Tasmania v Oates

[2017] TASSC 39

[2017] TASSC 39

COURT:  SUPREME COURT OF TASMANIA

CITATION:                 Tasmania v Oates [2017] TASSC 39

PARTIES:  STATE OF TASMANIA
  v
  OATES, Brady Christopher

FILE NO:  46/2016
DELIVERED ON:  1 June 2017
DELIVERED AT:  Hobart
HEARING DATES:  11, 12, 15 May 2017
JUDGMENT OF:  Brett J

CATCHWORDS:

Criminal Law – Particular offences – Offences against the person – Assault – Mens rea.
Aust Dig Criminal Law [2209]

Criminal Law – General matters – Criminal liability and capacity – Defence matters – Intoxication – Generally.

Snow v The Queen [1962] Tas SR 271; Vallance v The Queen (1961) 108 CLR 56, followed.
Wilkinson (1985) 20 A Crim R 230; R v Vallance [1960] Tas SR 51; Thornton v The Queen (1984) 14 Tas R 113; Beechey v McDonald [2010] TASSC 47; R v Hodgson [1985] Tas R 75; Attorney-General's Reference No 1 of 1996; Weiderman (1998) 7 Tas R 293, cited.
Aust Dig Criminal Law [2068]

REPRESENTATION:

Counsel:
             Crown:  J Dennison and L Pennington
             Accused:  G Richardson
Solicitors:
             Crown:  Director of Public Prosecutions
             Accused:  G A Richardson

Judgment Number:  [2017] TASSC 39
Number of paragraphs:  33

Serial No 39/2017
File No 46/2016

STATE OF TASMANIA v BRADY CHRISTOPHER OATES

REASONS FOR RULING  BRETT J

1 June 2017

1. The accused was charged with two counts of assault contrary to s 184 of the Criminal Code.  The jury heard evidence that at the time of the alleged assaults, the accused was intoxicated as a result of the voluntary consumption of alcohol earlier in the day.  There was also evidence that shortly before the alleged assaults occurred, ambulance officers administered to him a pain relief medication known as methoxyflurane.  Defence counsel submitted that the crime of assault is a crime of specific intent within the meaning of s 17(2) of the Code, and accordingly the jury can take into consideration evidence of intoxication in determining whether or not the accused had the requisite intent.  Further, defence counsel submitted that the jury could also have regard to the reasonable possibility that the accused's capacity to form the requisite intent was affected by the pain relief medication.

2. After hearing argument, I made a number of rulings concerning the directions which I would give to the jury. I indicated that I would provide formal reasons at a later time. The rulings and the reasons for them are set out below.

3. The evidence for the jury's consideration was contained solely within the Crown case.  The accused did not give or adduce evidence.  A summary of the evidence presented by the prosecution is as follows.

4. The accused, who did not normally consume alcohol, had been drinking for a significant part of the day leading up to the alleged assaults.  At the relevant time, he was at home with his partner and other family members. There is unchallenged evidence that he had become significantly affected by the alcohol that he had consumed, and had become abusive and aggressive in his conduct.  He had also dislocated his shoulder and was in significant pain.  As a result of this injury and his abusive and aggressive conduct, his partner telephoned for an ambulance and police.  The persons whom the accused is alleged to have assaulted are two of the three ambulance officers who responded to that call.  Upon arrival at the house, the ambulance officers and responding police observed that the accused was intoxicated.  It was determined that the ambulance would transport him to hospital. His partner travelled in the ambulance with him.

5. In addition to being drunk, the accused was in significant pain from the dislocated shoulder.  During the course of the journey to the hospital, one of the complainants, in accordance with the operating guidelines of Ambulance Tasmania, administered methoxyflurane. There was expert evidence that this is a drug commonly administered in small doses to relieve pain. The mode of administration is that the liquid drug is placed into a device, commonly called the "Green Whistle", which converts liquid to vapour and is then inhaled by the patient at his discretion over a period of approximately five minutes.  In accordance with the guidelines, the accused was provided with two doses of this drug during the course of the journey to hospital.

6. The evidence was that on each occasion that the accused consumed the drug, he immediately became drowsy, or may have even fallen asleep.  However, after a short time, he would become conscious and immediately become verbally abusive and threatening towards the female ambulance officer, who was in the back of the ambulance.  According to his partner, his conduct and demeanour were markedly different after consuming the drug to his drunken behaviour before entering the ambulance.  Further, his conduct, both before entering the ambulance and after administration of the drug, was inconsistent with his usual demeanour.

7. When the ambulance reached the hospital, the accused was taken into a treatment room.  Shortly after entering the room, he unstrapped himself from the stretcher and got up.  He punched the female ambulance officer.  When the male ambulance officer intervened, he also punched him.  These two acts constitute the assaults with which the accused has been charged.

8. Although the accused did not give or adduce evidence, and was not interviewed by police, there was evidence given by his partner that the following day, when she informed him of the details of his behaviour, he said to her that he could not remember what had happened and was remorseful for the conduct described to him.  He immediately apologised to the hospital.

The relevance of self-induced intoxication to the question of criminal responsibility for the crime of assault?

1. Section 183 of the Code provides that any person who unlawfully assaults another is guilty of a crime. The definition of assault is contained in s 182. Section 182(1) provides as follows:

   "(1)  An assault is the act of intentionally applying force to the person of another, directly or indirectly, or attempting or threatening by any gesture to apply such force to the person of another if the person making the attempt or threat has, or causes the other to believe on reasonable grounds that he has, present ability to effect his purpose; or the act of depriving another of his liberty."

2. It is obvious from this provision there are three distinct means by which an assault can be committed. This case concerns only the first limb, the act of intentionally applying force to the person of another, directly or indirectly.

3. The relevance of intoxication to the question of criminal responsibility is dealt with by s 17 of the Code. That section states:

   "(1)   The provisions of section 16 shall apply to a person suffering from disease of the mind caused by intoxication.

   (2)   Evidence of such intoxication as would render the accused incapable of forming the specific intent essential to constitute the offence with which he is charged shall be taken into consideration with the other evidence in order to determine whether or not he had that intent.

   (3)   Evidence of intoxication not amounting to any such incapacity as aforesaid shall not rebut the presumption that a person intends the natural and probable consequences of his acts."

4. In Snow v The Queen [1962] Tas SR 271 at 283, Burbury CJ and Cox J concluded that the effect of s 17 was to declare the common law that "drunkenness cannot be relied upon as an exculpatory factor and we think it must be interpreted as defining exhaustively the limited exceptions to this principle". The "limited exceptions" are contained in s 17(2). As to that subsection, their Honours said:

   "Since Vallance's Case (1961) 35 ALJR 182 it is we think clear that the expression 'specific intent essential to constitute the offence with which he is charged' in s 17(2) must be interpreted as applying only to a case where intent to bring about a specific result is upon the true construction of the provisions of the Code or statute creating the offence an element of the charge. Examples of such cases are wounding with intent to bring about particular results (s 170) and murder of the type in which intent to cause death or bodily harm is an element (s 157(1)(a) (b) & (d)).

   It follows that s 17(2) has no application to the crime of rape. The 'specific intent' therein referred to is to be distinguished from the 'intentional' quality of the physical action of the accused as required by s 13."

5. On this basis, their Honours concluded that the crime of rape does not require the formation of a specific intent. The act of penetration must be voluntary and intentional, having regard to the provisions of s 13(1), but there is no requirement within the definition of rape which requires an intention to bring about a particular result. The consequence is that intoxication is not relevant to the question of whether the accused's actions are voluntary and intentional within the meaning of s 13(1), and, unless it has caused a disease of the mind in respect of which the provisions of s 16 are engaged, it has no other exculpatory effect with respect to criminal responsibility.

6. The question which arises in this case, therefore, is the nature of the mental element which must be proved to establish the crime of assault, in particular, under the first limb of s 182, by the application of force to the person of another. On the authority of Snow, if proof of a specific intent is essential to constitute the offence, then the accused can rely on evidence "of such intoxication as would render" him incapable of forming that intent. Otherwise, his self-induced intoxication will be irrelevant to his criminal responsibility for his actions.

7. Mr Richardson submits that the definition of assault, under the first limb of s 182, requires proof of a specific intent to bring about a particular result, that is, the application of force to the person of another.  Counsel submits that the relevant act, which for the purposes of s 13(1) must be voluntary and intentional, is the physical action of the accused which, in this case, is the throwing of a punch. It is further submitted that, in accordance with the reasoning in Vallance's case, this physical action is to be distinguished from its effect, which is the application of force to the person of another. It follows, according to counsel's submission, that the effect of the use of the word "intentionally" in s 182 is that, not only must the physical action be voluntary and intentional, but the effect of the physical action, the application of force to the person of another, must be its intended result. The consequence, it is argued, is that proof of this intention is essential to constitute the crime of assault, and accordingly, having regard to the evidence, the jury should be directed in accordance with the provisions of s 17(2).

8. As far as I can determine, the question of the mental element required to constitute assault, and the effect of the use of the word "intentionally" in s 182(1), has not, to date, been the subject of direct determination by a Tasmanian court.  However, the question has been referred to judicially from time to time.

9. In R v Vallance [1960] Tas SR 51, Crisp J said at 101-102:

   "But as defined in the Code (s 182) the crime of assault is a complex one. It may be committed in a number of different ways of which at least three may be thought to be material to the evidence in the present case. They are:

   (1)by intentionally applying force to the person of another; or

   (2)by threatening by any gesture to apply such force to the person of another if the assaultor has present ability to effect his purpose; or

   (3)by threatening by any gesture to apply such force to the person of another if the assaultor causes the assaultee to believe on reasonable grounds that he has present ability to effect his purpose.

   Which of these three cases of assault can be said to be, 'necessarily included' in the crimes charged in the indictment? Before we can say that the first (ie an actual battery) is so included, one must assume that the word, 'intentionally' as used in s 182 adds nothing to the elements of the crime over and above what would already be found in it by s 13. In other words, that 'intentionally' in s 182 is really superfluous. It may be that this is correct. It could be that the word is a carry-over from the language of the Draft Code of 1879 (s 207) the draftsman of our Code overlooking for the moment that in the Draft Code s 13 does not occur."

10. However, in the same case, Crawford J seems to have had a different view. At 132, his Honour said:

    "It follows from what I have said, that in the case of assault there must be an intent to apply force or to attempt (which in any case connotes such an intent in itself) or to threaten (which may also. in any case connote intent) see s 182(1), but that in the case of wounding under s 172, intent to wound is not a necessary ingredient of the crime."

11. In Wilkinson (1985) 20 A Crim R 230, Nettlefold J expressed the view that the relevant mental state was that explained in Vallance with respect to unlawful wounding. His Honour said at 232:

    "If that is so, the causative act was only an assault if there was an intentional application of force to the person of the deceased, ie the appellant intended that the discharge from the shotgun strike the body of the deceased. The word 'intentionally' in s 182 of the Code would, no doubt, be construed as covering not merely cases where the actor desired to apply force to the person of the victim but where the actor foresaw that result or adverted to the likelihood of the discharge striking the victim but heedless of such a consequence: see Vallance and Hodgson (unreported, 21 August 1985, Court of Criminal Appeal, Tasmania)."

12. Mr Richardson, in support of his submission, relied on the decision of Thornton v The Queen (1984) 14 Tas R 113. That case concerned the mental element relevant to an assault constituted by an attempt or threat by gesture to apply force to the person of another. It was held by two members of the Court of Criminal Appeal, Green CJ and Cox J (as he then was), that such a crime does require a mental element additional to the requirement for a voluntary and intentional act, in particular an intention to induce another to apprehend that force was to be applied. However, it is clear that the reasoning which led to this conclusion was based on the inherent effect of the formulation of the words used in the section, in particular, that there be an attempt or a threat. Green CJ declined to express an opinion as to whether "in the alternative it would be sufficient to prove that the act was done with foresight, that the probable consequence of the act would be to induce in the victim an apprehension that force was about to be applied to him". This would indicate that, although his Honour considered a mental element to be inherent in the relevant act of making a threat, it does not follow that that mental element requires proof of a specific intent, and subjective foresight may be sufficient. Cox J expressed this sentiment with more clarity at [39]:

    "I agree that there is no occasion for this Court to have recourse to the common law when it is determining the elements of assault as defined by s 182(1). As presently advised, I see no reason to read into that definition the need for a specific intention to cause the victim to apprehend force where the assault takes the form of a threatening gesture any more than the High Court in Vallance v The Queen (1961) 108 CLR 56 found the need for such a specific intention to inflict a wound in relation to the crime created by s 172."

13. The need to establish the Vallance state of mind in respect of assault was accepted as correct by Evans J in Beechey v McDonald [2010] TASSC 47. At [9], his Honour said:

    The mental element that must be established in order to convict an offender of assault by the application of force is either that the offender intentionally applied force to the complainant, or that the offender foresaw the likelihood that he or she might do so and proceeded regardless of that consequence; Wilkinson v R 43/1985, Nettlefold J, at 4, and Vallance v R (1961) 108 CLR 56. Adopting and adapting the words of Neasey J, agreed with by Underwood and Crawford JJ, as they then were, in R v Bennett [1990] Tas R 72, at 81, what the prosecution must prove is actual intent to apply force or subjective recklessness. Negligence, falling short of recklessness, is insufficient; Vallance (supra), Kitto J at 64."

14. There is a strong analogy between the crime of wounding under s 172 and assault. Each requires a physical act that produces a result, respectively either a wound or an application of force to the person of another. In many cases, the physical act is practically indistinguishable from the result. This is more likely to be the case with assault. For example, an aimed punch involves a physical action in which the application of force to the person of another is an inherent feature. This close relationship between physical action and result seems to be acknowledged by the definition of assault in s 182, which defines assault as "the act of intentionally applying force to the person of another".

15. In Vallance, the majority of the High Court confirmed the distinction in respect of the crime of unlawful wounding under s 172, for the purposes of s 13(1), between the physical act which produces the wound and the result, which is the wound. Accordingly, the requirement that the act be voluntary and intentional is restricted to the physical action. However, it was held that inherent in the definition of wounding was a requirement that it be intentional. This state of mind required, at least, the actual foreseeing that the physical action may cause the injury, and then proceeding with physical action notwithstanding this possibility. This was explained by Kitto J at 63 as follows:

    "The first step is to construe the expression 'any person who unlawfully wounds'. The presence of the word 'unlawfully' may be accounted for by the necessity of allowing for cases, such as those of surgical operations the performance of which is lawful as s. 51 of the Code provides, in which the circumstances supply a legal justification for what is done. (The trial judge was in error in telling the jury that the wounding of the girl was unlawful because the firing of a gun in the city was contrary to a provision of the Police Offences Act.) But the expression 'unlawfully wounds', read in its setting in a statute defining criminal offences, seems to me to connote a mental element attending the doing of an act which causes a wound. The Oxford English Dictionary reflects this mental element when it defines the verb 'wound' as meaning 'to injure intentionally in such a way as to cut or tear the flesh'. The word 'intentionally' is one of variable meaning, and for that reason the dictionary does not solve the problem before us; but the point which the definition brings out is that to 'wound' a person is not simply to do an act which causes an injury of a particular kind: it is to do an act which causes such an injury with a state of mind extending to the injury as well as to the act. Such a state of mind must include a foreseeing of the injury as a possible consequence of the act, and it must include an assent to the causing of the injury by means of the act. The notion which the word conveys is not satisfied, I think, by the causing of an injury by mere negligence falling short of recklessness. It requires such an assent that the injury was within the contemplation and choice of the doer of the act. But there is, I think, nothing in the word to confine the notion to the causing of the injury with an actual desire to cause it. To speak of a desire as forming a necessary element in an intention may be accurate enough; for even where the result is regretted it may be desired on a balance of considerations, and so may be intended. But I am not at the moment defining intention. What is in question is the meaning of 'unlawfully wounds'; and in that expression, though I do find a limitation relating to the mental attitude of the doer of a causative act, it is not a limitation which requires that the act must be done with an actual desire to cause an injury."

1. In this passage, his Honour, in my respectful view, distinguishes with clarity the difference between the meaning of the word "intentional" when used in relation to the commission of the crime of assault, or by implication in the definition of the word "wounding", and a specific intent defined as a separate ingredient of a crime. If the crime is formulated as the doing of an act combined with the intention of causing a particular result, then there will be a need to prove that the act was done with the desire to produce that result. A wounding, which by definition must be intentional, or in the case of assault, an intentional application of force to the person of another, requires a state of mind, which is additional to that required by s 13(1), but does not necessarily require proof that the act was done for the purpose of and with the desire of achieving the result in question. It requires the state of mind referred to in Vallance, ie one which includes a foreseeing of the application of force to the person of another as a possible consequence of the act and an assent to that outcome. I note that in the case of arson, it has been held that the use of the word "wilfully" in s 267 imports a similar state of mind in respect of that crime, which is acknowledged to be beyond that required by s 13(1) (R v Hodgson [1985] Tas R 75).

2. Accordingly, I conclude that the mental element required for the commission of the crime of assault by the application of force requires proof that a person performs an act with the intention of applying force to the person of another, or foreseeing that his actions will have that effect, and proceeding with them notwithstanding.  In such a case, the act of applying force will be intentional.  By virtue of s 13(1), the physical act which produces the application of force must also be voluntary and intentional. In cases where the result is inherently bound up in the physical action, eg an aimed punch, the distinction between the requisite state of mind applicable to the act and the result will be virtually academic.

3. The further question which arises is whether a requirement for proof of the state of mind of the nature defined in Vallance amounts to a "specific intent essential to constitute the offence" for the purposes of s 17(2). This question is not necessarily answered in Snow, in which it was held that the only mental element relevant to the crime of rape was that the accused's act of penetration was voluntary and intentional in accordance with s 13(1). Their Honours did refer, in hypothetical terms, to the question of whether intoxication may be relevant to show an absence of knowledge, as distinct from intent, in respect of a crime in which actual knowledge was a requirement, but did not determine that question, and certainly did not relate that consideration to the Vallance state of mind. In Attorney-General's Reference No 1 of 1996; Weiderman (1998) 7 Tas R 293, the majority of the Court of Criminal Appeal (constituted by a bench of five) held that intoxication is relevant to the question of whether an accused actually knew that his criminal conduct was likely to cause death, for the purposes of murder as defined by the first limb of s 157(1)(c) of the Code. By analogy, it is arguable that because the Vallance state of mind requires proof of actual intent or subjective foresight, intoxication must also be relevant to that question. On the other hand, in R v Bennett [1990] Tas R 72, the Court of Criminal Appeal held that the crime of causing grievous bodily harm under s 172 is a crime to which the Vallance state of mind applies, but it is not a crime of specific intent and will not attract the operation of s 17(2).

4. I think the answer to this question must come back to the plain words of s 17(2). As Kitto J explained in the passage quoted above from Vallance, the state of mind constituted by actual intent or subjective recklessness is inherent in the act and closely related to the result, which constitutes the crime. It can be distinguished from a separate ingredient of crime which requires proof of a desire to bring about the relevant result. An example of a crime in which the distinction between the intention inherent in the crime, and the specific intent which is expressed as a separate ingredient of a crime, is apparent, is s 183(a), which creates a version of the crime of aggravated assault. That section defines the crime as:

   "(a)  assaults any person with intent to commit a crime, or to resist or prevent the lawful apprehension or detainer of himself or of any other person …".

5. Having regard to its formulation, proof of a crime contrary to s 183(a) (assuming the allegation relates to the first limb of s 182), will require proof of the following mental elements:

   (a)the commission of an act which is voluntary and intentional;

   (b)that (where the assault is under the first limb of s 183) the act is committed with the intention of applying force to the person of another or with subjective foresight that this will occur and proceeding with the act nonetheless (the Vallance state of mind); and

   (c)a specific intention to achieve, by means of the assault, one of the results defined in the section.

6. In my view, the description of the effect of s 17 contained in Snow makes it clear that s 17(2), as an exception to the general principle that intoxication should not be exculpatory, must relate only to the last of those states of mind, that is the specific intention to achieve a particular result. An interpretation which includes the Vallance state of mind as a specific intent for the purposes of s 17(2) is directly inconsistent with the basic premise of s 17, as explained in Snow, which is, as a matter of policy, to prevent self-induced intoxication from being used as an excuse for crime. Because of the close relationship between the act and the application of force in the case of assault under the first limb of s 182, it is difficult to imagine a case in which intoxication would not be relevant to the question of criminal responsibility, if the state of mind relevant to the application of force was a specific intent essential to constitute the offence within the meaning of s 17(2). In my view, this will be the case notwithstanding the limited circumstances in which such evidence will be exculpatory under that subsection.

7. I am satisfied, therefore, that the "specific intent" referred to in s 17(2) does not include the Vallance state of mind required to constitute the crime of assault by application of force under the first limb of s 184. It follows that the assaults charged in this case did not require proof of the formation of a specific intent, and, accordingly, the provisions of s 17(2) are not applicable. Accordingly, I declined to direct the jury in accordance with that section.  The jury was directed that evidence of self-induced intoxication does not rebut the presumption that the accused intended the natural and probable consequences of his acts, and that he is criminally responsible for actions which occur under the influence of alcohol which he had voluntarily consumed.

8. I would observe with the benefit of hindsight that it may also have been appropriate to direct the jury that evidence of self-induced intoxication on the part of the accused is irrelevant to the question of whether his acts were voluntary and intentional, although this direction is probably subsumed by the last direction stated above.

The effect of the pain relief medication

1. Counsel were agreed, however, that the jury could have regard to the evidence of the effect of the pain relief medication in relation to the question of whether the accused's actions were voluntary and intentional. Although s 17 does not distinguish between voluntary and involuntary intoxication, judicial comments in Snow and Weiderman suggest that that section is applicable only in the case of voluntary intoxication.

2. This approach would seem to be consistent with the way that s 17 has been consistently applied in practice. In the absence of submissions to the contrary, I determined that it was appropriate to direct the jury accordingly. It is, of course, necessary to distinguish between actions which occur independently of the exercise of the will of the accused because of medication administered to him, and those resulting from the alcohol that he had consumed voluntarily. Accordingly, I directed the jury that if there was a reasonable possibility that the accused's actions in applying force to the person of another occurred independently of the exercise of his will because of the medication which was administered to him, rather than the alcohol which he had voluntarily consumed, then those actions would not be voluntary and intentional and he would not be responsible for them.