indeed probably throughout his exploit - had his finger on the trigger of the loaded gun, cocked without the precaution of a safety catch. Also, there is no room to conclude that the gun discharged without actual pressure from the applicant's finger. While the trigger was slightly, but only slightly, "light", that pressure was necessarily substantial. It was clear from the applicant's account that in his sudden movement the deceased did not bump the applicant or the gun and that the gun did not in any wise come into contact with the deceased or with any inanimate object. (at p209)

8. The police officers, having obtained from the applicant this account of the night's occurrence, with proper fairness conducted a number of experiments with the applicant's gun in which different officers played the part of the applicant presenting the cocked but unloaded gun at the back of an officer who made movements of the kind made by the deceased according to the applicant's account. On each occasion the officer holding the gun, not intending or "willing" to do so, pressed the trigger in what can only be described as a reflex or convulsive movement. These experiments do little more than provide material which might assist a jury to give credence to the applicant's explanation of the event. But even so they do ensure, I think, that a jury could not dismiss that account as incredible. On the contrary, in my opinion, the jury were entitled, if they so chose, to accept it. (at p209)

9. There were therefore, in my opinion, at least four possible and distinctly different views of the discharge of the gun which, upon all the material before them, could be taken by the jury. First, the applicant's explanation could be disbelieved, and it could be concluded that he had fired the gun intentionally - that is to say, both as a voluntary act and with the intention to do the deceased harm. Second, that he fired the gun voluntarily, not intending to do any harm to the deceased but merely to frighten him as a means of self-protection. Third, that being startled, he voluntarily but in a panic, pressed the trigger but with no specific intent either to do the deceased any harm or to frighten him. Fourth, that being startled so as to move slightly off his balance, the trigger was pressed in a reflex or convulsive, unwilled movement of his hand or of its muscles. I shall later refer to these conclusions of fact as the possible views identifying each by number. (at p209)

10. The indictment on which the applicant was arraigned contained a single count charging murder. Though by the statute - s. 23 (2) of the Crimes Act - and, notwithstanding the statute, by the common law, see Brown v. The King (1913) 17 CLR 570 , the jury might return a verdict of manslaughter, the indictment was not, as it could not be, in the alternative so as also to charge manslaughter. (at p209)

11. However, as a result of s. 394A of the Crimes Act inserted by s. 16 of the Crimes (Amendment) Act, 1924, an accused is entitled to plead to an indictment for murder, as well as not guilty to murder, guilty to manslaughter. But, if the Crown refuses to accept the latter plea, the trial is to proceed upon the charge of murder upon which the accused has been arraigned. The section is silent as to the status, if any, in the trial upon the indictment for murder of the plea of guilty to manslaughter. (at p210)

12. In the instant case the applicant and his friend who had accompanied him to Carramar, being jointly arraigned upon an indictment for murder, each pleaded "not guilty to murder but guilty to manslaughter", whereupon the Crown announced publicly that it would accept the plea of guilty to manslaughter made by the applicant's co-accused but that it would not do so in the case of the applicant. The co-accused was then remanded for sentence and the trial proceeded against the applicant. Apparently when the accused was placed in its charge, the jury was informed of his plea of guilty to manslaughter. No question has been raised before the Court as to the propriety of this course. Therefore, although I entertain some doubt on that matter, I shall not express any opinion upon it. However, this circumstance, as might be expected, was later to cause both judge and counsel some embarrassment; for a question arose as to what was the consequence in the trial upon the indictment for murder of the unaccepted plea of guilty to manslaughter. The following exchange took place in the absence of the jury:

"HIS HONOUR: Mr. Knight, what is the effect of that plea in the presence of the jury? I take it it is an admission that the jury can weigh up, no more? CROWN PROSECUTOR: That is all. HIS HONOUR: Mr. Isaacs, do you agree with that proposition? MR. ISAACS: Yes. They can treat it as an admission by him of his guilt of the lesser offence. HIS HONOUR: They can treat it as an admission, not must. MR. ISAACS: They can treat it as an admission by him of the commission of the lesser offence. That is the only way, I suggest, they can treat it. HIS HONOUR: I think that is the proper approach." (at p210)

13. In summing up to the jury, the trial judge said: "You will recollect, when he was indicted, the prisoner pleaded not guilty to murder but pleaded guilty to manslaughter. That does not amount to anything that binds him, but it does amount to evidence of an admission that he is guilty of manslaughter which you can, not must, treat as an admission of guilt of the lesser offence, and you are entitled to weigh it up." (at p211)

14. Counsel for the applicant at the trial, a very experienced advocate used to the intricacies of a criminal trial, fought the case before the jury as being murder or manslaughter. He did not at any stage seek an acquittal. The line of defence was indicated by the trial judge in his summing up as follows: "He (counsel) has told you quite properly and definitely that he raised here no defence of mental illness. What he says is that the Crown case does not establish that degree of malice and intent which has to be found to justify a verdict of murder but he has said that you ought properly, on this evidence, to return a verdict of manslaughter." (at p211)

15. I can well understand this course of advocacy and appreciate the advantage which an accused might well derive from it. But, upon the analysis of the case which I have made in considering the present application, pursuit of that course and the use made and permitted of the plea of guilty to manslaughter have, in my opinion, a critical bearing upon the question whether special leave should be granted. (at p211)

16. I have felt some difficulty in appreciating what precisely was meant in the context of this case by the concession that the plea of guilty to manslaughter was an "admission of guilt of the lesser offence". All the objective facts in the case were admitted; indeed almost all were derived from the applicant's own statements. The ultimate choice between murder or manslaughter could scarcely have been the subject of an admission whose weight was to be considered by a jury. If the plea was to be taken as an admission of fact the only additional fact covered by it as it appears to me was that the gun was voluntarily discharged by the applicant. But, if it was accepted by the jury as such, it almost necessarily, in my opinion, involved the conclusion that the applicant was guilty of murder. He was at the time pointing the cocked and loaded gun, unchecked by a safety catch, at the back of the deceased whilst he, the applicant, was attempting with one hand to withdraw the piece of cord from his pocket. The jury could scarce have failed to conclude that that was an act obviously dangerous to life, within the meaning of s. 18 (1) of the Crimes Act. The voluntary discharge of the gun was then his act and unquestionably caused the death of the deceased. In my opinion, there would in that case have been no room for a verdict of manslaughter based on s. 23 (2) of the Crimes Act, though, of course, the jury's privilege to return such a verdict in any event would remain. But the admission could not relate to the exercise of that capability. (at p212)

17. The applicant described the killing as an "accident"; and, judging by the terms of the summing up, his counsel so described it to the jury. But such a description is most ambiguous. It could be thought to cover the last three of the views of the material before the jury which I have earlier set out as in my opinion possible. It could certainly embrace the last two of them. If intended to refer to any but the fourth of these views it would, in my opinion, be consistent with an admission, taken from the plea of guilty to manslaughter, that the gun was voluntarily discharged. Also, if it was not intended to refer to the fourth of the possible views of the evidence, the significance of the police "experiments" was merely as to the existence or absence of a specific intent in firing the gun. But it was at least capable of referring only to that fourth view; and if accepted as so intended, it was inconsistent, in my opinion, with an admission that the gun was voluntarily discharged. It appears to me, again judging by the terms of the summing up, that the applicant's counsel consistently with his conduct of the defence must have placed the word "accident" before the jury in a sense covering the third of the possible views I have mentioned and not the fourth: and I think the trial judge intended to do the same by his use of the expression "by accident". Also, I think counsel intended by what he said as to the use to be made of the plea of guilty to manslaughter to commit the applicant to a defence founded on an implicit concession that the gun was voluntarily discharged. (at p212)

18. Murder is defined by statute in New South Wales and, before turning to the summing up, it is convenient to refer to s. 18 of the Crimes Act which provides:

"18. (1) (a) Murder shall be taken to have been committed where the act of the accused, or thing by him omitted to be done, causing the death charged, was done or omitted with reckless indifference to human life, or with intent to kill or inflict grievous bodily harm upon some person, or done in an attempt to commit, or during or immediately after the commission, by the accused, or some accomplice with him, of an act obviously dangerous to life, or of a crime punishable by death or penal servitude for life. (b) Every other punishable homicide shall be taken to be manslaughter. (2) (a) No act or omission which was not malicious, or for which the accused had lawful cause or excuse, shall be within this section. (b) No punishment or forfeiture shall be incurred by any person who kills another by misfortune only, or in his own defence." (at p213)

19. There is in s. 5 of the Crimes Act a definition of malice, but I respectfully agree with Fullagar J. that in relation to such a case as this, it is no more than "a question-begging definition": see Mraz v. The Queen (1955) 93 CLR 493, at p 510 . I think it has no significance in the present matter, except in connexion with the construction of s. 98, a matter to which I will later refer. (at p213)

20. The most important aspect of the definition in s. 18 for present purposes, in my opinion, is its opening words - "Murder shall be taken to be committed where the act of the accused . . . causing the death charged." That a crime cannot be committed except by an act or omission of or by the accused is axiomatic. It is basic, in my opinion, that the "act" of the accused, of which one or more of the various elements of the crime of murder as defined must be predicated must be a "willed", a voluntary act which has caused the death charged. It is the act which must be willed, though its consequences may not be intended. In the ordinary run of cases the voluntary quality of the deed physically related to the accused is not in question. The presumption to which their Lordships refer in Bratty v. Attorney-General for Northern Ireland (1963) AC 386 operates sub silentio. Mostly the contest will concentrate upon the question of the intent with which the accused acted. Consequently, there has not been any frequent need to express with technically expressed precision the difference between that element of mens rea which relates the will to act to the deed in question and that element which relates to it the general intent with which that will was exercised. Often, when absence of the requisite intent as distinct from the will to act is sought to be stressed, there is said to be an "accident", or that the physical act which the evidence relates to the accused was "accidental". But, as I have pointed out, such language is ambiguous for it may equally cover an unwilled act and is often so used. Cf. Woolmington v. Director of Public Prosecutions (1935) AC 462, at p 472 . In that case, (1935) AC, at p 482 the description "unintentional" appears to be used to cover an act which was involuntary or unwilled, descriptions of it which for my part I would prefer. However, by whatever adjective or adjectival phrase it is described, the deed which was not the result of the accused's will to act cannot, in my opinion, be made the source of criminal responsibility in him. (at p213)

21. I have carefully searched and read the reported cases and the little that has been written by commentators on this aspect of responsibility for crime. But in the end it seems to me that reference need only be made to two decisions of the House of Lords: first, Woolmington v. Director of Public Prosecutions (1935) AC 462 and, second, Bratty v. Attorney-General for Northern Ireland (1963) AC 386 . Brief quotation of familiar passages is I think in order: "No matter what the charge or where the trial, the principle that the prosecution must prove the guilt of the prisoner is part of the common law of England and no attempt to whittle it down can be entertained. When dealing with a murder case the Crown must prove (a) death as the result of a voluntary act of the accused and (b) malice of the accused. It may prove malice either expressly or by implication. For malice may be implied where death occurs as the result of a voluntary act of the accused which is (i) intentional and (ii) unprovoked. When evidence of death and malice has been given (this is a question for the jury) the accused is entitled to show, by evidence or by examination of the circumstances adduced by the Crown that the act on his part which caused death was either unintentional or provoked. If the jury are either satisfied with his explanation or, upon a review of all the evidence, are left in reasonable doubt whether, even if his explanation be not accepted, the act was unintentional or provoked, the prisoner is entitled to be acquitted" per Viscount Sankey L.C. (1935) AC, at pp 481, 482 . (at p214)

22. Before taking any passages from the report of the second of these cases, I should like to make some observations upon it. The involuntary quality which was claimed for the deed in that case was said to be due to psychomotor epilepsy and was described as automatism. But it is important, I think, in citing from their Lordships' judgments not to regard this description as of the essence of the discussion, however convenient an expression automatism may be to comprehend involuntary deed where the lack of concomitant or controlling will to act is due to diverse causes. It is that lack which is the relevant determinant. Lord Denning (1963) AC, at pp 409, 410 indicates some of the various states of mind or of memory which need to be distinguished from this lack of accompanying or controlling will. It is of course the absence of the will to act or, perhaps, more precisely of its exercise rather than lack of knowledge or consciousness which, in my respectful opinion, decides criminal liability. It is quite clear that his Lordship's emphasis in his speech in Bratty v. Attorney-General for Northern Ireland (1963) AC 386 is really upon the lack of the exercise of will, for he includes amongst the deeds which automatism may cover, a deed the result of a spasm, of a reflex action or of a convulsion. And with this treatment of the matter I would respectfully agree. (at p215)

23. I would then observe that a distinction must be maintained between an unwilled act and a willed act the product of a diseased mind which knows not the nature or quality of the willed act. To express it with what may well be technical inexactitude, it may be said that in the latter case the act is willed by a diseased will in contradistinction to the act which is not willed at all. That to my mind is the core of Bratty v. Attorney-General for Northern Ireland (1963) AC 386 , and the essence of the distinction between the case of a sane and an insane accused. Whether or not the distinction was fully maintained in that case in applying its basic principles to its particular facts need not be presently considered, for in the instant case no question of any condition of the applicant's body or mind as the cause of the lack of the will to act is raised. Nor is there any need to discuss the validity of Lord Denning's reasons for separating lack of will due to a disease from other acts involuntary for other causes. With these observations in mind, I would take the following passages from Bratty v. AttorneyGeneral for Northern Ireland (1963) AC 386 . The first I take from the Lord Chancellor's speech: "Nevertheless, one must not lose sight of the over-riding principle, laid down by this House in Woolmington's Case (1935) AC 462 , that it is for the prosecution to prove every element of the offence charged. One of these elements is the accused's state of mind; normally the presumption of mental capacity is sufficient to prove that he acted consciously and voluntarily, and the prosecution need go no further. But if, after considering evidence properly left to them by the judge, the jury are left in real doubt whether or not the accused acted in a state of automatism, it seems to me that on principle they should acquit because the necessary mens rea - if indeed the actus reus - has not been proved beyond reasonable doubt." (1963) AC, at p 407 The second quotation is from the speech of Lord Denning: "What, then, is a proper foundation? The presumption of mental capacity of which I have spoken is a provisional presumption only. It does not put the legal burden on the defence in the same way as the presumption of sanity does. It leaves the legal burden on the prosecution, but nevertheless, until it is displaced, it enables the prosecution to discharge the ultimate burden of proving that the act was voluntary. Not because the presumption is evidence itself, but because it takes the place of evidence. In order to displace the presumption of mental capacity, the defence must give sufficient evidence from which it may reasonably be inferred that the act was involuntary." (1963) AC, at p 413 And having stressed the need for a proper evidentiary foundation before it becomes necessary to consider as a specific issue whether or not the act was voluntary, and having emphasized the caution with which such a case must be approached, expressions with which I would respectfully agree, his Lordship concluded: "Once a proper foundation is thus laid for automatism, the matter becomes at large and must be left to the jury. As the case proceeds, the evidence may weigh first to one side and then to the other: and so the burden may appear to shift to and fro. But at the end of the day the legal burden comes into play and requires that the jury should be satisfied beyond reasonable doubt that the act was a voluntary act." (1963) AC, at p 414 (at p216)

24. Lord Morris, in his speech, said of the reliance of the accused upon a defence of automatism: "This raises the question whether a person who by legal tests and standards is sane and who is charged with a criminal offence could be held to be non-accountable for his actions so as to be not guilty of the offence charged against him on the basis that his actions had been unconscious ones and in that sense involuntary. My Lords, I can conceive that this could be so, though the cases where such a situation could arise must be very rare. Each set of facts must require a careful investigation of its own circumstances but if, by way of taking an illustration, it were considered possible for a person to walk in his sleep and to commit a violent act while genuinely unconscious, then such a person would not be criminally liable for that act. Apart altogether from any question whether some particular criminal charge requires proof of some particular intent, in the possible case that I have postulated there would be immunity from any conviction for the reason that the act in question could not really be considered to be the act of the person concerned at all." (1963) AC, at p 415 (at p216)

25. In my opinion, the authorities establish, and it is consonant with principle, that an accused is not guilty of a crime if the deed which would constitute it was not done in exercise of his will to act. The lack of that exercise which precludes culpability is not, in my opinion, limited to occasions when the will is overborne by that of another, or by physical force, or the capacity to exercise it is withdrawn by some condition of the body or of the mind of the accused. An occasion such as the fourth view of the evidence in the instant case (ante) would, in my opinion, be an instance of a deed not the result of a culpable exercise of the will to act. But such an occasion is in sharp contrast to the third view of those facts from which it needs carefully to be distinguished. If voluntariness is not conceded and the material to be submitted to the jury wheresoever derived provides a substantial basis for doubting whether the deed in question was a voluntary or willed act of the accused, the jury's attention must be specifically drawn to the necessity of deciding beyond all reasonable doubt that the deed charged as a crime was the voluntary or willed act of the accused. If it was not then for that reason, there being no defence of insanity, the accused must be acquitted. No doubt care will be taken by the presiding judge that the available material warrants the raising of this specific issue. In doing so, he will of course have in mind that the question for him is whether upon that material a jury would be entitled to entertain a reasonable doubt as to the voluntary quality of the act attributed to the accused. Also, the presiding judge where the circumstances of the case are like those of the instant case will explain the difference between the third and fourth views (ante) so that the jury are given to understand the precise question to which they have relevantly to address themselves. Although a claim of involuntariness is no doubt easily raised, and may involve nice distinctions, the accused, if the material adduced warrants that course, is entitled to have the issue properly put to the jury. (at p217)

26. In outlining the facts of this case, I have indicated that the material provided by the statement made by the accused by virtue of the right given him by s. 496 of the Crimes Act, and the evidence of the police officers would have been sufficient to call for consideration whether the act causing death, if it was the discharge of the gun, was the act of the applicant and to entitle the jury at least to remain in doubt whether that discharge was willed by the applicant and voluntary. (at p217)

27. I have said that these consequences followed, if the jury thought the discharge of the gun was the cause of death. That means that it would have been necessary, in my opinion, for the jury to have determined to their satisfaction what was the act which caused the death charged. Ordinarily, the identification of the act causing death gives no difficulty, a circumstance which may tend to obscure the logical and practical necessity to isolate that act, for it is of it, and it alone, that one or more of the several specified conditions or concomitants must be predicated if the terms of s. 18 are to be satisfied. (at p218)

28. Whilst, of course, all the happenings of the evening antecedent to the discharge of the gun might be regarded for the purpose of deciding whether some act of the applicant which caused the death of the deceased qualified under one or more of the conditions of culpability for murder which are set out in s. 18, they could not, in my opinion, be regarded in the aggregate as the act of the accused causing death. Such a course, in my opinion, not merely lacks the requisite precision but fails to provide a subject of which one or more of the said conditions or concomitants could be predicated. The earliest act of the applicant which, in my opinion, could have been selected by the jury as the act causing death was the presentation of the gun towards the back of the deceased after, at the applicant's bidding, he had turned around to enable his hands to be tied behind him. Thus at the most, the jury could choose the presentation of the gun in the circumstances or its subsequent discharge as the act causing death. For my part, I would think the latter might well have been the obvious choice when the difficulties which would arise in connexion with the former, if the jury accepted the fourth view of the facts to which I earlier referred, are considered. (at p218)

29. For if the presentation of the gun which subsequently discharged without the willed act of the applicant is to be chosen, a question of causation is involved. That presentation in the setting of its circumstances must cause the death. It seems to me that it could only be held to do so if the unwilled discharge of the gun ought to have been in the contemplation of the applicant at the time. There was, in my opinion, evidence on which the jury could have come to that conclusion. As I have emphasized, the safety catch was not applied: the applicant had his finger on the trigger: he was engaged in withdrawing the cord from his pocket, itself an activity limiting the applicant's freedom of movement and reducing his concentration in the handling of the weapon: and, although the deceased had been pliant whilst faced with the gun, he could not be counted on to remain so, particularly when he knew from the applicant's own words that he, the applicant, was about to do something which in the ordinary course would involve the use of both his hands and so remove or greatly reduce the threat of the gun. But the choice of the act causing death is not for the presiding judge or for the Court of Criminal Appeal: it is essentially a matter for the jury under proper direction. (at p218)

30. In my opinion, therefore, leaving for separate treatment the question of "felony murder", the situation in this case at the close of the evidence, apart from the limiting effect of the applicant's line of defence, was that the jury could decide that the act causing death was the discharge of the gun and that it was discharged voluntarily by the applicant with intent to kill the deceased or to inflict grievous bodily harm upon him, or that it was done during the commission of an act obviously dangerous to human life. Those findings would warrant a verdict of guilty of murder. Or the jury might decide that the act causing death was the discharge of the gun but that it was not the voluntary act of the accused, in which event, in my opinion, quite apart from and not to any extent dependent upon any of the provisions of s. 18 (2) of the Crimes Act but solely because on that view the act causing death was not the act of the applicant, the verdict should be one of acquittal. (at p219)

31. On the other hand, the jury, having concluded that the discharge of the gun was involuntary could have concluded that the act causing death was the presentation of the cocked, loaded gun with a safety catch unapplied and that its involuntary discharge was a likelihood which ought to have been in the contemplation of the applicant when presenting the gun in the circumstances. In that event, their verdict should have been guilty of murder. Except in point of compassion under the common law, I would see no ground for a verdict of manslaughter, unless perchance the jury thought that the facts I have recited did not rise above an assault by the applicant in circumstances no more than negligent and not to an act obviously dangerous to human life. It is because of that view that I have had the difficulty I have already mentioned in connexion with the use made in this case of the plea of guilty to manslaughter. (at p219)

32. I now turn to the summing up to the jury. I must first observe that no specific attention was paid to the identification of the act causing death. Ordinarily, there would be little need to spend much time on this question. But on occasions, of which the instant case affords an instance, that clearly was not merely the first question to be resolved, but one which required specific and close consideration. The Crown insistence in this case upon "felony murder", where an element of the felony was a wounding by the accused, considerably underscored this necessity. (at p219)

33. The trial judge took the course of explaining to the jury the elements of those conditions which would qualify the act of the accused causing death to be murder. In doing so, he appeared at times to treat the whole conduct of the applicant from the inception of his exploit as the act causing death. As I have already said, in my opinion, this was plainly an error. Generally, it can be said of the summing up that the trial judge took time to traverse the elements of the predicate, according to the terms of s. 18 (1) without at any stage assisting the jury to identify the subject to which the predicate should be related. It goes without saying, in my opinion, that such a summing up would have been radically inadequate if the conduct of the defence had left the questions of voluntary or involuntary discharge of the gun and its relation to the death of the deceased as live issues for the jury. (at p220)

34. But the course of the trial judge's summing up was dictated, I think, by the conduct of the defence and of the use made and permitted of the plea of guilty to manslaughter. Issues as to what was the act causing death, and as to whether or not that act was the willed act of the applicant were not merely not raised, but assumptions were made and allowed to be made which diverted attention away from these questions. I think responsibility for the discharge of the gun was in reality conceded on the part of the applicant. I have already indicated by quotation from the trial judge's summing up the limits within which the defence was confined. The sole question sought to be raised was whether or not the Crown had satisfed the jury beyond reasonable doubt of what was described as "that degree of malice and of intent which has to be found to justify a verdict of murder". The applicant's defence was deliberately framed and of it he has had such advantages as were sought to be gained by it. Also, as I shall later point out, I think that, having regard to the trial judge's summing up as to manslaughter, I should conclude that the jury did not believe the applicant's account as to the discharge of the gun, even if it be treated as supporting no more than the third possible view of the facts (ante). (at p220)

35. Consequently, if the case rested only on the considerations so far discussed, I would have no difficulty in refusing special leave. (at p220)

36. But this case does not rest there. The Crown, as I think quite unnecessarily, pressed against the applicant a case of "felony murder". Whilst for brevity of expression I refer to the case sought to be made as one of felony murder, in truth in New South Wales, what at common law came to be known as felony murder is covered in statutory expression by s. 18 (1) of the Crimes Act in a modified form. In that State the question is merely one of statutory construction and the application of the statute so construed to the facts of the case. (at p220)

37. As I see the present matter, we are not here concerned with the common law doctrine as to felony murder or as to its development. I do not find in the language of s. 18 of the Crimes Act any such ambiguity as might call for an examination of that doctrine or of its history as an aid to interpretation nor do I think that in any case they throw any light upon the meaning of the section. If the act of the accused causing the death charged was done by him before, during or immediately after the commission of a felony punishable under the Crimes Act by penal servitude for life, that act is murder according to the statute. As I have already indicated, the question whether the act was so done in relation to the commission of such a felony calls for no more than the application to the facts of one or more of those sections of the statute properly construed which provide a penalty of penal servitude for life. (at p221)

38. I would notice in passing an argument advanced on behalf of the applicant that as s. 98 was not included in that part of the Crimes Act which deals with offences against the person, the offence it created was not within the purview of s. 18. In my opinion, there is no substance in this submission. What I have said as to this matter being relevantly regulated in New South Wales by statute provides a direct answer to it. (at p221)

39. The felony in the course of or at the conclusion of which the Crown alleged the death charged to have been caused was that for which s. 98 of the Crimes Act provides. It is briefly described in the sidenote to that section as "Robbery with Arms and Wounding". I set out the full text of the section:

"98. Whosoever, being armed with an offensive weapon, or instrument, or being in company with another person so armed, robs, or assaults with intent to rob, any person, and immediately before, or at the time of, or immediately after, such robbery, or assault, wounds, or inflicts grievous bodily harm upon, such person, shall be liable to penal servitude for life." (at p221)

40. The applicant's principal ground of complaint before this Court was as to the trial judge's summing up on this topic, and the question on this aspect of the application turns on the interpretation of that part of s. 98 which says, "Whosoever . . . wounds such person". (at p221)

41. The jury, in my opinion, were entitled upon the evidence to conclude that the applicant being armed with an offensive weapon robbed the deceased, and no question arises as to the adequacy of the summing up in respect to the elements to be considered in arriving at that conclusion. But objection is taken to what the trial judge told the jury as to that part of s. 98 that refers to the wounding of the person robbed. It is necessary for a proper understanding of the points that arise in this connexion to quote verbatim the relevant parts of the summing up:

"The fourth alternative arising under the statute - and this was the one mentioned in the course of argument yesterday - is if the act causing the death charged was done during or immediately after the commission by the accused of an act of crime punishable by death or penal servitude for life. Now, as far as this particular alternative is concerned the question of intent specifically does not come into it because there is a section of the Crimes Act that provides that whosoever, being armed with an offensive weapon, robs, or assaults with intent to rob, any person and immediately before, or at the time of, or immediately after, such robbery, or assault, wounds or inflicts grievous bodily harm shall be liable to penal servitude for life. That involves an examination of these ingredients. Was he armed with an offensive weapon? Whether, when this is loaded without the safety catch, is an offensive weapon is a pure question of fact for you. You have to determine the question whether if a man arms himself with this, puts a bullet in it, closes it, cocks it, does not put the safety catch on, whether he is in fact armed with an offensive weapon. That is a question of fact for you to determine. All I rule as a matter of law is that that is capable of being an offensive weapon. He was armed with it because it is common ground here. Did he rob or assault with intent to rob . . . ? To take money is to rob a person. To present a firearm is an assault, to fire it is an assault, and obviously in this particular case the wounding or the infliction of grievous bodily harm was antecedent to the death. So that, if he falls factually - and you have to determine the facts - within the various ingredients of that section which I have just read to you, then in those circumstances you so find he is guilty of murder under the fourth alternative. "On the other hand Mr. Isaacs has pressed on you that what happened was that he went there not with the intention of killing but merely with the intention of frightening. So far as that particular section is concerned you will have to give due regard to it and ask yourselves whether the various factual elements involved in that section have been made out to your satisfaction beyond reasonable doubt. "It has been pressed on you by Mr. Isaacs that you will find a verdict of manslaughter. To kill a person while doing an unlawful act even if one kills him by inadvertence or by accident, is manslaughter. To present a loaded firearm, point a loaded rifle at the back of a person and if it goes off by accident when you have the loaded firearm at the back of the other person, is manslaughter. Mr. Isaacs has pressed on you that the whole of the evidence here will lead you to that conclusion." (at p222)

42. It is to my mind quite clear from discussion with counsel which took place during the taking of evidence and after the summing up, that the trial judge intended to tell the jury that murder by reason of a combination of ss. 18 and 98 could be made out without the accused having had any intent to wound the deceased. Also, I am of the opinion that what the trial judge said did convey to the jury that they did not need to find any intent to wound. Three questions then remain: was this a misdirection and, if it was, was it cured by the subsequent passage in the summing up relating to manslaughter which I have already quoted; and lastly, if it was not so cured, is the case one for special leave to appeal. (at p223)

43. I turn first to the construction of s. 98. There can be no doubt, in my opinion, that the wounding must be by the voluntary act of the accused: "whosoever wounds" is not satisfied by the mere fact that before, during or immediately after a robbery with arms the victim is in fact wounded. But will any act of the accused which causes the wounding suffice, or must there be a specific intent on the part of the accused by that act to wound the victim of the robbery. It is at the outset noticeable that the word "maliciously", found in s. 32, is absent from s. 98. I would take this omission to be deliberate and significant. In s. 32 nothing but the presence of that word would introduce the elements recited in the definition of malice in s. 5. In the case of s. 98, the earlier acts of robbery with arms introduces the element of unlawfulness, and makes unnecessary the use of the word "maliciously" merely to confine the wounding to some occasion of criminal behaviour. I do not think that s. 98 should be construed as if the word "maliciously" were inserted before the word "wounds". (at p223)

44. Further, s. 98 bears somewhat the same relation to s. 97 as s. 96 bears to s. 95. In each bracket, it is the wounding that enlarges the punishment from penal servitude for fourteen years to penal servitude for life. I think it is instructive to observe that in the case of s. 96 it is the wounding thereby, i.e., by the commission of the crime under s. 95 which constitutes the aggravated offence. That crime may be committed by a robbing preceded, accompanied or followed by a striking of a person or the use of violence to a person, in either case not necessarily the victim of the robbery. Clearly, it is the element of striking or use of violence by which the wounding will most likely be effected so as to satisfy s. 96. But according to the precise language of s. 96 the person wounded need not be the same person as the person struck or towards whom violence was used, who in turn, as I have observed, need not be the person robbed. It seems to me that under s. 96 whilst the striking or the use of violence must be voluntary, there need be no intention to wound and particularly no intention to wound the person who is in fact wounded. It seems to me that an accused may be guilty of the offence under s. 96, when he has robbed A, struck B and wounded C by the blow which he aimed at B, having towards C no intent even of the most general kind. Therefore, "whosoever . . . wounds" in s. 96 does not, in my opinion, import any intention to wound. But whilst there need be no intent to wound, the wounding must be by the accused. Therefore, the striking or the use of violence must be of such a nature or with such a weapon or implement as to be capable of wounding some person. But this does not mean that it must be found that the accused ought to have realized that his act would wound. (at p224)

45. Section 97 does not contain the element of striking or the use of violence but it does require the carrying of an offensive weapon or instrument. Section 98 requires the wounding to be of the victim of the robbery and not merely of any person. It is by the use of the offensive weapon or instrument that the wounding would ordinarily be effected: and, it seems to me, the section contemplates this. Though there are the differences between ss. 96 and 98 which I have mentioned, the sections are so comparable that I think that the construction of the one greatly assists the construction of the other. Thus, apart from the absence of the word "maliciously" before the word "wounds" in s. 98, I am of opinion that a voluntary use of an offensive weapon which wounds the victim of the robbery is sufficient to satisfy the terms of the section without any intent by that use to wound him. (at p224)

46. In the instant case, in my opinion, no difficulty in fact occurs once it is conceded or decided that the discharge of the gun was voluntary. Its use clearly was capable of wounding. (at p224)

47. The passages which I have quoted from the summing up may have lacked clarity but I do not think the trial judge conveyed to the jury the impression that the applicant could be found guilty of murder by reason of s. 98 if the deceased was in fact wounded though not by the voluntary act of the applicant. What he said to the jury must be understood and I think would have been understood against the background of the implicit concession to which I have already referred that the discharge of the gun was by the voluntary act of the applicant. I am of opinion that the summing up conveyed no more to the jury than that no specific intent to wound the deceased was necessary in order to commit the offence under s. 98. In so instructing the jury the trial judge, in my opinion, was not in error. (at p224)

48. The direction that if the death was by accident a verdict of manslaughter was appropriate was not, in my opinion, addressed to the same matter as the direction as to the elements of the offence created by s. 98. It does not appear to me to have been intended to override the latter direction. The jury were told in substance and, in my opinion, somewhat too favourably to the accused, that if the death was accidental, in the sense of unintended, or the result of an unintended as distinct from an involuntary act, they might return a verdict of manslaughter. This, in my opinion, was in line with and not in contradiction of a direction that no specific intent to wound was necessary for the purposes of s. 98. Consequently, if a specific intent to wound was required by s. 98 and the earlier direction in consequence erroneous, the instruction as to manslaughter did not correct it: rather, in my opinion, if anything it confirmed it. (at p225)

49. But even in that case, I would not grant special leave because, in my opinion, having been given this direction as to manslaughter, the jury consistently with it, could only have returned a verdict of murder if they disbelieved the applicant's story. As I have pointed out, the reference to accident, or accidental, by counsel and judge was not a reference to involuntariness but to lack of intention to achieve by the discharge what was done by it. They could not have believed that the discharge of the gun, though voluntary, was merely done in panic and without any intent on the part of the accused. (at p225)

50. Before parting with the matter, I would like to make some observation as to the relationship of ss. 18 and 98 and to the difficulty said to be involved in the case because the death was instantaneous. I have come to accept the view that there may be a wounding followed by death, though the death be instant upon the entry of the bullet into the body. The fraction of time elapsing between the breaking of the skin and death, though immeasurable, is significant. But, even so, there is the problem of accommodating the two sections. Section 18 relevantly requires an act causing death to precede, accompany, or follow immediately upon the commission of an offence under s. 98. That offence is complete only when the victim of the robbery is wounded. Therefore, whether in the instant case the presentation of the gun after the robbery or its discharge is regarded as the act causing death, the offence under s. 98 could not at the time that act was done have been complete. The case could not therefore be made out as one of an act causing death done immediately after the commission of the offence under s. 98. Was it done during the commission of that offence? Can it properly be said that either the presentation of the gun or its discharge was done during the commission of the robbery and wounding? Upon the facts the robbery with arms was complete before either the presentation or the discharge of the gun so that the only part of the offence under s. 98 during which either of these acts could have been done was the wounding. But was the gun presented or discharged during the wounding? It seems to me that it was not. (at p226)

51. However, it could properly be said, in my opinion, that the presentation or the discharge of the gun was done before the commission of the offence of robbery with arms and wounding. Or it might possibly be said, because of the compound nature of the offence under s. 98, that either of these acts was done during the commission of the entire offence of robbery with arms and wounding. Although to my mind somewhat artificial, either of these two views, the former of which I would personally prefer, would support a conviction of murder in this case, given the voluntary nature of the discharge of the gun. (at p226)

52. I have already pointed out that the question upon this aspect of this case does not in any wise turn upon the common law conceptions of felony murder, but rather upon the construction and application of the New South Wales statute. Consequently, I find no need to discuss in any detail the decision of the Court of Criminal Appeal in R. v. Jarmain (1946) 1 KB 74 . That case, in my opinion, with due respect to those who might think otherwise, has no value, either in point of precedent or in point of persuasion in connexion with the relevant question of statutory interpretation and its application to the instant facts. But I may observe two things about it. First, the description of the pressing of the trigger in that case as "inadvertent", in my opinion, was ambiguous. It could describe a view of the incident akin to either the third or the fourth possible views of the material in this case (ante). If it comprehended only the third, then the result of the case can, in my respectful opinion, be accepted as consistent with the principles of the common law. But if it was intended to refer to the fourth of those views, again in my respectful opinion, it could not. Secondly, if the word "inadvertently" is used in the passage of the judgment at the bottom of p. 80 of the report in the sense of involuntary, with the utmost respect, I could not accept what is there said as a correct general statement of the common law. But as I have said, whether or not I am correct in these views of that case, in my opinion, it does not bear upon the resolution of the present matter. (at p227)

53. Therefore, because of the narrow limits within which the applicant confined his defence, because I do not think the trial judge misdirected the jury as to the elements of s. 98 and because, in any case, having regard to the terms of the summing up as to manslaughter and their verdict, the jury could not have believed the applicant's version of the events of the evening, I would refuse special leave. (at p227)

TAYLOR AND OWEN JJ. The applicant was convicted of the murder of a man named Taylor. He appealed without success to the Court of Criminal Appeal and now seeks special leave to appeal to this Court. (at p227)

2. The facts are that the applicant, armed with a cut-down rifle, set out one night with a companion to rob a service station. They rode to the station on a motor cycle which he owned and, according to the account which he gave to the police on the following day, the events which then occurred were these: He left his companion outside the station sitting on the cycle with its engine running, loaded and cocked the rifle, leaving off the safety catch, and went into the building where he found Taylor who was employed there. He pointed the rifle at Taylor and demanded money. Taylor took some money - about 36 pounds - from the till and put it on the counter. The applicant told him to turn round and put his hands behind his back so that he might tie him up. Taylor did as he was told and the applicant took a piece of cord from his pocket with one hand, holding the rifle still pointing at Taylor with the other hand. As he began to tie Taylor's hands, the latter made a sudden movement. "The gun went off", the bullet struck the back of Taylor's head and killed him. The applicant seized the money from the counter and fled. He said that he thought that he had his finger on the trigger when the rifle was discharged and this must have been the fact. In a statement from the dock made at the trial he repeated the substance of what he had earlier told the police and added, "I did not mean to kill him; it was an accident". (at p227)

3. On his indictment for murder, the applicant who was defended by very experienced senior counsel pleaded not guilty but offered a plea of guilty of manslaughter which the Crown refused to accept and the trial on the indictment for murder proceeded. It is plain that the only issue fought was whether there should be a conviction for murder or for the lesser offence of manslaughter. Counsel for the defence, in reliance upon his client's statement that the firing of the shot was accidental, urged upon the jury that they should return a verdict of guilty of manslaughter and no suggestion was made at any stage that a verdict of acquittal of both offences should be returned. (at p228)

4. In the course of his charge to the jury the learned trial judge told them of the definition of "murder" in s. 18 (1) (a) of the Crimes Act, which is as follows: "Murder shall be taken to have been committed where the act of the accused, or thing by him omitted to be done, causing the death charged, was done or omitted with reckless indifference to human life, or with intent to kill or inflict grievous bodily harm upon some person, or done in an attempt to commit, or during or immediately after the commission, by the accused . . . of an act obviously dangerous to life, or of a crime punishable by death or penal servitude for life." He said that each of these alternatives arose for consideration and no objection to this was taken. In dealing with that part of s. 18 (1) (a) which defines "murder" as having been committed where the act of the accused causing the death charged was done during or immediately after the commission by the accused of a crime punishable by death or penal servitude for life, his Honour read to the jury s. 98 of the Crimes Act, which provides that - "Whosoever, being armed with an offensive weapon, . . . robs, or assaults with intent to rob, any person, and immediately before, or at the time of, or immediately after, such robbery, or assault, wounds, or inflicts grievous bodily harm upon, such person, shall be liable to penal servitude for life" and went on to say that, so far as this alternative was concerned, "the question of intent specifically does not come into it". From what occurred later after the jury had retired to consider their verdict, it seems that his Honour intended to convey that s. 98 did not require the existence of an intent to wound or inflict grievous bodily harm. Whether or not this was his intention, it is plain that the jury may have taken that to be the meaning of what was said. After the jury had retired, counsel for the applicant took an objection to that part of the charge. He submitted that an intent to wound or inflict grievous bodily harm was an essential ingredient of s. 98 and that an accidental wounding during or immediately after the commission of an armed robbery would not be within the section. His Honour disagreed with this contention and refused to give any further direction on the point. Some other objections to the summing up were made by counsel for the defence but they were of a minor character in no way capable of justifying the intervention of this Court and need not be mentioned. (at p228)

5. In the Court of Criminal Appeal, Clancy A.C.J. thought it unnecessary to decide whether an intent to wound in the course of committing an armed robbery was a necessary element of the offence created by s. 98. He took this view because in his charge to the jury the learned trial judge, after discussing the application of s. 98 to the case, had said: "On the other hand Mr. Isaacs has pressed on you that what happened was that he went there not with the intention of killing but merely with the intention of frightening. So far as that particular section is concerned you will have to give due regard to it and ask yourselves whether the various factual elements involved in that section have been made out to your satisfaction beyond reasonable doubt. It has been pressed on you by Mr. Isaacs that you will find a verdict of manslaughter. To kill a person while doing an unlawful act even if one kills him by inadvertence or by accident, is manslaughter. To present a loaded firearm, point a loaded rifle at the back of a person and if it goes off by accident when you have the loaded firearm at the back of the other person, is manslaughter. Mr. Isaacs has pressed on you that the whole of the evidence here will lead you to that conclusion." This, Clancy A.C.J. considered, really amounted to a direction such as was later sought by counsel for the defence and for that reason he was of opinion that the appeal should be dismissed. Brereton J. expressed some doubt whether an offence against s. 98 where the wounding has resulted in death can be regarded as "a crime punishable by penal servitude for life" for the purposes of s. 18 (1) (a). But whether that was so or not, his Honour was of opinion that the passages which I have quoted above from the charge to the jury had cured whatever earlier defects there may have been. With all respect, we have found it difficult to follow this conclusion and we think that if s. 98 could not have been relied upon in support of the indictment, the summing up was seriously defective. We assume, however, that his Honour considered that, having regard to the course which the trial had taken, the vital issue of fact left to the jury was whether or not the rifle had been accidentally discharged and that, having been told that if the discharge was accidental there should be an acquittal on the charge of murder and a finding that the applicant was guilty of manslaughter, there had been no miscarriage of justice. The other member of the Court, Manning J., was of opinion that, on the assumption that s. 98 was relevant to be considered, it was unnecessary to prove that the applicant had "a guilty intention deliberately and consciously to pull the trigger and thus cause wounding". (at p229)

19. The conduct which caused the death was of course a complex of acts all done by the applicant - loading the rifle, cocking it, presenting it, pressing the trigger. But it was the final act, pressing the trigger of the loaded and levelled rifle, which made the conduct lethal. When this was said to be a reflex action, the word "reflex" was not used strictly in the sense it ordinarily has in neurology as denoting a specific muscular reaction to a particular stimulus of a physical character. The phrase was, as I understood the argument, used to denote rather the probable but unpredictable reaction of a man when startled. He starts. In doing so he may drop something which he is holding, or grasp it more firmly. Doctor Johnson in his Dictionary - and his definition has been in substance repeated by others - said that "to start" means "to feel a sudden and involuntary twitch or motion of the animal frame on the apprehension of danger". The Oxford Dictionary speaks of a start as "a sudden involuntary movement of the body occasioned by surpise, terror, joy or grief . . . ". But assume that the applicant's act was involuntary, in the sense in which the lexicographers use the word, would that, as a matter of law, absolve him from criminal responsibility for its consequences? I do not think so. I do not think that, for present purposes, such an act bears any true analogy to one done under duress, which, although done by an exercise of the will, is said to be involuntary because it was compelled. Neither does it, I think, bear any true analogy to an act done in convulsions or an epileptic seizure, which is said to be involuntary because by no exercise of the will could the actor refrain from doing it. Neither does it, I think, bear any true analogy to an act done by a sleep-walker or a person for some other reason rendered unconscious whose action is said to be involuntary because he knew not what he was doing. (at p245)

20. Such phrases as "reflex action" and "automatic reaction" can, if used imprecisely and unscientifically, be, like "blackout", mere excuses. They seem to me to have no real application to the case of a fully conscious man who has put himself in a situation in which he has his finger on the trigger of a loaded rifle levelled at another man. If he then presses the trigger in immediate response to a sudden threat or apprehension of danger, as is said to have occurred in this case, his doing so is, it seems to me, a consequence probable and foreseeable of a conscious apprehension of danger, and in that sense a voluntary act. The latent time is no doubt barely appreciable, and what was done might not have been done had the actor had time to think. But is an act to be called involuntary merely because the mind worked quickly and impulsively? I have misgivings in using any language descriptive of psychological processes and phenomena, especially as I doubt whether all those skilled in this field employ their descriptive terms uniformly. Guided however by what has been said in other cases and by writers on criminal law whose works I have read, and especially by the judgments in the House of Lords in Bratty v. Attorney-General for Northern Ireland (1963) AC 386 , I have come to the conclusion that if the applicant, being conscious of the situation in which he had put himself, pressed the trigger as a result, however spontaneous, of the man whom he was threatening making some sudden movement, it could not be said that his action was involuntary so as to make the homicide guiltless. The act which caused the death was, it seems to me, using the language of s. 18 of the statute, an act of the accused. The question for the jury was whether it was an act done by him in such a way as to make the resulting homicide murder. This was the issue submitted to the jury. The application for special leave to appeal must I consider be refused. (at p246)

Orders

Application for special leave dismissed.