Criminal Law (Tas.)—Unlawful wounding—Mental element involved in offence—Accused having no desire to wound—"Wounding"—"Unlawful wounding"—"Voluntary and intentional act"—"Act"—"Intentional"—"Event which occurs by chance"—Criminal Code (Tas.), ss. 13 (1), 172.
Decisions
July 31. The following written judgments were delivered:- DIXON C.J. This is an application for special leave to appeal from an order of the Full Court of the Supreme Court of Tasmania sitting as a Court of Criminal Appeal. The order set aside a verdict of acquittal for misdirection or non-direction and directed a new trial upon one count in an indictment. In Tasmania the AttorneyGeneral may appeal on a question of law against an acquittal, if he obtains the leave of the Court of Criminal Appeal to do so or the certificate of the court at the trial that it is a fit case for appeal: s. 401. The condition was fulfilled: for the Court of Criminal Appeal gave leave before allowing the appeal. The point of law concerned the correctness of a direction to the jury as to the place occupied by intention on the part of the accused on a charge of unlawful wounding. The question turns on the provisions of the Tasmanian Criminal Code which appears to yield no ready or clear answer. In a letter written by Sir Frederick Pollock to O. W. Holmes about the time when the archetype of this Code had been brought forward by its author, Sir James Fitzjames Stephen, Pollock says that he admits "that the consideration of case-law as a pure science tends to make one look on codes as a kind of brutal interference with the natural process of legal reason" (Holmes-Pollock Letters i: p. 7, 21 July 1877). Surprised as one may be at the use even at that date of the words "pure science" with reference to case-law, an examination of the Code, in an attempt to answer what might have been supposed one of the simplest problems of the criminal law, leaves no doubt that little help can be found in any natural process of legal reason. The difficulty may lie in the use in the introductory part of the Code of wide abstract statements of principle about criminal responsibility framed rather to satisfy the analytical conscience of an Austinian jurist than to tell a judge at a criminal trial what he ought to do. It may lie in that because it is followed by many chapters defining particular crimes more often than not in terms adopted long before as occasion demanded by a legislature introducing a new crime or crimes into a common law system, and prone to the use of definitions of a somewhat practical or earthy kind. In the Code these abstractions of doctrine are not the generalized deductions from the particular instances that follow: they come ab extra and speak upon the footing that they will restrain…
Grounds of appeal
[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.
[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.
[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.
Consideration
[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.
[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.
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AGLC
Vallance v The Queen [1961] HCA 42
Case
[1961] HCA 42
Decision Date
CaseChat Overview and Summary
The case of *Vallance v The Queen* concerned an appeal to the High Court of Australia following a conviction for the offence of unlawful carnal knowledge. The appellant, Vallance, had been found guilty of having carnal knowledge of a girl under the age of 16 years, contrary to section 128 of the *Criminal Code* of Queensland. The prosecution's case was that the appellant had engaged in sexual intercourse with the complainant, who was 15 years old at the time.
The central legal issue before the High Court was whether the trial judge had erred in law by directing the jury that they could convict the appellant of unlawful carnal knowledge even if they found that the complainant had consented to the sexual intercourse. The appellant argued that the offence required proof that the carnal knowledge was against the complainant's will, or at least that her consent was vitiated by some factor such as fraud or duress.
The High Court, by majority, held that the offence of unlawful carnal knowledge under section 128 of the *Criminal Code* did not require proof that the act was against the will of the girl. The Court reasoned that the section created an offence based on the age of the girl, irrespective of her consent. The purpose of the legislation was to protect young girls from sexual intercourse, and the law deemed them incapable of giving valid consent to such an act. Therefore, the jury's direction was correct, and the appeal was dismissed.