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[1961] HCA 42; (1961) 108 CLR 56

(31 JULY 1961);


1961, FEBRUARY 17, 20;

SYDNEY, 1961, JULY 31.

CWLR (1961) 19


CHILDREN AND WOMEN LAW: Children and Neighbourhood – Playground injury – Bodily injury occasioned by an air-gun shot by a youth towards 4 children playing noisily and refusing to desist from so doing after warning – Whether defence that there was no intention to cause bodily harm availed accused person









CRIMINAL LAW: – Unlawfully wounding a girl – Proper direction to be given to jury

PRACTICE AND PROCEDURE: – Special Leave to appeal – Relevant considerations for granting same




July 31.

The following written judgments were delivered:-


This is an application for special leave to appeal from an order of the Full Court of the Supreme Court of Tasmania sitting as a Court of Criminal Appeal. The order set aside a verdict of acquittal for misdirection or non-direction and directed a new trial upon one count in an indictment. In Tasmania the Attorney-General may appeal on a question of law against an acquittal, if he obtains the leave of the Court of Criminal Appeal to do so or the certificate of the court at the trial that it is a fit case for appeal: s.

The condition was fulfilled: for the Court of Criminal Appeal gave leave before allowing the appeal. The point of law concerned the correctness of a direction to the jury as to the place occupied by intention on the part of the accused on a charge of unlawful wounding. The question turns on the provisions of the Tasmanian Criminal Code which appears to yield no ready or clear answer. In a letter written by Sir Frederick Pollock to O. W. Holmes about the time when the archetype of this Code had been brought forward by its author, Sir James Fitzjames Stephen, Pollock says that he admits “that the consideration of case-law as a pure science tends to make one look on codes as a kind of brutal interference with the natural process of legal reason”

(Holmes-Pollock Letters i: p. 7, 21 July 1877).

Surprised as one may be at the use even at that date of the words “pure science” with reference to case-law, an one examination of the Code, in an attempt to answer what might have been supposed of the simplest problems of the criminal law, leaves no doubt that little help can be found in any natural process of legal reason.

The difficulty may lie in the use in the introductory part of the Code of wide abstract statements of principle about criminal responsibility framed rather to satisfy the analytical conscience of an Austinian jurist than to tell a judge at a criminal trial what he ought to do. It may lie in that because it is followed by many chapters defining particular crimes more often than not in terms adopted long before as occasion demanded by a legislature introducing a new crime or crimes into a common law system, and prone to the use of definitions of a somewhat practical or earthy kind. In the Code these abstractions of doctrine are not the generalized deductions from the particular instances that follow: they come ab extra and speak upon the footing that they will restrain the operation of what follows. But whatever be the explanation a not very serious and somewhat commonplace incident has resulted in very learned and full examinations of the Code by the three judges of the Court of Criminal Appeal and an application to this Court for special leave to appeal therefrom which has caused us no little difficulty.

The incident grew out of some childish warfare between three young children and a youth of seventeen years of age. It was a Sunday morning and the scene was a vacant allotment in Campbell Street, Hobart. On the allotment which was used as a scrap yard there were some galvanized iron tanks. Four children from six to eight years of age, two of them boys and two of them girls, were there banging the tanks and making a great deal of noise. The youth, Kevin Leslie Vallance by name, the now applicant, lived in a house next the allotment and happened to be alone inside. He came to the fence and ordered the children to go away. In response they began to throw stones at him. He seems to have replied by throwing stones at them.

At length he went inside and returned with an air-gun belonging to his father, a somewhat heavy air-gun. This he fired over the fence into the allotment. A pellet or slug hit one of the girls: it penetrated her breast about half an inch and meeting a rib glanced along it for perhaps two or three inches. The child was taken to hospital but the wound did not prove serious. For this the youth Vallance was tried before Green J. on an indictment containing two counts: he was acquitted. The first count was framed under s. 170 which requires an intent to do, among other alternatives, actual bodily harm. The Crown did not seek to impeach his acquittal upon that count. But the second count was under s. 172 which provides that any person who unlawfully wounds or causes grievous bodily harm to any person by any means whatever is guilty of a crime. The offence charged under this section was unlawfully wounding the girl. Upon this count the learned judge directed the jury that they must be satisfied that in firing the rifle the youth’s intention was to wound the girl. He reminded them that it was not a crime if the event occurred by chance, a reference to s. 13 (1) of the Code which he had read to the jury. Vallance gave evidence on his own behalf. The general effect of what he said was that he did not fire at the girl or towards her but towards the ground in her general direction; he did it to frighten her.

Section 172 is derived from 24 & 25 Vict. c. 100, s. 20, of the United Kingdom which however required that the wounding should be done “unlawfully and maliciously”.

This meant that there must be an intention, but the intention is not necessarily the wounding of the particular man (Reg. v. Latimer (1886) 17 QBD 359 ): “if the harm done be of the kind intended, this is sufficient; even though it is produced in some degree or in some manner or upon some subject that was not intended”. Kenny, Outlines of Criminal Law ch. x: “. . . in law it is clear that the word ‘intention’ like the word ‘malice’ covers all consequences whatever which the doer of an act foresees as likely to result from it, whether he does the act with an actual desire of producing them or only in recklessness as to whether they ensue or not”.

The removal of the word “maliciously” from the provision when it was redrafted for the Code was natural enough. Few words have caused more trouble both at common law and in the interpretation of statutes where it occurs; and its use would be foreign to the technique of a codifier. But is s. 172 to be read in the Code as doing no more by way of defining the crime than stating the external elements necessary to form the crime, that is to say the wounding or the causing of grievous bodily harm, and adding the requirement of unlawfulness relying upon the introductory Part or so much of it as deals with criminal responsibility to define and import the elements which go to intention or other state of mind necessary or sufficient completely to constitute the crime? That seems to be the primary question. (at p59)

  1. In the case of s. 172 I think that the answer should be yes. This answer represents, I believe, the plan upon which the Code is conceived and, to some but perhaps to no great extent, drafted. The plan was to provide for specific crimes but to treat the complete definition of them as finally governed or controlled by Ch. IV (criminal responsibility). But a study of the Code has made it apparent that the plan has not been, indeed from the nature of the thing it could not be, uniformly carried out. In crimes involving fraud, personation, in most sexual offences, in bigamy, receiving stolen property and many traditional offences based on statute, common sense rather suggests that guilt will depend on definitions that in point of fact will fall outside the philosophy of s. 13. But accepting the view that the question of what mental element is necessary or will suffice is not covered by the language of s. 172 it is necessary to go now to s. 13. Sub-section (1) says that no person shall be criminally responsible for an act unless it is voluntary and intentional; nor, except as hereinafter expressly provided, for an event which occurs by chance. In s. 1 the expression “criminally responsible” is defined to mean liable to punishment as for an offence and the term “criminal responsibility” means liability to punishment as for an offence. Section 13 (1) is expressed as a wide abstract generalization which of course ignores the elements of all or any specific crimes into the definition of which so to speak it must go. To turn over the sections of the Code is enough to show how large a number of crimes there are to the elements of which s. 13 (1) can have little or nothing to say. It is expressed in general but negative terms and in laying down negative propositions, from its very nature, the sub-section is saying something that may matter in the case of one crime and cannot matter in the case of another because of its definition and may conceivably matter in still a third case with respect to one only of a number of ingredients constituting the crime. (at p60)
  2. When therefore s. 13 (1) says that no person shall be criminally responsible, that is liable to punishment as for an offence, for an act unless it is voluntary and intentional it appears to me to be saying negatively that there shall be no guilt unless all acts of the accused forming the ingredients of the crime are voluntary and intentional. It is the punishable act or acts to which the words appear to me to refer. In the case of unlawful wounding the punishable act is the wounding. In s. 172 the words “by any means” occur: they have an historical explanation but little present significance. However, they will serve to make the point. It is not enough to say the “means” used, or perhaps one should say the use of the means, under s. 13 (1) must be voluntary and intentional and that the wounding need not. The wounding is the crime, the punishable act, and it is the wounding which must be voluntary and intentional. I regret that I find myself unable to avoid this reading of the words of s. 13 (1) because I find that there is such a weight of judicial opinion to the contrary. In its application to s. 172 it means that the wounding must be intentional. But in s. 13 (1) I do not read the word “intentional” as bearing a meaning which requires that the end must be positively desired.  I take it in the sense explained by Sir Courtney Kenny, an explanation he gave when he published his book in 1902. He contrasts it with the more ordinary use of the word which excludes a result that a man does not desire but foresees as likely, one the risk of which he runs possibly with regret. The requirement of voluntariness I presume may be ignored: it relates to forms of actual or presumed coercion or duress and is not relevant. But the view I have expressed means that the direction by Green J. which is complained of was too favourable to Vallance because the jury were not informed that it was enough if in firing the air-gun he fired towards the girl foreseeing or adverting to the likelihood of the pellet wounding her but heedless of such a consequence. Indeed a contrary direction was given. The view I have expressed as to the insufficiency or incorrectness of the direction does not widely differ in result from that taken in the Court of Criminal Appeal although that view was reached there in an entirely different way, namely by means of the later words of s. 13 (1), viz. “nor . . . for an event which occurs by chance.” I think that this somewhat difficult phrase covers events which the person who might otherwise be criminally responsible neither intended nor foresaw as possible results of his conduct: they must too be fortuitous in the sense that no one would reasonably expect them to occur as a consequence of that conduct. I say so much with hesitation because I do not think it wise to go further in expounding the meaning and operation of this very elusive and difficult sub-section when it combines with a specific offence defined in terms which neglect or ignore the possibility of some mental element forming an ingredient in the offence. I have found no light in sub-s. (3) and I have abstained from discussing it. Indeed I think that it is only by specific solutions of particular difficulties raised by the precise facts of given cases that the operation of such provisions as s. 13 can be worked out judicially. This may mean a relapse into the methods of case-law to which Pollock referred and which doubtless Stephen hoped to supersede. If so all that can be said is that Stephen did not draw s. 13 or include such a provision in his draft. The question remains what ought to be done about this case?  Sitting as a Court of Criminal Appeal I think that I should have let the verdict of acquittal stand on the ground that the departure in the learned judge’s direction to the jury from what I considered the true position was not on the whole case a probable explanation of the verdict of the jury. I confess that an appeal under s. 401 by the Crown against an acquittal strikes me as standing on a different footing from an appeal against conviction. It is evident that the policy which guided the legislature was rather concern in the operation of the criminal law than of correcting verdicts of acquittal to which the Crown objected. It seems inappropriate that Vallance  should now be tried again.  I notice that the grounds of appeal assigned by the Crown do not cover the exact direction which in the Full Court was considered to have been required. However to grant special leave to appeal only because we think it would have been better to refuse a new trial on discretionary grounds is hardly in accordance with the principles by which this Court is guided in exercising its jurisdiction to intervene in special cases. After all the Crown is under no duty to proceed any further in this case, having regard particularly to the view the jury seem to have taken of the conduct of Vallance It follows that the order of this Court should be simply application for special leave to appeal dismissed. (at p62)




The applicant was acquitted of a crime under s. 172 of the Criminal Code, enacted by the Criminal Code Act 1924 of Tasmania, which provides: “Any person who unlawfully wounds or causes grievous bodily harm to any person by any means whatever is guilty of a crime”. The conviction was of unlawfully wounding one Pauline Ann Latham, a girl seven years of age. To an extent the facts were undisputed. The applicant, a youth of seventeen years, picked up an air-gun which he knew to be loaded, aimed it in the general direction of the girl, and pulled the trigger with the intention of discharging the gun. A pellet from the gun struck the girl and pierced her flesh. But the applicant, who gave evidence, denied that he fired at the girl, and denied that he had any intention of causing her to be hit. His story was that he aimed at the ground close to her, intending only to frighten her. (at p62)

  1. In the charge of the learned trial judge to the jury there were only two directions which need be mentioned here. First, his Honour told the jury that to be guilty of the offence of unlawfully wounding, the applicant must have intended not only to fire the gun but to wound the girl; and this his Honour explained as meaning that he must have foreseen the possibility of the girl’s being wounded and desired that she should be, adding that the jury might, if they thought fit, infer the intention from what a reasonable man might expect as a reasonable and probable consequence of the firing of the gun. Secondly, the judge told the jury that no person was criminally responsible for an event occurring by chance ; but of this his Honour offered no explanation. (at p63)
  2. The jury returned a verdict of not guilty. On an application by the Attorney-General under s. 401 (2) of the Code, however, the Court of Criminal Appeal ordered a new trial, being of opinion that the first of the directions abovementioned was erroneous in law and was, notwithstanding the second direction, unduly favourable to the applicant. From the order so made, the applicant seeks special leave to appeal to this Court. The question involved depends upon the meaning to be given to certain provisions of the Code, particularly the provision in s. 172 which makes the unlawful wounding of a person a crime, and a provision in s. 13 (1) that “No person shall be criminally responsible for an act, unless it is voluntary and intentional; nor, except as hereinafter provided, for an event which occurs by chance”. It is a question to be decided with due regard to s. 2 of the Act, enacting the Code as “the law of this State with respect to the several matters therein dealt with”. It must be considered as a problem in statutory construction, and not otherwise. (at p63)
  3. The first step is to construe the expression “any person who unlawfully wounds”. The presence of the word “unlawfully” may be accounted for by the necessity of allowing for cases, such as those of surgical operations the performance of which is lawful as s. 51 of the Code provides, in which the circumstances supply a legal justification for what is done. (The trial judge was in error in telling the jury that the wounding of the girl was unlawful because the firing of a gun in the city was contrary to a provision of the Police Offences Act.) But the expression “unlawfully wounds”, read in its setting in a statute defining criminal offences, seems to me to connote a mental element attending the doing of an act which causes a wound. The Oxford English Dictionary reflects this mental element when it defines the verb “wound” as meaning “to injure intentionally in such a way as to cut or tear the flesh”. The word “intentionally” is one of variable meaning, and for that reason the dictionary does not solve the problem before us ; but the point which the definition brings out is that to “wound” a person is not simply to do an act which causes an injury of a particular kind : it is to do an act which causes such an injury with a state of mind extending to the injury as well as to the act. Such a state of mind must include a foreseeing of the injury as a possible consequence of the act, and it must include an assent to the causing of the injury by means of the act. The notion which the word conveys is not satisfied, I think, by the causing of an injury by mere negligence falling short of recklessness. It requires such an assent that the injury was within the contemplation and choice of the doer of the act. But there is, I think, nothing in the word to confine the notion to the causing of the injury with an actual desire to cause it. To speak of a desire as forming a necessary element in an intention may be accurate enough; for even where the result is regretted it may be desired on a balance of considerations, and so may be intended. But I am not at the moment defining intention. What is in question is the meaning of “unlawfully wounds”; and in that expression, though I do find a limitation relating to the mental attitude of the doer of a causative act, it is not a limitation which requires that the act must be done with an actual desire to cause an injury. (at p64)
  4. Then, is there any other provision of the Code which makes such a desire a sine qua non of the crime of unlawfully wounding ? None is to be found unless it be in s. 13 (1), the provision upon which the learned trial judge founded his direction. The sub-section contains two limbs. I would put aside the first, the provision that no person shall be criminally responsible for an act unless it be voluntary and intentional, because I interpret the word “act” as the learned judges of the Court of Criminal Appeal interpreted it. They understood it to refer to the physical action of the person charged, and so not to extend, in its application to s. 172, to all that is comprised in the notion of wounding. In my opinion, s. 13 (1) is framed with a recognition that there is a distinction to be drawn between, on the one hand, a bodily action performed by a person, entailing criminal responsibility either per se or in virtue of some quality of the action, some consequence caused by it (cf. s. 153 (2)), some accompanying intent or state of mind (cf. s. 12), and, on the other hand, something eventuating in consequence of the action and attracting a criminal responsibility which the action otherwise would not have produced.  When s. 13 (1) speaks of an act being voluntary and intentional, before turning to the event and speaking of that as not occurring by chance, it seems to me to be addressing itself only to the question whether a person charged acted of his own free will and by decision, before asking whether that which eventuated from his act was a merely chance result. The first limb of the sub-section I regard, therefore, as having no bearing on the present discussion, there being no suggestion on the part of the applicant that he fired the gun either involuntarily or unintentionally. All he sets up, in effect, is that the injury to the girl was no part of that which he wanted to bring about by firing the gun. (at p65)
  5. Then as to the second limb of s. 13 (1), the provision that no person shall be criminally responsible for an event which occurs by chance. Does that provision justify a direction that a person is not guilty of unlawfully wounding unless he not only foresaw that his act might cause hurt to the person who was injured but desired that it should do so? The expression “an event which occurs by chance” no doubt has its difficulties. In the Court of Criminal Appeal the view was expressed by all their Honours that in construing the expression a choice had to be made between a subjective and an objective reference, so that the question (to express it in my own words) was whether, on the one hand, the notion expressed by the words “by chance” excludes only an event which the person charged foresaw as a possible result of what he was about to do, or whether, on the other hand, it excludes only such events as an ordinary person in the like circumstances ought reasonably to have foreseen as such a result ; and the choice made by all their Honours was for the subjective reference. I agree that an event which the person charged actually foresaw as a possibility substantial enough to be worthy of attention in deciding whether to do the act or not cannot properly be described as having occurred by chance ; but it does not follow that every event which he did not foresee may be so described. In addition to having been unforeseen by him it must, I think, have been one so unlikely to result from the act that no ordinary person similarly circumstanced could fairly have been expected to take it into account. In a provision relating to a consequence of an act voluntarily and intentionally done, and denying criminal responsibility for that consequence if it has occurred by chance, it seems to me that “by chance” is an expression which, Janus-like, faces both inwards and outwards, describing an event as having been both unexpected by the doer of the act and not reasonably to be expected by any ordinary person, so that it was at once a surprise to the doer and in itself a surprising thing. But it is enough for the present case that s. 13 (1) does not deny criminal responsibility for an event which the doer of an act has foreseen and knowingly risked. (at p65)
  6. Accordingly I am of opinion that the direction given by the learned trial Judge was erroneous, and that the jury should have been told that even if not satisfied that the applicant desired to injure the girl, indeed even if satisfied that he did not desire to injure her, they should nevertheless convict him if satisfied (to the requisite standard) that he foresaw a possibility, not negligible, of the girl’s being injured, and chose, in his desire to frighten her, to subject her to the risk.
  7. I have given consideration to the question whether the Court of Criminal Appeal was right in deciding to order a second trial. If a direction to the jury along correct lines would not have been likely to make any difference in the result, a new trial ought not to be had. It may be that at the first trial the jury would not have convicted the applicant, whatever direction they had been given ; for they may have thought that what the applicant had already undergone was punishment enough for an act of folly, done in a fit of temper which the girl and her companions had deliberately provoked, and done by a mere youth, with no actual desire to injure the girl, and perhaps even with a considerable confidence that aiming at the ground he would not hit her. But such a view of the case, though it may appeal to the Executive in deciding whether to avail itself of the order for a new trial, was not one which the jury could properly have acted upon ; and after reading the evidence which the applicant himself gave at the trial I have a strong impression that the misdirection may very well account for the verdict. After all, the applicant’s account of the incident plainly amounted to an admission that although he was aware when he fired the gun that he was doing a dangerous thing he decided to subject the girl to the risk for the sake of the fright it would give her. In my opinion the Court of Criminal Appeal made the proper order in this case, and it should be left to the Executive to proceed or refrain from proceeding with the new trial, as it thinks proper in the circumstances. (at p66)
  8. Accordingly, I would refuse special leave. (at p66)




Chapter IV of the Code of Criminal Law (Tas.) contains several sections dealing in a general way with criminal responsibility. According to its definition in the Code “criminally responsible” means liable to punishment as for an offence and that expression is used in the provision with which we are immediately concerned. That provision is sub-s. (1) of s. 13 and it provides that no person shall be criminally responsible for an act, unless it is voluntary and intentional ; nor, except as thereinafter expressly provided, for an event which occurs by chance.

These words seem clear enough but in the circumstances of this case they have given rise to arguments which illustrate some of the difficulties which attend the application of the provision to a great many of the specific provisions which follow in the body of the Code. In this case the charge with which we are concerned is that of wounding(s. 172) and the contention of the applicant is that the provisions of s. 13 (1) make it incumbent for the Crown, upon an indictment for that offence, to establish the existence of an intent to wound. On the other hand, the Crown contends that the sub-section must be taken to be concerned only with the physical acts of the applicant which, in the end, brought about the wounding.

The point of divergence between the two submissions is, perhaps, better expressed by saying that one asserts that it must be shown that the physical acts of the applicant were accompanied by an intent to wound whilst the other asserts that it is sufficient if it be shown that the wounding was the result of physical acts intentionally performed even though unaccompanied by a specific intent to wound. (at p.67)

  1. In endeavouring to solve the problem in the present case it is, I think, necessary to commence with an examination of s. 172 itself and to identify what it is which that section purports to make punishable as a crime. The crime, of course, is that of unlawful wounding and the question is whether that expression is to be taken to comprehend only a wounding which, in the language of s. 13 (1), can be said to have been “voluntary and intentional”, or, whether the content of the crime should be ascertained first of all and without regard to the effect, if any, of the provisions of that sub-section. For my part, I think it is necessary to follow the latter course because until we know what “unlawful wounding” means upon the true construction of s. 172 we are unable to identify the character of the act, or crime, with which, in this particular case, s. 13 (1) must be taken to be concerned. (at p67)
  2. We may commence this examination by postulating that it is not wounding simpliciter which is a crime ; it is unlawful wounding and the Code does not purport to specify its ingredients. But some help may be obtained from s. 8 of the Criminal Code Act itself which provides that “all rules and principles of the common law which render any circumstances a justification or excuse for any act or omission, or a defence to a charge upon indictment, shall remain in force and apply to any defence to a charge upon indictment, except in so far as they are altered by, or are inconsistent with, the Code”. This provision, it seems to me, makes it very difficult to escape the conclusion that for the purposes of s. 172 a wounding must be taken to be unlawful unless according to the rules and principles of the common law it is justifiable or excusable. This, of course, means that apart from s. 13 (1) an offence against s. 172 could be established in the absence of proof that the wounding itself was “intentional” in the sense that the acts which resulted in the wounding were done with intent to wound ; it would be sufficient to show that it was the result of acts performed without actual intent to wound but with reckless or wanton indifference as to their result foreseen as a not unlikely consequence. If this be the nature of the offence which s. 172 purports to create how then does s. 13 (1) operate in relation to it in the circumstances of this case? On the one hand, s. 172 provides that, notwithstanding the absence of intent to wound, a wounding shall be punishable as a crime if it be the result of an act or acts done with reckless or wanton indifference as to their consequences and for which there is no legal justification or excuse. On the other hand, the applicant insists, s. 13 (1) stipulates that no person shall be criminally responsible for an act, unless it is voluntary and intentional and this, it is said, means that an intent to wound must be proved. But in my view the provisions of s. 13 (1) do not produce, and are quite incapable of producing, this result for it is one thing to speak of “voluntary and intentional” acts when defining the general scope of criminal responsibility and another to speak of a specific intent accompanying acts done voluntarily and intentionally. To speak of an act being “voluntary and intentional” is to speak of the essential character of the act itself and, of course, such an act may or may not be accompanied by an intent to commit some specific crime. Indeed, it is reasonably clear that s. 13 itself recognizes this distinction for it conceives that criminal responsibility may attach as the result of either an intentional act (sub-s. (1)) or an intentional omission (sub-s. (2)) and then sub-s. (3) acknowledges that any such act or omission may or may not be accompanied by an intent to commit a specific offence. (at p68)
  3. Section 13 (1) is, of course, in very general terms and its application in any particular case must depend upon the nature and ingredients of the crime charged. For instance, in spite of the provisions of the sub-section, a homicide will be culpable where the killing was not intended if the act which caused the death is one “which is commonly known to be likely to cause death or bodily harm” (s. 156 (2) (a)) and a culpable homicide will be murder if the death be caused “by means of any unlawful act or omission which the offender knew, or ought to have known, to be likely to cause death in the circumstances, although he had no wish to cause death or bodily harm to any person” (s. 157 (1) (c)). No doubt, however, in any such case the act or acts physically performed by the accused and which have resulted in death must be shown to have been voluntary and intentional within the meaning of that expression as used in s. 13 (1). In the present case a not dissimilar situation presents itself. We find that s. 172, upon its true construction, provides, inter alia, that a wounding caused by an act or acts performed with reckless or wanton indifference to their result foreseen as a not unlikely consequence is punishable as a crime. That is to say, the section purports to penalize as a crime an act which results in a wounding if, although there was no specific intent to wound, it be shown that it was performed with such reckless or wanton indifference. Now what has s. 13 (1) to say with respect to such a crime? Clearly enough, I should think, it does not, and was not intended to, exclude acts of this character from the scope of s. 172. To my mind it seems that in the circumstances of this case the only concern of that sub-section was with the character of the acts of the applicant which are said to have constituted the crime charged. That is to say, that it was necessary only to show that the wounding was the result of acts which were voluntary and intentional on the part of the applicant and which were done with reckless and wanton indifference to their result foreseen as a not unlikely consequence. (at p69)
  4. Two other matters remain to be mentioned. The first is that the fact that the weapon which the applicant used was fired in breach of a provision of the Local Government Act was quite irrelevant since the only question of Unlawfulness which arose for the jury’s consideration was whether the wounding itself was unlawful. The second is that, although I am of the opinion that there was a misdirection at the trial, I agree entirely with the concluding observations of the Chief Justice. (at p69)




A squabble between the accused a youth of seventeen, and four children all under the age of nine, culminated in the accused getting his father’s air rifle, loading it with a slug, firing it across the fence dividing his home from the store yard of Charles Davis & Co. in which the children were playing, and the hitting and wounding in the breast of Pauline Latham one of the children aged seven. The accused was thereupon charged with wounding with intent to do grievous bodily harm and alternatively with wounding. At the trial the accused gave evidence which if accepted would have warranted the conclusion that when he fired the rifle he did not intend to would Pauline or any of the children but merely to frighten them. The jury acquitted the accused of both the offences with which he was charged and the Attorney-General by leave of the Court instituted an appeal against the acquittal on the charge of wounding. This was done pursuant to s. 401 of the Tasmanian Criminal Code which authorizes the Crown to appeal upon a question of law. The Court of Criminal Appeal, considering that the learned trial judge had misdirected the jury by telling them that before the accused could be convicted upon the charge of wounding they would have to find that he had intended to wound the girl, allowed the appeal and directed a new trial. It is from this order that the accused seeks special leave to appeal to this Court. Before referring to the evidence it is desirable to set out not only s. 172 but s. 13 for it is the effect of this latter section that is decisive of the questions which have arisen. They are as follows: (at p70)

  1. “172. Any person who unlawfully wounds or causes grievous bodily harm to any person by any means whatever is guilty of a crime. Charge: Wounding (or causing grievous bodily harm).” (at p70)
  2. “13.

(1)       No person shall be criminally responsible for an act, unless it is voluntary and intentional; nor except as hereinafter expressly provided, for an event which occurs by chance.

(2)       Except as otherwise expressly provided, no person shall be criminally responsible for an omission, unless it is intentional.

(3)       Any person who with intent to commit an offence does any act or makes any omission which brings about an unforeseen result which, if he had intended it, would have constituted his act or omission some other offence, shall, except as otherwise provided, incur the same criminal responsibility as if he had effected his original purpose.

(4)       Except where it is otherwise expressly provided, the motive by which a person is induced to do any act or make any omission is immaterial.” (at p70)

  1. Although the accused’s evidence was inconsistent with a statement made by him to the police on the day of the wounding when he said he had taken a snap shot at the children it was no doubt open to the jury to accept the account he gave at the trial, the substance of which is indicated by the following extracts from his evidence. “The little girl was just going over the edge of the bank when I snapped the rifle up and fired at her or towards her. I fired towards the ground – I never fired at her (Demonstrates) butt of rifle did not reach my shoulder. That is what I mean by a snap shot. I did not aim at the girl. I didn’t aim it – I just pulled the rifle up and pointed it towards the ground.” . . . “As little girl ran down embankment her chest was pretty close to level with the top of it at that stage. Just as I fired she turned round sideways towards me and looked as though she poked her tongue out.” . . . “I did not fire at the little girl – I fired towards the ground. It was probably in line with her but never at her. I took snap shot at the ground and never at her at all – it was only to scare her. By snap shot I do not mean a hurried shot in the hope of hitting – not in the circumstances no. It’s hard to say if I took snap shot at the ground anywhere near the little girl. I just fired as I got over the top of the fence. The little girl poked her tongue out and she was the closest. The others were too near the tanks and I would just as likely put a hole in them if I fired towards them. The girl looked the oldest out of the four of them and I thought if I scared her and she went, well the others would go with her. I did not fire at her at all. I fired it at the ground close to her in order to frighten her. In a snap shot you don’t take aim and you could not tell where the shot was likely to go. I did not fire towards the girl – towards the ground. I just up with the rifle and fired towards the ground in the general direction of the little girl.” Putting upon this evidence the complexion most favourable to the accused it showed that although he did not intend to wound the girl he nevertheless deliberately fired the rifle in a manner obviously likely to wound her. His evidence did not deal with the question whether, at the time of firing “in line with” or “close to” or “towards” Pauline he foresaw that she might be hit. What he emphasized was that he did not intend to hit her, but to frighten her. (at p71)
  2. It is the obscurity of s. 13 that has given rise to the difference of opinion that is apparent between the learned trial Judge and the Judges of the Court of Criminal Appeal. His Honour directed the jury that “to be guilty of that offence” (i.e. wounding), “he must also have intended to wound Pauline” and added “I tell you that intention is the state of mind of a man who not only foresees but also desires the possible consequences of his conduct.” These directions were obviously based upon the view that the application of s. 13 (1) to the circumstances of the case made it necessary that the wounding should be voluntary and intentional i.e. that the “act” there referred to was the act of wounding and not the act of shooting. The Court of Criminal Appeal took the other view and regarding the “act” as the shooting i.e. the aiming and firing of the rifle, considered that the first part of s. 13 (1) did not require the direction that the accused should not be convicted unless he intended to wound Pauline. I agree with the Court of Criminal Appeal. It seems to me that when s. 13 (1) and (3) are read together the wounding is the “event” or the “result” brought about by the “act” of shooting. This is so as a matter of construction of s. 13 itself. There are moreover other considerations to support such a reading of s. 13 (1). It is of general application and the first provision is, unlike the second, unqualified by any words such as “except as hereinafter expressly provided.” It would follow therefore that if the provision were to be read as requiring that the consequence of a deliberate act must be itself intended before there could be criminal responsibility for that consequence it would only be an intentional killing that could amount to culpable homicide. The contrary however appears quite clearly from s. 156 (2) II. I consider that so soon as it appears clearly elsewhere in the Code that there may be criminal responsibility for the unintended result of an act it must follow that s. 13 cannot bear the meaning that it is the result of an act that must be intended if there is to be criminal responsibility for that result. Thus to cause the death of a child of tender years by wilfully frightening it is culpable homicide, although the child’s death may have been quite unintended. Upon the accused’s own story here he fired the rifle to frighten Pauline; had she died of fright he would have been properly convicted of manslaughter notwithstanding the requirement of s. 13 (1) that the “act” should be voluntary and intentional and the fact that the death would not have been either intended or foreseen as the likely result of the shooting. In such a case the “act” would have to be the shooting and I think the same is the case here. I have therefore reached the conclusion that the direction and the only direction that the first part of s. 13 (1) required in this case was that the accused could not be convicted unless the act of shooting was voluntary and intentional and the direction that was given, viz., that the wounding must have been intentional cannot be supported by that provision. (at p72)
  3. There is, however, the second part of s. 13 (1) to be considered, viz., that no person shall be criminally responsible for an event which occurs by chance. The “event” here for the purposes of this provision is clearly enough the wounding and the accused was entitled to be acquitted unless the jury were satisfied that it was not a chance wounding. His Honour the learned trial Judge having taken the view that he did of the first part of s. 13 (1) did not find it necessary to deal with the second part as a separate matter although he mentioned it; but upon the view I have taken separate consideration of this problem would have been necessary. Upon the view that the second part of the sub-section is distinct from the first the question which arises here is whether the wounding occurred by chance if it was not intended by the accused but it was obviously a likely result of what he did. It is clear, I think, that “by chance” is not the same as “unintended”. If, for instance, the accused had said that although he had not intended to wound Pauline he had nevertheless foreseen the likelihood of that consequence there would have been but a flimsy basis for any suggestion that the wounding occurred by chance. It is not to be thought that the second provision of s. 13 (1) exempts from criminal responsibility a person who deliberately does an act, e.g. shooting, which has as a consequence an event, e.g. wounding, which he foresees as likely but does not actually intend in the sense of desiring that consequence. But before examining further the effect of the evidence if the question whether the wounding occurred by chance is to be determined by reference to the state of mind of the accused, it is necessary to consider the contention of the Crown that the test is not subjective and that the wounding did not occur by chance if a reasonable and prudent man would have foreseen that it was likely to occur. There may be something to be said as a matter of policy in favour of the adoption of an objective rather than a subjective standard to determine whether an event has occurred by chance in cases where that is adopted as the criterion of criminal responsibility. Moreover there is authority for the view that the general theory of criminal liability rests upon objective rather than subjective standards. See, for instance, O. W. Holmes, The Common Law pp. 75 and 76. The problem here, however, is to determine the meaning of words used in a codifying statute, and in this undertaking neither notions of policy nor general theories of criminal responsibility are of much assistance. My interpretation of s. 13 (1) is that the words “by chance” refer to the occurrence of an event that the doer of an act does not foresee as a possible consequence. The section as a whole is clearly enough concerned with the state of mind of the person doing or omitting to do something and is, in a general way, directed towards associating guilt with foreseen consequences. This is apparent from s. 13 (3) where the reference to an “unforeseen result” is clearly enough a reference to a consequence not foreseen by the person who has done an act. Furthermore, the exception in s. 13 (1) points the same way whether it is regarded as a reference to s. 13 (3) or to later provisions such as s. 156 (4) under which a person may be criminally liable for the unforeseen consequences of an act, consequences that could be regarded as occurring by chance. This conclusion, moreover, seems to me in line with what had long ago been decided in relation to the offence of “maliciously wounding” (24 and 25 Vict. c. 100 s. 20) viz., that an intention to do an injury of the kind in fact done is an element essential to liability but that whatever the doer of an act foresees as likely to result from it is within the ambit of his intention – see Kenny’s Outline of Criminal Law 17th ed. (1958) pp. 192-194. (at p73)
  4. Returning now to the evidence at the trial, I think that the jury, properly directed, could while accepting the accused’s evidence have found nevertheless that the wounding did not occur by chance. As I have already pointed out the evidence given by the accused did not bear directly upon whether he foresaw that in firing as he did Pauline might be hit but I consider that the knowledge commonly held that a person is likely to be hit if a rifle is fired “in line with” or “close to” or “towards” that person would be strong prima facie evidence that the accused did foresee that as a likely consequence of his shooting as he did Pauline might be wounded. There was therefore evidence upon which the jury could have convicted the accused of wounding even if they were prepared to accept the evidence that he gave that he did not intend to do so. Moreover, had the accused’s evidence gone to the length that the wounding was fortuitous, the jury might well have disbelieved him. (at p74)
  5. I consider that the direction required here was that the jury should convict only if they were satisfied that the accused had fired the rifle deliberately either intending to hit Pauline or, foreseeing that as a likely consequence of firing as he did, she might be hit. The direction that was given, viz. that to convict the jury had to be satisfied that the accused fired intending to wound Pauline, was in error and cast a burden upon the Crown beyond that imposed by law. (at p74)
  6. The acquittal may well have been the result of this misdirection. I consider therefore that the order of the Court of Criminal Appeal was correct and that the application for special leave to appeal should be refused. (at p74)




The Tasmanian Criminal Code was established by the Criminal Code Act, 1924 as “the law of the State with respect to the several matters therein

dealt with”. The result of ss. 3, 4, 5 and 6 of the Act is that the criminal law of Tasmania – that is the law concerning offences there punishable on indictment – is now to be found in the Code and not in the common law or in earlier statutes. There is, however, one qualification of this, for s. 7 of the Act adds to the matters of exoneration that are expressed in the Code this: “All rules and principles of the common law which render any circumstances a justification or excuse for any act or omission, or a defence to a charge upon indictment, shall remain in force and apply to any defence to a charge upon indictment, except in so far as they are altered by, or are inconsistent with, the Code”. (at p74)

  1. The Act creating the Code is entitled “an Act to declare, consolidate and amend the Criminal Law and to establish a Code of Criminal Law”. In some places the Code states common law principles in words that have long been familiar. Other parts of it are a mere assembly of old statute law, re-enacted in its terms. Other parts modify former statute law. Others again deal with matters that were formerly dealt with by the common law, but in words that seem to alter earlier doctrine not simply to declare it. The Code uses many words and phrases that, when it was enacted, had well established meanings: and “in construing Acts of Parliament it is a general rule . . . that words must be taken in their legal sense unless a contrary intention appears” (Commissioners for Special Purposes of Income Tax v. Pemsel (1891) AC, at p 580 ). Lord Macnaghten’s statement is as applicable to a criminal code as to any other enactment. Among the crimes with which the Code deals are ancient wrongs, forms of violent wrongdoing, that were among the earliest pleas of the Crown. The words used to describe them are ordinary English words. Murder, burglary, rape and robbery are ordinary words, and they are law words. They have not dictionary meanings different from their legal meanings. They describe conduct always forbidden by law. Law may define the forbidden conduct more fully and more precisely than in common speech is ordinarily necessary; but it does not define it differently. Where the Code states exactly what a particular word means it is not necessary to go outside the Code. But where it does not, legal definition must be sought elsewhere. To take an illustration – the Code defines “steal” (s. 266) and “rob” (s. 240 (3)). It does not define “maim”, but that word is used in it. In ordinary speech it means a crippling injury, such as the loss of a limb. The meaning is the same for law, but the specific test by which early law distinguished mayhem from lesser injuries was by asking whether the harm would make a man less able for fighting. The test produced some strange decisions. That is an illustration of the meaning of a word in the Code being fixed by the common law. The Code also, by reenacting in terms statutes that had introduced new offences into the criminal law, adopts the meanings that had been put upon their words by the courts. And those statutory offences had from the first been intended to take their places “in a coherent general system and to be governed by the established principles of criminal responsibility” – the words are those of Dixon J. in Thomas v. The King (1937) 59 CLR, at p 304 . (at p75)
  2. It comes to this: The Code is to be read without any preconception that any particular provision has or has not altered the law. It is to be read as an enactment of the Tasmanian Parliament. And, interesting though it is to compare it with other codes, such as that of Queensland from which it is derived, or with projected codes such as Stephen’s Code, they cannot govern its interpretation. But it was enacted when it could be said of the criminal law that it was “governed by established principles of criminal responsibility”. And for that reason we cannot interpret its general provisions concerning such basic principles as if they were written on a tabula rasa, with all that used to be there removed and forgotten. Rather is ch. iv of the Code written on a palimpsest, with the old writing still discernible behind. Some parts of that chapter may be a further step towards a full acceptance of the idea that legal guilt should accord with moral blame; that a man should not be punished for something that he did not mean to do. Because of the supreme importance of homicide in early law, the law of homicide provides the most striking illustration of this development. But the tendency is general; and if the Code, properly read, confirms that development or completes it, we should not hesitate to give it its full meaning. On this, I agree with what Philp J. said in R. v. Callaghan (1942) St R Qd 40, at p 51 . (at p76)
  3. The accused was arraigned on two charges preferred in the indictment. The first count was laid under s. 170 of the Code: the particulars of this charge stated that he “with intent to do grievous bodily harm to Pauline Ann Latham or other persons did actual bodily harm to the said Pauline Ann Latham”. The second count was laid under s. 172 of the Code: the particulars stated that he “unlawfully wounded Pauline Ann Latham”. The words of each count are taken from the relevant section of the Code. Each section was derived from earlier statute law in force in Tasmania that had its source in English statutes. (at p76)
  4. At common law wounding was not a crime at all, unless it amounted to maiming. But in England a series of Acts, beginning with the Coventry Act, 22 & 23 Car. II c. 1, and ending, for present purposes, with s. 18 of the Offences against the Person Act, 1861, 24 & 25 Vict. c. 100, created the offence commonly called “felonious wounding”. Wounding was felonious if done with intent to do grievous bodily harm, or with some other specified intent. Of this section Sir James Fitzjames Stephen said “Its language is laborious and condensed in the highest degree, and creates twenty-four separate offences as it forbids every combination of any one of four actions with any one of six intentions”: History of the Criminal Law iii, p. 117. In Tasmania it has lost nothing in condensed complexity. Appearing now in the Code as s. 170, it makes any one of fourteen acts an offence if done with any one of the original six intentions. In the particular offence under s. 170 charged in this case it is not necessary that the person actually harmed should be the person to whom harm was intended. But s. 170 need not be further considered, for no question now arises as to the first count. The case concerns only the second count, that under s. 172 for unlawfully wounding. I have read with much advantage and interest the very learned judgments given by their Honours in the Supreme Court. I need not go over all the ground they cover. (at p77)
  5. Section 172 is derived from English legislation that made unlawful wounding a statutory misdemeanour quite distinct from felonious wounding. Section 20 of the Offences against the Person Act, 1861, provided that: “Whosoever shall unlawfully and maliciously wound or inflict any grievous bodily harm upon any other person . . . shall be guilty of a misdeameanour . . . “. A statute in the same terms was in force in Tasmania immediately before the Code came into operation. The word “maliciously” here means either intending to do harm of the kind in fact done, or, in some cases, acting recklessly of the risk of harm. The definition suggested by Professor Kenny was adopted by the Court of Appeal in Reg. v. Cunningham (1957) 2 QB 396 . An acceptance of it does not necessarily mean agreement in the application of it to the facts of that case. But the word “maliciously” has been omitted from s. 172 of the Code. So that we are not to extract from it whatever element of intent or recklessness is necessary to make wounding a criminal offence under the Code. That must be found in the Code itself. It is therefore necessary to consider the effect of s. 13. If that section had not been in the Code the result would, I think, have been the same: for the idea that wholly accidental and unintended harm is not culpable is deeply imbedded in our law. However, the argument turned largely on the meaning and effect of the section. So I go to it: but first, what is meant by “unlawfully wounding”? (at p77)
  6. The meaning of “wounding” is well settled. Lord Lyndhurst in 1834 said that the “definition of a wound in criminal cases is an injury to the person, by which the skin is broken. If the skin is broken, and there was a bleeding, that is a wound”: Moriarty v. Brooks (1834) 6 C & P 684, at p 686 (172 ER 1419, at p 1420) . The expression “wounding by any means whatsoever” in s. 172 is, it may be noted, a survival of words introduced into the statutory offence of felonious wounding to overcome decisions that under an earlier Act, 7 Wm. IV & 1 Vict. c. 85, s. 2, wounding had to be with some instrument. The retention of the words in s. 170 does not affect the meaning of s. 172 (Reg. v. Bullock (1868) LR 1 CCR 115 ). (at p77)
  7. So much for “wounding”. What then is “unlawfully wounding”? Although wounding was not a crime at common law, it was, from very early times, a trespass. An “aggravated species of battery”, Blackstone called it: Commentaries, iii, p. 121. But not all battery’s were actionable trespasses. Some were always justifiable. Examples of these, commonly given in the old books, are a constable wounding a man resisting arrest, wounding in self-defence, wounding in the course of a game with cudgels (boxing is a modern equivalent), wounding in a surgical operation and so forth: See Comyn’s Digest under “Battery”; Hawkins’ Pleas of the Crown i, pp. 483, 484. “Unlawful wounding” is thus a term that gets its meaning by reference to law outside the Code. The question is not whether the wounding occurred in the course of some prohibited conduct, such as shooting in a town contrary to the Police Offences Act or driving at an excessive speed contrary to the traffic laws. Nor, it seems, is a wounding that occurs merely by negligence, without intent or recklessness, and for which a civil action for negligence would lie, an unlawful wounding. Wounding Pauline Latham could not have been justified as lawful. It was not something reasonably done in self-defence or in defence of property. “But”, said the accused, “I did not mean to hit her. I meant only to scare her”. Assuming that to be true, was he exonerated? That is the critical question. (at p78)
  8. Section 13 (1) of the Code reads: “No person shall be criminally responsible for an act, unless it is voluntary and intentional; nor, except as hereinafter expressly provided, for an event which occurs by chance”. (at p78)
  9. This occurs among provisions of the Code obviously intended to have general application and to state fundamental principles of criminal responsibility. This one sentence compresses and comprehends the common law doctrine concerning mens rea. It does more than that. It supplants it. So that now, as Griffith C.J. said of a similar provision in the Queensland Code, the aim of which he well understood, “it is never necessary to have recourse to the old doctrine of mens rea”: Widgee Shire Council v. Bonney (1907) 4 CLR 977, at p 981 . We may look to old expositions of that doctrine to appreciate properly the significance of the words of the Code that replace it. But, once we have ascertained the significance of those words, we must apply them literally, without any reluctance born of a knowledge of what the law once was. The Code “must be construed in its application to the facts of this case free from any glosses or interpolations derived from any expositions, however authoritative, of the law of England or of Scotland” – the language is that of the Privy Council in Wallace-Johnson v. The King (1940) AC 231, at p 240 . The first part of s. 13 (1), that dealing with intent, appears, both in its grammatical form and in its substance, as the counterpart of the common law maxim “actus non facit reum nisi mens sit rea”. The second part, concerning events that occur by chance, deals with a topic that the old writers usually considered along with mens rea. I shall deal with the two parts separately, for the Code states them as separate reasons for negativing criminal responsibility. I do not overlook that they appear together in the Code – in the same sub-section – and that its language must be construed accordingly. They do, however, deal with different matters: the first with the mind of the doer of an act; the second with the probability of an occurrence. (at p79)
  10. The statement that no person shall be criminally responsible for an act, Unless it is voluntary and intentional refers, I think, as a mere matter of construction, to an act for which, if done voluntarily and intentionally, a person would be criminally responsible. The definition of “criminally responsible” in s. 1 seems to confirm this construction. The “act” referred to is thus a deed that, if done wilfully and intentionally (and in cases where a specific intent is an ingredient of the crime, done with that intent), would make the doer criminally responsible. When a crime consists of a particular act done with a specific intent some theoretical difficulties can arise in the relationship of the general intent, necessary in all crime, to the specific intent that is an ingredient of the particular offence. But, so far as the Code is concerned, it need not, I think, occasion difficulty in practice. The general provisions of s. 13 (1) have always to be read in relation to any particular crime charged, and as qualified or affected by any specific intent that in that crime must accompany the doing of the criminal act or of any act that is a specific ingredient of the crime. In this case no difficulty arises. The act is unlawfully wounding. There are no other ingredients in the crime charged. The question is: was this act intentional? It would, I consider, be inconsistent with the scheme of s. 13 (1) to regard the “act” there referred to as something less than the act of wounding; for it, and nothing less, is what would, if done intentionally, give rise to criminal responsibility. It is the corpus delicti, or the actus reus if one likes that inelegant phrase. I am unable to accept the argument that on a charge of unlawfully wounding the act to which s. 13 (1) refers is some action, not of itself criminal, forming a part, as it were, of an act of wounding – some conduct short of wounding, such as pressing the trigger of a firearm. To wound a person by discharging a firearm is, of course, a complex act, involving loading the piece, cocking it, presenting it, pressing the trigger. The act, that if done voluntarily and intentionally would constitute the crime, is the whole deed whereby the bullet was caused to strike and wound. If the wounding were done by stabbing, the act referred to in s. 13 (1) could scarcely be said to be grasping the handle of the knife, raising the arm to strike, or anything less than the stabbing that produced a wound. The relevant question would not be, did the accused intend to grasp the handle or to raise his arm, but did he intent to wound. Whether the wounding was done by a weapon wielded or by a missile projected seems to me immaterial for the application of s. 13 (1) to s. 172. The word “act” is used in different senses in different parts of the Code. But in more than one place it is used, as one would expect it to be used, to describe conduct that, when the required intent be present, constitutes a crime: see e.g., s. 3 (1), s. 7 and cf. s. 2. In s. 13 (3) it appears in the context “any person who with intent to commit any offence does any act”. But the word “act” is there used in a different sense from that which it has in the earlier sub-section. It is used for a different purpose. Sub-section (1) exonerates a man from responsibility for an unintentional act that, if it had been done intentionally, would itself be an offence. Sub-section (3) makes doing an act that is not itself an offence, an offence if it be done with intent to commit an offence and if it brings about an unforeseen result. That is how I read the two provisions. The argument that the “act” in s. 13 (1) means, in relation to s. 172, some action or conduct short of wounding would mean, it seems, that a person could be criminally liable if his intentional act resulted in an unintended wounding – as, for example, leaving broken glass where someone later walked and was wounded. (at p80)
  11. The contrast between the words “act” and “event” in s. 13 (1) points to a distinction between an act and its consequences. But I do not think this affects the meaning of the first limb of the sub-section. The word “event” is not used in an entirely consistent sense throughout the Code (cf. e.g. s. 2). The statement that a person is not to be responsible for an event occurring by chance, coming immediately after the statement that a person is not to be responsible for an act that he did not intend, seems natural enough. For centuries the law had related the two notions. The common law rule was that a man was not criminally responsible for an occurrence that was a pure chance, but that he was responsible for an accidental death if it arose out of his doing an unlawful act. That idea was at the root of the law concerning what Hale called “homicide per infortunium” in his chapter headed “Concerning Casualty and Misfortune, how far it excuseth in Criminals”. The same idea was the basis of the old distinction between pure chance and chance-medley. It was stated by Hale in words that are apposite here: “So it is if he be doing an unlawful act, tho not intending bodily harm of any person, as throwing a stone at another’s horse, if it hit a person and kill him; this is felony and homicide, and not per infortunium; for the act was voluntary, tho the event not intended; and therefore the act itself being unlawful, he is criminally guilty of the consequence, that follows”: Pleas of the Crown, i, 38. So far as homicide is concerned – and originally the principle apparently related only to homicide – the common law doctrine is very largely retained by ss. 156-159 of the Code. The doctrine that began in connexion with homicide had at an early date been given a wider application in common law. It was embodied by Bacon in the maxim “In criminalibus sufficit generalis malitia intentionis cum facto paris gradus”. Doctor Glanville Williams has called it a doctrine of “transferred malice”. Reg v. Latimer (1886) 17 QBD 359 is an instance of its application in a case of wounding. The effect of s. 13 (3) is to retain this concept, in part at all events, in the Code. In this respect the Tasmanian Code appears to differ from the Queensland Code; and the dictum of Philp J., that under that Code the lawfulness or unlawfulness of an original act is not a criterion of criminal responsibility for its ultimate result, is not applicable. The combined effect of the exoneration from the consequences of events occurring by chance under s. 13 (1) and of the provisions of s. 13 (3) is, it seems to me, to render inapplicable in Tasmania such cases as Reg. v. Ward (1872) LR 1 CCR 356 , but to maintain criminal responsibility in circumstances such as Reg. v. Latimer (1886) 17 QBD 359 . However, it is not necessary in this case to determine the effect of s. 13 (3); neither is it necessary to consider all the hypothetical cases discussed during the argument. This is not a hypothetical case, and the answer to the question that it raises does not, I think, require a complete exposition of the Code. For this reason it may not really be necessary to determine what is meant by “an event that occurs by chance” in s. 13 (1). But, because of one argument that was advanced, it is as well to deal with it briefly. (at p81)
  12. Section 13 (1) is an exonerating and exculpatory provision. Its purpose is thus the opposite of s. 13 (3), which is, in a sense, a qualification of it. It does not say that a person is responsible for what does not occur by chance: all that it says is that a person is not responsible for what does. This purpose, and past history, combine to show what is meant here by a chance occurrence. It is not merely an improbable or unlikely occurrence; for a man who intended to do a wrong is not to escape the consequences by saying that only by luck did he succeed in his purpose. If, for example, he, being a poor shot with a rifle, were to fire at another person a thousand yards away and hit him, it might be said to be a chance that he did so; but that would not exonerate him. If he had aimed badly, yet the bullet had struck a rock and ricocheted and wounded the intended victim, again it would not avail the shooter that only by that chance had he effected his design. The statutory provision only operates in cases where the event was not foreseen by the actor, and would not have been expected by reasonable men as an outcome of his actions. (at p82)
  13. The criminal law punishes wicked acts. It regards wickedness as, in general, depending upon the mind of the accused when he did the act charged. What a man does is often the best evidence of the purpose he had in mind. The probability that harm will result from a man’s acts may be so great, and so apparent, that it compels an inference that he actually intended to do that harm. Nevertheless, intention is a state of mind. The circumstances and probable consequences of a man’s act are no more than evidence of his intention. For this reason this court has often said that it is misleading to speak of a man being presumed always to intend the natural and probable consequences of his acts. And this, I do not doubt, is so. Because intent is a state of mind, it becomes necessary to ask what is that state of mind; what for the purposes of the criminal law is comprehended in the idea of an intentional act. Under the law apart from the Code, an accused would be guilty of unlawfully wounding if his actual purpose was to inflict a wound: he would also be guilty if, without any actual purpose to wound anyone, but foreseeing that what he was about to do was likely to cause a wound to someone, he yet went on to do it. The common law treats what was done recklessly, in that way, as if it had been done with actual intent. It says that a man, who actually realizes what must be, or very probably will be, the consequence of what he does, does it intending that consequence. The word “intentional” in the Code carries, I think, these concepts of the common law. I therefore do not read s. 13 as altering these principles. It is, I may add, in my view undesirable to insist upon desire of consequence as an element in intention. There is a risk of introducing an emotional ingredient into an intellectual concept. A man may seek to produce a result while regretting the need to do so. (at p83)
  14. Before parting with the question of intent and recklessness, I would observe that the expressions “subjective test” and “objective test” that were used in the argument, and which have recently come somewhat into favour, are, I think, unfortunate. A man’s own intention is for him a subjective state, just as are his sensations of pleasure or of pain. But the state of another man’s mind, or of his digestion, is an objective fact. When it has to be proved, it is to be proved in the same way as other objective facts are proved. A jury must consider the whole of the evidence relevant to it as a fact in issue. If an accused gives evidence of what his intentions were, the jury must weigh his testimony along with whatever inference as to his intentions can be drawn from his conduct or from other relevant facts. References to a “subjective test” could lead to an idea that the evidence of an accused man as to his intent is more credible than his evidence of other matters. It is not: he may or may not be believed by the jury. Whatever he says, they may be able to conclude from the whole of the evidence that beyond doubt he had a guilty mind and a guilty purpose. But always the questions are what did he in fact know, foresee, expect, intend. (at p83)
  15. With these matters in mind, I have carefully read the summing up of the learned trial judge. I do not think that, considered as a whole, it contains any error so serious as to make it proper to put the applicant on trial again. I would, therefore, have been ready to give leave to appeal and allow the appeal. But I appreciate the reasons that the Chief Justice gives for the course he proposes, and I agree in it. (at p83)



Application for special leave to appeal dismissed.


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