Wilson v The Queen

[1991] HCATrans 274

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IN THE HIGH COURT OF AUSTRALIA

Office of the Registry

Adelaide No A24 of 1991

B e t w e e n -

DARYL STEWART WILSON

Appellant

and

THE QUEEN

Respondent

MASON CJ
BRENNAN J
DEANE J
DAWSON J
TOOHEY J
GAUDRON J

McHUGH J

Wilson(2) 1 1/10/91

TRANSCRIPT OF PROCEEDINGS

AT CANBERRA ON TUESDAY, 1 OCTOBER 1991, AT 10.19 AM

Copyright in the High Court of Australia

MR S.W. TILMOUTH, QC:  May it please the Court, I appear

with my learned friend, MR G.D. ALCOCK, for the

appellant. (instructed by the Legal Services

Commission)

MR B.J. JENNINGS, QC:  May it please the Court, I appear

with my learned friend, MS A.M. VANSTONE, for the

respondent. (instructed by the Crown Prosecutor

for South Australia)

MASON CJ:  Yes, Mr Jennings. Mr Tilmouth.

MR TILMOUTH:  May it please the Court, Your Honours have

probably received already a written outline of

submissions.

MASON CJ:	We have.
MR TILMOUTH:	They were submitted yesterday afternoon,

Your Honours. Whilst they might be longer than is

ordinarily the case, the endeavour was an attempt

to summarize the early principles to save some oral

argument.

MASON CJ: Yes.

MR TILMOUTH:	Indeed, Your Honours, subject to a few comments about the three key English cases in
paragraph 3.1, our argument proposes to begin by
reference to Newbury's case at the top of page 3.
Just as background matters, Your Honours, can I
make these points? Your Honours may have noticed
that on page 8 in book I the information is
contained.  The information pleads only murder:
section 11, Criminal Law Consolidation Act. manslaughter is available as an alternative remedy
at common law. Section 13 of the Criminal Law
Consolidation Act simply prescribes that:

Any person who is convicted of manslaughter

Your Honours, the other preliminary matter - shall be liable to be imprisoned for life -

and I do not open at large on the facts at this

stage; I defer that, if I may, until the summing up

is tackled. The Crown case was not a case which

was developed or argued on traditional murder

grounds, that is the traditional intention or

reckless murder; it was mounted solely, as

Your Honours would have seen from the Crown opening
and also from His Honour's summing up, on felony

murder alone.

The brief facts were that the deceased had

left the hotel late in the evening of the Friday

evening of 15 September. He was clearly affected

Wilson(2) 2 1/10/91

by alcohol. At autopsy his blood alcohol reading

was .179 which was probably fairly accurate if

death occurred shortly after, which seems to be the

medical evidence. He had made - to use a neutral

phrase - a nuisance of himself and as a result of

appellant. It was in contest just how hard that

some kind of exchange between the appellant and

blow was but there is no doubt, if the Court

pleases, on the medical evidence, at least as we

argue it, that the cause of death was

unquestionably a blow to the back of the head which

was caused by falling to the ground or the footpath

or kerbing area and that caused a brain injury

which would have resulted in fairly approximate

death at the time. It was shortly before midnight

- these events - sometime between 11.15 and

midnight.	The police were called in shortly
afterwards.

Again, I do not argue the medical evidence at this stage but, in our submission, an important

predicate of the whole appeal was that in no way
could it be said that the original blow caused the
death, it was clearly the falling to the ground and

striking the back of the head which caused the

brain injury, which caused death. The importance

of that, of course, is, and the important question

on this appeal, is that if the English cases apply,

subject to what Your Honours make about the

evidence and the appellant's intention, then it is

still likely and inevitable, as the Court of

Criminal Appeal found, that the appellant was

guilty of manslaughter, because the English test is

a relatively undemanding one, in our submission,

whereas if the Holzer principles apply, then the

situation is quite different. Our submission is

that there was, on no account of the evidence, any

foresight that death or really serious injury would

have resulted from the blow. And that, of course,

throws up the question of the difference between

the English authorities and the Australian

authorities, or at least, the Victorian
authorities, which leads, of course, to the

question of whether the Holzer test is appropriate or some lesser test in the sense of what the Crown

has to prove.

Your Honours, may I add this, with respect, to the bottom of page 2, as a preliminary reflection

on the English authorities, without going to either

Larkin, Creamer or Church's case, these points: in

our respectful submission, although we do not go to

those cases, nowhere is it to be found in the

English authorities, up to 1943 and, indeed, with

respect, beyond, which explain why the English

position is as it is recorded in those cases. None

Wilson(2) 1/10/91

of the policy considerations which divided the
Court of Criminal Appeal here, in our respectful

submission, emerge from the judgments, or that the

judgments in England say, for example as in

Larkin's case, Justice Humphrey's said,

"Generations of judges have directed upon these

lines."

The other point we make as a preliminary point

on the English authorities is that, with respect,

it is not altogether clear whether the Larkin

formulation, that is, an unlawful act which is

dangerous and likely to injure, is an exclusive

test or whether Church is meant to be simply

another way of saying the same thing, "the all

sober and reasonable people" et cetera test, or whether Church was simply an endeavour to add a

further, and perhaps, additional explanation of

what was meant by "likely to injure" in Larkin

itself.

The Court of Criminal Appeal in this case has

come down in favour by a majority of the English

position but our point is, with respect, unless in different words there is, with respect, some

doubt as to which of the two applies or whether

they apply together. That again, in our

submission, is not clear from the authorities and,

in our respectful submission, it is not clear

either from Newbury in the House of Lords, which I

will take Your Honours to in a moment, to start

with.

What we submit, however, is clear - and,

again, this is the purpose of the written outline -

the propositions we put forward in paragraphs 2.1

to 2.5 seem to be fairly clear on all the

authorities, including the Australian authorities,

that is, in general terms, a series of

ameliorations from the principle stated in Hale

in 1630, designed to overcome the rigour or

automatic effect of an unlawful act resulting in death being manslaughter and, in our submission,

those principles in those subparagraphs were not in
dispute and were accepted in the Court of Criminal

Appeal and it seems from the outline of my learned

friend's, in this case they do not appear to be in

contest here and, accordingly, I do not address

them.

In our submission, as a basic starting point, the common denominator in the English authorities,

at least since Larkin, in 1942 or 1943, was that

the unlawful act had to be one which was dangerous,

however defined, and it had to be one which was

Wilson(2) 1/10/91

likely to injure another person, and obviously the

test was subjective, but by 1942 or 1943, and

certainly by Creamer's case in 1965, a basic or

foundational mens rea for the underlying unlawful

act itself -

DAWSON J:  You say it had to be subjective?

MR TILMOUTH: Well, subjective to the point that the

underlying unlawful act has to be intended.

DAWSON J: But beyond intending the act which causes the

death.

MR TILMOUTH:  It is objective, yes. And that emerges from

the passage isolated in Creamer, "when he intends

an unlawful act". Generally, of course, in these

cases in the nature of things it is an assault.

When I say "in these cases" I mean "unlawful and

dangerous act". But one of the things that is not

clear, with respect, is whether the unlawful act

had to be dangerous. One view of the law was for

the sake of manslaughter by an unlawful and
dangerous act it was unlawful because it was

dangerous on its facts, but I come back to that

point later.

DAWSON J: Really, when one is examining this aspect of the

law one has to look to the purpose of adding the

requirement that the act be not only unlawful but

dangerous. The law would be intolerable if you did

not have the requirement of danger. I mean if you

were exceeding the speed limit by one mile an hour

at the time an accident occurred and someone was

killed, you would be guilty of manslaughter.

MR TILMOUTH: That is partly our submission, as Your Honours

would see - - -

DAWSON J:  So when one is looking at the content of

"dangerous", one really has to have regard to the

purpose of that additional requirement.

MR TILMOUTH:  Indeed, and that is an essential part of our

arguments later, Your Honours, in paragraph 6, I

think.

DAWSON J: It was a pragmatic addition to the old

requirements. That is why you do not find it in
any of the cases; it was just absolutely

necessary.

MR TILMOUTH: Precisely, in our submission. Put another

way, there must be some, as we would argue it,

reasonable relationship between the fortuitous

death and the original culpability of the accused

person, and that is best captured by prescribing a

Wilson(2) 1/10/91

threshold that what he is doing is not only

unlawful but it is dangerous in the relevant sense
of the word. Otherwise, if it was simply a

requirement of unlawfulness without more, you would

be going back to the automatic rule which judges

have been striving to overcome since Hale's time.

Your Honours, as promised, I begin with the

Director of Public Prosecutions v Newbury,

(1977) AC 500, a decision of the House of Lords.

It is a fairly well known case, Your Honours, at

least the facts. Two young lads were convicted of

manslaughter and their convictions were upheld for

pushing stones, I think, over a bridge into the

path of an oncoming rail car and killing the

driver. But the facts are, in our submission,

relatively unimportant.

Before going to what the House of Lords has

said about the difference, if any, between Larkin

and Church, could I mention, Your Honours, that the

issue which had been certified by the Court of

Appeal which is stated at the bottom of page 500

was simply whether:

"Can a defendant be properly convicted of

manslaughter when his mind is not affected by drink or drugs if he did not foresee that his

act might cause harm to another?"

In other words, the argument was that there was an

element of subjectivity in the test. That was

rejected by the House of Lords.

Your Honours will also see at page 503 the

argument of counsel for the two young lads, and in

the middle of page 503, without reading, there is a convenient summary of the earlier principles in the

classic text. Hale, amongst others, is mentioned

as is in our paragraph 1.

But my purpose in going to this case,

Your Honours, is to deal with the Church/Larkin

formulations at pages 506-507. Lord Salmon, at

that page, in his speech on behalf of himself and three other Law Lords, said this, at just above G

on page 506:

The learned trial judge did not direct the
jury that they should acquit the appellants
unless they were satisfied beyond a reasonable

doubt that the appellants had foreseen that

they might cause harm to someone by pushing
the piece of paving stone off the parapet into
the path of the approaching train. In my view
the learned trial judge was quite right not to

give such a direction to the jury. The

Wilson(2) 6 1/10/91

direction which he gave is completely in

accordance with established law, which,

possibly with one exception to which I shall

presently refer, has never been challenged.

And then the citation from Larkin per

Justice Humphreys, which is in our written outline,

is referred to.	Then His Lordship goes on, at
page 507:

I agree entirely with Lawton L.J. that that is

an admirably clear statement of the law which

has been applied many times. It makes it

plain (a) that an accused is guilty of

manslaughter if it is proved that he

intentionally did an act which was unlawful

and dangerous and that that act inadvertently

caused death and (b) that it is unnecessary to

prove that the accused knew that the act was

unlawful or dangerous. This is one of the

reasons why cases of manslaughter vary so

infinitely in their gravity. They may amount

to little more than pure inadvertence and

sometimes to little less than murder.

And this is perhaps the key passage now:

I am sure that in Reg v Church (1966) 1 QB 59

Edmund-Davies J., in giving the judgment of

the court, did not intend to differ from or

qualify anything which had been said in

Rex v Larkin, 29 Cr.App.R. 18. Indeed he was

restating the principle laid down in that case

by illustrating the sense in which the word

"dangerous" should be understood.	Edmund-
Davies J said -

and again, there is a quotation there which has

been isolated in our written outline

The test is still the objective test. In

judging whether the act was dangerous the test

is not did the accused recognise that it was

dangerous but would all sober and reasonable

people recognise its danger.

What, with respect, appears to be Their Lordships'

view here is that the words in Church are simply

additional words, not qualifying or restating or

substituting for the Larkin principle, but

additional words which may be employed to emphasize

the degree of dangerousness required.

But, at all events, if Your Honours please,

this is the closest that any English authority, in

our submission, comes to, in any way, dealing with

whether there is any difference between the two

Wilson(2) 1/10/91

formulations, and how they sit together, one

against the other. I mention as well,

Your Honours, that Their Lordships rejected a

passage by Lord Denning in Gray v Barr which is the
passage which is indented at lines F to G on

page 507, which was argued by counsel for the

appellants was authority for the proposition the

test was partly subjective.

Your Honours, there was an additional speech

by Lord Edmund-Davies, as he was by then, in

Newbury. He, of course, had written the judgment

of the Court of Criminal Appeal or, at least,
delivered it in Church, and His Honour dealt with

his own judgment at the bottom of page 509 in these

terms:

Reg v Church, which the learned trial judge

adopted for the purpose of his direction to

the jury, marked no new departure in relation

to the offence of involuntary manslaughter.

In so far as the charge was based on the

commission of an unlawful act causing death,

the Court of Criminal Appeal was there

concerned to demolish the old notion (which

the direction to the jury in that case was
thought to have resurrected) that, whenever

any unlawful act is committed in relation to a

human being which causes his death, there must

at least be a conviction for manslaughter. In

delivering the judgment of the court, I

therefore said -

and again, there is a passage which has been

referred to earlier. And then His Lordship

continues, in relation to his own judgment in

Church, at line Bon 510:

The key sentence which followed has often been

quoted -

and that is the one in our written outline from

Church, Your Honours:

I would respectfully say that Widgery L.J.

(who was a member of the Court in Reg v

Church) was perfectly correct in observing in

Reg v Lipman that, "The development recognised

by Reg v Church relates to the type of act

from which a charge of manslaughter may

result, not in the intention (real or assumed)
of the prisoner".

But, in so far as Reg v Church has been regarded as laying down that for the proof of

manslaughter in such circumstances what is

required is no more than the intentional

Wilson(2) 1/10/91

committing of an unlawful act of the

designated type or nature, it followed a long

line of authorities which the court there

cited. Of these the best known is possible

Rex v Larkin, dealt with in detail in the

speech of ..... Lord Salmon. Accordingly, if

Reg v Church was wrong, so was its long

ancestry.

I believe that Reg v Church accurately applied the law as it then existed. I

believe, further, that, since it was decided,

nothing has happened to change the law in

relation to the constituents of involuntary

manslaughter caused by an unlawful act.

So, in our respectful submission, Newbury

appears to be saying that there is no material

difference between the two. It appears further to

be saying that Church may be an additional

formulation which might be added to Larkin to

emphasize the degree of danger, or the foresight
required in the degree of danger, but, in any

event, Newbury is an affirmation by the House of

Lords of the fundamentals first argued to

Your Honours, the requirement of unlawfulness, the

requirement of an underlying dangerous act, to

found manslaughter by an unlawful and dangerous

act.

DAWSON J: After all that, what is the difference between

manslaughter by a dangerous and unlawful act and
manslaughter by criminal negligence, other than the

unlawfulness?

MR TILMOUTH:	As to negligence, there may be an area where what is originally done is not itself unlawful.
That probably is the major difference between the
two. It may, of course, be unlawful, perhaps in
the regulatory sense. Perhaps an example, as
Your Honour put to me a few moments ago; there
might be an unlawful act which is not a dangerous
act inherently, but generally the difference, in
our submission, would be that - - -

DAWSON J: So, does that mean, in most cases, if you are not

caught by manslaughter by an unlawful and dangerous

act, you would be caught by manslaughter by

criminal negligence?

MR TILMOUTH: Perhaps not, with respect, because the degree

of - "danger" is not perhaps the appropriate word, but the risk which was created in the manslaughter

by negligence case is a very high risk indeed.	One
would argue by that it necessarily follows one which must inherently be dangerous.

Wilson(2) 9 1/10/91

The problem with that formulation, of course,

it overlooks the omission cases but then again one

might add that it can be foreseen that in the

omission to intervene the risk is a high risk of

death or serious bodily injury unless something is

not done to assist the person concerned.

DEANE J:  When death occurs in a road accident and the

accused person was exceeding the speed limit, what

is the direction that is customarily given in

South Australia? Unlawful and dangerous act or is

the ordinary manslaughter, culpable negligence?

MR TILMOUTH:  I would defer to Mr Jennings on that,

Your Honour, but in my experience, ordinarily the

"cause death by dangerous driving" provision in the

Criminal Law Consolidation Act would be charged.

MR JENNINGS:  Can I help the Court, at this stage?

MASON CJ: Yes, Mr Jennings.

MR JENNINGS:  I think it is fair to say first of all, sir,

that manslaughter is rarely charged in those cases

because we have a statutory provision - I think it

is section 14 of our Act. There the test is an

objective test with respect to the danger involved
in the driving. I think the classic direction is a
direction of Chief Justice Napier in an old case of

Duncan which is reported in volume 11 of our State

reports.

DEANE J:  Thank you.

MR JENNINGS: But can I also say this? If manslaughter is

charged - occasionally, I think, if the driving is

gross enough - then the test would be put along the
gross negligence lines and not unlawful and

dangerous act.

DEANE J:  Thank you.

MR TILMOUTH:  I am obliged to my learned friend,

Your Honours. In further answer to Your Honour

Justice Deane, in my experience the manslaughter option in that class of case has rarely been used

and the provisions relating to cause death by
dangerous driving provide for quite heavy penalties

both in terms of gaol and drivers licence

suspension; there are a mandatory minima which
apply.

Your Honours, that is all we wish to submit about the English authorities and we go straight to

the case, of course, which was central here and

that is the case of Holzer, (1968) VR 481, a

decision of Justice Smith of the Victorian Supreme

Wilson(2) 10 1/10/91

Court. Your Honours, the significance of this

case, apart from all else, is that in some respects
its facts are similar: there was a fight; a punch

in the mouth; there was an injury causing death

from falling backwards. But there was also, in

this case, some clear evidence that the original

punch must have been a fairly hefty one because

there was a half-inch tear on the inside of the lip

which was clearly and unequivocally attributed to

the original punch which caused the falling to the

ground.

Your Honours may notice at the bottom of

page 481 that counsel's argument for the Crown was

that Mamote-Kulang applied and that the appropriate

direction to the jury - this is a trial case -

Justice Smith was considering the directions he

should give and the direction sought was that -

lines 51 to 52:

they should also be told that it is

manslaughter to cause death by an unlawful act

which is dangerous in the sense that a

reasonable man would have realized that it

would create a risk of some bodily injury,

albeit not serious injury.

Mr Crockett, as he then was, for the accused argued

this:

The law as to manslaughter by unlawful dangerous act was too widely stated in R v

Church ..... The jury should be directed that to

constitute manslaughter under that doctrine

the circumstances must be such that a

reasonable man would have realized that the

unlawful act would, more probably than not,

cause grievous bodily harm. R v

Longley ..... suggests a strict requirement of

mens rea -

and there was a reference as well by him to

Mamote-Kulang.

Justice Smith commenced with the observation

that:

The authorities relating to involuntary

manslaughter are in an unsettled state -

and, in our submission, clearly they were.

His Honour then purported to sum up what his views

of the law were and he began that at about line 36

on page 482:

In relation to the unlawful dangerous act

doctrine, the unlawful act, it seems clear,

Wilson(2) 11 1/10/91

must consist of a breach of the criminal law.

The weight of authority, as it appears to me,

is against the view that the accused must be
shown to have acted with realization of the

extent of the risk which his unlawful act was

creating. Authorities differ as to the degree

of danger which must be apparent in the act.

The better view, however, is I think that the

circumstances must be such that a reasonable

man in the accused's position, performing the

very act which the accused performed, would

have realized that he was exposing another or

others to an appreciable risk of really

serious injury.

DAWSON J:  Where did His Honour get that from?

MR TILMOUTH: That, with respect, is fairly unclear.

DAWSON J: Save for the judgment of himself in Longley.

MR TILMOUTH:  I think it was His Honour in Longley. There

was another judgment - I think it might have been
Terry - also a single judge's decision. Apart from

that, Your Honours, he certainly did not say where he obtained it and it may be reasoned that perhaps he obtained it by analogy with the law, as it is

now developed anyway, related to reckless murder.

The phrase "serious bodily injury caused" or really

"serious injury" is familiar enough and was

familiar enough then in our law related to murder

and His Honour appears to have, as it were, created

the test for manslaughter falling short of murder,

the next step down, the difference being -

DAWSON J:  The absence of intent, other than intent to do

the act.

MR TILMOUTH:  That is right. The difference being

subjective for murder, or reckless murder,

objective for manslaughter, and in that sense they
fit together fairly neatly.	The argument for the

Crown here might be, "It's too close" .

DAWSON J:	He just does not say that or give any clue in his reasoning process.
MR TILMOUTH:	No, it does not, and it differs, of course, in

that respect to the English authorities which are

little varied but certainly do not go so high as to

suggest really serious injury.

DAWSON J: But, of course, then he goes on to get it wrong

with regard to criminal negligence.

MR TILMOUTH:  The negligence, yes.

Wilson(2) 12 1/10/91

DAWSON J:  And makes that subjective too.

MR TILMOUTH:  Yes. That was wrong and the Full Court of

Victoria in Nydam, which is on our list, held so

because His Honour's test there was foresight of

really serious injury or death which, of course,
for practical purposes for a jury instruction was

indistinguishable from reckless murder, certainly

as we know it now from Crabbe and other cases.

Your Honours, I do not intend to go to Nydam,

but it is (1977) VR 430, and the relevant passage,

disapproving His Honour in the negligence test, is

439-440. I should add, Your Honours, however, that

in Nydam, on the issue of negligence, the court there held that the risk that must be involved, albeit objective, was the high risk that death or

grievous bodily harm would ensue.

Your Honours, returning to Holzer at 482, I

continue from where I left off - it is about

line 46 - to answer Your Honour Justice Dawson:

The view which I have expressed, that

realization of the risk created does not have

to be proved against the accused, is a factor

in persuading me that the degree of apparent

danger must be that which I have attempted to

define, and that it is not sufficient, as it

was held to be in R v Church to show there was

a risk of some harm resulting, albeit not

serious harm. I may add that although, under

the doctrine of manslaughter by unlawful
dangerous act, mens rea is necessary, this

requirement, in my view, is satisfied by proof

of an intention to commit the assault or other

criminally unlawful act of which the accused

has been guilty.

Lamb's case is cited. Inherent in that passage,

Your Honours, in my submission, and in further

answer to Your Honour Justice Dawson, it appears

that His Honour is adding as a counterweight, as it

were, to the fact that the test is objective, the

consideration that the really serious harm is the

degree of harm required, and that comes from his

expression at line 48 that:

that realization of the risk created does not

have to be proved against the accused, is a

factor in persuading me that the degree of

apparent danger must be that which I have

attempted to define.

In other words, His Honour on the one hand has made

a concession to the weight of authorities that the

test must be objective but, as a countervailing

Wilson(2) 13 1/10/91

safeguard, His Honour is apparently pitching the

foresight at a high level.

DAWSON J: Well, if he had not made it objective, there

would be no difference between reckless murder and

manslaughter by an unlawful and dangerous act.

MR TILMOUTH: Precisely.

DAWSON J: But the problem is that on the one hand you have

someone saying that is serious harm, and on the

other hand you have others saying that it is harm.

How do you choose? Upon what criteria?

MR TILMOUTH: Well, with respect, in the ~ct result perhaps

that is a value judgment. Ours mission - - -

DAWSON J:  On what values?

MR TILMOUTH: It is another difficulty, of course, with

respect. The old law, of course, was on the policy

consideration, it seems, that no matter how
fortuitous or how much bad luck was involved, if

death happened to result from an unlawful act, you were guilty. As we know, of course, that has been

read down progressively over the years, but some

residue has remained. The law has apparently not

given up the fact that in some cases where death results the offender can be culpable in homicide

and it appears that that is a matter of a policy

choice, that the consequences are in part to be

accounted in the original unlawfulness.

DAWSON J: Well, is it a circumstance to be taken into

account that manslaughter stretches, as has been

said in one of the passages you have read, from

something that is not particularly blameworthy to

something that is particularly blameworthy, and for

that reason the test need not be a stringent one?

Is that something to take into account?

MR TILMOUTH: Perhaps it is, Your Honours. At the end of

the day our submission is - this is in our written

outline - that something more than just a direction
that some harm is required is needed to convey to

the jury that not merely trivial or negligible harm

will do and, indeed, our submission is something

more than that is required, to emphasize or to

retain any real meaning for the basic principle

that it had to be inherently dangerous.

Our first choice, of course, is for the Holzer

direction, but our second submission is, if the

Court thinks that is pitched too highly, for a

direction that the injury that had to be foreseen

was serious injury. In other words, it eschews the

tag or the qualification "really serious injury"

Wilson(2) 14 1/10/91

which brings it to the murder direction and puts it

in, as it were, the middle ground. The

qualification "serious" allows for merely trivial
or non serious assaults or not inherently dangerous

acts not to be caught by the doctrine, but it is

not as demanding, from the point of view of proof

of the offence, as "really serious" or "the

likelihood of death" or some similar terminology.

DAWSON J:  Why is that? One should not engage in unlawful

acts at all, and if one engages in unlawful acts

which cause harm why should he not be visited with

the consequences, criminally?

MR TILMOUTH:  The answer, of course, traditionally, is that

the consequences were never intended - - -

DAWSON J: But that is the very nature of manslaughter, it

is murder minus malice aforethought.

MR TILMOUTH:  Yes, but with respect, Your Honours, sooner or

later there must be some threshold test or some

threshold which the Crown has to overcome.

Otherwise you simply go back to, more or less, the automatic rule, and in our submission the

underpinning of that is in the doctrine of

dangerousness. When dangerousness is explained it

must be explained in terms which, in our

submission, convey to the jury it is not any and

every unlawful act which qualifies if death

fortuitously ensues.

DAWSON J:  That is the real problem. The problem of the

extension of unlawfulness in the modern age to so

many things, just regulatory times where you can be

a criminal many times a day without even knowing

it.

MR TILMOUTH: Precisely, and in our submission, on the

second criterion, the best is not really serious,

that is Holzer, but the risk of serious harm

resulting. It is the middle ground, as it were,

between the low threshold of not merely trivial or

negligible, which Justice Smith incidentally based

on the de minimus principle - I will come to that

in a moment - and on the other hand, the much

higher test of really serious injury, which on one

view places it too closely to murder to make it a

practical difference.

DAWSON J:  Do you say that if there is a residue of

blameworthy conduct which should be picked up by

manslaughter it would then be picked up by

manslaughter by criminal negligence?

MR TILMOUTH:  That as well, of course. We would submit, and

again this is in our written outline, the serious

Wilson(2) 15 1/10/91

injury requirement, or really serious injury,

parallels more closely manslaughter by negligence

or gross negligence, which requires that high

degree of negligence, which inherently requires a

very dangerous act, even if it is not unlawful.

DEANE J:  Mr Tilmouth, is there anything in these cases

which requires that the unlawfulness be a relevant

unlawfulness? What if somebody knocks down a

pedestrian when driving without a seat belt? Is

his act relevantly unlawful without more?

MR TILMOUTH: Well, it could be, on the authorities. The

first question Your Honour put to me, was there

anything in the cases which talk about "relevantly
unlawful", and the answer, with respect, is no,
except for the dangerousness issue. There is
nothing qualifying, in our submission, unlawful,

because that arose from very ancient times when it

was per se unlawful. In those days, of course,
they did not have, hardly at all, the battery of

regulatory type offences we have now.

DEANE J:  And is there anything relating to the difference

between an act which was not intended to inflict

personal harm and a case such as a punch which is

intended to inflict personal harm on the recipient?

MR TILMOUTH:  Only, I think, if I understand Your Honour's

question correctly, in the retention of the

manslaughter by battery criteria which, of course,

is a problem for us and which I have to come to.

But that would be my answer, if I understand

Your Honour's question correctly.

DEANE J:  So if it cannot be brought into battery, the fact

that the accused intended to inflict harm on the

deceased is really irrelevant to whether he is

guilty of manslaughter?

MR TILMOUTH: That would seem to be so. It might be

evidentiary, of course, but it would not be part of

the core elements.

Could I make a further answer to that though because it might be suggested that one of the

problems with the test that we formulate is just

that. On an ,objective appraisal it might not be

likely that the requisite degree of harm would

result, but nevertheless the offender had a

blameworthy state of mind. He intended some kind

of serious unlawful act, even though objectively

viewed it could not be foreseen.

BRENNAN J:  Why do you put "serious" in that context?

Wilson(2) 16 1/10/91

MR TILMOUTH: Well, perhaps I should have tried to be more

neutral for this purpose, but - - -

DEANE J:  If you are dealing with my question you would say

"non-serious".

MR TILMOUTH:  That is right. But the answer, Your Honours,

is that the intended type of harm of that intermediate variety is captured by other provisions well known to the law - assaults

occasioning actual bodily harm, malicious

wounding-type offences, and unlawful wounding-type

of offences. And it must never be forgotten, in

our respectful submission, in this case, that we

are never here talking about whether the offender

gets off scot-free, as it were. There is always

the foundation crime and generally, and certainly in a case like this, it is a species of assaults. And there are any manner of graduations up the

ladder from plain assault at common law to

aggravated assaults which cater for both, in one

sense of objective-type conduct which leads to the

serious consequence of death; or the subjective

element which intended some harm, but objectively

viewed would not qualify. In other words, there

are other offences which clearly cover the rest of
the field for which an offender can be culpable,

and some of the penalties which they prescribe are

quite serious.

BRENNAN J:  Mr Tilmouth, it seemed to me that the choice

between "likely to cause some harm", "likely to

cause serious harm", and "likely to cause really

serious harm" might well be a matter of, as it

were, judicial predilection in a sense, and that

the area which presents the greatest difficulty for

your argument is the comparison between the case
where the act that is done carries an appreciable

risk of one or other of those harms, and the case

where there is an intention to cause some harm,

because your argument would bring a disconformity,

would it not, between those two categories of

manslaughter?

MR TILMOUTH:  Would Your Honour put that in the context of

both our submissions? I can understand that, with

respect, on Holzer, less so with respect on the

foresight of some serious harm.

BRENNAN J: Well, perhaps I should ask this question first: is there a category of manslaughter which consists of the doing of an unlawful act which causes death

when the offender intends to do an act causing some

harm?

MR TILMOUTH:  The answer would probably be yes because, although perhaps objectively it might not be

Wilson(2) 17 1/10/91

foreseen, the criterion still requires the jury to

put themselves in the shoes of the defender

himself, in the position of - the person would

realize. Justice Smith in Holzer, forgetting the

really serious injury limb, it must be such:

that a reasonable man in the accused's

situation -

performing the very act which the accused

performed -

would have realized that he was exposing -

another, et cetera. Now, if he subjectively

realizes, by definition he would have realized.

The one is captured by the other.

BRENNAN J: But is it sufficient in that case that he

realizes or foresees or intends - more accurately
for the purpose of my question - to cause some harm

but not serious harm?

MR TILMOUTH: Well, the answer to that, on our submission,

is no, but I am not sure if Your Honour is

directing towards the realization or the degree of

harm required.

BRENNAN J: Degree of harm.

MR TILMOUTH:  No, we would submit it must be at least

serious otherwise too many relatively less

blameworthy acts would be caught within the

manslaughter doctrine and it would create too much
of a discontinuity between the original offending

whose mens rea is really that of just a common

assault to make it culpable as homicide through

manslaughter.

DAWSON J: But if he intended really serious harm it would

be murder.

MR TILMOUTH:  That is true. But if he intended serious harm

it would not.

BRENNAN J: Well, if he intended serious harm that was

likely to cause death, he would.

MR TILMOUTH: Well, one might add we could - reading these

cases and the formulations, one can go around in
circles for a long time. But, Your Honours, with
respect, in our submission, I think I have made the
point some kind of threshold is required to eschew

the less blameworthy category of cases from being

caught by manslaughter and the appropriate hurdle,

in our submission, is the - we concede the

objective test on all the authorities but, in our

Wilson(2) 18 1/10/91

submission, seriousness is sufficient for the

purpose.

Your Honours, I was dealing with Holzer's case

and I should go back to that because the other

hurdle that we face is the question of battery

manslaughter. Justice Smith considered that at

page 483. I had finished my submission on

page 482. His Honour added this, at page 483:

in view of what I have just been saying in

giving this ruling, in view of what was said
yesterday, and, I might add, in view of the

state of the evidence, my impression in

relation to the present case is that upon an

application here of the Mamote doctrine the
real issue would be whether the blow was
struck with an intention to do Harvey, (the

deceased), some physical injury not merely of

a trivial or negligible character, and that on

an application here of the unlawful dangerous

act doctrine the real issue would be whether

the blow was a dangerous one in the sense that

a reasonable man in the accused's situation,

striking that blow in the circumstances, would

have realized he was exposing Harvey to an

appreciable danger of really serious injury.

So, His Honour is there contemplating to

counsel putting two tests: unlawful and dangerous

act in the sense as he has described it, but also

battery manslaughter, as I call it, Your Honours,

flowing from Mamote-Kulang.	Hence, he directed the
jury at line 24 on 483:

The first is an unlawful assault and battery committed by the accused on the deceased; and

that the expression "assault and battery"

means, in law, an intentional application of

physical force to the deceased's body in a

hostile manner without his consent and without

lawful justification or excuse.

If I could skip the middle passage and go down to

line 46:

The intended injury need not be a serious

injury. Indeed, if it were a serious injury

that was intended we would be in the field of

murder, not manslaughter. The injury intended

may be of a minor character but it must not be

merely trivial or negligible. There is an

alternative way in which it would be open to

you here to find that the charge of

manslaughter had been made out. That would be

if, in addition to the first two elements

which I have mentioned to you and which you

Wilson(2) 19 1/10/91

may think are clearly established, but without
the third element I have already mentioned of
intent to do physical injury ... there was,
instead, this further element that the blow,

the assault, was a dangerous act, in the sense

that a reasonable man in the accused's

situation, striking this blow in those

circumstances, would have realized that he was

exposing Harvey to an appreciable danger of

some really serious injury.

So, His Honour puts the two bases of liability and,

finally, could I mention, Your Honours, that at 484

line 35 His Honour explained why the words "not

merely of a trivial or negligible" were added in

his direction on battery manslaughter and he said

this at line 35:

the reason for saying that the intention must

not be to inflict merely trivial or negligible

injury is that there is a principle of law

that the law does not concern itself with

trifles -

that is the de minimis principle.

Your Honours, in our submission, something important has happened there in the judgment and

the directions of His Honour Justice Smith because at times we see in the judgments some variation of the Church formulation of some harm, albeit not

serious harm, and occasionally one sees the
intrusion of the words "inflict merely trivial or
negligible injury" as the lowest degree of harm

required.

In our submission, His Honour Justice Smith,

in this sense, is out of line with the main line of

cases. His introduction of the de minimis

principle here, in our submission, is really the

only case where this arises, but as a consequence

occasionally we see in the context of "unlawful and

dangerous act manslaughter", the addition of the

words on top of or in substitution of "not serious

harm", the words that His Honour put only in the

context of "manslaughter by battery assault" of

"merely trivial or negligible". Whatever else may

be said, in our respectful submission, those words
should be eschewed and not used in any direction
because they tend to reduce yet again, in our

submission, the Church formulation to a criterion

of "not merely trivial or negligible". It brings

it down yet further.

Your Honours, without reading the case of

Wills, that formulation was approved and applied by the Full Court of the Supreme Court of Victoria in

Wilson(2) 20 1/10/91

Wills, (1983) 2 VR 201 at 211 to 213. I do not

read it, Your Honours. There is nothing additional
by way of analysis which is added, except that the
Holzer doctrine is preferred by Their Honours,

Justices Lush, Murphy and Fullagar, to the English authorities and Their Honours say in that case that

the formulation of Justice Smith in Holzer has been
in use for a long time in Victoria.

Your Honours would have also noted that the

case of Ward appears in the judgments of
Their Honours in the Court of Criminal Appeal of

Western Australia. It is on our list of

authorities, Your Honours. Holzer is mentioned at

page 40 of that judgment. His Honour the

Chief Justice, Justice King in the court below,

uses it as a case in support. Justice Cox says it

does not really arise.

Your Honours, I do not read it, to save time, but we concede that the reference to Holzer in Ward

at page 40 is neutral. It could be regarded on one

reading as an implied acceptance; on another
reading it might be regarded as a passing

reference. In our submission, a reference to

Ward's case does not add anything to the current

debate on the topic.

DEANE J: But if you take assault battery murder as but an

example of manslaughter where there is an intention
to cause hurt, you then would move this whole
argument of unlawful and dangerous into the area

and confined to the area where there was no

intention at all to cause hurt, which would be

conducive to acceptance of Holzer or something like

it in that area but, of course, would be quite

unhelpful from the point of view of your client in

this case, would it not?

MR TILMOUTH:  Yes, it could be, because in effect the case

was lost in the Court of Criminal Appeal on the

battery issue, and I need to come to the evidence

on that - or one important passage. But, in our

respectful submission, apart from the subjective

element which I have endeavoured already to answer

from other questions, that if the subjective intent

is held it, by definition, covers the objective

circumstances and would be caught by the rule.

The problem, in our respective submission -

and this is dealt with in paragraph 8 of the

written outline - with retaining battery, is that

you might have some batteries, by definition, but

which are not necessarily dangerous because,

subject to any qualification of the expression or

definition of battery by Chief Justice Barwick in

Wilson(2) 21 1/10/91

Phillips, battery is really	ust the application of
force as distinct from the	.reat of harm and - - -

DEANE J:  What I was really suggest~~g to you was that it is

sufficient to intend to cause hurt to produce

manslaughter, if the unlawful act committed with

that intention in fact produces death.

MR TILMOUTH:	On current authority, yes.
DEANE J:	And, one only moves into the relevance of the test

of unlawful and dangerous, whatever that might

mean, absent an intention to cause hurt?

MR TILMOUTH:  Yes, on the current state of authorities, and

our submission, of course, is that especially the

closer you get to the English authorities, the less

need there is for battery manslaughter, because on

the Church and Larkin formulation, battery

manslaughter is subsumed within the very

definition, "likely to injure", and so there is no

if the battery itself is not, on its facts,

separate category there and, in any event, in our purpose

submission, the retention of a separate category in

a dangerous one, because it would create an odd

category aside from the general principle, which is

really a hangover, at it were, from the old days

when all unlawful acts axiomatically led to a

conviction and, as Your Honours would know, from
our written outline, we argue that whatever test is

adopted, we submit that the separate category of

battery manslaughter, should be done away with

because "unlawful and dangerous act", however

defined, caters for it. I will come back to that

later, if I may, to give an example.

McHUGH J:  Mr Tilmouth, before Holzer, is there anything in

the cases which support the proposition that what

was required was an appreciable risk of really

serious injury.	Where did Mr Justice Smith get
that formulation?

MR TILMOUTH:  I think the answer is, with respect, the

answer Your Honour Justice Dawson pointed out, only

from Victoria, and I think it was either the case

of Terry - any rate, I think it was the judgment of

His Honour himself. We are not aware - stood to be

corrected - of any other case which, before that time, had adopted that relatively high threshold

test, outside of Victoria.

Your Honours, I turn from those authorities.

I do not stay to analyse the differences in the

Australian authorities, or the New South Wales

authorities referred to by Their Honours in the

court below. In our submission the New South Wales

Wilson(2) 22 1/10/91

authorities, especially of Coomer and Royall, are

really neutral on the subject-matter. None of them

really grapple with the differences between the

English and Australian authorities.

Your Honours, my purpose now is to go to the

High Court decisions, and I will do those as

quickly as I can, but there are various statements

of importance. The first comes from a pre-Holzer

case of Mamote-Kulang v Reg, which has been mentioned several times, (1964) 111 CLR 62.

Your Honours, this involved a conviction for

manslaughter. The appeal was dismissed by this

Court from that conviction and the facts, very

shortly stated, were that there was a blow to a

spouse, or a de facto spouse, with a back of a

hand, but it was a fairly forceful blow, to the

abdomen area, which ruptured the spleen and which

caused death.	And this Court held that that was
manslaughter.

The key judgment is Justice Windeyer, but

could I mention in passing some other passages

which relate the facts to the law. At pages 63 to

64, Justice McTiernan, who presided, said this

right at the bottom of page 63:

In my opinion it would be reasonable to infer from the evidence that the blow would

not have been fatal if the woman's spleen had

been reasonably sound. Also that the accused

did not foresee that death might result from
the blow.

His Honour then went on to consider the essential defence which was one of accident in that case, and

decided that he would dismiss the appeal on that

basis seemingly that death might result from the
blow. Justices Taylor and Owen on the facts at

page 64 just above the reference to the Queensland

Code at the bottom of 64 said:

It is clear that on these facts the

appellant would have been guilty of
manslaughter under the common law, but we are
considering here not the common law but The

Criminal Code.

And Justice Menzies in dissent at page 75 referred

to the fact at about point 3:

It is not an altogether simple task to

apply the law as I have stated it to the facts

as found by his Honour but, as I construe
those findings, the blow here was delivered
with the intention of hurting but not of

harming, and Donate's death or the killing of

Wilson(2) 23 1/10/91

Donate was a consequence which Mamote did not

intend or expect and was not reasonably to be

expected by an ordinary native villager.

So His Honour's dissent was, as it were, on his

interpretation of the facts. But the key passage,

Your Honours, for these purposes is at page 79 per

Justice Windeyer, where this whole area is referred to. His Honour quotes at that page the definition from Hale which is in paragraph 1 of our written

outline, and His Honour went on at about point 4:

That passage states the common law as it still

is. If death is a consequence, direct not

remote, of an unlawful act done with intent to
do grievous bodily harm, it is murder. If it
is a consequence, direct not remote, of an

unlawful act done with intent to hurt but not

to do grievous bodily harm, it is

manslaughter. To prevent misunderstanding, I

should add at this point that, whatever may

have been the position in earlier times, it is

not now enough to constitute manslaughter at

common law that a man is killed in the course

of an unlawful act of any kind. To make an

unintended and unexpected killing a crime at

common law, it must now be, generally

speaking, the result of an unlawful and
dangerous act, or of reckless negligence.

There is, however, no doubt that at common law

a man is guilty of manslaughter if he kills

another by an unlawful blow, intended to hurt,

although not intended to be fatal or to cause

grievous bodily harm.

DAWSON J:  Now, what does His Honour mean there by "intended

to hurt"? If he means that is to indicate the

unlawfulness of the act, I understand it. If he

means something else, I do not.

MR TILMOUTH:  Your Honour, what it seems those four key

lines have been used for is as the foundation for

battery manslaughter at common law in Australia.

All the subsequent cases, including Justice Smith

in Holzer, refer to that as the genesis of the
battery manslaughter doctrine. And Justice Smith

in Holzer specifically purported to apply that in

giving the alternative direction on that footing.

DAWSON J: But we are concerned with another category of

manslaughter here.

MR TILMOUTH:  We are, with respect, except for here the

application is of the proviso. But, Your Honours, that is the high point, as it were, of the battery

manslaughter doctrine in Australia, this judgment

of His Honour Justice Windeyer, and really, when

Wilson(2) 24 1/10/91

all is said about it, this is the source of the

authority which any judges use to give a direction

along battery lines. His Honour continued:

It does not avail an accused charged with

manslaughter in such a case to say that death

was unexpected and that it was only because

the person struck was in ill-health or had

some unsuspected weakness that the blow proved fatal. That does not make homicide excusable.

A killing is not the less a crime because the

victim was frail and easily killed.

So putting aside any problems there that those

key four lines referred to may have, His Honour was

at least adopting, without referring to

authorities, of course, that it must be:

the result of an unlawful and dangerous act -

at about point 6 of that page. Your Honours, I do

not read the next case where this is referred to,

but I mention Timbu Kolian -

DAWSON J:  Can I just stop you there, Mr Tilmouth. What is

the relationship between battery murder, which is

felony murder, is it not, and an unlawful and

dangerous act? Where the unlawful act is a felony,

does it then merge into the felony murder rule, and

you not concerned with it?

MR TILMOUTH:  If it is dangerous or violent, then it becomes

murder. If the unlawful act is dangerous or

violent it is murder.

DAWSON J: Yes, of course.

MR TILMOUTH:  And if one goes back to Larkin, and this is

not isolated in our written outline, but if one

looks at the judgment of Justice Humphreys in

Larkin, one can see that when His Honour comes to

the conclusion which is in our written outline, he

deals with the felony murder rule, where there is

violence or danger, and he then deals with the
manslaughter by unlawful and dangerous act

doctrine. The two seem to have run together in the

development of the common law, the difference

being, originally at least, only in the fact that

the unlawful act was a felony.

DAWSON J:  Then His Honour Mr Justice Windeyer cannot have

intended, when he said that it may be manslaughter

when a person kills another by an unlawful blow

intended to hurt, although not intended to be fatal

or cause grievous bodily harm, he cannot have

intended then to refer to the battery murder rule.

Wilson(2) 25 1/10/91

MR TILMOUTH: That, with respect, is one of our arguments.

It would seem odd that His Honour would, as it

were, in a throwaway line, say, "By the way there

is another category of manslaughter altogether",

without at least referring to the authorities, or

what battery meant, for example.

DEANE J: But he is just not confining it to battery, he is

treating battery murder as an example of a class.

If, for example, you unlawfully and deliberately

removed a peg from a swing, intending to cause hurt

to somebody but not serious injury, it would be

manslaughter.

MR TILMOUTH:  Indeed. Put alternatively, in our submission,

it may be there but, with respect, it is a long

straw to say that that is an authoritative passage

for the application in Australian common law of a separate category of manslaughter by battery but,

in our submission, that really, in the end result,

is the genesis of any argument or the beginning of

any argument that it does apply in Australia as a

separate consideration to the more general

consideration that we have before the Court.

BRENNAN J:  Mr Tilmouth, I am not sure whether I have

understood correctly. You have referred to battery

murder, as well as to battery manslaughter.

MR TILMOUTH:  Did I say battery murder, Your Honours? That

was a slip of the tongue. However, unfortunately,

I meant battery manslaughter. They are my words,

just to save a long phrase, but I meant battery

manslaughter, and I apologize.

Your Honours, again to save time and because

it does not add a great deal, could I simply

mention in passing Timbu Kolian v Reg, where, at

pages 59 and 60 - I do not wish to read it,

Your Honours - Justice Windeyer, in a short

passage, refers again to the requirement "unlawful

and dangerous". That is 119 CLR at the bottom of
page 59 to the top of page 60.	I see Your Honours'
books have been brought out.	I was hoping to avoid
it.	The passage which I wanted to advert

Your Honours' attention to - it does not add much -

the last four lines of 59:

So far as relevant to the present matter, I

think it correct to say that by the common law
today an unintended, wholly unexpected and

unlikely killing is manslaughter if, but only

if, it be the result of some act which is both

unlawful and in the circumstances dangerous,

or is the result of some conduct amounting to

reckless negligence. The only thing which

would stand in the way of the killing of the

Wilson(2) 26 1/10/91

child in the present case being excusable by
the common law is that in striking at his wife

the accused was attempting to commit an

unlawful act -

by virtue of the act which is mentioned.	So there
is not a lot in Timbu Kolian.	I meant to mention

it only in passing, to observe that His Honour had

repeated, without much analysis or reference to

authority, essentially, in my submission, subject

to those other lines, the battery lines, the same

thing.

Your Honours, the more difficult case,

however, is Reg v Phillips, (1971) 45 ALJR 467.

Your Honours, I endeavour to avoid the facts, if I

can, because they are complex, but one might say,

as a summary, they are not unlike Church's case.

There was a fight and a body had been left, and

drowning was the ultimate cause of death.

This again was an appeal from Tasmania and involved essentially the Tasmanian Code and, in

effect, in its order this Court affirmed the

decision of the Court of Criminal Appeal to allow a

new trial to be had. The point was rather more a

construction of section 156 of the Criminal Code

Tasmania but, Your Honours, in dealing with the

Code Their Honours drew heavily on common law

principles.

Chief Justice Barwick, at page 472, the first

column at C, gave a definition of battery which

included a reference to, at about line D:

"an angry, revengeful, rude, insolent or

hostile manner".

That passage has subsequently been disapproved by

three Judges of this Court in Baughey - Your Honour

the Chief Justice, Justice Wilson, and
Justice Deane.	I will point that passage out
later.	Your Honour Justi~e Brennan was in dissent

in that respect and would have affirmed that

definition. More relevant, at about line Fin the

first column, the paragraph commencing there,

Chief Justice Barwick said this:

There is no need in this case to pursue the question whether all tortious conduct, or only

some tortious conduct is relevantly unlawful
at common law when the crime of manslaughter

is under consideration: nor whether the

decision of the Court of Appeal in Reg v

Church should be accepted. Further there is

no need for me to consider like questions

Wilson(2) 27 1/10/91

which may arise with respect to culpable

homicide under the Code.

So Chief Justice Barwick left Church for another

day.

However, Justice Windeyer, at 479, did deal

with the question of manslaughter. Just above

line Fin the first column, His Honour considered

the argument:

It is urged that an alternative path was

open to the conclusion that this was a

culpable homicide, because s.156(2)(c) states

that homicide is culpable "when it is caused

by any unlawful act".

And His Honour then goes on to examine the Code.

Then, at 479, the second column, refers to the Code

in the context of Ryan's case in this Court, and
then at line Con that second column, Your Honours,

he says, commencing at the passage "Fourthly" just

a little below C:

Fourthly: in my opinion Burbury CJ was right

when in his judgment in R v Mccallum ... .. which

I have found helpful and persuasive, he said

that s.156(2)(c) should be understood as

referring to an unlawful act capable of

causing physical injury leading to death, that

is an inherently dangerous act. That, I take

it, means an act that a reasonable man would

know was fraught with a risk of serious harm

to some person, whether or not the accused

actor was actually aware of this.

So, whatever else may be said about those words,

Your Honours - and I will come to Mccallum in a

moment because as we will be seeing,

Chief Justice Burbury applied Holzer - but,

Your Honours can see this element of dangerousness

is still quite prominent in Justice Windeyer's

statement, as it was, in Timbu Kolian and

Mamote-Kulang, but here we have the introduction of

the words we argue for as the alternative, are
"fraught with a risk of serious harm." That, apart

such as it is, which uses the alternative formulation we put to the Court, that is, "risk of

from, as Justice Cox pointed out, some judges in

serious harm" rather than "not merely trivial or

negligible", as opposed to the other end, "the

really serious harm".

Your Honours can see there, although on the

question of the construction of the Code, there is
a fairly unqualified endorsement of

Wilson(2) 28 1/10/91

Chief Justice Burbury in Mccallum, and I go to that

case because of that reference. Mccallum is

in (1969) Tas SR 73. Again, I avoid analysis of

the facts, Your Honours. Mccallum was found guilty

of manslaughter by striking his wife and
Chief Justice Burbury was sitting at first

instance. At pages 84 to 85 His Honour referred to

Mamote-Kulang and he referred to the passage which

I have read from Justice Windeyer in that case at

page 79 in the Mccallum decision at page 85, and I

do not reread it. Then His Honour goes on to

consider the question of unlawfulness, and there is

a reference to Timbu Kolian, and at page 86 in the

mid-page, he refers to the argument of counsel as

follows, about point 4 to point 5:

The "act" for the purposes of par. (a),

as Mr Bale argued, must be the accused's act

which is calculated to cause death or bodily

harm - it cannot include the bodily harm

itself. It would I think be anomalous and would produce an unjust result if the word

"act" in par. (c) were to be interpreted

differently from the word "act" in

par. (a) - that is to say, as including the

wounding. Wounding is of course, per se

inherently dangerous, and to construe "act" in

s. 156(2)(c) as including the wounding in a

case where the accused does not know he is
causing a wound would produce a result

inconsistent with the modern concept of

killing by an unlawful act explained in Reg v

Church, Mamote-Kulang v The Queen, Reg v

Longley and Reg v Holzer. Obviously if the

"act" includes the wounding, the direction

given by Smith J. in Reg v Holzer would be

incapable of application to the circumstances

of this case.

And then His Honour concluded, at page 87 point 6:

I propose to direct the jury in

accordance with Smith J's direction in Reg v

Holzer. It will be noted that this adopts an

objective test of "dangerous". That is in

accordance with Reg v Larkin and Reg v

Creamer.

And there is a passage from Creamer which is

isolated already in our written outline. And the

direction actually given, Your Honours, is at 88,

in a memorandum His Honour handed to the jury,

paragraph l(b)(ii):

To convict the accused of manslaughter the jury must be satisfied beyond reasonable

doubt -

Wilson(2) 29 1/10/91

and I go down to the last part:

was an act which was inherently dangerous in

the sense that a reasonable man in the
accused's situation, thrusting the candle into

the vagina with the force he did, would have

realised he was exposing the woman to an

appreciable danger of really serious injury.

So, with respect, we have the application by

His Honour, of the Holzer doctrine. Whether or

not, of course, Justice Windeyer's enthusiastic

approval of the judgment only went so far as the

interpretation of the code or further, is perhaps a

matter of debate but it is, with respect,

surprising that Justice Windeyer NOuld have spoken

in such elaborate terms if he had substantially

doubted the application of Holzer as it was applied

in Mccallum.

Your Honours, the next case - and there are

only three in this Court to go - is Pemble,

(1971) 124 CLR 107. This was a shooting case,

Your Honours, where this Court substituted a

verdict of manslaughter for a guilty verdict of

murder, but on grounds which are not relevant to

our argument, but there is some reference to the

Australian and English authority which should be

noted. At 122, Chief Justice Barwick considered

the question at point two in the paragraph

commencing there, whether what happened in Pemble

could have been "by misfortune or misadventure?"

At the third line in of that paragraph he

continued:

I think not. The killing of a human being in

the course of committing certain unlawful acts

is manslaughter. What unlawful acts are

sufficient for this purpose are perhaps not

yet precisely and fully defined or stated in

decisions or in texts; but it may be taken

that so far the view is held that to be

relevantly unlawful the act must be in breach

of the criminal law. Also there are statements that culpable or criminal

negligence resulting though by accident in a

killing will make that killing manslaughter.

But I find no need in this case to consider

that suggested basis for manslaughter. At

least the statement of Humphreys Jin R v

Larkin (1) is acceptable and presently

appropriate.

And His Honour then endorses the statement which

has been repeated and is in our written outline.

So no doubt there is at least some persuasive,

albeit perhaps obiter, force for the application of

Wilson(2) 30 1/10/91

Larkin in those words of Justice Barwick. And I

should mention, at the top of page 123, His Honour

concluded:

In my opinion, the act of the appellant in so

brandishing the rifle was an unlawful act of

the kind which would make the subsequent

killing manslaughter. In my opinion, at the

least it constituted an attempt to assault her

and was obviously dangerous to the deceased.

So at least, in my respectful submission,

irrespective of the final words, the degree of harm
of which foresight is required, there is the
underpinnings evident in the judgments of

Justice Windeyer of the unlawful and dangerousness which is required for the manslaughter doctrine.

Justice McTiernan, Your Honours, at the bottom

of page 127 and over to 128 simply said:

It was therefore an unlawful act -

under the relevant ordinance -

Besides, it was a dangerous act - this is obvious.

And over to page 128 -

resulted from an act which was both unlawful

and dangerous.

So, only a slight reference but still containing the core requirements.

Justice Menzies, however, at page 133, went

into the situation in a little more detail and

considered, towards the centre of that page, the

direction which the jury should have been given and

said: 

That direction should have informed the jury

not only that in those circumstances they

could not find murder but also that whether or

not they found manslaughter would depend upon

their being satisfied beyond reasonable doubt

either that the accused shot the girl while he

was using the rifle to commit a dangerous

assault or that in acting as he did he was

guilty of criminal negligence. As to this I

agree with the observations of Smith Jin Reg

v Longley (2) -

a 1962 decision, which I do not read but which is

important in the historical context - and then

added:

Wilson(2) 31 1/10/91

It is no longer sufficient to sustain a

verdict of manslaughter to establish merely that the homicide occurred in the course of

the commission of an unlawful act: Andrews v

Director of Public Prosecutions; Reg v Church;

Reg v Holzer. In the last-mentioned case

Smith J, having summarized the law established by Andrews v Director of Public Prosecutions

when referring to manslaughter by criminal

negligence by saying -

and then the passage is quoted, and His Honour went

on to cite a large passage which I read from

Holzer's case, and continued:

If an accused person is to )e convicted of

involuntary manslaughter b: reason of a

killing in the course of doing an unlawful

act, the jury must, upon a proper direction,

find that the accused was doing an unlawful

act. Unlawfulness cannot simply be assumed.

In this case it is by no means certain that, until a point had been reached that the girl

was frightened by what the accused was doing,

the accused committed an assault.

There is a quotation from Russell and a reference

to an American case, and then His Honour said:

With respect, it seems to me that the learned

judge was in error in directing the jury that

the killing occurred in the course of doing an

unlawful act likely to harm, rather than

submitting that matter to the decision of the

jury with a proper direction of law.

Your Honours would know, of course, that one of our

complaints about the trial judge here is he simply

left the jury with telling them that the degree of danger was a matter for them. He did not go on to

explain to them what was required.

So, Your Honours, perhaps Justice Menzies is

equivocal, but nevertheless, there is a fairly

substantial quotation from relevant parts of Holzer

without criticism in there. The difficulty with

Pemble is that His Honour Justice Cox regarded

Chief Justice Barwick as giving unequivocal support

for the English position by his reference to

Larkin's case.	He regarded Justice McTiernan, in
the passage which I have read, as equivocal.	He

regarded Justice Menzies, in his words, "It was
clouded what His Honour really meant." But he
regarded Justice Windeyer as supporting the

Chief Justice.

Wilson(2) 32 1/10/91

Justice Cox in the court below, regarded

Pemble's case as support for the English rather than the Holzer approach. In my respectful submission, it is not so clear. Justice Cox's

relevant passages are at pages 738 to 741,

Your Honours. I do not go to them.

Chief Justice King had a different conclusion at

page 712. His view was that Pemble's case did not

really contribute one way or the other finally to

whether the English or the Holzer doctrine should

be applied.

Your Honours, the second to last case in this

Court to which we wish to refer is Giorgianni v

Reg, (1985) 156 CLR at page 473. Again, this was a

New South Wales Code case, but it would be remiss

if we did not mention it. It was a case involving

whether you could be an accessory to manslaughter,

and this Court held you could be, to an involuntary

manslaughter at least. But the purpose for which I

cite it is contained at page 502, where Justice

Wilson and Your Honours Justices Deane and Dawson

refer to Hale's Pleas of the Crown in relation to

accessories, but at page 503 Your Honours refer to

extensively with approval Creamer, the 1966 English

decision which, of course, is the relevant passage

which is in our outline, and Your Honours say this

at point 5 on page 503:

That seems to us to be an accurate statement of the law and it follows that,

although a person cannot aid, abet, counsel or

procure the commission of an offence, even a

statutory offence involving strict liability,

without intent based upon knowledge of the

essential facts which constitute the offence,

the requisite intent and knowledge do not, in

the case of culpable driving, extend to the

occurrence of the death or grievous bodily

harm which "ensures upon" the unlawful act the

commission of what was aided, abetted,

counselled or procured.

Of course, what Your Honours in that judgment

did approve was not simply the passage in Creamer

which referred to the possibility of an accessory

to manslaughter but also the opening words:

"A man is guilty of involuntary manslaughter

when he intends an unlawful act and one likely

to do harm to the person and death results

which was neither foreseen nor intended.

DAWSON J:  But it was only the context of whether you could

be an accessory, not in the context - - -

Wilson(2) 33 1/10/91

MR TILMOUTH: That is our submission, but it would be remiss

not to mention it. What we would say, reading it

in that context, Justice Wilson and two of

Your Honours here were not, in our submission,

attempting to deal authoritatively whether

dangerousness was required or what the actual

direction should be. We do not dispute the

accuracy or any of the matters which have fallen

from Your Honours there, of course. But, in our

submission, so far as relevant here, it is really a

passing reference rather than, as it were, a

considered and authoritative pronouncement finally
saying that Creamer is the test for Australian law.

The last case in this Court which I wish to refer to, at least by reading, which has been

adverted to several times in passing is Baughey v

Reg, (1986) 161 CLR 10. This was a strangulation

case, Your Honours, and, again, the facts are

complex and I avoid referring to them. This was,

again, a Tasmanian Code case but there was some

reference to manslaughter in passing.

Your Honours, one passage that is not in our

written outline, or at least referred to in our

written outline, is Chief Justice Gibbs at page 14

to 15. The case, of course, essentially concerned

the meaning of the word "likely" which this Court

equated with "probable" without reducing it to

mathematical formulation. Chief Justice Gibbs, at

the bottom of page 14, the fifth last line, said:

If "likely" ins. 157(l)(c) were regarded as

meaning "possible", that provision would have

a very drastic operation, since it would treat

as murder a culpable homicide caused by any

unlawful act which the offender knew would

possibly cause death. A death in those

circumstances might understandably be regarded

as manslaughter, but it would be Draconian to

call it murder.

I should mention that in passing, Your Honours,

because there is that reference by His Honour to

manslaughter in that context however.

At pages 25 to 26 Your Honours

Chief Justice Mason, Justice Deane and also

Justice Wilson, deal with Phillips's case which I

have already referred to, the passage of

Chief Justice Barwick where he defined as including

in battery the elements of angry, revengeful, rude,

insolent, hostile, were disapproved by Your Honours

at about point seven to eight on that page:

they should not, in our respectful view, be

accepted as good law.

Wilson(2) 1/10/91

I simply mention that here, page 26, to complete

the reference I made arguendo earlier, but it is to

Your Honour Justice Brennan that I take the Court in dissent, because this judgment was one of the
key factors in our submission, hopefully not

putting it too highly, which led Justice Cox to

conclude that the English authorities were good for

Australian purposes.

At page 34 and over on to page 35, Your Honour

Justice Brennan deals with killing in the course of

an unlawful and dangerous act, and refers to, by

reference only, at the top of page 35,

Justice Windeyer in Phillips' case at page 479,

which I have read to Your Honours, and also to

Mccallum which I have read, and Rau, which

provides, in the Full Court of Tasmania, some

support for Mccallum, although not on relevant

points. Your Honour Justice Brennan then dealt

with Andrews v Director of Public Prosecutions, a

negligence case, and then to the famous judgment of

Justice Field in Franklin, which is referred to in

our written outline and upon which the

Chief Justice in the court below here seized the general principle for "great abhorrence of constructive crime", and then Your Honour continued

after that reference to Franklin:

the trend of the common law has been against

the view that manslaughter is committed merely

by doing any unlawful act which causes death:

the act must be both unlawful and dangerous.

And then Your Honour cited Justice Humphreys in

Larkin and Your Honour continued with a reference

to Lord Salmon in Newbury, in the House of Lords,

which passage I have read over to page 36 - I read

as the first case to Your Honours, and then,

further down on page 36 Your Honour considers, at

about point 6 and point 7, Church's case and

Newbury, and just after the second reference to

Church, Your Honour said this, about point 7:

It seems, then, that in relation to

manslaughter by unlawful and dangerous act

(criminal negligence apart), the test of
likelihood of injury to another person is no
higher than or different from the test of

subjecting another to a risk of bodily harm.

That is the risk which, if foreseeable by

sober and reasonable people, makes an unlawful

act dangerous so that death which is caused

thereby is manslaughter.

And then Your Honour quotes a passage in the

judgment of Justice Staughton in Mitchell. And

then Your Honour continues at the top of page 37.

Wilson(2) 35 1/10/91

As par.(c) of s.156(2) should be

construed according to common law principles,

it requires that the fatal act be dangerous as

well as unlawful and the test of the act's

dangerous character should be understood as

Edmund Davies J stated it: -

and, of course, that is the Church formulation -

an objective test of the risk of harm to some

person. The significance of this construction

of par.(c) in this case is to be found in the

light it sheds on the meaning of the phrase

"commonly known to be likely to cause death or

bodily harm" in par.(a) - a question

considered below. For the moment it is

sufficient to note that the dangerous

character of the act of applying pressure to

the carotid arteries or the carotid sinuses

was an element in culpable homicide under

par.	( c).
All sober and reasonable people would

realize that there is danger in the bilateral

application of pressure -

et cetera. That is picking up the Church
formulation.

Your Honour then goes on, at page 38, to consider the definition of "battery" adopted by

Chief Justice Barwick in Phillips. It is isolated

and indented at the bottom of 38, and Your Honour

goes on to accept that definition in the middle of

page 39 in saying this, just after the reference to

s.182(3):

But where the person assaulted is not able consciously to give or withhold consent, it is

important to remember that the application of

force is unlawful only if the assailant acts

in "an angry, revengeful, rude, insolent or
hostile manner" -

and Your Honour proceeds to give an example.

There are many passages I could read, but

finally, Your Honour concludes at page 44 in

respect of the meaning of the word. "likely", at
about point 4, three lines after the reference to

the case of Fleeting:

it would be absurdly Draconian to hold that

the phrase "likely to cause death or bodily

harm" connotes a possibility of death or

bodily harm. That would equate the danger to

be apprehended from a lawful act with the

Wilson(2) 36 1/10/91

danger to be apprehended from an unlawful

act - "the risk of some harm" - under par. (c).

A lawful act which carries a possibility of

harm, albeit a substantial possibility of harm

to another, may not a.mount even to civil

negligence. It would be harsh indeed to

require conviction for manslaughter if such an

act should unintentionally cause death. But

where the probable result of a lawful act is

that death or bodily harm will be caused to

some person, it is understandable that the

legislature should provide that the doer of

the act be guilty of manslaughter if death

should result from the doing of that act -

and so on. So, with respect, it is true, as

Justice Cox held, that Your Honour appears, at

least for the purposes of that argument, to be

endorsing the Larkin and Church principles but,

with respect, in my submission, what Your Honour

was doing there was giving emphasis in your

judgment to the questions of possibility and

probability. The other thing to be noted, of

course, is, as Chief Justice King noted - I think

it was Chief Justice King - but in any event, in

our argument, it is to be noted that Your Honour

did not refer to the Australian authorities such as

Holzer in that context, so whether or not

Your Honour was, with respect, endorsing the English authorities or simply using them for

another purpose is, perhaps, a matter for the Court

but, in our respectful submission, although it must
be acknowledged that Larkin and Church are cited

with approval, that the submission is, in our

respectful case, in a slightly different context.

Your Honours, that is the review of the High

Court authorities. I apologize if it was too long

but, obviously, those passages bear on the case at

bar. I should mention that in Royall, Your Honours

Justices Toohey and Gaudron referred to, with

approval, Daley's case in the Privy Council, a

manslaughter by negligence case, but in the

context, we submit, of causation and, with respect,

not directly relevant to the case here - that is at

page 708 in the report in Royall which is on our

list of authorities.

Your Honours, with that review of the law, our submission, which has largely been put arguendo, is

this: if Justice Smith observed at the time he

decided Holzer that the state of authorities was in

an unsettled condition, in our respectful

submission that remains true now, and the various

expressions from single Judges of this Court

demonstrate that. In our respectful submission,

there can be no doubt about the trend of

Wilson(2) 37 1/10/91

authorities towards the amelioration of the rigours

of the common law and, as Chief Justice King said

when he dealt with policy matters and the reason

why he preferred Holzer was that the law has

gradually devolved to making persons responsible in

manslaughter where their original act is culpable

or serious or dangerous enough to attract

responsibility on the footing of homicide going
beyond the mere foundation crime.

In our respectful submission, the whole trend of the authorities in subparagraph (2) of our

written outline has gradually been towards that

particular end. We accept that the law has never

given up, that you can be guilty of murder through

resulting in fortuitous death, but has moved more

closely towards an act, however described, which is

culpable enough to attract liability on

manslaughter principles. It has been underpinned,

in our submission, by most of the authorities, by the requirement of dangerousness. The difficulty

has been how do you define dangerousness to the

jury, and what degree of foresight is required, or
perhaps, if the degree of foresight is a likelihood

or even a probability, what degree of harm must

result.

Your Honours, in our submission, it follows,

in any event, that the Holzer criterion best caters

for the situation because it fits neatly as the

next set down, as it were, from reckless murder,

the difference being, as I put to Your Honour,

Justice Dawson, earlier, between the subjective and

the objective criteria. In other words, it is our

submission that only unlawful acts which are truly

dangerous should be those acts which attract

liability for a conviction of manslaughter

carrying, as it does, life imprisonment, and those

acts which fall short of that are catered for, as I

put to the Court earlier, by other offences: the

assaults occasioning actual bodily harm,

section 40, Criminal Law Consolidation Act;

malicious wounding, section 23, Criminal Law

Consolidation Act and unlawful wounding,

section 24.

In our submission, too, if the development of

the law paralleled or grew out of or was a mirror
image of felony murder, as it was in

Justice Humphreys' judgment in Larkin then, in our

submission, if the felony murder you require during

the commission of a felony an inherently dangerous

or violent act, in our submission, general

principle dictates that there should be a parallel

in the area of liability for manslaughter. The

compromise, of course, is the fact that we are

talking about crimes lesser than felony but, in our

Wilson(2) 38 1/10/91

submission, to say that for manslaughter something

less than dangerous or violent would do, creates a

dissymetry with felony murder. The law in relation

to unlawful killings resulting in manslaughter has

always paralleled, in our submission, the felony

murder doctrines.

It is in step as well, in our respectful

submission, with the high degree of negligence

required for criminal liability on the footing of

criminal negligence. I have referred to Nydam's

case. Andrew's case has been referred to in

passing and I add a reference to the case of

Myatt - which is on my learned friend's list of

authorities - a recent decision of the High Court

of New Zealand.

BRENNAN J:  Mr Tilmouth, the criteria of "really serious"

and "serious": do you attribute any particular

content to those terms as matters of law - - -

MR TILMOUTH:	Yes.
BRENNAN J:	- - - or are they questions simply for the jury

to evaluate?

MR TILMOUTH:  No, with respect. In two cases, which are on

our list and also referred to in passing in our

written outline, of Perks and Blevins, at

paragraph 6.2.2, the references are there,

Your Honours, and so are the pages. I do not want

to read them. But in those two cases the Court of

Criminal Appeal in South Australia disapproved
judges directing juries in murder cases that

"grievous bodily harm" meant simply "serious harm"

or "serious bodily harm".

The Court of Criminal Appeal said in those cases, at the pages which are referred to in paragraph 6.2.2 - these are my words but I hope	they convey the meaning of the judgments - that	simply to convey to the jury that "grievous bodily
harm" meant "serious bodily harm" was insufficient
to convey the requisite intention or the requisite
degree of foresight for murder purposes. They held
and reapplied Smith v DPP for this purpose - the House of Lords decision - that only the words,
"really serious bodily harm" would do. They are
traditional formulations and have been applied for
many years in common law countries.

Now, my answer to Your Honour Justice Brennan

therefore is that if it is correct to say that the

words "serious bodily harm" tends to undermine the

degree of harm which is required for murder, as our

court in two decisions has ruled, then there is a substantial difference between "serious harm" and

Wilson(2) 39 1/10/91

"serious bodily harm" or "really serious bodily

harm" which is the traditional formulation in Smith

v DPP. It is a lesser degree of seriousness and,

as lawyers, it might be tempting to say it is

merely quibbling with words but, in our respectful

submission, to a jury there is a great deal of

difference between the expression "really serious

harm" as distinct from "serious harm".	So my
answer, albeit it long, to Your Honour

Justice Brennan is: there is quite a difference to

a direction merely encapsulating serious harm as

distinct from really serious harm and our Court of

Criminal Appeal has held so in two cases, albeit in relation to murder, but the logic is just the same, of course.

BRENNAN J:  So the direction which would distinguish murder

from manslaughter, on your submission, would be simply that the foresight of the result must be

held and intended in the case of murder but the

foresight is simply that which a reasonable person

would have in the case of manslaughter.

MR TILMOUTH:  Yes, in general terms. Your Honours, perhaps

I can be even more specific. In the last appeal

book, volume 4, which contains the judgments, the

alternative formulation which we would argue if

Holzer is not accepted by the Court is essentially

the fourth formula referred to by Justice Cox at

page 745.

Your Honours may recall that His Honour

Justice Cox, in a long and closely reasoned judgment, had referred not only to differences in

the English and Australian authorities but, as it

turned out, differences within directions in

South Australia and, at 744, His Honour categorized

them and category four is at 745, which is

essentially what we argue is the alternative

exposition:

The killing of a human being in the course of

committing an unlawful act of a particular

kind is manslaughter. The act in question

must be an act in serious breach of the

criminal law, and it must be a dangerous one.

A serious assault on another person would be

an unlawful act for this purpose. An assault

is an intended and unlawful use of force to

another person without his consent. Whether

the act alleged is a dangerous act is a matter

for the jury's judgement. You would be

entitled to hold that an act likely to cause

serious injury to another person would be a

dangerous act.

Wilson(2) 40 1/10/91

That essentially, in our submission, would be, on

the alternative footing, an appropriate direction

because it emphasizes the need for a dangerous act,

it emphasizes the need for a serious breach of the

law as distinct from trivial, negligible or minimal

breaches of the law, and it conveys the degree of
likelihood likely to cause serious injury, which is

Larkin this Court's decision in Crabbe

really going back to rather than adopting comfortably with

and Baughey, to which I have referred, because it

preserves the symmetry of the common law requiring

foresight or advertence to likely or probable

rather than possible states of affairs. And, in

our respectful submission, the word "likely" is a

better formulation than the word "risk".

We are conscious, of course, that Your Honour

Justice Brennan argued in Baughey that there was no

material difference between risk or likelihood but,

to that extent, we would submit that it is better
to stick with the time-honoured formula, or the

formula approved in this Court in Crabbe and

Baughey.

BRENNAN J:  Then you would eliminate the battery

manslaughter?

MR TILMOUTH:  Yes, in our submission, because you do not

need it. You have got an inherently dangerous

battery, which would qualify as manslaughter. If it is a trifling battery then, in our submission,

there is no policy reason or logical reason why
that should become manslaughter simply because it

happens to be battery, and certainly simply because
it happens to be a battery as defined, or rather as

not defined, by Chief Justice Barwick in Phillips.

BRENNAN J: But it makes all the difference in the world,

does it not?	I mean, "I am going to give you a
you adopt the battery manslaughter test, then that bloody nose", and he falls and hits his head. If	is manslaughter. If you adopt the other test, you
would say "likely to cause really serious injury",
well no, a bloody nose is not likely to do that.

MR TILMOUTH:  No, I agree if Holzer is applied, that

difference wold result.	However, if it was
serious, the alternative formulation, 745, it	might
be debatable whether there was a disharmony.	But
essentially the reason why we argue - - -

BRENNAN J:	You must come to grips then, must you not, with the view expressed by Justice Matheson who says, "I
think this should be manslaughter".  It is open to
argument obviously - - -

Wilson(2) 41 1/10/91

MR TILMOUTH:	Yes, it is.
BRENNAN J:	- - - but does your argument not go to the extent of saying, "Well, it should not be
manslaughter"?
MR TILMOUTH:	It does, but what we say essentially is that

the requirement for manslaughter must be "a

dangerous act", and just because it happens to be

battery is not enough. Most of them may well be

dangerous acts but, in our submission, to say that

per se all batteries are dangerous is not in accord

with the development and drift of the law, and is

quite against the cases in this century which said

to direct a jury that an act was automatically

manslaughter was unlawful is quite against that now

accepted general principle, and battery is really a

hangover, in our submission, which is not justified

in policy or on principle and in whose main basis

is that judgment of Justice Windeyer in

Mamote-Kulang if it went that far.	In our
submission that is very doubtful.

BRENNAN J: Well, it does have the consequence, does it not,

of driving a wedge between the Code and the common

law in this country?

MR TILMOUTH:  It could do, but the Codes, of course, must be

read in the light of the legislative policy

embodied in the Codes. Certainly that would apply

for the Northern Territory which talks about

"possible consequences" as distinct from

"probable". But, in our respectful submission, the

trend of the common law has been very strongly in

that way.

Could I try and illustrate - it may be an

imperfect example, but illustrate it this way: if

A hits B with intention, as Your Honour

Justice Brennan put it, to give him a bloody nose,

and that happens and he falls to the street and

hits his head on the back of the pavement and dies,

subject to the jury's acceptance on a proper

direction, that obviously could be manslaughter.

Certainly it would be battery manslaughter as

currently perhaps defined. On the other hand, if A

does exactly the same thing to B, intending to

cause him a bloody nose but Bis quick enough to

duck, but in the act of ducking he slips and falls

to the ground and dies, that would not be battery

manslaughter because there would not have been the

application of force.

In our submission, that demonstrates - it may

be an imperfect example - the illogicality, or the

incongruity, as we put it in the written outline,

Wilson(2) 42 1/10/91

of retaining battery manslaughter as a per se, as

it were, head of liability for manslaughter.

BRENNAN J: Well, perhaps it should be called assault

battery manslaughter.

MR TILMOUTH:  Indeed. But at all events, I could use

different words to convey the same thing. But it

is clear enough - our submission is that perhaps if

Holzer is retained there might be some scope for

battery but, in our submission, if the law is

reworked, then there is no need for it because it

would be an odd category out, as it were, when

general principle can cater for the facts.

DEANE J:  But if you accept what Justice Windeyer said,

battery has got nothing to do with it.	It is
intended hurt manslaughter.

MR TILMOUTH: That is true, but as it was put in the Court

of Criminal Appeal here, I would submit, they have

effectively said, "Well, that means that you would

have been guilty on these facts anyway, not because

it was inherently dangerous, but because it came

within those words of Justice Windeyer and it was a

battery." That is what, I submit, fairly read,

what the Chief Justice said.

DEANE J: But what you call "battery manslaughter" is

"intended hurt manslaughter".

MR TILMOUTH: It is.

DEANE J:  But it does not, as it were, exclude something

because it did not involve the application of

force.

MR TILMOUTH:  No, it does not. The problem - this may be

imperfect reasoning but the problem is that not all

intents to hurt are necessarily dangerous.

DEANE J: But you approach it by, as it were, seeking your

very serious injury and then seeking to get rid of

what you call "battery manslaughter", but what if

one takes the view that the correct starting point

is to divide manslaughter into "intended hurt" by

reference to "intention" and "non-intended hurt"?

MR TILMOUTH: Well, if one divides it into those two areas

there is more difficulty for the appellant, of

course.

MR TILMOUTH: Except the argument in favour of "serious

harm" has, perhaps, more to recommend it.

MR TILMOUTH: It does, because it becomes more subjective.

Wilson(2) 43 1/10/91

DEANE J: But not only that, it does not apply to the cases

where the act was done with an intention to harm or

hurt.

MR TILMOUTH:  Indeed. I must come back to the facts,

Your Honours, eventually and perhaps it needs to be

said at that time that what the appellant intended

here was far from clear, but in saying that, I mean

to convey it was far from obvious that he clearly

intended to harm. That may be a matter of some
debate but one of the criticisms we have, of

course, was that in applying the proviso on this

basis, it was never put to the jury. Now, we

accept readily, of course, that if the acts must

have amounted to a dangerous act or some other

criteria, then the proviso can be rightly applied,

but there was never any issue put to the jury on

that basis at all, and particularly on an intent

basis, because it was murder by felony murder which

eschewed any subjective intent, or manslaughter

which was entirely objective, so an assessment by

the jury of the subjective intention was never left

to them on the case.

Your Honours, I was dealing with the passage

at 745 in book IV which is our alternative

argument, but in suggesting that, Justice Cox

at 748 said this:

While I have expressed the view that the

category 3 and category 4 forms of direction
are in substantial compliance with the English

test - and I have used the category 4 formula

on many occasions - I think on reflection that

it would be better to give the jury more

guidance and to tell them in so many words

that the unlawful act must involve the risk of

some harm, though not necessarily serious

harm -

and His Honour goes on to make the point that I

have made already that Your Honour

Justice Brennan regarded there being as no

difference in Boughey between risk and likelihood.

In our respectful submission, if the Court is

against us on the main argument, the better
expression for the reasons mentioned, that is

conformity with Crabbe and Boughey, would be to

retain the words "likely" or "probable" and to

avoid the use of the word "risk". Although perhaps

it is a matter of argument and semantics, perhaps

even guesswork, our respectful submission is that

the introduction of the word "risk" may have the

capacity to reduce the degree of seriousness in the

mind of the jury, a better, more forceful word is

"likely" or "probable".

Wilson(2) 44 1/10/91

The other difficulty, of course, Your Honours,

with the majority judgments in the Court of

Criminal Appeal is simply that in the end result

Justice Cox affirmed, at page 746, the English
interpretation of dangerous as the law in South

Australia without, save and except as I read from

page 748, really giving final guidance to the

courts as to how they should direct a jury: should they use Larkin or Church or an amalgam of the two?

Of course that is compounded by the fact that

Justice Matheson, at pages 756 to 757, preferred

the Church formulation to the Larkin

interpretation. And, of course, with the dissent

of the Chief Justice, obviously it would be a

difficult matter for a trial judge to decide what

to do in those circumstances. But that is a matter

for this Court now, of course.

But, in my submission, what is apparent from

this is that although Justice Cox has opted for the

English authorities he has not dealt with, as we

have suggested perhaps the House of Lords have not

dealt with it in Newbury, any relevant differences

between Larkin on the one hand and Church on the

other.

Your Honours, I am about to come to the

summing up but I am conscious, Your Honours, that

we have not dealt with Canadian or New Zealand

authority. In a word, the Canadians and the

English have applied Larkin. Did I say - - -

MASON CJ: Canadian and New Zealand.

MR TILMOUTH: Canadian and New Zealand have applied Larkin

but without analysis or without a consideration of
the Australian authorities or without stating, like
the English, what the reasons were for their

preference for those authorities.

Your Honours, can we just give you some

references which are not in our list. I do not

read the cases. Justice Cox referred to an

unreported judgment of Adkins which is the British

Columbia Court of Appeal. It is in fact reported

at (1987) 39 Can Cr Cas 3d at 346. The only

reference we could find in the Supreme Court of

Canada was in Smithers v Reg, (1977) 75 DLR 3d 321

at 329-30 where Larkin is referred to but without,

with respect, a great deal of analysis. And in New

Zealand, Reg v Grant, (1966) NZLR 968 at 972, and

Tomars, (1978) 2 NZLR 505 at 509-10.

Your Honours, I turn then to the summing up which is book III. Your Honours may recall, as I

put it, that murder was put in the context of a

felony murder and not intentional or reckless

Wilson(2) 45 1/10/91

murder. His Honour's di ctions on that are

pages 603 and 604. Ther. :here were directions

following that, to page 608, on complicity, joint

enterprise and aiding and abetting which I do not

deal with. The key .direction, Your Honours, on

manslaughter is at page 608, line 16:

In this case if you have not found murder

proved, but had gone on to consider

manslaughter it would be manslaughter by an

unlawful and dangerous act. The killing of a

man in the course of committing a crime is manslaughter. The crime must be an act in

serious breach of the criminal law.	A serious
assault	- you may think the punch by Wilson

or the hitting of the head on the concrete by

Cumming to be serious assaults - would be an

unlawful act for this purpose. Whether the

particular act you are considering is a

dangerous act is a matter for your judgment.

BRENNAN J:  How could the hitting of the head on the concrete be an act?

MR TILMOUTH: Well, the allegation by the Crown in Cumming's

case was that the felony to give rise to the felony

murder rule was that after Ormsby, the deceased,

had fallen to the ground and hit his head, that

Cumming had rifled the deceased's pockets and

turned him over and, apparently, on the basis of

admissions that he, Cumming, made to the witness,

Bennier, and the appellant, had banged the

deceased's head into the pavement several times.

The evidence about that was imprecise, but there

were admissions to Bennier and the appellant to

that effect. That is what that referred to. The

felony murder rule was said to apply because, if it

was a robbery with violence and the violence was in
the course of the felony, of course, then the

felony murder rule could apply.

The jury, of course, acquitted Cumming

altogether. It may be speculative to say exactly

why, but they may have taken the view, of course,

that Ormsby had died virtually instantaneously, or

for some other reason. It is unsure, but he was

acquitted. And likewise the appellant's guilt on

manslaughter could not have been on any complicity

basis - it might have been, but not as put to the

jury here - it must have been solely on the

unlawful and dangerous act footing.

There was no suggestion, incidentally,

Your Honours, that the appellant was involved in

the actual robbery or rifling of the pockets or in

the pushing of the head into the pavement, on his

case. And Bennier's evidence - although Bennier's

Wilson(2) 46 1/10/91

evidence was problematic; she was declared hostile

at one stage, as well - was that she and the

appellant had walked off. But of course, the Crown

sought to trap him within the rules that his

presence was an encouragement for aiding and

abetting purposes.

But, Your Honours, the complaint in the Court

of Criminal Appeal below and here, essentially is

twofold about 608. One was, of course, that

although the direction went part way, it did not
give the jury any degree of help at all as to the
degree of dangerousness that was required. It
simply left it to the jury for their judgment.

I am conscious, of course, that some of the

preferred - or the second option that we have had
per Justice Cox at 745, talks about that, but in
all the cases and, indeed, the alternative

direction we argue for, always adds something like

a Larkin or Church direction. In our preferred second option His Honour should have gone on to

state, "You would be entitled to hold that an act

likely to cause serious injury to another person

would be a dangerous act". That is what we seek

should have been added to these words. The other

complaint we made in the court below was that

His Honour did not relate the unlawful requirement

to self-defence, and it is that that I address now.

Your Honours, His Honour handed to the jury a

memorandum which is in the back of the book, and I

will come to that in due course. He referred to

it, at least as it was then drafted at 609-611, and

suffice it to say for the current purpose, that

memorandum, as it then existed, only contained

eight clauses and did not refer to self-defence.

Your Honours may note as well, at 609, that

His Honour left it to the jury as a shorthand

document to assist their deliberations, lines 13

and 14. His Honour then left the jury with a long

direction on provocation from pages 611-617 which,	of course, was irrelevant because provocation was
only relevant to intentional killing, to reduce it to manslaughter, it could not provide a defence, as the Chief Justice observed, to our felony murder, because intention was not an essential element.

BRENNAN J:	Do we have a copy of the memorandum?
MR TILMOUTH:	Yes, it is in the back of - 694, Your Honours.

Since Your Honour, Justice Brennan, has adverted to

it, this was apparently the memorandum that went to

the jury. What was added was 695, paragraphs 9, 10

and 11, and 9 and 10 dealt with the issue of

self-defence. Paragraph 9 required that Wilson

would be guilty of manslaughter if he was engaged

Wilson(2) 47 1/10/91

in an unlawful and dangerous act and not acting in

self-defence, and he would be not guilty -

paragraph 10 - I am paraphrasing them - of either

murder or manslaughter because he lacked the

intention or by an unlawful and dangerous act he

was acting in self-defence. They are the closest

that His Honour actually gets to specifically
directing the jury, albeit through the written

rather than oral means, that self-defence applied

to murder and manslaughter as well as to murder.

BRENNAN J:  When were those paragraphs added?

MR TILMOUTH: Apparently during the course of the summing

up, Your Honour. Your Honours can see - I forget

the page numbers but in any event in book IV - that
there was some argument about the final version,

but that apparently went to the jury in that form

at about 662 of the appeal book, although it is not

mentioned there. His Honour says "you have the

memorandum" - I paraphrase - "and if you want any

help you can ask a question about it".

MASON CJ:  Was this alleged defect the subject of any

application for a redirection?

MR TILMOUTH:  No, it was not. Your Honours, the only point

made by counsel in the court below, albeit

persisently, was that the directions suffered from

the fact they did not relate self-defence to the

facts as required by this Court in Zecevic and

applied in another case at Zikovic, both of which are on our list of authorities and in the written outline, but no, there was not.

Your Honours, I come back to that later but,

in our submission, it is a very important point

here, because the case for Wilson was always

self-defence and, in our submission, on a fair

reading of the summing up as a whole, it simply was

not led as relevant to manslaughter.	The
self-defence directions begin at 617 but

Your Honours will see, at line 6, His Honour

concludes the long directions in relation to

provocation by saying:

If you were to conclude that there is a

reasonable possibility that Wilson was

provoked into hitting orm-·by with intent to

cause him grievous bodily ;arm and the blow

and consequent fall cause Ormsby's death,

then you would find Wilso::-: guilty not of

murder but of manslaughter. In that case

Cumming would not be guilty of anything.

Now having dealt with provocation I come

to self-defence, the second matter. You will

Wilson(2) 48 1/10/91

remember that Wilson has said he hit Ormsby

because he saw Ormsby with fists clenched and

raised as he, Wilson, turned away and that

that is why he hit Ormsby. If you were to
think that a reasonable possibility then the

law on self-defence is relevant.

As with provocation so with self-defence the onus, the burden of proof, is on the Crown

to negative self-defence. The Crown must

prove beyond reasonable doubt that the accused

did not act in self-defence. If you think there is a reasonable possibility that the accused, Wilson, believed on reasonable

grounds that it was necessary in his own

defence to hit Ormsby as he did, in other

words, that he acted in self-defence and in so

doing did not use more force to defend himself

than was necessary, even though you think the

blow caused Ormsby's death, then your verdict

will be that Wilson was not guilty of murder,

for self-defence is a complete answer to a

charge of murder.

So far it is clear it is only related to murder.

However, we have the problematic last sentence:

In that case too Cumming would not be guilty

of anything.

Now, Your Honours, the court below was against

us on that because, per the Chief Justice,

Justices Cox and Matheson agreed with him, holding

that this direction, which was repeated later when

the jury came out - and I will refer to that in a
moment - negatived self-defence.

In our respectful submission, it is by no means clear at all that the sentence:

In that case too Cumming would not be guilty

of anything -

is anywhere close to a direction that self-defence

applied to manslaughter in Wilson's case. It

might, of course, grammatically or literally mean,

"In that case too Cumming would be not guilty of anything", which means, "In that case Wilson, as

would Cumming, would not be guilty of manslaughter

or murder", but, in our respectful submission, what

is really happening there in context is that the

"too" relates to the direction given on
manslaughter at 617:

In that case Cumming would not be guilty of anything.

Wilson(2) 49 1/10/91

I now deal with self-defence and I conclude, as I

did in provocation, in that case too Cumming would

not be guilty of anything.

Our point is, Your Honours, irrespective of the fact that this was not raised by counsel, that

nowhere has the jury been told, save and except the

written memorandum to which I have already

referred, paragraphs 9 and 10, that self-defence

related to manslaughter as much as it did to

murder. Put another way, the act that gave rise to
the liability for manslaughter could only be
considered by the jury if they had negatived

self-defence. It could not be unlawful by

definition.

Now, Your Honours, the court below was against

us on that because, per the Chief Justice,

Justices Cox and Matheson agreed with him, holding

that this direction, which was repeated later when

the jury came out - and I will refer to that in a
moment - negatived self-defence.

In our respectful submission, it is by no means clear at all that the sentence:

In that case too Cumming would not be guilty

of anything -

is anywhere close to a direction that self-defence

applied to manslaughter in Wilson's case. It

might, of course, grammatically or literally mean,

"In that case too Cumming would be not guilty of anything", which means, "In that case Wilson, as

would Cumming, would not be guilty of manslaughter

or murder", but, in our respectful submission, what

is really happening there in context is that the

"too" relates to the direction given on

manslaughter at 617:

In that case Cumming would not be guilty of

anything.

I now deal with self-defence and I conclude, as I

did in provocation, in that case too Cumming would
not be guilty of anything.

Our point is, Your Honours, irrespective of the fact that this was not raised by counsel, that

nowhere has the jury been told, save and except the

written memorandum to which I have already
referred, paragraphs 9 and 10, that self-defence

related to manslaughter as much as it did to

murder. Put another way, the act that gave rise to
the liability for manslaughter could only be

considered by the jury if they had negatived

Wilson(2) 50 1/10/91

self-defence. It could not be unlawful by

definition.

The next reference to that, Your Honours, is

at 685. The jury retired, I think, around midday

and then, at 685, they asked for a direction, I

think at about 7 pm that night. Excuse me,

Your Honours, I have made a note of the wrong page.

It is page 690, I am sorry, Your Honours. At

page 690 - this is at 7.26, seven hours after their

retirement, in round minutes - the jury returned

and the note they pass up is read, at line 12:

'Could you please explain in law what

constitutes self-defence?'

and His Honour then said he -

gave you an explanation of that this morning -

and then His Honour repeated, from line 22 on 690

to lines 10 and 11 on 691, the self-same passage

identically as I have read at 617 to 618 and

containing again the last sentence:

In that case too Cumming would not be guilty

of anything.

But then, with respect, Your Honours - and this is

extremely important, in our respectful submission -

His Honour offered, at line 13:

Shall I read out the vital sentence or so

again?

and the foreman said:

Yes.

And His Honour then repeated the self-same passage

again, but this time, noticeably, he stops:

then your verdict will be that Wilson was not

guilty of murder -

and leaves out the twice earlier repeated sentence:

In that case too Cumming would not be guilty

of anything.

Now, in our respectful submission,

Your Honours - and we acknowledge entirely the summing up must be read as a whole, and we acknowledge that the point was not raised by

counsel, but it is not surprising, when one

considers the context of this case, it was mainly

fought around the question of felony murder, and

Wilson(2) 51 1/10/91

manslaughter was really added as, very much, a

respect, could counsel legitimately

secondary issue. In our respectful submission, account, with

take a tactical decision to leave self-defence on

murder, but not on manslaughter. There was no

tactical sense in doing that. So, one of the two

usual reasons for applying the proviso, even though

a point is not raised, that a tactical decision was
made, could not apply here.

The other basis, of course, in which the proviso was often applied where a point is not

raised, is because counsel must have, in the

atmosphere of the trial, felt that the point was

sufficiently put not to require a redirection, and

there may, of course, be some point in that in this

case. But in my respectful submission, it cannot

be overlooked, at the end of the day that nowhere

was a specific direction given on what was in the

end result, or what must have been, the central

issue on manslaughter.

DEANE J:  Mr Tilmouth, where did His Honour tell the jury

that he was adding the extra written directions to

those that he had read to them?

MR TILMOUTH:	He told them at 609 to 610 - the extra ones?
DEANE J: Yes.
MR TILMOUTH:	I do not know that he did, Your Honour.

DEANE J: Well, he had read them eight.

MR TILMOUTH:	Yes he had.
DEANE J:	One would expect that somewhere they would have

had explained to them why of the document they got

there were 11.

MR TILMOUTH:  I stood to be correct, Your Honour, but I do

not think he did. What he did do in his closing

remarks at 662 was, at line 15:

I remind you that if you have any questions or if you would like any directions on the law or any evidence read out, or if that memorandum

doesn't seem to coincide with what I have said

or you can't understand it or if I have not

covered all the questions that you may have in

your mind, please inform the sheriff's

officer -

et cetera. Now, Mr Jennings will correct me if I

am wrong, but I do not recollect that His Honour

specifically referred to the additions.

Wilson(2) 52 1/10/91

Now, Your Honours, in our respectful

submission, although paragraphs 9 and 10 in the

written outline go close to what we would submit

would be a minimum requirement, in our respectful

submission, in the end result when the jury came

back seven hours later and specifically asked about

self-defence and were given that redirection, the

vital sentence, plainly, in our submission, the

last thing the jury retired on was a direction

which, at least in terms, only related self-defence

to murder and not manslaughter.

In our respectful submission, whichever way

the cases on the proviso are worked, and I

emphasize again fairly read in the context of the

summing up as a whole, and bearing in mind that it

was not raised by counsel, how can it be said, in
our submission, that this jury would have

understood that the self-defence doctrine was

relevant to manslaughter as it was to murder?

Expressly, it was only related to murder, and the

only thing that could have saved it was the very

ambiguous expression in that case too:

Cumming would not be guilty of anything -

which, as we submit it, is more related to the

earlier reference to provocation than it was to an

indirect reference to saying, "Well, both of them

would be not guilty of anything".

The Full Court, Your Honours, simply said that

self-defence was negatived because the judge twice

told the jury that Wilson would not be guilty of

anything, but the only reference to where that is

said is those two sentences which I have already

read at pages 691 and at 617 to 618. That is the

only place that, with respect, Chief Justice King
could be referring. He did not refer, of course,

to the written memorandum which, in our submission,

cannot be a substitute for oral directions, and

certainly not a substitute for oral directions

given seven hours after the jury initially retired

and on a direction that they specifically asked for

saying that they had some difficulty about.

Your Honours, there is one other matter which

I should, in fairness, advert to. In his final

address, counsel for Wilson - also this is book III

as well, at 569 - referred to manslaughter and this

was argued against Wilson, I think in the Court of

Criminal Appeal - I am fairly sure that is right -

but certainly on the special leave application as a

concession to the point. Mr Stokes for Wilson,

addressing the jury, at page 569, is dealing with

self-defence and says this:

Wilson(2) 53 1/10/91

It would be a complete answer to a suggestion

of murder by intention to inflict grievous

bodily harm. You have heard it, it is getting

late, I am not going to run through that issue

of self-defence again.

And then he referred to Dr Gilbert's evidence. At

line 10 counsel said:

The alternative is the manslaughter that

Mr Braithwaite has referred to.

Mr Braithwaite being Curnrning's counsel.

This is what is called unlawful and dangerous

act. An assault of whatever :everity would be an unlawful and a dangerous~ ~. If death

resulted from that then that ~uld be

manslaughter not murder. The issues you need

to remember there are again proof beyond

reasonable doubt.

And at lines 23 to 25:

Once it has been raised in that fashion it is

for the Crown to disprove self-defence beyond

any reasonable doubt.	I remind you of that
too.

Now, it was submitted, I think - I hope I am

accurate but, again, I will be corrected by

Mr Jennings - that ~hat was a concession by counsel

in effect to the F ~t that is now being made on

the appellant's bE ~f. If it was, in our

respectful submiss	1, it was wrong plainly because
an assault of what	~r severity might well be

unlawful but it wo~~d never automatically be a

dangerous act. The difficulty, in our respectful

submission, was compounded - when one goes back to

the direction at page 608 - when His Honour

directed the jury in the context of manslaughter,

and I repeat it again: 

A serious assault - you may think the punch by

Wilson ..... to be serious assaults - would be

an unlawful act for this purpose.

The combined effect, with respect, was really a

deeming, as it were, of the actus reas which was

proved as enough for the purposes of the doctrine

being put on the manslaughter basis here.

So, Your Honours, with all those difficulties

acknowledged, in our respectful submission, at the

end of the day it cannot be safely said at all that

self-defence ever was related specifically to

Wilson(2) 54 1/10/91

manslaughter, as it should have been, in

unequivocal terms.

The other complaint, of course, is a lesser

one, in paragraph 7.3 of our outline, that nowhere

did His Honour relate the facts, in any event, to
the evidence. His Honour simply referred to the
evidence in narrative form and did not relate the

doctrine of self-defence to the evidence, and that

was a complaint we made below and we make here, as

a secondary complaint, of course.

Finally, Your Honours, on the issue of the

facts. I will deal with them as briefly as I can

but the court below as well said - these are my

words - but there was very little in the merits on

the question of self-defence and, with respect to

that as well we disagree, with respect.

The evidence is in book II in Wilson's

evidence and, Your Honours, there are many

scattered passages and I freely acknowledge I am

picking the eyes only of the most relevant ones,

but the point is to try and demonstrate that

self-defence was a real issue and had some merit;

it was not one that was hardly worth raising.

What the accused said in his evidence-in-chief at

348 in book III was that Ormsby - firstly, lines 6

and 7:

put his arm on the back of my neck and tried

to kiss me.

He then moved away; that is Wilson moved away -

line 9. Line 19:

he pushed me and then tried to kiss me, then

he shouldered me. And then pushed me.

And lines 29 and 30:

Then what happened.

And then he tried to kiss me and then he

shouldered me.

And lines 36 and 37:

What happened after he shouldered you.

He pushed me again.

And at page 349, line 19:

Yes, I tried to walk off.

Line 22:

Wilson(2) 55 1/10/91

I saw that he had his fists clenched to his

side.

Line 25:

I started to walk off, then I saw that he had

his fists down to his side and he went to

raise one of his fists.

Line 28:

I thought he was going to hit me.

So what did you do.

Line 30:

That's when I hit him.

And at page 389, Your Honours - because

Chief Justice King made some point of the fact that

the appellant could have retreated. On that

subject-matter in cross-examination the appellant

was asked, line 3, page 389:

Q. How many times did you try and walk away

and have Mr Ormsby block your path.

A.	A number of times.
Q.	About how many.
A.	Four, five times, I suppose.
Q.	Were these all when Wayne -

that is Wayne Cumming -

was there and Kerri.

Kerri Bennier -

A. Yes, I think so.

So, Your Honours, there are a lot of passages, but

there was material which was plainly capable of

being left to the jury on the issue of self-defence

and on one view of those facts there was quite a

reasonable case.

The only other evidence in Wilson that I refer to, Your Honours, is the issue of the severity of
the blow and his own evidence on that under

cross-examination is at page 405 - this is
cross-examination from Crown counsel; he was also

cross-examined by Cumming's counsel. He was cross-

examined at page 405, line 6, on a question and

Wilson(2) 56 1/10/91

answer he had given in a record of interview with

the police, which was an interview marked "A

Exhibit 17" of 16 September 1989, which was the day after - the Saturday. These events occurred on

late Friday night, this is on Saturday. The

question was, line 12 and 13 of the record of

interview:

'Can you tell me what you intended when you

hit this person?'	You said 'I didn't mean to
cause him any harm'.
A.	Yes.
Q.	Is that the truth.
A.	Yes.
Q.	You hit him pretty hard, didn't you. You

hit him fairly hard.

A.	I didn't really think it was hard, no.
Q.	Do you know what a king hit is.
A.	Yes.
Q.	You tell us what you think a king hit is.
A.	It's when you hit someone and they knock

out.

Line 24. And at line 30:

Q.	As hard as you possibly can.
A.	Yes.
Q.	That's what you did with Mr Ormsby,
didn't you.
A.	No.

And that was a denial of the king hit, what was

called a king hit, in the court below.

So, Your Honours, there was also an issue to

go to the jury here on whether the type of blow

administered was sufficiently dangerous or forceful

enough to qualify anyway under manslaughter by an

unlawful and dangerous act. No doubt it was an

assaplt, at least in the technical sense, but there

was also the evidence of Wilson that the hit was

occasioned as a response to when he thought he was

being hit, but he did not hit hard or intend to

harm him.

Wilson(2) 57 1/10/91

Your Honours, there is other evidence about

that from Bennier and also Cumming. They supported

the appellant to a point, and were contrary to him

also to a point, but Bennier certainly agreed that

Ormsby tried to kiss the appellant and shouldered

him and Cumming was less definite about that.	But
although one might argue before a jury about the

force or the weight of that other evidence, in my

submission, the point that only needs to be made here is that the evidence of Cumming and Bennier

was not such as in any way to defeat the claim of

self-defence. It might - if it were accepted -

water it down, but it did not completely undermine

it, irrespective of the appellant's evidence

himself.

So, in our respectful submission, there was a

real issue here on self-defence. There was a real

issue besides on the question of what the type of
hitting was for the purposes of the manslaughter

doctrine, all of which were jury questions and

should have been left to the jury on proper

directions and they were not.

The result, in our respectful submission, is

that the summing-up was defective for the reasons

mentioned, both as to manslaughter and as to

self-defence and as a back-up that the facts were

not related to either manslaughter or the self-

defence doctrine.

Your Honours, it is not in our written outline

but in our grounds of appeal we have only sought a

retrial. It is possible, one might suppose, that a

complete acquittal would result but that could only
be, if at all, on the footing that this Court
approve the Holzer principle or the demanding test

in Holzer. Otherwise, Your Honours, we would

accept that the only appropriate order, if some

lesser test is devised, is an order for a retrial

and that especially, of course, follows if

self-defence was not adequately put to the jury.

May it please the Court.

MASON CJ: Thank you, Mr Tilmouth. The Court will adjourn

now and resume at 2.15.

AT 12.52 PM LUNCHEON ADJOURNMENT

Wilson(2) 58 1/10/91

UPON RESUMING AT 2.16 PM:

MASON CJ: Yes, Mr Jennings.

MR JENNINGS:  May it please the Court, the Court has my

outline, I think.

MASON CJ:	We have it, yes.
MR JENNINGS:	The Crown's primary submission here is that

this Court should endorse the English authorities

laid down, as they have been, in the House of Lords

in the Privy Council.

We would say that Holzer, really, is an

aberration not based on authority and that it

should not be followed. We say that the rigours

of the past have been sufficiently ameliorated by

the English authorities requiring, as they do, the

dual requirement, or the necessary conjunction, I
suppose, of an act which is not only unlawful in

breach of the criminal law, but a dangerous act in

the sense that that expression is used in the

English cases and, we would say, in the sense that it is used in ordinary usage and in the

dictionaries, namely, likely to injure or harm

someone.

DAWSON J:	Why do you say that Larkin and Church, for instance, are based on the authorities whereas
Holzer is not? There are more of them on one side,
but there is no line of authority that you can trace back.

MR JENNINGS: There is no line of authority that one can

trace back because, of course, in older times the

law was much harsher than it was. Holzer is an

attempt, no doubt, to further ameliorate what was

seen to be the rigours of the law.

DAWSON J: But I am asking why do you say Holzer is not

based on an authority whereas the English cases

are?

MR JENNINGS: Well, I suppose at the time of Holzer, we

would say that the authorities had been

established.

DAWSON J:  You mean some of the English authorities were

there?

MR JENNINGS:  Yes. By the time of Holzer - I am not sure

when - Newbury was in the 1970s - but by - I think

really what I am saying is that by the time of

Holzer, the line of English authority had been well

Wilson(2) 59 1/10/91

established and, of course, just as they - the

English authorities - sought to ameliorate the old law, then so too was Holzer a further attempt, no doubt, to ameliorate the law. But, we would say

that there is no compelling reason of policy why it

should not be manslaughter for someone to kill

another in the circumstances envisaged by Larkin,

Newbury, Church and so on. We would say that they

can scarcely complain that the law has rendered

their conduct manslaughter.

Now, true it is that the test is an objective

test but whatever distaste there might be for an

objective test in murder, we say that that does not

apply to manslaughter. Indeed, of course, my

friend is not contending for anything other than

objective test. He is saying, as I understand his

submission, "Well, you have an objective test but

you pitch the degree of danger at this very high

level".

This Court has preserved objective standards

in self-defence in Zecevic and in the area of

provocation, although the ordinary man test has, of

course, been relaxed and significantly, none the

less there is still an objective element to that

test.

As to Holzer, Justice Cox, in his judgment in

the Court of Criminal Appeal, traces some of the
earlier Victorian authorities which talked of the

test in terms that Justice Smith eventually took

up. But he also notes the Full Court case of

Turner in 1962 in which a direction in terms of

Larkin - "likely to injure" - was not disapproved

of.

It is interesting, if I might say so, that it

might be thought that the Holzer test has not been

completely embraced in Victoria if one looks at the

case of Windsor, (1982) VR 89. Now, I appreciate	that this is a year before Wills when Holzer was,
of course, endorsed and endorsed in clear terms.
Windsor was a shooting case - a murder case. If one goes to the judgment of Mr Justice Mcinerney, at page 94, a judgment in which Chief Justice Young
concurred, His Honour, at the foot of the page,
expresses his view of things in this way:

It was obviously open to the jury to find

that the firing was a dangerous act, in the

sense that it was in the circumstances

inherently capable of inflicting some physical

injury of a not unsubstantial kind.	No other
view was open to the jury than that a

reasonable man placed in the position of the applicant would have realized that in firing

Wilson(2) 60 1/10/91

the gun he would be exposing the deceased to

the risk of at least some injury, possibly

serious, but at least of a not trivial or

negligible character.

DAWSON J:  Why should you elaborate on the word "dangerous"

at all? I mean, one can understand why one has to

translate "grievous bodily harm" because it is an

archaic term. But you do not, for instance,

elaborate on the word "reasonable", and "dangerous"

is no less a clear English word than "reasonable".

MR JENNINGS: Well, that is so but, of course, if the test is pitched in the way that the appellant contends at that high level of danger, then it may well be

said, and of course, was said by

Chief Justice King, and I can understand him saying

it, "Look, the expression 'dangerous' when used

without explanation, does not convey that high

degree of harm". So we would say, of course, that if the test is pitched at the level of appreciable risk of some harm or some such test - in other

words the English test - then the word "dangerous"

does not require elaboration because that is what

the word "dangerous" means in its ordinary usage.

But if it is said that the test as the appellant

contends is a test which envisages the appreciable

risk of really serious or grievous bodily harm

then, of course, it can be said perhaps with some

justification, "Well, the word 'dangerous'

unexplained does not sufficiently convey that

degree of danger."

DAWSON J:  I do not understand that. If it encompasses the

lower degree of danger, a fortiori, it would

encompass a higher degree of risk.

MR JENNINGS:  As I understand what is said, it was said by

Chief Justice King, and my friend really contends

this, it is not enough to say "dangerous" because

the jury might take that word to mean likely to

injure, or likely to cause some bodily harm, or,

indeed, my friend would say, no doubt, likely to

cause serious injury, but it would not convey that

risk of really serious injury or grievous bodily

harm which we say is required. Now, the Crown

would say there is no need to explain danger, or

there may be no need to explain danger, but if the

test is pitched at that high level, then it may be

that the word "dangerous" unexplained does not

sufficiently convey the concept involved.

DAWSON J:  I do not understand why you cannot say, maybe the

authorities preclude it, but any act which a

reasonable man would consider to be dangerous.

Wilson(2) 61 1/10/91

MR JENNINGS:  I do not think the authorities, with respect,

do preclude it. The authorities - it depends which

authorities one has in mind, but the English

authorities have a test which is based on the

conduct being unlawful and dangerous, and they

explain the expression "dangerous" as likely to

injure or involving the risk of some hard, and it

is an objective test.	Now, that, we would say, is
the ordinary meaning of the word dangerous.	The

word dangerous only needs to be explained, we would

say, if one is pitching the test at that high

level.

DAWSON J:  Perhaps the answer is that you cannot really

answer - even the jury cannot say what is dangerous

unless it asks, in danger of what?

MR JENNINGS:  I think that is right. I think that is what I

have been seeking to convey to Your Honour, that

the word dangerous unexplained conveys, no doubt,

some notion of risk of harm, likelihood of bodily
injury or some such, but does it convey, without

further explanation, the appreciable risk of really

serious injury, and some would say that it does

not.

BRENNAN J:  Mr Jennings, we are concerned here with a crime

where the accused is going to be held criminally

responsible for a death which was neither intended

nor foreseen by him.

MR JENNINGS:  Yes.

BRENNAN J: Ought not the criminal responsibility therefore

be placed as high as possible in respect of the act

done which should expose him to so grievous a

liability?

MR JENNINGS: It obviously has to be pitched at a level, a

high level, of culpability.	The question at what
level, of course, is the nice question. Some would

say that it is enough that there be an act which is

in serious breach of the law, eg, punching someone

in the face.

BRENNAN J:	Why "serious breach of the law"?
MR JENNINGS:	Sorry?
BRENNAN J:	Why "serious" in relation to breach?

MR JENNINGS: Well, I used the word "serious" then to

explain really as a qualifier for the punch in the

face.

Wilson(2) 62 1/10/91

BRENNAN J: Well, if you use it in terms of the texts that

have thus far been adopted, it would be a "breach

of the law".

MR JENNINGS:  Yes, true, but what I am seeking to convey to

Your Honour is that that sort of conduct some might

see, and the law always has seen, as sufficiently

culpable to found a conviction for manslaughter.

BRENNAN J: Is that because of an intention to cause harm?

MR JENNINGS:	I think it probably is.
BRENNAN J:	Then that is not the case with which we are

concerned.

MR JENNINGS: Well, I was going to come in my submissions to

deal with another path, really, which one should go

down, in the Crown's submission, if the objective

test a la the English authorities is rejected.	And
in the Crown's submission, if that test is rejected, the English line of authorities is rejected as really pitching the level of
culpability too low, and minds obviously have

differed about that, but if that is the view that

one comes to, that that objective test pitched at

that degree of harm, foresight of that degree of

harm, is too low then, we would say, one can go

down another path to fix culpability or liability

for manslaughter.

If we go back to Holzer the rationale of

Justice Smith, as I understand it, was in pitching

the test at the level he did - well, the test is an objective test, therefore I see that as a basis for departing from the English authorities and I

daresay making the conduct more culpable by

focusing on the degree of danger. He retains the

objective test but pitches the danger level higher.

The Crown would say that there is another way to go

then in the area of subjective tests and not in the

if the law is to be ameliorated and that is to focus on the state of mind of the actor, and we are

area of constructive crime, which some have a

distaste for albeit that, as I under the

appellant's submission in this case, we should

maintain an objective test. We should do away

with intentional infliction of harm and so on.

We would say that if one goes down the path of

subjective culpability and focusing on the state of
mind of the actor, then there are a number of

states of mind which will suffice, or should

suffice, to found liability for manslaughter. The

first is, we would say, an obvious one, an
intention to cause harm. After all, it is murder

to inflict a battery upon a person with the

Wilson(2) 63 1/10/91

intention of killing them or causing grievous

bodily harm. Why not manslaughter - and indeed we

say it is manslaughter, based on the authorities -

if one has not that intention but an intention to

cause the person some harm. I am not talking

objectively here but of that subjective intention.

We say that that is a well recognized basis of manslaughter.

It is not, it would seem, referred to much in

the English authorities and presumably the reason for that is that it is really swallowed up by the objective test pitched at the level that it is,

risk of some harm. But, in our submission, the
case of Mamote, which my friend has referred to, is

a respectable - I do not say it is the genesis for

that sort of manslaughter. Obviously, it is

manslaughter at common law, but we say that it has

been preserved as part of our common law and should

be preserved, but it should be manslaughter to

inflict battery on a person intentionally,

unlawfully obviously, with an intent not to do them grievous bodily harm, for that would be murder, but

an intent to harm.

We say that there is another example of that

sort of manslaughter in this Court and that is in

the case of Varley, 51 ALJR 243. Now, I do not

think it is necessary to go into any detail about

Varley. True it is that Varley was a joint

enterprise case but the principles, with respect,

should not be any different for joint enterprise
cases although in some cases there will be

complications caused by one person going beyond the

scope, perhaps, of an enterprise.

In my submission, Varley is - and this is to

be found towards the end at page 246 and into 247.

The primary complaint in Varley was whether manslaughter should have been left at all in a case

where it was suggested it was murder or nothing.

Varley, in our submission, is clear authority for

the principle that where two people engage in an

unlawful assault on another - the expressions used

here were:

to go over and give Burton -

the victim -

a hiding, not amounting to grievous bodily
harm which would bring him within the
definition of murder, but rough him up and

give him a bit of a hiding -

then if that resulted in death that would be

manslaughter.

Wilson(2) 64 1/10/91

So we say that Varley is another instance of

assault or battery manslaughter. So too in

Giorgianni, the case which my friend referred to

earlier this morning, in the joint judgment that he

referred to of - I think it was Justice Wilson and

Your Honours Justice Deane and Dawson. There was

reference to involuntary manslaughter, the notion

of an assault which caused death, converting what

would otherwise be an assault into manslaughter,

and it is the Crown submission that this notion of,

this doctrine of, assault or battery manslaughter,

where one assaults the person; batters the person,

not intending to do them grievous bodily harm, but

intending them some harm, is manslaughter and that

that should be preserved.

But we say that states of mind other than an

intention to cause harm, can suffice; that there is

no reason why the requisite state of mind should

stop at an intention to cause harm. The case of

Markby in this Court, we say, is a case which

establishes that if people engage in unlawful and

dangerous enterprises involving weapons or firearms

and if some degree of violence is envisaged and

there is an intention to cause fright, that will be

enough for manslaughter. Markby is reported at

140 CLR 108. Markby was a case where two men, one

of whom was armed with a weapon, a rifle, went out

to rob another, but it was a case in which the

Crown did not rely on felony murder. So one is

looking essentially at, we would say, an unlawful

act involving the use of firearms.	And what
happened was that a man was shot dead.	Markby was

not the shooter and the question of Markby's

liability for manslaughter arose. The trial judge left the case to the jury on the basis that Markby could only be guilty of manslaughter if the shooter

were guilty of manslaughter and not murder, but the

High Court said that that was not so and that there

was a basis on which Markby could be guilty of

manslaughter even if the shooter were guilty of

murder.

The principle, or the remarks which I have in

mind at this stage, appear in the judgment of the
Acting Chief Justice Gibbs, as he then was, in

which judgment the other four members of the Court
concurred. It is a passage at page 112, beginning with the words, "It was erroneous". Now, I do not

want to read all of it, but if we come to about

half-way down the page:

If, however, two men attack another without

any intention to cause death or grievous

bodily harm, and during the course of the

attack one man forms an intention to kill the

victim, and strikes the fatal blow with that

Wilson(2) 65 1/10/91

intention, he may be convicted of murder while

the other participant in the plan may be
convicted of manslaughter.

And there are a number of English cases cited. It then goes on:

the former had an actual intention to kill
whereas the latter never intended that death
or grievous bodily harm be caused to the
victim, and if there had not been a departure
from the common purpose the death of the
victim would have rendered the two

participants guilty of manslaughter only.

BRENNAN J:  I think that passage that you have just cited is

subject to a corrigendum at page 15.

MR JENNINGS: Yes, it did not read properly and there is

obviously a line been inserted twice but I do not

think it affects what I am saying because the

principle, really, which the High Court endorses is

that stated by the Court of Criminal Appeal in

England in Reid, over the page.

Acting Chief Justice Gibbs says, at page 113:

The relevant principle, in its

application to a case similar to the present,

was stated as follows by the Court of Criminal

Appeal in Reg v Reid:

"When two or more men go out together in

joint possession of offensive weapons such as

revolvers and knives and the circumstances are

such as to justify an inference that the very

least they intend to do with them is to use

them to cause fear in another, there is, in

our judgment, always a likelihood that, in the

excitement and tensions of the occasion, one

of them will use his weapon in some way which

will cause death or serious injury. If such

injury was not intended by the others, they

must be acquitted of murder; but having

started out on an enterprise which envisaged

some degree of violence, albeit nothing more

than causing fright, they will be guilty of
manslaughter."

Now, we say that although that is put in the context of joint enterprise - and that is how it

arose in this case - there is no reason in

principle why that does not apply to an individual.

If an individual starts out on an enterprise

envisaging some degree of violence, with weapons,

albeit nothing more than causing fright, he would

be guilty of manslaughter if death is caused

inadvertently. And of course that is the position

Wilson(2) 66 1/10/91

in a number of these unlawful and dangerous act

type cases, such as Pemble, for instance, where you

have got the discharge of the weapon.

But what I am focusing on here is that, in

this case, one goes away from objective

dangerousness and focuses on the enterprise

involving some degree of violence and an intention

to cause fright. So once again the focus is on the

mind of the doer rather than on the objective

dangerousness.

Further down the page, His Honour

the Acting Chief Justice says:

If the jury were satisfied that the two

accused men had planned to rob Syrch and that

a rifle should be carried but that no harm, or

at least no grievous bodily harm, should be

done to Syrch and that Syrch's death was, so

far as the applicant was concerned, an

unexpected consequence of the carrying out of

the design a verdict of guilty of manslaughter

would have been a proper one.

Now, I am not suggesting that that qualifies what

was said earlier in adopting the Reid principle,

but that is a case where there is no intention,

actual intention, to cause harm. There is

something less than that, namely an intention to

frighten, admittedly in the context of weapons, and

that, we would say, is enough to constitute a man's

conduct manslaughter, focusing not on objective

dangerousness but focusing on his state of mind.

There is, we would say, yet another recognized

category of manslaughter which focuses on the state

of mind of the actor, and that is killing, since

Crabbe, where there is not foresight of probable

consequences but foresight of possible

consequences. Crabbe makes it clear that that is

we would say that, on principle, that is plainly or not murder, foresight of possible consequences, but should plainly be manslaughter.

If I pull out a gun and fire it in the

direction of someone, realizing that I might

possibly kill him, but that I do not come within
the murder test as pitched in Crabbe, that none the

less, we say, should be manslaughter. Again, the

focus - and that would probably be manslaughter

however one pitches the test, whether

objective - - -

BRENNAN J: That is criminal negligence, a conscious

animadversion to a risk.

Wilson(2) 67 1/10/91

MR JENNINGS:  It is certainly that, but one can envisage -

and, of course, it is talked about in Crabbe - one

can envisage the state of mind of the actor being

not foresight of probability, but mere foresight of

possibility.

DAWSON J: It would not matter what his foresight was in

those circumstances. The question would be whether

this was gross negligence objectively considered.

MR JENNINGS:  Yes. I appreciate there are different ways of

putting it.

DAWSON J: That is the only way you can put it if you - - -

MR JENNINGS:  We would say it was not the only way, with

respect, because if one is focusing on the mind of

the actor then - - -

DAWSON J: That is what one is not doing with manslaughter.

MR JENNINGS: One is not doing that if one puts the law in

wholly objective terms, and up until now it has

been done in wholly objective terms, with this

exception, that we say that certainly the Mamote

manslaughter focuses on the mind of the actor,

"intention to cause harm".

DAWSON J: That is somewhat of an anomaly. It may be that

the intention to cause harm goes there to the

illegal act, the assault.

MR JENNINGS: Well, we would say that the Mamote test is

based on an actual intention of the doer of the

act. It could be an assault without an intention to cause harm. The intention to cause harm would appear to be a factor over and above the assault.

So we say that the Mamote category is a category

which focuses on the mind of the actor. I do not

think it is necessary, but I remind the Court

that - - -

DAWSON J:  The reason why I say it is anomalous is because,

of course, murder is unlawful killing with malice

aforethought, and manslaughter is an unlawful

killing without malice of forethought, and there is

no room for the introduction of a mental element

into manslaughter on the traditional test, on

Hale's test, as it is put in Mamote, unless it

comes via the unlawful element.

MR JENNINGS: Well, unlawful simpliciter, is that what

Your Honour is saying?

DAWSON J: Well, it may be an element of the unlawfulness in

certain circumstances. Otherwise it is hard to

Wilson(2) 68 1/10/91

know where Justice Windeyer gets that intention to

do harm or to hurt.

MR JENNINGS: Again, that may be an amelioration, I dare

say, of the notion that any blow, even if not

intended to cause harm, constitutes manslaughter.

In other words, His Honour is saying, "Look,

whatever the position may once have been, it is not

now enough that there be an assault simpliciter,

however trivial, we are now looking at an assault,

or a battery, which carries with it an intention to

cause some harm more than trivial or negligible".

But there does not seem to be any doubt - - -

DAWSON J:  Mr Justice Smith had difficulty with that, did he

not? He explained that away on the principle of

de minimis. That is how he brought it into

account, but that is not entirely convincing, is

it?

MR JENNINGS: Well, it is difficult to say. Some people

would say, no doubt, that it should not be

manslaughter if one assaults another, technically,

but in the most trivial way. In other words, some

would say that the harshness, the rigour of that

rule, should be ameliorated, and that one way of

doing it is to focus on the necessity to prove an

intention to cause some harm more than trivial or

negligible.

Can I just say to Your Honour Justice Dawson

that this excursus really into the area of

subjective manslaughter is occasioned by the way my

friend has pitched his argument, at an objective

test which focuses on this very high degree of

dangerousness. We say that there should be an

objective test, a la the English authorities, but

if one, as it were, casts off the straitjacket of

objectivity and you focus on the mind of the actor,

then there may well be a number of states of mind

which suffice, or should suffice, to constitute

unlawful conduct manslaughter, because we say the

vice with respect to Mr Tilmouth's test or

suggested resolution of the conflict is to pitch

the level of danger too high to focus just on an objective consideration, leaving out of account, for the purposes of his test, states of mind of the

actor which may well be sufficient, in terms of

culpability, to found a conviction for

manslaughter.

BRENNAN J: Your test, on the other hand, would leave out of

account the Mamote-Kulang test, or at least make it

otiose.

MR JENNINGS:  Which test is that, Your Honour?

Wilson(2) 69 1/10/91

BRENNAN J:  The one which speaks about an intention to cause

harm, because you would not have to worry about

whether he had the intention or not, you just say

that this was an act which was likely to cause

harm.

MR JENNINGS: Yes, sorry, the English authorities.

BRENNAN J:  The test for which you are contending, based on

the English authorities, looks only to the

likelihood of the act to cause harm.

MR JENNINGS: Yes, that is right.

BRENNAN J:	If you adopt that test, then it may not be quite correct to say that it utterly subsumes, but for
most cases it would subsume the "intention to cause
harm" test.

MR JENNINGS: That is right, yes. There is no question

about that and indeed - - -

BRENNAN J:	Is there something wrong with the notion of equating those tests, or is there something to be
said for equating those tests?
MR JENNINGS:	You mean, equating them in the sense of having merely the one test?

BRENNAN J: Well, it simplifies the direction to the jury, I

suppose. It is sufficient, one might argue, to

find that the act is likely to cause harm, if you

are wanting to attribute criminal responsibility

for the death.

MR JENNINGS: Indeed, that is what we say

BRENNAN J: Or one can say the opposite.

MR JENNINGS: Yes, I know.

BRENNAN J:  Have you got the arguments one way or the other,

or have you said what you need to say?

MR JENNINGS: Well, in support of the first test, the

English test, I do not think I can say any more.

The only objection to that test can be that it

pitches the degree of harm, or the foresight of

harm, too low.	We say that there can be no other
objection to it than that.	Of course it is a

simple test. It can be easily explained to juries,

but we say that it does not pitch the test too low;

that it is appropriate for the reasons,

essentially, that Justice Cox deals with in his

judgment in the Court of Criminal Appeal.

Wilson(2) 70 1/10/91

Obviously at the end of the day, as

Your Honour said this morning, it is a question, perhaps, of judicial predilection, or a value

judgment, as to how the test should be pitched but

we would say, primarily, that that is how one

should pitch the test. But there is another route

to take and that is a route which focuses on the

state of mind of the actor. Now we say that that

is a route that should be embarked on only if our

first test is rejected, but what we do say is that

the test that the respondent puts to the Court

pitches the level of dangerousness too high.

MASON CJ:  I think you have made that point more than once.

MR JENNINGS:  Yes, certainly. I will not pursue that. Can

I say finally on these possible states of mind

which, if one is looking at subjective states of

mind which might found a conviction for

manslaughter, that the English test focused on the

state of mind of the actor rather than pitched

objectively would, again, be a sufficiently

culpable state of mind for manslaughter. After

all, it was Justice Smith's concern in Holzer that

the test was objective and therefore the degree of

danger had to be pitched higher. One would think

that he would not have had that same concern if the

test was a subjective test. So, the prosecution

says that the English authority should be accepted.

Can I just say something briefly about

Phillips in the High Court and Mccallum. I do not

think it is necessary to go to the cases. But, in

using the expression that he did in Phillips that

an inherently dangerous act was one which was

fraught with risk of serious harm, Justice Windeyer
was, as I perceive it, assaying an explanation of

"dangerous". That is, of course, one explanation

but another explanation is "any act which is likely

to injure or involves an appreciable risk of

someone".

DEANE J:  I know you can point to authority for it, but in

the context of a charge of manslaughter, is that a

realistic meaning of the word "dangerous"?	I mean,
you may as well say hammering a nail in is a

dangerous activity because you are quite likely, in

many cases, to miss the nail and hit your finger.

MR JENNINGS:  But not to die.

DEANE J: But that is an abuse of the ordinary meaning of

"dangerous", I would have thought. In the context

of a charge that somebody has unlawfully killed another person, surely a direction that the act

which is alleged to have amounted to unlawful

killing must have been a dangerous act would carry

Wilson(2) 71 1/10/91

with it the meaning of "likely to cause serious

injury", forgetting about the "really serious

injury"?

MR JENNINGS: That is a South Australian embellishment or

elaboration. Well, I can say no more, I think, to

that, than that that is not the line that the

English authorities have taken and that they have

seen no difficulty with the notion that "dangerous"

means "likely to injure"~ the act, of course,
inevitably leading to death, and we say that that

suffices.

Can I say something now, briefly, about the

parallel which my friend draws with felony murder.

The felony murder doctrine applies in South

Australia and if the felony involves danger or violence and death is caused in the course of the

commission of the felony, then murder ensues. And,

as I understand it, he says, "Well, by analogy, if

the unlawful act involves danger or violence, then

so too should manslaughter ensue in those cases".

But that says nothing, we would say, necessarily,

about the degree of danger or violence.

If the test which my friend proposes pitched

at really serious injury is the test which were to

be endorsed, then that would, unless an exception

is made for the Mamote doctrine, that would or

could mean that the man who assaults another

causing his death is thereby excluded from

culpability for manslaughter, and we say that that

is not a result which should follow.

As to the charge in this case, on the aspect of "unlawful and dangerous act", we would say that

obviously the sufficiency of it depends on the view

which the Court takes of the relevant law. If the

Court were to find that "dangerous" meant something

more than "likely to injure", then a question would

arise as to whether the use merely of the word

"dangerous" without some explanation would suffice.

But we say that in this case, on the Mamote

doctrine, which we of course say should be

preserved - albeit, as Your Honour Justice Brennan

says, perhaps it need not be if one adopts the

- and, on that basis, as the

English authorities, but if one does not adopt the preserved

Chief Justice says, this man would be, we would

say, inevitably guilty of manslaughter by virtue of

the punch in the face.

McHUGH J:  Mr Jennings, what do you say, having regard to

the state of the authorities and the development of the law, particularly over the last 50 years,

Wilson(2) 72 1/10/91

that the rationalization of the law of

manslaughter requires the doctrine of "unlawful

and dangerous act" to be subsumed under two other

heads of manslaughter, namely, "intentional

infliction of harm" or "criminal negligence"?

MR JENNINGS: That, as I think my argument or, at least, the

second route of it, is a way to go. We say it is

not the only way to go because there is no reason

why the "unlawful and dangerous act" should not be

maintained in its present state but, certainly, if

one goes down some other route, then that is

obviously an appropriate - to appropriate heads of

manslaughter.

McHUGH J: Yes, but you cannot help or get the feeling that

the word "unlawful" itself is diluted in a real

sense. If somebody employs a 14-year-old boy to

work as a lion tamer and he was killed, it is

difficult to think that he would be prosecuted for

criminal negligence in that situation any more

than somebody drives an uninsured motor vehicle

through a pedestrian crossing.

MR JENNINGS: Sorry, difficult to think that he would be?

McHUGH J: Yes, that he would be prosecuted. Why should not

the law now be rationalized on the basis so that

the unlawful act doctrine just disappears

altogether and "dangerous" be given the meaning

that it really does have?

MR JENNINGS: 

And that the dangerous cases go into the

criminal negligence category and then one has
another category for "intentional infliction of

harm".

MCHUGH J: Yes.

MR JENNINGS:  I do not think there is a good reason why that

should not be so. That is not what the appellant

contends for, of course, but, no, that is - if the

Court rejects the "unlawful and dangerous act"

notion, then that is an appropriate division of
culpable killings, I daresay. But, we would say
that into the first category should go not merely

an intentional infliction of harm, but some of the

other categories which I went through where the

state of mind of the actor is sufficiently culpable

to render him guilty of, we would say,

manslaughter. It might be, for instance, the fire

arm involving the threat of violence.

Now, we would say that should suffice based on

the state of mind of the actor rather than criminal

negligence, but it may be that it would

appropriately slot into the second category. Of

Wilson(2) 73 1/10/91

course that is what one finds in a lot of these

cases involving fire arms especially, that you are

looking at both categories. That, of course,

causes a complication in itself.

DEANE J: Justice Cox gave some reasons why, in his view,

they should remain.

MR JENNINGS: That is right and, with respect, they are, in

my submission, cogent reasons because there is a

difference in the culpability of the man - and a

plain difference between the culpability of the man

- who deliberately fires a gun at another intending

to scare him and the culpability of a man who is

out shooting with a rifle and shoots it off

negligently.

DAWSON J: Grossly negligently.

MR JENNINGS: Well, yes, obviously grossly negligently.

DAWSON J: There is no difference in culpability; they are

both guilty of manslaughter.

MR JENNINGS: Well, that is so, but there is a difference in

their subjective culpability.

DAWSON J:  What Justice Cox says is there is a difference in the degrees to which a jury can understand it.

MR JENNINGS: Yes.

DAWSON J:  I mean, we do not have to go into it but gross negligence is imprecise in the extreme - - -

MR JENNINGS: That is what Justice Cox says.

DAWSON J: - - - whereas a jury understands what "dangerous"

means, despite the lawyers efforts to ensure it

does not.

MR JENNINGS:	I am sorry?
DAWSON J:	You can ignore that.

MR JENNINGS: Sorry, I did not catch that, sir.

DAWSON J:  I said the jury understands what is meant by the

word "dangerous" despite the lawyer's efforts to

ensure it does not.

MR JENNINGS: Yes, well, I have done my best to elucidate

the notion but I am not sure that I have succeeded.

It is an elusive - just as is said in Andrews that

"unlawfulness" was an elusive notion, so too I

think is "dangerous".

Wilson(2) 74 1/10/91

DAWSON J:  "Gross carelessness" is even more elusive.

MR JENNINGS: Yes, they are all difficult notions but what

one must remember, I dare say, is that we are

dealing with a very practical area of the law where

the jury has to be told in as simple terms as

possible just what founds culpability for

manslaughter. But the reasons that Justice Cox

suggested for maintaining the unlawful and
dangerous act notion, in my submission, are cogent

reasons which should be, obviously, considered

before it is rejected.

But, of course, on the division that I have

suggested as my second string, then it may well be

that that man - the man who shoots deliberately

intending to frighten - is caught by the notion

which focuses on his subjective state of mind and

not by gross negligence. In other words, that

first category, which Your Honour Justice McHugh

put initially as being one encompassing intention

to harm, we say can appropriately be expanded to

cover the conduct of the man who deliberately

intends to scare or frighten another, for instance
with a weapon, or foresees the possibility of
death; in other words, has a subjectively culpable

state of mind. He is in the one category; the

gross negligence is left for another category.

That is if the doctrine of "unlawful and dangerous

act" goes.

DAWSON J: Yes.

MR JENNINGS:  On the question of the charge with respect to

self-defence, in my outline at pages 1 and 2, I put

my submissions with respect to that. I am not

unmindful of what my friend puts and I wonder if,

briefly, I can take the Court to the charge and to

the memorandum to seek to make good my contention
that, at the end of the day, the jury would have

realized that, if they thought it was a reasonable

possibility this man was acting in self-defence,

then he should be acquitted altogether.

MASON CJ:  Can you tell us how it was that the last two

paragraphs came into the memorandum and was the

jury's attention directed to them at any stage?

MR JENNINGS:  I am afraid I cannot take the matter any

further on that, Your Honour. Ms Vanstone did not

prosecute at the trial and I am afraid I cannot

carry the Court any further on that, except to say

that when His Honour went through the possible

verdicts at page 10 of his summing up, which is

page 609 of the book, he said:

Wilson(2) 75 1/10/91

I shall now go through those possible

verdicts. These are what you will find in the

memorandum when it is given to you at the end

of my summing up.

And, of course, initially only eight appear,

whereas we know that the memorandum includes 11,

but at page 611, line 9, His Honour says:

There are now two matters of law relevant only

to Wilson arising out of those possible

verdicts -

and he then goes on to deal with provocation and

self-defence.

So it is possible that the possible verdicts that he spoke of when he referred to the memorandum

at page 605 were not only those eight but the

additional possible verdicts which arose in the

case of Wilson. And, of course, that is what

ultimately appeared in the memorandum.

His Honour deals with provocation and, at

page 15 of the summing up, page 614, His Honour

there first refers at lines 5 to 8 to the fact that

provocation would have the effect of reducing -

murder to the lesser crime of manslaughter.

So too, at the foot of page 616 and into page 617.
So the jury are plainly told that the effect of provocation - the effect of a finding in the accused's favour with respect to provocation -

would lead to manslaughter.

McHUGH J: What about that - just interrupting you, I am

sorry - direction at page 616, where the trial

judge at line 18 says:

Reasonable possibility is an equivalent of reasonable doubt -

Is that a correct direction?

MR JENNINGS: Well, I think, as he goes on to explain it, it

is. As I understand what he is saying, if you

think it is reasonably possible that he was

provoked then you would have a reasonable doubt.

He is really expressing a truism, I suppose. That

is how I would explain that, and, of course, that

expression must be read in the light of the whole

summing up, which we say clearly put the position

with respect to the onus of proof. In particular,
of course, put that so-called defences

ofprovocation and self-defence had to be negatived

Wilson(2) 76 1/10/91

by the Crown.	But the point I was seeking to make
was that the -

McHUGH J:  I must say I thought the situation was if there

was some evidence to go before the jury on the

question of provocation, then the trial judge was

bound to leave it and it was a question for the

jury whether it had been negatived beyond

reasonable doubt.

MR JENNINGS: 

Yes, that is the position, but I think the

other side of that coin, as I see it, is, if you
think it reasonably possible, at the end of the

day, that the accused acted under the influence of

provocation, then you will acquit.

McHUGH J: That is probably right, but I thought the

authorities were against the proposition that

reasonable possibility was an equivalent of

reasonable doubt - cases like Thomas v Green

and - - -

MR JENNINGS: Cases like that, of course, make it plain that

judges are unwise to attempt elaborations, but we

would say that in this case, the charge, when read

as a whole, properly puts the onus of proof. The

point I was seeking to make was that the direction

on self-defence is proceeded by a direction on

provocation, which clearly brings home to the jury

the notion that provocation, if found as a

reasonable possibility, reduces murder to

manslaughter. Now, we would say that that is

significant, because that gives colour to the words

of His Honour at page 618, when he uses the

expression:

your verdict will be that Wilson was not

guilty of murder, for self-defence is a

complete answer to a charge of murder.

In other words, a contract is drawn, and we would

say, a contrast which the jury would plainly

comprehend between provocation on the one hand,
which reduces murder to manslaughter and

self-defence, which is a complete answer to murder.

McHUGH J:	I notice at 617, the trial judge used the term "reasonable possibility" on two occasions, when he
was talking about self-defence, from line 17
and 23.

MR JENNINGS:	I would say, with respect, Your Honour, that that is not a misdirection.	I do not have Thomas v
Green with me.
McHUGH J:	It is just at the back of my mind.	I have not

read it for years.

Wilson(2) 77 1/10/91

MR JENNINGS: In my submission, that sort of expression is

often used in these cases, and indeed, it is often used by defence counsel as highlighting the notion

that, "Look, you do not have to be satisfied of

anything. It is enough if it is a reasonable

possibility. If it is a reasonable possibility,

then you cannot find my client guilty." So, it is

in that sense, in my submission, which that

expression is used. It has to be no more than a

reasonable possibility.

The words in that case too -

Cumming would not be guilty of anything -

they are capable, I daresay, of two meanings: one

is in that case Wilson is not guilty of murder, and

nor is Cumming guilty of anything. In other words,

they are both not guilty of anything. But I do

concede that it may have arisen in the sense that

my friend says it did, namely, to refer again to

Cumming's culpability having followed on from what

was said with respect to Cumming in the context of

provocation. But, in my submission, the way in

which a jury would hear that complete expression -

Wilson was not guilty of murder, for

self-defence is a complete answer to a charge

of murder -

in that case too, Cumming would be not guilty of

anything. They would hear that in the context of

the earlier direction on provocation reducing

murder to manslaughter as meaning or conveying not

guilty of anything.

If one then goes to the memorandum, the

memorandum is again not without its infallicities

perhaps, with respect, but we would say that the

clear message from the memorandum is that

considered in relation to manslaughter. And can I	self-defence was something that had to be
just - I do not ask the Court to read it now - put to the Court paragraphs 8, 9 and 10 of the
memorandum.

BRENNAN J: It is one thing for a jury to reject a defence

of self-defence in a case of murder where the

Crown's allegation it that here was a death caused intentionally, and another thing to reject a

defence of self-defence when the act is simply one

of delivering a blow.

MR JENNINGS: Yes, indeed.

BRENNAN J: Well now, was that ever made clear to the jury?

Wilson(2) 78 1/10/91

MR JENNINGS:  We would say - I mean it was never put in

those crystal clear terms - that the charge at

page 617, in other words the directions on

self-defence, focus on the punch without importing the murder notion; in other words, the directions

just focus on his act, and in that way would be

seen by the jury as applying to the punch, and

hence being applicable both to murder and

manslaughter. Then, as I say in the - - -

GAUDRON J:  The document has this problem though, does it

not, Mr Jennings? It might lead the jury to think
that they should only consider self-defence after
they have gone through all the other possibilities

first set out in the document.

MR JENNINGS: Is that the memorandum?

GAUDRON J: Yes. It does not quite bear out your statement

in your outline of submissions that that was the

live issue at the trial, particularly.

MR JENNINGS:  Can I say this, in response to Your Honour,

Justice Gaudron. It did not matter that the jury

approached self-defence in that way from the

appellant's point of view. I mean, they obviously

rejected the notion of felony murder, in his case.

They then were directed, and this is memorandum

point 7, to consider his liability for murder on
the basis of intentional infliction of grievous

bodily harm, not acting under provocation or in

self-defence he would be guilty of murder. If they

reject that and find him not guilty then they are

coming down the line, as it were, and that is an

appropriate way, we would say, to approach their

task.

Then, when one gets to 8, 9 and 10, the focus

is on Wilson's culpability for manslaughter and the

jury are told, in 10, that if he was acting in

self-defence:

The verdict in the case of each accused would

be not guilty of anything.

The problem with 10, I think I have to concede

if the Court goes to it:

You find Wilson not guilty of either murder or

manslaughter because although he caused the

death of Ormsby by his punch, and did so with

either intention to inflict grievous bodily

harm or by an otherwise unlawful and dangerous

act, he was acting in self-defence.

The problem there is the importing of the word

"unlawful" into that sentence because, of course,

Wilson(2) 79 1/10/91

the whole notion of self-defence is that it negates

that element of unlawfulness with respect to the

assault. But we would say that whilst including

that word was unfortunate, none the less the jury,

in reading that as a whole, could not have been

under any misapprehension but would have realized

that what they were being told there was, if he was

acting in self-defence when he threw the punch, he
is not guilty of anything, and we say that is, in

essence, the critical issue. If the Court pleases.

MASON J: Thank you, Mr Jennings. Yes, Mr Tilmouth.

MR TILMOUTH:  Just one matter, Your Honours, in reply. Most

of the other matters have been dealt with arguendo.

When the jury came back at 7.26 pm on self-defence,

at 690 the foreman, after the question was stated:

Could you please explain in law what

constitutes self-defence?

The foreman said:

I don't think we really took it in well enough

this morning -

lines 20 to 21 on 690 and, obviously, they were

having difficulty seven hours after initial
retirement with self-defence, and I can only repeat

because, in my submission, it is so important that

when it came to the redirection the vital sentence

is at 691. That sentence that I referred to this

morning was left off and that, as I emphasized this

morning and do again, is the last direction that

the jury went out on and that must have influenced

their minds, in my submission.

That is the only matter in reply, if the Court

pleases.

MASON CJ: Thank you, Mr Tilmouth. The Court will consider

its decision in this matter.

AT 3.31 PM THE MATTER WAS ADJOURNED SINE DIE

Wilson(2) 80 1/10/91