Standish v The Queen
[1991] TASSC 83
•4 September 1991
Serial No 68/1991
List "A"
COURT: SUPREME COURT OF TASMANIA (COURT OF CRIMINAL APPEAL)
CITATION: Standish v R [1991] TASSC 83; A68/1991
PARTIES: STANDISH, James Edward Cobden
v
R
FILE NO/S: CCA 19/1991
DELIVERED ON: 4 September 1991
DELIVERED AT: Hobart
JUDGMENT OF: Wright, Zeeman and Slicer JJ
Judgment Number: A68/1991
Number of paragraphs: 75
Serial No 68/1991
List "A"
File No CCA 19/1991
JAMES EDWARD COBDEN STANDISH v THE QUEEN
REASONS FOR JUDGMENT COURT OF CRIMINAL APPEAL
WRIGHT J
ZEEMAN J
SLICER J
4 September 1991
Order of the Court
Appeal against conviction dismissed.
Serial No 68/1991
List "A"
File No CCA 19/1991
JAMES EDWARD COBDEN STANDISH v THE QUEEN
REASONS FOR JUDGMENT COURT OF CRIMINAL APPEAL
WRIGHT J
4 September 1991
The appellant appeals against his conviction for wounding Mr Williams. Mr Williams was wounded when he interposed his hand between the appellant and the appellant's wife. At the time the appellant was attempting to stab his wife. Mr Williams received a lacerated hand. Before these events took place the appellant had been drinking heavily and had taken drugs. He had also gone to his wife's home and inflicted a number of wounds upon her with the same knife.
He was indicted and convicted upon counts of aggravated burglary in respect of his wife's home, and committing an unlawful act intended to cause bodily harm to his wife. He was also indicted for wounding one Sarah Buchanan, but on this count he was convicted of assault only.
The Crown case against the accused in respect of the fourth count, that of wounding Mr Williams, was based upon the proposition that the accused was wielding the knife recklessly at the time that he was trying to stab his wife and that, although he did not specifically intend to wound Mr Williams, he was thus guilty of unlawful wounding under s172 of the Tasmanian Criminal Code. It was argued by counsel for the appellant that the learned trial judge was in error in failing to direct the jury that they could consider the accused's state of intoxication in determining whether or not he was sufficiently aware of his surroundings and attendant circumstances to foresee the likelihood of harm being caused to some person other than his wife. It was submitted that the provisions of s17 of the Criminal Code and the limitations placed upon the operation of that section by decisions such as Snow and Palmer were not such as to preclude the jury from considering whether the accused was aware of Mr Williams' presence. It was submitted, if as a consequence of his intoxication, he was unable to appreciate, or failed to appreciate, that Mr Williams was present and likely to intervene, it could not be said that he was subjectively reckless in striking out towards his wife with the knife as he did. It was submitted that s17 deals only with the effect of intoxication upon the question of intent. It does not deal with knowledge or awareness.
As I have said, it was common ground before this Court that the Crown case on this count had been based upon the proposition that the appellant recklessly inflicted the wound upon Mr Williams without lawful excuse and was thus guilty under s172. It has been plain since Vallance's case that criminal responsibility under s172 may arise where a wound is inflicted unlawfully by an individual who either intends to inflict the wound or who does so recklessly. In this sense, one of the constituent elements of the crime may be found in the accused's purpose at the time he performed the act complained of, although this would not be a "specific intent", as that phrase is understood in the modern criminal law. In my opinion if the Crown had chosen to base its case upon criminal liability arising under the provisions of s13(3) of the Tasmanian Criminal Code, this difficult question as to the extent to which the accused's appreciation of his circumstances if diminished by intoxication may have effected his criminal liability, need not have arisen. Although the distinction between knowledge and intent has been clearly drawn in a number of decisions of this Court, there is no authoritative decision in which the issue raised by this appeal has been decided. Whether or not it needs to be decided in this appeal may be open to question.
It is worth remembering that pursuant to s1 of the Criminal Code "criminally responsible" means liable to punishment as for an offence and "offence" means "any breach of the law for which a person may be punished summarily or otherwise". Thus, as Burbury CJ observed in The Queen v Vallance [1960] Tas SR, Chapter IV of the Criminal Code dealing with criminal responsibility extends to and governs not only offences which are crimes under the Code but those which are constituted by other statutory provisions in operation in this State, whether simple or indictable offences. Section 13(3) provides as follows:
"Any person who with intent to commit an offence does any act or makes any omission which brings about an unforeseen result which, if he had intended it, would have constituted his act or omission some other offence, shall, except as otherwise provided, incur the same criminal responsibility as if he had effected his original purpose."
Plainly therefore, s13(3) applies to all offences, whether so constituted by the Code or otherwise.
Notwithstanding the views expressed by Burbury CJ and Crisp J, in Vallance's case (which although obiter deserve and command the greatest possible respect) as to the limited scope of s13(3), I have come to the conclusion that this subsection may apply to any offence or crime where it can be established that the alleged offender had an actual intent to commit some offence. It seems to me that whether a person has such an intent or not, is clearly a question of fact and that one can have such an intent whether or not a specific intent to achieve a particular result is required as a matter of law. Burbury CJ's reasons for interpreting s13(3) as he did, are to be found at p69 where he says:
"On its express language it would seem to be directed only to questions of criminal responsibility in the case of a crime constituted by an act or omission accompanied by a specific intention."
From that point onwards his Honour proceeds to discuss the scope and meaning of s13(3) on the basis that this original premise is correct. With great respect, I must disagree.
In the present case, we do not have to grapple with the question of "the same criminal responsibility" as did the learned judges in Vallance's case, because in the present circumstances the crime intended by the appellant, (ie to wound his wife), and the crime which he allegedly committed (wounding Mr Williams) were of exactly the same kind and magnitude. As Burbury CJ said at p69 in his judgment:
"Where crimes A and B are of the same kind (eg where X shoots at Y intending to kill him but kills Z instead) it" [s.13(3)] "is easy of application."
We do not have to consider the very difficult problem that arose in Vallance's case where the intended offence was at most an assault, and arguably, only the simple offence of wantonly or recklessly discharging a firearm under the Police Offences Act, whereas the unforeseen consequence was at least a wound. The test of liability is this – "If the accused had intended to bring about the actual result achieved, would his causative act or omission have constituted an offence?" There can be no doubt that the answer to that question in the circumstances of the present case must be "Yes". His actual state of awareness as to the likelihood of the unforeseen result is immaterial. The only relevant matters are the known result of his actions and an affirmative answer to the question which I have posed above. This view of the application and scope of s13(3) is, in my opinion, supported by a consideration of s2 and s3 of the Code. Section 2 provides that criminal responsibility for the inchoate crime of attempting to commit a crime, arises if an act is done "with intent to commit that crime". Whilst this means that in some circumstances it is necessary for the Crown to prove a specific intent to achieve a result which it would not have been necessary to prove if the complete offence had been committed, nonetheless it has never been suggested to my knowledge that one can only be guilty of an attempt if the crime in contemplation had a specific intent as one of its ingredients. See Reg v Bell [1972] Tas SR 127; Reg v Catlin [1961] Tas SR 191.
A similar line of reasoning also arises in respect of s3(1)(b) and (c). Accessorial liability as an aider or abettor can only arise if the person accused foresaw the commission of a criminal offence and intended to aid or abet the principal offender in achieving that result. Once again the question of intent becomes relevant and, indeed, critical to the accessorial offender's guilt, even though the principal crime in contemplation by him may not be a crime of specific intent.
As I have already said, it has not been contended in the present appeal that the appellant's state of intoxication in any way precluded him from forming the intent to stab his wife at the relevant time. Indeed, the argument proceeded on the basis that this was indeed his purpose. Accordingly, whether or not he was reckless so far as Mr Williams was concerned, it is plain to me that as a matter of law he incurred criminal responsibility under the provisions of s13(3). This being so, whether the appellant's principal contention on this appeal is correct or not, it seems to me that the proviso must apply and the appeal must be dismissed.
To conclude that the appellant might have been convicted on the basis provided by s13(3) would not have been a valid reason for ordering a new trial if the Crown had sought leave to appeal against his acquittal following a misdirection by the learned trial judge. As the Crown did not invoke or seek to rely upon s13(3) at the trial, it would be wrong to allow it to make a fresh case at a retrial. However, it is the accused who seeks to impugn the result of this trial. He says he should not have been convicted. In such circumstances we must consider the proviso. Has there been a miscarriage of justice in his being convicted? The answer to this question is plainly, "No". Section 13(3) demonstrates that his conviction was correct whether or not the jury was called upon to consider that provision. In my opinion it is unnecessary to determine whether the learned trial judge gave an erroneous direction. I incline strongly to the view that he did not, but whether he did or not, there is no proper basis for the conviction to be overturned. If he was in error the proviso should apply. Accordingly the appeal against conviction should be dismissed.
File No CCA 19/1991
JAMES EDWARD COBDEN STANDISH v THE QUEEN
REASONS FOR JUDGMENT COURT OF CRIMINAL APPEAL
ZEEMAN J
4 September 1991
The appellant was convicted by a jury of inter alia one count of wounding contrary to s172 of the Criminal Code. He appeals against that conviction. The particulars of that crime were expressed in the indictment in the following terms:
"JAMES EDWIN COBDEN STANDISH at Battery Point in Tasmania on or about the 24th day of October 1990 unlawfully wounded Matthew Bruce Williams by cutting his right hand with a knife."
The indictment upon which the appellant was tried contained four counts. The first count charged him with aggravated burglary of premises occupied by the appellant's former wife. The setting in which it was alleged that the appellant committed the four crimes charged by the indictment may be gleaned from the particulars of the first count which were as follows:
"JAMES EDWIN COBDEN STANDISH OF 27 Quayle Street, Battery Point in Tasmania on or about the 24th day of October 1990 entered as a trespasser a house occupied by Christine Jane Standish with intent to commit the crime of wounding or the crime of causing grievous bodily harm therein and both had with him an offensive weapon to wit a knife and whilst in the house used violence to Christine Jane Standish by stabbing at her on a number of occasions with a knife and wounding her to the left forearm and to the rear of her right leg."
The second count charged the appellant with wounding one Sarah Buchanan, and the third count charged him with committing an unlawful act intended to cause bodily harm to his former wife. The conviction now sought to be challenged was on the fourth and final count in the indictment. The indictment also contained, as an alternative to count 1, a count charging the appellant with the wounding of his former wife. Having convicted the appellant on all four counts (except that on the second count the conviction was for the alternative crime of assault) it became unnecessary for the jury to consider the alternative count.
The Crown case was that on the evening of 24 October 1990 the appellant, armed with a knife and intent on harming his former wife, forcibly entered her house and there stabbed her on a number of occasions in the living room. She ran into the kitchen where friends (including Sarah Buchanan) sought to prevent the appellant doing further harm to Mrs Standish. In the course of this Sarah Buchanan was assaulted. Mrs Standish then ran from the house and the appellant chased after her and again stabbed her. Mr Williams, who was attending a social function next door, intervened. In the course of disarming the appellant, he was wounded by the knife which the appellant was then wielding whilst chasing, and attempting to inflict a further wound upon, Mrs Standish. The wounding of Mr Williams is the subject of count 4 of the indictment. It was common ground that the appellant was intoxicated at all relevant times. The evidence as to this came from a number of sources. Sen Const Palmer gave evidence of having attended at Mrs Standish's house not long after the occurrence of the relevant events and of conveying the appellant from there to police headquarters. He said that the appellant smelt of liquor and that his speech was slurred. He described him as having been intoxicated. Sen Const Hobbs gave evidence of having been present when the appellant was interviewed by Det Const Cerritelli in the early hours of 25 October 1990. Sen Const Hobbs described the appellant as then being obviously affected by alcohol. Det Const Cerritelli expressed the view that the appellant was "affected by either alcohol or either some drug". There appears to have been evidence that at the time he committed the relevant acts the appellant had a blood alcohol concentration of about 0.25 grammes of alcohol in 100 ml. of blood, although the evidentiary basis for that does not entirely appear from the material contained in the appeal book. There was evidence that the appellant had ingested a number of Mogadon tablets. A number of expert witnesses were asked to express opinions on the expected effect of the consumption of alcohol and Mogadon. It will be sufficient to refer to the evidence of one of those witnesses, Dr Sale, a consultant psychiatrist. His evidence was as follows:
"QNow I want you to assume that on the night in question that Mr Standish had a blood alcohol level of approximately point two–four, thereabouts, and he has taken some Mogadon tablets. Can you say what you would expect from him as far as behaviour is concerned, I don't want you to go into intents as such, I am talking about behaviour, thinking processes and memories thereafter?
ARight, well to take the alcohol initially, any alcohol blood level above point two is a very marked degree of intoxication and very few of us would ever obtain it, after perhaps a very spectacular celebration we might but it would be only once or twice in our life–times that most of us would get to point two. Above point two is a very significant level of intoxication indeed and would be obvious to onlookers that a person was intoxicated. Their gait would be staggering, their speech would be slurred, a rather shambling quality to their movement. Now the degree to which that occurred would be varied would vary with a couple of other factors, one would be how quickly they got there, if their blood alcohol level rose quickly due to rapid drinking then the behaviour would be more intoxicated than if they had taken say a whole day to get there. It would also vary according to whether they were an experienced drinker or not. With a chronic alcoholic they develop a degree of tolerance and so therefore the behaviour that they show at levels of point two and above may not be quite as marked as for an inexperienced drinker who at that sort of level would probably be virtually prostrate. Now on the question of Mogadon, Mogadon is the Trade name for a common sleeping drug called Nitrazapam, on the whole it is a very safe drug and taken by itself, with no involvement of alcohol, will usually cause sleep generally within a period of about an hour, it would also cause a degree of sedation and tranquillity and it is related to the common tranquillisers such as Valium and Serapax. When it is interacting with alcohol however it becomes rather unpredictable. Both the alcohol increases the affect of the Mogadon and the Mogadon increases the affect of the alcohol, and so often you can get quite bizarre results, very wild disinhibited behaviour occurring when you mix this particular type of drug, the tranquillisers with alcohol. The other variable that can also happen in fact the degree of emotional arousal, the person is already showing. If a person is reasonably relaxed and is just taking Mogadon to settle themselves down for the night they will be sedated and calm and sleep within an hour, if they are highly emotionally aroused again the result may be a bit different, and we can get disinhibited behaviour."
The appellant seeks to argue one ground of appeal only. As reformulated it is in the following terms:
"The learned trial judge erred in law by failing to direct the jury that in relation to count 4 of the indictment they were entitled to take into account the appellant's state of intoxication to determine whether or not he knew that other people were, or might be, in the immediate vicinity, likely to intervene and by so doing expose themselves to danger."
The appellant does not seek to challenge the correctness of the decisions of this court in Snow v The Queen [1962] Tas SR 271 and Palmer v The Queen [1985] Tas SR 138. His submission is that those cases go to the question of intention and not to the question of knowledge. He submits that whilst s17 may well circumscribe the circumstances in which intoxication may be considered in relation to any relevant intent, it does not have any application to a state of knowledge which is a necessary ingredient of a crime. The appellant submits that where a particular state of knowledge on the part of an accused person is required to be established as one of the constituent elements of the crime charged, then a jury must have regard to any state of intoxication on the part of such accused person in determining whether the requisite state of knowledge was present. Reliance was placed upon the decision of the Supreme Court of Canada in R v Vasil (1981) 58 CCC (2d) 97, and in particular the judgment of Lamer J at pp115–121.
As a preliminary matter to considering those submissions, it is appropriate to consider the ingredients of the crime with which the accused was charged. The case went to the jury upon the basis that it was the Crown case that the appellant had been subjectively reckless. Consistently with Vallance v The Queen (1961) 108 CLR 56, before the jury could lawfully convict the appellant of wounding Williams, it had to be satisfied beyond reasonable doubt:
(a)that he, by a voluntary and intentional act, wounded Williams;
(b)that at the time he performed that act he foresaw the likelihood that a wounding might be caused;
(c)that such act was not justified by law.
The learned trial judge's directions as to (a) and (c) above were unexceptional and require no consideration. The claimed non–direction (which by inference also claims a mis–direction as will shortly appear) relates to (b). This ingredient was the subject of a number of directions given by the learned trial judge. The first direction was in the following terms:
"And the third element that has to be established, if you are satisfied that it was such a cutting, is that when he was doing that act which caused the wound, that is to say, the act of stabbing at Mrs Standish, he realised that such an act might well cause injury to her or to anyone intervening and chose to do it. In other words, he foresaw that there might be somebody coming to her aid and nonetheless went ahead and stabbed at her – did the physical act of stabbing the knife towards her."
The first sentence of that direction appears to have proceeded upon the basis that it was sufficient for the Crown to establish that the appellant realized that someone might be injured. The second sentence ought to be construed as doing no more than elaborating on the second of the two categories of person which might have been considered to have been at risk and not as suggesting that the jury necessarily had to be satisfied that the appellant in fact foresaw that some person might be coming to the aid of Mrs Standish. The primary direction was that the jury needed to be satisfied that at the time the appellant did the relevant act either he realized that such act might well cause injury to Mrs Standish or he realised that some person might come to the aid of Mrs Standish, and that such act might well cause injury to such person. The use of the word "injury" in this direction was not strictly correct. It would have been preferable to use the expression "might well wound her or anyone intervening". The establishment of a state of mind going to the likelihood of some injury being occasioned to some person, as distinct from an injury of particular kind, ie one constituting a wound, would not have been sufficient (see Vallance v The Queen (supra), per Dixon CJ at p61, per Kitto J at pp63–64, per Taylor J at pp67–68 and per Windeyer J at p82). However no complaint is made about this direction and in the context of this case, ie the wielding of a knife in stabbing motions, the use of the word "injury" rather than "wound" is unlikely to have had any effect adverse to the appellant.
More important to the determination of this appeal is whether it was sufficient for the Crown to establish that at the time the appellant committed the relevant act he foresaw the likelihood that a wounding of some person might be caused whether or not the person actually wounded was a person to whom the foresight of the appellant extended. In a later direction to the jury, the learned trial judge appears to have proceeded upon the basis that it was necessary for the jury to be satisfied that the accused foresaw the likelihood that persons might attempt to intervene and be exposed to the danger of being stabbed. Whilst that direction was given in the context of explaining the nature of a voluntary and intentional act, as it applied to each of the four counts, the actual direction on count 4 went further than such an explanation. It was in the following terms:
"As to Count 4, you'd have to be satisfied that the act of stabbing, if that is what you find it to be, which caused the injury to Mr Williams, the man from next door, was one which the accused knew he was doing and meant to do. That is he knew he was propelling the knife in the direction of his wife and that other people were, or might well be, in the immediate vicinity, likely to intervene and by doing so expose themselves to danger. And, nonetheless, he deliberately did it. Even if he didn't appreciate that Mr Williams was there if, when stabbing at his wife, you're satisfied he foresaw that others might attempt to intervene and might, therefore, be exposed to danger and stabbing, then you may convict."
I consider it to be reasonably clear that the crime of wounding is formulated in terms so as to render the identity of the intended or contemplated victim irrelevant. In that way the direction of the learned trial judge was unduly favourable to the appellant but no complaint is made about that. The crime of unlawful and malicious wounding created by the Offences Against the Person Act 1861 (UK) did not require any intention to wound a particular person as was held in The Queen v Latimer (1886) 17 QBD 359. Whilst that case turned on the construction of the word "malicious", it nevertheless applies to the crimes created by s172 of the Criminal Code. Dealing with that section in Vallance v The Queen (supra) Dixon CJ said, at pp59–60:
"Section 172 is derived from 24 & 25 Vict c100, s20, of the United Kingdom which however required that the wounding should be done 'unlawfully and maliciously'. This meant that there must be an intention, but the intention is not necessarily the wounding of the particular man (Reg v Latimer (1886) 17 QBD 359): 'if the harm done be of the kind intended, this is sufficient; even though it is produced in some degree or in some manner or upon some subject that was not intended'. Kenny, Outlines of Criminal Law ch. x: '... in law it is clear that the word "intention" like the word "malice" covers all consequences whatever which the doer of an act foresees as likely to result from it, whether he does the act with an actual desire of producing them or only in recklessness as to whether they ensue or not'. The removal of the word 'maliciously' from the provision when it was redrafted for the Code was natural enough. Few words have caused more trouble both at common law and in the interpretation of statutes where it occurs; and its use would be foreign to the technique of a codifier. But is s 172 to be read in the Code as doing no more by way of defining the crime than stating the external elements necessary to form the crime, that is to say the wounding or the causing of grievous bodily harm, and adding the requirement of unlawfulness relying upon the introductory Part or so much of it as deals with criminal responsibility to define and import the elements which go to intention or other state of mind necessary or sufficient completely to constitute the crime? That seems to be the primary question.
In the case of s 172 I think that the answer should be yes. This answer represents, I believe, the plan upon which the Code is conceived and, to some but perhaps to no great extent, drafted."
With the greatest of respect I would question the view that The Queen v Latimer (supra) is an instance of the application of the doctrine of transferred malice expressed by Windeyer J in that case (at p81). It seems to me that it was a case concerned with defining the elements of the relevant crime. Once it is accepted that wounding is not a crime of specific intent (The Queen v Bennett No 17/1990 ([1990] Tas R 72)) then s13(3) of the Criminal Code (which is a statutory restatement of the doctrine of transferred malice at least to some extent) is excluded from consideration (R v Vallance [1960] Tas SR 51, per Burbury CJ at p69 and per Crisp J at p95). There was some debate as to whether s13(3) is indeed limited in application to crimes of specific intent. I am not persuaded that the views of the majority in the Court of Criminal Appeal in R v Vallance (supra), to the effect that s13(3) is so limited in application, is wrong. I am persuaded that that is the correct view, broadly for the reasons expressed by Burbury CJ In any event, I do not consider this to be an appropriate occasion to reconsider the ambit of s13(3), the respondent not having relied upon it upon the trial of the appellant.
The requisite state of mind constituting subjective recklessness was required to be established to the satisfaction of the jury. Such subjective recklessness required foresight of harm of a specific type ensuing. It did not require that foresight to relate to possible harm to the person in fact harmed. The expression "subjective recklessness" is merely a shorthand way of expressing the requirement that in order to convict the appellant, the jury needed to be satisfied that at the time the appellant performed the relevant act he foresaw the likelihood that a wounding might be caused. That requirement is not affected by any description of it as being a requirement to establish subjective recklessness. Such a description cannot affect the requirement sought to be described by such a term. In particular, that means that cases such as R v Caldwell [1982] AC 341 and R v Venna [1976] Q.B. 421 are of limited relevance.
The appellant's submission is to the effect that the intoxication of the appellant was relevant to a determination of his knowledge of the circumstances (and in particular of the likelihood of the presence of a person other than Mrs Standish) but irrelevant to a consideration of the question whether a wounding might be caused in the circumstances of which he had knowledge. Counsel for the appellant did not seek to argue that there was any room for doubt but that the appellant was intending to stab Mrs Standish when in fact he stabbed Williams. He expressly disavowed putting forward such a submission. It follows that this appeal is to be determined upon the basis that notwithstanding any state of intoxication on the part of the appellant, he knew that his former wife was nearby and that he was attempting to stab her. Upon that basis the question of any knowledge of the presence of Williams or knowledge of circumstances making his presence or the presence of some other bystander entirely irrelevant. Whether or not the learned trial judge erred in his relevant directions is equally irrelevant because it related to the relevance of intoxication in determining the existence of a fact which did not require to be established once it is accepted that the appellant was aware of the presence of Mrs Standish and was intending to wound her.
In Palmer v The Queen (supra), Nettlefold J (with whom Underwood J agreed), after a consideration of s17 and R v Majewski [1977] AC 443, concluded (at p147):
"In other words, subs (3) adopts and enacts the presumption which underpins the decision in Reg v Majewski [1977] AC 443. But, I repeat, only for the purpose of denying exculpatory effect to the evidence of drink taken. Consequently it is right to direct a jury that, in cases other than those covered by s17(1) and s17(2), they can ignore the subject of drink or drugs as being in any way a defence."
That conclusion was expressed in terms wide enough to encompass the submission made on behalf of the present applicant. More specifically, his Honour said, at p148:
"There being no specific intent, there was no excuse in law that because of drink, taken knowingly and willingly, the appellant had deprived himself of the ability to exercise self–control, to realise the possible consequences of what he was doing or even to be conscious that he was doing it."
Cox J, at p155, expressed the view that:
"I find it impossible in the circumstances of this case to find any justification for saying that intoxication was a relevant consideration in determining whether the appellant's voluntary and intentional act was one which he knew or ought to have known to be likely to cause death in the circumstances."
It is unnecessary to consider whether what was said in Palmer v The Queen (supra) ought to be taken as determining the irrelevance of intoxication in the context argued by counsel for the appellant because, for the reasons I have expressed, the question does not arise. In any event, "knowledge" of facts directly relevant to foresight are so closely allied to intention (see The Queen v Crabbe (1985) 156 CLR 464, at p469) that a separate consideration of them, taking into account a state of intoxication, may be quite inappropriate.
In my view the learned trial judge did not misdirect the jury in any relevant way. If the learned trial judge was required to give a direction that intoxication was relevant to a consideration of the appellant's knowledge of the circumstances then such a direction ought to have extended to knowledge of the presence of any person (including Mrs Standish). Having regard to the way in which this appeal was argued it is unnecessary to consider whether such a direction ought to have been given. The appellant does not submit that it ought to have been given. If it ought to have been given then the proviso should apply. The appeal against conviction should be dismissed.
File No CCA 19/1991
JAMES EDWARD COBDEN STANDISH v THE QUEEN
REASONS FOR JUDGMENT COURT OF CRIMINAL APPEAL
SLICER J
4 September 1991
The issue to be determined in this appeal is whether a jury can pay regard to evidence of intoxication in determining whether a person, in attempting to wound another, but striking an unintended victim, could have foreseen the likely presence of such victim.
During the course of the appeal, it became necessary to consider the effect of s13(3) of the Criminal Code 1924 in relation to any criminal responsibility on the part of the appellant.
On 24 October 1990 the appellant, who had been separated from his wife for some eighteen months and recently divorced from her, unlawfully entered her house. She was present dining with friends. He attacked his wife, wounding her with a knife despite the attempts of friends to restrain him. The complainant broke free and was pursued by the appellant, brought to the ground and again wounded. She again broke free, ran out onto the road into a parked car where she was again captured by her husband. Whilst this was occurring a neighbour, Mr Mathew Williams, hearing the complainant's screams, ran down his pathway onto the street and saw the complainant running down her driveway holding her leg. In his words:
"Well she attempted to run off and ran into a parked car and this man grabbed her on the shoulder with his left hand and turned around and attempted to stab her like that.
QSo you're indicating he's stabbing towards her rib area?
AYep."
He saw only one lunge and his account continues:
"QRight, and what did you do?
AAttempted to grab his hands.
QWhile he was making this lunge for her?
AYeah.
QAnd did you receive some injury?
AYeah well I didn't grab his hands as the knife went through my hand and I just sort of grabbed hold of his hand to stop him moving, grabbed him around the neck and sort of threw him to the ground."
The evidence of Mr Williams was then that with the assistance of his companions, he subdued the appellant.
There is little doubt that the brave actions of Mr Williams prevented serious harm to the complainant.
Mr Glenn Hill, a friend of Mr Williams and who followed him onto the roadway, saw the incident in the following way:
"... As I came around the corner of the house, the corner of the driveway, there was a bloke in front of me and first thing I seen was a knife coming around lunging at the front ... All I seen was the knife coming up and around towards her abdomen ...
QWhat did you see after that?
ANo its just actually (inaudible) sort of Mathew was there and they was behind, the action when (went?) on behind, he sort of – I just seen his hand grab hold of the knife hand."
Neither of these accounts was challenged by the appellant. In an answer to the police some six hours after the incident, he said:
"I went down into the street. Some guy grabbed hold of me. I think I stabbed him there was a bit of a tousle (sic) then the police came ...".
In giving sworn evidence on his trial, the appellant claimed little memory of the incident, and stated:
"No I don't, as I said before I have a vague recollection of having the side of my face held down to the bitumen on the footpath."
There was clear evidence that the appellant had gone to the complainant's house, with a knife, and either before or soon after arrival intended to inflict harm on her. In his record of interview with the police, he admitted:
"I kicked the door in – one pane of glass at a time then kicked the door in. Then I stabbed her ... then stabbed my wife. Not fatally – just one in the arm and one in the leg – if I could have got her in the fanny I would have."
And later:
"I got her in the thigh and the abdomen."
And finally:
"QWhen you broke into Christine's house did you intend to stab her?
AYes.
QWhen you stabbed Christine did you want to kill her?
ANo look I made a mistake but I didn't intend to kill her."
There can be no doubt that at the time of the intervention by and wounding of Mr Williams the appellant was, at least, intending to wound the complainant. The appellant was convicted of aggravated burglary (the intent being to inflict a wounding or grievous bodily harm on the complainant), committing an unlawful act intended to cause bodily harm on the complainant, assault on a friend of the complainant and the wounding of Mr Williams.
The case for the appellant in relation to the charge of the wounding of Mr Williams was that he was intoxicated by the ingestion of alcohol (with a probable blood alcohol concentration of .25 at the time of the incident) and Mogadon. It is clear, from all his evidence, that his repeated attacks on the complainant were made in a state of intoxication and passion to such an extent that he was indifferent to the presence of others. Again using the words of Mr Williams:
"QSo he ran past you as though you weren't there, he didn't see you?
AYes.
QAll right, so it would appear to you that he had a fixation about trying to get to his wife, or his ex wife...?
AYes.
QDid it appear to you that Mr Standish seemed to be heavily intoxicated?
ANo, just sort of, not intoxicated just like really razzed up sort of thing, how would you put it, but no he didn't seem to be intoxicated.
QHis behaviour was extremely unusual?
AYes.
QBut his general demeanour?
AWell he just seemed to be very angry, not – he didn't talk, say a word, that's about it, you know, he just sort of angry you know."
The existence and effect of intoxication on the mind and passion of the appellant was corroborated by other witnesses, including Dr Parsons and Dr Sale.
The sole ground of appeal against conviction was:
"The learned trial judge erred in law by failing to direct the jury that in relation to count 4 of the indictment (the wounding of Mr Williams) they were entitled to take into account the appellant's state of intoxication to determine whether or not he knew that other people were, or might be, in the immediate vicinity, likely to intervene and by so doing expose themselves to danger."
For the purpose of determining this appeal, I will accept that at the time the appellant struck the blow wounding Mr Williams he was:
– intending to strike the complainant with a knife;
– had no specific thoughts about harming anyone else;
– was indifferent to the presence of any bystander or intervener;
– that indifference was substantially or wholly caused by the combination of passion and intoxication.
Counsel for the appellant, Mr Melick, contended at the trial and on the hearing of this appeal that:
– at the time of the wounding, the appellant was intending to strike the complainant and that his state of intoxication was irrelevant to that intent in the determination of criminal liability;
– that in order to be convicted of the wounding of Mr Williams, the appellant would have had to be aware of the actual presence of the intervener or of the likelihood that a person might possibly intervene.
In essence the argument was that there must be actual foreseeability and intoxication can be used by a jury as one of the factors to be determined in answering that question.
The learned trial judge quite properly directed the jury in relation to the manner in which evidence of intoxication could be used by the jury in its consideration of criminal responsibility. The relevant passages of his direction to the jury were:
".. If it [intoxication] were to reach a stage – such a stage either alone or in combination with other factors so as to render the accused incapable of forming any state of mind essential to the commission of any one of the crimes charged in this indictment, then it would provide the basis of a defence, but only in those circumstances. So it was a condition in which he was acting either without any purpose at all or without the conscious awareness of what he was doing or under some delusion as to what he was doing or why he was doing it or with some purpose other than inflicting serious injury on his life."
No complaint was made about the form of that direction.
In terms specific to the wounding of Mr Williams, the learned trial judge directed the jury in the following terms:
"And the third element that has to be established, if you are satisfied that it was such a cutting, is that when he was doing that act which caused the wound, that is to say, the act of stabbing at Mrs Standish, he realised that such an act might well cause injury to her or to anyone intervening and chose to do it. In other words, he foresaw that there might be somebody coming to her aid and nonetheless went ahead and stabbed at her – did the physical act of stabbing the knife towards her... But any crime requires, as a fundamental condition, that it should have been committed by, what is called, a voluntary and intentional act. That is to say you can't commit a crime by accident."
The learned trial judge went on to give examples of accidental discharge of weapons and other practical forms of accident. The learned trial judge continued:
"As to count 4, you would have to be satisfied that the act of stabbing ... was one which the accused knew he was going and meant to do. That is he knew he was propelling the knife in the direction of his wife and that other people were, or might well be, in the immediate vicinity, likely to intervene and by doing so expose themselves to danger. And, nonetheless, he deliberately did it. Even if he didn't appreciate that Mr Williams was there if, when stabbing at his wife, you are satisfied he foresaw that others might attempt to intervene and might, therefore, be exposed to danger and stabbing, then you may convict."
In relation to the issue of intoxication, the learned trial judge directed the jury in the following terms:
"In respect of count 4, the wounding of Mr Williams, intoxication cannot be a defence to any of those charges. So if you are satisfied that he struck those blows, voluntarily and intentionally, ... his guilt would be established and his intoxication – to whatever degree it was – would not relieve him for responsibility of those charges..."
And further:
"When we speak of a voluntary and intentional act as one the actor knows he is doing and means to do we are speaking of the physical character of the act, that is the act of propelling the knife forwards or back or struggling with another while so armed. Any dimming or even absence of mental appreciation due only to intoxication of the identity of those around one, or the distance away they might be, or failure to appreciate that in moving the knife in that way it might cause injury, is irrelevant. If the accused knowingly moved the knife around in a stabbing motion, or stabbing motions, and meant to do so, then that is a voluntary and intentional act of his part. If he just fell over and stabbed someone in the process as he fell to the ground, out of control as it were, or he was thrashing around in an epileptic fit, or having suddenly been hit over the head unexpectedly moved the knife in a certain direction, in a purely reflex action, not controlled by his will, it wouldn't be a voluntary and intentional act... He can't, in other words, be heard to say, 'I was so intoxicated that I didn't take any notice of anyone else who might have been there. I just ignored their existence because my intention was wholly focused upon my wife'."
In my opinion, the direction of the learned trial judge was correct.
There may be some scope in the argument presented by Mr Melick in relation to some questions of foreseeability. But this is not such a case which would warrant such consideration.
The conceptual framework of the appellant's argument is set out in the judgment of the Court of Criminal Appeal in Snow v The Queen [1962] Tas SR 271. In their joint judgment, Burbury CJ and Cox J state, at p285:
"In passing we would refer to the question whether drunkenness may be relied upon as showing absence of knowledge (as distinct from intent) where specific knowledge is a defined ingredient of a crime or offence (eg receiving). In his Article on 'Drunkenness and Criminal Responsibility' 30 ALJ 3, at p4, H A Snelling QC says:
'There appears to be no reported English authority on the point but it is hard to see any rational ground for distinguishing such a case from the specific intent doctrine. There is no room here for the introduction of the criterion of the sober and reasonable man, as the prosecution must prove that the accused actually knew the fact and the accused is entitled to claim and endeavour to prove that he did not (for whatever reason).
One may suspect that this and other possible extensions of the specific intent exception to be referred to later are avenues of defence not envisaged by the judges who developed the exception.'
On principle we agree there is no reason to distinguish knowledge from specific intent. But while it might be easy at common law to extend the principle from specific intent to specific knowledge it could hardly be done under the guise of statutory interpretation of s17. The question is one of some difficulty and it does not fall for decision in the present case."
His Honour Mr Justice Crawford alluded to the same question, at p295, when he said:
"Apart from denials of any of the ingredients set out in the section constituting such a crime defences open to the accused include at least involuntary drunkenness (preserved by the Act s8 in my opinion), that his act was not voluntary and intentional (s13), that the event (the wound, penetration, etc.) was one which occurred by chance (s13) or if the construction of the statute permits it, honest and reasonable mistake under s14. Intoxication may be relevant to whether the act was voluntary and intentional or whether the event occurred by chance, eg Reg v Egan (1897) 23 VLR 159. Intoxication may be relevant to explain why a mistake was made which the accused would not otherwise have made, although as I will mention later, the mistake must also be reasonable and, I suppose, mistaken beliefs caused even partly by intoxication will seldom, if ever, be reasonable. Where specific knowledge is an ingredient of an offence, eg knowing that the goods were stolen, in a case of receiving, intoxication may be relevant to explain why the accused did not have that knowledge, when one might, otherwise, have expected him to have it. Evidence of intoxication is admissible as relevant to such matters."
The area of debate is effectively defined by Glanville Williams in his Textbook of Criminal Law, 2nd ed, at pp476 and following.
In support of the appellant's argument, reliance was placed upon a line of authorities including Hyam [1975] AC 55; R v Tennant & Naccarato (1975) 23 CCC (2d) 80; and R v Vasil (1981) 58 CCC (2d) 97.
However, it should be pointed out that those cases involve a secondary consequence to the criminal act. In Hyam (supra) and R v Vasil (supra) the actus reus was the setting fire to premises as an act of spite or revenge. Both cases involved the determination as to whether the subsequent deaths of inmates of the premises ought to have been foreseen by the actor and whether intoxication played a part in the determination of that foreseeability. R v Tennant & Naccarato (supra) involved the question as to whether the act which caused death must have been done to effect some further unlawful purpose.
In this case the act of the appellant, namely the wielding of the knife, was the same act which directly caused the wound. The reality of the direction of the learned trial judge was that the jury was instructed that they could not convict unless they were satisfied that "he foresaw that others might attempt to intervene and might, therefore, be exposed to danger and stabbing."
The verdict of the jury is based on that direction, namely that he foresaw that others might intervene. This is consistent with the verdicts reached by the jury in relation to other counts in the indictment. Given that the jury returned guilty verdicts on two counts which required the presence of a specific intent (such crimes being committed within minutes of the wounding of Mr Williams) then their finding is consistent with the direction, namely the question was whether the appellant did foresee that others might intervene.
In relation to the general question of the inter–relationship between the questions of intent and intoxication and knowledge and intoxication, assistance may be obtained from the judgment of the High Court in R v Crabbe (1985) 156 CLR 464, at p470, where it was said:
"It was submitted on behalf of the Crown that a distinction can be drawn between foresight of the consequences of an act – ie what harm it would do if persons were in a position to be affected by it when it occurred – and a foresight of circumstances – ie of the fact that persons were in a position to be affected. There is no justification in logic or principle for drawing a distinction of this kind ..."
There is a further basis on which the appeal should be dismissed. In order to succeed, the appellant must avoid the operation of s13(3) of the Criminal Code. That section states:
"(3) Any person who with intent to commit an offence does any act or makes any omission which brings about an unforeseen result which, if he had intended it, would have constituted his act or omission some other offence, shall, except as otherwise provided, incur the same criminal responsibility as if he had effected his original purpose."
I confess to having some difficulty in distilling a clear meaning from this subsection. For example, it is difficult to equate the words "intent to commit an offence" with an omission. The Court of Criminal of Appeal in its decision in R v Vallance [1960] Tas SR 51 did not reach a concluded view on the effect of s13(3). Burbury CJ, at p69, approached it in the following terms:
"The subsection poses difficult problems of interpretation and application. On its express language it would seem to be directed only to the question of criminal responsibility in the case of a crime constituted by an act or omission accompanied by a specific intention. In that case it would only become applicable if –
(1) the accused intended to commit offence A (ie he intended all the elements of the actus reus of offence A);
(2) the accused's act or omission (being an ingredient of the actus reus of offence A) brings about a result which in fact he did not foresee and a different result from that which he intended;
(3) the accused's same act or omission if it had been accompanied by an intention to bring about the particular result which it in fact did but which he did not intend would have constituted offence B.
If the three conditions I have enumerated are fulfilled then the subsection provides that (except as otherwise provided) the accused shall incur the same criminal responsibility as if he had effected his original purpose. There are I think great difficulties about the application of this imprecisely drafted subsection. Where crimes A and B are of the same kind (eg where X shoots at Y intending to kill him but kills Z instead) it is easy of application. But where crimes A and B are different crimes how does it apply? I am inclined of the view that in that case the subsection means that the accused is liable to be convicted of crime B. 'Criminal responsibility' is a general concept. I think the probable intention of the provision is to make the accused (by way of exception to s13(1)) criminally responsible for the unforeseen result, ie the result which if he had intended it would have constituted offence B. In such a case offence B must, of course, be pleaded."
His Honour then went on to postulate:
"An indictment framed under s170 could produce a result though the operation of s13(3)."
His Honour went on:
"But so far as the crime of unlawful wounding under s172 is concerned, that is not a crime constituted by an act accompanied by any specific intent. And I think there is no possible interpretation of s13(3) which could make it applicable to the present case having regard to the elements in the crime of unlawful wounding as I have analysed them. I do not wish to be taken as expressing a final view upon its interpretation."
Whatever the application of that line of reasoning to the facts in R v Vallance (supra) (where his act was the discharge of a weapon unaccompanied by a desire to strike the victim) it, in my opinion, has no application here. The appellant wielded a knife aiming it towards the abdomen of the complainant. He had previously wounded the complainant. There can be little doubt that at the time of wielding the knife he intended the knife to strike the complainant. Thus the actus reus was accompanied by an intention to harm by way of an infliction of force. To adopt the test of the Chief Justice he intended all the elements of the actus reus of offence A, namely wounding. His act (being an ingredient of the actus reus of offence A) brought about a result which in fact he did not foresee and a different result (wounding the wrong person) from that which he intended.
The relevant provisions of s172 are:
"Any person who unlawfully wounds ... any person by any means whatever is guilty of a crime."
The fact that the person wounded was not the intended victim does not, in the context of s172, afford the attacker a defence "by the process of intoxication". An intervention of "chance" may afford exculpation but the state of intoxication, whether by way of s17 or not, cannot be said to play any part in the determination of whether or not an event occurred by chance. For example, if Mr Standish were waving his knife in a threatening manner at his wife but not intending to strike a blow and another pushed a bystander into the path of the knife, the sobriety or otherwise would play no part in the determination of whether there was an event which occurred by chance.
In such a case, intoxication plays no part.
His Honour Mr Justice Crisp approached the question from a slightly different perspective. At p94, in bringing together the three subsections of s13, he stated:
"So that the composite rule becomes (a) if the act was intentional (bearing in mind the distinction already drawn between act and actus reus) but there is no criminal intent, then the actor is not responsible for events or results which occur by chance, and (b) if however he acted with criminal intent (ie with intent to commit any offence whether punishable summarily or otherwise) and the unforeseen or chance result is something which if he had intended it (ie foresaw and desired it) would have constituted some other offence, then he will incur criminal responsibility as if he had effected his original purpose."
In this case, there can be little doubt that the appellant wished to inflict some form of harm upon the complainant. Whether the harm be commensurate with simple assault or grievous bodily harm is immaterial. At the time of wielding the blow he intended harm.
His Honour then went on to discuss difficulties involved with the interpretation of s13(3). He went on to say, at p95:
"But this sense of derivation, vague as it might be, does nothing to impugn – in fact it confirms, I suggest – the conclusion arrived at, viz, that sub–s (3) has no application where a specific intent is not an essential feature of both of the offences predicated by the subsection. Subsection (3) is not therefore directly in point to the charge of wounding on this indictment, ... I do not therefore feel obliged to go on to consider the concluding words of sub–s (3) which I own have caused me much difficulty when one seeks to test their application to hypothetical cases of fact. (See, however, Agnes Gore's Case (1611) 9 Co Rep 81a, and Reg v Latimer (1886) 17 QBD 359, which may provide the key)."
In a footnote written after the delivery of the judgment, his Honour wrote:
"Another suggestion which occurs to me is that subsection (3) is designed to be read as if the concluding words read 'incur no greater criminal responsibility than if he had effected his original purpose' so as to preserve in respect of the unintended offence any matters of defence or mitigation that would have been available in respect of the intended offence, eg – A under provocation shoots at B, misses, and kills C, which is manslaughter at common law (R v Gross (1913), 23 Cox CC 455).
But could it not be said that given that the distinction between malum prohibitum and malum in se that the same line of reasoning could be applied where the same form of intent (be it general or specific) is present in the commission of those crimes. In such a case the section would prevent the offender being held culpable for a crime requiring a different form of intent or a more serious crime.
Crawford J commenced his analysis by determining that s13(3) can relate to a simple offence. After discussing a number of alternative approaches, he continued, at pp115–116:
"... However I think that the following is the proper construction of s 13 (3). If a person does an act with intent to commit a simple offence which causes an unforeseen result which if he had intended it would have constituted the act a crime, he is not liable to conviction for the crime, because there is no criminal responsibility for the crime but only for the offence and that is irrelevant. The same applies if the intent was to commit a crime of a different kind from the one committed."
His Honour continued:
"... As to s 13 (3) if the jury are satisfied that the accused with intent to commit an offence did an act ... and the act brought about an unforeseen result (the wounding) which, if he had intended it (so that it could not be said to be by chance) would have constituted his act (really his act together with the result) some other offence, the accused, except as otherwise provided, incurs the same liability to a conviction as of an offence as if he had effected his original purpose. However, unless that liability to a conviction is a liability to be convicted as of wounding, the liability is irrelevant. An accused is not guilty of the crime of wounding unless he does the act that causes the result and incurs a criminal responsibility for wounding."
His Honour goes on to discuss the question of where disparate offences or crimes are committed and excludes the application of s13(3) from such eventuality. But he continues, at p117:
"This interpretation preserves the distinction which appears by a comparison of Reg v Pembliton (1874) LR 2 CCR 119 with Reg v Latimer (supra)."
He continues, at p118:
"The section adverts to an event that occurs by chance and excludes it as an exoneration. If an accused intends to maim A, and does an act which results in wounding B (whether foreseen or not), the crime is complete."
And at p120:
"I think that I can safely say that such an interpretation as I suggest is more in accordance with the common law than any other and does not produce results startlingly unjust, nor lead to an acquittal on a charge of wounding, if the successful defence is that the accused intended to wound A but wounded B as an unforeseen result, as would be the verdict if s 13(3) is to be limited to offences where a specific intent is an ingredient of a crime."
In my view s13(3) operates to make the appellate criminally responsible in the following way:
–he possessed actual intent to wound or possessed the requisite intent of subjective recklessness;
–it was his act which produced the result, namely the wounding of Mr Williams;
–the result may have been unforeseen by him;
–the unforeseen result was one which, if he had intended it (by actual intent or recklessness), would have constituted his act some other offence;
–in this case the two offences contemplated by the section are identical, namely wounding.
On this analysis it is unnecessary to consider the implication of the commission of a different offence incurring greater criminal responsibility. It certainly could not operate to create liability for a crime involving specific intent, when the intent of the actor was a general intent. Whether it could operate to create liability for different crimes involving the same intent (general or specific) is another matter. It is not necessary to determine that in relation to this appeal.
The above analysis is consistent with the approach taken by Windeyer J in VallancevThe Queen (1961) 108 CLR 56 at p81, when, in discussing the old distinction between pure chance and chance – medley, his Honour said:
"... The doctrine that began in connexion with homicide had at an early date been given a wider application in common law ... Doctor Glanville Williams has called it a doctrine of 'transferred malice'. Reg v Latimer (1886) 17 QBD 359 is an instance of its application in a case of wounding. The effect of s 13 (3) is to retain this concept, in part at all events, in the Code... The combined effect of the exoneration from the consequences of events occurring by chance under s 13 (1) and of the provisions of s 13 (3) is, it seems to me ... to maintain criminal responsibility in circumstances such as Reg v Latimer (1886) 17 QBD 359...
Section 13 (1) is an exonerating and exculpatory provision. Its purpose is thus the opposite of s 13 (3), which is, in a sense, a qualification of it. It does not say that a person is responsible for what does not occur by chance: all that it says is that a person is not responsible for what does."
In my view s13(3) does operate as an expression of the common law doctrine of "transferred malice" as illustrated in Latimer. It may operate to limit culpability so that a different or more serious crime could not be committed by virtue of the application of the subsection.
For the above reasons, the appeal should be dismissed.
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