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Supreme Court of South Australia |
COURT
IN THE FULL COURT OF THE SUPREME COURT OF SOUTH AUSTRALIA
COURT OF CRIMINAL APPEAL
KING CJ(1), COX(2) AND MATHESON(3)
JJ
CWDS
Criminal Law - Manslaughter by unlawful act - intentional infliction of some
harm not necessarily serious by unlawful
act - unintentional infliction of
harm by unlawful and dangerous act - degree of objective danger required -
appreciable risk of
grievous bodily harm - R v Holzer [1968] VicRp 61; 1968 VR 481 approved -
expression "dangerous" without amplification a misdirection - as intentional
infliction of harm disclosed by appellant's
evidence, proviso to section
353(1) Criminal Law Consolidation Act applied - the history and position
elsewhere and local practice
considered.
HRNG
ADELAIDE, 21 March 1991
#DATE 6:6:1991
Counsel for Appellant: Mr S.W. Tilmouth, QC
Solicitors
for Appellant: Stokes and Associates
Counsel for Attorney-General: Ms A. Vanstone
Solicitor for Attorney-General:
B.M. Selway,
Crown Solicitor
ORDER
Appeal dismissed.
JUDGE1
KING CJ The
appellant stood trial jointly with one Cumming on an Information
charging them with murder. Cumming was found not guilty of both
murder and
manslaughter. The appellant was found not guilty of murder but guilty of
manslaughter. He appeals against that conviction.
2. On the evening of 15th September 1989, the appellant, his girlfriend,
Kerri Bennier, and Cumming were at the home occupied by
Cumming's father and
the appellant's mother at Exeter. The appellant and Kerri set out on foot to
go to a local hotel. On the way
they encountered the deceased. He was a
middle aged man and was under the influence of liquor. Some words were
exchanged between
the three of them. The appellant requested Kerri to go back
to get Cumming and she complied. After Cumming's arrival the appellant
punched the deceased in the face. He fell backwards and struck the back of
his head on the footpath. He died as a result of that
blow. Cumming went
through the deceased's pocket and took a wallet containing some money.
3. The case for the prosecution was one
of felony murder. It was alleged
that the appellant punched the deceased in the course of a robbery. The
appellant's defence was
one of self-defence. He gave evidence that the
deceased attempted to kiss him, adopted a threatening posture and appeared to
be
about to strike a blow at him. In order to defend himself, he delivered a
punch to the face which he described as not hard but not
soft. It was of
sufficient force to knock the deceased to the ground. The appellant denied
any intention of causing serious harm.
4. The learned trial judge directed the jury as to law relating to felony
murder. He left manslaughter to the jury as a possible
verdict in the
following terms:
" In this case if you have not found murder proved, but have
gone on to consider manslaughter
it would be manslaughter by an
unlawful and dangerous act. The killing of a man in the course of
committing a crime is manslaughter.
The crime must be an act in
serious breach of the criminal law. A serious assault - you may
think the punch by Wilson or
the hitting of the head on the concrete
by Cumming to be serious assaults - would be an unlawful act for
this purpose. Whether
the particular act you are considering is a
dangerous act is a matter for your judgment."
Despite what his Honour said in the
passage just quoted, he also left
provocation as a possible basis of a verdict of manslaughter. But as there
was no suggestion of
an intent to cause death or grievous bodily harm and as
the only available basis of a verdict of murder was felony murder, provocation
could have played no part in the jury's deliberations.
5. The learned judge directed the jury as to the law of self-defence. The
first challenge to the conviction mounted by Mr Tilmouth, QC, who appeared
for the appellant, was that the directions on this topic
related self-defence
to the charge of murder only and did not relate it to the element of
unlawfulness required for a verdict of
manslaughter on the basis of the death
having been caused by an unlawful and dangerous act.
6. It is true that the directions on
self-defence were primarily concerned
with murder and did not expressly relate self-defence to the assault which
was alleged to
be the unlawful act which could lead to a verdict of
manslaughter. The judge twice told the jury, however, that if the appellant
was acting in lawful
self-defence he would not be "guilty of anything". The
jury could have been left in no doubt that self-defence would negate
manslaughter
as well as murder.
7. Mr Tilmouth also criticised the charge to the jury on the topic of
self-defence on the ground that "it did
not identify the appropriate factual
context". The learned judge read to the jury the appellant's evidence of the
deceased's actions
upon which the defence was founded. In truth there was no
real substance in the defence of self-defence even on the appellant's
own
evidence. It is difficult to see how the deceased's actions as described by
the appellant could have been genuinely perceived
by the appellant as a threat
to him. He was free to walk away from the deceased if he so desired. I think
that the charge on the
topic was adequate in the circumstances.
8. Mr Tilmouth contended that the direction as to unlawful and dangerous act
was so defective
as to amount to a misdirection by reason of his Honour's
failure to direct the jury as to the degree of danger which is required
for
the fatal act to amount to manslaughter. An evaluation of this argument
requires some consideration of the rule as to manslaughter
arising from
unlawful and dangerous acts.
9. The authorities as to the content of the rule are by no means clear.
There is a marked
divergence between English and Australian authorities as to
the degree of danger required by the rule. There are difficulties and
obscurities at the border between this rule and the rule as to involuntary
manslaughter by gross negligence. Critics have questioned
both the need for
and the utility of the rule. See for example Glanville Williams' Textbook of
Criminal Law 2nd edition pp.277-8;
Howard's Criminal Law 5th edition p.130;
"Manslaughter by Unlawful Act"; an article by W.T. Westling in [1974] SydLawRw 4; (1973-76) 7
Syd LR 211.
10. The present rule, whatever may be its content, has its origin in a far
more rigid rule, regarded in earlier times as part of
the common law, that
death resulting from any unlawful act is necessarily manslaughter. It is
unnecessary for me to trace the development
of the law on the topic or the
manner in which the present rule has evolved as that has already been done by
learned writers. See
Russell on Crime 10th edition pp.611 et seq;
"Manslaughter by Unlawful Act", an Article by H.A. Snelling in Vol.30
Australian Law
Journal at pp.382 et seq and pp.438 et seq; "Unlawful Act
Manslaughter", an Article by C.R. Williams in 
[1975] MonashULawRw 4 
; (1974-75) 1 Mon LR 234 et seq.
The law on the point is still in the process of evolution. Obscurities as to
the content of the rule and its relationship
with other rules governing
involuntary manslaughter remain to be resolved. Perhaps, as some critics
suggest, a radical restructuring
of the law of involuntary manslaughter is
needed. If that be so, it can only be accomplished effectively by the High
Court as the
ultimate court of appeal or by the legislature. This Court
should confine itself, in my view, to endeavouring to extract from the
existing authorities the most workable and just rule which can be fairly
deduced from them.
11. The development of the law of manslaughter
by unlawful act was brought
about by a growing repugnance for the injustice of convicting a person of
manslaughter where the death
was a quite fortuitous result of an unlawful act
which involved no apparent risk of injury. In R. v. Franklin (1882) 15 Cox
CC 163, Field J expressed his "great abhorrence of constructive crime" and
held that the element of unlawfulness was not satisfied by the
act being a
civil wrong. By 1943 the English Court of Criminal Appeal was able to
formulate the rule as requiring the fatal act
to contain an element of danger
and to say that that form of the rule "is to be found in many old cases", R.
v. Larkin (1943) 1 All ER 217 at 219. In R. v. Church [1965] EWCA Crim 1; 1966 1 QB 59, the
English Court of Appeal finally rejected the doctrine that an unlawful act
causing death, simply because it was an unlawful
act, rendered a verdict of
manslaughter inevitable. The Court held that "for such a verdict inexorably
to follow, the unlawful act
must be such as all sober and reasonable people
would inevitably recognize must subject the other person to, at least, the
risk of
some harm resulting therefrom, albeit not serious harm" (at 70).
12. The question was considered by the House of Lords in D.PP.
v. Newbury
[1976] UKHL 3; 1977 AC 500. The test formulated in Larkin and Church supra was affirmed and
the House expressly held that the test was met if the act, considered
objectively, was dangerous even if the accused did not realize the danger.
In the course of a discussion of the judgment of Lord
Denning MR in Gray v.
Barr 1971 2 QB 554, Lord Salmon, who delivered the leading judgment, appears
to imply that the test is also met if there is an actual intention to
cause
harm or an actual realization that harm is likely, although that is not
necessary if the act is objectively dangerous.
13.
Larkin, Church and Newbury were not cases of intentional infliction of
harm and the Court was concerned only with the objective
content of the rule
as to manslaughter by unlawful act. There are English cases, however, in
which the intentional infliction of
harm by means of an unlawful act appears
to have been regarded as a basis of a verdict of manslaughter; e.g. R. v.
Woods (1921) 85 JP 272; R. v. Garforth 1954 Crim LR 936; R. v. Sharmpal
Singh 1962 2 WLR 238. Smith and Hogan on Criminal Law 6th edition at p 350
states the result of the English cases as to intentional infliction of harm
as
follows:
" A battery which kills is necessarily manslaughter if it
is intended (as most batteries are) to cause any degree
of physical
harm. If the battery is not intended to cause harm - as in the case
of a mere touching without consent - the
question is whether any
reasonable man would necessarily have foreseen the risk of some harm
resulting - a question which
in most such cases must surely be
answered in the negative."
14. It is now necessary to consider important Australian cases
on the
subject. In Mamote-Kulang of Tamagot v. The Queen [1964] HCA 21; (1963-64) 111 CLR 62, the
appellant struck the deceased a blow with the back of his clenched hand to
the side of her abdomen. He intended to cause her
pain but not to do further
injury. Due to the effect of the blow on a defective spleen, the deceased
died. The judgments in the
High Court were largely concerned with the meaning
of "accident" in section 23 of the Criminal Code of Queensland as adopted in
the
Territory of Papua and New Guinea, but the judges who formed the majority
clearly held that the intentional infliction of pain by
means of an unlawful
blow which caused death would constitute manslaughter at common law. Windeyer
J at p.79 states the law thus:
"If death is a consequence, direct not remote, of an unlawful
act done with intent to do grievous bodily harm, it is murder.
If
it is a consequence, direct not remote, of an unlawful act done with
intent to hurt but not to do grievous bodily harm,
it is
manslaughter. To prevent misunderstanding, I should add at this
point that, whatever may have been the position in
earlier times, it
is not now enough to constitute manslaughter at common law that a
man is killed in the course of an unlawful
act of any kind. To make
an unintended and unexpected killing a crime at common law, it must
now be, generally speaking,
the result of an unlawful and dangerous
act, or of reckless negligence. There is, however, no doubt that at
common law a
man is guilty of manslaughter if he kills another by an
unlawful blow, intended to hurt, although not intended to be fatal
or to cause grievous bodily harm."
15. The Mamote-Kulang case was concerned with intentional infliction of harm
and the objective
aspect of the rule as to manslaughter by unlawful act did
not require consideration. That aspect was considered by Smith J in the
Supreme Court of Victoria in R. v. Holzer [1968] VicRp 61; 1968 VR 481. In that case the
accused had punched the deceased in the mouth causing him to fall backwards on
to the roadway whereby he sustained
injuries from which he died. In the
course of his ruling as to the directions which he would give the jury, Smith
J said:
"What
we are here concerned with is, first, the doctrine of
manslaughter by the intentional infliction of bodily harm, and
secondly,
the doctrine of manslaughter by unlawful dangerous act.
Under the first of those doctrines the law, as I see it, is that a
person is guilty of manslaughter if he commits the offence of
battery on the deceased and death results directly from the
commission of that offence, and the beating or other application of
force was done with the intention of inflicting on the
deceased some
physical injury not merely of a trivial or negligible character, or,
it would seem, with the intention of inflicting
pain, without more
injury or harm to the body than is involved in the infliction of
pain which is not merely trivial or negligible.
In relation to the unlawful dangerous act doctrine, the unlawful
act, it seems clear, must consist of a breach of the criminal
law.
The weight of authority, as it appears to me, is against the view
that the accused must be shown to have acted with
realization of the
extent of the risk which his unlawful act was creating. Authorities
differ as to the degree of danger
which must be apparent in the act.
The better view, however, is I think that the circumstances must be
such that a reasonable
man in the accused's position, performing the
very act which the accused performed, would have realized that he
was exposing
another or others to an appreciable risk of really
serious injury. The view which I have expressed, that realization
of
the risk created does not have to be proved against the accused,
is a factor in persuading me that the degree of apparent danger
must
be that which I have attempted to define, and that it is not
sufficient, as it was held to be in R. v. Church [1965] EWCA Crim 1; (1966) 1 QB 59;
(1965) 2 All ER 72, to show there was a risk of some harm
resulting, albeit not serious harm."
This view of the law was upheld by the Full Court
of the Supreme Court of
Victoria in R. v. Wills [1983] VicRp 80; (1983) 2 VR 201, and R. v. Crusius (1981) 5 A Crim R
427.
16. I am not aware that a view of the law in conflict with that adopted in
Victoria, has been taken elsewhere in Australia. Approval
of the Holzer
ruling appears to be implicit in a judgment of the Court of Criminal Appeal of
New South Wales in which, in the course
of upholding a trial judge's
direction, the Court said in parenthesis "see also Holzer [1968] VicRp 61; (1968) VR 481, where
the statement of the law does not appear to me to be materially different
from the direction which his Honour gave in the
present case": R. v. Coomer
(1989) 40 A Crim R 417. Similar views of the law have been expressed in
States having a Criminal Code in R. v. McCallum 1969 Tas R 73 and Ward v. R.
1972 WAR 36. The question of manslaughter by unlawful and dangerous act came
before the High Court in Pemble v. The Queen [1971] HCA 20; (1971) 124 CLR 107. In that
case, however, the unlawful act, namely the brandishing or pointing of a rifle
was so obviously capable of causing grievous
bodily harm that the question of
the degree of potential harm required to render an act dangerous, did not
arise for consideration.
For that reason I do not think that the various
expressions used in the judgments contribute towards the solution of that
question.
17. This Court is faced, as it seems to me, with a conflict between the
English and Australian cases as to the degree of harm required
to be
reasonably foreseeable where there is no actual intention to cause harm. The
Holzer principle requires that a reasonable person
in the position of the
accused would realize that he was exposing another to an appreciable risk of
really serious injury, while
the Church principle requires only a risk of some
harm not necessarily serious harm.
18. I consider that this Court should adopt
the Holzer test for the following
reasons:
1. The direction of the development of the law is away from the
originally
rigorous rule as to manslaughter by unlawful act and
towards a closer correlation between moral culpability and legal
responsibility.
The Holzer test accords with development in that
direction.
2. The scope of constructive crime should be confined to
what is
truly unavoidable. Where an objective standard in criminal matters
is demanded by community attitudes, the protection
of the community
or legal precedent, it should not be given greater scope than is
strictly necessary and the harshness of
its operation should be
mitigated so far as possible.
In my view the purposes of the criminal law would be adequately served
by two
categories of involuntary manslaughter, namely death resulting from deliberate
and unlawful infliction of harm and death resulting
from culpable negligence.
While the law prescribes the third category of death resulting from the
unintentional infliction of harm
by an unlawful and dangerous act, the
interests of justice are best served by confining that category to cases in
which the foreseeable
harm is grievous.
3. The persuasive authority of a decision of the Full Supreme
Court of an Australian State, presumably
reflecting the sentiments
and sense of justice of an Australian community, possesses greater
weight in my mind than decisions
of courts of other countries which
may reflect different community attitudes and standards. I think,
moreover, that the
desirability of promoting uniformity of the rules
of the criminal law within the Australian nation should incline this
Court,
other things being equal, to be persuaded by a decision of a
Full Supreme Court of a State or Territory of Australia rather than
by decisions of Courts in other places.
19. My conclusion is that where there is no actual intention to cause harm by
the unlawful
act, death resulting from the unlawful act will be manslaughter
only where a reasonable person in the position of the accused would
realize
that there was an appreciable risk of causing grievous bodily harm.
20. It is now necessary to examine the charge to the
jury in the light of
that conclusion. The learned judge did not explain the sense in which the
word "dangerous" is used in the rule
relating to unlawful and dangerous acts.
Miss Vanstone, for the respondent, argued that such an explanation was
unnecessary as the
Holzer concept is the ordinary meaning of the word. In R.
v. Coomer supra the New South Wales Court of Criminal Appeal considered
that a
direction in similar terms to that in the present case was sufficient. I am
unable to agree. The relevant meaning of "danger"
in the Shorter Oxford
Dictionary is "liability or exposure to harm or injury". I think that the
word "dangerous" in its ordinary
meaning is capable of applying to degrees of
harm which are less than grievous bodily harm. It seems to me, therefore,
that the
law as to unlawful and dangerous act was not properly explained to
the jury and that the summing up was defective.
21. There was, on the facts,
a further basis of liability for manslaughter
which was not left to the jury, namely causing death by an unlawful act
performed
with the intention of inflicting harm. The existence of this type
of manslaughter by unlawful act has its sceptics; see Glanville
William's
Textbook of Criminal Law, 2nd edition p.271, and the utility of the rule has
its critics; Manslaughter by the Intentional
Infliction of Some Harm: A
Category that should be Closed, an Article by J. Willis in (1985) 9 Crim LJ
109. The existence of the rule is concluded, however, for this Court by the
decision of the High Court in Mamote-Kulang supra and the
rule has been
applied generally by Australian courts including this Supreme court; see The
Queen v. Jones (Legoe J) 144 LSJS 58.
22. The appellant, on his own evidence, struck the deceased in the face with
sufficient force to cause him to fall to the ground.
He described the blow
as not hard but not soft. Death resulted from the injury to the head
resulting from the fall. In those
circumstances it is necessary to consider
whether the defect in the summing up as to the rule applicable where there is
no actual
intention to cause harm has caused any substantial miscarriage of
justice: section 353(1) Criminal Law Consolidation Act.
23. The
jury ought to have been invited to consider whether the blow to the
face amounted to an assault and therefore an unlawful act. The
only suggested
justification, however, was self-defence and that was negatived by the
verdict of the jury. The only remaining
question was whether the appellant
intended to cause some harm which was not trivial or negligible. The case of
Mamote-Kulang supra
shows that an intention to cause pain is sufficient. A
deliberate blow to the face of the kind described by the appellant gives
rise
to an inescapable inference that he intended to cause some harm. If that
issue had been left to the jury the answer would have
been inevitable.
24. The application of the proviso to section 353(1) is undoubtedly a drastic
step when the true basis of liability
has not been considered by the jury. It
seems to me, however, that a new trial would be futile. Self-defence having
been rejected,
the result on the appellant's own evidence is inevitable.
25. In my opinion therefore, notwithstanding the defect in the summing
up,
there has been no miscarriage of justice and the proviso should be applied.
26. I would dismiss the appeal.
JUDGE2
COX J
The circumstances giving rise to this appeal are set out in the
reasons of the learned Chief Justice.
2. I wish to say something
about the appellant's third ground of appeal. It
relates to the following passage from the learned trial Judge's charge to the
jury -
"In this case if you have not found murder proved, but had
gone on to consider manslaughter it would be manslaughter
by an
unlawful and dangerous act. The killing of a man in the course of
committing a crime is manslaughter. The crime must
be an act in
serious breach of the criminal law. A serious assault - you may
think the punch by Wilson or the hitting of
the head on the concrete
by Cumming to be serious assaults - would be an unlawful act for
this purpose. Whether the particular
act you are considering is a
dangerous act is a matter for your judgment."
Of course, the killing of a man in the course of committing
a crime may also
be murder, depending on the circumstances, but the learned Judge had already
discussed that with the jury and it
is unlikely that they were misled by the
second sentence in this passage. The appellant's complaint is that his Honour
did not direct
the jury as to the meaning of the word "dangerous" in the
fourth sentence. He should have followed the formula in R. v. Holzer [1968] VicRp 61; (1968)
VR 481.
3. The history of manslaughter is the history of the amelioration of the
rigours of the English law of homicide. The evolution
of what we now know as
manslaughter by an unlawful and dangerous act was spasmodic. There are a few
significant cases reported in
the 19th century, linking the classical text
writers with the present day, but it is not easy to discern any coherent and
consistent
doctrine on the subject until well into the 20th century. The lack
of a Court of Criminal Appeal in England prior to 1907, and the
frequent
practice of reporting such nisi prius decisions as did get into the books in
an abbreviated form, did not assist the process
of exposition and development.
See generally the articles cited by the Chief Justice, and also the
interesting paper by Prof. G.L.
Peiris, Involuntary manslaughter in
Commonwealth Law, published in (1985) 5 Legal Studies 21. The authorities
ranged from holding that it was manslaughter if the death, though unintended
and unforeseeable, occurred while the
defendant was committing even a quite
minor offence (e.g. R. v. Packard (1841) Car and M 236; [1841] EngR 1180; 174 ER 487, and R. v.
Woods (1921) 85 JP 272, where Avory J said that death resulting from any
unlawful blow would technically be manslaughter), or merely a tort (R. v.
Fenton
(1830) 1 Lewin 179; 168 ER 1004), to the illegal abortion cases where
it became customary to include a requirement that the defendant doctor
actually contemplated,
"or must as a reasonable man have contemplated", that
death was likely to result (Rex v. Lumley (1911) 22 Cox CC 635). However, by
1943 Humphreys J, speaking on behalf of the English Court of Criminal Appeal
in R. v. Larkin (1943) 1 All ER 217, considered the law on the subject to be
by then generally well settled -
"Perhaps it is as well that once more the proposition
of law
should be stated which has been stated for generations by judges
and, so far as we are aware, never disputed or doubted.
If a person
is engaged in doing a lawful act, and in the course of doing that
lawful act behaves so negligently as to cause
the death of some
other person, then it is for the jury to say, upon a consideration
of the whole of the facts of the case,
whether the negligence proved
against the accused person amounts to manslaughter, and it is the
duty of the presiding judge
to tell them that it will not amount to
manslaughter unless the negligence is of a very high degree; the
expression most
commonly used is unless it shows the accused to have
been reckless as to the consequences of the act. That is where the
act
is lawful. Where the act which a person is engaged in
performing is unlawful, then, if at the same time it is a dangerous
act, that is, an act which is likely to injure another person, and
quite inadvertently he causes the death of that other person
by that
act, then he is guilty of manslaughter. If, in doing that dangerous
and unlawful act, he is doing an act which amounts
to a felony he is
guilty of murder, and he is equally guilty of murder if he does the
act with the intention of causing grievous
bodily harm to the person
whom, in fact, he kills." (at 219)
It will be observed that the Court of Criminal Appeal described
a "dangerous"
act simply as one that is likely to injure another person. This conforms with
the dictionary definitions of "dangerous"
("fraught with danger or risk;
perilous, hazardous, unsafe" - SOED) and "danger" ("liability or exposure to
harm or injury; risk,
peril" - SOED).
4. The need for the Crown to prove that the defendant's act was both unlawful
and dangerous was affirmed by the
same Court in R. v. Church [1965] EWCA Crim 1; (1966) 1 QB 59.
The trial Judge had directed the jury that if by an unlawful act of violence
done deliberately to the person of another, that other
is killed, the killing
is manslaughter even though the accused never intended either death or
grievous bodily harm to result. The
Court of Criminal Appeal, in a judgement
delivered by Edmund Davies J, held that this was a misdirection -
"It amounted to telling
the jury that, whenever any unlawful act
is committed in relation to a human being which resulted in death
there must be,
at least, a conviction for manslaughter. This might
at one time have been regarded as good law: see, for example,
Fenton's
case ((1830) 1 Lew CC 179). But it appears to this court
that the passage of years has achieved a transformation in this
branch of the law and, even
in relation to manslaughter, a degree of
mens rea has become recognised as essential. To define it is a
difficult task,
and in Andrews v. Director of Public Prosecutions
((1937) AC 576) Lord Atkin (ibid. 581) spoke of the "element of
'unlawfulness'
which is the elusive factor."
Stressing that we are here leaving entirely out of account those ingredients
of homicide which might
justify a verdict of manslaughter on the grounds of
(a) criminal negligence, or (b) provocation or (c) diminished responsibility,
the conclusion of this court is that an unlawful act causing the death of
another cannot, simply because it is an unlawful act, render
a manslaughter
verdict inevitable. For such a verdict inexorably to follow, the unlawful
act must be such as all sober and reasonable
people would inevitably recognise
must subject the other person to, at least, the risk of some harm resulting
therefrom, albeit not
serious harm." (at 69-70) This does not, in my view,
alter or qualify Larkin - I do not think the difference between "likely to
injure" (Larkin) and "the risk of some harm" (Church) is significant -, but it
does emphasize that the injury to which Larkin referred
need not be serious.
5. Church was followed by the Court of Criminal Appeal in Regina v. Lamb
(1967) 2 QB 981 and Regina v. Lipman (1971) QB 152, then affirmed by the House
of Lords in Director of Public Prosecutions v. Newbury [1976] UKHL 3; (1977) AC 500. See
also Regina v. Dalby ( 1982) 1 WLR 425 and Dawson (1985) 81 Crim App R 150.
Those cases dealt with various aspects of this branch of the law but the
accuracy and sufficiency
of the established interpretation of the word
"dangerous", implicit in Larkin and made explicit in Church, were never
doubted.
6.
In Mackie (1973) 57 Crim App R 453 the explanation in Church of what is
meant by "dangerous" was applied to a case of manslaughter
occurring by
accident in the course of the victim's attempt to escape a threatened assault,
and the same test was applied in similar
circumstances by the Privy Council as
the common law of Jamaica in Director of Public Prosecutions v. Daley (1980)
AC 237.
7. I turn to the position in Australia. It is convenient to start with
Victoria where there has been a marked departure as to the
meaning of the word
"dangerous" in this context as generally understood and applied elsewhere.
8. R. v. Brown and Brian [1949] VicLawRp 32; (1949) VLR 177 (FC) dealt chiefly with the
felony-murder rule but the judgement of Lowe and Martin JJ, with which Barry
J agreed, referred to the direction
that was commonly given in England in
cases where death followed an abortion -
"If the prisoner as a reasonable man could not
have
contemplated that death or grievous bodily harm was likely to result
and death ensued, the proper verdict was said to
be manslaughter (R.
v. Lumley, (1911) 22 Cox CC 635). Indeed, in such cases, the
proposition may be stated positively that the prisoner is guilty of
manslaughter only unless,
when he did the act in question, he must
have contemplated or as a reasonable man would have contemplated
that death or grievous
bodily harm was likely to result." (at 181)
It seems that this was not intended to be a comprehensive statement of the law
relating
to manslaughter by an unlawful and dangerous act. Larkin was not
mentioned.
9. R. v. Parmenter [1956] VicLawRp 50; (1956) VLR 312 is the report of a summing up by Sholl J in
a murder trial arising out of a death by shooting. His Honour told the jury
-
"If a man unintentionally causes death in the course of
committing an unlawful act not amounting to a felony, an act such as
the accused contemplated, or a reasonable man would have
contemplated, as likely to create the danger of death or grievous
bodily harm, for example pointing a loaded pistol at another man -
if, as I say, in the course of such an unlawful act as
that, that
being an assault in law, a man unintentionally causes death, that is
manslaughter. Suppose here the accused, armed
with a loaded pistol,
entered the house unlawfully and, on being apprehended, threatened
the deceased with a pistol, pointed
it at him, and in the course of
a subsequent struggle resulting from that action the pistol was
accidentlly discharged, causing
the death of the deceased from the
first explosion; if that view of the facts could be got from the
evidence, then the proper
conclusion in law, as it seems to me,
would be manslaughter, because that would be a case where death
would be unintentionally
brought about an unlawful act likely to
create a danger of death or grievous bodily harm, namely the
pointing of a loaded
pistol at a man by an intruder in his room at
night." (at 314-5)
It is noteworthy that the cases referred to in argument included
Lumley and
Brown and Brian but not Larkin.
10. R. v. Turner [1962] VicRp 2; (1962) VR 30 (FC) was another shooting case. There the
trial Judge said to the jury -
"Where an act which a person is engaged in performing is
unlawful, then if it is at the same time a dangerous act, that is an
act which is likely to injure another person and quite
unintentionally he causes the death of that other person by that
act, then he has committed the crime of manslaughter." (at
33)
The Full Court on appeal had no criticism to make of this part of the
direction which, it will be observed, followed Larkin almost
word for word.
11. The subject was also discussed by the Full Court of Victoria in R. v.
Longley [1962] VicRp 23; (1962) VR 137 (FC). Sholl J, at 142-3, spoke of manslaughter
occurring in the course of an unlawful assault upon another and he took the
view - more
definite now than in Parmenter - that the assault in such a case
"must be of a character that the accused must have realized that
it involved
an appreciable danger of death or serious injury." The learned Judge cited a
passage from Turner ("The correct statement
of law is that a man is prima
facie guilty of manslaughter if he, without having any intention to kill or do
grievous bodily harm,
kills another by an act which is both unlawful and
dangerous") but added that this must be understood as posing a subjective
test,
namely, a realization by the accused that his act was dangerous. This,
of course, is not the law now. Smith J, with whose reasons
Monahan J agreed,
simply referred (at 148) to the need for the trial Judge to direct the jury
on manslaughter caused by using a
gun to commit an unlawful and dangerous
assault. Again, there was no reference to the English position as stated 20
years earlier
in Larkin.
12. Then came Holzer. In the course of the trial of an accused upon a charge
of manslaughter committed during a fight,
Smith J gave a ruling that included
the following passage -
"In relation to the unlawful dangerous act doctrine, the
unlawful
act, it seems clear, must consist of a breach of the
criminal law. The weight of authority, as it appears to me, is
against
the view that the accused must be shown to have acted with
realization of the extent of the risk which his unlawful act was
creating. Authorities differ as to the degree of danger which must
be apparent in the act. The better view, however, is I
think that
the circumstances must be such that a reasonable man in the
accused's position, performing the very act which
the accused
performed, would have realized that he was exposing another or
Others to an appreciable risk of really serious
injury. The view
which I have expressed, that realization of the risk created does
not have to be proved against the accused,
is a factor in persuading
me that the degree of apparent danger must be that which I have
attempted to define, and that it
is not sufficient, as it was held
to be in R. v. Church, [1965] EWCA Crim 1; (1966) 1 QB 59; (1965) 2 All ER 72, to
show there was a risk of some harm resulting, albeit not serious
harm..." (at 482)
In his actual charge to the jury the
learned Judge, after considering other
forms of manslaughter, put it in this way -
"If the third of those elements of manslaughter
is not
established, the law says that the crime may nevertheless be
established if, instead of that third element, the Crown
establishes
that the unlawful act was one which a reasonable man in the
accused's situation, doing that unlawful act, would
have realized
was exposing the victim to an appreciable danger of some really
serious injury." (at 484-5)
While the report
does not say so, I presume that the authorities that Smith J
preferred to follow, rather than Larkin and Church, were the Victorian
decisions to which I have referred. His Honour's formula has since been
affirmed by the Full Court of Victoria. See R. v. Grapsas
[1973] VicRp 86; (1973) VR 854, at
865 (when there was a bare statement of the law as interpreted in Holzer
without any reference to the reported cases) and R.
v. Wills [1983] VicRp 80; (1983) 2 VR 201,
at 211-12 (where the review of the authorities included Larkin and Newbury but
not the decision of the Privy Council four years
previously in Daley).
13. The position in New South Wales (which may be regarded as a common law
State for the purpose of this kind
of manslaughter) appears to me to be
clearly and consistently in conformity with the law laid down in the English
cases, although
reported decisions are few. Mr H.A. Snelling, QC, writing in
1956 (Manslaughter by Unlawful Act, 30 ALJR 382, 438), did not refer to any
local cases on the subject. He discussed at some length the case of Larkin,
decided some 13 years earlier,
observing that it appeared to break new ground
in holding that the act of the accused had to be dangerous as well as
unlawful. Although
the facts in some of the old cases did show the act to be
a dangerous act, in the sense of likely to injure another, in others they
did
not. The learned author observed, however, that the statement of the rule in
Larkin "is probably now generally followed by judges
in their directions to
juries (though it appears either not to have been noticed or not to have been
accepted by most of the text
writers)." The learned author was in a good
position to observe the practice of New South Wales judges. Any shortcomings
of text
writers on this subject were put right in that State when the 6th
edition of Hamilton and Addison's Criminal Law and Procedure (N.S.W.)
was
published in 1956. The brief statement of the law on the subject was as
follows -
"Manslaughter is punishable homicide which
is not murder.
It is unlawful killing .... Where the act which a person is
engaged in performing is unlawful, then if
at the same time it is a
dangerous act, that is an act which is likely to injure another
person, and quite inadvertently
the doer of the act causes the death
of that other person by that act, then he is guilty of
manslaughter." (at 49) citing
Larkin.
One would expect that the influence of Hamilton and Addison locally would
have assisted in consolidating the English interpretation
in New South Wales.
14. Reg. v. Simpson (1959) 76 WN (NSW) 589, in which the Court of Criminal
Appeal followed the Privy Council case of Kwaku Mensah v. The King (1946) AC
83, is sometimes cited in support of the English view of what "dangerous"
means but the text of the report appears to me, like the
Privy Council
judgement itself, to be at best equivocal on the point. See also Brown v.
Robinson (1960) SR NSW 297 where the Full Court had to grapple with the
problem of applying the law of involuntary manslaughter to a fatal road
accident.
Larkin was quoted but distinguished, apparently on the question of
causation which was an issue in Brown v. Robinson.
15. The appellant
in Andrews (1979) 2 A Crim R 189 was tried for the murder
of his wife by asphyxia and convicted of manslaughter. In the Court of
Criminal Appeal the majority (Street
CJ and Nagle CJ at C.L.) allowed the
appeal on grounds relating to a good character direction and did not need to
examine the sufficiency
of the direction as to manslaughter by an unlawful and
dangerous act. Begg J (dissenting) rejected the character ground and
therefore
considered the other grounds as well. He said -
"I propose to consider what is the correct charge to a jury
if the jury
was satisfied that it was the voluntary act of the
accused which brought about the death charged. In my view the jury
should
be told that if they are satisfied that it was a voluntary
act of the accused which caused the death and if the act of the
accused was unlawful, and if it was a dangerous act then the accused
is guilty of manslaughter. He does not escape criminal
responsibility for the results of his act if he was drunk or under
the influence of drugs, assuming both conditions to have
been
voluntarily induced. If the jury in the instant case concluded (as
indeed by their verdict they clearly did) that the
deceased died
because of the fact that the accused lay on top of her and blocked
both her nostrils and her mouth with his
hand as suggested by the
Crown, then that obviously was an unlawful act and it obviously was
a dangerous act. No doubt the
jury felt that he did not have the
requisite intent to kill or they would have convicted him of murder.
In my view a direction
as indicated needs no lengthy elaboration and
in simple form can clearly be understood by a jury.
There are cases of course
where manslaughter arises by reason of
culpable negligence such as motor driving cases or careless use of
dangerous objects,
but normally these find no place in a murder
trial and it is unnecessary to discuss them here (see my remarks on
the subject
in Solomon (1979) 1 A.Crim.R.247).
May I now set forth the direction that the learned judge gave the
jury:
"In relation
to this question of manslaughter I reiterate, you
would only come to a consideration of it if you were not satisfied
beyond
reasonable doubt that the Crown has proved the intent to
kill, the intent to inflict grievous bodily harm, you would, as I
say, be entitled and would consider the question of what the Crown
Prosecutor referred to as the doctrine of manslaughter by
an
unlawful and dangerous act. Under this doctrine an accused person
will be guilty of manslaughter if it is proved that
he intentionally
did an act which was unlawful and dangerous and that act
inadvertently caused the death. A dangerous act
is one which is
likely to injure another person. It is as simple as that.
What the Crown is required to prove is that
the accused
intentionally did an act which was unlawful and dangerous and that
act inadvertently caused the death of the
deceased."
In my opinion this was an accurate and adequate direction...."
(at 198)
The report does not identify the appellant's
complaint about the manslaughter
direction, but I infer from this treatment of the subject that the general
sufficiency of the direction
was under attack. I think it plain that both
Begg J and the trial Judge took the view that any elaboration of the word
"dangerous"
to the jury, in this particular case and perhaps generally, was
unnecessary. The direction, it will be noted, conformed in that
respect with
Larkin - "likely to injure", without saying how severely. It was deficient,
of course, if judged by the test propounded
in Victoria 11 years previously in
Holzer. I also think it tolerably clear that the majority (Street CJ and
Nagle CJ at C.L.) must
have considered the direction about "dangerous" to be
correct. Given that the sufficiency of the direction was raised, and that
the
Court was ordering a retrial limited to the charge of manslaughter, one would
have expected their Honours to say so had they perceived a fundamental error
in the trial Judge's statement of law to the jury, especially as Begg J was
expressing his approval of it, but they did not mention
the manslaughter
direction at all.
16. In Regina v. Cheung (CCA NSW, 12 June 1987, unreported) the appellant
complained of his conviction
on a charge of manslaughter and other offences
following a joint trial. The only relevance of the report is with respect to
the
direction that the learned trial Judge (Roden J) gave the jury about
manslaughter by an unlawful and dangerous act. What he said
was -
"In addition to that there is one further situation in which
this accused could be guilty of manslaughter in respect
of the death
of Stanley Wong. I have said that the offence is manslaughter, and
the accused is guilty of it, if the death
was caused by his unlawful
act which was also dangerous. In this case if you accept the
evidence and his own admissions,
the accused's own acts, not those
of Wee Lam Choo for which he might be responsible, but the accused's
own acts with his
own hands, include being present as a participant
in a robbery, armed with a knife, with knowledge that in fact there
are
two knives and a gun either real or imitation, being used. It
would be open to you, although this is a matter for you to determine
as the tribunal of fact, to say that that is itself an unlawful and
dangerous act which caused the death of Mr Wong. That
it was an
unlawful act, again as a matter of law I direct you is the case. As
must be obvious, to go about a robbery with
or without weapons is,
of course, an unlawful act. You would be entitled to conclude,
although it is a matter for you to
determine, that to bring such
weapons into the atmosphere of a robbery, with the fear, the
excitement and the tension that
would be engendered, is an unlawful
act and creates a situation in which some injury to some person
could result. If you
are satisfied beyond reasonable doubt that the
accused was present, participating in a robbery which involved the
use of
weapons, including two knives, you could conclude that that
was an unlawful and dangerous act, and you could regard that act
as
the direct cause of the death of Stanley Wong." There was no
criticism of that part of the direction by the Judges who
constituted the appeal Court (Street CJ, Lee and Brownie JJ). It
will be noticed that Roden J did not attempt to explain
what a
dangerous act is, unless it could be said that an explanation was
implicit in his reference to "a situation in which
some injury to
some person could result."
17. Then came R. v. Croft (1981) 1 NSWLR 126. The appellant was convicted of
having murdered his wife by battering her to death. The trial judge had left
manslaughter by an
unlawful and dangerous act as an alternative verdict. He
put the test for murder to the jury and then said -
"If you are not
so satisfied then in the circumstances of this
case your proper verdict would be one of not guilty of murder but
guilty of
manslaughter. You would be finding that the accused was
responsible for this death by what is an unlawful act which viewed
objectively is dangerous and that makes him guilty of manslaughter."
(at 133-4)
18. As to this the Court of Criminal Appeal
(O'Brien CJ of CrD, on behalf of
Street CJ and Samuels JA as well) said -
"In the present case the learned trial judge in effect
directed the jury that upon the evidence an assault as an unlawful
act had been proved, that it had been shown to be of a
kind which
any sensible man in the circumstances would have regarded as
subjecting the deceased to risk of some degree of
injury, albeit not
serious harm (see R. v. Lipman (1970) 1 QB 152 and cases there
considered) and that therefore the Crown had at least proved
manslaughter which they were to return in the
event that they did
not return murder. This was, in my opinion, a misdirection, for the
jury were pre-empted from the necessary
findings of fact and from
the finding of an offence therefrom. The jury should have been
directed as to the elements of
the offence of manslaughter where
death was caused by an unlawful and dangerous act. In addition to
the directions concerning
death and causation by an act of the
accused they should have been directed as to the elements of an
assault as the unlawful
act and as to the necessity for and the
elements of the danger which would render it also a dangerous act in
law and that
it was open to them to return a verdict of manslaughter
if these were proved and if they did not find murder." (at 138)
Lipman
was one of the English cases in which the Church formula was applied.
The trial judge in Croft was criticized for taking the matter
out of the
jury's hands, but the implication of the passage I have quoted from the appeal
judgement appears to be that a direction
in conformity with Lipman would have
been unexceptionable.
19. Finally, there is the recent decision of the N.S.W. Court of Criminal
Appeal in Coomer (1989) 40 A Crim R 417. The appellant was charged with
murder and convicted of manslaughter. The victim was a woman who died from a
forceful knife wound.
The appellant denied having been present when she was
stabbed. The trial Judge put to the jury a number of possibilities on the
facts, one being that the appellant was guilty of manslaughter by an unlawful
and dangerous act. Most of the judgement of the appeal
Court (Gleeson CJ,
Lee CJ at CL and Loveday J) is taken up with the appellant's submission that
it would be unsafe to allow the
jury's verdict to stand, but that argument
was rejected. Then the Court dealt briefly with the manslaughter verdict -
"The
appellant complains of the directions given by the
learned trial judge as to the concept of manslaughter "by unlawful
and
dangerous act". The particular passage of which complaint is
made is as follows:
"That is what you have to consider but
on that question of an
unlawful and dangerous act, it is unnecessary for the Crown to prove
that the accused intended any
harm to the deceased or that he even
realised that even his act was dangerous or unlawful. The test of
dangerousness is
objective. The test is not that the accused
recognised it was dangerous but whether a sober and reasonable
person would
recognise it as dangerous."
20. This direction was consistent with the law as stated by the House of
Lords in DPP v. Newbury [1976] UKHL 3; (1977) AC 500. In that case Lord Salmon said (at
506-507):
"The learned trial judge did not direct the jury that they
should acquit the
appellants unless they were satisfied beyond
reasonable doubt that the appellants had foreseen that they might
cause harm
to someone by pushing the piece of paving stone off the
parapet into the path of the approaching train. In my view the
learned
trial judge was quite right not to give such a direction to
the jury. The direction which he gave is completely in accordance
with established law, which, possibly with one exception to which I
shall presently refer, has never been challenged. In
Larkin (1942)
29 Cr App R 18, Humphreys J said (at 23): "Where the act which a
person is engaged in performing is unlawful, then if at the same
time
it is a dangerous act, that is, an act which is likely to
injure another person, and quite inadvertently the doer of the act
causes the death of that other person by that act, then he is guilty
of manslaughter."
I agree entirely with Lawton
LJ that that is an admirably clear
statement of the law which has been applied many times. It makes it
plain (a) that an
accused is guilty of manslaughter if it is proved
that he intentionally did an act which was unlawful and dangerous
and that
that act inadvertently caused death and (b) that it is
unnecessary to prove that the accused knew that the act was unlawful
or dangerous. This is one of the reasons why cases of manslaughter
vary so infinitely in their gravity. They may amount
to little more
than pure inadvertence and sometimes to little less than murder."
(See also Holzer [1968] VicRp 61; (1968) VR 481, where the statement of the law
does not appear to me to be materially different from the direction
which his Honour gave
in the present case).
It should also be added that no complaint about the learned
trial judge's direction was made at the
trial by counsel
representing the appellant." (at 422-23)
21. I cannot agree that the Court of Criminal Appeal's reference to
Holzer
can be interpreted as indicating approval of the Holzer ruling in its entirety
or at least with respect to the need for the
Crown to prove (as Holzer put it)
"an appreciable risk of really serious injury." I do not think that the New
South Wales Court was
addressing its mind at all to that latter question.
Unfortunately for our purposes, the judgement does not identify the
appellant's
complaints about the trial Judge's manslaughter direction. It
will be observed that the short passage quoted from the direction
simply uses
the word "dangerous," without elaboration. I think it likely, from the
reference to Newbury which followed, that the
question on appeal was whether
(as the trial Judge told the jury) "the test of dangerousness is objective."
That had been an issue
in some of the reported cases, including Newbury. It
was an issue raised in Holzer with respect to both manslaughter by an unlawful
and dangerous act and manslaughter by criminal negligence. (Indeed, so far as
the latter was concerned, the Victorian Full Court
in Nydam v. R. (1977) 430
VR subsequently disapproved Smith J's. obiter remarks that introduced a
subjective factor into the duty
of care element of that form of manslaughter.)
The statement of the law in Holzer to which their Honours were referring in
Coomer
was, I apprehend, the statement of Smith J rejecting the view, with
respect to manslaughter by an unlawful and dangerous act, "that
the accused
must be shown to have acted with realization of the extent of the risk which
his unlawful act was creating" (1968) VR
at 482). In other words, Smith J was
right when he held, as Larkin had before him and Newbury afterwards, that the
question whether
the act was dangerous had to be judged objectively.
22. The clearest indication, in my opinion, that the Court of Criminal Appeal
in Coomer was not giving its approval to the Holzer interpretation of the
word "dangerous" is the contrast between what Smith J
actually said about that
in Holzer and what the trial Judge said about it in Coomer. I have been
able, through the courtesy of Enderby
J, to read his summing up. What the
appeal Court quoted in its judgement was the whole of his Honour's direction
to the jury on
the law about manslaughter by an unlawful and dangerous act.
There was no explanation or embellishment of what "dangerous" means
apart from
an observation elsewhere in the summing up that "'dangerous', of course, I
think speaks for itself". An unembroidered
"dangerous" is, as the very
controversy testifies, critically different from Smith J's "exposing the
victim to an appreciable danger
of some really serious injury," and it is
inconceivable, to my mind, that the three members of the New South Wales Court
thought
otherwise. Besides, if the Court was proposing to depart from what
appears to have been a settled practice among New South Wales
Judges, one
would have expected it to say so directly, not just by way of a passing
reference to Holzer, and to have changed the
law only after an analysis of the
summing up and an examination of the reported cases including its own previous
decisions. I think
it clear, then, that the Court of Criminal Appeal was not
endorsing the Holzer interpretation of "dangerous" or criticizing the way
in
which the trial Judge had dealt with the matter in the case before it. It is
hardly too much in the circumstances to say that
its failure to criticize the
summing up in this respect may be taken as a silent affirmation of its
correctness.
23. Holzer was
considered by Burbury CJ in the Tasmanian case of Regina v.
McCallum [1969] TASStRp 11; (1969) Tas SR 73. That was a trial for manslaughter under the
Tasmanian Criminal Code, and the learned Chief Justice's ruling was given in
the course
of the trial. One of the questions was whether the accused killed
the victim by "an unlawful act" within the meaning of s.156(2)(c)
of the Code.
Burbury CJ held (at 80-1, 88) that, in explaining that provision, he should
direct the jury in accordance with the view
of the corresponding common law
offence taken by Smith J in Holzer, rather than follow Church; in other
words, the test was whether
the act of the accused was both unlawful and
dangerous in the sense that a reasonable man in the accused's situation would
have realized
that he was exposing the deceased to an appreciable danger of
really serious injury. See also Regina v. Rau [1972] TASStRp 8; (1972) Tas SR 59; and cf. the
observations of Windeyer J in the earlier case of The Queen v. Phillips [1971] TASStRp 9; (1971)
45 ALJR 467, at 479, where a distinction was drawn between s.156(2)(c) of the
Tasmanian Code and constructive manslaughter at common law. It
is
interesting to compare the position in Canada where s.205 of the Criminal Code
also provides for manslaughter by "an unlawful
act," though in a different
context from that found in the Australian codes which, incidentally, are not
identical among themselves
in this respect. The Canadian courts were faced
with the same need to impose some limitation on the very wide words of the
section
and they also opted for the requirement that the act be foreseeably
dangerous as well, but they have interpreted "dangerous" in accordance
with
the English decisions of Larkin and Church. See Regina v. Lelievre (1962) 32
DLR (2d) 723; Stuart, Canadian Criminal Law (1982), 202; Regina v. Adkins (CA
BC, 17 December 1987, unreported).
24. Holzer is referred to in
the Western Australian case of Ward v. R. (1972)
WAR 36. The appellant was convicted of manslaughter under the Criminal Code
of that State. The main issue at the trial appears to have
been the matter
of causation - whether the death of the victim could be said to have resulted
from any blow that the appellant
might have struck. The trial Judge had
declined to direct the jury on the defence of accident under s.23 of the
Code. The common
law position with respect to causation - the effect of some
other act supervening on the act of the accused prior to the victim's
death -
was discussed in the judgement of the Court of Criminal Appeal and Holzer was
one of the cases mentioned on that topic.
The meaning of the word "dangerous"
was not an issue in the appeal and was not referred to in the judgement. In
my opinion the passing
reference to Holzer cannot be interpreted as an
endorsement of Smith J's interpretation of the word in the context of
manslaughter
by an unlawful and dangerous act.
25. The High Court has considered, directly or indirectly, this aspect of
involuntary manslaughter
on two or three occasions.
26. There is a dictum of Starke J in Brennan v. The King [1936] HCA 24; (1936) 55 CLR 253,
at 260, that a person commits manslaughter "who brings about the death of
another by some unlawful act without any intention of
killing him or even of
hurting him." I think that statement of the law, in that unqualified fashion,
must be taken to represent a
view that has now been discarded in the common
law world generally.
27. In Mamote-Kulang of Tamagot v. The Queen [1964] HCA 21; (1964) 111 CLR 62 there appears
(at 79) Windeyer J's summary of the contrast the common law draws between
intended and unintended harm causing death
that has been quoted in the
reasons of the learned Chief Justice. Windeyer J here acknowledges
manslaughter by an unlawful and dangerous
act as a distinct category - and
having in mind the unenthusiastic attitude of some academic writers (even to
the point of stating
in one case - Stephen's Digest of the Criminal Law, 9th
ed. 1950, 222 - that constructive manslaughter had been virtually abolished
by
the House of Lords in Andrews v. Director of Public Prosecutions (1937) AC
576), I suppose that was not unimportant at the time
- but stops short of
defining it.
28. Pemble v. The Queen [1971] HCA 20; (1971) 124 CLR 107 is an important case on this
subject. The appellant was convicted of murder. The victim had been shot by
a rifle held by the appellant,
but the appellant said that he did not realize
that it was loaded. One of the grounds of appeal raised the sufficiency or
accuracy
of the trial Judge's direction on manslaughter by an unlawful and
dangerous act, but not all of the Judges found it necessary to
consider that
ground. The position was complicated because at the trial counsel practically
invited the jury to convict his client
of manslaughter.
29. Barwick CJ's judgement includes the following passage -
"The killing of a human being in the course of
committing
certain unlawful acts is manslaughter. What unlawful acts are
sufficient for this purpose are perhaps not yet
precisely and fully
defined or stated in decisions or in texts : but it may be taken
that so far the view is held that to
be relevantly unlawful the act
must be in breach of the criminal law. Also there are statements
that culpable or criminal
negligence resulting though by accident in
a killing will make that killing manslaughter. But I find no need
in this case
to consider that suggested basis for manslaughter. At
least the statement of Humphreys J in R. v. Larkin ((1943) 29
CAR
18, at p 23) is acceptable and presently appropriate: "Where
the act which a person is engaged in performing is unlawful, then
if
at the same time it is a dangerous act, that is, an act which is
likely to injure another person and quite inadvertently
the doer of
the act causes the death of that other person by that act, then he
is guilty of manslaughter."
No doubt
to point a loaded weapon at another is unlawful : it
constitutes an assault. See Kwaku Mensah v. The King ((1946) AC
83,
at p 91). But here, on the appellant's account, the rifle was
not pointed at the deceased nor did she see him before she was
shot.
Do these facts prevent the appellant's conduct being unlawful in the
relevant sense? For the purpose of considering
the quality of the
appellant's act of brandishing the cocked rifle with his finger on
the trigger, the rifle must be taken,
in my opinion, to be as it
was, namely, loaded. The appellant's assertion that he did not know
that fact will not in my
opinion be in any respect definitive. I
described the appellant's act as the "brandishing" of the gun. He
had accordingly
to the account of the facts I have detailed,
intended the deceased to see him holding the rifle in the position
he described;
he called out to attract her attention so that she
would see him with the rifle so held. Therefore, I think that his
act
can properly be described as brandishing the rifle at the moment
he stumbled. As I have said he did so intending to coerce her
mind
by the threat of violence towards the deceased which his menacing
act and posture necessarily involved.
In my
opinion, the act of the appellant in so brandishing the
rifle was an unlawful act of the kind which would make the
subsequent
killing manslaughter. In my opinion, at the least it
constituted an attempt to assault her and was obviously dangerous to
the deceased." (at 122-3)
That appears to me to be a clear acceptance by the Chief Justice of the
English position as stated in
Larkin and later refined in Church. McTiernan J
had this to say on the subject -
"The finding of a verdict of murder involves
in the
conclusion that the accused committed an act, resulting in the death
of the deceased, which was punishable under this
provision of the
Ordinance. It was therefore an unlawful act. Besides, it was a
dangerous act - this is obvious. The homicide
charged by the
indictment resulted from an act which was both unlawful and
dangerous. It appears, therefore, that the jury
could on the
indictment have found the accused guilty of manslaughter." (127-8)
I think that is equivocal on the degree of danger required. Menzies J said -
"It is no longer
sufficient to sustain a verdict of
manslaughter to establish merely that the homicide occurred in the
course of the commission
of an unlawful act : Andrews v. Director of
Public Prosecutions ((1937) AC 576); Reg. v. Church [1965] EWCA Crim 1; (1966) (1
QB 59, at pp 69,70); Reg. v. Holzer ((1968) VR 481). In the
last-mentioned case Smith J, having summarized the law established
by Andrews v. Director of Public Prosecutions ((1937) AC 576) when
referring to manslaughter by criminal negligence, by saying
((1968)
VR 481, at p 482) : "... the accused must be shown to have acted
not only in gross breach of a duty of care but
recklessly, in the
sense that he realized that he was creating an appreciable risk of
really serious bodily injury to another
or others and that
nevertheless he chose to run the risk." went on to say, in relation
to manslaughter by unlawful dangerous
act : "In relation to the
unlawful dangerous act doctrine, the unlawful act, it seems clear,
must consist of a breach of
the criminal law. The weight of
authority, as it appears to me, is against the view that the accused
must be shown to have
acted with realization of the extent of the
risk which his unlawful act was creating. Authorities differ as to
the degree
of danger which must be apparent in the act. The better
view, however, is I think that the circumstances must be such that a
reasonable man in the accused's position, performing the very act
which the accused performed, would have realized that he
was
exposing another or others to an appreciable risk of really serious
injury. The view which I have expressed, that realization
of the
risk created does not have to be proved against the accused, is a
factor in persuading me that the degree of apparent
danger must be
that which I have attempted to define, and that it is not
sufficient, as it was held to be in Reg. v. Church
((1966) 1 QB
59), to show there was a risk of some harm resulting, albeit not
serious harm. I may add that although, under
the doctrine of
manslaughter by unlawful dangerous act, mens rea is necessary, this
requirement, in my view, is satisfied
by proof of an intention to
commit the assault or other criminally unlawful act of which the
accused has been guilty. On
that aspect I would refer to Reg. v.
Lamb ((1967) 2 QB 981."
30. If an accused person is to be convicted of involuntary manslaughter
by
reason of a killing in the course of doing an unlawful act, the jury must,
upon a proper direction, find that the accused was
doing an unlawful act.
Unlawfulness cannot simply be assumed. In this case it is by no means certain
that, until a point had been
reached that the girl was frightened by what the
accused was doing, the accused committed an assault. In Russell on Crime,
12th
ed., vol. 1, p.652, it is said :
"The actus reus of assault thus consists in the expectation
of physical contact which the
offender creates in the mind of the
person whom he threatens." See too, State v. Barry ((1912) 124 Pac.
775). With respect, it seems to me that the learned judge was in
error in directing the jury that the killing occurred in the course
of doing an unlawful act likely to harm, rather than submitting that
matter to the decision of the jury with a proper direction
of law."
(at 133-5)
It is not clear whether Menzies J was intending to endorse in its entirety
the soundness of Smith J's direction
on manslaughter by an unlawful and
dangerous act. Any implication from the long quotation that he was is
clouded, perhaps, by the
bare reference afterwards to an unlawful act "likely
to harm." Windeyer J agreed in the conclusion of the Chief Justice and in the
order he proposed, and added a few words to emphasize his concurrence. I
infer that his Honour was expressing his agreement with
the Chief Justice's
reasons, including the endorsement of Larkin, but perhaps that is debatable.
Owen J reached his decision on a
ground that is not relevant to this appeal.
31. Boughey v. The Queen (1986) 161 CLR 10 was an appeal by a man convicted
of murder under the Tasmanian Code. The majority of the Court did not find
it necessary to consider
the question of death following "an unlawful act"
causing unintended bodily harm. Brennan J, who dissented, started with that
subject. His Honour noted that s.156(2)(c) of the Code, which declares that
homicide is culpable when it is caused by any unlawful
act, "states the
common law in conventional terms and is to be construed accordingly." He went
on to consider manslaughter by an
unlawful and dangerous act-
"It is not every criminal or tortious act which is an unlawful
act for the purposes of the common
law of manslaughter. In the
first place, where an act is unlawful simply by reason of the
negligence with which the act
is done, the doer of the act is not
guilty of manslaughter if death results from the act unless the
negligence amounts to
criminal negligence. As Lord Atkin said in
Andrews v. Director of Public Prosecutions ((1937) AC 576, at
p 585): 'There
is an obvious difference in the law of manslaughter
between doing an unlawful act and doing a lawful act with a degree
of
carelessness which the Legislature makes criminal. If it were
otherwise a man who killed another while driving without due care
and attention would ex necessitate commit manslaughter.'
Secondly, cases of negligent acts apart, not every act which is
criminal or tortious is an "unlawful" act for the purposes of the
common law of manslaughter. Since Field J in Reg. v. Franklin
((1883) 15 Cox CC 163, at p 165), expressed his "great abhorrence
of constructive crime" the trend of the common law has been against
the view
that manslaughter is committed merely by doing any unlawful
act which causes death: the act must be both unlawful and
dangerous.
Humphreys J stated the now established law when he said
in Larkin ((1942) 29 Cr App R 18, at p.23):
'Where the act which a person is engaged in performing is
unlawful, then if at the same time it is a dangerous
act, that is,
an act which is likely to injure another person, and quite
inadvertently the doer of the act causes the death
of that other
person by that act, then he is guilty of manslaughter.'
In Director of Public Prosecutions v. Newbury ((1977)
AC 500, at
pp 506-507, Lord Salmon, delivering the leading speech, cited this
passage with approval and went on to explain
what was meant by a
"dangerous act". He said:
'It (that is, the statement of the law by Humphreys J) makes it
plain:
a) that an accused is guilty of manslaughter if it is proved
that he intentionally did an act which was unlawful and dangerous
and that that act inadvertently caused death and (b) that it is
unnecessary to prove that the accused knew that the act was
unlawful
or dangerous. This is one of the reasons why cases of manslaughter
vary so infinitely in their gravity. They may
amount to little more
than pure inadvertence and sometimes to little less than murder.
I am sure that in Reg. v. Church
((1966) 1 QB 59 Edmund Davies
J, in giving the judgment of the court, did not intend to differ
from or qualify anything which
had been said in Rex v. Larkin
((1942) 29 Cr App R 18). Indeed he was restating the principle laid
down in that case by illustrating the sense in which the word
"dangerous" should
be understood. Edmund Davies J said ((1966) 1
QB, at p.70) "For such a verdict" (guilty of manslaughter)
"inexorably to
follow, the unlawful act must be such as all sober
and reasonable people would inevitably recognise must subject the
other
person to, at least, the risk of some harm resulting
therefrom, albeit not serious harm.'
The test is still the objective
test. In judging whether the act
was dangerous the test is not did the accused recognise that it was
dangerous but would
all sober and reasonable people recognise its
danger.'
The common law as laid down in Newbury ((1977) AC 500 is imported
into the Code by par.(c) of s.156(2). The Code offers no other
definition of the term 'unlawful'. However, there is at
least a
verbal difference between the statement of the principle by
Humphreys J in Larkin and the statement of the principle
by Edmund
Davies J (as he then was) in Church ((1966) 1 QB, at p.70),
though it is clear that both of their Lordships propound
an
objective test. Humphreys J speaks of the act as "an act which is
likely to injure another person" ((1942) 29 Cr App
R , at p.23);
Edmund Davies J describes the act as one which, objectively
considered, "must subject the other person to,
at least, the risk of
some harm ... albeit not serious harm". But what was said in Church
marked no new departure. Indeed
in Newbury neither Lord Salmon nor
Lord Edmund Davies ((1977) AC, at p.509, saw any novelty in
Church. It seems, then, that
in relation to manslaughter by
unlawful and dangerous act (criminal negligence apart), the test of
likelihood of injury to
another person is no higher than or
different from the test of subjecting another to a risk of bodily
harm. That is the
risk which, if foreseeable by sober and
reasonable people, makes an unlawful act dangerous so that death
which is caused
thereby is manslaughter. As Staughton J, speaking
for the Court of Appeal in Reg. v. Mitchell ((1983) 1 QB 741, at
pp 749-750
said: 'There need not be any intention to injure or
kill, or any foresight that injury or death would be caused,
provided
that all sober and responsible people would have recognised
the act to be dangerous.'
As par.(c) of s.156(2) should be
construed according to common law
principles, it requires that the fatal act be dangerous as well as
unlawful and the test
of the act's dangerous character should be
understood as Edmund Davies J stated it: an objective test of the
risk of harm
to some person." (at 35-7)
This is an endorsement in the clearest terms of the English rule as laid down
in Larkin and Church. It
is directly at variance, of course, with Burbury
CJ's preference for the Holzer test when adapting the common law notion of an
unlawful act to that expression in the Tasmanian Code.
32. The position in South Australia is not as clear as in New South Wales
and Victoria. What is implied by the word "dangerous" and what should be said
to the jury do not appear to have been considered
previously by a Court of
Criminal Appeal and this, no doubt, helps to explain the absence of a uniform
practice among the Judges
of the Court when directing a jury. I have managed,
with the assistance of the Clerk of Arraigns and others, to unearth a good
number
of jury charges on the subject delivered in the last 20 years. I
started about 1970 because, without any Full Court decision to
bind them, the
Judges might be thought on one view of the matter to have had from about that
time a choice between the common law
as explained in Holzer and the common law
as explained in Archbold's Criminal Pleading Evidence and Practice to which
Judges have
been accustomed to refer for, I should think, a very long time.
The 37th edition of Archbold, published in 1969, explained the kind of
unlawful act that amounts to manslaughter in a passage about "the
risk of some
harm" that is taken verbatim from Church. (So does the 43rd edition,
published in 1988.) The jury charges I examined
fall into four categories.
1. Three Judges have used the Holzer formula, "really serious
injury", or its equivalent, although
in one case it is not entirely
clear whether the Judge was relating it to this type of
manslaughter or to manslaughter
by a form of recklessness. Two
other Judges have qualified the harm by using the word "serious"
alone. This is hardly
orthodox Holzer - this Court has held that
"serious" and "really serious" are not the same thing: R. v. Perks
(1986) 41 SASR 335 - but obviously it is a higher test than Larkin
and Church require. Perhaps it was a compromise. At any rate, for
present
purposes it belongs in the Holzer category.
2. Six Judges have used the Church formula - for example, "bodily
injury,
not necessarily serious, but just some bodily injury".
3. Five Judges (including one who has also used the Church
formula)
have used the word "dangerous" without any embellishment
at all.
4. Four Judges (including one who has also used the
Church
formula) have explained the matter to the jury along the following
lines -
"The killing of a human being
in the course of committing an
unlawful act of a particular kind is manslaughter. The act in
question must be an act in
serious breach of the criminal law, and
it must be a dangerous one. A serious assault on another person
would be an unlawful
act for this purpose. An assault is an
intended and unlawful use of force to another person without his
consent. Whether
the act alleged is a dangerous act is a matter
for the jury's judgement. You would be entitled to hold that an
act likely
to cause serious injury to another person would be a
dangerous act."
The last sentence of this formula points to "serious" as
a possible
qualitative test, perhaps, without suggesting that it is mandatory. It could
be just describing the obvious situation
in a particular trial. So it would
seem better to regard category 4 as a variant of category 3. These two
categories, then, treat
"dangerous" as an ordinary English word that the jury
is able to interpret for itself. That would seem to follow the practice
disclosed
in the New South Wales cases. It conforms in substance, in my
opinion, with the English practice. I say that because, whatever
precise
shade of meaning the word "dangerous", without more, may have for different
people, plainly it does not necessarily indicate
"really serious harm"
(Holzer) and it can hardly imply anything less than "some harm..., albeit not
serious harm" (Church).
33.
On this analysis there were 13 Judges who, broadly speaking, followed
the English interpretion of the common law, and 4, possibly
5, Judges who
followed the Victorian interpretation.
34. One might observe that the diversity in local practice is not surprising.
I have already commented on the lack of any guidance on the topic from our
Full Court. I suppose that, faced with conflicting decisions
elsewhere,
there might be an inclination sometimes to take the course that will not on
any view invalidate a long and expensive
trial, but whether that has in fact
had an influence upon the choice of the Holzer formula in any instance I am
unable to say.
35. In my opinion, this Court should affirm the English interpretation of
"dangerous" as the law in South Australia. It has been
applied, in one form
or another, by a large majority of the Judges of this Court who have had to
deal with the matter in the 20 years
or so since Holzer provided a competitor.
The English rule was laid down in Larkin 50 years ago and in 1977 it was
affirmed by the
House of Lords. It must have been used in countless English
trials. In 1980 it was approved by the Privy Council for Jamaica, a
common
law country. (As to the significance in this Court now of the House of Lords
and Privy Council decisions, see Parker v. South
Australian Housing Trust
(1986) 41 SASR 493, per King CJ at 516-7, and Cook v. Cook [1986] HCA 73; (1986) 162 CLR
376, at 389-390.) It is the law throughout Canada. In Australia it has been
endorsed by two, probably three, of the four High Court
Judges who have said
anything about it; the position of the fourth is doubtful. It has been
applied in New South Wales without,
so far as appears, any hint of dissent.
The only exception is Victoria. We are now used to the notion that the common
law world
contains more than one common law, but I do not think we should in
this State depart from what evidently is the only interpretation
of the
common law rule applied outside Australia, and the interpretation applied by
most trial Judges in the common law States within
Australia, without good
reason.
36. The arguments put forward for applying the Holzer test here are, in my
opinion, unpersuasive.
It is true that the law on the subject was long
unsettled, and there were conflicting and sometimes harsh decisions that
called
for judicial amelioration and uniformity of practice. Larkin performed
that task. The point should not be regarded now as being
in a state of flux
and requiring redefinition. Given the position in New South Wales, it would
not produce a uniform common law
on the matter in Australia for us to adopt
the Victorian interpretation. Opinions will differ about the practical and
moral justification
for different forms of constructive crime. We are not
dealing here with constructive murder. Manslaughter covers a miscellany of
homicide offences, and the culpability of offenders differs in degree very
widely. Given the seriousness of killing a person by
a culpable act of some
sort, be it a relatively minor one, it does not appear to me incongruous or
immoral or out of step with society's
standards to include within the crime of
manslaughter, triable by a judge and jury, manslaughter by an unlawful and
dangerous act
as interpreted in Larkin and Church. I see no reason for
altering the meaning of the word "dangerous" as explained in those cases.
37. While I have expressed the view that the category 3 and category 4 forms
of direction are in substantial compliance with the
English test - and I have
used the category 4 formula on many occasions -, I think on reflection that
it would be better to give
the jury more guidance and to tell them in so many
words that the unlawful act must involve the risk of some harm, though not
necessarily
serious harm. (There is a question whether the direction should
speak of "likelihood" (Larkin) or "risk" (Church). As I have said,
I do not
think that there is any practical difference between them. For their
interrelation in this context, see Boughey at 36.
"Risk" is preferred by
Archbold, and so has probably been used by most Judges who have set out to
follow the English interpretation.)
38. Before leaving the subject I would add a word about the utility of having
a crime of manslaughter by an unlawful and dangerous
act at all. Some text
writers, particularly those who prefer the Holzer interpretation, regard this
kind of manslaughter as virtually
duplicating manslaughter by criminal
negligence and so would like to see it abolished as serving no useful purpose.
My experience
as a trial judge has led me to a different view. Whichever
interpretation of the "dangerous" element is correct, there are two good
practical reasons, I think, for retaining manslaughter by an unlawful and
dangerous act. In the first place, while the customary
direction for criminal
negligence is suitable enough (leaving aside its suggestion of circularity)
for the defendant who, say, carelessly
shoots at a man thinking that he is a
kangaroo, or who does some other blameworthy but unintended act, there is
something incongruous,
to my mind, about talking to a jury in terms of
negligence when describing the defendant who deliberately shoots towards
another
but intending and confidently (though erroneously, as it happens)
expecting to miss - by no means a rare defence, expressed or open,
in these
cases. People do not usually describe that as careless or negligent
behaviour; they call it dangerous. In short, if the act in question is
unlawful
it is often appropriate in a particular trial to put one of these two
forms of manslaughter to the jury rather than the other. Secondly,
while the
jury's evaluation of the word "dangerous" undoubtedly involves a question of
degree and therefore cannot be precise, the
legal test for criminal negligence
is imprecise almost to the point of vagueness. The boundaries of the relevant
standard of care
are not easy to explain, although there may not be any great
problem for the jury in practice. So, however the word "dangerous"
is to be
defined, I should be sorry to see manslaughter by an unlawful and dangerous
act disappear.
39. The direction of the learned
trial Judge was more or less along the
lines of the category 4 formula without the final sentence. It was, in my
opinion, an adequate
direction in the circumstances. If I am wrong about that
I would, for the reasons that the Chief Justice has given, apply the proviso.
The appellant's conviction for manslaughter, whether by an unlawful and
dangerous act or by the intentional infliction of harm, was
inevitable.
40. I agree with what the Chief Justice has written about the self-defence
submission.
41. In my opinion, the appeal
should be dismissed.
JUDGE3
MATHESON J It is obvious that much can be said, and has been said, for each
of the two more frequent
explanations given to juries as to the meaning of
"dangerous act" in what is called "manslaughter by unlawful and dangerous
act".
Notwithstanding what I understand to be the invariable practice of
judges of the Victorian Supreme Court and the attitude of law
reformers who
recommend the abolition of this form of manslaughter any way, (see, for
example the Fourth Report of the Criminal Law
and Penal Methods Reform
Committee of South Australia p.54 and Discussion Paper No. 13 of the Law
Reform Commission of Victoria pp.65-68),
I favour following the explanation
expounded by Edmund-Davies J (as he then was), in delivering the judgment of
the Court of Criminal
Appeal in R. v. Church [1965] EWCA Crim 1; (1966) 1 QB 59 at p 70,
subsequently applied in the House of Lords in D.PP. v. Newbury [1976] UKHL 3; (1977) AC 500.
I have been assisted in reaching that conclusion in this case by the
consideration that if the jury on the facts was satisfied that
the appellant
punched the deceased on the face sufficiently hard to knock him to the ground
and thereby sustain fatal injuries, which
was the Crown case, he should be
convicted of manslaughter. On a direction to the jury based on R. v. Holzer
[1968] VicRp 61; (1968) VR 481 at p 482, the appellant probably would not be convicted. On a
direction based on Church, I should have thought a jury was bound
to convict.
2. In Parker v. South Australian Housing Trust (1986) 41 SASR 493 at p 516,
King CJ, after stating that decisions of the House of Lords are not
technically binding upon any Australian court, said:
" ... a decision of the House of Lords will ordinarily be
followed in this Court if there is no contrary decision of the
High
Court. The reason is not, as has sometimes been suggested, a
vestigial survival of imperial authority. It is to be
found in the
combined effect of two factors. The first factor is that the House
of Lords is the ultimate court of appeal
of a great common law
country and therefore shares the prestige attaching to other
ultimate courts such as the Supreme Court
of the United States and
the Supreme Court of Canada. The second factor is that which gives
to the House of Lords its unique
persuasive authority; it is the
position which it occupies as the ultimate court of appeal of the
country in which the common
law had its genesis and experienced its
formative development."
3. Those remarks were made before the decision of the High Court
in Cook v.
Cook [1986] HCA 73; (1986) 162 CLR 376. In that case, as one of the members of the Full
Court, I said that I was constrained to accept the reasoning of a majority
opinion
of the English Court of Appeal on a point not relevant to this appeal
in preference to what I thought were only dicta of Latham CJ
and Dixon J, and
I referred to Australian decisions which had hitherto supported such an
approach. At p.390 Mason, Wilson, Deane
and Dawson JJ said:
" Whatever may have been the justification for such statements
in times when the Judicial Committee of
the Privy Council was the
ultimate court of appeal or one of the ultimate courts of appeal for
this country, those statements
should no longer be seen as binding
upon Australian courts. The history of this country and of the
common law makes it inevitable
and desirable that the courts of this
country will continue to obtain assistance and guidance from the
learning and reasoning
of United Kingdom courts just as Australian
courts benefit from the learning and reasoning of other great common
law courts.
Subject, perhaps, to the special position of decisions
of the House of Lords given in the period in which appeals lay from
this country to the Privy Council, the precedents of other legal
systems are not binding and are useful only to the degree
of the
persuasiveness of their reasoning."
4. I observe that the decision of the House of Lords in Newbury was given in
the
period in which appeals lay from this country to the Privy Council.
Although what the High Court said in Cook may qualify the earlier
observations
of King CJ, I think that sitting as a member of a State Full Court one is
still entitled to take the view that a decision
of the House of Lords is very
persuasive, particularly where it has the support of at least two members of
the High Court, as Cox
J has pointed out, where it has been followed by the
New South Wales Court of Criminal Appeal, and where there is no conflicting
decision of the High Court or of the Full Court in this State.
5. I agree with Cox J that the English explanation has been applied
in New
South Wales without any hint of dissent. To the authorities referred to by
him, I would add a reference to an article on
the topic in Vol. 9 Crim LJ
(1985) where the learned author says at p.114:
" Although there are no reported decisions precisely
on the
point it would appear that in New South Wales and South
Australia, the courts are generally applying the English
formulation of 'unlawful and dangerous act' manslaughter."
6. In a footnote to that, the learned author says:
" This was
the information provided to the writer by senior
counsel in both states. In addition, for New South Wales, see R. v.
Croft
(1981) 1 NSWLR 126 at 138 ...; R. v. Jennings, Unreported
Ct Cr App, Sydney 29 October, 1976 and for South Australia, see R.
v. Martin (1983) 32 SASR 419."
7. I do not think that the case of Martin is in any way relevantly helpful,
but I have been sent a copy of the decision in R. v.
Jennings, a unanimous
decision of Street CJ, Lee and Maxwell JJ. There the learned trial Judge gave
a direction which suggested that
the jury could convict of manslaughter
"without an intention on the part of the accused to do the unlawful act". The
judgments refer
with apparent approval to Newbury. As an authority, it is not
quite as clear as it might be in favour of the English explanation,
focusing
as it does on the need for the prosecution to prove the intentional commission
of an unlawful act, rather than on the meaning
of the word "dangerous", but
their Honours certainly do not espouse the Holzer explanation.
8. There are currently two loose-leaf
books on criminal law published in New
South Wales. The Law Book Co. Limited publish Watson and Purnell, "Criminal
Law in New South
Wales", Release 23 of which dated April 1990, contains the
following at p.64:
" Where the act which a person is engaged in performing
is
unlawful, then if at the same time it is a dangerous act, that is,
an act which is likely to injure another person, and
quite
inadvertently the doer of the act causes the death of that other
person by that act, then he is guilty of manslaughter
(R v Larkin
(1943) KB. See also R v Watson (1989) 2 All ER 865.)
It is unnecessary to prove that the accused intended any harm to
the deceased, or that he realised that his act was dangerous
or
unlawful. The test of dangerousness is objective; the test is not
did the accused recognise that it was dangerous but
'would all sober
and reasonable people recognise its danger'.
The only intention required to be proved is the intention
to
commit the unlawful act.
An act is 'dangerous' if it subjects a person to 'at least the
risk of some harm resulting
therefrom, albeit not serious harm'.
(Director of Public Prosecutions v Newbury [1976] UKHL 3; (1977) AC 500. See also
R v Mitchell (1983) 2 All ER 427; R v Coomer (1989) 40 A Crim R
417.)." (My underlining.)
9. Butterworths publish "Criminal Practice and Procedure NSW" by P. A.
Johnson and R. N. Howie, QC, Service 51 of
which dated December, 1990,
contains this passage:
" Manslaughter is committed where the accused causes the
death of a person
by an act which is both unlawful and dangerous.
It is not necessary that the accused was aware that the act was
dangerous,
provided that a reasonable person would have appreciated
that the act was one, which in the circumstances, exposed others to
'at least the risk of some harm resulting therefrom albeit not
serious harm': R v Church [1965] EWCA Crim 1; (1966) 1 QB 59, but cf R v Holzer [1968] VicRp 61; (1968)
VR 481 where it was held that the risk must be of 'really serious
injury'. The objective test for dangerousness was stressed in DPP
v
Newbury [1976] UKHL 3; (1977) AC 500 and confirmed in R v Coomer (1989) 40 A Crim R
417.
The only intent required is an intent to do the act which is
unlawful and dangerous: DPP v Newbury [1976] UKHL 3; (1977) AC 500." (My
underlining.)
10. There are three text books on criminal law that might actually be called
Australian text books as opposed
to text books relating to the law of a
particular state. Howard's "Criminal Law" 5th Edn. contains a reference by
the learned authors
to R. v. Holzer [1968] VicRp 61; (1968) VR 481 at 482, and they state:
" This has now been accepted by the Victorian Court of
Criminal Appeal as a correct statement of
the law (Wills [1983] VicRp 80; (1983) 2
VR 201. The objective test takes account of the situation in
which D is placed but this does not mean that a morbid and clouded
reasoning capacity is to be attributed to the reasonable person in
D's position: ibid., 214 per Fullagar J). Again the unlawful
and
dangerous act rule seems superfluous, for it is difficult to
distinguish from manslaughter by criminal negligence (Compare
Windsor [1982] VicRp 9; (1982) VR 89 at 96. It may be argued that the Nydam test
of criminal negligence requires a 'high risk' of causing death or
grievous bodily
harm whereas the Holzer test of dangerousness
requires an 'appreciable risk'. This however is a fine and
controversial distinction."
11. There is no suggestion, however, that the Holzer explanation is the law
in other states.
12. Next, I refer to Gillies "Criminal
Law" 2nd Edn. at p.607. After
referring to the decision of the House of Lords in DPP v. Newbury and Jones
(1977) AC 5), the learned author says:
" The doctrine as evolved by the English courts is a simple
one. It is to be stressed that any
unlawful act which is at the same
time dangerous in the sense outlined, and which causes death,
incriminates D in manslaughter.
... The English conception of
constructive manslaughter has been approved in Australia (See Pemble
v. R. [1971] HCA 20; (1971) 124 CLR 107 at 122, 123; Andrews (1979) 2 A Crim R
182 at 198 (a decision of the Court of Criminal Appeal in New South
Wales)), with the exception of the Supreme Court of Victoria."
(My
underlining.)
13. Finally I refer to Brett, Waller and Williams "Criminal Law Text and
Cases", 6th Edn. (1989) at pp.252-261.
The learned authors refer to the
English cases and to Holzer, but do not express a view as to what the law is
in states other than
Victoria, or, for that matter, any preference for Holzer.
14. I appreciate that their Lordships in Newbury have said that there
is
really no difference between the words used by Humphreys J in Larkin (1942) 29
Cr App R 18 and the words by Edmund-Davies J in Church, but for myself I
prefer the words used by Edmund-Davies J I observe that they were obviously
made with the intent of restating what had been said some twenty years earlier
by Humphreys J, and that they have apparently been
followed in England ever
since. The Church explanation has been the explanation given in Archbold's
Criminal Pleading Evidence and
Practice since the first edition published
after the decision, namely the 36th Edn. which was published in 1966, and is
still the
explanation given in the 43rd Edn. published in 1988. The judgment
of Barwick CJ in Pemble was of course delivered before Church.
It would seem
that Brennan J in Boughey ultimately favoured the explanation of Edmund-Davies
J (see p.37).
15. Both King CJ and
Cox J have set out the learned trial Judge's direction
to the jury on manslaughter by unlawful and dangerous act. I do not think
it
was a model direction, but rejecting the Holzer explanation as I would, I
agree with Cox J that it was just adequate. However,
I am bound to say that
whether one follows the Holzer or Church, I consider an explanation of what is
meant by "a dangerous act"
should be given in most, if not all, cases. I
agree that if there was a misdirection this is a case for the application of
the proviso
to s.353.
16. I agree with what King CJ has said about causing death by an unlawful act
performed with the intention of inflicting
harm.
17. I would therefore dismiss the appeal.
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