('IiIMIN41a LAW Murder t1j8 .Ve.glzjicncr There is no space here to do more than notice the astounding dvcision of the House of Lords in D.P.P. 11. Smith', which, if it is taken at its face value, is the greatest disaster to befall the criminal law in modern times. D was driving a car in the back of which he was carrying some sacks of stolen property. V, a policeman, noticed these sacks when the car stopped in obedience to the signal of another policeman on point duty. De4ring to investigate further, V told D to pull in to the kerb. D panicked, and instead of pulling in, accelerated. V clung on to the car but eventually was thrown off, or knocked off by collisions with other cars, and killed. D lvas convicted of capital murder.2 The Court of Criminal Appeal allowed an appeal3 against conviction and substituted a verdict of manslaughter. The ground of the appeal was that the trial judge misdirected the jury by telling them that if in their opinion a reasonable man in D's position would have "contemplated that gric\.ous I~odilyharm was likely to result" to \', then that was murder. '1'lli.i was held to be a misdirection bccause, so far as rcspoiihibility for murder was concerned, the question was what D in fact contemplated, and not what a reasonable man in his position ~vouldhave contemplated. Onc might 11:~vc thought that this conclusion was almost trite at the prcscnt day. The whole history of the law of nlurder shows a progress from the indiscriminate application of arbitrary outer standards to thrl individual, to a general rule that a man is not to be convicted of murder, as opposed to manslaughter, unlei5 he actually intended at least to inflict grievous bodily harm, or was reckless thereto. This is a progress from injustice and reflects our growing understanding of the workings of the human mind. 1 hcse considerations did not prevent Viscount Icilmuir L.C. and Lords Goddarcl, Tucker, Denning, and Parker, from unanimously reversing the decision of the Court of Criminal Appeal and laying down the barbaric rule that, insanity apart, the test of intention in murdcr "is what the ordinary responsible man would, in all the circu~nstancesof the case, have contemplated as the natural and probabl(, rt.sultu of the accused's actions. In other words, in thcir IAordshil,' opinions, murder ought to be a crime of negligcncts. 1. il9tiOj 3 \ V . l . . I < . 546. 2. Homicide . k t , 1957 (Eng.), s. 5 ( 1 ) ( d ) : "any murder of a police utllcer acting in the execution of his dut\,". A capital murder in England is one for \ v l ~ i c ht h e death penalty i i retained.3. [1960] 3 l V . l . . l i . !&-", r . I he pt-ol>osition11~1s onl!. to he stated for its ab>urdit!- t o Ical) to tlic c.!.r. \\-hat is ill(. function in future of tlica cr-irnc. of n1;tn.lailgl~tc,r,if roof of a ncgligcrit killing is muri1t.r ? Is tile rlt.\\. rt~L<, for I~UI-dcir fw ;ll)i)lictl gc.ric>r:tlly to all offenceb Lvhich \vttre pryto \.iolily thougilt to r-t,cluire inttmtion or rcc-i;lc.>sncv,? If yo. iritcntio~l ;ind rc,cklt.--n~,- c1isal)pear fruiii tlic, c r i ~ n i ~ i a ;l~ \ \ . ;ind l neg1igt.nc.t~ ijvconlc.; t l ~ tsole I-c>li.\-anta t ' of mind or action. 011(, ' t forc..;ec.; ;t ;liqn~al~)rt;i;!~'r:itio~l tltgrc-c,.i of negligc.r~i<,~ ~ ( . ~ l - ttoi i l ~ of ; l thc .el-ioilsriexs uf thc crirnt cl~arged,cacll c l ( g ~ - ~n.itlr its ow11 t. cli.;tingilishing and t,ntircsl\- uilli~lpfulxljt.cti,.c, ;ittaclietl ( " g r o ~ i " . "blight", "excessive", "unduc", etc.). ts For the common lawyer thcl-e is the liopc tllat the c o ~ ~ rwill show thcmse11-es astute to di.;tinguish 11.P.P. ;,. .4'vzith out of existence. It is hard to belie\-cl that thc High ('uurt of Australia for one will docilely accrpt it. Xorrover, it is just possil)le that a cliffertntly constituted Prix.!. Council Inay contr;~tlict I).I'.I'. i ' . .Smith, as hal)penc,cl when the I'ri\.\- Council in I'cri,rii4 contratlic:tt.cl the House of Lords in Holnzrs3 on pro\-ocation. Surely in orle \va\. or another a loophole will appear for escape from tht: straugulating toils of stare decisis. Under the Codes of Queensland and iYestcrri .lustralia thc. outlook is brighter. S o decision of the House of Lords can affvct the simple wording of the definition of kvilful murder, requiring a n intent to kill a human being,%nd of that forrn of murder which requires a n intent to inflict grievous bodilj. harm.; There is plcntlof scope for negligent murder under thrse but a t least therr are some areas which may he regarded as tolerably safe from rctrogrcssion. But t,\-en here a word of caution is necessary. A h an incidental of its general approach in Snzith, the House of Lords accepted the so-called presumption that a man intends thc "natural and probable" consequences of his actions. I t is t o br h o ~ w dthat the courts of the code states will not undermine their codes 1-,! applying this vague and unsatisfactory concept to thct word "intent", and will 11al.e regard to the cautionary words of t h e High Court in Srizpleto~r; "The introduction of the maxim or statement that a man is presumed to intend the reasonable consequences of his act is seldom helpful and always dangerous. For it either does no more than state a self-evident proposition of fact, . . .1953: .-\.C. 200, IO5-2O(i. .j. L19-161 X.C. 588, 59s. (Jueensland Code s . 301 : "a person who unlaxvfully kills another, intending to cause his tleath or t h a t of some other person, is guilty of wilful murder". (\\'..\. Code s . 2 7 8 . ) 7 . Q~~eenslantl Cotlc s. 302 ( 1 ) . ''aperson ~ ~ u~llanfullykills another . . h o 1f the offtmtler intcncli to do t u t h c person killed or to sornc other person some grievouh l~odilyI : ~ ~ I T Iis gi~ilty murder". ( \ V , A \ . Code s, 279 ( l ) . ) ! of 8. C>ueensland C~*c!e 3 0 2 ; \Y.:\. s. Code s. 2i!J. 4. ti. or ~xoduces illegitimate transfer of the burden of proof of a real an issue of intent to the person denying the a l l e g a t i ~ n . " ~ I t is well known that the harshness of the common law felonymurder rule was mitigated in abortion cases through a merciful piece of judicial legislation whereby death caused by an illegal abortion was held, illogically but understandably, to be manslaughter only.' I t seems from the decision in Gould2 that no such amelioration is possible under the Queensland Criminal Code. 13y s. 302 (4, an unlawful killing is murder if "death is caused 1 3 means of an act done in the prosecution of an unlawful purpose, which act is of such a nature as to be likely to endanger human life." I t was decided by the High Court in Hughes3 that the requirements of a dangerous act and an unlawful purpose are distinct, so that P cannot rely on the dangerous act as itself supplying also the unlawful purpose. In the usual abortion case, however, this is unlikely to help the accused much, for two reasons. First, the illegal abortionist who causes death almost inlyariably tlocs so 1)y means of an act which on any view is likely to be dangerous. In Gould the accused had administered a solution concocted by boiling together a mixture of glycerine, the concentrated antiseptic known as "Dettol", and the household detergent knolvn as "Surf". One might have thought that to introduce such a ~nisture into the uterus of a pregnant woman was beyond argument r~tnesscs an act likely to endanger her life, yet one of the medical u' was prcpared to say only that such a course was not "normal nzcdical procedure" (!) and "u,ould tend to endanger life". Because the trial judge omitted to draw the attention of the jury to this careful distinction between an act likely to endanger life (murder) and an act which would only tend to endanger life (manslaughter-), the conviction for murder was reduced on appeal to manslaughter. ISut t h r illegal abortionist cannot normally count on such a comI~inationof medical caution and judicial oversight. Thc second reason why the Hughes doctrine will not normall!, ail the accused in cases of this kind is that in Gozdd the very 111nitedapplication of the defence of mistake under s. 24 to murder undrr 5 . 302 (2) was made clear. By s. 24, a "person who does or omit\ to do an act under an honest and reasonable, but mistalien, 'Ir !!. (l!I:il) 8ti C.L.K. 358, 365. 1. See the change of emphasis through il'hzlnzu~sh (1898) 62 J.P. 7 1 1 . Uottowrley (1903) 115 L.T.Jo. 88; 1.unrley (1911) 22 Cox. 835; Utoa8ir !1!)49] V.I,.H. 177. C f . \Villiams 7'iit. .Satzcizly of Lzji: ctwd t i ~ e Cvr?iiitirt/ /.OZCJ (Itcncc of an!. i t a t e of things is not crirninall~. rc.sponsible for the act or omiision t o any prc,atc,r c%stontthan if tlic real ,. state of things had 11cxt.n sucll as 11,. ht.lie\.c.tl to exixt". l tic. defc~itlantsin (;olr/!l :trgued that the!. gc,nuinely and r-c~t>onal)ly l~elic.\.ed that the coiicoction they n.crch adn~ini.;tt,ring wiix [lot c1;tngerous to life. 'I711ih argument was disnlisscd as irrelevant on tl~c ground that tllc mi>t;~kc allcged n.a5 a i to thc. futures conseclucxilcrx of it btate of affairs, not as t o the state uf affairs itsvlf, for thv accusctl admitted that they knew perfectly wc.11 n.llat tl~c.!. werc :tclminihtering, and even though this might be said t o I>e a mistake iL5 to a the prtscnt propcrtics of the mixture, it wa-: ne\-e~rthr~lessniistakt. which could I ~ a ~ csignificance only in rclation to a luturcx, not ;L y present, state of affairs. I t is therefore not open to an illegal abortionist chargctl \Tit11 murder under s. 302 (2) to put u p an!. drft,ncc IIased on a1)sencc. of knowledge of the clangerousness of the act. I'llc test of dangr.rou5ness is an objecti1.e as is made rntii-el?- clc:rr by the u>cl of the, words "Zikcly to endanger human lifci" ; thv section sa!-s nothing about the likelihood bc,ing to the knowledge of the, accused. Once f' has protwl that the death follotved from :in act committed in thc ))rosecution of the tlnla\vful purpose of illegal a1101tion, con\-iction for ~ n u r d e is inevitable unless the act intended to abort the decea5t.d r woman was, in the opinion of the jurj-, not likelj. to be dangerous to life. Opinions may differ as to whether this is a desiralAe result in the middle of the twentieth century, but it is difficult to fault the reasonirig of the Court of Criminal Appc~rla> a conitructiori of the Code. Foyl and Hol~nesQ~reimportant a> being the first rc~portc,d case5 in Australian Code jur-isdictions in wliicb the defence has sought a 1.erdict of not guilty in reliance on tlicl new so-called defence of automatism. I n Foy I) was charged with the wilful murder of his wife, whom hc had killed "by striking her about ten tirnes on the head with a hntchetH.3 He had been a n epileptic since the age of six, but there was no evidence that a t the material time he was acting in a fit. I n view of this, there was no basis for putting up a defence of i n ~ a n i t y but counsel for L) emphasised the line the defence \V;L< ,~ 4. ;1880] 9 d . R . 283,285 ( p r y Stanley J . ) , 282 ( p p v l'hilp J . ) , ant1 298 ( pr Townley J .). 1. ,196Oj Qd.R. 225. 2. [lStiO; \\:.:l.K. 122. 3 .kt p. 234 PPYPhilp J . 4. Insanity is defined in s. 27 of the Code, ~ ~ ~ nlia,v as a "state of nlental l c disease". I t 11.2s not disputed t h a t a n epileptic not in thc grip 0 1 a seizure was not a t the material time suffering from a mental disease. H. s. 26 e\-eryone "is presumed t o be of sound mind a t any tlme \ ~ h ~ c l l ! comes in q u e s t ~ o n u n t ~ l , the contrary is pro\.rtl". 108 7'ltt U ~ ~ i z ~ e r s i t C)uefns[and (4 y Journal going to take by expressly asking the trial judge not to direct the jury on insanity, a request which was granted. Counsel then requested further that the jury be directed that unless they were satisfied beyond reasonable doubt that D's act did not occur independently of the exercise of his will within the meaning of s. 23 of the Code,5 they should return a verdict of not guilty. The point of this second request, which was refused, was as follows. According to D the evidence might be thought t o show that D, although not insane or in the grip of an epileptic seizure at the time, yet acted under the influence of a psychological condition which either rendered his act involuntary or prevented him from forming the specific intent necessary for wilful murder and m ~ r d e r . ~ Even if the evidence did not go that far, it might a t least raise in the mind of the jury a reasonable doubt whether D acted voluntarily within the meaning of s. 23, or intentionally within the meanings of ss. 301 and 302 ( 1 ) . If such a doubt were raised, a verdict of not guilty ought to be returned. The trial judge ought therefore to draw the attention of the jury to the proper course to take if they werc to interpret the evidence in this fashion, although, of course without giving the impression that they ought so to interpret it. The trial judge's refusal to make the direction requested was upheld by the Court of Criminal Appeal on the ground that there was no evidence that D had acted independently of the exercise of his will or without intention. This basic premiss being denied, it followed that the whole of I)'s ingenious argument fell to the ground. However, the court, recognising the importance of the issues raised, made some observations of general interest on the relationship of involuntary action with ss. 23 (volition) and 27 (insanity) of the Code, particularly as to burden of proof. The advantage t o D of putting his defence in the form adopted was that it made the most of the burden of proof which rested on P. If D had attempted to set up a case of insanity, then in addition to surmounting the obstacle that there was really no evidence of any such thing, he would also have been faced with the rule that it is for the defendant to prove insanity on .the balance of probability.' Thus, any weakness in the evidence would have militated against him. But by disclaiming insanity, D sought not merely to leave 5. By the first paragraph of s. 23, which applies generally, "a person is not criminally responsible for an act or omission which occurs independently of the exercise of his will". 0. By s. 301 wilful murder requires a specific intent to "cause" the death of a human being, and by s. 301 (1) the only form of murder relevant to the present case requires a specific intent to do grievous bodily harm. '7 Sec. 26, quoted in fn. 3 above, does not say who is to prove insanity, but a t least it is not inconsistent with the rule applied in Queensland, as a t common law, that D must prove the defence on the balance of probability. tlic. ri-i1,11 I , i ~ r ~ lof >j~rooi gliilt Ito!.o~iel rc~;iion;~l)lt~ on l', but ( ~ i ot tloul~t albo 10 ILL, >IICII r~.icle,~~ct, l 1 ; ~ 1of i ~ i \ ~ o I ~ ~ to i t ~ ~ ~ ~ i ~ ~ ( ~ ~ s 11(, ~ incii~cc,in 1 i 1 f t o I 1 1 1 1 1l o ~ t rill!. ~ I I ; L ~ C ( ~ L I in Cthe ;L ~ rvitlcr~t-cs\\ol!ltl ha\,c I~cacri c o r ~ ~ l ) i c u o u > tllis contcst, for in c1virli,1~~ llic-11dot,. not alnoilnt i t , {,roof (111 tilt, I):~l;~ncc 11rol):tl)e' a of ility Ill;l\. \\X>ll ? C c1loll~lltc1 >i:\qlOl.t it l ~ i ~ : l ~ o l ~ ; l l l l ~ l ~I~L1l)t. C L ~ '1.11~ i ~ ~ l l\voulrl -t iicini, o f tl~i.?, r.t,;ai-ding I ) ' nr-gilnlcmt , I . , ~ t t ~ , ~ ~ i \v\.abic)n c ~ i l i , , iii-aiiitv .rctio~i. I t wa. not 110,.11)1!, ptr,il t to 111,ilii.,i ,good 1.:1.(. uni11'r .. 2:j out of a 11;lcl caw \~ntlt,s 27. 11 b. tlic, tl~,ic,~ld;~rlt (111 c , \ - i i l c , ~ ~ c , ~\vhic.li p r o \ . t ~ l I-c~lietl s insanit\. 01-i~otliing. t11c.11 1 1 ~ i ( to p r o \ < si r ~ , ~ ~ ~ ~ i t ! . 11c. l Ir;\\-cs ;in \.(.I-\, elittc,~t,iit, ; t b ( > . 1:c~c;~iix: ti\<,\\.t.;iknvcc OI i of 1)'. i,t\.olir, I:OI in?\-it:~l)l\. ic.ft urli~nx\rc.~.c~lk -\it,I cluv>troni .I' \~llctlic.rtht,i.i, a t . all\. 1),,\-c~liologic,l1 statc's \\I~icl1 rila;. t~o ri.lc.\.:!lit ilr~tlt,r . r':l 11utnot untlc.1 2 7 , ;lntl \vhc,tlir.r tl~c, ~ ) ~ l ~ r t 5 c i. c.ntitlccl ti) c1i1-i.cttilt jury on irl-.;l~?it\. tlie filer: o f oppoiition I ) \ in t11c.tl~,~r.:ic,c..l l t h o ~ ! y lo n l ~ ;I. cl~a~-gc. a iur!.. f?ol~rlc~s . ~ to got' .;01r1(, iv:~:. tc,.\.;i!-:l- ,in.\vi.rin;! t110.c. rli.~c~.tion.for. the c-otlc ,t;itc.>. \\;I;I tilt, c,\.itlt,~lc.c, III /lo!tiii.\ .. I ) \ \ , I - chargtd ~ v i t l "~vi1full~~ ;i~icl ~ i ~ ~ l ; l \ ~ f u lc;rllsing : I I I l>." rsl~lo>ion lilic~l\. o injiirc, jiro~)cart?,.' The dvfc~lccl t w;15 squnl.cly thitt I)'> action \\-a> not i\.iliuI I)c,c.;lu~. \v;l.; involunt;!r!. nithin tl~c. it 1nr.aliillg of b. 2 8 , 1,111 t h a t I) \yay 11i1tinsanr \i:itliin 5 . 27. 1 1 1triill ~ j1:dge. j : ~ c l i ~ ~ r ~ lcft t!irt,e ~ c r d i c t st o the jury: gnilt?.; not S.I)..j., l13 of mincl. guilt?.: nlitl not grlilt!- on ti . grountl of ~lnsountl~lt~ss t,sy)rcs-11-clc.alt wit11 the, point that 1) did not rr.1)- on i~ihanityant1 >t;ttc~l! ~ ; ~ t . in !lib oirrr opinion t h e w was e\.idcnce of insanit!.. t .inctit wax ~ic.\.c~rtllelcss tlut!. to leave that verdict to the jur!,. hi.; 7 . I)t,;~liilp \\.it11 ;~utoni;iti,mi, i . Honour took t h view that 5. 23 h ~ t~sclu~lc~tl~ > l ) c ~ i ~ i I ~ i l i tact> ~~vric~l-rnvd i-t for y undvr tlie influerlct. of Il!-pnosi'-, 01- I)!- slccl~\valkor~, by cy~iloptics or during fit.;, and t l ~ e liki~, ilcli htatcc a5 hvl)no.i-. >i~v~I\\';ll\iillg-, epilepsy, and ilosttraur~latic.nutomatism n i ; ~ yl)c within ,. 2:i \jilt not witlrin b. 27, althougll in I;~JJ' court ri~gardcd tl~t, c,pil(,l~s?. tcnlporary insanity. as 5c.cond. .l;~cksonS . P . J . put thc b~irclc~ri disproving automatibrn of on I', \vhcrt.a> the Quetmbl;lntl ('ourt of Crilnii~al alppeal secnic-el t o -:I\. that the. Imrdrn of ~ I I - u Oof amtomatism ought to be assi1ni1atc.d ~ 8. \V.:\. t ,)de s . 434. Therr '. IS no sectlon exactly equivalent 111 the Queensland Cotlc, b u t many >cctions cinploy t h c formula "u.iltully and uniaw!ull\. c'g., 5% 411, 46-2 (2), 4G3, 465 (1) and ( A ) , 468, 469. does not to that of insanity. Third, Holmrs lays down and I ; ~ I J ~ disagree, that it is for the court, not counsel, to sa!. whether there is evidence of insanity. Thc present position may be summarized by saying that in Quecnsland the tendency seems to be to cope with automatism by taking a broad view of the insanity rules, whereas in Western Australia automatism is seen as a category of involuntary action distinct from i n ~ a n i t y . ~ COLIT H o ~ ~ A K I ) . In Hall a. Husst (34 A.L.J. 332) the High Court made a decision on the law concerning restraints on alienation that could be the beginning of a general restatement of the law on this subject. Hitherto the voidness of such restraints has been based on the concept of repugnancy to the grant; and there has been doubt and difference of opinion as to whether the repugnancy rule is an expression of a general principle of public policy in favour of free alienation. Thc High Court decision was based on this principle; and the result rnay be that the narrower repugnancy rule ib thereby superseded. I3rieflj. the facts of the case were as folloxvs. In 1949 the proprietor of an ibland off the coast of Sorth Queenkind sold the land together wit11 fixed improvements and certain chattels on it for L3,157 4s. On the same da!~ the vendor and the purchaser entered into an indenture by which the purchaser unterdook not to assign the land without the consent in writing of the purchaser and which also provided, in case the purchaser should desire to sell for a first option of purchase by the vendor at the original sale price plus thc \ d u e of additions and improvement:, and minus the value of deficiencies of chattels and a reasonable sun1 to cover depreciation. In 1!157 the original purchaser resold the property to otllcr persons for L8,500, without obtaining the consent of the original vendor, who thereupon surd the original purchaser for damages, for breach of contract. The imperfect drafting of the indenture made it difficult to determine \vhetlier the prohibition of aliclnation without consent was absolute, or whrthcr it ceased to operate if the original vendor 9. Since this note \\.as written the report of the deci~ionby t h e Full Court of Queenslatid in Cooper v. 12lcKenpza [10ti0: Qd.11. 406 has come to hand. A majority of the Court decided (1) t h a t the effects of concussion from a 1)low on t h e head did not necessarily amount t o insanity and (2) t h a t no Oltrden of proof falls on Il in autdmatism. This decision may show t h a t the appnmcl~\\.llich will he taken t o insanity in relation t o automatism in Quecnsland \\.ill not, after all, be significantly wider than clsr\\.lirre.