Yarran v The State of Western Australia
[2019] WASCA 159
•17 OCTOBER 2019
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
TITLE OF COURT : THE COURT OF APPEAL (WA)
CITATION: YARRAN -v- THE STATE OF WESTERN AUSTRALIA [2019] WASCA 159
CORAM: BUSS P
MAZZA JA
BEECH JA
HEARD: 20 MAY 2019
DELIVERED : 17 OCTOBER 2019
FILE NO/S: CACR 116 of 2018
BETWEEN: LUCAS JAMES YARRAN
Appellant
AND
THE STATE OF WESTERN AUSTRALIA
Respondent
FILE NO/S: CACR 117 of 2018
BETWEEN: ROSS JAMES BOAG
Appellant
AND
THE STATE OF WESTERN AUSTRALIA
Respondent
FILE NO/S: CACR 118 of 2018
BETWEEN: ROSS JAMES BOAG
Appellant
AND
THE STATE OF WESTERN AUSTRALIA
Respondent
FILE NO/S: CACR 152 of 2018
BETWEEN: LEROY DANIEL SMITH
Appellant
AND
THE STATE OF WESTERN AUSTRALIA
Respondent
FILE NO/S: CACR 153 of 2018
BETWEEN: LEROY DANIEL SMITH
Appellant
AND
THE STATE OF WESTERN AUSTRALIA
Respondent
ON APPEAL FROM:
Jurisdiction : SUPREME COURT OF WESTERN AUSTRALIA
Coram: HALL J
Citation: [2018] WASCSR 108
File Number : INS 47 of 2017
Catchwords:
Criminal law - Homicide offences - Criminal Code (WA), s 272 - Whether threats or intimidation caused deceased's act - Whether deceased's act an unreasonable or disproportionate response to the threats or intimidation - Relevance of an unreasonable or disproportionate response by the deceased to causation under s 272 of the Code - Whether judge erred in failing to identify for the jury the question of whether the deceased's response to the threats or intimidation was unreasonable or disproportionate
Criminal law - Defences - Exculpatory factors - Defence of accident under s 23B of the Code - Whether, in a homicide charge where s 272 of the Code is relied upon by the State, the deceased's act is an event for the purposes of s 23B of the Code
Legislation:
Criminal Code (WA), s 7, s 23B, s 268, s 270, s 272, s 277, s 280
Result:
CACR 116 of 2018
Leave to appeal on ground 2 granted
Leave to appeal on grounds 1 and 3 refused
Appeal allowed
The judgment of conviction on the count of manslaughter is set aside
There be a new trial on the count of manslaughter
CACR 117 of 2018
Leave to appeal refused
Appeal dismissed
CACR 118 of 2018
Leave to appeal on grounds 4 and 7 granted
Leave to appeal on grounds 1, 3, 5 and 6 refused
Appeal allowed
The judgment of conviction on the count of manslaughter is set aside
There be a new trial on the count of manslaughter
CACR 152 of 2018
The application for an extension of time within which to appeal is granted
Leave to appeal on ground 2 granted
Leave to appeal on grounds 1 and 3 refused
Appeal allowed
The judgment of conviction on the count of manslaughter is set aside
There be a new trial on the count of manslaughter
CACR 153 of 2018
Leave to appeal refused
Appeal dismissed
Category: A
Representation:
CACR 116 of 2018
Counsel:
| Appellant | : | S B Watters |
| Respondent | : | A L Forrester SC |
Solicitors:
| Appellant | : | MacLean Legal |
| Respondent | : | Director of Public Prosecutions (WA) |
CACR 117 of 2018
Counsel:
| Appellant | : | A O Karstaedt |
| Respondent | : | A L Forrester SC |
Solicitors:
| Appellant | : | NR Barber Legal |
| Respondent | : | Director of Public Prosecutions (WA) |
CACR 118 of 2018
Counsel:
| Appellant | : | A O Karstaedt |
| Respondent | : | A L Forrester SC |
Solicitors:
| Appellant | : | NR Barber Legal |
| Respondent | : | Director of Public Prosecutions (WA) |
CACR 152 of 2018
Counsel:
| Appellant | : | S B Watters & K Burgoyne |
| Respondent | : | A L Forrester SC |
Solicitors:
| Appellant | : | Kevin Burgoyne |
| Respondent | : | Director of Public Prosecutions (WA) |
CACR 153 of 2018
Counsel:
| Appellant | : | K Burgoyne |
| Respondent | : | A L Forrester SC |
Solicitors:
| Appellant | : | Kevin Burgoyne |
| Respondent | : | Director of Public Prosecutions (WA) |
Case(s) referred to in decision(s):
Boughey v The Queen [1986] HCA 29; (1986) 161 CLR 10
Braysich v The Queen [2011] HCA 14; (2011) 243 CLR 434
Brennan v The King [1936] HCA 24; (1936) 55 CLR 253
Campbell v The Queen [1981] WAR 286
Campbell v The State of Western Australia [2016] WASCA 156; (2016) 50 WAR 331
Collard v The State of Western Australia [2016] WASCA 135; (2016) 51 WAR 1
Couzens v The State of Western Australia [2019] WASCA 54
Fingleton v The Queen [2005] HCA 34; (2005) 227 CLR 166
Hawke v The State of Western Australia [2017] WASCA 40
Hussaini v The State of Western Australia [2009] WASCA 207
Irwin v The Queen [2018] HCA 8; (2018) 262 CLR 626
Kaporonovski v The Queen [1973] HCA 35; (1973) 133 CLR 209
Krakouer v The State of Western Australia [2006] WASCA 81; (2006) 161 A Crim R 347
L v The State of Western Australia [2016] WASCA 101; (2016) 49 WAR 545
Lacco v The State of Western Australia [2006] WASCA 152
Macartney v The State of Western Australia [2006] WASCA 29; (2006) 31 WAR 416
Martin v The Queen (No 2) (1996) 86 A Crim R 133
McAuliffe v The Queen [1995] HCA 37; (1995) 183 CLR 108
Osland v The Queen [1998] HCA 75; (1998) 197 CLR 316
Pemble v The Queen [1971] HCA 20; (1971) 124 CLR 107
R v Apostilides [1984] HCA 38; (1984) 154 CLR 563
R v Condon [2010] QCA 117
R v Evans (1812) Russell on Crime (5th ed) vol 1, 651
R v Falconer [1990] HCA 49; (1990) 171 CLR 30
R v Grimes (1894) 15 LR (NSW) 209
R v Patel [2010] QSC 198
R v Schaeffer [2005] VSCA 306; (2005) 13 VR 337
R v Taiters; Ex parte Attorney-General [1997] 1 Qd R 333
R v Van Den Bemd [1994] HCA 56; (1994) 179 CLR 137
R v Van Den Bemd [1995] 1 Qd R 401
R v Wyles; Ex parte Attorney‑General [1977] Qd R 169
Royall v The Queen [1991] HCA 27; (1991) 172 CLR 378
Simic v The Queen [1980] HCA 25; (1980) 144 CLR 319
Stanik v The Queen [2001] WASCA 333; (2001) 125 A Crim R 372
Stevens v The Queen [2005] HCA 65; (2005) 227 CLR 319
Stuart v The Queen [1974] HCA 54; (1974) 134 CLR 426
SZTAL v Minister for Immigration & Border Protection [2017] HCA 34; (2017) 262 CLR 362
TB v The State of Western Australia [2015] WASCA 212; (2015) 49 WAR 297
Timbu Kolian v The Queen [1968] HCA 66; (1968) 119 CLR 47
Ugle v The Queen [2002] HCA 25; (2002) 211 CLR 171
Vallance v The Queen [1961] HCA 42; (1961) 108 CLR 56
Van Den Hoek v The Queen [1986] HCA 76; (1986) 161 CLR 158
Warren & Ireland v The Queen [1987] WAR 314
TABLE OF CONTENTS
BUSS P: ................................................................................................................................. 10
Appeals against conviction: the State's case at trial on count 7
Appeals against conviction: Mr Yarran's, Mr Boag's and Mr Smith's cases at trial on count 7
Appeals against conviction: relevant provisions of Chapter XXVIII of the Code
Appeals against conviction: relevant provision of Chapter V of the Code
Appeals against conviction: the trial judge's written handout to the jury on count 7
Appeals against conviction: the trial judge's directions to the jury in his summing up in relation to count 7
Appeals against conviction: grounds of appeal
Appeals against conviction: Mr Yarran's and Mr Smith's ground 2 and Mr Boag's ground 7: the trial judge's approach
Appeals against conviction: Mr Boag's ground 4: the trial judge's approach
Appeals against conviction: Mr Yarran's and Mr Smith's ground 2 and Mr Boag's ground 7: the appellants' submissions
Appeals against conviction: Mr Yarran's and Mr Smith's ground 2 and Mr Boag's ground 7: the State's submissions
Appeals against conviction: Mr Boag's ground 4: Mr Boag's submissions
Appeals against conviction: Mr Boag's ground 4: the State's submissions
Appeals against conviction: Mr Yarran's and Mr Smith's ground 2 and Mr Boag's grounds 4 and 7: the common law of causation and accident, prior to the enactment of the Code, in relation to homicide involving fright, escape or self-preservation by the victim
Appeals against conviction: Mr Yarran's and Mr Smith's ground 2 and Mr Boag's grounds 4 and 7: the law of causation, in relation to homicide involving fright, escape or self-preservation by the victim, embodied in Sir Samuel Griffith's draft Criminal Code
Appeals against conviction: Mr Yarran's and Mr Smith's ground 2 and Mr Boag's grounds 4 and 7: criminal responsibility and accident as embodied in the draft Griffith Code
Appeals against conviction: Mr Yarran's and Mr Smith's ground 2 and Mr Boag's grounds 4 and 7: the law of causation, in relation to homicide involving fright, escape or self-preservation by the victim, embodied in the Crimes Act 1900 (NSW)
Appeals against conviction: Mr Yarran's and Mr Smith's ground 2 and Mr Boag's grounds 4 and 7: the proper approach to the construction of the Code
Appeals against conviction: Mr Yarran's and Mr Smith's ground 2 and Mr Boag's grounds 4 and 7: their merits
Appeals against conviction: Mr Yarran's and Mr Smith's ground 1
Appeals against conviction: Mr Yarran's and Mr Smith's ground 3
Appeals against conviction: Mr Boag's grounds 1, 3, 5 and 6
Appeals against sentence by Mr Boag and Mr Smith
The orders to be made
Introduction
The State case at trial
The defence cases at trial in summary
Mr Yarran's case at trial
Mr Boag's case at trial
Mr Smith's case at trial
The judge's direction to the jury
Legal principles
Grounds of appeal
Mr Boag's ground 7: Mr Yarran and Mr Smith's ground 2: unreasonable or disproportionate responses to threats or intimidation
Summary
Are unreasonable or disproportionate responses to threats or intimidation relevant under s 272 of the Code?
The need for a direction in this case as to an unreasonable or disproportionate response
Mr Boag's ground 4: identification of the relevant event for the purposes of s 23B of the Code
Mr Boag's appeal against conviction: other grounds of appeal
Mr Boag's ground 1: the legal basis of Mr Boag's criminal responsibility
Mr Boag's ground 3: the effect of Mr Wilton's evidence
Mr Boag's ground 5: the deceased's drug intoxication was a novus actus interveniens
Mr Boag's ground 6: the State's failure to adduce expert evidence required critical comment
Mr Yarran and Mr Smith's appeals against conviction: other grounds of appeal
Mr Yarran and Mr Smith's ground 1: failure to direct in relation to novus actus interveniens
Ground 1: Mr Yarran and Mr Smith's submissions
Ground 1: disposition
Mr Yarran and Mr Smith's ground 3: failure to direct on the need to prove that the deceased's act resulted in her death
Appeals against sentence
Conclusion
BUSS P:
The appellant in CACR 116 of 2018 (Mr Yarran), the appellant in CACR 117 and 118 of 2018 (Mr Boag) and the appellant in CACR 152 and 153 of 2018 (Mr Smith) were jointly charged on an indictment containing seven counts.
Count 1 alleged that on 3 August 2015, at Ridgewood, Mr Yarran, Mr Boag and Mr Smith stole from Cody Watson, with violence and in circumstances of aggravation, money, a mobile telephone, methylamphetamine and a silver neck chain, the property of Mr Watson, contrary to s 392 of the Criminal Code (WA) (the Code).
Count 2 alleged that, on the same date and at the same place as in count 1, Mr Yarran, Mr Boag, Mr Smith and SH stole from William Wilton, with violence and in circumstances of aggravation, money, a mobile telephone, methylamphetamine and a bracelet, the property of Mr Wilton, contrary to s 392 of the Code.
Count 3 alleged that, on the same date and at the same place as in count 1, Mr Yarran, Mr Boag, Mr Smith and SH stole from Peta Fairhead, with threats of violence and in circumstances of aggravation, a mobile telephone, a handbag and a motor vehicle key, the property of Ms Fairhead, contrary to s 392 of the Code.
Count 4 alleged that, on the same date as in count 1, at Ridgewood and elsewhere, Mr Yarran, Mr Boag and Mr Smith unlawfully detained Mr Watson, contrary to s 333 of the Code.
Count 5 alleged that, on the same date and at the same place as in count 4, Mr Yarran, Mr Boag and Mr Smith unlawfully detained Mr Wilton, contrary to s 333 of the Code.
Count 6 alleged that, on the same date and at the same place as in count 4, Mr Yarran, Mr Boag and Mr Smith unlawfully detained Ms Fairhead, contrary to s 333 of the Code.
Count 7 alleged that, on the same date as in count 1, at Joondalup, Mr Yarran, Mr Boag and Mr Smith unlawfully killed Ms Fairhead, contrary to s 280 of the Code.
On 21 March 2018, after a joint trial in the Supreme Court before Hall J and a jury, Mr Yarran, Mr Boag and Mr Smith were convicted of all of the counts in the indictment.
On 8 June 2018, the trial judge imposed sentence.
Mr Yarran was sentenced as follows:
(a)Count 1: 5 years' imprisonment;
(b)Count 2: 5 years' imprisonment;
(c)Count 3: 5 years' imprisonment;
(d)Count 4: 3 years' imprisonment;
(e)Count 5: 3 years' imprisonment;
(f)Count 6: 3 years' imprisonment; and
(g)Count 7: 8 years' imprisonment.
His Honour ordered that the sentence for count 4 commence upon Mr Yarran having served two years of the sentence for count 1 and that the sentence for count 7 commence upon Mr Yarran having served one year of the sentence for count 4. The other sentences were ordered to be served concurrently. The total effective sentence was therefore 11 years' imprisonment. The total effective sentence was backdated to 4 August 2016. A parole eligibility order was made.
Mr Boag was sentenced as follows:
(a)Count 1: 4 years 6 months' imprisonment;
(b)Count 2: 4 years 6 months' imprisonment;
(c)Count 3: 4 years 6 months' imprisonment;
(d)Count 4: 3 years' imprisonment;
(e)Count 5: 3 years' imprisonment;
(f)Count 6: 3 years' imprisonment; and
(g)Count 7: 8 years' imprisonment.
His Honour ordered that the sentence for count 4 commence upon Mr Boag having served 18 months of the sentence for count 1 and that the sentence for count 7 commence upon Mr Boag having served one year of the sentence for count 4. The other sentences were ordered to be served concurrently. The total effective sentence was therefore 10 years 6 months' imprisonment. The total effective sentence was backdated to 9 August 2016. A parole eligibility order was made.
Mr Smith was sentenced as follows:
(a)Count 1: 4 years 6 months' imprisonment;
(b)Count 2: 4 years 6 months' imprisonment;
(c)Count 3: 4 years 6 months' imprisonment;
(d)Count 4: 3 years' imprisonment;
(e)Count 5: 3 years' imprisonment;
(f)Count 6: 3 years' imprisonment; and
(g)Count 7: 8 years' imprisonment.
His Honour ordered that the sentence for count 4 commence upon Mr Smith having served 18 months of the sentence for count 1 and that the sentence for count 7 commence upon Mr Smith having served one year of the sentence for count 4. The other sentences were ordered to be served concurrently. The total effective sentence was therefore 10 years 6 months' imprisonment. The total effective sentence was backdated to 4 August 2016. A parole eligibility order was made.
Each of Mr Yarran, Mr Boag and Mr Smith has appealed against his conviction on count 7 (that is, the offence of manslaughter).
Each of Mr Boag and Mr Smith has also appealed against sentence.
In my opinion, the trial judge misdirected the jury on the defence of accident under s 23B of the Code in relation to the charge of manslaughter. I would therefore allow each of Mr Yarran's, Mr Boag's and Mr Smith's appeal against his conviction for manslaughter. The judgments of conviction for manslaughter should be set aside and a new trial on that count should be ordered. As I will explain, it is unnecessary to deal with the appeals against sentence. My reasons for those conclusions are as follows.
Appeals against conviction: the State's case at trial on count 7
The State's case at trial in respect of count 7 is summarised in Mazza and Beech JJA's reasons. I will not repeat the summary except to the extent necessary to explain my reasons.
Section 272 of the Code provides, relevantly, that a person 'who, by threats or intimidation of any kind … causes another person to do an act … which results in the death of that other person, is deemed to have killed him'.
The State's case was that Mr Yarran, Mr Boag and Mr Smith were joint principals, within s 7(a) of the Code, in that each of them did an act or a series of acts that threatened or intimidated Ms Fairhead.
The State alleged that Mr Yarran, Mr Boag and Mr Smith, by threats or intimidation, caused Ms Fairhead to do an act (namely, open the door of a moving motor vehicle in which she was a passenger, while not wearing a seatbelt, and exit the vehicle), which resulted in her death.
On the evening of 2 August 2016, Mr Yarran, Mr Boag and Mr Smith were at a house in Ridgewood. They were living or staying at the house. SH, a female friend of hers and Georgia McEwan were visiting the house.
During the evening Mr Yarran asked SH, the female friend of hers and Ms McEwan whether they knew of anyone they 'could roll for gear', meaning rob for methylamphetamine. SH said she knew someone who she could bring to the house. Mr Boag and Mr Smith were present when the plan to rob someone for methylamphetamine was formulated and put into effect.
SH contacted Mr Watson by text message and by telephone. She asked him to come to the Ridgewood house. She also asked him whether he had any methylamphetamine. SH gave Mr Watson the impression that she had a sexual interest in him. She told Mr Watson that she and one other friend were the only people at the house.
When Mr Watson received the communications from SH he was with Mr Wilton and Ms Fairhead. They were in Ms Fairhead's motor vehicle, a Toyota Prado 4-wheel drive. Ms Fairhead agreed to drive Mr Watson to the Ridgewood house.
At about 1.50 am on 3 August 2016, Mr Watson, Mr Wilton and Ms Fairhead arrived at the Ridgewood house in Ms Fairhead's motor vehicle. SH and her female friend were waiting outside the house to meet them. SH invited Mr Watson, Mr Wilton and Ms Fairhead to enter the house. Before and after they entered the house, Mr Watson, Mr Wilton and Ms Fairhead were threatened or intimidated by Mr Yarran, Mr Boag and Mr Smith.
The alleged threats or intimidation included verbal threats, physical intimidation, depriving Mr Watson, Mr Wilton and Ms Fairhead of their liberty, and physical violence against Mr Watson and Mr Wilton in Ms Fairhead's presence during a protracted incident.
In particular, the threats and intimidation included:
(a)Mr Yarran, Mr Boag and Mr Smith confronting Ms Fairhead and the others, while armed, outside the house;
(b)Mr Yarran, Mr Boag and Mr Smith confining Ms Fairhead and the others in the house and then separating them;
(c)Mr Yarran, in Ms Fairhead's presence, becoming angry and slamming a machete into a coffee table in the lounge room;
(d)Mr Yarran, in Ms Fairhead's presence, hitting Mr Watson on the forehead with the machete, drawing blood;
(e)Mr Yarran, Mr Boag and Mr Smith stealing from Mr Watson, Mr Wilton and Ms Fairhead;
(f)Mr Yarran ordering Ms McEwan, in a threatening way while holding the machete, to strip-search Ms Fairhead;
(g)Mr Yarran, Mr Boag and Mr Smith forcing Ms Fairhead and the others into Ms Fairhead's motor vehicle while armed;
(h)Mr Yarran threatening to kill Ms Fairhead and the others by burning the vehicle with them in it;
(i)Mr Yarran, Mr Boag and Mr Smith being armed with the machete, baseball bats and Mr Watson's knife over the course of the incident;
(j)Mr Yarran, in Ms Fairhead's presence, demanding drugs; and
(k)the tone of voice used during the incident.
Mr Yarran, Mr Boag and Mr Smith threatened to strike Mr Watson, Mr Wilton and Ms Fairhead with the machete and the baseball bats if they did not get into Ms Fairhead's motor vehicle. Mr Wilton was jabbed with the end of a baseball bat. Mr Watson, Mr Wilton and Ms Fairhead were being held against their will. Mr Yarran got into the driver's seat of the vehicle. Ms Fairhead was in the front passenger seat. Mr Watson was in the rear compartment, Mr Wilton was in the middle of the back passenger seat with Mr Boag and Mr Smith on either side of him. Mr Yarran, Mr Boag and Mr Smith took the machete and the baseball bats with them when they got into the vehicle.
Mr Yarran drove Ms Fairhead's motor vehicle erratically. He threatened to drive the vehicle into the bush and to burn it with Mr Watson, Mr Wilton and Ms Fairhead inside. Ms Fairhead then said words to the effect of 'sorry, I can't do this' or 'I can't handle this'. She reached for the machete, which was between the driver's seat and the centre console. Mr Yarran attempted either to grab Ms Fairhead or the machete. The vehicle swerved. Ms Fairhead opened the door adjacent to her and fell from the vehicle.
When Ms Fairhead fell from the vehicle she struck the road and suffered traumatic head injuries. She appears to have lost consciousness immediately and to have been bleeding significantly. Although she did not die immediately, Ms Fairhead did not survive. The cause of her death was the traumatic head injuries which she suffered upon striking the road after falling from the vehicle.
Appeals against conviction: Mr Yarran's, Mr Boag's and Mr Smith's cases at trial on count 7
Mr Yarran's, Mr Boag's and Mr Smith's cases at trial on count 7 are summarised in Mazza and Beech JJA's reasons. I will not repeat the summary except to the extent necessary to explain my reasons.
Mr Yarran, Mr Boag and Mr Smith contended at trial in relation to count 7 that early in the morning on 3 August 2016, Mr Yarran, Mr Boag, Mr Smith, Mr Watson, Mr Wilton and Ms Fairhead left the Ridgewood house in Ms Fairhead's motor vehicle to collect drugs. Mr Watson, Mr Wilton and Ms Fairhead acted willingly. None of them was compelled to do anything.
Mr Yarran contended that Ms Fairhead's decision to leave the motor vehicle was inexplicable. Her action was undertaken voluntarily while under the influence of methylamphetamine and in response to recent domestic violence from her partner. Nothing said or done by Mr Yarran caused Ms Fairhead to decide to leave the vehicle. Defence counsel submitted that it was not reasonably foreseeable by Mr Yarran or anyone that Ms Fairhead would decide to leave the vehicle. Her death was not a reasonably foreseeable consequence of anything said or done by Mr Yarran.
Mr Boag contended that Ms Fairhead's decision to leave the motor vehicle was not a reasonable response to anything said or done by him. Defence counsel submitted that Ms Fairhead's decision to leave the vehicle was not reasonably foreseeable. Further, Ms Fairhead's action in leaving the vehicle was not a reasonable response to any threats or intimidation previously engaged in by Mr Boag.
Mr Smith contended that during the journey in the motor vehicle Ms Fairhead jumped or fell out of the vehicle to her death. She may or may not have intended to die. In any event, nothing said or done by Mr Smith had anything to do with her death. Ms Fairhead's action in jumping or falling out of the vehicle was attributable to a combination of unfortunate life circumstances that had nothing to do with Mr Smith or anyone else who was present at the Ridgewood house on the night in question.
Mr Yarran gave evidence at the trial. Mr Boag and Mr Smith did not give evidence.
Appeals against conviction: relevant provisions of Chapter XXVIII of the Code
Chapter XXVIII of the Code is headed 'Homicide: Suicide: Concealment of birth'. It comprises s 268 to s 291.
The relevant provisions of ch XXVIII, for the purposes of these appeals against conviction, are s 268, s 270, s 272, s 277 and s 280(1). Those provisions read:
268.Killing a person is unlawful
It is unlawful to kill any person unless such killing is authorised or justified or excused by law.
270.Term used: kill
Any person who causes the death of another, directly or indirectly, by any means whatever, is deemed to have killed that other person.
272.Causing death by threat
A person who, by threats or intimidation of any kind, or by deceit, causes another person to do an act or make an omission which results in the death of that other person, is deemed to have killed him.
277.Unlawful homicide is murder or manslaughter
Any person who unlawfully kills another is guilty of a crime which, according to the circumstances of the case, may be murder or manslaughter.
280.Manslaughter
(1)If a person unlawfully kills another person under such circumstances as not to constitute murder, the person is guilty of manslaughter and is liable to imprisonment for life.
Alternative offence: s. 281, 284, 290, 291 or 294 or Road Traffic Act 1974 s. 59.
Appeals against conviction: relevant provision of Chapter V of the Code
Chapter V of the Code is headed 'Criminal responsibility'. It comprises s 22 to s 36. The relevant provision of ch V, for the purposes of these appeals against conviction, is s 23B. It provides:
Accident
(1)This section is subject to the provisions in Chapter XXVII and section 444A relating to negligent acts and omissions.
(2)A person is not criminally responsible for an event which occurs by accident.
(3)If death or grievous bodily harm -
(a)is directly caused to a victim by another person's act that involves a deliberate use of force; but
(b)would not have occurred but for an abnormality, defect or weakness in the victim,
the other person is not, for that reason alone, excused from criminal responsibility for the death or grievous bodily harm.
(4)Subsection (3) applies -
(a)even if the other person did not intend or foresee the death or grievous bodily harm; and
(b)even if the death or grievous bodily harm was not reasonably foreseeable.
Appeals against conviction: the trial judge's written handout to the jury on count 7
The trial judge gave a written handout to the jury in relation to, relevantly, count 7.
The jury handout explained the elements of the offence charged in count 7 (that is, the offence of manslaughter) as follows:
Unlawful Killing (Count 7)
The elements of unlawful killing (manslaughter) are;
1.That the accused (identity);
2.Killed another person, that is caused that person's death, directly or indirectly, by any means whatever; and
3.That the killing was unlawful, that is it was not authorised, justified or excused by law.
The jury handout explained causing death by threats or intimidation under s 272 of the Code as follows:
Causing Death by Threats or Intimidation
The law provides that a person who, by threats or intimidation of any kind, causes another person to do an act which results in the death of that other person, is deemed to have killed him or her.
The relevant questions for you are;
1.Did the accused make threats or perform acts of intimidation as alleged by the State?
2.Did any such threats or intimidation cause Ms Fairhead to open the car door?
3.Did that act of opening the car door result in Ms Fairhead's death?
As to causation, the threats or intimidation do not have to be the sole, direct or immediate cause of Ms Fairhead's act. It is sufficient if you are satisfied beyond reasonable doubt that they were, as a matter of objective fact, a cause, provided that it was a cause that contributed substantially or significantly to the doing of the act. In deciding causation you should apply your common sense to the facts as you find them to be.
The jury handout explained the defence of accident under s 23B of the Code as follows:
Accident
The law provides that a person is not criminally responsible for an event which occurs by accident. An event occurs by accident if it was a consequence which was not intended or foreseen by the accused and would not reasonably have been foreseen by an ordinary person. Where the issue of accident is raised by the defence, as it has been here, it is for the prosecution to disprove it beyond reasonable doubt. It can do that either by proving that the accused did intend or foresee the event or by proving that the event would reasonably have been foreseen by an ordinary person.
Appeals against conviction: the trial judge's directions to the jury in his summing up in relation to count 7
The trial judge's directions to the jury in his summing up in relation to count 7 were consistent with the explanations in the jury handout as to the elements of the offence of manslaughter, causing death by threats or intimidation under s 272 of the Code and the defence of accident under s 23B of the Code.
As to causing death by threats or intimidation under s 272 of the Code, his Honour directed the jury in his summing up as follows:
To kill a person means to cause the death of that person directly or indirectly by any means whatever.
Now, the law provides that a person who by threats or intimidation of any kind causes another person to do an act that results in the death of that other person is deemed to have killed him or her. If you turn to the third of the handouts that I've given you, you'll see that that's headed Causing Death by Threats or Intimidation. So that first paragraph reflects what I've just told you:
The law provides that a person who by threats or intimidation of any kind causes another person to do an act which results in the death of that other person is deemed to have killed him or her.
The law here provides for cases where a person is driven to do a dangerous act due to fear, a desire to escape or a hope of self‑preservation by the conduct of another person. That's what the prosecution alleges here, namely that the accused together made threats to and intimidated Ms Fairhead and that those threats and intimidation caused her to do an act which resulted in her death. Now, it's not to the point to say that it was Ms Fairhead's act that caused her death. The question is what caused her to act as she did and in particular was her act caused by the accused.
The act which Ms Fairhead is alleged to have done is open the door of a moving car in circumstances where she was not wearing a seatbelt. Now, there's some evidence that she may have pushed herself out of the car. Mr Wilton gave some evidence about that, but the prosecution say[s] it doesn't matter because whether she fell or jumped, it is clear that she deliberately opened the car door. Now, there seems to be no dispute that she did that. The issue is did the accused cause her to do it by threats or intimidation.
So, the relevant questions for you are, and this is reflected in the handout, one, did the accused make threats or perform acts of intimidation as alleged by the State. Two, did any such threats or intimidation cause Ms Fairhead to open the car door and three, did that act of opening the car door result in Ms Fairhead's death. Now, the alleged threats and intimidation are constituted by, it's alleged, the use of weapons and threats in the house, the demands for drugs, the order that Ms Fairhead be strip-searched if you find that that occurred.
The demand that she get into the car with the others and there is allegedly an express threat and Mr Wilton gave evidence of this, to take the car out to the bush and burn it with them in it. So the first thing you have to decide is whether those things occurred and in respect of each accused, whether he participated in doing those things. As to causation, the threats or intimidation do not have to be the sole, direct or immediate cause of Ms Fairhead's act.
It is sufficient if you are satisfied beyond reasonable doubt that [they] were, as a matter of objective fact, a cause provided that it was a cause that contributed substantially or significantly to the doing of the act. And that's reflected in the last paragraph on that handout that I gave you. In deciding that question of causation, you should apply your common sense to the facts as you find them to be.
Now, you've heard some evidence about Ms Fairhead's domestic circumstances at around the time that this occurred, and a report - in fact two reports that she made to the police, including one that she made to the police about her partner the day before she died. There is disputed evidence as to whether she was on the phone to her partner whilst she was in the car and you have some phone records, although it's suggested to you that there may be other ways to contact a person other than using the telephone network.
There is evidence that before leaving the car she said words to the effect, 'Sorry, I can't do this.' You are entitled to take that evidence into account, but don't be diverted from the principal question which is whether threats or intimidation by the accused were a significant or substantial cause of her actions. If they were, then it does not matter that she may have had other reasons in her life to be sad or upset.
As to whether Ms Fairhead's act of opening the door resulted in her death, the question for you is whether her death was, as a matter of objective fact, a consequence of that act. Now, it's a matter for you but you may well think that opening the door of a moving car when not wearing a seatbelt is an inherently dangerous thing to do. There is a risk of falling out and suffering injuries, you might well think.
We know that that is in fact what happened. You heard from Dr McCreath as to the traumatic head injuries that were the immediate medical cause of death. It's a matter for you but you may well have little difficulty concluding that Ms Fairhead's death was a result of her opening the car door, falling from the car, hitting the road and suffering head injuries (ts 1236 - 1239).
As to the defence of accident under s 23B of the Code, the trial judge directed the jury in his summing up as follows:
Now, there is another passage which is on the first handout that I gave you on criminal responsibility. If I could ask you to turn back to that, and on the second page of that you'll see there's a heading Accident. Now, if you're satisfied that the accused, or any of them, did cause Ms Fairhead to open the car door, there is another issue you must resolve and that's whether her death was foreseeable[.]
The law provides that a person is not criminally responsible for an event which occurs by accident. You've heard counsel mention this. Accident has a very particular meaning in the criminal law. An event occurs by accident if it was a consequence which was not intended or foreseen by the accused and would not have reasonably been foreseen by an ordinary person.
So there are two elements to accident, one subjective and one objective. An event will not be an accident unless two requirements are met. First, the event must not be intended or foreseen by the accused. That's the subjective element. And secondly, the events [sic] must be one which would not reasonably have been foreseen by an ordinary person. That's the objective element.
Where the issue of accident is raised by the defence, as it has been here, it's for the prosecution to disprove it beyond reasonable doubt. It can do that either by proving that the accused did intend or foresee the event, or by proving that the event [would] reasonably have been foreseen by an ordinary person.
In this case the prosecution accepts that the accused did not intend that Ms Fairhead would die and did not foresee it, so you can put that to one side. Rather, what the prosecution say[s] is that her death was objectively reasonably foreseeable by an ordinary person in these circumstances.
So the question for you is are you satisfied beyond reasonable doubt that an ordinary person in the circumstances of the accused would reasonably have foreseen that the death of Ms Fairhead was a possible outcome. A possible outcome is one that is realistically possible, excluding possibilities that are no more than remote or speculative. An ordinary person would of course be sober. That is, not affected by alcohol or drugs.
Your determination of this issue requires you to evaluate all of the relevant circumstances, including any actions or threats that had preceded getting into the car, the manner of driving, whether there were weapons in the car, how an ordinary person in the position of the accused would have perceived Ms Fairhead's emotional condition, and how an ordinary person in the position of the accused would have perceived that their actions had affected or may affect Ms Fairhead.
If you're satisfied that Ms Fairhead's death was reasonably foreseeable, then accident is excluded. In this event, and assuming that the elements of the offence are otherwise proven, the accused in question would be guilty of count 7. If you are not satisfied that the death was reasonably foreseeable or any of the elements of the offence are not proven, then the accused in question would be not guilty of count 7 (ts 1239 - 1240).
Appeals against conviction: grounds of appeal
Ultimately, Mr Yarran and Mr Smith relied upon three grounds in their appeals against conviction. The grounds are identical. Ultimately, Mr Boag relied upon six grounds in his appeal against conviction. All of the applications for leave to appeal against conviction were referred to the hearing of the appeals.
The grounds of appeal are set out in Mazza and Beech JJA's reasons. It is sufficient, for the purposes of my reasons, to reproduce Mr Yarran's and Mr Smith's grounds 1 and 2 and Mr Boag's grounds 4 and 7.
Mr Yarran's and Mr Smith's grounds 1 and 2 read:
1.There was a miscarriage of justice when, in relation to Count 7 on the Indictment (manslaughter), His Honour failed to direct the jury that if the deceased unintentionally fell from the vehicle at the time of her fall then that falling would have been a novus actus interveniens that would break the chain of causation in relation to Section 272 of the Criminal Code.
2.There was a miscarriage of justice when, in relation to Count 7 on the Indictment (manslaughter), His Honour failed to adequately direct the jury as to matters the State needed to establish to prove guilt;
Particulars
2.1.His Honour failed to direct the jury adequately/or at all that the State needed to establish that the deceased's jumping from the car at the point in time she did was not an act that was either irrational nor unreasonable or disproportionate to any threats or intimidation operating at the time;
2.2His Honour failed to direct the jury adequately/or at all that the State needed to establish that the deceased's fear or apprehension was well-founded or reasonable in all the circumstances;
2.3His Honour failed to direct the jury adequately/or at all that the State needed to establish that the alleged act of escape or self‑preservation must be the natural consequences [sic] of the appellant's behaviour.
Mr Boag's grounds 4 and 7 read:
4.The learned judge erred in misdirecting the jury (at T 1240) as to the requirement of reasonable foreseeability in relation to the defence of accident (s 23B of the Criminal Code), by identifying the issue as foreseeability of death occurring, instead of foreseeability of the deceased opening the door of the moving vehicle and exiting the vehicle, giving rise to a miscarriage of justice.
…
7.The learned Judge erred in law:
(a)in failing to direct the jury to the effect that the chain of causation between the accused's alleged threats or intimidation and the deceased's act would be broken and the deeming provision in s 272 would not be engaged, if the deceased's act was unreasonable or disproportionate; and
(b)in deciding (at T 1039, 1040) that this issue was sufficiently dealt with by telling the jury that legal causation required the relevant threats or intimidation to be a substantial or significant cause,
resulting in a miscarriage of justice.
The issues raised by Mr Yarran's and Mr Smith's grounds 1 and 2 and Mr Boag's grounds 4 and 7 in relation to the proper construction of s 272 and s 23B are linked. It is therefore convenient to deal with those grounds together.
Appeals against conviction: Mr Yarran's and Mr Smith's ground 2 and Mr Boag's ground 7: the trial judge's approach
At trial the prosecutor raised with the trial judge, before his Honour commenced his summing up, the State's contention that 'whether Ms Fairhead's reaction was in any way reasonable is not part of s 272 [of the Code]' (ts 1037). That issue was then discussed between his Honour, the prosecutor and defence counsel.
Ultimately, his Honour informed the prosecutor and defence counsel that he was inclined to think that any suggestion that Ms Fairhead's action '[broke] the chain of causation' would be 'sufficiently dealt with by telling the jury that … legal causation requires [that any threats and intimidation] be a substantial or significant cause' of her action (ts 1039). His Honour added that 'if the jury is satisfied [that any threats and intimidation were] a substantial and significant cause [of Ms Fairhead's action], then that would seem to negative any possibility that [her action] was an overreaction' (ts 1040).
Appeals against conviction: Mr Boag's ground 4: the trial judge's approach
The trial judge directed the jury on the defence of accident under s 23B of the Code by stating that the relevant 'event', for the purposes of s 23B, was Ms Fairhead's death. His Honour did not direct the jury that the relevant 'event' or a relevant 'event', for the purposes of s 23B, was Ms Fairhead's act in opening the door of the moving vehicle and exiting the vehicle.
Appeals against conviction: Mr Yarran's and Mr Smith's ground 2 and Mr Boag's ground 7: the appellants' submissions
Counsel for Mr Boag submitted that:
(a)The novus actus interveniens principle is inherent in the concept of causation.
(b)The principle is applicable to s 272 of the Code.
(c)Ms Fairhead's action in opening the door of the moving motor vehicle and exiting the vehicle was, at least arguably, an overreaction, or an unreasonable or disproportionate response, to any threats and intimidation from Mr Yarran, Mr Boag and Mr Smith.
(d)It was open to the jury to consider that Ms Fairhead's actions were, in all the circumstances, an overreaction, or an unreasonable or disproportionate response, to any threats and intimidation.
(e)The trial judge erred in deciding that the issue of whether Ms Fairhead's actions were an overreaction, or an unreasonable or disproportionate response, could be dealt with sufficiently by directing the jury that legal causation required that any relevant threats and intimidation be a substantial or significant cause of Ms Fairhead's action.
Similarly, counsel for Mr Yarran and Mr Smith submitted that his Honour erred in failing to direct the jury that the jury had to be satisfied beyond reasonable doubt that Ms Fairhead's action in 'jumping from [the vehicle] at the point in time she did' was not an unreasonable or disproportionate response to any threats and intimidation operating at the time. It was also submitted that his Honour erred in failing to direct the jury that the State had to establish that 'the alleged act of escape or self-preservation [was] the natural consequence of' any operative threats and intimidation at the time.
Appeals against conviction: Mr Yarran's and Mr Smith's ground 2 and Mr Boag's ground 7: the State's submissions
Counsel for the State argued that the concept of novus actus interveniens does not apply to s 272. The trial judge had directed the jury to consider whether the threats and intimidation induced by the appellants was 'a cause that contributed substantially or significantly to the doing of the act'. It did not have to be 'the sole, direct or immediate cause' (ts 1238). In considering whether causation was satisfied, the members of the jury were to apply their common sense to the facts as they found them. Counsel argued that there was no basis to impugn these directions. Section 272 is to be construed by reference to the relevant provisions of the Code as a whole. Section 272 is a deeming provision, in that if the terms of s 272 are satisfied, the accused will be deemed to have killed the victim. In determining the issue of causation under s 272, the ordinary principles of causation apply. Nothing in s 272 suggests that the 'act' of the victim must be reasonable or proportionate. The terms of s 272 make clear that the response of the victim is not a novus actus interveniens if it is caused by the threats or intimidation of the accused. Rather, in circumstances where the actions of the victim are unreasonable or disproportionate to the threats or intimidation of the accused, the question of criminal responsibility is determined by reference to s 23B (appeal ts 74) and was captured by his Honour's directions regarding the defence of accident. In any case, Ms Fairhead's act of opening the door of the moving car was not unreasonable or disproportionate in the circumstances.
Appeals against conviction: Mr Boag's ground 4: Mr Boag's submissions
Counsel for Mr Boag submitted that the trial judge erred in law in the directions his Honour gave on the defence of accident under s 23B of the Code by stating that the relevant 'event' was Ms Fairhead's death.
It was submitted that the relevant 'event', for the purposes of s 23B, was Ms Fairhead's act in opening the door of the moving vehicle and exiting the vehicle.
Appeals against conviction: Mr Boag's ground 4: the State's submissions
Counsel for the State argued that the relevant 'event', for the purposes of s 23B, was Ms Fairhead's death. Counsel cited TB v The State of Western Australia[1] in support of the State's argument that, in circumstances where s 23B operates to excuse an accused from criminal responsibility for some consequential event that attracts criminal liability, the relevant 'event', for the purposes of s 23B, must be the event that incurs criminal liability, which, in this case, was Ms Fairhead's death. The 'event' is the 'end result'. There are no 'intermediate events' (appeal ts 83). Therefore, there was no basis upon which to impugn the trial judge's directions to the jury in respect of the defence of accident.
Appeals against conviction: Mr Yarran's and Mr Smith's ground 2 and Mr Boag's grounds 4 and 7: the common law of causation and accident, prior to the enactment of the Code, in relation to homicide involving fright, escape or self-preservation by the victim
[1] TB v The State of Western Australia [2015] WASCA 212; (2015) 49 WAR 297.
In Stephen, A Digest of the Criminal Law (1894, 5th ed), 'homicide' was defined in Article 239 as 'the killing of a human being by a human being'.
In Article 240, 'killing' was defined as follows:
Killing is causing the death of a person by an act or omission but for which the person killed would not have died when he did, and which is directly and immediately connected with his death. The question whether a given act or omission is directly and immediately connected with the death of any person is a question of degree dependent upon the circumstances of each particular case.
The author stated that Article 240 was subject to the provisions of Articles 241 and 242.
Article 241 stated the common law of causation in relation to homicide when the accused's act was 'the remote cause of death or one of several causes'. Article 241 provided, relevantly:
A person is deemed to have committed homicide, although his act is not the immediate or not the sole cause of death in the following cases -
…
(c)If by actual violence or threats of violence he causes a person to do some act which causes his own death, such act being a mode of avoiding such violence or threats, which under the circumstances would appear natural to the person injured (footnote omitted).
The author gave the following illustration of the proposition in par (c) of Article 241: A violently beats and kicks B, his wife, on the edge of a pond. She, to avoid his violence, throws herself into the pond and is drowned. A has killed B.
The author cited R v Evans[2] in support of the proposition in par (c) of Article 241. In Evans, the indictment charged 'first that the prisoner killed his wife by beating, secondly by throwing her out of the window, and thirdly and fourthly, that he beat her and threatened to throw her out of the window and to murder her; and that by such threats she was so terrified that through fear of his putting his threats into execution she threw herself out of the window, and of the beating and the bruises received by the fall died'. The court (Heath, Gibbs and Bayley JJ) were of the opinion 'that if [the wife's] death was occasioned partly by the blows and partly by the fall, yet if she was constrained by her husband's threats of further violence, and from a well-grounded apprehension of his doing such further violence as would endanger her life, he was answerable for the consequences of the fall, as much as if he had thrown her out of the window himself'.
[2] R v Evans (1812) Russell on Crime (5th ed) vol 1, 651.
In R v Grimes,[3] the Full Court of the Supreme Court of New South Wales (Windeyer, Innes and Foster JJ) approved Evans in the course of dismissing appeals against conviction for murder. The appellants and the victim were travelling in the same compartment in a railway carriage. The appellants robbed and brutally assaulted the victim. The victim, fearing that his life would be in danger if he remained in the carriage, jumped from the train and was killed. At the trial, the Chief Justice of New South Wales directed the jury:
If, then, you are satisfied that [the victim] left the window immediately after the robbery and wounding took place, and if you are satisfied that, though [the victim] was not actually put through the window by the prisoners, yet that when he jumped through he had a well-founded and reasonable fear or apprehension that if he stayed in the carriage he would be subjected to such further violence as would endanger his life, and if he left the carriage thinking that by doing so he had a better chance of saving his life than by staying in, and was killed in the fall, then the prisoners are guilty of murder, and are just as responsible for the man's death as if they had taken him in their hands and thrown him out of the window (213).
The Full Court held that the direction was correct.
[3] R v Grimes (1894) 15 LR (NSW) 209.
Article 244 in Stephen, A Digest of the Criminal Law, stated that manslaughter was 'unlawful homicide without malice aforethought' and that murder was 'unlawful homicide with malice aforethought'. Article 244 explained the meaning of malice aforethought.
Article 231 stated that it was not a crime 'to cause death or bodily harm accidentally by an act which is not unlawful, unless such act is accompanied by an omission, amounting to culpable negligence, as defined in Article 232, to perform a legal duty'. Article 231 then stated:
An effect is said to be accidental when the act by which it is caused is not done with the intention of causing it, and when its occurrence as a consequence of such act is not so probable that a person of ordinary prudence ought, under the circumstances in which it is done, to take reasonable precautions against it.
At common law, the defence of accident on a count of murder may arise in two different senses. First, 'accident' may arise in the context where it is necessary for the jury to consider whether the fatal act was an unwilled occurrence and not voluntary. Secondly, 'accident' may arise in the context where it is necessary for the jury to consider whether the death was an unintended consequence of a willed act. Where the notion of 'accident' is used at common law to mean an unintended consequence of a willed act, the defence should be dealt with under the element of murderous intention.[4]
Appeals against conviction: Mr Yarran's and Mr Smith's ground 2 and Mr Boag's grounds 4 and 7: the law of causation, in relation to homicide involving fright, escape or self-preservation by the victim, embodied in Sir Samuel Griffith's draft Criminal Code
[4] See the discussion by Eames JA in R v Schaeffer [2005] VSCA 306; (2005) 13 VR 337 [24] - [42].
The Criminal Code Act 1902 (WA) (the 1902 Act) established a Code of Criminal Law. Section 2 of the 1902 Act provided that on and from 1 May 1902, the provisions contained in the Code of Criminal Law set forth in the First Schedule to the 1902 Act shall be the law of Western Australia 'with respect to the several matters therein dealt with'. The Code of Criminal Law adopted substantially Sir Samuel Griffith's draft Criminal Code, which had been enacted in Queensland by the Criminal Code Act 1899 (Qld).
By s 2 of the Criminal Code Act Compilation Act 1913 (WA) (the 1913 Compilation Act), the 1902 Act as amended was repealed, and the compiled Act set forth in Appendix B to the 1913 Compilation Act was enacted under the title of the Criminal Code Act 1913 (WA).
Sir Samuel Griffith sent his draft Criminal Code (the draft Griffith Code) to the Attorney‑General of Queensland with a letter dated 29 October 1897.
In the letter Sir Samuel Griffith noted:
(a)The pages of the draft were arranged in two columns, the proposed provisions of the Code being printed in the right-hand column, and the sources from which they were derived, or other analogous provisions, being stated or referred to in the left-hand column.
(b)Where the source was statute law, the corresponding provisions of the statute were reprinted from Sir Samuel's Digest of the Statutory Criminal Law of Queensland of 1896.
(c)In other cases, the sources or analogous provisions were indicated by a reference to the section of the draft Bill introduced into the House of Commons in 1880 (the 1880 Bill), which was based on a Draft Code of Criminal Law of 1879 (the 1879 Draft Code) prepared by Lord Blackburn, Justice Barry (of Ireland), Justice Lush and Sir James Fitzjames Stephen, or other authority to which Sir Samuel had had recourse, with such notes as appeared to be desirable to elucidate any particular provision.
(d)When the proposed provision was 'undoubted Common Law', Sir Samuel had not thought it necessary to do more than say so.
Chapter XXVIII of the draft Griffith Code was headed 'Homicide: Suicide: Concealment of birth'. It comprised s 298 to s 322. Sir Samuel Griffith stated in a footnote to the heading that he believed the provisions of ch XXVIII, except when otherwise stated, expressed the common law.
Section 268 of the Code, as enacted by the 1902 Act and the 1913 Compilation Act, was identical to s 298 of the draft Griffith Code. Sir Samuel Griffith's note to s 298 in the left‑hand column stated, 'Common Law'. Section 268 of the Code has not been amended since its enactment.
Section 270 of the Code, as enacted by the 1902 Act and the 1913 Compilation Act, was relevantly identical to the first paragraph of s 300 of the draft Griffith Code. The balance of s 300 is not relevant for present purposes. Sir Samuel Griffith's note to s 300 stated, in effect, that the proposed provision reflected s 162 of the 1880 Bill. The note did not refer to the common law. Section 270 of the Code was amended in 1991, but the amendment is not relevant for present purposes.
Section 272 of the Code, as enacted by the 1902 Act and the 1913 Compilation Act, was identical to s 302 of the draft Griffith Code. Sir Samuel Griffith's note to s 302 stated, in effect, that the proposed provision reflected s 163 of the 1880 Bill. The note did not refer to the common law. Section 272 of the Code has not been amended since its enactment.
Section 277 of the Code, as enacted by the 1902 Act and the 1913 Compilation Act, was identical to s 308 of the draft Griffith Code. Sir Samuel Griffith did not make a note to s 308. Section 277 of the Code was amended in 1972, 1974, 1986 and 2008, but the amendments are not relevant for present purposes.
Section 280 of the Code, as enacted by the 1902 Act and the 1913 Compilation Act, was relevantly identical to s 311 of the draft Griffith Code. Sir Samuel Griffith's note to s 311 stated, in effect, that the proposed provision reflected s 173 of the 1880 Bill. The note did not refer to the common law. Section 280 was amended in 2008, 2011 and 2015, but the amendments are not relevant for present purposes.
Appeals against conviction: Mr Yarran's and Mr Smith's ground 2 and Mr Boag's grounds 4 and 7: criminal responsibility and accident as embodied in the draft Griffith Code
Chapter V of the draft Griffith Code was headed 'Criminal responsibility'. It comprised s 24 to s 38.
The first paragraph of s 23 of the Code, as enacted by the 1902 Act and the 1913 Compilation Act, was identical to the first paragraph of s 25 of the draft Griffith Code. The balance of s 25 is not relevant for present purposes.
Before the enactment of the Criminal Law Amendment (Homicide) Act 2008 (WA), s 23 of the Code read:
Subject to the express provisions of this Code relating to negligent acts and omissions, a person is not criminally responsible for an act or omission which occurs independently of the exercise of his will, or for an event which occurs by accident.
Unless the intention to cause a particular result is expressly declared to be an element of the offence constituted, in whole or part, by an act or omission, the result intended to be caused by an act or omission is immaterial.
Unless otherwise expressly declared, the motive by which a person is induced to do or omit to do an act, or to form an intention, is immaterial so far as regards criminal responsibility.
By s 4 of the Criminal Law Amendment (Homicide) Act, s 23 was repealed and replaced by new sections 23, 23A and 23B. Section 4 commenced on 1 August 2008.
It is unnecessary to refer to the new s 23.
At the material time, s 23A of the Code provided:
Unwilled acts and omissions
(1)This section is subject to the provisions in Chapter XXVII and section 444A relating to negligent acts and omissions.
(2)A person is not criminally responsible for an act or omission which occurs independently of the exercise of the person's will.
At the material time, s 23B of the Code was in the terms I have set out at [42] above.
Section 23A reproduces, in substance, the first part of the first paragraph of the former s 23 of the Code in relation to unwilled acts and omissions. The case law on the first part of the first paragraph of the former s 23 is relevant to the interpretation and application of the current s 23A.
Section 23B(1) and s 23B(2) reproduce, in substance, the second part of the first paragraph of the former s 23 of the Code in relation to accident. The case law on the second part of the first paragraph of the former s 23 is relevant to the interpretation and application of the current s 23B(1) and s 23B(2).
At all material times before 4 April 2011 (when the Criminal Code and Other Legislation Amendment Act 2011 (Qld) came into operation), the provisions of s 23(1) of the Criminal Code (Qld) (the Queensland Code) with respect to:
(a)unwilled acts and omissions were relevantly identical to the provisions of the first part of the first paragraph of the former s 23 of the Code and the current s 23A of the Code with respect to unwilled acts and omissions; and
(b)accident were relevantly identical to the provisions of the second part of the first paragraph of the former s 23 of the Code and the current s 23B(1) and s 23B(2) of the Code with respect to accident.
At all material times, s 13(1) of the Criminal Code (Tas) (the Tasmanian Code) has been analogous to the former s 23 of the Code. By s 13(1), '[n]o person shall be criminally responsible for an act, unless it is voluntary and intentional; nor, except as hereinafter expressly provided, for an event which occurs by chance'.
In Vallance v The Queen,[5] the High Court construed and applied s 13(1) of the Tasmanian Code.
[5] Vallance v The Queen [1961] HCA 42; (1961) 108 CLR 56.
Dixon CJ observed that the phrase 'nor … for an event which occurs by chance' is 'somewhat difficult' and 'it is only by specific solutions of particular difficulties raised by the precise facts of given cases that the operation of such provisions as s 13 can be worked out judicially' (61). His Honour noted that Sir James Fitzjames Stephen did not draw s 13 of the Tasmanian Code and that such a provision was not included in the 1879 Draft Code (61 - 62).
In Stevens v The Queen,[6] Gleeson CJ and Heydon J said, in the context of s 23 of the Queensland Code, that the word 'accident' is 'of notoriously imprecise connotation' and that many deaths in circumstances that constitute manslaughter 'could properly be described as accidental' [16]. Their Honours suggested that the comments they had made might account for Dixon CJ's description of the phrase 'nor … for an event which occurs by chance' in s 13(1) of the Tasmanian Code as 'somewhat difficult' [16].
[6] Stevens v The Queen [2005] HCA 65; (2005) 227 CLR 319.
In Vallance, Kitto J was of the view that, in a provision relating to a consequence of an act done voluntarily and intentionally, and denying criminal responsibility for that consequence if it has occurred 'by chance', the expression 'by chance' is 'an expression which, Janus-like, faces both inwards and outwards, describing an event as having been both unexpected by the doer of the act and not reasonably to be expected by any ordinary person, so that it was at once a surprise to the doer and in itself a surprising thing' (65).
In Kaporonovski v The Queen,[7] Gibbs J (Stephen J agreeing) distinguished between the unwilled physical acts or omissions of the accused apart from their consequences, on the one hand, and the 'accidental outcome of his willed acts', on the other, for the purposes of s 23 of the Queensland Code (226 - 227). Although the two parts of s 23 dealt with related matters, they were quite distinct (226).
[7] Kaporonovski v The Queen [1973] HCA 35; (1973) 133 CLR 209.
Gibbs J said the first part of s 23, namely that a person is not criminally responsible for an act which occurs independently of the exercise of his or her will, requires that the act for which a person is criminally responsible shall be his or her own act, and an act which results from the exercise of his or her will (226 - 227). That is, the first rule, insofar as it applies to acts of the accused himself or herself, requires that those acts should be of his or her own volition (227). The accused should have willed that the acts themselves should happen (227).
His Honour noted that the first part of s 23 is not concerned with the consequences of an act which the accused has willed (227). It is the second part of s 23, namely that a person is not criminally responsible for an event which occurs by accident, that exculpates an accused from liability for the accidental outcome of his or her willed acts (227).
Gibbs J held that the word 'act' in the first part of s 23 (that is, the part of s 23 which deals with unwilled acts) is not intended to embrace the consequences as well as the action that produced them (231). So, the 'act' to which the first part refers is some physical action or movement, apart from its consequences (231).
His Honour held that an event occurs by accident, within the second part of s 23, 'if it was a consequence which was not in fact intended or foreseen by the accused and would not reasonably have been foreseen by an ordinary person' (231).
In R v Falconer,[8] Mason CJ, Brennan and McHugh JJ made these observations about the distinction between 'act' and 'event' in s 23 of the Code:
The first limb of s. 23 requires the act to be willed; the second limb relates to events consequent upon the act: it excludes from criminal responsibility consequences of the act which are not only unintended but unlikely and unforeseen: see Vallance v The Queen ((1961) 108 CLR 56); Mamote‑Kulang v The Queen ((1964) 111 CLR 62). In wilful murder, the offender must have a specific intention to cause the death of the deceased or of some other person (the Code, s. 278) at the time when he does the act which causes the death; death is not the 'act' but the intended consequence. It follows that, under the Code as under the common law, it is the death‑causing act which must be willed, not the death itself: see Timbu Kolian v The Queen ((1968) 119 CLR 47). The 'act' in s. 23 has been differently described in judgments delivered in this Court: see Vallance; Timbu Kolian; Kaporonovski v The Queen ((1973) 133 CLR 209). In our opinion, the true meaning of 'act' in s. 23 is that which Kitto J in Vallance ((1961) 108 CLR at p 64) attributed to 'act' in s. 13(1) of the Tasmanian Code, namely, a bodily action which, either alone or in conjunction with some quality of the action, or consequence caused by it, or an accompanying state of mind, entails criminal responsibility. That meaning accords with the judgment of Menzies J in Vallance ((1961) 108 CLR at pp 71 - 72) and was adopted by Gibbs and Stephen JJ in Kaporonovski ((1973) 133 CLR at pp 231, 241), respectively. That view distinguishes between 'act' and 'event' in s. 23, so that it is immaterial to the operation of the first limb of the section that the actor's mental state does not encompass the consequences of what he is doing (38).
[8] R v Falconer [1990] HCA 49; (1990) 171 CLR 30.
In R v Van Den Bemd,[9] the respondent was convicted of manslaughter. During a fight in a bar the respondent struck the deceased on the left side of the neck. Death was caused by haemorrhage. The deceased may have had some predisposition to a haemorrhage because of a natural infirmity or because he had consumed alcohol. The Court of Appeal of Queensland (Davies and McPherson JJA & de Jersey J) allowed the respondent's appeal against conviction on the ground that the trial judge had misdirected the jury upon the meaning of s 23 of the Queensland Code. The Court of Appeal said:[10]
The test of criminal responsibility under s 23 is not whether the death is an 'immediate and direct' consequence of a willed act of the accused, but whether death was such an unlikely consequence of that act an ordinary person could not reasonably have foreseen it. In the present context that means that the relevant question was whether the jury were satisfied beyond reasonable doubt that [the deceased's] death was not such an unlikely consequence of the punches delivered by the accused that it could not have been foreseen by an ordinary person in the position of the accused.
[9] R v Van Den Bemd [1994] HCA 56; (1994) 179 CLR 137.
[10] R v Van Den Bemd [1995] 1 Qd R 401, 405.
A majority of the High Court dismissed the Crown's application for special leave to appeal. Mason CJ, Deane, Dawson, Toohey and Gaudron JJ said:
The outcome of the case depends upon the application and interpretation of the words 'an event which occurs by accident' in the context of s. 23 of The Criminal Code (Q.). That question is essentially one of statutory construction, the answer to which does not depend upon an important point of principle. As Dixon C.J. observed in Vallance v The Queen ((1961) 108 CLR 56, at p 61; see also Kaporonovski v The Queen (1973) 133 CLR 209, at p 220, per Walsh J. ('each case presents a different problem')), with reference to s. 13 of The Criminal Code (Tas.) (a provision comparable to s 23):
'[I]t is only by specific solutions of particular difficulties raised by the precise facts of given cases that the operation of such provisions as s. 13 can be worked out judicially.'
The words of the section are inherently susceptible of bearing the meaning placed upon them by the Court of Appeal of Queensland. The interpretation given to the section by that Court is one which favours the individual and reflects accepted notions of culpability and responsibility for criminal conduct. Moreover, it is an interpretation which derives support from comments made in some judgments of this Court, particularly Gibbs J. (with whom Stephen J. agreed) in Kaporonovski v The Queen ((1973) 133 CLR 209) (139).
In R v Taiters; Ex parte Attorney-General,[11] the Court of Appeal of Queensland (Macrossan CJ, Pincus JA & Lee J) made these observations about the references to 'act' and 'event' in s 23 of the Queensland Code:
It should now be taken that in the construction of s 23 the reference to 'act' is to 'some physical action apart from its consequences' and the reference to 'event' in the context of occurring by accident is a reference to 'the consequences of the act'. Even if, as has been said, there can on occasion be some difficulty, in an exceptional case, in distinguishing the border line between act and event so viewed, this theoretical distinction is clear. Taking an example from Kaporonovski itself, the thrusting of the glass by the accused was the act and the injury to the victim's eye which constituted the grievous bodily harm was the event. A number of occurrences can as a result of the operation of one or more chains of causation follow upon the doing of an act. However, s 23 is concerned to excuse from criminal liability so the relevant event for the purpose of the section should be taken to be the one which, apart from the operation of the section, would constitute some factual element of an offence which might be charged. In cases when grievous bodily harm is charged the state of bodily harm will be the relevant event and when unlawful killing is charged, the death will be the relevant event (335).
[11] R v Taiters; Ex parte Attorney-General [1997] 1 Qd R 333.
In Stanik v The Queen,[12] Anderson J said:
It appears now to be settled that the reference to 'event' in s 23 is a reference to the consequential event, that is, the event consequential upon the 'act or omission': R v Taiters (1996) 87 A Crim R 507 at 509. An event occurs by accident within the meaning of s 23 if it was a consequence which was not, in fact, intended or foreseen by the accused and would not reasonably have been foreseen by an ordinary person: Kaporonovski v The Queen (1973) 133 CLR 209 per Gibbs J at 231. An event will not therefore be an accident unless two requirements are met. Firstly, the event must not be intended or foreseen by the accused. That is the subjective element. Secondly, the event must be one which would not reasonably have been foreseen by an ordinary person. That is the objective element [83]. (emphasis added)
See also Hussaini v The State of Western Australia.[13]
[12] Stanik v The Queen [2001] WASCA 333; (2001) 125 A Crim R 372.
[13] Hussaini v The State of Western Australia [2009] WASCA 207 [10] - [11] (Wheeler JA).
In Ugle v The Queen,[14] the appellant was convicted after trial of murder. The trial judge directed the jury on the law of self-defence, but did not separately put to the jury whether there might have been an unwilled act by the appellant within s 23 of the Code. The High Court allowed the appellant's appeal, set aside the conviction and ordered a new trial on the basis that the trial judge's summing up had not given effect to the possibility of an unwilled act within s 23. Gummow and Hayne JJ (Gaudron J relevantly agreeing) noted that s 23 deals with two subjects, namely unwilled acts and events occurring by accident [25]. Their Honours said that the evidence adduced at the appellant's trial did not raise an issue about an event that occurred by accident, but there was an issue about whether there may have been an unwilled act. Gummow and Hayne JJ then made these observations about the distinction between 'acts' and 'events' in s 23:
The distinction which is made in s 23 between 'acts' and 'events' is not without difficulty. In the joint reasons of three Justices in R v Falconer ((1990) 171 CLR 30 at 38, per Mason CJ, Brennan and McHugh JJ) it was said of s 23 of the Criminal Code that:
[t]he first limb of s 23 requires the act to be willed; the second limb relates to events consequent upon the act: it excludes from criminal responsibility consequences of the act which are not only unintended but unlikely and unforeseen.
At least a majority of the members of the Court held in Falconer that the 'act' of which s 23 speaks is, in a context like the present, the 'death‑causing act … not the death itself' (R v Falconer (1990) 171 CLR 30 at 38, per Mason CJ, Brennan and McHugh JJ; at 81, per Gaudron J. See also Vallance v The Queen (1961) 108 CLR 56; Mamote-Kulang v The Queen (1964) 111 CLR 62; Timbu Kolian v The Queen (1968) 119 CLR 47; Kaporonovski v The Queen (1973) 133 CLR 209). It is not necessary to consider whether that formulation of the meaning to be given to 'act' in s 23 leaves some unanswered questions. For present purposes, it is enough to notice that a distinction is to be drawn between the 'act', with which the first or unwilled act limb of s 23 deals, and the 'event', with which the second or accident limb deals [26].
[14] Ugle v The Queen [2002] HCA 25; (2002) 211 CLR 171.
In Taiters, Macrossan CJ, Pincus JA and Lee J examined the degrees of likelihood comprehended by the objective and subjective elements of the defence of accident:
If the outcome of some action is regarded as certain or even just more probable than not, it cannot legitimately be called accidental. Even if there is a substantial likelihood although something less than a preponderance of probability that a particular outcome will occur and the risk of the outcome is voluntarily accepted by the one acting, it should not, if it results, be called accidental. On the other hand, something which a reasonable man might think of as no more than a remote possibility which does not call to be taken into account and guarded against can, when it happens, be fairly described as accidental.
The references which have been made in the cases to 'reasonably' and 'ordinary person' in the context under discussion, give an emphasis to the fact that the relevant test calls for a practical approach and is not concerned with theoretical remote possibilities. It directs inquiry to what would be present in the mind of an ordinary person acting in the circumstances with the usual limited time for assessing probabilities, this being a factor which is applicable to a great deal of human activity. However, it should not be accepted that some real risk of an outcome which an ordinary person in the circumstances would have been conscious of, can be disregarded by the doer of an action, yet still, if it eventuates, be called accidental within the meaning of the section. In the subjective part of the expression being considered under s 23 ('an event which occurs by accident'), i.e. when it is necessary to consider 'foreseen' by the accused, the same degrees of likelihood will be regarded as those discussed in connection with the objective test (338).
It is now well established by the case law that where an accused has been charged with murder or manslaughter and a willed act of the accused caused the victim's death and the State case relies on s 270 of the Code, then the death will be the relevant 'event' for the purposes of s 23B. In those circumstances, if the accused satisfies the evidential onus in relation to the defence of accident under s 23B, the State can disprove accident, within s 23B, if it proves beyond reasonable doubt either that, subjectively, the accused intended or foresaw the victim's death as a possible outcome or consequence of the accused's act or omission or that, objectively, the victim's death would reasonably have been foreseen by an ordinary person, in the accused's position, as a possible outcome or consequence of the accused's act or omission (excluding, in each case, possibilities that are no more than remote and speculative).
As Gleeson CJ and Heydon J observed in Stevens, '[i]t is not difficult to think of cases in which "death" results from a willed act which produces an unintended and unforeseeable consequence' [16].
Appeals against conviction: Mr Yarran's and Mr Smith's ground 2 and Mr Boag's grounds 4 and 7: the law of causation, in relation to homicide involving fright, escape or self-preservation by the victim, embodied in the Crimes Act 1900 (NSW)
When the offences the subject of Royall v The Queen[15] and McAuliffe v The Queen[16] were committed, s 18 of the Crimes Act 1900 (NSW) defined murder and manslaughter as follows:
[15] Royall v The Queen [1991] HCA 27; (1991) 172 CLR 378.
[16] McAuliffe v The Queen [1995] HCA 37; (1995) 183 CLR 108.
(1)(a) Murder shall be taken to have been committed where the act of the accused, or thing by him omitted to be done, causing the death charged, was done or omitted with reckless indifference to human life, or with intent to kill or inflict grievous bodily harm upon some person, or done in an attempt to commit, or during or immediately after the commission, by the accused, or some accomplice with him, of a crime punishable by penal servitude for life or for 25 years.
(b)Every other punishable homicide shall be taken to be manslaughter.
(2)(a) No act or omission which was not malicious, or for which the accused had lawful cause or excuse, shall be within this section.
(b)No punishment or forfeiture shall be incurred by any person who kills another by misfortune only, or in his own defence. (emphasis added)
The Crimes Act has not, at any material time, included a provision comparable to s 272, the former s 23 or the current s 23B of the Code.
In Royall and McAuliffe, the High Court construed the provision in s 18(1)(a) of the Crimes Act that murder 'shall be taken to have been committed where the act of the accused … causing the death charged, was done … with reckless indifference to human life, or with intent to kill or inflict grievous bodily harm upon some person' (emphasis added). In particular, the High Court examined the law of causation, in the context of homicide involving fright, escape or self-preservation by the victim, embodied in s 18(1)(a).
In Royall, the appellant was convicted after trial of murder contrary to s 18(1)(a) of the Crimes Act. The victim fell to her death from a window on the sixth floor of a block of flats. How she came to fall from or through the window was uncertain. It was necessary for the prosecution to identify an act of the accused which caused the victim to fall. The trial judge left three alternative possibilities to the jury. One possibility was that the victim had jumped from the window in response to the accused's aggressive conduct. A majority of the High Court held that the trial judge's directions on causation and intent in relation to that possibility were adequate. McHugh J disagreed, but held that no miscarriage of justice had occurred. The High Court addressed the question of causation at common law in the context of a victim who dies as a result of his or her own act in the course of attempting to escape from the accused; in particular, whether the victim's reaction was an over-reaction and hence a coincidence which was sufficient to break the chain of causation.
Mason CJ was of the opinion that:
(a)generally speaking, 'an act done by a person in the interests of self-preservation, in the face of violence or threats of violence on the part of another, which results in the death of the first person, does not negative causal connection between the violence or threats of violence and the death'; and
(b)the deceased's intervening act does not break the chain of causation (388).
His Honour noted that the governing principle at common law had been expressed in various different ways. After reviewing the different formulations, his Honour said that, in the context of causation, the principle was best formulated as follows:
[W]here the conduct of the accused induces in the victim a well-founded apprehension of physical harm such as to make it a natural consequence (or reasonable) that the victim would seek to escape and the victim is injured in the course of escaping, the injury is caused by the accused's conduct. Whether it is necessary for the prosecution to establish also that the mode of escape adopted is a natural consequence of the victim's apprehension for his or her safety does not arise here for the deceased had no means of escape other than jumping out of the window in the situation posited. The question could arise only in circumstances where the victim does something irrational or unexpected, in which event it might be more difficult to establish that the injury sustained was a consequence of the accused's act and not the product of the victim's voluntary act. In such a situation much may turn on the nature and extent of the well-founded apprehension of the victim; and it is to be expected that persons fearful for their own safety forced to react on the spur of the moment will not always make a sound or sensible judgment and may act irrationally.
In the English cases the natural consequence test has been linked to the concept of foreseeability. Because the natural consequence test inevitably invites conjecture about the likelihood of an occurrence, it is impossible to divorce completely the application of the test from the concept of foreseeability. However, in my view, to invite the jury to consider foreseeability would be more likely, at least in the majority of cases, to confuse than to clarify the issue of causation. In many cases, for much the same reason, I see no point in linking that issue to the accused's state of mind. On the other hand, in some situations, the accused's state of mind will be relevant to that issue as, for example, where there is evidence that the accused intended that injury should result in the way in which it did and where, in the absence of evidence of intention, the facts would raise a doubt about causation (389 - 390). (emphasis added)
In essence, Mr Boag submits that:[189]
(1)Where the State relies upon s 272 of the Code to establish a homicide offence, one of the elements of that homicide offence is that the accused's threats (or intimidation or deceit) caused the deceased to do an act. Thus, the deceased's act:
(a)is alleged to be a consequence of the accused's act(s); and
(b)as so alleged, is an element of the offence.
(2)In this manner, the deceased's act is a consequence of the accused's act(s) to which liability to punishment under s 272 of the Code attaches if death results from it, unless the accused is relieved from such liability by, relevantly, s 23B of the Code.
(3)Consequently, applying what was said in Taiters, the deceased's act is an 'event' for the purposes of s 23B of the Code.
[189] Mr Boag's submissions [33] - [45]; appeal ts 52 - 63.
While there is force in these submissions, for the reasons that follow, having regard to the structure of ch XXVIII of the Code as a whole, we do not accept them.
There are many cases in which it has been said that on a charge of unlawful killing under the Code, death is the relevant event.[190] We accept that those statements were made in the context of, or in contemplation of, the general case of a charge of unlawful killing under s 270 in which the only element of the offence concerned with consequence is the death of the deceased. Thus, these statements should not, of themselves, be taken as excluding the possibility that, in the particular case of a charge of unlawful killing relying on s 272, there may be an additional relevant event. However, for the reasons below, we think what is said in these cases reflects the position in all homicide offences under the Code.
[190] See, for example, the cases collected by Steytler P in Macartney v The State of Western Australia [2006] WASCA 29; (2006) 31 WAR 416 [132]; Taiters (335), see the passage set out at [309] above; Collard [120], [125]; Hawke [129].
As outlined at [275] above, ch XXVIII of the Code creates (relevantly for present purposes) two homicide offences: murder and manslaughter. One element of both offences is that the killing is unlawful; by s 268 of the Code, it is unlawful to kill any person unless such killing is authorised or justified or excused by law. Another element of both offences is that the accused 'kills' the deceased. The meaning of the word 'kills' is elucidated by the provisions of s 270 ‑ 275 of the Code. These provisions do not themselves create any offence.
Section 270 of the Code provides that any person who causes the death of another, directly or indirectly, by any means whatever, is deemed to have killed that other person. Similarly, s 271, s 272, s 273 and s 275 of the Code are concerned with when a person is deemed to have killed another person. Each provides that this will be so in particular circumstances. Section 271 relates to death from an act or omission at childbirth; s 272 to causing death by threats or intimidation or deceit; s 273 to acceleration of death; and s 275 to the death of a person as a result of surgical or medical treatment after the person has suffered grievous bodily harm.[191]
[191] Section 274 operates in a slightly different manner, in that it does not, by itself, deem a person to have killed another. Rather, it provides that certain matters are immaterial where a person causes a bodily injury from which death results, thereby leaving s 270 to operate to deem the person to have killed another.
In this manner, s 271, s 272, s 273 and s 275 of the Code elucidate the element of killing in the homicide offences provided by s 279 and s 280 of the Code. By its nature, killing involves bringing about death. The purpose and effect of these provisions is to prescribe circumstances in which a person is deemed to have killed another, thereby rendering the person liable to punishment, either for the offence of manslaughter or for the offence of murder, for the death of that other. As already explained, s 272 of the Code involves proof of two causal steps: (1) the accused's threats (or intimidation or deceit) causes the deceased's act; and (2) death results from the deceased's act. In this framework, the causal connection between the accused's threats (or intimidation or deceit) and the deceased's act is an intermediate step in the causal chain linking the accused's threats (or intimidation or deceit) with the death. Upon proof of the two causal steps, the accused is deemed to have killed the deceased, thereby rendering the accused liable to punishment for the offence of murder or the offence of manslaughter, subject to any question of authority, justification or excuse for the killing.[192] It is the death, not the deceased's act, for which the accused is rendered liable to punishment for the offence of manslaughter or the offence of murder. That being so, the death is the critical event to which the accused's liability to punishment attaches. In my respectful opinion, there is no occasion, or justification, for identifying any other result of the accused's act, apart from the death, as an event for the purposes of s 23B of the Code. In particular, in a homicide offence relying on s 272, the deceased's act cannot be said to be an event for the purposes of s 23B of the Code.
[192] Code, s 268.
As already noted, Mr Boag relies heavily on what was said in Taiters.[193] However, in our view, what is said in Taiters does not assist Mr Boag's contention. In the italicised portion of the passage set out at [309] above, their Honours identified the relevant event as 'the one which … would constitute some factual element of an offence which might be charged' (emphasis added). This statement of principle identifies the event in a singular manner: for any given offence, there is, for the purposes of s 23B, a single relevant event - the one which would constitute an element of that offence. That is consistent with, and supports, our analysis. For the offences of murder and manslaughter, the event is the one constituting an element of the offence, namely the death of the deceased.
[193] See the passage set out at [309] above.
In our view, the conclusion in [315] above does not give rise to any unjust consequences of a kind that would militate against it, taking into account the following two matters. First, the application of the defence of accident to the event of death seems to us to be sufficient to avoid injustice to an accused. An event occurs by accident if the actor did not intend or foresee it, and if it was not reasonably foreseeable by an ordinary person in the position of the accused.[194] If, in the circumstances in which the accused acted, death was intended, foreseen or reasonably foreseeable, we see no reason, as a matter of justice, why the accused should escape criminal liability for the death on the ground that the deceased's act in response to the accused's threats (or intimidation or deceit) was itself not intended, foreseen or reasonably foreseeable.
[194] See, for example, TB [198] - [200] and the authorities there cited.
Secondly, for the reasons already given, if the deceased's act in response was unreasonable or disproportionate, the jury may decide that the causation element in s 272 of the Code is, on that account, not made out, so that the accused will not be liable to punishment for the death. The issue of whether the deceased's act was an unreasonable or disproportionate response will occupy much of the same ground as any issue of the foreseeability of that act, rendering the latter issue of limited practical consequence. In at least most circumstances, only if the deceased's act was an unreasonable or disproportionate response to the accused's threats (or intimidation or deceit) would that act be unforeseeable, and thus an accident. Generally at least, if the deceased's act is a reasonable response to the threats (or intimidation or deceit), it will be reasonably foreseeable by a person in the position of the accused.
Further, although not a matter carrying significant weight, we note that acceptance of Mr Boag's contention would make directions to juries in s 272 cases liable to be more convoluted and complex.
We accept that Mr Boag's contention is, as Buss P explains in his reasons, supported by the obiter observations of Brennan J in Royall.[195] While the views of Brennan J on the proper construction of the Criminal Code Act 1899 (Qld) are entitled to substantial weight, for the reasons above, we have, with respect, come to a different view.
[195] Royall (399); see [120] above.
For these reasons, while we would grant leave to appeal on Mr Boag's ground 4, we would not uphold it.
Mr Boag's appeal against conviction: other grounds of appeal
Mr Boag's ground 1: the legal basis of Mr Boag's criminal responsibility
Ground 1 contends that the judge misdirected, or inadequately directed, the jury on the legal basis of Mr Boag's responsibility for the offence of manslaughter. The ground is particularised in two ways. Particular (a) asserts that the judge erred in directing the jury to determine whether any of the totality of the alleged threats and acts performed by all of the accused were a substantial or significant cause of the deceased's act, when the jury should have been directed to determine whether the threats or intimidation by the individual accused were a substantial or significant cause of the deceased's death.
Mr Boag's submissions in support of his ground 1(a) rely heavily on what is said in the decision of this court in Krakouer. Mr Boag points to statements in that case to the effect that an accused will not be held criminally responsible for a death unless his or her act is a substantial or significant cause of the death.[196] Mr Boag's reliance on these statements overlooks the nature of the State case against him and his two co‑accused. As already outlined,[197] and as the judge explained to the jury,[198] the State case was that each of Mr Yarran, Mr Boag and Mr Smith were liable for manslaughter because they all did an act or acts in a series of acts which, together, resulted in Ms Fairhead being threatened or intimidated. That is a conventional application of s 7(a) of the Code, in that the reference to 'every person who … does the act' in s 7(a), when read with s 10(c) of the Interpretation Act 1984 (WA), encompasses all persons who, acting in concert, do an act or one or more acts in a series of acts constituting the offence.[199]
[196] Krakouer [30], [39], [47], [77]; Mr Boag's submissions [6] - [11](a); appeal ts 23 - 24, 31 - 36.
[197] See [238] above.
[198] See [259] above.
[199] R v Wyles; Ex parte Attorney‑General [1977] Qd R 169, 177, 182; Warren & Ireland v The Queen [1987] WAR 314, 327 - 329; Lacco v The State of Western Australia [2006] WASCA 152 [8], [54]; L v The State of Western Australia [2016] WASCA 101; (2016) 49 WAR 545 [32]; Campbellv The State of Western Australia [2016] WASCA 156; (2016) 50 WAR 331 [110] - [111].
What is said in Krakouer does not detract from the operation of s 7(a) of the Code in this manner. The question in Krakouer was whether the appellant had caused the deceased's death in circumstances where the appellant had struck the deceased with a post to the back of his head, while the deceased was already lying on the ground as a result of a blow with a mallet administered by a co‑accused. The evidence was that the earlier blow would itself have caused the deceased to die. In Krakouer, the accused was not alleged to have acted in concert with the co‑offender and done one or more of a series of act for the purposes of s 7(a) of the Code. In this case, the judge's direction correctly required the jury to consider the question of causation by reference to the totality of the threats or intimidation found by the jury to have occurred.
For these reasons, there is no merit in ground 1(a).
Particular (b) of ground 1 contends that:
(1)some of the jury may have determined the appellant's guilt on the basis that he was guilty under s 7(b) or s 7(c) of the Code; and
(2)as a consequence, the judge was required to direct the jury in relation to s 8 of the Code.[200]
[200] Appeal ts 47 - 48.
In our view, there is no merit in either of these contentions. First, the State case in relation to count 7 relied solely on s 7(a) of the Code.[201] When the judge directed the jury in relation to count 7, his Honour directed accordingly, and made no mention of any basis of liability under s 7(b) or s 7(c) of the Code.[202] By contrast, when the judge directed as to the other offences, he specifically referred to the alternative bases on which an accused might be a party to the offence.[203]
[201] ts 119 - 120, 1110.
[202] ts 1236 - 1239.
[203] ts 1229, 1231, 1232, 1235.
Mr Boag fixes on other parts of his Honour's direction, put in general terms, where there is reference to aiding as an alternative basis of liability.[204] Those references to the alternative of aiding plainly related to the other counts, in respect of which the State case was put on the alternative bases that: (1) all accused were principal offenders; or (2) Mr Boag and Mr Smith aided Mr Yarran.
[204] ts 1224, 1226, 1262.
Secondly, even if the first step of Mr Boag's argument were accepted, the fact that a case was made under s 7(b) or s 7(c) of the Code would not have obliged the judge to give a direction in relation to s 8 of the Code. To the contrary, to have done so would have been erroneous and unfair to Mr Boag and the other appellants.
For these reasons, there is no merit in ground 1(b). We would refuse leave to appeal on ground 1.
Mr Boag's ground 3: the effect of Mr Wilton's evidence
Ground 3 asserts that the judge erred in fact in misdirecting the jury as to the effect of the evidence of Mr Wilton. The judge said that Mr Wilton gave evidence that:[205]
They were threatening to take the car out the bush and burn it out with us in it.
[205] ts 1256, referring to ts 246.
Mr Boag complains that his Honour failed to point out to the jury that, in response to the next question asked of him, Mr Wilton said that it was Mr Yarran who said that.[206] Mr Boag submits that, as this related to an important aspect of the State case, there is a real possibility that the omission to refer to this latter aspect of Mr Wilton's evidence resulted in a miscarriage of justice.[207]
[206] Mr Boag's submissions [28] - [29], referring to ts 247.
[207] Mr Boag's submissions [31]; appeal ts 49.
There is no merit in this ground. The judge emphasised to the jury that they were the sole judges of the facts, that he would be referring only to some of the evidence and that his failure to refer to other parts did not detract from whatever importance the jury judged it to have.[208] Later in his direction, the judge further emphasised that he would not be referring to all of the evidence, and would not go through the evidence in great detail.[209] His Honour also observed that in relation to Mr Wilton's evidence, he proposed to refer to only two passages, namely those at ts 243 and 246.[210]
[208] ts 1219.
[209] See, for example, ts 1252.
[210] ts 1256.
A ground of appeal alleging that the judge misstated the evidence or the facts can succeed only if there is a miscarriage of justice, which will be so if, and only if, it is reasonably possible that the misstatement of fact by the judge may have affected the verdict.[211] Mr Boag falls well short of demonstrating any reasonable possibility that the judge's failure to point out that Mr Wilton said that the relevant words were spoken by Mr Yarran may have affected the verdict of the jury. We would refuse leave to appeal in respect of ground 3.
Mr Boag's ground 5: the deceased's drug intoxication was a novus actus interveniens
[211] Simic v The Queen [1980] HCA 25; (1980) 144 CLR 319, 331 - 332.
By ground 5, Mr Boag contends that the judge erred in failing to direct the jury that the deceased's significant drug intoxication may have influenced her actions in opening the car door, including that it may have caused hallucinations or altered perceptions that led to her opening of the door, giving rise to a novus actus interveniens.
In support of the ground, Mr Boag points to evidence that Ms Fairhead had consumed methylamphetamine on the evening in question. He also points to evidence given by Mr Yarran, under cross‑examination by the State, as to the tendency of people who have taken methylamphetamine to hallucinate, particularly if they stay up for long periods of time.[212] Consequently, Mr Boag submits, the judge was required to direct the jury in relation to the deceased's drug intoxication and to explain how that intoxication was relevant to the issues, including to causation and to whether the deceased's actions may have been unreasonable or disproportionate.[213]
[212] Mr Boag's submissions [49], referring to ts 955 - 956.
[213] Mr Boag's submissions [55] - [56].
There is no merit in this ground. There was no admissible evidence as to the effects of methylamphetamine generally, or, in particular, as to any tendency of those who have consumed methylamphetamine to hallucinate. The judge properly told the jury that a witness cannot give opinion evidence about the effect of drugs on others unless they are a qualified expert.[214] Mr Yarran's evidence as to the effect of methylamphetamine on others was not admissible.
Mr Boag's ground 6: the State's failure to adduce expert evidence required critical comment
[214] ts 1230.
Ground 6 asserts that the judge erred in failing to comment critically on the State's failure to adduce expert evidence as to the likely or possible effects of the deceased's significant drug intoxication. The ground, and the submissions in support of it,[215] assert that such evidence would have been relevant to whether her actions were an overreaction and therefore a novus actus interveniens. The ground asserts that the State's failure to call such evidence should have attracted critical comment from the judge to avoid a miscarriage of justice.[216]
[215] Mr Boag's submissions [58].
[216] Mr Boag's submissions [58].
In oral argument, counsel for Mr Boag made clear that he accepted that the State had no duty to call a witness of the kind referred to in ground 6.[217] That concession was properly made. In light of that concession, in the circumstances of this case there is no basis to contend that the failure to call any witness of the kind referred to gave rise to a miscarriage of justice.[218]
[217] Appeal ts 69, 70 - 71.
[218] R v Apostilides [1984] HCA 38; (1984) 154 CLR 563, 575 - 578.
Mr Yarran and Mr Smith's appeals against conviction: other grounds of appeal
Mr Yarran and Mr Smith's ground 1: failure to direct in relation to novus actus interveniens
Ground 1: Mr Yarran and Mr Smith's submissions
Mr Yarran and Mr Smith submit that the judge should have instructed the jury as to the possible application of the defence of novus actus interveniens.[219] The intervening act relied upon by Mr Yarran and Mr Smith in ground 1 is Ms Fairhead inadvertently falling from the car at a point in time when (1) she did not intend to so fall and (2) that fall was not (a) as a result of her deliberately jumping from the car to escape threats or intimidation, nor (b) because, at the time the door was open, the car was deliberately swerved so as to cause her to fall.[220]
[219] Mr Yarran's submissions [31]. As Mr Smith's submissions are identical, it is not necessary to make separate reference to them.
[220] Mr Yarran's submissions [30]. See also Mr Yarran's submissions [23]; appeal ts 10, 13, 15.
Mr Yarran and Mr Smith submit that Ms Fairhead's act of inadvertently falling from the car was an act so independent of the acts of Mr Yarran and Mr Smith that it should be regarded in law as the cause of the Ms Fairhead's death to the exclusion of their acts.[221]
[221] Mr Yarran's submissions [31].
Mr Yarran and Mr Smith submit that they discharged the evidential burden for the defence of novus actus interveniens to be left to the jury, because, taken at its highest, there was evidence that supported the possibility that Ms Fairhead's fall from the car was inadvertent.[222]
[222] Mr Yarran's submissions [32], [36].
In the alternative, Mr Yarran and Mr Smith submit that Ms Fairhead may have voluntarily exited the car (perhaps as a successful attempt at suicide), which would also have constituted a novus actus interveniens.[223] They rely on evidence at trial that Ms Fairhead was engaged in an abusive relationship with an ex-partner and was assaulted the day prior to the incidents leading to her death, as well as evidence that Ms Fairhead was visibly upset before arriving at the house and had been in telephone contact with her ex-partner throughout the day.[224]
[223] Mr Yarran's submissions [34].
[224] Mr Yarran's submissions [34].
Consequently, Mr Yarran and Mr Smith submit that the judge erred by not directing the jury as to the possible application of the defence of novus actus interveniens, giving rise to a substantial miscarriage of justice.[225]
Ground 1: disposition
[225] Mr Yarran's submissions [33] - [34].
The gravamen of Mr Yarran and Mr Smith's primary submission on ground 1 is that Ms Fairhead's inadvertent fall from the car should have been regarded as a novus actus interveniens - in other words, it was an act so independent of the acts of the appellants that it should be regarded in law as the cause of death to the exclusion of the appellants' acts. For the reasons that follow, taking into account the facts and circumstances of the case, and the State case at trial, Ms Fairhead's inadvertent fall from the car cannot be seen as an intervening cause, and the judge's direction reveals no error.
As already explained, the State case was that:
(1)the appellants' threats and intimidation caused Ms Fairhead to open the car door; and
(2)that act resulted in her death.
On the State case, Ms Fairhead's act of opening the door resulted in her death because:
(1)she died after she fell (or jumped) from the car;
(2)if the door was not opened she could not have fallen (or jumped) from the car;
(3)opening the door with no seatbelt on created a real risk that she would fall from the car; and
(4)insofar as she fell from the car, that risk, arising from the opening of the door, materialised.
In that framework, Ms Fairhead's fall from the car cannot be seen as an independent event that breaks the chain of causation resulting in her death. To the contrary, it is the materialisation of the risk created by the deceased's act in opening the car door. In that way, far from breaking the chain of causation, her fall from the car is part of what establishes the causal link, embedded in the word 'results', between the deceased's act in opening the door and her death.
Consequently, Mr Yarran and Mr Smith's primary submission, based on Ms Fairhead's inadvertent fall from the car as an intervening cause, must be rejected.
Given our upholding of ground 2 of Mr Yarran and Mr Smith's appeal against conviction, it is not necessary to deal with their alternative submission concerning ground 1, which relies on Ms Fairhead's act of jumping from the car as a novus actus interveniens.
Mr Yarran and Mr Smith's ground 3: failure to direct on the need to prove that the deceased's act resulted in her death
Ground 3 asserts that the judge failed to direct the jury, adequately or at all, that the State needed to prove the alleged act done by the deceased resulted in her death. The particulars of the ground assert that the judge failed to delineate between the 'act' and the 'result' for the purposes of s 272 of the Code.
Mr Yarran and Mr Smith submit that the act relied on by the State at trial, the opening of the car door, would not necessarily result in the passenger falling out. They say that it was the physical occurrence of leaving the car and striking the road that resulted in Ms Fairhead sustaining fatal head injuries.[226]
[226] Mr Yarran's submissions [59] - [61].
Further, Mr Yarran and Mr Smith submit that the judge conflated the act of opening the car door with Ms Fairhead falling from the car, such that the need for the State to separately prove the 'act' and 'result' required by s 272 of the Code was blurred. They say the effect of that conflation was that the jury could effectively find Mr Yarran and Mr Smith guilty if they were satisfied their actions caused Ms Fairhead to merely open the door of a moving car.[227]
[227] Mr Yarran's submissions [62].
There is no merit in these submissions, which are contrary to the plain effect of the judge's directions.
The judge directed the jury, orally and through the handout headed 'Causing Death by Threats or Intimidation', that the State was required to satisfy the jury beyond reasonable doubt of an affirmative answer to each of the following three questions:
(1)Did the accused make threats or perform acts of intimidation as alleged by the State?
(2)Did any such threats or intimidation cause Ms Fairhead to open the car door?
(3)Did that act of opening the car door result in Ms Fairhead's death?[228]
[228] ts 1237; Mr Yarran's WAB 125.
Contrary to Mr Yarran and Mr Smith's submissions, this direction did not permit the jury to find the appellants guilty if the jury were satisfied that their actions caused Ms Fairhead to open the door of the car. The judge told the jury that they also need to be satisfied in respect of the third question in [355] above. Consistently with what had been said in TB,[229] the judge directed the jury that, as to whether Ms Fairhead's act of opening the door resulted in her death, the question was whether her death was, as a matter of objective fact, a consequence of that act.[230]
[229] TB [163].
[230] ts 1238.
It is not to the point that, as Mr Yarran and Mr Smith submit, the opening of the car door would not necessarily result in the passenger falling out. The opening of the door was a necessary condition for her falling out and consequently dying. It was well open to conclude, as the jury evidently did, that, in the circumstances, Ms Fairhead's death was, as a matter of objective fact, a consequence of the opening of the door. Moreover, contrary to Mr Yarran and Mr Smith's submission,[231] the judge did not conflate the act with the result. The judge clearly identified Ms Fairhead's act as the act of opening the door of a moving car in circumstances where she was not wearing a seatbelt.[232]
[231] Mr Yarran's submissions [62].
[232] ts 1237.
For these reasons, there is no merit in ground 3. Leave to appeal on ground 3 should be refused.
Appeals against sentence
All of the grounds of appeal in each appeal against sentence challenge the sentence on the manslaughter count or the total effective sentence. Given that we have upheld the appeals against conviction on the manslaughter count, it is not necessary or appropriate to resolve the appeals against sentence, which should be dismissed. The trial judge imposed the sentence he thought appropriate for each individual count and structured the sentences to impose what he evidently considered the appropriate total effective sentence in respect of the counts other than the manslaughter count. In those circumstances, there is no occasion to exercise the power, under s 30(6) of the Criminal Appeals Act 2004 (WA), to vary the sentences for the other counts.
Conclusion
For the above reasons, we would make the following orders.
On Mr Boag's appeal against conviction:
(1)Leave to appeal on grounds 4 and 7 is granted.
(2)Leave to appeal on grounds 1, 3, 5 and 6 is refused.
(3)The appeal is upheld.
(4)The conviction on the count of manslaughter is set aside.
(5)There be a retrial on the count of manslaughter.
On Mr Yarran's appeal against conviction:
(1)Leave to appeal on ground 2 is granted.
(2)Leave to appeal on grounds 1 and 3 is refused.
(3)The appeal is upheld.
(4)The conviction on the count of manslaughter is set aside.
(5)There be a retrial on the count of manslaughter.
On Mr Smith's appeal against conviction:
(1)The appellant is granted an extension of time within which to appeal.
(2)Leave to appeal on ground 2 is granted.
(3)Leave to appeal on grounds 1 and 3 is refused.
(4)The appeal is upheld.
(5)The conviction on the count of manslaughter is set aside.
(6)There be a retrial on the count of manslaughter.
On all appeals against sentence:
(1)Leave to appeal on all grounds is refused.
(2)The appeal is dismissed.
I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.
SL
Research Associate/Orderly to the Honourable Justice Beech
17 OCTOBER 2019
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