Australian Criminal Laws in Common Law Jurisdictio... - (PG 45 - 344)

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Copyright © 2014. Oxford University Press. All rights reserved.
Chapter 1 The Fundamentals of Criminal Law 02
J, Arenson, Kenneth, et al. Australian Criminal Laws in Common Law Jurisdictions : Cases and Materials, Oxford University Press, 2014.
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Chapter 1
The Fundamentals of Criminal

Law
1.1 Introduction
Criminal law encompasses both a substantive and procedural component. Broadly speaking,
the substantive component consists of defining and understanding the constituent elements
of the various common law and statutory crimes and the defences that are available thereto.
In contrast, the procedural component denotes the enforcement mechanism or, if you will,
the process through which criminal defendants are brought to court and prosecuted for
their alleged transgressions. The laws relating to arrest, search and seizure, illegally obtained
evidence, pleadings, double jeopardy, arraignment, jury selection, and sentencing, for example,
represent only a portion of the procedural component of the criminal law. It should be apparent,
therefore, that to do justice to such a vast and complex subject would literally entail the writing
of a separate and lengthy treatise. Accordingly, this book is concerned only with the substantive
component of the criminal law.
It is important to emphasise that because the various state, territorial, and Commonwealth
governments have their own separate crime legislation, there are thousands of statutory criminal
offences that are currently on the books throughout Australia, not to mention the common law
offences that still exist in the three common law jurisdictions, namely New South Wales, South
Australia, and Victoria. In our view, it would be neither practical nor helpful to undertake the
task of familiarising the readers with all of these statutory and common law offences. In the
chapters that follow, therefore, we shall limit our focus to the constituent elements of the most
common crimes (and the defences thereto) against persons and property such as, for example,
murder, manslaughter, sexual and non-sexual assaults, theft, burglary, robbery, and attempts in
the common law jurisdictions of New South Wales, Victoria and South Australia.
Chapter 1: The Fundamentals of Criminal Law 3
In this chapter, however, our primary objective is to provide a framework that will facilitate
an understanding of the basic principles and underlying rationales of the substantive criminal
law. In particular, we shall examine such questions as: What is a crime and how does it differ
from non-criminal prohibitions giving rise to civil liability such as torts and other civil wrongs?
What purpose(s) are sought to be achieved by imposing criminal liability on persons or
corporations? What, if any, elements do all crimes have in common? When is a crime considered
to be one of mens rea? How many different types of mens reas are recognised? What is meant by
the requirement of ‘temporal coincidence’, and what is the legal rationale for this requirement?
What is meant by the term ‘strict liability’ and how does it differ from the term ‘absolute
liability’? What is the difference between ‘primary’ or ‘denial’ defences and those which are
classified as ‘secondary’ or ‘affirmative’ defences? Which defences are generally available to an
accused? What is the difference between the ‘evidential’ and ‘legal’ burdens of proof, and which
party bears the onus of discharging these burdens? How does one differentiate among principals
in the first degree, principals in the second degree, accessories before the fact, and accessories
after the fact—and why are these distinctions important?
Throughout the book, readers are provided with a number of questions that will assist in
reviewing the law discussed in the respective chapters. In particular, these questions will require
readers to critically assess the reasoning in the cases as well as the courts’ overall approach to the
relevant principles involved.
1.2
The definition of a crime and justification of the
criminal law
1.2.1 The definition of a crime
There is no universally accepted definition of what constitutes a crime as distinguished from
other types of legal wrongs such as torts, breaches of contract, and the like. Professor Glanville
Williams defines a crime as ‘a legal wrong that can be followed by criminal proceedings and
which may result in punishment’: G Williams, Textbook of Criminal Law (2nd edn, 1983) 27.
According to this definition, the primary distinction between crimes and other legal wrongs is
that the former are prosecuted through criminal as opposed to non-criminal proceedings. Since
each of the jurisdictions within Australia retains the power to designate which legal wrongs
are to be prosecuted through this medium, the reality is that a crime is any conduct which the
courts or legislatures choose to describe as such.
Louis Waller and CR Williams argue, however, that the distinction between criminal and
non-criminal misdeeds is based upon more than merely an arbitrary designation: L Waller
& CR Williams, Criminal Law (9th edn, 2001) 2, 3. Specifically, they espouse the view that
with the exception of crimes of ‘strict’ or ‘absolute’ liability (see discussion below), a decision
to designate conduct as criminal is generally based upon the existence or non-existence of two
factors that inhere in all crimes; namely, that the conduct in question must be injurious to the
public at large as opposed to merely being injurious to one or more individual persons; and the
conduct at issue must involve an element of moral blameworthiness.
4 PART 1: Overview
This view is problematic for several reasons. First, practically all torts and other civil wrongs
could just as easily be classified as conduct that is ‘injurious to the public at large’. This is
exemplified in the fact that many crimes, if proven, would necessarily give rise to civil liability
for the same conduct. The crimes of rape and indecent assault, for example, would constitute the
tort of battery; the crime of theft (or larceny) would constitute the tort of conversion; and the
crime of obtaining property by false pretences would constitute the tort of deceit. In these and
numerous other examples, the elements of the crimes and their civil counterparts are very similar
and, in some instances (for example, the crime of common assault and the torts of battery and
assault), even identical. Should a decision as to whether to categorise the very same conduct
and its consequences as ‘injurious to the public at large’ turn on whether it is being prosecuted
criminally or civilly?
Second, the notion that an element of moral blameworthiness inheres in all non-strict
liability crimes is open to question. The existence or non-existence of moral culpability is, and
always will be, largely in the eyes of the beholder. With respect to non-mens rea crimes that
prohibit the infliction of various types of harm through criminal negligence (such as involuntary
manslaughter by criminal negligence), it is arguable whether the accused’s conduct, although
deserving of the ‘fault’ epithet in strict legal parlance, involves an element of moral wrongdoing.
Finally, as discussed below, there are many forms of conduct (such as smoking, for example)
that are not criminalised despite the fact that many view them as involving an element of moral
culpability. Thus, notwithstanding such attempts to distinguish crimes from other legal wrongs,
it is probably most accurate to state that what amounts to a crime is any conduct that the courts
or legislatures choose to designate as such, irrespective of whether it is deemed as injurious to the
public at large or morally blameworthy.
Although it is possible to identify some unique aspects of the criminal law, these are all
procedural in nature. In a vein similar to that espoused in the above quotation from Glanville
Williams, Lord Atkin wrote:
The criminal quality of an act cannot be discovered by intuition; nor can it be discovered
by reference to any standard but one: Is the act prohibited with penal consequences?:
Proprietary Articles Trade Association v Attorney-General (Canada) [1931] AC 310 at 314.
Thus, a unique feature of criminal offences is that criminal sanctions may be imposed for
their breaches. A related distinction is that in the case of the criminal law, the relevant conduct is
taken from the control of private individuals and regulated by the state. It is important to note,
however, that these are not substantive distinctions. They do not tell us which type of conduct
should be prosecuted or met with harsh sanctions; rather, they simply reflect the different
procedures and consequences that may follow after the decision has been made.
Thus, while we can distinguish between criminal and civil wrongs in a procedural sense,
there is no principled basis upon which to draw such a distinction in a substantive sense. That
aside, there is an enormous difference between criminal and civil wrongs in terms of their legal
consequences. This is unsatisfactory because the stakes are far too high to be determined on the
basis of such a tenuous distinction. The prosecution of criminal offences often results in the
stigmatisation of the offenders and subjects them to a range of coercive measures. In contrast,
civil wrongs are directed primarily at compensating the aggrieved parties and do not generally
involve censure. The inability to substantively distinguish between criminal and non-criminal
misconduct also impacts on the search for a justification of the criminal law.
1.2.2 The justification of the criminal law

The stigmatisation and punishment that are consequent upon a finding of guilt for a criminal
offence require a moral justification. Not all practices or types of behaviour call for a moral
justification. We do not need to justify playing sport, visiting friends, or dancing. However,
as Andrew Ashworth correctly notes, the criminal law is ‘society’s strongest form of official
punishment and censure’: A Ashworth, Principles of Criminal Law (2nd edn, 1995) 16. It is
the precursor to sentencing that is the area of law where the state acts in its most coercive and
intrusive manner. Whereas all other areas of law (such as contract and tort) are concerned
with ‘simply’ regulating the transfer and adjustment of monetary sums, sentencing involves the
intentional infliction of some type of harm, and hence infringes upon an important concern
or interest such as one’s liberty or reputation. As such, it is not dissimilar to activities such as
slavery, abortion, and euthanasia. It is a ‘fundamental ethical principle that we may not inflict
pain or disgrace upon another without adequate justification’: JV Barry, ‘Morality and the
Coercive Process’ (1962–64) 4 Sydney Law Review 28 at 29.
Thus, in order for an act to be deserving of blame and the deliberate infliction of punishment, it
must breach some type of norm or standard. The strongest type of prohibition in our community
is embodied in moral norms. By definition, morality is the ultimate set of principles by which we
should live and consists of the principles that dictate how serious conflict should be resolved:
M Bagaric, ‘A Utilitarian Argument: Laying the Foundation for a Coherent System of Law’
(2002) 10 Otago Law Review 163. Lord Atkin’s observation in Proprietary Articles Associations
v Attorney-General (Canada) [1931] AC 310 at 324, that morality and criminality are not
co-extensive, is correct. Equally accurate, however, is Lord Coleridge’s view that ‘the absolute
divorce of law from morality would be of fatal consequence’: R v Dudley & Stephens (1884)
14 QBD 273 at 287.
In order to explain and justify the criminal law on the basis of morality, it is not necessary
that every criminal law seeks to enforce a moral norm. During the course of propounding his
soundest theory of law, Ronald Dworkin noted that in order for moral principles to explain
and justify the settled rules of law, only a significant portion of the rules need to be consistent
with the background moral theory: R Dworkin, Law’s Empire (1986). There are two ways in
which it could be argued that morality underpins the criminal law. First, most of the criminal
offences might fit within (or be consistent with) a particular moral virtue. Alternatively, it could
be argued that rules of the criminal law are explicable by reference to a general moral theory.
1.2.2.1 The principle of liberty

The only discrete moral principle that is potentially broad enough to account for many criminal
offences is liberty. Still the most famous statement concerning the paramountcy of liberty is by
John Stuart Mill:
The sole end for which mankind are warranted, individually or collectively, in interfering
with the liberty of action of any of their number, is self-protection. The only purpose
6 PART 1: Overview
for which power can be rightfully exercised over any member of a civilised community,
against his will, is to prevent harm to others. His own good, either physical or moral, is
not a sufficient warrant. He cannot rightfully be compelled to do or forbear because it will
be better for him to do so, because it will make him happier, because, in the opinion of
others, to do so would be wise, or even right: JS Mill, ‘Utilitarianism’ in M Warnock (ed),
Utilitarianism (1986) 135.
The courts too have heavily endorsed the central role of personal liberty.
As Mason CJ and Brennan J wrote:
The right to personal liberty is … the most elementary and fundamental of all common
law rights. Personal liberty was held by Blackstone to be an absolute right vested in the
individual … he warned ‘of great importance to the public is the preservation of this
personal liberty: for if once it were left in the power of any … magistrate to imprison
arbitrarily … there would soon be an end of all other rights and immunities’: Williams v The
Queen (1986) 161 CLR 278 at 292.
Despite the ostensible attractiveness of the view that the criminal law should prohibit
only conduct that encroaches on the interests of others, the criminal law as we know it is so
paternalistic and regulates so many victimless offences that an explanation of the institution on
such a basis is indefensible. Offences such as drunkenness, failing to register one’s pet, euthanasia,
drug-taking, and not wearing seatbelts are evidence of this.
1.2.2.2 Morality and the criminal law

Rather than focusing on a discrete moral virtue, a more promising approach is to urge that a
general moral theory underpins the criminal law. Lord Devlin is the most famous advocate of
this view: P Devlin, The Enforcement of Morals (1965). He claimed that the purpose of the
criminal law was to maintain and enforce public morality. For him there was a common morality
that bonded society together. Lord Devlin’s view has been fairly criticised on the basis that there
is in fact no such thing as a common morality and, if there were, a large degree of convergence in
the moral ideals of a society does not necessarily justify enforcement of such moral standards.
For example, the existence of societies where it is widely believed that it is immoral for white
and coloured persons to associate with each other does not mean that it is appropriate to enforce
such a norm: HLA Hart, Law, Liberty and Morality (1963). However, such objections can be
met if one adopts not the notion of some supposed common morality as being the foundation
of the criminal law, but rather a coherent normative theory of morality.
Broadly, there are two types of normative moral theories. Consequential moral theories
claim that an act is right or wrong depending on its capacity to maximise a particular virtue such
as happiness. Non-consequential (or deontological) theories claim that the appropriateness of
an action is not contingent upon its instrumental ability to produce particular ends, but follows
from the intrinsic features of the act. It is for this reason that the notion of (absolute or near
absolute) rights is generally thought to sit most comfortably in a non-consequentialist ethic.
The leading contemporary non-consequentialist theories are those which are framed in
the language of rights. Since the Second World War, there has been an immense increase in
‘rights talk’, both in sheer volume and the number of supposed rights. The rights doctrine has
progressed a long way since its original modest aim of providing ‘a legitimization of … claims
against tyrannical or exploiting regimes’: SI Benn, ‘Human Rights—For Whom and For What?’
in E Kamenka & AE Tay (eds), Human Rights (1978) 59, 61. As Tom Campbell points out:
The human rights movement is based on the need for a counter-ideology to combat the
abuses and misuses of political authority by those who invoke, as a justification for their
activities, the need to subordinate the particular interests of individuals to the general
good: T Campbell, ‘Realizing Human Rights’ in T Campbell (ed), Human Rights: From
Rhetoric to Reality (1986) 1, 13.
There is now, perhaps more than ever, a strong tendency to advance moral claims and
arguments in terms of rights. Assertion of rights has become the customary means to express
our moral sentiments: ‘there is virtually no area of public controversy in which rights are not to
be found on at least one side of the question—and generally on both’: LW Sumner, The Moral
Foundation of Rights (1987) 1. There is no question that ‘the doctrine of human rights has at
least temporarily replaced the doctrine of maximising utilitarianism as the prime philosophical
inspiration of political and social reform’: HLA Hart, Essays in Jurisprudence and Philosophy
(1983) 196–7.
Despite the prominence of rights talk in conventional moral discourse, even a cursory glance
over the criminal law statute books shows that only a very small portion of criminal offences
seek to protect individual rights. Certainly many traditional common law criminal offences
protect important recognisable rights and interests: namely, the right to physical (including
sexual) integrity and the right to own property. The criminal law, however, has grown almost
exponentially in the past few decades, and offences aimed at securing the rights of others
constitute an ever-decreasing portion of the criminal law.
For example, in Victoria each year only about 5000 offences are dealt with in the higher
courts—County Court and the Supreme Courts: M Bagaric, ‘The ‘Civilisation’ of the Criminal
Law’ (2001) 25 Criminal Law Journal 197. These are the most serious offences and relate to
matters such as armed robbery and sexual offences. Further, an approximate 300,000 offences
are dealt with in the Magistrates’ Courts. The offences dealt with at this level relate to a
hotchpotch of behaviour. They range from burglary and assault to travelling on a train without
a ticket and playing games to the annoyance of another. It is difficult to generalise about the
nature of the offences dealt with at this level. For example, in terms of the twenty most common
offences about half relate to behaviour which infringes the rights of another (for example, theft,
burglary, and unlawful assault); the other half are comprised of victimless offences such as the
use of a drug of dependence, the refusal to furnish a return, intoxication in a public place, and
unlicensed driving.
However, these offences only scratch the surface in terms of the number of total criminal
offences charged each year. In fact, about 85 per cent of criminal offences never reach court.
Instead, they are dealt with on the spot by means of an infringement notice. The ratio of matters
dealt with on the spot to that determined by the courts exceeds 7 to 1: M Bagaric, ‘Instant
Justice? The Desirability of Expanding the Range of Criminal Offences Dealt with on the Spot’
(1998) 24 Monash University Law Review 231. Most of these offences are simply regulatory in
8 PART 1: Overview
nature, and aimed at controlling and deterring certain behaviour. They are typically victimless,
strict liability offences. In 1990–91, for example, the ten most common infringement notices
which were sent to court for enforcement were exceeding the speed limit over 15 km/h and less
than 30 km/h, leaving a vehicle in a no standing area, speeding less than 15 km/h over the limit,
leaving a vehicle longer than the period fixed, leaving a vehicle at an expired meter, not wearing a
seatbelt, leaving a vehicle in a carriageway, parking within 9 metres of an intersection, travelling
without a ticket, and leaving a vehicle in a no parking area: R Fox, Criminal Justice on the Spot:
Infringement Penalties in Victoria (1995).
All of these offences constitute paradigm instances of regulatory offences that do not seek
to protect any recognisable right. It is therefore untenable to suggest that there is connection
between the criminal law and contemporary moral discourse; the weight of numbers is
simply crushing. Thus, the only apparent rationale for criminalising such conduct is that it is
presumed to be an effective practical means of controlling and regulating the relevant conduct.
The criminal law is a relatively cheap, convenient, and swift means of reinforcing a system of
regulation. Economic considerations and reasons of expediency are treated as outweighing any
argument that the criminal law should be reserved for the most antisocial form of behaviour:
A Ashworth, Principles of Criminal Law (2nd edn, 1995) 50.
The other main moral theory is consequentialism. Many consequentialist moral theories
have been advanced such as egoism and utilitarianism. The most influential in moral and
political discourse is hedonistic act utilitarianism. This theory provides that the morally right
action is that which produces the greatest amount of happiness or pleasure and the least amount
of pain or unhappiness.
From a utilitarian perspective, the criminal law should seek to protect and enforce important
human interests that are necessary for humanity to flourish. This approach appears to justify
a far wider range of criminal offences than rights-based moral theories. A tenable utilitarian
argument can be made in favour of criminalising much of the conduct that is prohibited by
even the most trivial of regulatory offences. For example, it could be argued that it is morally
permissible to forbid the riding of a bicycle without a helmet because it reduces the risk that
cyclists will become a burden to the community by utilising scarce public health dollars.
Similarly, it could be asserted that parking offences are justifiable because parking in a no parking
zone may inconvenience others more than it benefits the offender.
However, an argument along such lines would be weak. Every legal prohibition to some
degree encroaches upon personal liberty. Personal liberty weighs very heavily on the utilitarian
scales because the capacity for people to lead their lives in accordance with their own ideas is
an important ingredient for happiness. Further, in so far as regulatory offences are concerned,
the other side of the scales appears to be lightened for two reasons. First, the interests sought
to be protected by regulatory offences are generally not very important. Second, the risk of
harm inherent in the conduct is normally remote. Ultimately, the scales appear to militate in
favour of foregoing the use of the criminal law to regulate such conduct. As noted by Feinberg,
the interference by the criminal law with trivia is likely to cause more harm than it prevents: J
Feinberg, The Moral Limits of the Criminal Law, Offense to Others (1986). Similarly, Bentham
argued that one of the circumstances in which criminal punishment should not be inflicted is
where it is unprofitable or too expensive because the harm inflicted by the punishment is greater
than the harm it prevents: J Bentham, Introduction to the Principles of Morals and Legislation
(1789).
However, even if it is possible to provide a utilitarian and, therefore, a moral explanation for
the bulk of our criminal laws, this is not a basis for distinguishing between the criminal and civil
wrongs. At its highest, the utilitarian theory of morality provides a necessary, but not a sufficient
criterion for criminalising certain behaviour. This is because the harm that is caused by breaches
of the civil law is certainly no less than that occasioned by breaches of the criminal law.
The purchaser who fails to honour a contract for the sale of land, the solicitor who gives
incorrect legal advice, the builder who is six months late completing a home, the doctor who
fails to diagnose an illness, the plumber who arrives an hour late to fix the broken pipe, the
storeowner who fails to mop up a spill in his or her shop, the taxi-driver who, as a result of a
wrong turn gets his or her passenger late to the airport, the telecommunications company that
disconnects the wrong telephone line, and the energy company that fails to prevent a power
blackout—are all guilty of conduct which actually or in all likelihood causes a far greater amount
of unhappiness than occurs as a result of a failure to register one’s dog, driving at 70 km/h in a
60 km/h zone, flying a kite which annoys another, or parking too long at a parking meter.
Thus, even if it could be asserted that there is a general overlap between the criminal law
and morality on the basis that most criminal offences relate to conduct which has at least the
potential to cause unhappiness to either the agent or another, this does not form the basis for
a coherent distinction between civil and criminal wrongs. Civil wrongs are generally no less
harmful than the great majority of criminal offences.
Accordingly, it seems that the decision to make an activity a criminal offence is devoid of a
moral justification.
1.2.3 Possible reform suggestions

To remedy this situation, there are at least two possible approaches that the legislature can
undertake. The first is to narrow the range of conduct proscribed by the criminal law by limiting
the criminal law to breaches of important moral principles. This would likely result in the
decriminalisation of a large volume of conduct. Conduct such as littering and illegal parking
could still be deterred (though perhaps not as effectively) through civil sanctions.
An alternative and more radical approach would be to do away with the distinction between
the criminal and civil law. One could merely treat a breach of the law as just that—a violation
of the law where the law is treated as a unified institution devoid of any demarcation between
civil and criminal liability. Such a unification would provide the state with the option of being
the party that enforces all breaches of the law. The relative seriousness of the breaches could
be reflected by the different orders that are available for the respective types of conduct. Thus,
murderers would still be imprisoned and contract breachers would still be forced to compensate
the other party for the breach; however, the label (criminal or civil) ascribed to the body of
law to which a particular legal dispute relates would be irrelevant to the determination of the
dispute and the legal ramifications stemming from it.
Both approaches are doctrinally consistent and arguably represent an improvement over the
present situation. The viability of the first approach will turn primarily on the possibility of
fashioning a moral theory that provides a justification for the criminal law. In our view, this
10 PART 1: Overview
is not insurmountable. The main obstacle to the second approach is the pragmatic difficulties
involved in expanding the role of the state to enforcing breaches of all laws.
Questions
1.1 After you have completed reading this book, re-read the above discussion. Do you
agree with the discussion? Are there other possible definitions or justifications of
crime?
1.2 Which of the two reform options discussed above is the most persuasive? Why?
1.3
The purposes of criminal laws: the connection
between crime and punishment
1.3.1 Theories of punishment
As noted in the above section, there is close connection between crime and punishment. In
a sense, punishment constitutes the ‘sharp end’ of the criminal law. It involves the deliberate
infliction of pain on an offender by the community.
Punishment is the study of the connection between wrongdoing and state-imposed
sanctions. The main issue raised by the concept of punishment is the basis upon which the evils
administered by the state to offenders can be justified. Sentencing is the system of law through
which offenders are punished. The main issues that must be addressed by any sentencing
system are the types of sanctions that are appropriate and the factors that are relevant in fitting
the sanction to the crime. Thus, sentencing and punishment are inextricably linked, with
punishment being the logically prior inquiry. In order to properly decide how and how much to
punish, it must first be decided on what basis punishment is justified and why we are punishing.
For example, the lex talionis, an eye-for-an-eye theory of punishment, requires us to select a
sanction that, as far as possible, equates with the nature of the crime. This stands in contrast
to the communicative theory of punishment, which favours sanctions that will best inform
offenders of the wrongfulness of their crimes.
Philosophical discussion in the area of punishment has been largely confined to the
justification of punishment. On the other hand, legal analysis has primarily focused on
sentencing issues. Oceans of ink have been spilt on each issue, and despite the logical dependence
of sentencing on punishment, the spills have rarely merged; as a result, punishment and
sentencing have generally evolved with only a cursory consideration of one another. However,
there is logically a need for greater integration between the justification for punishment and
sentencing law. In order to decide how offenders should be punished, we must first ascertain
why we are justified in punishing offenders. Only then can the means (sentencing) be tailored
to suit the ends.
There are two main theories of punishment that have been advanced. Utilitarianism is the
view that punishment is inherently bad due to the pain it causes the wrongdoer, but is ultimately
justified because this is outweighed by the good consequences stemming from it. These are
traditionally thought to come in the form of incapacitation, deterrence, and rehabilitation. The
competing theory, and the one which enjoys the most contemporary support, is retributivism.
All Australian jurisdictions examined in this book incorporate a mix of utilitarian and
retributive sentencing objectives: see Crimes (Sentencing Procedure) Act 1999 (NSW) s 3A;
Criminal Law (Sentencing) Act 1988 (SA) s 10; Sentencing Act 1991 (Vic) s 5; Sentencing Act
1995 (WA) s 6. Retributive theories of punishment are not clearly delineated and it is difficult
to isolate a common thread running through theories carrying the tag. All retributive theories
assert that offenders deserve to suffer and that the institution of punishment should inflict
the suffering they deserve. However, they provide vastly divergent accounts of why criminals
deserve to suffer. Despite this, there are broadly three similarities shared by retributive theories.
The first is that only those who are blameworthy deserve punishment and that this is the sole
justification for punishment. Thus punishment is only justified, broadly speaking, in cases of
deliberate wrongdoing. The second is that the punishment must be equivalent to the level of
wrongdoing. Finally, punishing criminals is just itself: punishment cannot be inflicted as a
means of pursuing some other aim. Accordingly, the justification for punishment does not turn
on the likely achievement of consequentialist goals; it is justified even when ‘we are practically
certain that attempts [to attain consequentialist goals, such as deterrence and rehabilitation]
will fail’: RA Duff, Trials and Punishments (1986) 7. Thus, it is often said that retributive
theories are backward-looking, merely focusing on past events in order to determine whether
punishment is justified in contrast to utilitarianism, which is concerned only with the likely
future consequences of imposing punishment.
It has been argued that retributivism cannot justify punishment: see M Bagaric, Punishment
and Sentencing: A Rationale Approach (2001). The most pervasive flaw with retributive theories
is that they cannot justify the need for punitive measures without resort to consequential
considerations. This expedient reliance on consequences undercuts the stability of many
retributive theories. Retributive theories that do not incorporate consequentialist considerations
are flawed because they lead to the unacceptable view that we should punish even if no good
comes from it. It has been suggested that utilitarianism is the most persuasive justificatory
theory of punishment.
1.3.2 The goals of sentencing

As noted above, it has been suggested that there are three good consequences that flow from
punishment: deterrence, incapacitation, and rehabilitation. However, recent empirical evidence
casts doubt on the efficacy of a state-imposed system of punishment to achieve some of these
objectives.
1.3.2.1 Deterrence
There are two broad forms of deterrence. Specific deterrence aims to discourage crime by
punishing actual offenders for their transgressions, thereby convincing them that ‘crime does
not pay’. General deterrence seeks to dissuade potential offenders from engaging in unlawful
conduct by illustrating the unsavoury consequences of offending. Available empirical evidence
12 PART 1: Overview
suggests that deterrence is achievable through criminal punishment, but only in a very narrow
form.
It is inordinately difficult to obtain information regarding the effectiveness of sanctions in
deterring offenders from committing offences at the expiry of a sanction. Offenders may not
re-offend for numerous reasons, apart from the fear of being subject to additional punishment.
The offending may have been a ‘one-off ’ event, a suitable opportunity may not again present
itself, rehabilitation may have occurred, or the offender may get a job.
However, the available evidence supports the view that severe punishment (namely
imprisonment) does not deter offenders; the recidivism rate of offenders does not vary
significantly, regardless of the form of punishment or treatment to which they are subjected:
M Bagaric, ‘Incapacitation, Deterrence and Rehabilitation: Flawed Ideals or Appropriate
Sentencing Goals’ (2000) 24 Criminal Law Journal 19 at 34–5. Thus, there is no empirical
evidence to suggest that offenders who are dealt with by way of one of the new sanctions, as
opposed to being sentenced to imprisonment, are more likely to offend.
When analysing the evidence concerning the efficacy of punishment to achieve general
deterrence, there are broadly two different levels of inquiry. Marginal deterrence concerns
whether there is a direct correlation between the severity of the sanction and the prevalence
of an offence. Absolute deterrence relates to the threshold question of whether there is any
connection between criminal sanctions and criminal conduct.
There is no firm evidence to suggest that increasing penalty levels results in a reduction
in crime. Following a comprehensive review of the evidence regarding marginal deterrence,
Zimring and Hawkins stated that:
Studies of different areas with different penalties, and studies focusing on the same
jurisdiction before and after a change in punishment levels takes place, show rather clearly
that the level of punishment is not the major reason why crime rates vary. In regard to
particular penalties, such as capital punishment as a marginal deterrent to homicide, the
studies go further and suggest no discernible relationship between the presence of the death
penalty and homicide rates: FE Zimring & GJ Hawkins, Deterrence: The Legal Threat in
Crime Control (1973) 29.
Nearly three decades have elapsed since this review. The most recent extensive literary review
on the topic has also failed to identify a link between heavier penalties and the crime rate: A
von Hirsch, Criminal Deterrence and Sentence Severity (1999) 47–8. See further, SD Levitt,
‘Understanding Why Crime Fell in the1990s: Four Factors that Explain the Decline and Six
that Do Not’ (2004) 18 Journal of Economic Perspectives 163.
The evidence relating to absolute deterrence, however, is much more positive. There have
been several natural social experiments, which have shown a drastic reduction in the likelihood
(perceived or real) that people would be punished for criminal behaviour. The key factor in these
events is that the change occurred abruptly—and the decreased likelihood of the imposition of
criminal sanctions was apparently the only changed social condition.
Perhaps the clearest instance of this is the police strike in Melbourne in 1923, which led
to over one-third of the entire state police being sacked: KL Milte & TA Weber, Police in
Australia (1977) 287–92. Once news of the strike spread, thousands of people poured into the
city centre and engaged in widespread property damage, looting of shops, and other acts of
civil disobedience such as assaulting government officials and setting fire to a tram. This civil
disobedience lasted for two days and was only quelled when the government enlisted thousands
of citizens, including many ex-servicemen, to act as ‘special’ law enforcement officers. This
riotous behaviour was in stark contrast to the normally law-abiding conduct of the citizens of
Melbourne. Similar civil disobedience occurred following the police strike in Liverpool in 1919
and the internment of the Danish police force in 1944.
Thus, although deterrence is effective, the evidence suggests that this is only true in the
limited sense, specifically that there is a direct connection between crime rates and some penalty;
a correlation between higher penalties and a reduction in the crime rate has not yet been found.
This means that while general deterrence justifies punishing offenders, it is of little relevance in
fixing the amount or type of punishment. This must be done by reference to other ideals. To this
end, as discussed below, the principle of proportionality, which provides that the punishment
should fit the crime, is the guiding determinant.
1.3.2.2 Incapacitation
Incapacitation involves rendering an offender incapable of committing further offences.
Apart from capital punishment, no sanction can ever hope to totally prevent offenders from
re-offending. All sanctions involve some degree of supervision or interference with the freedom
of the offender; for example, probation, licence cancellation orders, and community work
orders somewhat limit (if merely by reducing the hours left in the day) the opportunity for
further offending. Prison is the sentencing option that most effectively prevents re-offending.
Incapacitation is a means of protecting the community rather than an ends of punishment
and sentencing. Its efficacy cannot be judged by the height of the prison wall. In order for
incapacitative sentences to actually protect the community, it must be the case that the offenders
who are subject to such sanctions would have offended if they had not been restrained.
To this end, the existing evidence suggests that we cannot distinguish with any meaningful
degree of confidence between offenders who will re-offend and those who will not. Studies have
shown that in predicting dangerousness, psychiatrists are wrong most of the time: J Monahan,
‘The Prediction of Violent Behaviour: Toward a Second Generation of Theory and Policy’ (1984)
141(1) American Journal of Psychiatry 10. Another study revealed a false positive rate of about 65
per cent: see K Kozol, ‘Dangerousness in Society and Law’ (1982) 13 University of Toledo Law
Review 241. For an overview of the literature in this area, see R Edney & M Bagaric, Australian
Sentencing (2007) ch 3; Kirby J in Fardon v Attorney-General (Qld) (2004) 78 ALJR 1519 at
[124]–[126]. Despite some initial optimism, there is also a low success rate using predictive
techniques that draw upon more concrete supposed risk factors such as employment history and
the age at which a person first started offending: A von Hirsch, ‘Selective Incapacitation: Some
Doubts’ in A von Hirsch & A Ashworth (eds), Principled Sentencing (1998) 121–3.
The fact that a person has previously committed a serious offence is a particularly poor guide
to identifying future serious offenders. A recent study tracking the behaviour of 613 offenders
released from prison in New Zealand over a two-and-a-half-year period revealed that
those who would be classified as ‘serious offenders’ were no more likely to re-offend within two-
and-a-half years after release than ordinary offenders. Moreover, the study showed that they were
in fact less likely to re-offend within that time. It was also found that of all the serious offences
14 PART 1: Overview
committed by the entire sample group, the vast majority were committed by offenders who
were imprisoned for non-serious (or ordinary) offences. In total, only thirty of the sample of
613 offenders committed a serious offence within the follow-up period: see M Brown, ‘Serious
Violence and Dilemmas of Sentencing: A Comparison of Three Incapacitation Policies’ [1998]
Criminal Law Review 710.
The most recent extensive review of incapacitation research notes that current predictive
techniques ‘tend to invite overestimation of the amount of incapacitation to be expected from
marginal increments of imprisonment’: FE Zimring & G Hawkins, Incapacitation (1995) 86.
Our ability to predict which offenders are likely to re-offend is so poor that it has been estimated
that the increase in crime rate if prison use was reduced or abolished could be as low as 5 per
cent: J Cohen, ‘The Incapacitative Effect of Imprisonment: A Critical Review of the Literature’
in A Blumstein, J Cohen & J Nagin (eds), Deterrence and Incapacitation: Estimating the Effects
of Criminal Sanctions on Crime Rates (1978) 209. See further, SD Levitt, ‘Understanding Why
Crime Fell in the1990s: Four Factors that Explain the Decline and Six that Do Not’ (2004) 18
Journal of Economic Perspectives 163.
1.3.2.3 Rehabilitation
Rehabilitation, like specific deterrence, aims to discourage the commission of future offences
by the offender. The difference between the two lies in the means used to encourage desistence
from crime. Rehabilitation seeks to alter the values of the offender so that s/he no longer desires
to commit criminal acts. It involves the renunciation of wrongdoing by the offender and his
or her re-establishment as an honourable law-abiding citizen, and is achieved by reducing or
eliminating the factors that contributed to the conduct for which the offender is sentenced.
Thus, it works through a process of internal attitudinal reform, whereas specific deterrence
seeks to dissuade crime simply by making the offender afraid of again being apprehended and
punished.
There are numerous types of treatments that have been used in a bid to reform offenders.
Some attempt to deal with the perceived underlying cause of criminality by providing drug
and alcohol programs, or anger management courses. Newly developed cognitive-behavioural

programs encourage offenders to think before acting and also consider the consequences of
their actions. Other methods attempt to better equip offenders for life in the community via
educational or skills courses.
In a very influential paper based on extensive research conducted between 1960 and
1974, Martinson concluded that empirical studies had not established that any rehabilitative
programs had been effective in reducing recidivism: RM Martinson, ‘What Works? Questions
and Answers About Prison Reform’ (1974) 35 Public Interest 22 at 25. Recent evidence is more
promising. A recent wide-ranging review of the published studies in rehabilitation—which
compared the recidivism rate of offenders who were subject to rehabilitative treatment to those
who were not—led Howells and Day to conclude that there has been a significant degree of
success with cognitive-behavioural programs: K Howells & A Day, ‘The Rehabilitation of
Offenders: International Perspectives Applied to Australian Correctional Systems’ (1999) 112
Australian Institute of Criminology: Trends and Issues in Crime and Criminal Justice 1. These
programs target factors that are presumably changeable, and are directed at the ‘criminogenic
needs’ of offenders; that is, they are directed at those factors which are directly related to the
offending, such as antisocial attitudes, self-control, and problem-solving skills. Promising
programs have been developed in the areas of anger management, sexual offending, and drug
and alcohol use. These appear to be more successful than programs based on confrontation or
direct deterrence, physical challenge, or vocational training.
Despite such developments, the most that can be confidently said at this point regarding the
capacity of criminal punishment to reform is that there is some evidence that it will work for a
small portion of offenders and that there is no firm evidence that it cannot work for the majority
of offenders. However, ‘treatments do not … exist … that can be relied upon to decide sentences
routinely—that can inform the judge, when confronted with the run-of-the-mill robbery,
burglary, or drug offence, what the appropriate sanction should be, and provide even a modicum
of assurance that the sanction will contribute to the offender’s desistence from crime’: A von
Hirsch & L Maher, ‘Should Penal Rehabilitation be Revived?’ in A von Hirsch & A Ashworth
(eds), Principled Sentencing (1998) 26–7. See further, J Wilkinson, ‘Evaluating Evidence for the
Effectiveness of the Reasoning and Rehabilitation Programme’ 44 (2005) The Howard Journal
of Criminal Justice 70 at 81.
The more fundamental problem with invoking rehabilitation as an objective of punishment
is that rehabilitation (at least of the type which appears to be having some success) and
punishment may be inconsistent. Punishment by its very nature must cause pain. There seems
to be an inherent contradiction between deliberately subjecting one to pain and, at the same
time, attempting to get the offender to see things your way. The more tolerant, understanding,
and educative we are in trying to facilitate attitudinal change in others, the closer we come to
providing them with a social service. For example, cognitive-behavioural programs focus on
the needs of offenders and attempt to meet these needs by education and counselling aimed
to reshape offenders’ beliefs, attitudes, and values, thereby improving their problem-solving
capacity in order that they no longer engage in criminal behaviour. Such programs seem to
work better in community settings than in institutions. There is very little difference between
such programs and educational courses within the community (which are enthusiastically
undertaken by many law-abiding members of the community). This argument is emboldened
by the fact that many rehabilitative ‘sanctions’ cannot be ‘imposed’ without the consent of the
offender. By making the interests of the offender paramount, modern rehabilitative programs
are more akin to welfare services than punitive sanctions. In order for the goal of rehabilitation
to justify punishment, at the minimum, it must be shown that reform is attainable in a setting
that is primarily directed at imposing unpleasantness on the offender. There is no evidence in
support of this. Whether this tension between rehabilitation and punishment is irreconcilable
remains to be seen, but one suspects that it will be. This being the case, the aim of rehabilitation
is arguably misguided as an objective of sentencing.
It follows that the only objective of punishment which empirical evidence has shown
is attainable through a system of state-imposed sanctions is (absolute) general deterrence.
Although this justifies punishment, it does not set the amount of punishment. In terms of
fixing the amount of punishment, the cardinal determinant is the principle of proportionality,
which prescribes that the punishment should fit the crime. That the severity of the punishment
should be roughly commensurate with the gravity of the offence is one of the few principles
16 PART 1: Overview
of the debate in punishment and sentencing that has garnered widespread acceptance by
philosophers, legislatures, and the courts. Despite this, sentences for similar offences vary
widely from jurisdiction to jurisdiction and from court to court. The main reason for this is
that legislatures and the courts have not developed a workable way to match the two limbs of
the principle.
At this point we focus our attention on how legislatures can match the two limbs of the
proportionality principle. This, admittedly, is not an easy task. How many years of imprisonment
correlate to the pain endured by a rape victim? The main difficulty here is that the two currencies
are different. The interests typically violated by criminal offences are physical integrity and
property rights. At the upper end of criminal sanctions, the currency is deprivation of freedom.
The only conceivable way to give content to the proportionality principle is to adopt a uniform
standard for measuring the offence gravity and punishment severity. To this end, the only
tenable uniform currency appears to be unhappiness or pain. Thus, it has been suggested that the
amount of unhappiness caused by the punishment should be commensurate with the seriousness
of the offence: M Bagaric & R Edney, ‘What’s Instinct Got to Do With it? A Blueprint for a
Coherent Approach to Punishing Criminals’ (2003) Criminal Law Journal 1.
Questions
1.3 What is punishment?

1.4 What is sentencing?
1.5 What is the connection between punishment and sentencing?
1.6 What are the main theories of punishment?
1.7 What theory do you think is the most persuasive?
1.8 What are the main aims of sentencing?
1.9 Which aims of sentencing are achievable through a system of state-imposed
sanctions?
1.4 Sources of criminal law

The law of Australia is derived from the law of England. English law was, and to a large extent
remains, in the form of the common law. It was the judiciary, therefore, that was largely
responsible for the construction of the basic principles and doctrines, including the enunciation
of many crimes. By the nineteenth century, most of the fundamental doctrines of law had been
established. Thus, when the English came to Australia and annexed it to the British Empire,
they brought with them the common law of England. In short, the common law of England
governed Australia, although the particular details were varied as appropriate to the then infant
penal colony.
Since then two developments need to be noted. First, throughout and since the nineteenth
century, the various Parliaments in England and Australia have taken an increasingly
interventionist role in the creation of law. This created an extensive body of statutory law.
Second, in the context of criminal law, the statutory law took two forms: the statutes were either
restatements of the law in line with the basic structures of common law doctrines of criminal
responsibility; or they were codifying statutes that displaced the common law of crime.
The combined result of the distinctions between common law and statutory law, and between
statutory restatements and statutory codifications, is as follows. In Victoria, New South Wales,
and South Australia the primary source of criminal law is the common law and, as a general rule,
any legislation must be interpreted in the light of common law precepts—unless Parliament has
expressly, or by necessary implication, evinced a clear intention to displace the common law. In
other words, in resolving any statutory ambiguities, the courts are obliged to apply common law
principles in the absence of a clear legislative intention to do otherwise. These jurisdictions are
referred to as the common law jurisdictions. The main criminal law statutory provisions in these
jurisdictions are the Crimes Act 1900 (NSW); Criminal Law Consolidation Act 1935 (SA); and
Crimes Act 1958 (Vic).
On the other hand, Queensland, Western Australia, Tasmania, the ACT, and the Northern
Territory are referred to as the Code jurisdictions. In the Code jurisdictions, all crimes now
exist in statutory form as defined by the various Codes which have specifically supplanted the
substantive common law crimes. In Queensland, the Criminal Code Act was passed in 1899 and
came into operation in 1901. The Criminal Code Act is not the Code. The Code is found in a
schedule to the Act. It is prescribed that the Code is to be cited as the ‘Criminal Code’. In Western
Australia, a similar Criminal Code was incorporated into the Criminal Code Compilation Act
1913 (WA). In Tasmania, the Criminal Code was adopted in 1924 (see Criminal Code Act 1924
(Tas)), and in the Northern Territory the year was 1983 (see Criminal Code Act 1983 (NT)).
Australia has a federal system of government and, due to the various Constitutions in that
system, criminal law is primarily a matter for the states. However, there is also a federal criminal
jurisdiction created by the Commonwealth Parliament. In recent years, the Commonwealth
government, in consultation with state governments, has been developing a National Criminal
Code. It is currently in force, applying to all Commonwealth offences from 15 December
2001: Criminal Code Act 1995 (Cth). The origin of the Code dates to the mid 1990s, when
the Standing Committee of Attorneys-General (SCAG) established a committee known as the
Criminal Law Officers Committee (CLOC) consisting of ministerial advisers in crime from
the Attorneys-General departments from each Australian jurisdiction. The main purpose of
CLOC was to develop a national Model Criminal Code, though its organisation and function
was different from that of a law reform agency. CLOC first met in May 1991, though its name
was changed in November 1993 to the Model Criminal Code Officers Committee (MCCOC).
CLOC, and more recently MCCOC, has published around thirty publications, mainly in the
form of discussion papers (DP) followed by a final report (FR), though there have been a few
stand-alone publications (SAP) on model provisions. These publications cover quite varied
subjects within criminal law and their recommendations are often implemented on a voluntary
basis in Australian state, territorial, and federal criminal law Acts or Codes. However, there is
little momentum for a nationwide uniform Criminal Code. The only jurisdiction to adopt the
National Criminal Code is the ACT, which became a Code jurisdiction following the phased
commencement and application of the Criminal Code 2002 (ACT).
In addition to the differences noted above, Code jurisdictions also differ from common
law jurisdictions in that the courts are not obliged to construe legislation in accordance with
common law principles in the absence of a clear legislative intention to the contrary. In fact, the
18 PART 1: Overview
courts in these jurisdictions have stated that common law principles have no relevance in the
absence of contrary legislative indications. However, as will emerge in later chapters, the courts
in these jurisdictions understandably look to the common law for guidance in cases where the
legislation is unclear or the relevant terminology had a particular meaning at common law. In R
v Barlow (1997) 188 CLR 1 at 32, Kirby J stated:
At least in matters of basic principle, where there is ambiguity and where alternative
constructions of a code appear arguable, this Court has said that it will ordinarily favour the
meaning which achieves consistency in the interpretation of the language in the codes of
other Australian jurisdictions. It will also tend to favour the interpretation which achieves
consistency as between such jurisdictions and the expression of general principle in the
common law obtaining elsewhere.
Over the last decade or so, the members of the High Court have displayed a tendency to (a)
sever the connection between the common law of England and the common law in Australia,
and (b) develop a national criminal law. The latter tendency is marked in their various attempts
to discover underlying harmonies among the criminal laws of the Code jurisdictions and the
common law jurisdictions: see R v Barlow (1997) 188 CLR 1 above.
The general method of handling jurisdictional diversity in this book is (a) to analyse the
relevant common law principles for each topic and then (b) to discuss statutory developments
in the common law jurisdictions of New South Wales, South Australia, and Victoria. We discuss
the position in Code jurisdictions only where judgments in these jurisdictions illuminate the
common law position. Relatively speaking, few people are prosecuted at the federal level for the
range of offences considered in this book. Thus, we do not closely examine the Commonwealth
Criminal Code.
1.5 Criminal capacity

For purposes of the criminal law, who or what has the capacity to incur criminal liability? The
assumption is that every person is capable of committing crimes and being held criminally
responsible for those crimes. This assumption is, however, subject to a number of exceptions
that warrant brief discussion. These exceptions run throughout the entire criminal law process,
and therefore constitute general exceptions rather than particular exceptions to specific crimes.
An example of a particular exception is that, until recently, a husband could not be convicted as
a principle in the first degree of the rape of his wife. It was considered axiomatic that a husband
did not have the capacity to rape his wife.
1.5.1 Children
The common law doctrine of doli incapax stated that a person under the age of seven years
is incapable of committing a criminal offence. By virtue of legislation this doctrine has been
altered and the minimum age at which a person is deemed capable of committing a crime is now
ten: Children (Criminal Proceedings) Act 1987 (NSW) s 5; Young Offenders Act 1993 (SA) s 5;
and Children, Youth and Families Act 2005 (Vic) s 344.
Legal issues of capacity arise, however, where the person is over the age of ten and under the
age of fourteen at the time of the alleged crime. There is a rebuttable presumption that children
who are over the age of ten and under the age of fourteen are incapable of committing a crime.
In these instances, therefore, the prosecutor must not only prove the elements of the crime(s)
in question and the child’s complicity therein beyond a reasonable doubt, but also prove by the
same standard of proof that at the time of the alleged criminal act or omission, the child knew
that his or her conduct was wrong in the sense that it was in contravention of the standards
which govern the behaviour of ordinary persons: R v M (1977) 16 SASR 589; R v Whitly
(1993) 66 A Crim R 462; C v DPP [1996] 1 AC 1. This requirement has not been rigorously
enforced in prosecutions other than homicides. In prosecutions for other types of crimes, the
prosecution typically satisfies its burden by adducing testimony from the police that the child
admitted to knowing that what s/he did was wrong in the relevant sense.
The most recent discussion of this doctrine was by the Victorian Court of Criminal Appeal
in R v ALH (2003) 6 VR 276; [2003] VSCA 129 (4 September 2003). The court noted that
at common law there exists a rebuttable presumption that a child under fourteen years of age is
incapable of committing a crime and that the presumption may be rebutted by evidence that the
child knew the acts were seriously wrong. The noted anomaly that had developed in relation to
the doctrine was the prohibition upon use of the mere facts of the offence as evidence capable of
proving the requisite knowledge in the child that the act or acts were seriously wrong. The court
disapproved of this principle. Eames JA (with whom Batt JA and Callaway J agreed) opined
at [74]:
I consider that the correct position is that proof of the acts themselves may prove requisite
knowledge if those acts establish beyond reasonable doubt that the child knew that the act
or acts themselves were seriously wrong. Further, I consider that the traditional notion of
presumption is inappropriate. I consider that the better view is that the prosecution should
prove beyond reasonable doubt, as part of the mental element of the offence, that the child
knew the act or acts were seriously wrong. Such a requirement is consonant with humane
and fair treatment of children. It is part of a civilised society.
In this regard the court refused to follow the decision in C v Director of Public Prosecutions
[1996] AC 1.
Supplementing this doctrine of capacity in all Australian states is the process of juvenile
justice, which establishes separate and distinct procedures for children. In Victoria, for example,
the Children’s Court has exclusive jurisdiction over most crimes committed by persons who are
over the age of ten and under the age of eighteen at the time of the commission of an offence:
Children, Youth and Families Act 2005 (Vic) s 516. There are, however, some exceptions to this
general rule. The first is that the Children’s Court lacks jurisdiction to adjudicate all homicide
offences (save for infanticide under s 6 of the Crimes Act 1958 (Vic)) as well as the offence
of attempted murder. The second exception is that in ‘exceptional circumstances’, the court
may exercise discretion to decline jurisdiction and order that the matter be transferred to the
Magistrates’ Court. In this context, exceptional circumstances may include instances in which
the defendant was under the age of eighteen at the time the offence was allegedly committed,
but has reached the age of nineteen or above by the time proceedings were actually commenced
20 PART 1: Overview
in the Children’s Court; exceptional circumstances may also include situations where, due to
the seriousness of the alleged crime(s) and/or the advanced age of the accused, the court is of
the view that it would be more appropriate to try the defendant as an adult in the Magistrates’
Court. The ‘exceptional circumstances’ that may be taken into account are enumerated in sub-ss
516(5)(a)–(h) of the Children, Youth and Families Act 2005 (Vic). Finally, if the defendant is
charged with one or more indictable offences, he or she (or his or her parent) may opt to have
the charges adjudicated by a jury in the County or Supreme Court: ss 3(1), 356 and 516 of the
Children, Youth and Families Act 2005 (Vic). The jurisdiction of the Children’s Court is further
enhanced by s 20C of the Crimes Act 1914 (Cth) which provides that all Commonwealth
offences committed by children are to be treated as though they were offences against the
state or territory in question. For purposes of this section, a ‘child’ is a person under the age of
eighteen: Crimes Act 1914 (Cth) Part 1AD, s 15YA.
A similar framework exists in South Australia. The presumption of doli incapax has been
affirmed in R v M (1977) 16 SASR 589. The Youth Court of South Australia is established by
the Youth Court Act 1993 (SA). This court has power to deal with children of or above the age
of ten years and under the age of eighteen years at the date of the alleged offence (Youth Court
Act 1993 (SA) s 10). The Youth Court deals with all charges, except for those referred to in the
Young Offenders Act 1993 (SA) sub-s 17(3), which lists the following exceptions:
If—
(a) the offence with which the youth is charged is a homicide, or an offence consisting of
an attempt to commit, or assault with intent to commit homicide; or
(b) the offence with which the youth is charged is an indictable offence and the youth,
after obtaining independent legal advice, asks to be dealt with in the same way as an
adult; or
(c) the Court or Supreme Court determines, on the application of the Director of Public
Prosecutions or a police prosecutor, that the youth should be dealt with in the same
way as an adult because of the gravity of the offence, or because the offence is part of
a pattern of repeated offending,
the Court will conduct a preliminary examination of the charge, and may commit the youth
for trial or sentence (as the case requires) to the Supreme Court or the District Court.
With regard to New South Wales, see the Children (Criminal Proceedings) Act 1987 (NSW)
which deals with the conduct of criminal proceedings against children and other young persons.
1.5.2 Corporations
Corporations are responsible for a significant amount of harm. As noted by the New South
Wales Law Reform Commission in Issue Paper 20 (2001), [1.8]:
Corporate crime poses a significant threat to the welfare of the community. Given the
pervasive presence of corporations in a wide range of activities in our society, and the impact
of their actions on a much wider group of people than are affected by individual action, the
potential for both economic and physical harm caused by a corporation is great. There is a
substantial body of literature that considers corporate crime to be a serious social problem,
despite what some may argue to be relatively less media coverage than crimes committed
by individuals, at least in the tabloid newspapers, and despite the lack of comprehensive
empirical research into the costs and incidence of corporate misconduct. In the area of
workplace safety, for example, statistics from WorkCover NSW reveal that there was a total
of 163 reported employment fatalities in New South Wales in the financial year 1998/99,
and 55,492 employment injuries for that same period, 25.8% of which were reported as
permanent disability cases. The gross incurred cost of employment injuries for that year
was $854 million.
As noted above, every person is presumed capable of committing crime. But is a corporation
considered a person in terms of having the legal capacity to incur criminal liability? The short
answer is that corporations do in fact have the legal status of persons and can incur criminal
liability under certain circumstances.
At common law a corporation may only act through its officers or employees. The question
then becomes one of determining which acts of a corporation’s officers or employees may be
attributed to the corporation. At common law there are two approaches, both of which are
predicated on the notion that a corporation should only be liable for conduct on the part of its
agents, which can fairly be regarded as the conduct of the corporation itself.
The first approach involves the doctrine of vicarious liability, in which the acts of the
employee in the course of his or her employment are attributed to the corporate employer:
Morgan v Babcock Ltd (1929) 43 CLR 163. According to this approach, the central legal issue
is whether the employee was acting within the scope of his or her employment. The second
approach involves the doctrine of identification. Under this doctrine, the law treats the acts and
mentality of the superior officers of the company as the acts and mentality of the company itself:
Universal Telecasters (Qld) Ltd v Guthrie (1978) 18 ALR 531. The now classic formulation of
the doctrine states that:
A company may in many ways be likened to a human body. It has a brain and a nerve centre
that controls what it does. It also has hands which hold the tools and act in accordance with
directions from the centre. Some of the people in the company are mere servants and agents
who are nothing more than hands to do the work and cannot be said to represent the mind
or will. Others are directors and managers who represent the directing mind and will of the
company, and control what it does. The state of mind of these managers is the state of mind
of the company and is treated by the law as such. … In cases where the law requires a guilty
mind as a condition of a criminal offence, the guilty mind of the directors or managers will
render the company itself guilty: HL Bolton (Engineering Co) Ltd v TJ Graham & Sons Ltd
[1957] 1 QB 159 at 172.
The primary legal issue on this approach will be identifying the superior officer who credibly
represents the ‘hands’ and ‘mind’ of the company. Because a corporation’s legal status as a person
is purely fictional, a corporation itself cannot be subjected to imprisonment. It can, however, be
sanctioned by various other means such as fines and/or revocation or suspension of its right to
conduct business. See the Criminal Code (Cth) ss 12.1–12.6.
22 PART 1: Overview
On either approach, the criminal law has acute difficulty in attributing responsibility to
corporations for certain offences, such as homicide. This is due in part to the fact that homicide
is typically envisioned as one human being killing another. As Chris Corns remarks, ‘[t]here
is a cultural and linguistic resistance to construing artificial persons, such as corporations, as
killers’: C Corns, ‘The Liability of Corporations for Homicide in Victoria’ (1991) 15 Criminal
Law Journal 351 at 351–2. This image flies in the face of reality. In a three-year period ending
in 1990, there were some 203 workplace deaths in Victoria that were attributable to some
level of corporate negligence. Given the reluctance to attribute responsibility to corporations
for homicide, it is no surprise that the first conviction for corporate manslaughter in Victoria
occurred as late as 1994, when Denbo Pty Ltd pleaded guilty and was fined $120,000. Note,
however, that Denbo was in liquidation at the time and was able to avoid paying the fine—
although it did resume its activities under a new corporate name and personality.
However, more recent approaches to corporate criminal liability have greatly expanded the
range of offences in relation to which corporations may be liable.
A corporation can generally be convicted of the same offences as a natural person, such as
offences involving fraud or theft, some drug offences, offences that pervert the course of justice,
and contempt of court. Corporations can attract criminal liability as accessories to a crime as well
as principals, and as parties to a conspiracy. It is open to question whether a corporation can be
convicted of murder (at least in New South Wales) or manslaughter. Some commentators have
suggested that corporations should not be convicted of certain crimes, which would inherently
require an act by a natural person, such as perjury or a sexual offence. Others have disputed this
claim, arguing that, in this context corporate liability should arise where the criminal acts were
committed by a manager or employee of the corporation, in accordance with general principles
of corporate criminal liability: New South Wales Law Reform Commission, Issue Paper 20
(2001) para 2.2. The ACT has become the first Australian jurisdiction to create the offence of
industrial manslaughter: see Crimes Act 1900 (ACT), ss 49A–49E, which came into operation
in 2004.
Question
1.10 In principle, is there any reason that a corporation cannot be convicted of murder or
rape?
1.6 Classification of crimes

Traditionally, offences have been classified as either felonies or misdemeanours. The significance
of this distinction is that felonies are typically more serious than misdemeanours in terms of
the possible sanctions to be imposed upon conviction. The last jurisdiction to maintain the
felony/misdemeanour distinction was New South Wales. However, this distinction has now
been abolished in this jurisdiction as well. A felony is taken to be a reference to a ‘serious
indictable offence’, and a misdemeanour is now termed a ‘minor indictable offence’: Crimes Act
1900 (NSW) s 580E. In Victoria, the traditional classification was abolished by the Crimes
(Classifications of Offences) Act 1981 (Vic). In Victoria, crimes are now classified as being either
summary offences or indictable offences. A similar classification is adopted in South Australia:
Criminal Law Consolidation Act 1935 (SA) s 5D.
Summary offences, which are always in statutory form, are offences that are dealt with by
a magistrate sitting without a jury. Although the rules of evidence and procedure that govern
the disposition of summary offences are very similar to those that govern the disposition of
indictable offences, the determination of summary offences is called a ‘hearing’ rather than a
trial. Typically, summary offences are less serious (in the sense described above) than indictable
offences, or indictable offences which are triable summarily. In contrast, indictable offences
are those which are triable only before a judge and jury. Indictable offences that are triable
summarily are offences that, upon the consent of the parties designated by Parliament, are
triable summarily before a magistrate sitting without a jury. Unless all of the designated parties
consent to summary disposition, the matter will be treated as an indictable offence and disposed
of accordingly in the County or Supreme Court. Parliament alone decides whether an offence is
designated as summary, indictable, or indictable triable summarily.
Another method of classifying crimes is to draw a distinction between ‘offences against
the person’ and ‘offences against property’: see P Gillies, Criminal Law (4th edn, 1997) 399–
550, 551–660; KL Whitney, MM Flynn & PD Moyle, The Criminal Codes, Commentary and
Materials (5th edn, 2000) 45–237, 238–302. Offences against the person include, for example,
assaults and unlawful homicides. This category is sometimes subdivided into the categories of
fatal and non-fatal offences against the person, and between non-fatal sexual and non-sexual
offences against the person. Offences against property include such crimes as larceny or theft,
obtaining property by false pretences, embezzlement, receiving stolen property, obtaining credit
by fraud, blackmail, burglary, robbery, and many others. Supplementing these two categories are
the derivative or inchoate offences of incitement, attempt, and conspiracy (discussed in section
1.7.7 below). This type of classification has no substantive significance. For example, it does not
affect the manner in which the offences are prosecuted.
1.7
A doctrinal framework: general principles of
criminal responsibility
In this section, we provide an overview of the general principles that constitute criminal law
as a unified and determinate body of law. As general principles they will admit of exceptions,
and it has been suggested that they admit of so many exceptions that, in reality, their generality
has been hopelessly compromised. As a consequence, these so-called general principles may
be viewed as justifications, the main effect of which is to create an image of criminal law as
a rational, consistent, and certain system of legal rules. At the end of this book, you should
return to these general principles and ask yourself whether, in light of your study of the legal
definitions that ensue in the succeeding chapters, it is possible, or even desirable, to have such
a set of general principles. That said, this segment outlines the putative general principles of
criminal responsibility, which contribute to the criminal law’s self-image as a rational system of
formal legal rules.
24 PART 1: Overview
It is a general principle of criminal law that criminal responsibility may not be attributed to
a person unless s/he (a) has engaged in conduct that is forbidden by the criminal law (referred
to as the actus reus of the crime) and (b) possesses a mental state prohibited by the criminal law
(referred to as the mens rea of the crime). In addition, it is required that the prohibited mentality
exist at the time of the volitional act(s) or omission(s) giving rise to the prohibited conduct
(referred to as the requirement of ‘temporal coincidence’). These three principles are embodied in
the common law maxim: actus non facit reum nisi mens sit rea. This has been judicially interpreted
as meaning that the act itself does not constitute guilt unless done with a guilty mind.
The emphasis of the maxim is on the unity of the volitional act(s) or omission(s) component
of the actus reus and the mens rea. Stated differently, one does not incur criminal liability for one’s
volitional criminal act(s) or omission(s) alone, nor for one’s criminal mentality alone; rather, it
is only where there is a temporal coincidence between one’s criminal act(s) or omission(s) and
one’s criminal mentality that liability attaches. The nature of acts and omissions and their status
as an essential component of the actus reus of a crime will be explained in greater depth below.
The following is an in-depth discussion of the constituent elements of a crime. Suffice it to
say that this should be read with great care.
1.7.1 Elements of an offence

Each crime is comprised of certain elements, and each and every element must be present in
order for the crime to have been committed. For example, burglary at common law is defined
as: (a) breaking; (b) entering; (c) of a dwelling; (d) at night-time; (e) with intent to commit a
felony therein. Unless all five of these requisites are present, there is no crime of burglary.
The elements which comprise any particular crime are sometimes referred to as the corpus
delicti, a Latin term meaning ‘the body of the crime’. Thus, in the above example, elements (a)
through (e) would constitute the corpus delicti of the crime of burglary at common law.
In order to convict for the commission of a crime, the Crown must prove each and every
element which comprises the offence, and the defendant’s complicity therein, beyond a reasonable
doubt.
1.7.2 Mens rea

Many crimes require, as an essential element, that the defendant must have acted (or omitted
to act where s/he was under a legal duty to act) with a particular state of mind. When this is
so, that mental state is referred to as the mens rea component of that crime. Mens rea is a Latin
expression that means ‘bad or guilty mind’. In Australia, the mens rea component can consist
of one or more of the following mental states, depending upon the statutory or common law
definition of the crime:
• Intention—meaning that the defendant acted (or omitted to act) with the actual subjective
intention of bringing about one or more of the results forbidden by the definition of the
crime; or, according to some authorities, that the defendant acted (or omitted to act) with
the knowledge that one or more of the results forbidden by the definition of the crime
were practically certain to result: R v Hoskin (1974) 9 SASR 531 at 540; R v Hurley [1967]
VR 526 at 540; R v Brown (1975) 10 SASR 139 at 154.
• Knowledge—meaning that the defendant acted (or omitted to act) while holding certain
facts to be true. The term ‘knowledge’ is often used interchangeably with the terms ‘awareness’
and ‘foresight’ in this context.
• Belief—meaning that the defendant acted (or omitted to act) with the belief that certain
facts were true, albeit with some doubt or doubts as to their existence.
• Recklessness—meaning that the defendant acted (or omitted to act) with knowledge (or an
awareness or foresight) that there was a possibility, or depending on the type of crime, a
probability, that some or all of the results forbidden by the definition of the crime would
result from his or her conduct.
For a clear and thorough discussion of the concept of mens rea, see P Gillies, Criminal Law
(4th edn, 1997) 46–73.
Is negligence a mens rea? If the defendant’s conduct amounts only to ordinary negligence
where the defendant should have been aware of the risk but did not actually advert to it, the
prevailing view is that this does not constitute a mens rea. The reason is that ordinary negligence
is not a mental state, but merely conduct which falls below an objective standard of care required
by law to protect others from unreasonable risks of harm. On the other hand, recklessness (as
defined above) is in effect an aggravated form of negligence in which the defendant actually
adverts to a known risk and elects to proceed despite that awareness. It is because of the express
advertence factor that this particular form of negligence constitutes a mens rea: G Williams,
Criminal Law (2nd edn 1961) 53; see also GH Gordon, ‘Subjective and Objective Mens Rea’
(1975) 17 Crim Law Quarterly 355 at 372–81.
It must be emphasised that when viewed in isolation, recklessness or any other mens rea
is merely a state of mind which neither amounts to any form of negligence nor gives rise to
criminal liability. It is only when an accused’s reckless state of mind temporally coincides with
a voluntary act or omission that poses an unreasonable risk of harm to another or others that
it rises to the level of aggravated negligence (see discussion below regarding voluntary acts/
omissions (at 1.7.3) and temporal coincidence (at 1.7.4)). On the other hand, if an accused
acts or omits to act while adverting to a risk that does not pose an unreasonable risk of harm to
another or others, his or her conduct does not amount to any form of negligence. Thus, the term
‘recklessness’ has two separate and distinct usages in the criminal law. As a mens rea, it merely
denotes a state of mind whereby an accused adverts to the fact that his or her conduct may
result in the consequences forbidden by the common law or statutory definition of the offence
in question. As an aggravated form of negligence, it denotes a combination of a mens rea that
temporally coincides with a volitional act or omission that poses an unreasonable risk of harm
to another or others.
Not all crimes are defined in such a way as to require, as a constituent element, that the
accused must have acted with one or more of the mens reas discussed above. When that is so, the
crime is properly referred to as one of non-mens rea. Conversely, a crime is properly referred to
as one of mens rea if it is defined in such a manner as to require that the accused must have acted
with one or more of the aforementioned mens reas.
Although not all crimes are of the mens rea variety, all crimes have an actus reus component.
All of the non-mens rea elements of a crime, as defined by its statutory or common law definition,
are collectively referred to as the actus reus, a Latin expression which means ‘bad act’. In the
26 PART 1: Overview
above example of burglary at common law, therefore, the actus reus would consist of elements
(a) through (d), and the mens rea would consist of element (e).
1.7.3 Actus reus

The actus reus component of a crime consists of more than merely its external or non-mens rea
elements as defined by its statutory or common law definition. As a matter of common law
doctrine, the actus reus component of a crime requires that the non-mens rea elements must be
the result of a voluntary act or omission to act where the law imposes a duty to act. In other words,
there must be a causal connection between the act or omission and the non-mens rea elements
of the crime. There are, however, rare instances in which Parliament defines an offence in such a
way as to dispense with this requirement. These rare types of crimes are referred to as ‘situational
offences’. The nature of these offences is explained by Peter Gillies:
Some offences are of such a nature that their actus reus consists of nothing more than D’s
relationship with, or other implication in, a static situation. Such offences have been termed
‘situational offences’. The classic example is the offence of being the licensee of prescribed
premises on which is found a person during prohibited hours, who is there for an unlawful
purpose. Others include being the occupant of a place used for unlawful gaming, or for the
purpose of prostitution.
These offences are generally of a minor nature, and have been created by statute. They
do not require proof of conduct on the part of D, whether it be activity or inactivity. No
doubt the typical ‘situation’ will have arisen because of D’s activity or inactivity, but the
actus reus does not extend to these acts and thus they will not need to be proven. In short,
they are not part of the offence of this type.
It may be that situational offences represent an exception to the general rule that D
must act (or fail to act) voluntarily, because their actus reus does not include conduct on D’s
part. For example, the licensee who is asleep while another person is on the premises during
prohibited hours for an unlawful purpose is, notwithstanding the licensee’s unconscious
state, prima facie liable for the offence of this type: P Gillies, Criminal Law (4th edn, 1997)
32–3 (footnotes omitted).
As will be seen in Chapter 13, an accessorial liability is yet another instance in which it is not
necessary to demonstrate a legal causal nexus between the accessory’s encouragement and/or
assistance of the principal offender(s) and the latter’s criminal conduct .
For an act to be regarded as voluntary, it must consist of some willed muscular movement. A
muscular movement is deemed as willed if it results from a conscious decision to move a portion
of one’s body. Acts done while sleepwalking, for instance, would not amount to voluntary acts
in the relevant sense. Similarly, an omission to act (where the law imposes a legal duty to act)
is regarded as voluntary if it results from a conscious decision to refrain from acting. Therefore,
involuntary movements such as reflex actions cannot constitute voluntary acts or omissions.
In short, while the term actus reus generally denotes the non-mens rea elements of a crime,
it does have a minimal mental component: the requirement of a willed muscular movement or
a conscious decision to refrain from acting. It is important to note, however, that this minimal
mental component of the actus reus requires nothing further such as any particular motive or
other state of mind. If any further state of mind is required by the definition of the crime, it will
constitute a mens rea.
The voluntary act or omission to act can consist of more than one act or omission in certain
circumstances. With the common law crime of burglary, for example, the elements of breaking
and entering need not occur at the same time. If the defendant does the breaking on Monday
and the entering on Tuesday, it is obvious that both elements cannot be brought about by a
single voluntary act. All that is necessary is that both elements are the result of voluntary acts
rather than reflexive or other involuntary movements of the body. In the vast majority of cases,
however, the non-mens rea elements will result from a single voluntary act or omission to act.
An omission can form the actus reus of an offence only where a person is under a legal duty to
act. A duty to act will arise in the following circumstances: (a) where one is under a contractual
duty to act (a hired body guard, for example); (b) where one is under a statutory duty to act
(police officers, for instance, are typically under a statutory obligation to come to the aid of those
in peril); (c) where one is deemed to have voluntarily assumed a duty to act by undertaking to
rescue someone in peril: R v Stone and Dobinson [1977] QB 354; R v Taktak (1988) 34 A Crim R
334; and (d) where the defendant and victim have a special relationship. The last situation raises
the question of when the defendant and victim will be regarded as having a special relationship
of the type that will require the defendant to come to the aid of the victim when s/he is in a
position of peril. Although the courts have thus far declined to enunciate any clear answer, such
a relationship is generally found when the victim is in fact relying on the defendant to protect
him or her, the reliance is reasonable under the circumstances, and the defendant knows or has
reason to know of the victim’s reliance: Sutherland Shire Council v Heyman (1985) 157 CLR
424 at 508 (per Deane J); L Shaddock & Associates Pty Ltd v Parramatta City Council (1981)
150 CLR 225 at 235 (per Gibbs CJ); Caltex Oil Pty Ltd v The Dredge ‘Willemstad’ (1976)
136 CLR 529 at 555 (per Gibbs CJ). Although not an exhaustive list, these types of special
relationships have been held to exist between parents and minor children, spouses, common
carriers and passengers, innkeepers and guests, and primary or secondary school teachers and
pupils.
Thus, if a mother is a good swimmer and notices her four-year-old child drowning in the
neighbour’s pool, the law requires her to make a reasonable effort to rescue the child. If the
mother makes a conscious decision to walk away and do nothing and the child drowns, her
inaction will be considered a voluntary omission to act, which can give rise to criminal liability.
It is important to remember that a conscious decision to refrain from acting in any of the four
circumstances described above must also be a voluntary one if it is to serve as a predicate for
criminal liability. It will not be regarded as voluntary unless the defendant is aware that the
victim is in peril and the circumstances are such that the defendant can avert the danger without
a significant risk of suffering grievous bodily harm to himself or herself.
In summary, it is sufficient to state that the actus reus of an offence consists of: (a) the non-
mens rea elements of the offence as defined by its statutory or common law definition; and (b)
the voluntary act or omission to act which brings about those non-mens rea elements. While
there is a rebuttable presumption of sorts that the acts or omissions which bring about the
non-mens rea elements are of a voluntary nature, the prosecution will be required to prove this
beyond a reasonable doubt if evidence arises during the course of the trial which raises a genuine
28 PART 1: Overview
question as to their voluntariness. In Ryan v The Queen (1967) 121 CLR 205 at 217, Barwick
CJ enunciated the test of whether a genuine issue of voluntariness has been raised. His Honour
opined that the question to be determined by the trial judge is ‘whether upon that material a
jury would be entitled to entertain a reasonable doubt as to the voluntary quality of the act
attributed to the accused’.
As noted above, not all crimes are of the mens rea genre; that is, not all crimes require, as a
necessary element, that a person act intentionally, knowingly, recklessly, or with a certain belief in
bringing about some or all of the proscribed consequences. With the exceptions of involuntary
manslaughter and nuisance, all common law offences are of the mens rea type, and most have
now been codified into statutory offences with minor variations. With new statutory offences
that were not recognised at common law, it is not at all uncommon to find that a mens rea is not
required. An example of a non-mens rea statutory offence would be a statute making it unlawful
to operate a motor vehicle on a public highway that weighs in excess of a prescribed weight.
Statutes of this type typically do not require the Crown to prove a mens rea. The question of
whether such a statutory offence is one of mens rea is generally determined by the definition of
the offence as prescribed by the legislature. This is discussed below at 1.7.6.
1.7.4 The doctrine of temporal coincidence

We noted earlier that when an offence is one of mens rea, there can be no such crime unless
the mens rea and the voluntary act or omission which brings about the non-mens rea elements
concur in time. This is known as the doctrine of temporal coincidence. This doctrine is often
misstated as requiring instead that the mens rea and actus reus concur in time. To illustrate
why this formulation is flawed, suppose that D accidentally runs V down on a dark road and,
as a result, V dies several days later. If D decides hours after the accident that he wants V to
die, it is apparent that D has formed the requisite mens rea for murder (an intention to kill),
which coincides in time with the actus reus of murder (causing the death of another human
being). Although the actus reus of murder is not complete until the time of V’s death, there is
no disputing the fact that the actus reus is in progress from the moment of the accident and,
therefore, that temporal coincidence exists between the mens rea and the actus reus of the
crime. There is also little doubt that it would be wrong to hold D liable for murder under these
circumstances. To do so would effectively amount to imposing liability on D for nothing more
than his thoughts. If, on the other hand, D purposely runs V down with the intention of causing
his death, it would be equally incorrect if D were not liable for murder. The critical distinction
between these two scenarios is that in the latter, there is a concurrence in time between the mens
rea and the volitional act or acts (such as stepping on the accelerator, turning the steering wheel
to aim the vehicle in V’s direction, or both), which bring about the non-mens rea elements of
the crime. In the latter scenario, D’s liability is predicated on more than merely his culpable state
of mind; rather, D’s liability is based on the concurrence in time of a culpable mental state and
a willed act that is causally linked to the non-mens rea elements of the offence. This doctrine
was recently reaffirmed in Baker v The Queen [2010] VSCA 226 (9 September 2010). Relying
heavily on the High Court’s decision in Meyers v The Queen (1997) 147 ALR 440 at 441–442;
[1997] HCA 43, Maxwell P, with whom Buchanan and Bongiorno JJA concurred, opined at
[12]–[13]:
The Court recited the following passage from the reasons of Brooking JA (with whom
Teague J agreed) in the Court of Criminal Appeal:
The real question for the jury was that of the intention with which the applicant
did the acts which caused the fatal head injury. But that injury was not to be
considered in isolation from the other injuries. The whole altercation was one
episode. The fatal head injury, and its infliction, were not to be considered in
isolation from the other injuries sustained by [the victim] and indeed the whole
course of events in the applicant’s home that night, although the ultimate
question for the jury was whether the Crown had proved beyond reasonable
doubt that the acts causing death were accompanied by the necessary specific
intent. The infliction of injuries other than the fatal injuries was to be taken
into account by the jury in considering that ultimate question.
Importantly for present purposes, the High Court expressly agreed that the whole of the
circumstances could be looked at in order to determine whether the acts causing death
were accompanied by the necessary specific intent (that is, an intent to cause really serious
injury). Their Honours went on:
But it would not be correct to assume that the act which caused death—there
may have been only one such act—was accompanied by the intent which
accompanied all the other acts that occurred in the course of the fighting.
Although an intent to inflict really serious injury could reasonably be inferred
from the totality of the injuries inflicted on [the victim], it does not follow that
the appellant had that intent at the time when he did the particular act which
resulted in her death.
An accused person who unlawfully kills another is not guilty of murder
unless he does the particular act which causes the death with one of the specific
intents that is an essential element of the crime of murder. The particular act
and the intent with which it is done must be proved by the prosecution beyond
reasonable doubt. Act and intent must coincide. If the circumstances of a fatal
altercation are such that the prosecution can prove that some acts were done
with the necessary intent but cannot prove that other acts were done with that
intent, no conviction for murder can be returned unless there is evidence on
which the jury can reasonably find that the act which caused the death was
one of those done with the necessary intent. [Original emphasis; footnotes
omitted.]
In subsequent chapters you will discover that the doctrine of temporal coincidence can
be highly problematic in certain situations. When a strict application of the doctrine would
operate to absolve a person of criminal liability under circumstances where it appears unjust to
30 PART 1: Overview
do so, the courts have displayed a willingness to relax this requirement in order to reach what
they believe to be the just result.
Questions
1.11 Why is it incorrect to state that the doctrine of temporal coincidence requires that the
mens rea and actus reus must concur in time?
1.12 To which type of offence is the doctrine of temporal coincidence applicable?
1.13 If an offence is of the non-mens rea genre, does the doctrine of temporal coincidence
apply?
1.7.5 Defences
There are two types of criminal defences. The first is often referred to as a primary or ‘denial’
defence. A primary or ‘denial’ defence is one that asserts, based on the evidence adduced, that
the prosecution has failed to prove one or more of the constituent elements of an offence with
which an accused is charged and/or that the accused is the person who committed the alleged
crime. If, for example, an accused is claiming that the prosecution has failed to prove the requisite
mens rea, one or more of the actus reus components, or perhaps both, this would constitute a
primary or ‘denial’ defence.
The second category of criminal defence is often referred to as a secondary or ‘affirmative’
defence. With this type of defence, an accused is asserting that even if the prosecution has
proven each of the constituent elements of the offence and the accused’s complicity therein,
s/he is nonetheless entitled to an acquittal because of a defence that is recognised in law and
supported by the evidence adduced at trial. A classical example of a secondary or ‘affirmative’
defence would be that of self-defence to a charge of assault or criminal homicide. As you will
discover in subsequent chapters, there are a number of other defences that fall into this category,
such as provocation, duress, necessity, insanity, and diminished responsibility.
1.7.6 Strict liability

You should now be familiar with the essential components of a crime and the nature of the two
types of defences thereto; together they constitute the core of the general principles of criminal
law. There are, however, a range of legal definitions and principles that depart from this core and,
therefore, are grouped into separate categories. The law of strict liability represents one such
categorical departure.
Strict liability crimes are those that, by way of express statutory statement or judicial
interpretation, do not require proof of fault. Fault in this context denotes, at a minimum, that
the accused acted negligently in bringing about the consequences proscribed by the statutory or
common law definition of the crime(s) alleged. Fault in this context also includes any instance
in which an accused is found to have committed a crime of mens rea. Therefore, a crime of strict
liability is one which, by definition, does not require the prosecution to prove that the accused
acted with ordinary negligence or any of the recognised mens reas. As none of the offences
recognised at common law (with the exception of the crime of public nuisance) are of the strict
liability type, it follows that nearly all strict liability offences exist in statutory form.
An important decision dealing with the issue of whether crimes purporting to dispense with
a mens rea requirement should be strictly construed as such is He Kaw Teh v The Queen (1985)
157 CLR 523. The offences at issue in He Kaw Teh were under the Customs Act 1901 (Cth), and
dealt with the importation and possession of prohibited imports without reasonable excuse.
For many years, the courts had interpreted these offences as ones of non-mens rea. Thus, in the
typical case, it was necessary to prove only that the defendant engaged in the act of importing
or possessing a prohibited import; that is, the prosecution was not required to prove that the
accused had knowledge that what was imported or possessed was in fact a prohibited import. In
He Kaw Teh, the High Court held that both offences (importing and possessing) required proof
of a mens rea—in this instance, knowledge that what was imported or possessed was a prohibited
import. The result is that the prosecution is now required to prove that the defendant had
knowledge of the existence and nature of what s/he imported and possessed. In particular, the
court held that consonant with the notion that criminal sanctions are primarily designed to
further the interest of deterrence, all statutory offences are rebuttably presumed to be crimes
of mens rea. The rationale employed by the High Court was that the interest of deterrence is
not served by imposing criminal liability on those whose conduct is made criminal because
of circumstances of which they were unaware—or consequences which they could not have
reasonably foreseen (in other words, persons who do not act with a bad mind).
The court further held, however, that this presumption can be displaced (thereby making
the offence one of non-mens rea) by necessary implication when it appears that an additional
parliamentary intention in enacting the legislation was to aid in its enforcement, by coercing
people into taking effective measures to prevent the actus reus from occurring. The court held
that such a parliamentary intention would only be found in instances where it is reasonable and
practicable to take these types of effective preventive measures. Finding that it was not reasonable
and practicable to take such precautions in regard to the crimes at issue, the court held that
the presumption of mens rea had not been displaced by necessary implication; consequently,
that there could be no conviction unless the prosecution proved that the accused had actual
knowledge that what he had imported and possessed was a prohibited import.
It should be noted that the defences which are generally available to an accused may also be
interposed in relation to strict liability offences. There are two additional defences, however,
which are of specific application to strict liability crimes. The first consists of an honest
and reasonable belief in the existence of facts that, if true, would have made the accused’s
conduct perfectly lawful (known as the Proudman defence): Proudman v Dayman (1941)
67 CLR 536 (for a more recent decision reaffirming the Proudman defence, see CTM v The
Queen (2008) 236 CLR 440; [2008] HCA 25 (11 June 2008)). If Parliament has expressly
or by necessary implication abrogated this or some analogous statutory defence, the offence
is then referred to as one of absolute liability: He Kaw Teh v The Queen (1985) 157 CLR 523
at 533; Schmid v Keith Quinn Motor Co Pty Ltd (1987) 29 A Crim R 330 at 339. The second
is the ‘external intervention’ defence, which requires the accused to show that: (a) his or her
conduct occurred as the result of a stranger or non-human act; (b) s/he had no control over that
conduct; and (c) s/he could not have been reasonably expected to guard against such external
32 PART 1: Overview
intervention: Mayer v Marchant (1973) 5 SASR 567 at 573. This defence has been enunciated
primarily by the Supreme Court of South Australia. Its status in other jurisdictions is uncertain.
1.7.7 Inchoate crimes

This is another category of legal rules that departs from the legal image of the typical crime.
Inchoate crimes, which include attempt, incitement and conspiracy, are those in which the mental
element of the crime, although formed, is not fully expressed in the conduct of the accused.
With these types of crimes, the criminal law comes the closest to holding people criminally
responsible for their thoughts alone. The attribution of liability for inchoate crimes makes it
possible for the law to intercede pre-emptively, rather than idly stand by until the contemplated
crime reaches fruition. This represents a major extension of the range of conduct over which the
criminal law has jurisdiction. In this respect, it is significant that the law of inchoate crimes took
off in the late eighteenth and nineteenth centuries when the process of criminal justice oriented
itself around the problem of public order.
Although the inchoate offences are dealt with in great detail in Chapter 12, the crimes of
incitement and conspiracy are related to the law of participatory liability, which is considered
below. It is therefore appropriate to provide a cursory description of these offences before
proceeding to the next topic. Incitement consists of encouraging or attempting to induce or
persuade (or other analogous terms) another person to commit a crime. Conspiracy, on the
other hand, consists of an agreement between or among two or more persons to commit an
illegal act.
1.7.8 Participatory liability

In the contexts of the inchoate offences of incitement and conspiracy, the criminal law attributes
responsibility to individuals on the basis of their association with others and, as such, permits
the process of criminal justice to target groups. The laws of incitement and conspiracy are not,
however, the only areas of law in which the association with others (rather than the classic
solitary accused and single or multiple victims) forms the basis of criminal liability. As noted
earlier, the same is true regarding the doctrine of vicarious liability in the context of the capacity
of corporations to incur criminal liability. In this segment we examine yet another such area: the
law of participatory liability (sometimes termed as ‘complicity’).
At common law, the basic distinction of participatory liability is between principal parties
and accessories. A principal in the first degree is a party who personally performs part or all of
the actus reus of the crime. If two or more parties each perform a portion of the actus reus, then
each is considered to be a joint principal in the first degree. Robbery, for example, is basically a
theft that is accomplished by means of an assault. If D-1 and D-2 commit a robbery, whereby
D-1 holds a gun to V’s head and demands that he hand his wallet over to D-2 (and V complies),
it is apparent that D-1 and D-2 have each performed a portion of the actus reus of robbery; D-1
has performed the assault component and D-2 has performed the theft component.
The term principal in the first degree also encompasses those who are both present (meaning
within eyesight and/or earshot or at least in close enough proximity to render assistance to the
other joint principals) at the scene and ‘acting in concert’ as part of a pre-conceived agreement,
express or implied, to commit a crime. In these instances, each of the parties ‘acting in concert’ is
regarded as a joint principal in the first degree. In the above example, if D-1 and D-2 had agreed
to commit the robbery together, but D-1 had actually performed all of the actus reus elements
with D-2 standing at his side, D-1 and D-2 would have acted in concert and, therefore, would
be regarded as joint principals in the first degree. Whenever parties act as joint principals in the
first degree, the law attributes the act(s) of each joint principal to the other or others.
A principal in the second degree is one who is present at the scene of the crime and, though
providing assistance and/or encouragement to the principal(s) in the first degree, does not
significantly contribute to or actually perform any portion of the actus reus of the ulterior crime.
In the above example, therefore, suppose that the plan included another accomplice, D-3,
whose role was to wait in a nearby getaway car in order to assist D-1 and D-2 in escaping from
the scene. In this scenario, D-3’s participation would appear to represent a classic example of a
principal in the second degree. However, as D-3 was present at the scene and participated in
the crime as part of the pre-conceived plan, s/he too would be regarded as a joint principal in
the first degree. Thus, while it is theoretically possible to participate in a crime as a principal
in the second degree, in practice it would be extremely rare to encounter a situation in which
an accomplice to a crime, though present at the scene and lending his or her assistance or
encouragement to the principal offender(s), was not acting in concert with them as part of a
pre-conceived plan to commit the offence in question. If, for example, A were to unexpectedly
arrive at the scene of an unprovoked assault by B on C and suddenly decided to encourage B to
beat C to death, A’ s participation would be properly characterised as that of a principal in the
second degree—assuming there was no agreement between A and B, express or implied, to inflict
death or grievous bodily harm on C.
An accessory before the fact is a party who provides the same type of assistance or
encouragement as a principal in the second degree, except that s/he is not present at the scene
where the ulterior crime takes place. What is crucial to understand is that it is of no consequence
that only one or some of the parties may have actually performed the actus reus of the crime; that
is, each party to the joint criminal enterprise is personally liable for the crime to the same extent
as a principal in the first degree. It is also critical to understand that the liability of a principal
in the second degree or an accessory before the fact is derived solely from the liability of the
principal or joint principals in the first degree. Consequently, there can be no liability for such
secondary parties unless the prosecution is able to persuade the fact-finder of the guilt of at least
one principal in the first degree by the requisite standard of proof beyond a reasonable doubt
(see Chapter 13). Furthermore, the liability of the secondary party cannot be greater than that
incurred by the principal in the first degree.
In contrast, the liability of each joint principal in the first degree is not derivative, but
primary in the sense that the act(s) of one is regarded as the act(s) of the others. Thus, it is
theoretically possible that the liability of one joint principal in the first degree can exceed that
of another. In the example above involving A, B, and C, for example, suppose that unbeknown
to A, C had provoked B to such an extent as to reduce B’s liability from murder to that of
voluntary manslaughter. Assume further that despite the absence of a pre-conceived plan to kill
or seriously injure C, an express or implied agreement to do so was formed between A and B
during the course of the assault. The result could well be that A would be convicted of murder
and B of voluntary manslaughter. Since the liability of joint principal offenders is primary in
34 PART 1: Overview
the sense that the act(s) of one are the act(s) of all, it is only the act(s) of B that are imputed to
A and, therefore, A does not reap the benefit of C’s provocative acts of which he was unaware and
which induced B to kill.
Finally, there are accessories after the fact, who, though not providing assistance or
encouragement in the actual commission of the ulterior crime, take affirmative steps after its
commission to secrete one or more of the aforementioned participants, or otherwise assist
them in avoiding apprehension or prosecution—while knowing or believing that they have
committed the offence(s) in question. Under common law doctrine, an accessory after the fact
is also liable to the same extent as a principal in the first degree. By virtue of statutes in most
jurisdictions, however, an accessory after the fact is now subject to a far lesser punishment than
a principal in the first degree.
It is important to note that all participants to crime, other than principals in the first degree,
are commonly referred to as ‘secondary parties’. The mens rea and actus reus requirements for
secondary parties are thoroughly discussed in Chapter 13.
There remains one final and extremely important aspect of secondary party liability to be
addressed. At common law, under what is referred to as the common purpose doctrine, secondary
parties are not only liable to the same extent as a principal(s) in the first degree for the offence(s)
that were actually contemplated by the secondary parties and committed by the principal(s)
in the first degree, but also for any other crimes committed by them which the secondary
parties contemplated might be committed as incidental to the offence(s) actually contemplated.
Thus, if D-1 and D-2 agree to commit an armed bank robbery and D-2 knows that D-1 is
armed with a loaded handgun when he enters the bank, D-2 will not only be liable for the
armed robbery committed by D-1 as planned, but also for any murders or assaults that D-2
contemplated might be committed by D-1 as part of the planned criminal enterprise (but not
crimes committed by D-1 which D-2 did not contemplate as incidental to the armed robbery,
such as a rape committed by D-1 on one of the tellers as part of a personal frolic on his part).
Although there is scant authority on this point, the same principle seems to apply as between
or among joint principal offenders; that is, although the act(s) of one are considered the acts of
all and liability is therefore primary rather than derivative, this is only true with respect to acts
which the principal offender actually contemplated might be committed by one or more of the
other principal offenders as incidental to the pre-conceived criminal enterprise.
The common purpose doctrine denotes the situation (noted above) in which the parties to
crime are acting in concert pursuant to an agreed upon or pre-conceived plan to commit one or
more offences. The common purpose doctrine will be examined in greater depth in Chapter 13.
1.7.9 Transferred malice

With mens rea offences which require that an accused act intentionally or recklessly in bringing
about a forbidden result, the common law doctrine of transferred malice (or transferred intent
as it is sometimes referred to) can be an important factor. Suppose that without lawful excuse,
D throws a punch intended for V, which misses and strikes V-1. Although D is clearly guilty of
an attempted battery-type assault on V (the crime of attempt is discussed in Chapter 12), what,
if any, offence has D committed against V-1? Under the doctrine of transferred malice, when
an accused acts with the requisite mens rea to commit an offence against a particular person or
property and instead succeeds in causing the same type of harm to another person or property,
the law treats the accused in the same manner as if s/he had carried out the crime as intended;
that is, the law regards the mens rea as being transferred from the intended person or property to
that which is actually harmed: R v Newman [1948] VLR 61 at 64; R v Hunt (1825) 1 Moo CC
93; 168 ER 1198; R v Latimer (1856) LR 17 QBD 359 at 361; R v Bacash [1981] VR 923 at
925, 933. In the above example, therefore, the mens rea for assault (an intention to make contact
with V’s person) would literally follow the punch that ends up hitting V-1. It is important to
note, however, that the doctrine does not apply unless the accused ultimately achieves the same
offence that s/he intended. Another way of expressing this limitation is that the doctrine is
only applicable in instances where the actus reus of the intended offence is identical to that of
the resulting offence. Thus, if the punch that missed V had instead broken a nearby window
belonging to V, V-1, or any other person, the doctrine would not apply because the offence
ultimately committed by D (malicious mischief ) is different from the one that s/he intended
(assault).
As noted above, the doctrine is also applicable where the intended offence is one that
requires that an accused act recklessly in bringing about a forbidden result: P Gillies, Criminal
Law (4th edn, 1997) 77–78. To illustrate, assume that it is a statutory offence to recklessly
cause serious injury to another person without lawful excuse. Assume further that D sells his
car to V with knowledge that V is unaware that the brakes are in imminent danger of failing. If
V-1 then borrows the car from V and sustains serious injury when the brakes fail, D would be
guilty of this statutory offence by operation of the doctrine of transferred malice. Although D
contemplated that V might be injured in this manner, the actus reus of the same statutory offence
occurred when V-1 was injured in a similar manner. For an incisive and thorough discussion of
the doctrine of transferred malice, see RM Perkins and RN Boyce, Criminal Law (3rd edn,
1982) 921–6.
Question
1.14 Should the terms ‘transferred malice’ and ‘transferred intent’ be seen as misnomers
in so far as they imply that the doctrine applies only in situations where the intended
crime is one that requires that an accused act intentionally in bringing about a forbid-
den result? Why, or why not?
1.8 Burdens of proof

In several of the case extracts contained in this book, reference is made to the distinction
between the ‘legal’ and ‘evidential’ burdens of proof. The ‘legal’ burden of proof denotes the
burden of ultimately persuading the fact-finder of the existence, or non-existence, of a disputed
fact by whatever standard of proof is required by law. In criminal prosecutions, it is the Crown
that carries the ‘legal’ burden with respect to each and every element of the offence(s) charged—
and the identity of the accused as the perpetrator. The standard of proof by which the Crown
36 PART 1: Overview
must satisfy the judge or jury of these facts is the most stringently recognised in law: beyond
reasonable doubt.
The ‘evidential’ burden of proof denotes the burden of persuading the court that there is
ample evidence in support of a claim or defence to warrant a determination by the fact-finder
as to whether the ‘legal’ burden has been discharged. In criminal cases, the Crown bears the
‘evidential’ burden with respect to each and every element of the offence(s) charged—and the
identity of the accused as the perpetrator. The test for determining whether the Crown has
satisfied this burden is to ask whether the evidence, looked upon in the light most favourable
to the Crown, is such that a jury (or judge) could reasonably find that these facts have been
proven beyond a reasonable doubt. If the answer is ‘yes’, the burden has been discharged and the
Crown’s case will be submitted to the jury (or judge in the event of a bench trial). If the answer
is ‘no’, the charge(s) will be dismissed without the jury’s consideration.
When an accused is asserting a secondary defence (self-defence, for example), the situation
is more complex. Since the accused is the one asserting the defence, it is s/he who bears the
‘evidential’ burden with respect to each of the constituent elements of the defence. In this
particular context, the test for determining whether the accused has satisfied the burden is to
ask whether the evidence, looked upon in the light most favourable to the accused, is such that
a jury (or judge) could reasonably find that the Crown has failed to negate one or more of the
elements of the defence beyond reasonable doubt. If the answer is ‘yes’, the burden has been
met and the defence will be submitted to the jury (or judge in the event of a bench trial). If
the answer is ‘no’, the defence will not be submitted to the fact-finder. If the accused meets the
‘evidential’ burden, the Crown then assumes an additional ‘legal’ burden of negating the defence
beyond reasonable doubt. Because self-defence and the other secondary defences are comprised
of more than one constituent element, the Crown can satisfy this burden by negating any one
or more of these elements beyond reasonable doubt. Thus, while one should not underestimate
the difficulty in proving or disproving any fact by such an onerous standard, the Crown’s ‘legal’
burden in this context is not as weighty as it might appear.
The foregoing discussion raises the question of whether an accused is ever saddled with
a ‘legal’ burden. As a matter of common law doctrine, the answer is ‘no’, with one notable
exception. When insanity and diminished responsibility defences are interposed, the accused
bears both the ‘evidential’ and ‘legal’ burdens of proof. In addition, the standard of proof by
which these burdens must be discharged differs significantly from the ones noted above. To
satisfy the ‘evidential’ burden in this context, the accused must persuade the court that the
evidence, looked upon in the light most favourable to the accused, is such that a fact-finder
could reasonably find, on the balance of probabilities, that the constituent elements of the defence
have been proven. If the accused is able to meet this burden, s/he then bears the ‘legal’ burden
of persuading the fact-finder, on the balance of probabilities, that the elements of these defences
have been proven to its satisfaction.
It should be kept in mind that the allocation of ‘legal’ and ‘evidential’ burdens—as well as
the applicable standards of proof—can be altered at any time and in any manner that Parliament
wishes. As a general rule, however, the burdens and standards of proof set forth in this section
will apply in the absence of a clear legislative intention to the contrary.
Review questions
1 What is meant by the term corpus delicti ?

2 How does the term corpus delicti differ, if at all, from what are termed as the constituent elements
of a crime?
3 What is meant by the term mens rea?
4 How many types of mens reas are recognised in the criminal law?
5 Do some crimes have more than one mens rea requirement?
6 Do all crimes have a mens rea requirement?
7 If a crime is defined in such a manner that it requires proof of neither a mens rea nor criminal
negligence, what term is used to describe such an offence?
8 What is the difference between a primary (denial) and secondary (affirmative) defence?
9 Are there any secondary (affirmative) defences available to crimes of strict liability? If so, what fac-
tors must be proved to successfully interpose such a defence or defences?
10 If a strict liability crime is defined in such a manner that no secondary defence is available, what
term is used to describe such an offence?
11 What is meant by the actus reus of a crime?
12 Do all crimes have an actus reus component?
13 Can corporations incur criminal liability?
14 At common law, how old must a child be in order to incur criminal liability?
15 What is meant by the doctrine of temporal coincidence?
16 Is it necessary to prove temporal coincidence with every type of crime?
17 What is meant by the doctrine of transferred malice?
18 What is meant by the term ‘principal in the first degree’?

19 How does a principal in the first degree differ from a principal in the second degree or an accessory
before the fact?
20 In practical terms, why is it rare for someone to act as a principal in the second degree?
21 Can principals in the second degree or accessories before the fact be held criminally liable for a
crime that is more serious than the crime(s) committed by the principal in the first degree? Why, or
why not?
22 Can one joint principal in the first degree be liable for a more serious offence than another joint
principal in the first degree? If so, under what circumstances, and why?
23 What is the difference between the ‘legal’ and ‘evidential’ burdens of proof?
24 In criminal prosecutions, who bears the legal burden of proof on all matters with the exception of
the defences of insanity or diminished capacity?
25 In criminal prosecutions, who bears the evidential burden, and on what issues?
38 PART 1: Overview
26 If the defence satisfies the evidential burden on the elements of a secondary (affirmative) defence,
who then bears the legal burden on these elements? What is the test for determining whether the
defence has satisfied the evidential burden in raising a secondary (affirmative) defence, other than
one of diminished capacity or insanity?
27 Assume that there is a statutory offence which provides: ‘A person who operates a motor vehicle on
a public highway in excess of the prescribed speed limit is guilty of a summary offence, punishable
by ….’ Your client, John, has been issued a summons and charge sheet alleging that he exceeded
the speed limit by 10 km. John advises you that although he doesn’t doubt the allegation, he
exceeded the speed limit inadvertently because he was engaged in a heated conversation with a
passenger in his car at the time. John asks you whether a person can be convicted of this offence
despite being unaware that s/he was driving in excess of the prescribed speed limit. How would you
advise him?
28 Tom, Dick, and Harry are mates and heroin addicts. In order to support their habit, they devise a
plan to rob a local ANZ bank. According to the plan, Tom will loan his car to Dick who will drive to
a parking lot just outside the bank with Harry, who will be armed with a fully loaded .38 calibre
handgun. The plan is for Dick to wait in the getaway car with the motor running while Harry enters
the bank to procure over $10,000 from a cashier at gunpoint. Both Tom and Dick have implored
Harry to refrain from harming anyone. Although Harry assents to their request, the cashier sets off
a silent alarm during the robbery and Harry is forced to confront police in order to effect his exit
from the bank. During an exchange of fire with two police officers, a shot fired by one of the officers
goes astray and kills one of the bank’s patrons. When several more police arrive on the scene, Harry
decides to surrender.
Dick hears the gunshots and decides to flee before he too is detected and confronted by police.
While driving back to Tom’s home for refuge, Dick is feeling a bit depressed about the ill-fated
attempt to rob the bank and decides that burning down a local primary school might lift his spirits.
Because Dick has a child who attends the school, he knows that the school is on mid-semester break
and, therefore, assumes it is uninhabited. Unbeknown to Dick, a security guard is on duty, but has
fallen asleep on the job. Dick sets the school alight with petrol and a match and the security guard
dies of smoke inhalation before he can be rescued by the fire brigade.

Discuss the criminal liability of Tom, Dick, and Harry.
39
Homicide
Part
2
Chapter 2 Homicide and Actus Reus 40
Chapter 3 Murder and Mens Rea 87
Chapter 4 Murder: The Doctrines of Provocation and Self-defence 133
Chapter 5 Involuntary Manslaughter 230
40
Chapter 2
Homicide and Actus Reus
2.1 Introduction
This chapter will focus on the question of what amounts to a homicide for purposes of the
criminal law. Homicide is broadly defined as a volitional act (or omission to act) that causes the
death of another human being sooner than it would have otherwise occurred. Although easily
stated, this definition is fraught with many contentious issues. For example, does a foetus within
the mother’s womb constitute a human being for homicide purposes? In light of advancements
in modern medical technology such as the use of artificial life support systems, how does the law
define the word death? Finally, when will the law regard a volitional act (or omission to act) as
the cause of the death of another human being? The materials that follow will assist in providing
answers to these questions.

At this juncture, it is important to stress that not all homicides are unlawful. The law has
long recognised a litany of secondary defences that, if invoked successfully, operate to excuse
what would otherwise amount to an unlawful homicide. Killings that occur in self-defence, the
defence of others, to prevent the commission of serious crimes, or to effectuate lawful arrests for
serious crimes represent a non-exhaustive list of these secondary defences.
Beyond the division of homicide into the categories of lawful and unlawful, homicide is
generally subdivided into the categories of murder and manslaughter. Manslaughter is then
subdivided into the categories of voluntary and involuntary manslaughter. Finally, involuntary
manslaughter is subdivided into the categories of involuntary manslaughter by unlawful
and dangerous act and involuntary manslaughter by criminal negligence. Consonant with
the definition of homicide, all categories of unlawful homicide share an identical actus reus
component: a volitional act (or omission to act) that causes the death of another human being
sooner than it would have otherwise occurred. Chapters 3, 4, and 5 are primarily concerned
with the manner in which the criminal law distinguishes between the different types of unlawful
homicide.
Chapter 2: Homicide and Actus Reus 41
2.2 The legal reality of homicide

Before setting off on an excursus of the criminal laws of homicide, it is helpful to dispel some of
the myths concerning the practical effects of those laws. First, it should be noted that homicide
offences are uncommon. There are only a relatively small number of homicides annually
throughout Australia. The latest available data from the Australia Institute of Criminology
(to June 2007) shows that over the past 18 years (1 July 1989 to 30 June 2007), the rate of
homicide decreased from 1.9 in 100,000 people in 1990–91 and 1992–93, to the second-lowest
recorded rate of 1.3 in 100,000 in 2006–07. Murder is the most common charge. In 2006–07,
there were 260 homicide charges, 230 of which were murder charges, 28 manslaughter charges,
one infanticide charge, and one unknown. Moreover, where homicide does occur, in the vast
majority of cases, it is by a person known to the victim. This is clearly demonstrated by the table
below, which was compiled by the Australian Institute of Criminology (at: http://www.aic.gov.
au/en/statistics/homicide/victim-offender.aspx).
Relationship between victim and offender in 2006–07, by sex of offender and state (number)
Number Intimates Family Friends/ Strangers Other a

acquaintances
New South Males 83 11 11 22 24 15
Wales
Females 17 7 5 3 2 0
Victoria Males 52 12 5 18 12 5
Females 4 2 0 1 1 0
Queensland Males 46 7 10 13 12 4
Females 14 5 4 2 0 3
Western Males 18 4 4 6 1 3
Australia
Females 11 5 3 3 0 0
South Australia Males 14 2 0 12 0 0
Females 4 0 2 2 0 0
Tasmania Males 9 1 2 1 5 0
Females 0 0 0 0 0 0
Australian Males 3 0 1 1 1 0
Capital Territory
Females 1 1 0 0 0 0
Northern Males 18 7 1 7 2 1
Territory
Females 4 1 2 1 0 0
Australia 298 65 50 92 60 31
Males 243 44 34 80 57 28
Females 55 21 16 12 3 3
a: Includes work colleagues, employee/employer, former employee/employer, gang members, and former gang members
Note: excludes four cases in which the relationship between the offender and the victim is unknown.
Source: AIC NHMP 2006–07 at http://www.aic.gov.au/en/statistics/homicide/victim-offender.aspx
42 PART 2: Homicide
2.3 Categories of unlawful homicide

At common law, unlawful homicide is subdivided into the categories of murder and
manslaughter. The distinction between these two categories lies in the fact that unlike
manslaughter, murder requires the accused to have acted with malice aforethought. This
distinction is obscured by the fact that malice aforethought is an archaic and often misleading
relic of the common law. It is misleading because it typically evokes the image of one who kills
with actual malice and prior planning. Yet as you are about to discover, one can commit murder
without any malice (in the sense of spite or hatred) or prior design. In the case of constructive
murder, for example, it is not essential that the accused intend or even contemplate that the
deceased will suffer death or grievous bodily harm. Moreover, one who commits voluntary
manslaughter is deemed to have acted without malice aforethought notwithstanding the
fact that s/he has killed with anger and prior planning. Thus, it should be apparent that the
presence or absence of malice aforethought does not depend on whether the accused acted with
actual malice or prior design. As to what does constitute malice aforethought, suffice it to say
for present purposes that malice aforethought is nothing more than a term of art that is used to
depict the overall conduct of one who kills under any of the circumstances amounting to murder
at common law. Conversely, if the accused’s conduct does not amount to any form of murder
at common law, s/he has not acted with malice aforethought. Therefore, depending on one’s
perspective, the term is one of inclusion or exclusion.
2.3.1 Murder
At common law there are four categories of murder in Australia:
(1) Intentional murder—where a person, without lawful excuse or mitigating circumstances
sufficient to reduce the crime to voluntary manslaughter, causes the death of another
with the intention to kill or cause grievous bodily harm. In South Australia and Victoria,
murder is defined at common law. In these jurisdictions murder is stipulated in statute
for the purpose of penalty only: Criminal Law Consolidation Act 1935 (SA) s 11; Crimes
Act 1958 (Vic) s 3. In New South Wales murder is defined by statute: Crimes Act 1900
(NSW) s 18.
(2) Reckless murder—where a person, without lawful excuse or mitigating circumstances
sufficient to reduce the crime to voluntary manslaughter, causes the death of another while
acting with recklessness as to killing or causing grievous bodily harm. As with intentional
murder, in Victoria this type of murder stems from the common law. In New South Wales,
however, this category of murder has been codified into a statutory offence which is more
limited in scope than at common law. In New South Wales, reckless murder can only be
committed if the accused causes the death of another while acting with recklessness as to
causing death (but not recklessness as to causing grievous bodily harm): Crimes Act 1900
(NSW) sub-s 18(1)(a). In South Australia, the current position is that reckless murder
does not exist: R v Morrison [2007] SASC 168.
(3) Statutory constructive murder—all three common law jurisdictions recognise a form of
murder known as constructive murder. The key distinction between this and the other
forms of murder described above is that the accused does not subjectively possess the
requisite mens rea for murder; rather, it is imputed to the accused. The accused is deemed
to possess the requisite mens rea because of the circumstances under which the killing
occurred. At common law, this category of constructive murder is referred to as the
felony-murder rule. Felony-murder consists of causing the death of another human being
by an act of violence which occurs in the course of the commission of—or in furtherance
of the purpose of—a felony involving violence: see, for example, R v Ryan & Walker
[1966] VR 553. The felony-murder rule has now been supplanted by various statutory
versions of the offence in all jurisdictions. Although the exact elements of the offence
differ across the jurisdictions, the essential features of statutory constructive murder are
that: (a) the accused caused the death of another person; (b) in the course of furtherance
of committing; and (c) a serious offence—normally involving some element of violence:
Crimes Act 1900 (NSW) sub-s 18(1); Criminal Law Consolidation Act 1935 (SA) s 12A;
and Crimes Act 1958 (Vic) s 3A.
In Victoria, s 3A is augmented by the Crimes Act 1958 (Vic) s 197A (arson causing
death) that consists of causing the death of another human being as a consequence of
committing arson. Prosecutions under this section could have previously been brought
under the common law felony-murder rule which has been abolished in Victoria and
replaced by the far more restrictive constructive murder rule set forth in s 3A of the
Crimes Act 1958 (Vic) (above).
(4) Common law constructive murder—where a person causes the death of another by an act
of violence committed during the course of preventing, resisting, or escaping from lawful
custody. This category of murder exists only in Victoria and South Australia.
The intentional and reckless murder categories require the accused to have acted with an
intent to cause death or grievous bodily harm or recklessness as to causing death or grievous
bodily harm respectively. With these categories, it is the combination of the mens reas and the
circumstance of having caused the death of another without lawful excuse or mitigating factors
that provides the malice aforethought. Because of the specific mens rea requirements, these
categories are said to involve express malice. With the latter two categories of murder, however,
there are no specific mens rea requirements. Once again, it is the particular circumstances
under which the accused has caused the death of another that supply the malice aforethought.
As these circumstances do not include an intent to cause death, grievous bodily harm, or
recklessness as to causing the same, these categories (often referred to as ‘constructive murder’),
are said to involve an ‘implied’ or ‘constructive’ malice. The terms ‘implied’ or ‘constructive’
are used as a means of indicating that the accused is treated in the same manner as if s/he had
acted with express malice; that is, the law is implying or constructing a fictional malice where,
in fact, none exists.
2.3.2 Manslaughter
The common law draws a distinction between voluntary and involuntary manslaughter.
(1) Voluntary manslaughter—at common law this involves the very same elements as the
crime of murder under categories (1) and (2), above, but is reduced to manslaughter due
to mitigating circumstances. These circumstances include, depending on the jurisdiction,
that the defendant was provoked into killing (in South Australia and New South Wales
44 PART 2: Homicide
but not Victoria); the defendant was labouring under a diminished responsibility
(New South Wales); the defendant is the survivor of a suicide pact (New South Wales,
South Australia, and Victoria); the defendant used excessive force despite his or her
genuine belief that such force was reasonably necessary to defend himself or herself or
another person from the unjustified application of force or the threat thereof (New South
Wales, South Australia, and Victoria), although in Victoria the offence is referred to as
defensive homicide rather than voluntary manslaughter: Crimes Act 1958 (Vic) ss 9AC,
9AD; or the defendant used excessive force despite his or her genuine belief that such
force was reasonably necessary to defend his or her property from damage or trespass, or
to exercise a power of lawful arrest (South Australia).
(2) Involuntary manslaughter—at common law this involves causing the death of another
without lawful excuse and under circumstances that do not amount to any form of
murder or voluntary manslaughter. With this category of unlawful homicide, the accused
acts with a lesser mens rea than would be required to convict for intentional or reckless
murder or, in some instances, no mens rea at all. There are two headings of this type of
manslaughter at common law. The first is known as involuntary manslaughter by criminal
negligence. This heading of involuntary manslaughter consists of causing the death of
another person by an act (or in some cases an omission) that is done in circumstances
involving a high degree of negligence. The other form of involuntary manslaughter at
common law is referred to as involuntary manslaughter by unlawful and dangerous act.
A person will be guilty of this offence where s/he performs an act that is both unlawful
and dangerous in the relevant senses and, in so doing, causes the death of another person.
Before proceeding to the illustrative cases, a few additional introductory comments are
warranted. Murder and manslaughter do not exhaust the fatal offences. For example, infanticide
is a distinct offence, although some commentators classify it as a form of voluntary manslaughter
because it involves conduct that would otherwise constitute murder were it not for mitigating
circumstances which reduce it to the lesser crime of infanticide: see Crimes Act 1900 (NSW)
s 22A; Crimes Act 1958 (Vic) s 6. In particular, the mitigating circumstances are the accused’s
diminished responsibility emanating from the adverse psychological effects of giving birth.
Similarly, a person who survives after causing the death of another pursuant to a suicide pact
is guilty of manslaughter rather than murder: Crimes Act 1958 (Vic) s 6B. Again, despite the
presence of the mens rea necessary for murder, the crime is reduced to manslaughter due to the
mitigating circumstance that the accused was in such a distraught or distorted state of mind as
to cause him or her to enter into such an agreement. In addition, the crime of ‘culpable driving
(or dangerous driving) causing death’ includes conduct that, depending on the facts of the
case, could also be prosecuted as either murder or involuntary manslaughter: Crimes Act 1900
(NSW) ss 52A, 52AA; Criminal Law Consolidation Act 1935 (SA) ss 19A, 19B; Crimes Act
1958 (Vic) s 318. The reason for introducing specific motoring offences for causing death is
that juries are often reluctant to convict motorists of murder or manslaughter. The crime of
child homicide is, in every respect, the same as involuntary manslaughter under both headings
at common law, save for the fact that the deceased is a child under the age of six: Crimes Act
1958 (Vic) s 5A; see also Criminal Law Consolidation Act 1935 (SA) s 14 (‘Criminal liability
for neglect where death or serious harm results from unlawful act’).
Questions
2.1 What do you consider to be the difference between murder and the various headings
of manslaughter?
2.2 What criteria are used to distinguish the different types of murder?
2.3.3 Defining homicide

Re-read the portions of section 1.7 of Chapter 1 which delineate the distinction between the
mens rea and actus reus components of a crime.
You will recall from Chapter 1 that the two basic elements of the actus reus component of
any crime are: (1) a voluntary act (or omission to act where the law imposes a duty to act); and
(2) the existence of a causal nexus between that act or omission and the non-mens rea elements
of the offence. The actus reus of all forms of unlawful homicide consists of a volitional act (or
omission to act where there is a legal duty to act), which causes the death of another human being
sooner than it would have otherwise occurred. For the remainder of this chapter, we consider
the actus reus of unlawful homicide. The volitional act or omission element was dealt with fully
in Chapter 1. Consequently, we begin with a brief excursus on the legal meaning of the ‘human
being’ and ‘death’ elements. Our attention will then focus on what is by far the most complex,
controversial, and unsettled element: causation.
2.4 The meaning of ‘life’ and ‘death’

Since homicide is an offence relating to the death of a human being, criminal law is sometimes
confronted with having to determine when a human life begins and ends. These issues have arisen
infrequently, but two areas where they have been disputed concern the legal status of the foetus
and the liability of doctors in the context of euthanasia and the withdrawal of life support.
2.4.1 Foetus and child

There is no homicide unless the victim is a human being. When is a foetus a human being for
the purposes of criminal law? It is settled law that a foetus in the mother’s womb is not ‘in being’
and, hence, cannot be killed for the purposes of homicide. When does a foetus become ‘in being’
within the contemplation of the law of homicide? The common law position on this issue was
enunciated by Barry J, in R v Hutty.
R v Hutty
[1953] VLR 338
(Supreme Court, Victoria)
Dorothy Janet Merle Hutty was charged with the murder of an infant child born of her body. The
accused was tried before Barry J and a jury. The evidence showed that the accused, who was nineteen
46 PART 2: Homicide
years old and unmarried, gave birth to a female child on the 13th January 1953. She was living on a
farm at Woodside with her mother and stepfather, from whom she concealed her pregnancy. On the
12th January 1953 at about 5.30 p.m. she developed labour pains, and about midnight went to the
outside convenience and whilst there alone at about 12.30 a.m. on the 13th January gave birth to
a female child. About twenty minutes after she went outside she returned to the house and told her
mother that she had given birth to a baby. Her mother deposed that the accused was then crying and
very upset and did not seem to know what she was doing. The accused’s mother and her husband went
to the convenience and found the body of a newly-born female baby. According to medical evidence the
baby was normally formed and had been completely born and had had an independent existence. In a
written statement to the police, made whilst in hospital, the accused said the baby was born whilst she
was standing up, and that it fell on to the ground, and that she lost control of herself and, whilst the baby
was on the ground she struck it a couple of times on the head and face with her shoe. The Government
pathologist deposed that the cause of the child’s death was the injuries to the head. The accused gave
evidence on oath. She denied that she had struck the child with her shoe, and said that she did not
appreciate the contents of the statement when she signed it while in hospital. She deposed that the baby
fell to the ground on its head as it was born. Evidence of the accused’s good character was given by
witnesses called on her behalf.
Barry J charged the jury as follows …
The first charge you will have to consider is whether the Crown has established to your satisfaction
beyond reasonable doubt that the prisoner murdered her child. Murder can only be committed on a
person who is in being, and legally a person is not in being until he or she is fully born in a living state.
A baby is fully and completely born when it is completely delivered from the body of its mother and
it has a separate and independent existence in the sense that it does not derive its power of living
from its mother. It is not material that the child may still be attached to its mother by the umbilical
cord; that does not prevent it from having a separate existence. But it is required, before the child can
be the victim of murder or of manslaughter or of infanticide, that the child should have an existence
separate from and independent of its mother, and that occurs when the child is fully extruded from
the mother’s body and is living by virtue of the functioning of its own organs. It seems clear that at
the time the child met its death it had a separate and independent existence.
Questions
2.3 When is a person ‘in being’?

2.4 Was there any dispute as to whether the victim had a separate and independent
existence?
2.5 Of what offence was the defendant charged?
The statement in Hutty’s case provides a test for distinguishing between a foetus and a
human being. It affords the jury with an opportunity to rely on expert medical evidence if a
question arises over the meaning of ‘separate existence’ in a given case. This is the common law
position concerning the point at which a human becomes ‘in being’. The common law position
prevails in South Australia and Victoria. In New South Wales there is a similar statutory test:
Crimes Act 1900 (NSW) s 20.
Fatal injuries causing death after birth, but inflicted prior to or during the course of birth,
can (at common law) amount to the killing of another human being and, under appropriate
circumstances, found a charge of murder or manslaughter: R v West (1848) 2 Cox CC 500. This
is predicated on the doctrine of ‘transferred intent’ or ‘transferred malice’ as it is often referred
to. This doctrine was discussed in Chapter 1, section 1.7.9; see also P Gillies, Criminal Law
(4th edn, 1997) 77–8. In such cases, the injuries are inflicted while the child is in the womb;
the child is born alive, but subsequently dies as a result of the injuries received. For a brief of a
recent case and the current authority on this issue, see C Henry, ‘Abortion Retried’ (1995) 20(5)
Alternative Law Journal 239 at 239–41.
2.4.2 Death
In the vast majority of cases, the line of demarcation between life and death is clear.
Advancements in medical technology, however, can raise difficult questions as to the precise
moment when death occurs for purposes of the law of homicide. This is important not only in
terms of determining when a homicide has occurred, but in determining whether a homicide has
occurred at all. For example, as in the case of an unborn foetus, a deceased person is no longer
regarded as ‘in being’ and, therefore, is incapable of being killed in so far as the law of homicide
is concerned.
The main question that arises is whether a body kept alive by artificial means is a human
being which is capable of being killed for homicide purposes. If yes, does a doctor who
withdraws treatment or disconnects a life-support machine commit murder? In response to the
implications for modern medical technology and to protect the medical profession from undue
risk of criminal liability, the trend in Australia has been to legislate when death has occurred.
In New South Wales, South Australia, and Victoria, life as a human being is deemed to end at
the point of irreversible cessation of brain function or blood circulation: Human Tissue Act
1983 (NSW) s 33; Death (Definition) Act 1983 (SA) s 2; Human Tissue Act 1982 (Vic) s 41.
This, however, is only guidance. Irreversible cessation of brain function means ‘brain-stem death’
and not total cessation of all activity of the brain. More difficulties arise over the concept of
irreversible cessation of blood circulation, especially where the victim has no independent blood
circulation but full brain function. Is blood circulation irreversible if it is preserved by artificial
means such as a life-support system or a heart pace-maker?
These issues were extensively addressed in England in the context of a proleptic prosecution
for murder: Airedale NHS Trust v Bland [1993] 1 All ER 821. In Australian criminal law,
however, this issue has yet to receive significant attention.
2.5 Actus reus: overview

As in any unlawful homicide, the crimes of murder and manslaughter require that the defendant’s
voluntary act or omission must have legally caused the death of another human being.
48 PART 2: Homicide
This proposition expresses the two main elements of the actus reus of homicide: the requirements
of voluntariness and legal causation. At common law, in essence, the prosecution must establish
that the accused, by a voluntary act, caused the death of the victim.
Thus, the first and most basic issue in proving the actus reus of homicide is the identification
of the relevant act or omission giving rise to liability. In identifying the act or omission, you
should always bear in mind that the relevant conduct must satisfy the following doctrines:
voluntariness, legal causation, and, with the exceptions of the non-mens rea offences of
involuntary manslaughter by unlawful and dangerous act and criminal negligence, mens
rea. Finally, if the homicide offence is one of mens rea, there must be a temporal coincidence
between the relevant act(s) or omission(s) and the mens rea (for a discussion of the doctrines
of voluntariness, mens rea, and temporal coincidence, see Chapter 1). Moreover, judges are
required to identify for the jury, with substantial clarity and precision, the act or omission that
grounds the legal elements of the offence.
2.6 Voluntariness
As we stressed in Chapter 1, voluntariness must be proven in all criminal prosecutions—and not
merely those involving charges of unlawful homicide. In the overwhelming majority of cases,
however, the issue of voluntariness is not disputed. As noted in Chapter 1, in the absence of
evidence to the contrary there is a rebuttable presumption that the defendant’s act or omission
was voluntary in the relevant sense. In the event that evidence arises which raises a question as to
the voluntariness of the defendant’s act or omission, it is then incumbent upon the prosecution
to prove beyond reasonable doubt the voluntary nature of the act or omission. The fact that the
defendant was conscious and acting in a typical or normal manner will invariably have the effect
that s/he will be regarded as having acted voluntarily.
R v Butcher [1986] VR 43 serves well to illustrate the problems associated with identifying,
from among many possible acts or omissions, the defendant’s relevant act or omission and,
perhaps more importantly, the difficulties that can arise in assigning a legal causal nexus
between the relevant act or omission and the non-mens rea elements of the offence (in this
case ‘constructive murder’ under s 3A of the Crimes Act 1958 (Vic)); see also Ryan v The Queen
(1967) 121 CLR 205, which is referred to in Butcher. In Butcher, the defendant was convicted
of constructive murder by stabbing the victim in the course of an armed robbery. The defendant
had attempted to rob a milk bar while brandishing a knife, which he intended to use in order ‘to
scare the owner of the shop’. In his record of interview, he said that he was about three or four
feet from the victim when he held the knife out in front of him and the victim ran at him. The
defendant stated that he didn’t thrust the knife, but simply held it in front of him. The knife
then entered the victim’s stomach, thereby causing his death. The defendant added that he was
scared and that it happened so quickly that he didn’t have a chance of getting the knife out of
the way. Because of the constructive murder doctrine, the primary issue at trial was whether the
death of the victim was attributable to a voluntary act on the part of the defendant that could
ground criminal liability.
R v Butcher
[1986] VR 43
(Full Court of the Supreme Court of Victoria)
[The accused gave unsworn evidence that during the course of an attempted armed robbery of a milk bar,
the deceased was fatally stabbed when he ran into a knife that the accused had merely brandished in
front of him. The accused maintained that he had not intended to stab the deceased, but only to scare him
into handing over money in the cash register. The accused was convicted of constructive murder under s
3A of the Crimes Act 1958 (Vic) and appealed on various grounds. On appeal:]
Judgment
Murphy, Murray, and Gobbo JJ: It was submitted that the entry of the knife into the deceased’s stomach
was a separate act which caused his death and that it was necessary for the jury to find this latter act was
willed by the applicant and to be instructed accordingly.
Dealing with the latter point, the law is that in a charge of murder the act which causes death must
be proven to have been willed, even though its consequences may not have been intended: cf Ryan v The
Queen (1967) 121 CLR 205 at 214, per Barwick CJ; at 231, per Taylor and Owen JJ.
Accordingly, it appears to us that the real issue in the present case where s 3A is invoked is one of
causation, rather than an issue whether the act of holding the knife out was a willed act. The holding out
of the knife clearly was a willed act. The question for the jury was, did it cause the death of the deceased?
The submission was that it was not open to find that it did.
We have already set out the only evidence of the events, which appears in the applicant’s signed
interview with Detective Sergeant Morrison, which is to be read along with his unsworn statement.
Both of these accounts appear to paint a picture of the applicant deliberately holding the knife out in
his right hand towards the deceased some three or four feet away, hoping to frighten him into handing
over the money in his keeping believing that he might be stabbed. Then, as the deceased, after being
pushed away by the applicant’s left hand (he was close enough to be pushed) rushed at the applicant, the
applicant continued to hold the knife out and it entered the deceased’s body.
One view of the evidence open is that the applicant consciously continued to hold the knife out
intending or hoping, as he said, that the deceased would ‘stop’ his forward move or ‘freak out’. Another
view might be that the applicant, although deliberately holding the knife out intending to frighten the
deceased, did not have time to remove the knife when the deceased rushed at him, and the deceased
was consequently stabbed. It may be assumed, on this latter view, that the consequence of the intended
and willed act of holding the knife out was itself not intended. But as Barwick CJ pointed out in Ryan v The
Queen (1967) 121 CLR 205, it does not matter that the consequence of a willed act was not intended.
As we have said, we are persuaded that the real question which arises on this appeal is one of
causation. Was it open to the jury to conclude that the willed act of the applicant in presenting the knife
towards the deceased’s stomach whilst standing three or four feet from the deceased caused his death
when he ran upon it? The learned trial judge told the jury that it was open to them so to find.
The attempt to isolate the cause of death and to identify it as the entry of the knife into the body of
the deceased, or the rushing forward of the deceased cannot be sustained. A single cause of death is not
always able to be isolated. As a matter of law there need not be a sole cause of death, and in the instant
50 PART 2: Homicide
case the presentation of the knife towards the stomach of the deceased, whilst standing three to four feet
away, as well as the assumed forward movement of the deceased, may be seen to combine so that both
can be postulated as legal causes of the death of the deceased.
His Honour said:
I have said that I shall deal separately with this question of causation, and I have said that although
Mr Faris, for Butcher, conceded that the use of the knife by the accused caused the death of the
deceased, it is still a matter for you. When I use the expression, ‘The use of the knife caused the
death’, in one sense, of course, it did, because the knife was held in the hand of the accused when
it entered the body of the deceased, but that somewhat begs the question. For the accused to be
found guilty, the Crown must prove that his act caused the death of the deceased. It may be said that
there was more than one cause which contributed to the death, and I direct you that the Crown does
not have to prove that it was the accused’s act of holding the knife which was the sole cause of the
death. The fact that the deceased moved forward—if you think he did or may have done—does not
necessarily mean that the accused’s act in holding out the knife was not the cause of the stabbing.
The reaction of men to threats upon them are known to vary widely. The man who threatens his
victim, you may think, must realise that the consequential reaction cannot be predicted with certainty.
Some victims may retreat; some may advance, and you may think that common sense dictates that a
man cannot say, ‘Yes, I held out the knife towards his abdomen. Yes, I meant to terrify him. I thought
he would give in or retreat, but he advanced towards me, therefore, my holding of the knife did not
cause the stabbing’. You may think that such reasoning would not accord with common sense. On
the other hand, it may be that some intervening action, you feel, is so much a cause of the knife
entering the body of the deceased that you may not be satisfied beyond reasonable doubt that it was
the accused’s act which caused the death. If the deceased did move forward, nevertheless, it would
be open to you to find that, as a matter of common sense, in the light of all the circumstances, the
accused’s act in holding out the knife caused the stabbing and, therefore the death, notwithstanding
the fact that some movement of the deceased contributed to it as one of the causes.
You will bear in mind that the onus rests upon the Crown to prove that the act of the accused in
holding out the knife caused the death of the deceased.
In our view, this direction was both correct and adequate.

In Ryan v The Queen (1967) 121 CLR 205 at 231 Taylor and Owen JJ, in a joint judgment in which
they considered a similar issue, said:
The fact is that the wounding and death were caused by a combination of acts done in pursuance
of the design to commit the robbery. They included the loading and cocking of the rifle, the failure
to apply the safety catch, the presentation of the rifle at Taylor with the finger of the applicant on
the trigger in circumstances in which an attempt at resistance might well have been expected. No
suggestion was or could be made that those acts were involuntary. They were done deliberately and
were as much part of the act causing death as was the pressure of the trigger which fired the rifle. It
is impossible to isolate the act of pressing the trigger from the other circumstances and argue that it,
alone, caused the wounding and death. In these circumstances we doubt very much whether a jury
could reasonably conclude that Taylor’s death was not caused by any act of the applicant or entertain
a reasonable doubt about the matter.
In the present case, it would be quite unrealistic to isolate the forward movement of the deceased—
as was submitted—and to conclude that it was this movement alone which caused his death. We should
think that such a conclusion would be wrong in law, and a direction to the jury that they could so decide
would be a misdirection.
Nor was it possible, in our opinion, to conclude that because of the speed of forward movement of
the deceased, the applicant was unable to do anything and that therefore the act of the knife entering the
body of the deceased whilst it was being held out by the applicant was an involuntary or unwilled act: see
Ryan v The Queen (1967) 121 CLR 205 at 244–6, per Windeyer J.
Accordingly, in our opinion, it was open to the jury to find that exhibiting the knife, pointing it at
the stomach of his victim when he was only a few feet away, whilst at the same time demanding his
money, was an ‘act of violence’ which caused the death of the deceased, and was done in the course or
furtherance of a crime of robbery the necessary elements of which include violence.
Questions
2.6 Which act did the judges identify as the act of violence for the purposes of the
constructive murder rule?
2.7 Did the act of violence identified by the judges differ from the one isolated by the trial
judge?
2.8 What is the meaning of voluntariness used in the judgment? Does it mean more than
one thing? (See their discussion of Ryan v The Queen.)
2.9 What is the relationship between voluntariness and causation?
2.7 Causation
2.7.1 Overview
For the remainder of the chapter, we will be concerned with the doctrine of causation. You
will also come across this doctrine in the law of torts, although it is far from clear that the legal
principles of causation are identical in the criminal and tort law contexts. Here, we confine
ourselves to the doctrine of causation in criminal law and, in particular, causation in the context
of murder and manslaughter. As you will recall from Chapter 1, the actus reus of any crime
requires a causal connection between the accused’s voluntary act(s) or omission(s) and the
non-mens rea components of the crime according to its statutory or common law definition. By
causal connection, we mean a legal causal connection as explained below.
In order to establish a legal causal connection, two elements must be satisfied:
(1) The defendant’s act(s) or omission(s) must be a ‘but-for’ cause of the victim’s death.
(Generally speaking, for one event to be regarded as a ‘but-for’ cause of a second event,
one must be able to prove that ‘but-for’ the first event, the second event would not have
occurred when and as it did).
(2) The defendant’s act(s) will not be adjudged to be the legal cause of death if another event
occurred between the time of the defendant’s relevant voluntary act or omission and the
death of another human being which is also a ‘but-for’ cause of death, and which the law
regards as so significant that it, rather than the defendant’s voluntary act or omission,
should be regarded as the legal cause of death. Events so regarded are often referred to
52 PART 2: Homicide
as ‘superseding’, or ‘supervening’, causes and have the legal effect of breaking the causal
connection between the defendant’s voluntary act or omission and any consequences
which occur after the superseding event has intervened; that is, the accused is not
criminally responsible for any consequences that accrue after the event has intervened.
Since the defendant’s act or omission must satisfy the ‘but-for’ test before it becomes
necessary to consider the question of whether there is a superseding cause, it should be
apparent that the presence of a superseding event will only sever the causal connection in
a fictional sense and as a matter of public policy that is designed to limit criminal liability
within parameters that are fair and reasonable.
To establish legal causation, therefore, the prosecution must prove beyond a reasonable
doubt that: (1) the defendant’s voluntary act or omission was a ‘but-for’ cause of the death of
the victim. In rare cases where ‘two causes concur to bring about an event, and either one of
them, operating alone, would have been sufficient to cause the identical result’, the courts have
strayed from the ‘but-for’ test in order to prevent two or more culprits from using the test as a
means of absolving all of liability: DB Dobbs, PW Keeton, R Keeton & D Owen, Prosser and
Keeton On Torts (5th edn, 1984) 266–9; see also March v Stramare Pty Ltd (1991) 171 CLR
506 at 516 (per Mason CJ); and (2) the absence of an event that the law regards as superseding
in the relevant sense.
The putative superseding event can consist of human acts or omissions, so-called Acts of
God such as lightning bolts, tsunamis, the tide coming in and going out, and even the actions
of animals. It must be understood (as was stressed in Butcher), however, that no result is ever
attributable to just one ‘but-for’ cause. If, for example, A pushes B to the ground in a fit of anger
and B is struck in the head and killed by a sudden bolt of lightning as he attempts to rise to his
feet, it is readily apparent that there are several ‘but-for’ causes of death; namely, but-for the
punch, the lightning bolt, A’s parents having conceived him, and an infinite number of other
events, B would not have died when and as he did. Thus, the question of legal causation in the
criminal law context comes down to which, of an infinite number of ‘but-for’ causes, the law will
attribute legal responsibility for a result prohibited by the statutory or common law definition of
the crime (in criminal homicide, the death of another human being). Specifically, the question
becomes one of whether the law will attribute legal responsibility to the defendant’s relevant act
or omission.
The most contentious issue in determining legal causation is what test, or tests, are to be
applied in adjudging whether any particular event is significant enough to be regarded as
superseding in the relevant sense. We now turn our attention to that question.
It is important to bear in mind that the principles discussed below regarding causation apply
equally to all types of manslaughter and murder offences.
2.7.2 First causal test: the operating and

substantial cause test
Like any constituent element of a crime, legal causation is a question of fact to be determined
by the fact-finder. In the event of a jury trial, the court must direct the jury on the appropriate
test to be applied in resolving this issue. The Australian courts have yet to settle on a single test
to be applied in resolving disputed issues of causation. Rather, they have resorted to a range of
tests in directing juries on this issue and it is with these tests that the balance of this chapter is
concerned.
The first test of legal causation that has been applied by the courts requires that the defendant’s
act or omission must substantially or significantly contribute to the death of the victim. This test
is often referred to as the operating and substantial cause test. As we shall discover, this test has
proven to be unsatisfactory for a multitude of reasons.
R v Hallett
[1969] SASR 141
(Supreme Court of South Australia)
[The appellant was convicted of murder. Although medical evidence was adduced that indicated that the
victim had drowned in shallow water, the appellant gave evidence that he had violently assaulted the
victim and left him in an unconscious state on a beach while the tide was out. Thereafter, the appellant
went to sleep at a nearby location and, when he awoke, discovered the victim dead and floating in the
sea. The evidence was unclear as to whether the victim had been drowned by the in-coming tide while
lying on the beach in an unconscious state, or because he had rolled into the sea while unconscious, or
perhaps died in some other way. The court directed the jury that if it found that the drowning was brought
about by the appellant’s conduct in leaving the victim on the beach while in an unconscious state and in
an obvious position of peril, it was then open to them to find that the appellant’s act of striking the victim
and rendering him unconscious was the cause of death. The appellant appealed on the ground that the
court had misdirected the jury in this regard. On appeal:]
Judgment
Bray CJ, Bright and Mitchell JJ: If the evidence of Dr Dwyer is accepted, and Mr Elliot did not challenge
it, the deceased died from drowning. On the story just related the appellant did not drown him directly but
left him as he thought in a position of apparent safety while he was lying on the beach with his ankles in
a few inches of water. If the jury accepted that story or had a reasonable doubt about it and also accepted
the evidence of Dr Dwyer, could they have found that the appellant caused the death of the deceased?
The learned judge told the jury that it was enough on the question of causation if the accused was
the substantial cause of Whiting’s death.
Mr Elliot contended that the jury should have been told that unless they were satisfied that the
deceased’s death ensued as a result of the injury which the appellant inflicted on him and the leaving of
the deceased at the edge of the sea, they could not be satisfied that the appellant had caused the death
of the deceased and that they had to be satisfied that it was not the involuntary intervention of sleep on
the part of the appellant which altered the situation from one of a safe situation so far as the deceased
was concerned to a hazardous one.
We disagree with this argument. Some confusion has sometimes arisen, particularly in the older
cases, between the factors relevant when considering causation and those relevant when considering
the necessary mental state required to constitute the crime of murder. (Compare Russell on Crime (12th
edn, 1964), p 413.) The learned judge in a passage not quoted was at pains to point out to the jury the
necessity to separate the two questions. Foresight by the accused of the possibility or probability of
death or grievous bodily harm from his act, though very relevant to the question of malice aforethought,
has nothing to do with the question of causation. The death of the deceased is the material event.
54 PART 2: Homicide
The question to be asked is whether an act or series of acts (in exceptional cases an omission or series
of omissions) consciously performed by the accused is or are so connected with the event that it or they
must be regarded as having a sufficiently substantial causal effect which subsisted up to the happening
of the event, without being spent or without being in the eyes of the law sufficiently interrupted by some
other act or event. It does not matter on the question of causation whether or not the accused after the
commission of his act fails to appreciate or takes unavailing steps to avoid its probable consequences or
mistakenly thinks he has taken such steps or fails to take such steps through some supervening factor,
unless that supervening factor so interrupts the effect of the original act as to prevent that original act
from being in the eyes of the law the cause of death. In this case, if the deceased was drowned and violent
acts consciously performed by the accused had a causal effect which continued up to the moment of
drowning, it does not matter, so far as causation is concerned, whether he lay unconscious on the beach
until the tide covered him or whether while unconscious he rolled down the slope into the water. Only if
he consciously entered the water would it in our view be even arguable that the chain of causation had
been broken. (Compare the American cases cited in Howard, Australian Criminal Law (1965), p 32.) And
his Honour expressly left this possibility to the jury. In our view, it is irrelevant on the question of causation,
assuming the appellant’s story to be true, whether or not he thought he had placed Whiting in a position
of safety, whether or not it was reasonable for him to think so, whether or not he foresaw or ought to have
foreseen that the deceased might be reached by the tide and drowned, whether or not the appellant was
to blame for going to sleep, or whether or not he could or would have saved the life of the deceased if he
had not gone to sleep. We say this because it was the act of the appellant in reducing the deceased to
unconsciousness which, on his own story, originated the chain of events which led to drowning.
The only question, it seems to us, which can be raised in this connection is whether the action of the
sea on the deceased can be regarded as breaking the chain of causation. We do not think it can. In the
exposure cases the ordinary operation of natural causes has never been regarded as preventing the death
from being caused by the accused. Such are the cases mentioned by Hale, Hawkins and East (1 Hale PC
431; 1 Hawkins PC, c 13, s 6; 1 East PC 226), of the infant being placed in the orchard and being killed
by a kite, or the infant being placed in a pig sty and eaten by the pigs …
In these cases, of course, the actus reus was the exposure of the helpless victim by itself; in the instant
case the actus reus on the appellant’s story is one stage further removed and consists of the violence
exercised by him on the deceased in the water. Hence the questions raised by Mr Elliot’s argument as
to whether the situation in which the appellant left the unconscious Whiting on the water’s edge was a
safe one or a hazardous one, or was only turned from a safe one to a hazardous one by the involuntary
intervention of sleep, are irrelevant when considering causation.
We are not concerned to deny that there may be cases where the extraordinary as opposed to the
ordinary operation of natural forces might be regarded as breaking the chain of causation. So here if
the deceased had been placed in a situation safe from the ordinary operations of the sea and has been
engulfed by an extraordinary tidal wave as the result of an earthquake in the sea it may be that the
earthquake and not the act of the appellant would be regarded as the cause of death. But we cannot
regard the ordinary operations of the tides at Tumby Bay, whether known to the appellant or not, as being
such a supervening cause.
For these reasons the direction of the learned judge on this topic was not such as to call for the
intervention of this Court. His Honour might have directed the jury in terms of the passage from R v Bristow
[1960] SASR 210, citing R v Smith [1959] 2 QB 36; [1959] 2 All ER 193 (C-MAC), that if at the time of
death the original wound (here the original violence in the water referred to in the accused’s story) was
still an operating cause and a substantial cause the death could be said to be the result of this, even if
some other cause, such as the action of the water, was still operating and that only if it could be said that
the original violence was merely the setting in which the action of the sea operated could it be said that
the death did not result from that violence. Bristow’s case is after all binding upon the judges of this Court
unless the Full Court for some reason sees fit to depart from it. His Honour did in substance, though not
in precise words, so direct. He told the jury specifically that the act of the accused must be a substantial
cause. He did not use the word operational; but his remarks about the death by drowning postulate that
the accused was still unconscious from the violence used by the appellant when he was involved with
the sea, either by the action of the tide or by rolling down the slope or by both. If this was so, clearly the
violence which preceded the unconsciousness was still operational. His Honour, by clear inference if not
expressly, told the jury that if the deceased had remained conscious and gone out and drowned himself
the violence of the accused would not have been the cause of death. If his Honour erred in referring to the
question of foreseeability in this context that could only operate in favour of the appellant …
If the deceased was unconscious as a result of the assault and drowned by the sea in any of the
circumstances mentioned by his Honour then we do not think it matters whether the appellant left him
in a position of mortal peril or not, or whether subsequent drowning was a consequence which might or
might not have been expected to occur in the normal course, apart of course from extraordinary events
like the tidal wave we mentioned previously. But all this could only operate in the accused’s favour …
Accordingly the appeal on the question of causation fails. The argument for the appellant is fallacious
in two ways: firstly, in that it assumes that the relevant act of the appellant was the leaving of the
deceased on the beach and not the violence in the water reducing him to unconsciousness, and secondly,
because the chain of causation could not be broken by the appellant’s omissions to take further measures
for the safety of the deceased, even if such omissions were contrary to his original intention and were
excused by his inadvertently falling asleep …
Questions
2.10 How many acts can you isolate as the causal act of death? What are they, and are
they different to those isolated by the judges?
2.11 Hallett argued that the chain of causation had been broken. What specifically was he
claiming?
2.12 Why did the Supreme Court of South Australia find that there was no break in the
chain of causation? In the final analysis, did the Supreme Court really apply the
operating and substantial cause test? If not, what test did it apply?
2.13 Would the Supreme Court’s decision have been any different if, in fact, Whiting had
died as a result of being engulfed by a freak tidal wave? Would Hallett’s act have been
an ‘operating and substantial’ cause of death in this situation?
2.14 D attacks V and leaves V unconscious in a building. There is a sudden and irregular
earthquake that leads to the collapse of the building and the death of the unconscious
victim. On these facts, could a jury reasonably find that D caused the death of V? Why,
or why not?
For a more recent case which appeared to apply the operating and substantial cause test, see
R v Edwards [2008] SASC 303 (per Layton J).
56 PART 2: Homicide
The cause of death issue was discussed in the New South Wales Court of Criminal Appeal in
the case of R v PL (2009) 261 ALR 365; [2009] NSWCCA 256 by Spigelman CJ, McClellan
CJ at CL and Hulme J agreeing.
R v PL
(2009) 261 ALR 365; [2009] NSWCCA 256
(New South Wales Court of Criminal Appeal)
[The respondent had been tried on a charge of murder. The trial judge directed the jury to return verdicts
of not guilty on the charges of murder and manslaughter. The Director of Public Prosecutions appealed.
The Court of Criminal Appeal affirmed the acquittal on the charge of murder, quashed the acquittal on
the charge of manslaughter, and ordered a new trial limited to a charge of manslaughter. The Crown had
contended that the respondent had fought physically with his partner in their house, that a neighbour had
heard sounds from the house like a shelf falling and pots clanging, that there was singing or a scream,
and that after some minutes a witness rang the house and the respondent answered and was hysterical.
When persons arrived at the scene the respondent was wailing hysterically, cradling the deceased’s
head, and his arms were tightly bound around the deceased’s neck and head. The deceased’s heart
had stopped by the time ambulance officers arrived. Resuscitation was unsuccessfully attempted. The
autopsy and forensic evidence was unable definitely to state the cause of death. It was not death by
natural causes. There was a medical consensus that death was caused by blunt-force injuries to the head
and/or the neck area, perhaps a combination of the two. There was no consensus as to what may have
caused those injuries.]
Held (per Spigelman CJ, McClellan CJ at CL and Hulme J agreeing): The legal proposition at the
heart of the Crown case … is that it is not necessary to establish a precise act causing death in order
to establish either murder or manslaughter. The respondent did not challenge the force of the authorities
upon which the Crown relied in this respect.
The clearest statement in support of the Crown’s legal proposition is perhaps that of Ackner LJ in
Attorney General’s Reference (No 4 of 1980) [1981] 1 WLR 705 at 710:
… [T]his reference raises a single and simple question, viz: if an accused kills another by one or
other of two or more different acts each of which, if it caused the death, is a sufficient act to establish
manslaughter, is it necessary in order to found a conviction to prove which act caused the death? The
answer to that question is ‘No, it is not necessary to found a conviction to prove which act caused the
death.’ No authority is required to justify this answer, which is clear beyond argument …
That was a case in which the Crown could not prove which of two acts by the accused caused
death—although one of them did so. (See also R v McKinnon [1980] 2 NZLR 31.) To similar effect are
authorities which indicate that it is not necessary to identify a particular act which caused death where an
accused had committed a series of acts, such as a long course of beating, where the fatal kick or blow
cannot be identified. (See, eg, R v Ryder [1995] 2 NZLR 271.)
As Brennan J said in Royall v The Queen (1990) 172 CLR 378 at 404–405:
In most cases of alleged murder, a precise identification of the act which causes death is attempted
in order to furnish a foundation for the inference of the mental state with which that act was done. But
where the accused has engaged in a course of violent conduct after which the victim does something
that directly causes his or her death, it is not essential in point of law to identify which act or series
of acts in the course of that conduct caused the victim to take the final fatal step provided the jury
be satisfied on the whole of the evidence that some or all of those acts caused the death and was
accompanied by one of the mental states prescribed by s 18(1)(a).
There have been numerous cases, generally based on circumstantial evidence, where a particular act
causing death could not be identified:
Where no body was found. (R v Onufrejczyk [1955] 1 QB 388; R v Horry [1952] NZLR 111;
Weissensteiner v The Queen (1993) 178 CLR 217; Burrell v The Queen [2007] NSWCCA 65;
Burrell The Queen [2009] NSWCCA 193.)
Where a body was in such a state of decomposition that a cause of death could not be determined.
(R v Robertson (1913) 9 Cr App R 189; Keir v The Queen [2007] NSWCCA 149; Kaliyanda v The
Queen [2007] NSWCCA 300.)
Where the Crown case was that the accused either committed the act causing death or was an
accessory. (R v Swindall (1864) 2 Car & K 230; 175 ER 95; R v Thatcher [1987] 1 SCR 652;
R v Serratore [1999] NSWCCA 377; (1999) 48 NSWLR 101.)
Where a single cause of death could not be identified. (R v Butcher [1986] VR 43 at 55–56;
R v Moffatt [2000] NSWCCA 174; (2000) 112 A Crim R 201 at [26], [61], [66].)
In cases of this character an issue of jury unanimity will often arise. However, that line of authority
is not pertinent to the present appeal. (See, eg, R v Leivers and Ballinger [1999] 1 Qd R 649; R v Cramp
[1999] NSWCCA 324; (1999) 110 A Crim R 198 at [29]–[65]; WGC v The Queen [2007] HCA 58; (2007)
233 CLR 66 at [77]–[92]; R v Spathis [2001] NSWCCA 476 esp at [226]–[274]; R v Walsh [2002] VSCA
98; (2002) 131 A Crim R 299 esp at [45]–[57].)
In my opinion, if his Honour proceeded on the basis that the Crown had to establish the particular
act of the accused which caused death, then his Honour erred and did so with respect to a question of
law alone.
Questions
2.15 If the accused must be proven to have been responsible for the sole or a substantially
contributing cause of death, why is it unnecessary to identify the operative act or
acts?
2.16 In what circumstances might it be evidentially necessary to identify this act or these
acts?
2.7.2.1 Take your victim as you find him/her

Where the victim, as a result of a latent physiological or psychological condition, dies of an injury
inflicted by the defendant, but from which a normal person would not have died, the pre-existing
condition will not be deemed to have broken the chain of causation. This is typically referred to
as the ‘egg-shell-skull’ rule of causation and, like other rules governing the requirement of legal
58 PART 2: Homicide
causation, is predicated on the notion that the attribution of causal responsibility is inextricably
tied to the defendant’s moral culpability (or the lack thereof ) for his or her conduct. The
‘egg-shell-skull’ rule expresses this notion by deciding that as between the innocent victim and
the accused who unlawfully inflicts injury, the risk of liability for unforeseen consequences
should rest with the accused. Thus, the defendant is liable for unlawful homicide if s/he inflicts
a minor blow to the head of a person who, unbeknown to the defendant, is a haemophiliac and
dies as a result of the blow—provided there is a ‘but-for’ causal connection between the blow
and the eventual death of the victim.
R v Blaue [1975] 1 WLR 1411 is the leading case on this issue. In this case, a victim of a
stabbing was a Jehovah’s Witness. On being taken to hospital, she refused a blood transfusion
in accordance with her beliefs. The issue was whether this refusal interrupted the chain of
causation. Lawton LJ explained the common law position:
It has long been the policy of the law that those who use violence on other people must
take their victims as they find them. This in our judgment means the whole man, not just the
physical man. It does not lie in the mouth of the assailant to say that his victims’ religious
beliefs, which inhibited him from accepting certain kinds of treatment were unreasonable.
The question for decision is what caused her death. The answer is the stab wound. The fact
that the victim refused to stop this end coming about did not break the causal connection
between the act and death: ibid 1414 (emphasis added); see also R v Bingapore (1975)
11 SASR 469; R v Holland (1841) 2 Mood R 351; 174 ER 313 (holding that a victim’s
negligence in disregarding medical advice, albeit a ‘but-for’ cause of his death, did not sever
the causal connection between the accused’s criminal act and the victim’s death).
It is important to point out that earlier in his judgment in Blaue, Lawton LJ stated the test of
legal causation in terms of whether the defendant’s act was an operating and substantial cause of
death. Although ultimately answering this question in the affirmative, he never explained the
precise meaning of the terms ‘operating’ or ‘substantial’ and appeared to instead base the decision
on the aforementioned precept that ‘one must take their victims as they find them’. A cursory
review of Hallett indicates that the Supreme Court of South Australia took a similar approach
in masking the real basis for its decision under the cloak of the operating and substantial cause
test. The only difference is that in Hallett, the case was ultimately decided on the precept that
while the extraordinary operation of natural forces will sever the causal chain, the ordinary
operation of such forces will not. Did the Supreme Court of South Australia actually apply a
test of reasonable foresight in disguise?
2.7.2.2 Medical treatment

D may inflict injuries on V, following which V receives negligent medical treatment that
is another ‘but-for’ cause of death. The question then arises as to whether such treatment
constitutes a superseding cause that severs the causal chain and absolves D of any criminal
liability for consequences that occur subsequent to the treatment.
In R v Jordan (1956) 40 Cr App R 152, an airman stabbed his victim in the course of a brawl.
The victim was admitted to hospital. In the course of the treatment, medicine (terramycin) was
used that the victim could not tolerate. The use of the medicine was discontinued, but a day later
was resumed by hospital staff who were unaware of the earlier adverse reaction. The victim died
and the immediate cause of death was the terramycin. The airman was convicted and appealed.
On appeal, the court heard new evidence from medical practitioners that detailed the ways in
which the medical treatment of the victim was ‘palpably wrong’ and outside the normal course
of medical conduct and, moreover, that the wound from the airman had almost healed by the
time of the second infusion of the drug. On appeal, the conviction was overturned on the basis
that the medical treatment was abnormal to such an extent as to be described as palpably wrong
and, therefore, broke the chain of causation. It is noteworthy that in Jordan, the court never
referred to the operating and substantial cause test.
In subsequent cases, this judgment has been distinguished and confined to its facts. In R v
Smith [1959] 2 QB 35, for example, the Court Martial Appeals Court in England found that
the treatment given was thoroughly bad and might well have affected the victim’s chances of
recovery. The court felt that had there been full medical facilities, the victim would have had a
75 per cent chance of survival. However, the court found that the original wound was still, at the
time of death, an operating and substantial cause of death:
It seems to the court that if at the time of death the original wound is still an operating
cause and a substantial cause, then the death can be properly said to be the result of the
wound, albeit that some other cause is also operating. Only if it can be said that the original
wounding is merely the setting in which another cause operates can it be said that the
death does not result from the wound. Putting it another way, only if the second cause is
so overwhelming as to make the original wound merely part of the history can it be said
that the death does not flow from the wound: ibid 42 (per Lord Parker) (emphasis added).
The court approved of Jordan’s case, but found that there was no ‘abnormal’ or ‘palpably wrong’
treatment in Smith’s case. On its facts, it appears that the medical treatment in Smith was no
less ‘palpably wrong’ than it was in Jordan. Although the negligent treatment in both cases fell
short of recklessness, a cogent argument can be made that the treatment rose to the level of
gross negligence in each instance. This perplexing result is best explained in a passage from Lord
Parker’s judgment in Smith. Therein, Lord Parker opined that Jordan ‘should be regarded as
a case decided on its own special facts and not act as an authority relaxing the common law
approach to causation’: ibid 531. As in other cases in which the operating and substantial cause
test was ostensibly applied, the terms ‘operating’ and ‘substantial’ were left undefined and the case
was ultimately decided on another test; namely, whether the medical treatment was so abnormal
as to warrant the ‘palpably wrong’ epithet.
Questions
2.17 How would you distinguish Smith’s case from Jordan’s case?
2.18 Do you think the focus of the test in these cases is on the medical treatment, the
defendant’s conduct, or some broader public policy?
R v Smith was followed by the Supreme Court of Victoria in R v Evans & Gardiner (No 2)
[1976] VR 522. In this case, Evans and Gardiner were prisoners in Pentridge when they stabbed a
fellow prisoner, Wayne Hamilton. The victim of the stabbing was taken to hospital where a bowel
60 PART 2: Homicide
resection was performed. Hamilton resumed a healthy life, as evidenced by his participation
in the Pentridge Christmas sports. Three months after Christmas, however, Hamilton started
getting acute abdominal pains. He vomited a lot. He received medical treatment for this, but
he died soon after. An autopsy showed that there was a fibrous stricture near where the bowel
resection had been performed. Expert witnesses testified that such a stricture was a common
result of the operation and could have been discovered and treated with proper medical care.
The question, therefore, was whether the prison doctor’s failure to diagnose the stricture was
sufficient to constitute a superseding event, in turn, breaking the chain of causation.
R v Evans & Gardiner (No 2)

[1976] VR 523
Judgment
Young CJ, Gillard and Anderson JJ: The applicants, who were presented for trial on a charge of having
at Beechworth on 23 March 1975 murdered Wayne Douglas Hamilton were, after a trial lasting some nine
days, each found guilty of manslaughter.
On 13 April 1974, the deceased Hamilton, and both applicants were prisoners at Pentridge and all of
them were in ‘G’ Division. There was evidence that during the course of the morning all three men were
in the table tennis room together, no one else being present; and that whilst in that room the applicant
Gardiner stabbed Hamilton with a knife. The Crown case was that Evans was either acting in concert with
Gardiner, or aiding and abetting him, in his attack on Hamilton. Hamilton was stabbed in the stomach just
to the right of the umbilicus. An operation described as a bowel resection was carried out during which
a portion of the bowel was removed. The operation was described as a success by one of the medical
practitioners who assisted at it and he said that the patient recovered in the usual post-operative manner.
Hamilton was discharged from hospital on 18 April 1974, and on his discharge, according to the same
medical practitioner, he was well; he had made a good recovery. He was returned to Pentridge.
In August 1974, Hamilton was transferred to the Beechworth Training Prison where, according to
the evidence, he performed ordinary duties as a prisoner and took part in ordinary prison activities.
Hamilton made no complaints about his health, except for toothache, until shortly before his death when
he complained of abdominal pains.
The evidence suggested that Hamilton’s abdominal pains started on Saturday 15 March 1975. Some
vomiting and loose bowel action were associated with them. He was seen on Sunday 16 March by Dr Orgill,
a medical practitioner practicing in Beechworth, who was not the prison doctor but whose services were
availed of by the prison when emergencies occurred or attention was required outside normal working
hours. Dr Orgill was not called as a witness at the trial but a written report by him was tendered in
evidence by the Crown. On the Sunday, Dr Orgill thought that the probable cause of Hamilton’s abdominal
pains was gastro-enteritis, and he gave him an injection of Stemetil, which relieved the vomiting.
Hamilton was seen by the prison doctor, Dr Gequillana, at the prison on the morning of Monday
17 March. He said he was feeling a little better, but he still complained of abdominal pain, although
he was not vomiting. Dr Gequillana thought that he must be suffering from some gastric infection of
some kind and he gave him ampicillin, which is an antibiotic. He also told the prison warder with him
to keep an eye on Hamilton. He was placed on ‘rest in cell’ for the Monday and the Tuesday. Thereafter
Hamilton apparently continued with normal prison duties and there was evidence that he was gardening
on Wednesday 19 March, without complaint. On Thursday, he fell in with the garden gang and went
through to the garden, but shortly after nine o’clock he reported to one of the prison officers that he
‘wasn’t feeling too well’. He was allowed to rest in his cell. The gaol authorities evidently telephoned Dr
Gequillana, but he was unable to travel to Beechworth, and Hamilton was seen by Dr Collins, a medical
practitioner of Beechworth to whom Dr Orgill had been acting as assistant. Although Hamilton’s condition
might be said to have worsened, Dr Collins thought that his condition required only observation and sent
him back to the training prison, with instructions for fluids only and rest.
By Friday 21 March, Hamilton’s condition had visibly changed and the Governor of the prison
had become alarmed. Dr Collins was telephoned and again the prisoner was taken to Beechworth for
examination. He was examined by Dr Orgill and by Dr Collins. The symptoms of abdominal pains and
vomiting were again present and the doctors noted that: ‘Today he doesn’t look as well as when seen
previously’. They reported that they had examined Hamilton and believed that he should be transferred to
a hospital for proper investigation of his symptoms. Their report concluded: ‘Because of these continued
symptoms we believe this man should be investigated to see if there is any organic cause for his symptoms
or whether he needs psychiatric assessment’. Dr Collins said in evidence that on examination he could
find no abnormality in Hamilton’s abdomen, but he was unhappy about the prisoner’s condition and
telephoned the prison the next morning to find out whether he had been sent to Melbourne or Wangaratta
for investigation. He was told that Hamilton seemed much better and was up and about. In fact Hamilton
spent some time in the company of visitors on the Saturday and according to the prison governor, ‘he
brightened up considerably’. However, he died early on the Sunday morning before Dr Collins, who was
sent for at about 3.45 a.m., could reach him.
An autopsy revealed that there was a stricture in the small bowel caused by a fibrous ring about the
bowel wall, and fibrous tissue which caused obstruction of the bowel leading to poisoning, dehydration, and
death. The stricture was at the site of the bowel resection operation carried out on Hamilton immediately
after the stabbing, and there was evidence that the formation of adhesions leading to a stricture of the
bowel was a not uncommon complication following a bowel resection operation. There was also evidence
from which the jury might have concluded that the doctors at Beechworth ought to have diagnosed bowel
obstruction or ought to have had an X-ray examination of Hamilton’s abdomen which might have revealed
the bowel obstruction, and that death could have been prevented by operative treatment upon such a
diagnosis.
The grounds originally sought to be argued on the applicant’s behalf were three of those appearing in
the notices of application for leave to appeal, and an additional ground added by leave of Menhennitt J,
sitting in Chambers. These grounds read as follows:
(2) That the learned trial Judge should have held that the Crown evidence on the issue of causation
was insufficient or unsatisfactory and withdrawn the issue from the jury’s consideration,
(3) That the learned trial Judge failed to adequately direct the jury as to the effect of the negligent
acts or omissions on the part of the treating doctors at Beechworth,
(4) On the evidence in this case it was not open in criminal law to find the accused responsible for
the death of the deceased.
It is not profitable to attempt a critical examination of the language of these grounds. During the
course of argument it became apparent that there was involved in counsel’s submissions on behalf of the
62 PART 2: Homicide
applicants a contention that the learned trial Judge had misdirected the jury. Accordingly, we allowed the
addition of a further ground in the following terms:—
(5) The trial Judge misdirected the jury or failed to adequately direct the Jury on the principles of
causation in that—
(i) he failed to tell the jury that the accused could only be guilty of culpable homicide if the
death was the direct and immediate and not a remote cause of death;
(ii) that in the circumstances of this case, death was too remote to be regarded as having been
caused by the wounding;
(iii) as the death was a secondary and an indirect complication it could not in law be said to
have been caused by the wound;
(iv) he wrongly told the jury that if the treatment was not given simply because the patient was
in the middle of the desert or somewhere where the treatment was not available, the original
wound would cause the death;
(v) he failed to tell the jury that an operative cause was when it was still active and working;
(vi) he wrongly told the jury that they would have to consider whether the conduct of the doctors
was so inept or incomplete or unreasonable as to raise a possibility in their minds that in the
presence of this conduct the stabbing was not the operating and substantial cause of death;
(vii) that he failed to tell the jury that unless they could exclude altogether the conduct of the
doctors it was not open to them to find that the wound was the cause of death.’
In the end, counsel’s submissions were summarized by him under three heads which may be stated
as follows:
(a) In the circumstances of this case the death was too remote from the stabbing to have been caused
by the latter.
(b) The learned judge misdirected the jury as to the principles of causation applicable to the facts.
(c) The evidence relating to the conduct of the medical practitioners was such as to make it unsafe to
allow the case to go to the jury.
It will be convenient to deal with the case upon the basis of the grounds so summarised rather
than upon the basis of the formal grounds submitted. It was during the discussion of ground (a) that the
difficulties confronting counsel for the applicants really emerged. Mr Thomson, who appeared for the
applicants, contended that the circumstances which intervened between the stabbing and the death
provided something in the nature of a legal impediment to the death being found to have been caused
by the stabbing. He sought by this argument to remove the question of causation from the province of
the jury in the same way as it would have been removed if the death had ensued more than a year and
a day after the stabbing.
In the present case, as the learned trial judge said in his report to this Court: ‘The only positive cause
of death was the stab wound and the sequences of physical consequences which followed it. Nothing
which the gaolers or doctors did contributed positively to the death: the complaints against them were
that they had done nothing to prevent it.’
These considerations are of some importance for in all of the authorities to which the learned judge
referred, except possibly R v Flynn (1867) 16 WR 319, the intervening events had a positive adverse
effect on the deceased. But in the long run the difference between a positive act of commission and an
omission to do some particular act is for these purposes ultimately a question of degree. As an event
intervening between an act alleged to be felonious and to have resulted in death, and the actual death,
a positive act of commission or an act of omission will serve to break the chain of causation only if it
can be shown that the act or omission accelerated the death, so that it can be said to have caused the
death and thus to have prevented the felonious act which would have caused death from actually doing
so (cf cases decided under the Workmen’s Compensation Acts where it was held that the unreasonable
refusal to undergo proper medical treatment barred a claim for compensation: Steele v Robert George &
Co Ltd [1942] AC 497; [1942] 1 All ER 447. However we have seen no criminal case in which an omission
to give or undergo treatment has been held to break the chain of causation between the felonious act
and the death.)
Once it was clear that the question whether the stabbing caused the death of Hamilton was a question
for the jury, it is necessary to consider whether the jury was given a proper direction by his Honour. Before
charging the jury, Lush J indicated that he proposed to direct the jury in accordance with R v Smith [1959]
2 QB 35; [1959] 2 All ER 193. Counsel for the accused invited his Honour to direct the jury along the lines
of what was said to be the ratio in Jordan’s case (1956) 40 Cr App Rep 152, namely, that the rule that
death following from serious bodily harm deliberately inflicted is murder will not apply if death would not
have followed apart from grossly improper medical treatment; and it was suggested that that view was
not inconsistent with R v Smith, supra. We shall refer to Jordan’s case later.
In R v Smith, supra, a soldier was charged with the murder of a soldier in another regiment. He
was alleged to have stabbed the victim during a barrack room fight. The victim was taken to a medical
reception station where he received treatment that was afterwards shown to be ‘thoroughly bad and
might well have affected his chances of recovery’ ([1959] 2 QB at p 42). It was contended, inter alia,
that if something happened which impeded the chance of the deceased’s recovering, then the death did
not result from the wound. Lord Parker, CJ, speaking for the Court Martial Appeals Court in which he
was sitting with Streatfield and Hinchcliffe, JJ, dealt with the argument in these words (QB) at pp 42–3:
The court is quite unable to accept that contention. It seems to the court that if at the time of death
the original wound is still an operating cause and a substantial cause, then the death can properly
be said to be the result of the wound, albeit that some other cause of death is also operating. Only if
it can be said that the original wounding is merely the setting in which another cause operates can
it be said that the death does not result from the wound. Putting it another way, only if the second
cause is so overwhelming as to make the original wound merely part of the history can it be said that
the death does not flow from the wound.
This was the passage upon which the learned trial judge’s charge was based and in our opinion
it is the most satisfactory expression of the law to be found in the authorities. For the purposes of
generalization it would be necessary to substitute words such as ‘the act or conduct of the accused’ for
the words ‘the wound’, for the criminal act might, for instance, be the poisoning of the victim, but with
some such substitution the passage may be taken as a satisfactory general guide. It should be observed
however that use of the alternative form of words suggested in the last sentence of the passage quoted
would have to be accompanied by a careful warning that the accused bears no burden of proving such
an overwhelming cause and that the burden remained on the Crown to prove that the act of the accused
caused the death, despite the presence of a cause which the defence might claim was overwhelming
(cf May v O’Sullivan, [1955] ALR 671; (1955) 92 CLR 654, at p 658).
Earlier authorities support the view taken by the Court Martial Appeals Court in R v Smith, supra. So
in R v Reading (1661) 1 Keb 17; 83 ER 784, it is reported: ‘Though a wound may be cured, yet if the party
64 PART 2: Homicide
dyeth thereof it’s murder’. It was thus accepted in early times that if a victim suffered a wound which
was capable of being cured, but yet died as a result of such wound, the aggressor could be charged with
murder.
Mr Mullaly, who appeared for the Crown, also relied upon the decision of Maule J, R v Holland (1841)
2 M & Rob 351; 174 ER 313, where the victim of an assault had suffered a severe cut across one of
his fingers. The cut had been caused by an iron instrument. Although he was advised by a surgeon to
have the finger amputated, because in its condition it constituted a hazard to his life, the victim refused.
A fortnight later, lockjaw came on, induced by the wound on the finger. The finger was then amputated,
but the amputation was too late to save the victim’s life. He died of lockjaw. The surgeon at the trial of the
assailant gave evidence that if the victim had had his finger amputated in the first instance, he thought
it most probable that the victim’s life would have been preserved. For the assailant, it was urged at the
trial that the cause of death was not the wound inflicted by the prisoner but the obstinate refusal of the
victim to submit to proper medical treatment. Maule J, rejected this submission and directed the jury
that if the assailant wilfully and without justifiable cause inflicted the wound on the victim which wound
was ultimately the cause of death, the assailant was guilty of murder; that for this purpose, it made no
difference whether the wound was in its own nature instantly mortal or whether it became the cause of
death by reason of the victim not having adopted the best mode of treatment. Maule J, directed the jury
that ‘the real question is whether in the end the wound inflicted by the prisoner was the cause of death?’
So here Mr Mullaly said that what caused the death was the blockage of the bowel and that blockage
was the result of the bowel having been pierced by the stabbing of the victim. Hamilton’s death was not
caused, according to Mr Mullaly, by any inept medical treatment.
Mr Thomson sought to distinguish R v Holland, supra and R v Smith, supra, by submitting that, in each
of those cases it was clear on the evidence that the wound had not healed and was clearly operating on
the victim’s well-being, and that it was a substantial cause of death in each case. In the present case,
however, Mr Thomson emphasized that the wound had healed, the victim had apparently recovered his
good health, and had indulged in active sport and work for a long period of time. Such an argument,
whilst proper to be put before the jury on the issue of causation, does not resolve the issue as a matter of
law in favour of the applicants. As the Court of Appeal pointed out in R v Blaue, supra, at (WLR) p 1414,
in R v Holland, supra, Maule J had said at (M & Rob) p 352: ‘the real question is, whether in the end the
wound inflicted by the prisoner was the cause of death.’

The Court of Appeal went on: ‘That distinguished judge left the jury to decide that question as did the
judge in this case. They had to decide it as juries always do, by pooling their experience of life and using
their common sense. They would not have been handicapped by a lack of training in dialectic or moral
theology.’
The sheet anchor of Mr Thomson’s argument was the decision of the Court of Criminal Appeal in
R v Jordan, supra, and, just as counsel for the appellant did in R v Smith, supra, he placed particular
reliance on an argument which is summarized in a passage in the headnote which was said to represent
the view of the Court of Appeal, and which reads: ‘Semble, that death resulting from any normal treatment
employed to deal with a felonious injury may be regarded as caused by the felonious injury, but that the
same principle does not apply where the treatment employed is abnormal.’
It may be doubted whether that paragraph in the headnote does represent the view of the Court, but
be that as it may, we would with respect adopt what was said about R v Jordan, supra, by the Court of
Appeal in R v Blaue, supra, at (WLR) p 1415: ‘We share Lord Parker, CJ’s opinion that R v Jordan should
be regarded as a case decided on its own special facts and not as an authority relaxing the common law
approach to causation.’
In R v Jordan, supra, the appellant was charged with murder by stabbing. The victim was admitted
to hospital very promptly and the wound was stitched up, but nevertheless he died about a week later.
Counsel for the appellant told the Court that it had not been intended to appeal, but the defence was put
in a position to call further evidence of two doctors as to the cause of death. Accordingly counsel applied
for leave to call the fresh evidence relating to the cause of death. The application was not opposed by
the Crown. The Court granted the application and evidence was given by two doctors that in their opinion
death had not been caused by the stab wound but by the introduction of terramycin after the deceased
man had shown that he was intolerant to it, and by the intravenous introduction of abnormal quantities
of liquid. The witnesses were cross-examined by counsel for the Crown who intimated that he had other
witnesses available, but no other witnesses were called.
Hallet J, speaking for the Court of Criminal Appeal in which he was sitting with Ormerod and Donovan
JJ, concluded the judgment thus (at p 158):
The question then is whether it can be said that, if that evidence had been before the jury, it ought not
to have, and in all probability would not have, affected their decision. We recognize that the learned
judge, if this matter had been before him, would have had to direct the jury correctly on how far such
supervening matters could be regarded as interrupting the chain of causation; but we feel that in the
end it would have been a question of fact for the jury depending on what evidence they accepted as
correct and the view they took on that evidence.
It is to be noted that the Court accepted the view that it was for the jury to determine the question of
causation, and if the judgment had stopped at that point the case might have been simply regarded as the
Court of Appeal regarded it in R v Blaue, supra, as probably rightly decided on its facts. But the judgment
did not stop there. Hallett J, added: ‘We feel no uncertainty at all that, whatever direction had been given
to the jury and however correct it had been, the jury would have felt precluded from saying that they were
satisfied that death was caused by the stab wound.’
With great respect we are unable to share that certainty, particularly in the light of the information
referred to in an article by Professor Glanville Williams at (1975), Crim LR 429, at p 430, to the effect that
a subsequent medical committee of enquiry ‘reported unanimously that it had no fault to find with the
patient’s treatment, which was in fact devoted and exemplary’. If Jordan’s case had occurred in Victoria,
this Court, having the power which the Court of Criminal Appeal did not have to order a new trial, might
well have ordered a new trial upon the basis of the fresh evidence, but it would not have been likely that
the Court would have usurped the function of the jury by directing that a verdict of acquittal be entered.
We now turn to the passages in the learned judge’s charge which were said to contain misdirections.
The first passage reads:
The second thing I wanted to add to the quotation was a figure of speech that is commonly used in
the law, and that is the expression ‘a chain of causation’. The image is that the cause is linked to the
effect by a chain of a series of links in the intervening events. The chain is spoken of as broken—
perhaps it does not follow this simile very literally—but the chain is spoken of as broken if outside
factors intervene which significantly could contribute to the final effect or result so that the original
cause ceases to be in a practical sense a substantial and operating cause.
It was said that this passage did not sufficiently indicate that the act of stabbing by the accused
must be the direct cause of death, and that in the circumstances of this case it was misleading to speak
of a chain of causation when it had clearly been established that the original wound had healed and
the victim had resumed his normal condition of life. But to say that the original wound had ‘healed’ was
66 PART 2: Homicide
an over-simplification. The superficial piercing of the skin had no doubt ‘healed’ but the question was
whether the effect of that wound on the bowel had ‘healed’ or whether it was still ‘operating’ so as to be
a cause of death. In any case the passage criticized followed soon after his Honour had read to the jury
the passage from R v Smith, supra, which we have set out, and it was intended to assist in understanding
the citation. It was not intended to cut down in any way what was said in Smith’s case, which, in our view,
was entirely apposite to the present case.
The second passage criticized reads as follows:
The Crown proposition is that the matter is simply: the stabbing led to the operation, the operation
led to an obstruction and the adhesions and they led to death. The Crown says that the stabbing was
the operative cause, an operative cause, and it was not merely a substantial cause but it was really
the whole cause of the death. The defence says that after the operation Jahn should be regarded as
having been restored to health. He was in fact in good health up till eleven months after the stabbing.
The defence says in substance that after the operation, for the rest of his life he might have needed
some after-care for the consequences of the operation and, so looked at, the operation itself and
the stabbing which led to it had become simply part of his medical history which he would have
carried with him for fifty years if he had lived that long. The defence says that when the time came
when Jahn did need treatment he was cared for incompetently, that the treatment he received was
neither proper treatment nor reasonable treatment and that it was that failure to treat that in all the
circumstances becomes the overwhelming second cause of death so that the original wound ceased
to be an operative and substantial cause. What you have to decide is whether you are satisfied
beyond reasonable doubt that a realistic view of the facts is that the stabbing caused the death.
In this passage the learned trial judge was making a comparison, in the simplest terms, of the case
for the Crown and for the defence. He then elaborated on this in the following pages of his charge. Since
we are of the opinion that the charge correctly explained the law as expounded in Smith’s case we can
discover no real objection to this passage when read in the context of the whole charge.
Finally, Mr Thomson criticized the following two passages in the charge.
(1) If the treatment was not given simply because the patient was in the middle of the desert or
somewhere where no treatment was available, of course, the original wound would cause the
death. The question is: Is it realistic to say that the original wound causes death when the means
of preventing death are readily available?
There is very little that I want to say to you in these comments about the arguments relating
to symptoms and diagnosis. You have heard those and they are most important in the case and
my short treatment of them does not mean anything different. All the symptoms of the bowel
obstruction were present in this case and, of course, they were because the bowel obstruction
was present. We know that from the pathologist’s post-mortem evidence. The question is one of
assessing the conduct of the doctors and the gaol authorities without being wise after the event,
bearing in mind the fluctuations in the patient’s apparent condition from time to time, and to
consider whether the conduct of the doctors was so inept or incomplete or unreasonable as to
raise the possibility in your minds that in the presence of this conduct the stabbing was not the
operating and substantial cause of death. You might try and carry in your mind those adjectives
that I used, incompetent, improper and unreasonable.
(2) The other comment is this: That the question is not whether the doctors were incompetent or
acted improperly or unreasonably in not making a diagnosis of bowel obstruction: the question
is whether their conduct omitting to guard against the risk that there might be bowel obstruction
merited the description inept or incomplete or unreasonable. I repeat that the final question for
you to put to yourselves is: Are you satisfied beyond reasonable doubt that the realistic view of
the facts is that the stabbing caused the death?
We can find no error in these passages. Indeed, in some ways they may be regarded as too favourable
to the accused. The final words of the second passage are reminiscent of ‘the real question’ for the
decision of the jury stated by Maule J, over a hundred years ago in R v Holland, supra, which commended
itself to the Court of Appeal in R v Blaue, supra, at (WLR) p 1414. Since the whole of the charge of Lush J,
was based and, in our opinion, properly based upon the views expressed in Smith’s case, we cannot find
that he in any way failed to instruct the jury adequately on the issue of causation. He clearly expounded
the law, he carefully analysed the evidence and put to the jury the competing arguments for and against
the conclusion that the stabbing caused Hamilton’s death.
The applications must accordingly be dismissed.
[Applications dismissed.]
Questions
2.19 Who decides whether the act relied upon by the prosecution is the act or conduct
causing death?
2.20 Who bears the burden of proving the element of legal causation?
2.21 Must the intervening event be a positive act of commission, or can it also be an
omission?
2.22 The trial judge refers to the simile of the chain. What objections were taken to this
simile?
2.23 What did the Full Court identify as the act of causation?
2.24 Did the court satisfactorily distinguish the facts in this case from those in R v Jordan?
Did the court satisfactorily define the words ‘operating’ and ‘substantial’?
In Evans & Gardiner, the Supreme Court lauded Lord Parker’s statement of the operating
and substantial cause test in Smith as the best formulation of the test of legal causation to date
in the criminal law context. Again, the terms ‘operating’ and ‘substantial’ were left unexplained,
and the Supreme Court adopted Lord Parker’s edict: that Jordan is a case that should be limited
to its peculiar facts rather than looked upon as an authority for relaxing the common law
approach to causation.
So what sort of medical treatment will suffice to break the chain of causation? Short of
‘perverse’ or ‘palpably wrong’ treatment, the courts seem at present unwilling to find a break
in the chain of causation. Would medical negligence rising to the level of recklessness suffice?
What about an intentional infliction of harm on the part of medical staff ? In principle, the
answer should be ‘yes’ in both cases if the true test in medical treatment cases is whether the
treatment can be fairly categorised as ‘palpably wrong’.
68 PART 2: Homicide
2.7.3 Second causal test: the novus actus interveniens test

Whatever its status as a test of legal causation in the context of tort law, the so-called novus
actus interveniens test has not been warmly received by the Australian courts as a test of legal
causation in the criminal law context. In Royall v The Queen (1991) 100 ALR 669, the leading
High Court decision on causation in the criminal law context, five of the justices never alluded
to the test at all. Although Brennan and McHugh JJ made reference to it, neither fully explained
or endorsed it as a test of legal causation in criminal cases, and McHugh J appears to have rejected
it altogether. The reasons for its rejection are both persuasive and complex. For a thorough
discussion of this test, see HLA Hart & T Honore, Causation in the Law (2nd edn, 1985).
2.7.4 Third and fourth causal tests: the natural

consequence and reasonable foresight tests
2.7.4.1 Fright and self-preservation
Where V is killed in an attempt to flee or avoid being violently attacked by D, an issue arises
as to whether V’s reaction in attempting to avoid the threatened harm will sever the causal
connection between the violence or threats of violence and death. For example, V runs in front
of a train while trying to escape from D, after the latter has brandished a knife.
The common law position was restated in Royall v The Queen (1991) 172 CLR 378. This is
the leading case on causation in Australia, and it merits careful reading and detailed attention.
It is important to bear in mind that six of the seven justices taking part in this decision opted to
confine their stated tests of legal causation in criminal prosecutions to so-called self-preservation
cases; that is, cases in which the putative superseding event is an act or omission by the victim
or some third party which is taken in an attempt to avert the harm or threat of harm arising
from the defendant’s conduct. It is only in this limited context that a badly divided court was
able to enunciate a test for determining legal causation. Thus, one should be cautioned against
drawing conclusions as to what the test of legal causation may be in other contexts (such as
Acts of God, medical negligence, pre-existing human frailties). Only McHugh J was willing
to formulate a test that extended beyond self-preservation cases. However, McHugh J stopped
short of articulating a single test of legal causation to be applied in all circumstances.
Royall v The Queen

(1991) 172 CLR 378; [1991] HCA 27
(High Court of Australia)
Judgment
Mason CJ: This application for special leave to appeal raises a variety of questions … A short summary
of the relevant facts will suffice as the reasons for judgment prepared by Deane and Dawson JJ set out
in detail the circumstances in which the offence is alleged to have taken place.
The deceased, Kelly Louise Healey, died in the early hours of 16 November 1986, when she fell from
the bathroom window of the sixth-floor flat in which she and the applicant had lived for the previous
four months. How the deceased came to fall and just what part the applicant played in the events which
precipitated the deceased’s fall were central to the issues which the jury were called upon to determine
at the trial.
The relationship between the applicant and the deceased in the days immediately preceding her death
had been far from serene. There had been a serious quarrel between them, which led to the deceased
moving out of the flat and staying with a friend, Ms Boyd, for three days. She returned to the flat on the
evening of 15 November and the applicant arrived home some hours later. A violent argument ensued.
The applicant admitted to punching the deceased in the face, shaking her, and pulling her hair. There was
other evidence that pointed to a greater degree of violence, for there was blood in various parts of the flat
apart from the bathroom. The deceased’s body was naked when found in the street and her hair was wet.
This, it was said, was consistent with the hypothesis that the deceased had undressed and taken a shower.
There was evidence of a forcible entry into the bathroom, which was extremely confined, and of a
struggle there. The deceased’s blood was found splashed in the bathroom and throughout the flat. There
was a chipped glass ashtray in the washbasin as well as hair and glass chips, evidently from the ashtray,
on the bathroom floor. There were gouge marks in the bathroom wall which, according to evidence, were
consistent with an arc created by someone swinging his or her right arm while holding an object such as
the ashtray. The location of these marks on the wall was said to support an inference that the deceased
may have involuntarily jumped backwards to avoid a swinging arm, whether it was clutching an object or
not. There were no marks on the deceased’s scalp to indicate that she had been struck by the ashtray.
There were neither bloodstains nor fingerprints on the ashtray, though the ashtray was wet and, on that
account, might not have yielded fingerprints.
The Crown case was that the applicant murdered the deceased in one of three ways:
(1) that the applicant pushed or forced the deceased out of the window;
(2) that the applicant physically attacked the deceased in the bathroom and that, in retreating from or
avoiding that attack, she fell from the window; or
(3) that, immediately before her fall from the window, the deceased had a well-founded and reasonable
apprehension that, if she remained in the bathroom, she would be subjected to life-threatening
violence from the applicant and, in order to escape from the violence, she jumped out the window.
The applicant’s case at the trial, as expressed in his unsworn statement, was that after the deceased
had entered the bathroom to take a shower, he had become concerned for her. He had heard a thump
on the wall. He said that he knew that the deceased had used amphetamines over a long time and that
she suffered from epilepsy which caused her to faint or become unconscious. This knowledge, it was
suggested, was the foundation of his concern for the deceased and of the claim that she took her own
life by voluntarily jumping out the window. The applicant forced the lock with a knife and banged against
the door until it opened. He said: ‘When I finally got it open she was going out the window.’ There was
evidence that, in his record of interview, he said that, when the bathroom door opened, ‘I just saw the back
of Kelly going out the window. She just jumped out.’ The applicant denied that any violence was done to
the deceased or that he touched her in the bathroom. Moreover, his case was that he did not cause her
death or intend to injure her.
The case was left to the jury on the footing that it was for them to determine whether the applicant
had caused the deceased’s death in any of the three ways suggested by the Crown. The trial judge
instructed them that, if they were satisfied that the applicant caused the deceased’s death, they should
consider whether he had the requisite intent. His Honour stated that the requisite intent would be satisfied
by an intent to kill, an intent to inflict grievous bodily harm, or reckless indifference to human life. In
making this statement his Honour did not differentiate between the three ways in which the Crown
70 PART 2: Homicide
suggested that the applicant has caused the deceased’s death; in other words, the jury was left with the
impression that, if they were satisfied on the issue of causation in any one of the three suggested ways,
the requisite intention would then be satisfied by an intent to kill or an intent to inflict grievous bodily harm
or reckless indifference to human life. …
Causation
It is convenient to deal initially with the question of causation. The applicant submits that neither the
trial judge nor the Court of Criminal Appeal defined adequately the act done by the applicant which was
alleged to have caused the death of the deceased, thereby creating difficulties in determining the issues
of causation and intent, in particular the coincidence of act and intent. Ordinarily there is no occasion for
a trial judge to spend much time on the identification of the act causing death, but there is a ‘logical and
practical necessity to isolate that act, for it is of it, and it alone, that one or more of the several specified
conditions or concomitants must be predicated if the terms of s 18 are to be satisfied’, to repeat the
words of Barwick CJ in Ryan v The Queen (1967) 121 CLR 205, at pp 217–18. In Ryan the trial judge’s
directions were deficient in that they failed to isolate the particular act or acts which the jury might identify
as the cause of death. In that case there was room for argument about what was the act which caused
death. Different considerations arose for determination in ascertaining whether Ryan’s state of mind
satisfied the requirements of s 18, depending upon which act was identified as the cause of death. The
Crown case was that Ryan went to rob a service station. While he had his finger on the trigger of a loaded,
cocked gun pointed at the deceased’s back, with his other hand he tried to find a cord in his pocket. The
deceased made a sudden movement, Ryan stepped back and this gun discharged, killing the deceased.
If pressing the trigger was identified as the act causing death, the question was whether Ryan willed that
act and intended to kill or inflict grievous bodily harm or whether it was an unwilled reflex movement. If,
however, presentation of the gun was identified as the act causing death, the question was whether Ryan
knew that in the circumstances the involuntary discharge of the gun was probable. See per Barwick CJ
at p 219; and note R v Crabbe (1985) 156 CLR 464 (where the test applied by Barwick CJ in Ryan was
discarded in favour of that just stated).
Thus the case was one in which identification of the act causing death required ‘specific and close
consideration’. Yet the directions given to the jury ‘appeared at times to treat the whole conduct of the
applicant from the inception of his exploit as the act causing death’, without descending to particularity:
see, generally, per Barwick CJ at pp 218–20.
In Ryan, the Chief Justice pointed out (at p 218) that ‘the choice of the act causing death is not for
the presiding judge or for the Court of Criminal Appeal: it is essentially a matter for the jury under proper
direction’. So the question on this aspect of the present case is whether the trial judge adequately directed
the jury as to the particular acts any one of which they might regard as the cause of the deceased’s death.
In this respect there was, in my view, just as there was in Ryan, a need for the trial judge to give specific
and close attention to the identification of the various acts which, on the Crown case, might have been
the cause of death. It is not to the point to say that in the present case the requirement of intent under
s 18 was the same, no matter which of the acts identified by the Crown was selected by the jury as the
cause of death. The point is that, in ascertaining whether there was the requisite intent, different matters
may need to be taken into account, depending upon which act is identified as the act which cased death.
As Stephen J said in White v Ridley (1978) 140 CLR 342, at p 359:
It is always necessary, if there is said to be any lack of temporal coincidence between act and intent,
accurately to identify the relevant act. It was to this need that Barwick CJ drew attention in Ryan v
The Queen (at p 219).
Aickin J agreed with Stephen J: at p 363. The relationship of act to intent is a matter to which I
shall return later. At this stage it is sufficient to say that, if the jury concluded that the applicant pushed
the deceased out the window, it would have been easy to find that the applicant intended to kill or
inflict grievous bodily harm. If, however, the jury concluded that the deceased met her death in one of
the two other ways suggested by the Crown, the drawing of such an inference would not be quite as
straightforward.
However, accepting the necessity in this case for the trial judge to isolate the various acts which
the jury might regard as the act which caused death, I would reject the applicant’s submission that the
summing up was deficient in this respect. The trial judge clearly identified the three acts alleged to have
been done by the applicant which may have led to the deceased’s death …
Of the three ways in which the Crown case was left to the jury on the issue of causation, only the third
calls for comment. His Honour put it this way:
The third allegation is that Kelly Healey, at the time immediately before her fall from the window,
had a well-founded and reasonable apprehension that if she remained in the bathroom she would
be subjected to such further violence as would endanger her life and if in those circumstances she
sought to escape by jumping out the window thinking that by so doing she had a better chance of
saving her life than by staying inside, and was killed in that fall, the causal link between the acts of
the accused and the death are established.
No exception was taken to this direction at the trial.

Generally speaking, an act done by a person in the interests of self-preservation, in the face of
violence or threats of violence on the part of another, which results in the death of the first person, does
not negate causal connection between the violence or threats of violence and the death. The intervening
act of the deceased does not break the chain of causation. But the governing principle has been expressed
in a variety of different ways. The trial judge’s direction was based on that approved by the Full Court of
the Supreme Court of New South Wales in R v Grimes & Lee (1894) 15 NSWR 209 (where the deceased
jumped to his death from the window of a railway carriage in order to escape from the accused who had
assaulted and robbed him). The key element in the chain of causation, as contemplated by the direction, is
that an accused’s conduct creates in the mind of the victim a well-founded and reasonable apprehension
of danger as a result of which the victim takes steps to escape leading to his or her death. According to
this view, it is enough that the victim’s apprehension of danger is well-founded and reasonable; there is
no requirement that the steps taken to escape should be reasonable. However, in England, formulations
have been applied from time to time which pay more attention to the mode of escape chosen by the victim
which results in death, no doubt with a view to emphasizing the causative link between the accused’s
conduct and the death of the victim. Thus, it has been held that a reasonable act performed for the purpose
of self-preservation in attempting to escape the violence of the accused does not destroy the causative
connection with the accused’s violence: R v Pitts (1842) Car and M 284 (174 ER 509); Pagett (1983) 76 Cr
App R 279, per Robert Goff LF, at p 289. In this context, ‘reasonable’ means reasonable in the light of the
accused’s conduct and the apprehension of danger which it induced in the mind of the victim. A variant on
this formulation is to say that the victim’s act which results in death is caused by the accused’s violence
if the act is ‘the natural consequence’ of that violence, something that is very likely to happen: Beech
(1912) 7 Cr App R 197, per Darling J (where the victim was injured after jumping out of a window to
escape from a man whom she had reason to fear). The natural consequence test has been explained as
a test which poses the question whether the victim’s act ‘was something that could reasonably have been
foreseen as the consequence of what (the accused) was saying or doing’: Roberts (1971) 56 Cr App R 95,
72 PART 2: Homicide
per Stephenson LJ at p 102. So if an act is so unexpected that no reasonable person could be expected to

foresee it, then it is a voluntary act on the part of the victim which breaks the chain of causation between
the accused’s conduct and the ultimate injury: Roberts, at p 102.
In Director of Public Prosecutions v Daley [1980] AC 237, the Judicial Committee appears to have
endorsed the approach adopted in Roberts. In so doing, their Lordships pointed out that the fear of
physical harm induced by the accused’s conduct must be ‘reasonable’ and such that it caused the
victim to try to escape: per Lord Keith Kinkel at pp 245–6. It is important to note that in Daley their
Lordships were dealing with the elements of ‘constructive manslaughter’; they were not isolating the
issue of causation for examination on its own. Moreover, the case was one in which the victim sought to
escape by running away rather than by engaging in a hazardous act such as jumping out of a window or
from a speeding train. So the mode of escape did not call for separate attention.
It seems to me that, in the context of causation, the principle is best formulated as follows: where
the conduct of the accused induces in the victim a well-founded apprehension of physical harm such as
to make it a natural consequence (or reasonable) that the victim would seek to escape and the victim is
injured in the course of escaping, the injury is caused by the accused’s conduct. Whether it is necessary
for the prosecution to establish also that the mode of escape adopted is a natural consequence of
the victim’s apprehension for his or her safety does not arise here, for the deceased had no means of
escape other than jumping out of the window in the situation posited. The question could arise only in
circumstances where the victim does something irrational or unexpected, in which event it might be
more difficult to establish that the injury sustained was a consequence of the accused’s act and not the
product of the victim’s voluntary act. In such a situation much may turn on the nature and extent of the
well-founded apprehension of the victim; and it is to be expected that persons fearful for their own safety
forced to react on the spur of the moment will not always make a sound or sensible judgment and may
act irrationally.
In the English cases the natural consequence test has been linked to the concept of foreseeability.
Because the natural consequence test inevitably invites conjecture about the likelihood of an occurrence, it
is impossible to divorce completely the application of the test from the concept of foreseeability. However,
in my view, to invite the jury to consider foreseeability would be more likely, at least in the majority of
cases, to confuse than to clarify the issue of causation. In many cases, for much the same reason, I
see no point in linking that issue to the accused’s state of mind. On the other hand, in some situations,
the accused’s state of mind will be relevant to that issue as, for example, where there is evidence that the
accused intended that injury should result in the way in which it did and where, in the absence of evidence
of intention, the facts would raise a doubt about causation.
Brennan J:
Causation
The external elements of crimes of homicide include the doing of an act or the making of an omission by
the offender, the death of the victim, and a causal relationship between the two. The question whether the
required causal relationship exists is usually a simple question of fact, but this is a more complex case.
The basic proposition relating to causation in homicide is that an accused’s conduct, whether by act
or omission, must contribute significantly to the death of the victim: Pagett (1983) 76 Cr App R 279, at
p 288. It need not be the sole, direct, or immediate cause of the death. However, when the death is not
caused directly by the conduct of the accused but by something done by the victim or by a third person
in response to the conduct of the accused, there is a question whether the chain of causation has been
broken. If the response is a reflex or automatic reaction to the conduct of the accused, the chain of
causation is not broken. It is also well established that the death may be held to have been caused by an
accused’s conduct, though the direct or immediate cause of death is a final fatal step taken by the victim
where that step is taken in an attempt to preserve himself or herself from physical harm which unlawful
conduct on the part of the accused has induced the victim to fear, provided the victim’s attempt at self-
preservation is reasonable having regard to the nature of the accused’s conduct and the fear it was likely
to have induced (or, as I would prefer, provided the attempt is proportionate to that conduct and the fear
it was likely to have induced): R v Pitts (1842) Car and M 284 (174 ER 509); R v Grimes & Lee (1894)
15 NSWR 209; Curley (1909) 2 Cr App R 109; Director of Public Prosecutions v Daley [1980] AC 237,
at pp 245–6. In such a case, the taking of the final fatal step is not a novus actus interveniens breaking
the chain of causation: Pagett, per Robert Goff LJ, at pp 288–9. On the other hand, where the victim’s
attempt at self-preservation is not reasonable (or proportionate), the chain of causation is broken and the
victim’s death is not treated as having been caused by the accused’s conduct. Subject to a qualification
presently to be mentioned, the question whether the chain of causation is broken by the victim’s taking
of the final fatal step is a question of fact to be answered by reference to the objective circumstances.
Nevertheless, an accused cannot be held criminally responsible for a death that has been caused in fact
by his conduct if the final fatal step taken by the victim was neither foreseen nor reasonably foreseeable.
Foresight or reasonable foreseeability marks the limit of the consequences of conduct for which an
accused may be held criminally responsible.
The question whether an accused whose conduct has led to a death is criminally responsible for
the death when the death has been caused by a final fatal step taken by the victim thus depends on
the reasonableness (or proportionality) of the victim’s attempt at self-preservation and the accused’s
foresight, or the reasonable foreseeability, of the possibility that a final fatal step might be taken by the
victim in response to the accused’s conduct.
The question whether the accused is criminally responsible for the victim’s death when the death was
directly and immediately caused by the victim’s taking of the final fatal step is resolved at common law by
applying the same tests as those which would be applied under the several Criminal Codes to determine
whether such a final fatal step is an event that has occurred ‘by accident’ or ‘by chance’. The first stage
of the test is whether the victim’s taking of the step is a novus actus interveniens breaking the chain of
causation; the second stage of the test is whether, at the time when the accused engaged in the unlawful
conduct which induced in the victim the fear that caused him or her to take the final fatal step, the taking
of such a step was not in fact foreseen by the accused and would not reasonably have been foreseen by
an ordinary person: Vallace v The Queen (1961) 108 CLR 56, at pp 61, 65, 82; Kaporonovski v The Queen
(1973) 133 CLR 209, at pp 231–2; Stuart v The Queen (1974) 134 CLR 426, at p 438.
These propositions are subject to a qualification in cases where the accused intends his conduct to
cause the death of his victim. In such cases, foresight is subsumed in the intent and, as the ultimate result
of the accused’s conduct—the death of the person who took that step—is intended, it is immaterial that
the victim’s attempt at self-preservation is objectively unreasonable (or disproportionate) having regard to
the nature of the accused’s conduct and the feat it is likely to induce. As McGarvie and O’Bryan JJ said
in R v Demirian [1989] VR 97, at p 113:
If a person creates a situation intended to kill and it does kill it is no answer to a charge of murder
that it caused death at a time or in a way that was to some extent unexpected.
In such a case, it is impossible to regard the taking of the final fatal step as a novus actus interveniens
and the victim’s death, being intended, is foreseen. But it should not be thought that proof of an intent
74 PART 2: Homicide
to kill or of any other specific mental element in murder is either essential or (except in the case just
mentioned) necessarily sufficient to prove causation of death in homicide cases.
Causation of death is concerned solely with the external elements of homicide; it is not a mental
element of any crime of culpable homicide: see Archbold, Pleading, Evidence and Practice in Criminal
Cases (43rd edn, 1988), vol 2, para 20–8, p 1927. Nevertheless, as causation requires proof that the
taking of a final fatal step by a victim was objectively reasonable (or proportionate) and was foreseen by an
accused or was reasonably foreseeable, the facts tendered to prove a specific mental element necessary
to establish the crime of murder may be relevant in some cases to the existence of facts tending to prove
causation. It is difficult to envisage a case where proof that the conduct causing death was engaged in
with an intent to inflict grievous bodily harm would not establish that at least the possibility of death was
foreseen or was reasonably foreseeable. In a case of reckless indifference to life, the probability of death
must be foreseen: R v Crabbe (1985) 156 CLR 464.
However, proof of one of the specific mental elements may tend to prove the legal chain of causation
linking the conduct of the accused with the death of the victim. In the present case, for example, if the
accused attacked the deceased intending to cause her death, it is immaterial whether her fall from the
bathroom window to the pavement below was immediately caused by his pushing her out the window or
by her jumping out the window in an attempt to save herself from his murderous attack. But if his intent
in attacking her was reckless indifference to her life or an intent to inflict no more than grievous bodily
harm on her, the jury would be required to determine, as a matter of inference from all the facts, whether
the victim’s death was caused by the accused’s conduct.
Deane and Dawson JJ: In identifying the second and third possible views of the evidence, the learned trial
judge clearly had in mind those cases which have been referred to as fright, escape, or self-preservation
cases in which the accused causes the victim to flee or take other steps to avoid harm threatened by the
accused, whereby the victim suffers injury, fatal or otherwise. Where the injuries are fatal, the offence
committed may be either murder or manslaughter depending on the circumstances of the case. The basic
principle was stated by Lord Coleridge CJ in R v Halliday (1889) 61 LT 701, at p 702:
If a man creates in another man’s mind an immediate sense of danger which causes such person
to try to escape, and in so doing he injures himself, the person who creates such a state of mind is
responsible for the injuries which result.
That principle has been elaborated in a number of cases over the years: R v Evans (1812) in Cecil
Turner (ed), Russell on Crime (12th edn, 1964), pp 414–15; R v Pitts (1842) Car and M 284; 174 ER 509;
R v Grimes & Lee (1894) 15 NSWR 209; Curley (1909) 2 Cr App R 109; Beech (1912) 7 Cr App R 197;
R v Lewis (1970) Criminal Law Review 647; Roberts (1971) 56 Cr App R 95; Mackie (1973) 57 Cr App
R 453; Director of Public Prosecutions v Daley [1980] AC 237. Lewis, Curley, Halliday, Evans and Beech
were cases of defenestration. To these might be added the American case of Whiteside v State (1930)
29 SW (2d) 399.
In New South Wales in R v Grimes & Lee, the accused were charged with the murder of Ah Choy, who
was a fellow passenger with them in a railway carriage. They had robbed and assaulted Ah Choy, causing
him to jump to his death from the window of the carriage. The Full Court approved a direction to the jury,
which was in the following terms:
If, then, you are satisfied that Ah Choy left the window immediately after the robbery and wounding
took place, and if you are satisfied that, though Ah Choy was not actually put through the window
by the prisoners, yet that when he jumped through he had a well-founded and reasonable fear or
apprehension that if he stayed in the carriage he would be subjected to such further violence as
would endanger his life, and if he left the carriage thinking that by doing so he had a better chance
of saving his life than by staying in, and was killed in the fall, then the prisoners are guilty of murder,
and are just as responsible for the man’s death as if they had taken him in their hands and thrown
him out of the window.
Of course, there may be no single cause of the death of the deceased, but if the accused’s conduct
is a substantial or significant cause of death that will be sufficient, given the requisite intent, to sustain a
conviction for murder. It is for the jury to determine whether the connection between the conduct of the
accused and the death of the deceased was sufficient to attribute causal responsibility to the accused:
Pagett (1983) 76 Cr App R 279.
No doubt in some cases of murder it may assist the jury if the trial judge points out not only that there
must be a causal connection between the acts (or, more rarely, omissions) of the accused and the death
of the deceased, but that the causal connection must be sufficiently substantial to enable responsibility for
the crime to be attributed to the accused. However, in many cases of murder, particularly where a single
act such as shooting or stabbing is alleged, it may be unnecessary to elaborate the requirement that the
death should have been caused by the accused. In other cases it may be appropriate to point out that
the causal chain must not be broken by some intervening event which operates to relieve the accused of
responsibility, but such a direction would ordinarily be better put by reference to the actual facts of the
case than couched in abstract terms.
If, in a case of fright or self-preservation, the victim over-reacts to the threatening acts or words of
the accused, that may be sufficient to break the chain of causation. That proposition is sometimes put in
terms of reasonable foreseeability: when the act done in self-preservation is ‘unreasonable’ it negatives
causal connection: Roberts, at p 102; Hart & Honore, Causation in the Law (2nd edn, 1985), p 332. On
occasions foreseeability may play some part in a jury’s enquiry into the cause of death but, in directing a
jury, it is, for practical purposes, desirable to keep causation and intent separate as far as possible and to
avoid the introduction of questions of foreseeability in relation to causation. It is, we think, going too far
to say, as the Full Court of the Supreme Court of South Australia did in R v Hallett (1969) SASR 141, at p
149, that ‘(f)oresight by the accused of the possibility or probability of death or grievous bodily harm from
his act, though very relevant to the question of malice aforethought, has nothing to do with the question
of causation’, but in a fright or self-preservation case, where the question is whether the victim’s reaction
was an over-reaction and therefore a coincidence, the matter is best dealt with in terms other than those
of foreseeability. A direction that the victim’s fear or apprehension must be well-founded or well-grounded
or reasonable in all the circumstances will adequately raise the issue, as will a direction that the act of
escape or self-preservation must be the natural consequence of the accused’s behaviour. It is for the
jury to decide those questions: see Grimes & Lee, at p 223. Although it would not necessarily be wrong
to do so, there is generally no need to elaborate the requirement of causation which is implicit in these
directions, other than to make clear that the prosecution must establish that the accused caused the act
of escape or self-preservation upon which the prosecution relies.
Having instructed the jury that they must, if they were to convict, find that an act of the applicant
caused the death of the deceased, the trial judge then directed them that it was necessary to find that ‘at
the time of the act bringing about the death, that being the time when the deceased left the building and
fell to the ground below, there was present in the accused an intent to kill; … an intent to do grievous
76 PART 2: Homicide
bodily harm or … a reckless indifference to her life’. To the extent that the trial judge said that the relevant
time at which to consider intent was ‘the time of the act bringing about the death, that being the time
when the deceased left the building and fell to the ground below’, he was in error. The relevant time was,
of course, the time of the act or acts of the applicant, not of the deceased, which caused the death of
the deceased. However, the error made by the trial judge operated in favour of the applicant, because it
required the continuation of the necessary mental state from the time of the applicant’s act or acts which
caused the fall until the actual fall. In any event, upon any version of the facts the interval of time was so
short as to be immaterial from a practical point of view.
Toohey and Gaudron JJ: In Campbell v The Queen (1981) WAR 286, at p 290; (1980) 2 A Crim R 157,
at p 161, Burt CJ (with whom Jones and Smith JJ concurred) expressed reservations about attempting to
explain causation in the context of a charge of dangerous driving causing death. His Honour said:
It would seem to me to be enough if juries were told that the question of cause for them to decide is
not a philosophical or a scientific question, but a question to be determined by them applying their
common sense to the facts as they find them they appreciating that the purpose of the enquiry is to
attribute legal responsibility in a criminal matter.
Burt CJ’s comments have much to commend them. In particular, there is little to be gained, but there
is a risk of confusion, if the members of a jury are introduced to the sophisticated notions of causation that
tend to bedevil the law of torts. Nevertheless the jury must be told that they need to reach a conclusion
as to what caused the deceased’s death. That does not mean that the jury must be able to isolate a
single cause of death; there may be more than one such cause: R v Butcher [1986] VR 43, at pp 55–6;
R v McKinnon (1980) 2 NZLR 31, at p 36. In that event it is inevitable that the jury will concentrate their
attention on whether an act of the accused substantially contributed to the death.
The question whether an act of the applicant caused the death was one to be answered as a question
of objective fact. It did not depend upon the applicant’s appreciation of the consequences of any act of
his. The Full Court of the Supreme Court of South Australia observed in R v Hallett [1969] SASR 141,
at p 149:
Foresight by the accused of the possibility or probability of death or grievous bodily harm from his
act, though very relevant to the question of malice aforethought, has nothing to do with the question
of causation.
Of this observation, Howard’s Criminal Law, (5th edn, 1990), p 35, n 48 comments:
It may well be argued that attempting to divorce causal responsibility from foreseeability of risk is
spurious. Everyday attributions of causal responsibility are immediately affected by foreseeability and
estimates of risk; probability is a guide to life…. The position expressed in Hallett is also difficult
to reconcile with the fright or self-preservation cases where the long-standing rule is that D is not
causally responsible where V’s death is attributable to an unreasonable reaction on the part of V or
some third party.
Conceding the force of these comments, we are nevertheless of the opinion that the members of a
jury are less likely to be confused if foreseeability is not introduced into the direction on causation and if
the jury are told that whether an act of the accused caused the death is ‘a question to be determined by
them applying their common sense to the facts as they find them’: Campbell, ibid. Consistent with this
approach, the jury may be told that, if the victim’s reaction to the act of the accused said to have caused
the death was quite disproportionate to the act or was unreasonable, the chain of causation was broken.
While the trial judge did not deal with the question of causation precisely in this way, he did put the
issue of causation fairly to the jury, particularly the way in which he put the options to the jury. On this
issue there was no misdirection.
McHugh J:
Causation in criminal cases
Causation is a question of fact: R v Evans & Gardiner (No 2) [1976] VR 523, at p 527; Pagett (1983) 76
Cr App R 279, at pp 290–1. To constitute a cause for the purposes of the criminal law, it is not necessary
that an act or omission be the sole or main cause of a wrong: Pagett, at p 290. But, as I have indicated, the
purpose of the legal doctrine of causation is to attribute legal responsibility, not to determine the factors
which played a part in the happening of an event or occurrence. It is for this reason that the common law
doctrine of causation has not accepted that a person is criminally responsible for an event or occurrence
simply because his or her act or omission was a causa sine qua non [or necessary condition] of that event
or occurrence. If, as a matter of common sense, an ordinary person would not hold an accused’s act or
omission to be a cause of the event or occurrence, it is irrelevant that it was a causa sine qua non of that
event or occurrence: cf Campbell v The Queen (1981) WAR 286 at p 290.
In most criminal cases, the issue of causation is not controversial. If an accused’s act or omission
is causally linked with the event or occurrence, it is always only one of the conditions which were jointly
necessary to produce the event or occurrence. Ordinarily, however, the application of the common sense
test of causation is enough to determine whether the accused’s act or omission was sufficiently significant
to make him or her ‘causally responsible’ for the event or occurrence in question. But there are two cases
where the invocation of common sense principles of causation often provides little assistance to the
jury. The first is the case where an accused’s act would not have brought about the event or occurrence
without the intervention of a subsequent act of the victim or third party. The second is the case where,
notwithstanding the accused’s act or omission, the event or occurrence could have been prevented if
the victim or a third person had taken action to avoid the consequences of the act or omission. In these
cases, common law judges have sought to use more specific tests for determining whether ‘but for’
acts or omissions of the accused were ‘causally responsible’ for the event or occurrence. The common
law judges have used at least four tests for this purpose. They are: (1) the operating and substantial
cause test; (2) the natural consequence test; (3) the reasonable foresight of the consequences test;
and (4) the novus actus interveniens test, which is used sometimes in conjunction with and sometimes
independently of one of the other three tests. Unfortunately, the cases show no consistent pattern in
applying these tests. Frequently, one test has been used to the exclusion of the others without any express
recognition of the existence of the other tests: see Colvin, at p 259.
In R v Smith [1959] 2 QB 35, where the appellant had been convicted of murder, Lord Parker CJ
said (at pp 42–3):
It seems to the court that if at the time of death the original wound is still an operating cause and a
substantial cause, then the death can properly be said to be the result of the wound, albeit that some
other cause of death is also operating. Only if it can be said that the original wounding is merely the
setting in which another cause operates can it be said that the death does not result from the wound.
78 PART 2: Homicide
Putting it in another way, only if the second cause is so overwhelming as to make the original wound
merely part of the history can it be said that the death does not flow from the wound.
In this context, ‘substantial cause’ has been said to be ‘a convenient word to use to indicate to
the jury that it must be something more than de minimis’: R v Hennigan [1971] 3 All ER 133, per Lord
Parker CJ at p 135.
In Smith, there was medical evidence that, if the deceased had received proper treatment after he
was stabbed, there was a 75 per cent chance he would have recovered. Yet Lord Parker CJ said (at p 44)
that, although the treatment given was harmful, no reasonable jury, properly directed, could come to any
conclusion except that death resulted from the original wound caused two hours earlier.
The principle laid down in Smith was followed in Evans & Gardiner (No 2), where the deceased
had died almost one year after being stabbed by the applicants. After the stabbing, a bowel resection
operation was performed successfully. The deceased resumed an apparently healthy life. But he died
about 11 months after the stabbing. The immediate cause of death was a fibrous ring causing a stricture
in the small bowel at the site of the resection operation. The medical evidence established that such a
stricture was not an uncommon sequel to that particular operation. There was evidence upon which the
jury could have found that the deceased’s condition should have been diagnosed and that operative
treatment would have rectified it. The Full Court of the Supreme Court of Victoria upheld the applicants’
convictions for murder. The Court said (at p 529) that the passage from Smith which I have quoted was
‘the most satisfactory expression of the law to be found in the authorities’.
In Evans & Gardiner (No 2), the Full Court distinguished Jordan (1956) 40 Cr App R 152, where a
stabbing wound was stitched up but the victim died a week later. In that case, fresh evidence was called
on the appeal to establish that death had not been caused by the stab wound but by the introduction of
terramycin after the deceased had shown that he was intolerant of it and by the intravenous introduction
of abnormal quantities of liquid which led to broncho-pneumonia from which the victim died. The Court
of Criminal Appeal in Jordan held (at p 158) that, if the jury had heard this evidence, they ‘would have
felt precluded from saying that they were satisfied that death was caused by the stab wound’. The Court
thought that abnormal treatment could be regarded as a supervening event that broke the causal chain.
In distinguishing Jordan, the Full Court in Evans & Gardiner (No 2) (at p 531) agreed with Lord Parker’s
opinion in Smith ‘that R v Jordan should be regarded as a case decided on its own special facts and not
as an authority relaxing the common law approach to causation’.
The judgment of the Full Court of the Supreme Court of South Australia in R v Hallett [1969] SASR
141 also adopted the substantial, operating cause doctrine of causation in a case where the deceased
drowned after an assault by the accused. The Court said (at p 149):
The death of the deceased is the material event. The question to be asked is whether an act or
series of acts (in exceptional cases an omission or series of omissions) consciously performed by
the accused is or are so connected with the event that it or they must be regarded as having a
sufficiently substantial causal effect which subsisted up to the happening of the event, without being
spent or without being in the eyes of the law sufficiently interrupted by some other act or event. It
does not matter on the question of causation whether or not the accused after the commission of
his act fails to appreciate or takes unavailing steps to avoid its probable consequences or mistakenly
thinks he has taken such steps or fails to take such steps through some supervening factor unless
that supervening factor so interrupts the effect of the original act as to prevent that original act from
being in the eyes of the law the cause of death.
There was evidence that the accused had violently assaulted the deceased on a beach, knocked him
unconscious, and left him lying at the edge of the water with his feet in the sea. The deceased died from
drowning, probably in shallow water whilst unconscious. The Full Court said (at p 149):
The only question, it seems to us, which can be raised in this connection is whether the action of the
sea on the deceased can be regarded as breaking the chain of causation. We do not think it can. In
the exposure cases the ordinary operation of natural causes has never been regarded as preventing
the death from being caused by the accused.
The principle that an act or omission of an accused is a legal cause of a wrongful act if it is ‘an
operating cause and a substantial cause’ of that act seems to have been referred to infrequently, however,
in cases where the harm to the injured person would never have occurred but for a subsequent act of
the victim or a third person. One test which has been used in this class of case is to ask whether the
intervening act was a voluntary act or abnormal occurrence which amounted to a novus actus interveniens
which broke ‘the chain of causation’. In Pagett, the Court of Appeal upheld a conviction of manslaughter
where a girl, whom the accused was holding as a shield in front of him, was shot dead by police who were
returning shots fired by the accused at the police. The Court of Appeal said (at p 288):
… although an act of the accused constitutes a causa sine qua non of (or necessary condition for)
the death of the victim, nevertheless the intervention of a third person may be regarded as the sole
cause of the victim’s death, thereby relieving the accused of criminal responsibility. Such intervention,
if it has such an effect, has often been described by lawyers as a novus actus interveniens.
Their Lordships thought (at p 289) that it was broadly correct to say that the intervention of a third
person, not acting in concert with the accused, had the effect of relieving the accused of criminal
responsibility if the intervention was voluntary in the sense that it was ‘free, deliberate and informed’.
Their Lordships said, however, that there was no doubt that a reasonable act performed for the purpose
of self-preservation does not operate as a novus actus interveniens if that act is caused by the accused’s
act. Consequently, the act of the police officers did not constitute a novus actus interveniens severing the
chain of causation between the accused’s unlawful act in using the girl as a shield and her death.
In R v Blaue [1975] 1 WLR 1411; [1975] 3 All ER 446, the Court of Appeal held that the chain of
causation was not broken because the victim of a stabbing, who was a Jehovah’s Witness, had refused
to have a blood transfusion, which would probably have saved her life. The Court said (at p 1415; p 450
of All ER) :
It has long been the policy of the law that those who use violence on other people must take their
victims as they find them. This in our judgment means the whole man, not just the physical man.
It does not lie in the mouth of the assailant to say that his victim’s religious beliefs which inhibited
him from accepting certain kinds of treatment were unreasonable. The question for decision is what
caused her death. The answer is the stab wound. The fact that the victim refused to stop this end
coming about did not break the causal connection between the act and death.
On the other hand in R v Dalby [1982] 1 WLR 425; [1982] 1 All ER 916, the Court of Appeal set aside
a conviction of manslaughter where the appellant had supplied drugs to a person who subsequently died
of an overdose. The trial judge had directed the jury to ask themselves whether supplying the drugs ‘was
a substantial cause of the victim’s death’. The Court said (at pp 428–9; p 919 of All ER) that supplying the
drugs was not an act which caused direct harm and would have caused no harm ‘unless the deceased
80 PART 2: Homicide
had subsequently used the drugs in a form and quantity which was dangerous’. Ingestion of the drugs by
the victim was seen as a novus actus interveniens.
A quite different test of causation was applied in the earlier case of Beech (1912) 1 Cr App R 197,
where the accused was convicted of inflicting grievous bodily harm after the complainant had jumped out
of a window to escape his threatened attack and injured herself. The Court of Criminal Appeal upheld the
conviction and said (at p 200) that no one could say ‘that if she jumped through the window it was not the
natural consequence of the prisoner’s conduct. It was a very likely thing for a woman to do as the result
of the threats of a man who was conducting himself as this man indisputably was’.
The ‘natural consequence’ test applied in Beech was formulated in different terms in Roberts (1971)
56 Cr App R 95, where a young woman who was a passenger in the appellant’s car injured herself by
jumping out of it while the car was in motion. She alleged that she had jumped because of what the
appellant had said he would do to her. The Court of Appeal rejected a submission that the accused must
foresee the actions of a victim which result in the grievous bodily harm or the actual bodily harm. Their
Lordships said (at p 102):
The test is: Was it the natural result of what the alleged assailant said and did, in the sense that it was
something that could reasonably have been foreseen as the consequence of what he was saying or
doing? As it was put in one of the old cases, it had got to be shown to be his act, and if of course the
victim does something so ‘daft’, in the words of the appellant in this case, or so unexpected, not that
this particular assailant did not actually foresee it but that no reasonable man could be expected to
foresee it, that it is only in a very remote and unreal sense a consequence of his assault, it is really
occasioned by a voluntary act on the part of the victim which could not reasonably be foreseen and
which breaks the chain of causation between the assault and the harm or injury.
The foresight principle laid down in Roberts was approved in Mackie (1973) 57 Cr App R 453, where
the appellant was convicted of the manslaughter of a small boy who fell down stairs when running away
in fear of being ill-treated by the appellant who had ill-treated the boy in the past. The Court of Appeal
said (at pp 459–60):
Where the injuries are not fatal, the attempt to escape must be the natural consequence of the
assault charged, not something which could not be expected, but something which any reasonable
and responsible man in the assailant’s shoes would have foreseen.
Where the injuries are fatal, the attempt must be the natural consequence of an unlawful act
and that 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’.
The Judicial Committee of the Privy Council approved the law concerning manslaughter as laid down
in Mackie in Director of Public Prosecutions v Daley [1980] AC 237, where the defendants had quarrelled
with the deceased and had thrown stones at him. The deceased tripped and fell while running away. He
was later found to be dead. Death could have been caused by a blow from one of the stones or by the
impact of the fall. Their Lordships said (at pp 245–6):
It is sufficient to paraphrase what in their Lordships’ view were there (ie in Mackie) held to constitute
the essential ingredients of the prosecution’s proof of a charge of manslaughter, laid upon the basis
that a person has sustained fatal injuries while trying to escape from assault by the defendant.
These are: (1) that the victim immediately before he sustained the injuries was in fear of being hurt
physically; (2) that his fear was such that it caused him to try to escape; (3) that whilst he was trying
to escape, and because he was trying to escape, he met his death; (4) that his fear of being hurt there
and then was reasonable and was caused by the conduct of the defendant; (5) that the defendant’s
conduct which caused the fear was unlawful; and (6) that his conduct was such as any sober and
reasonable person would recognize as likely to subject the victim to at least the risk of some harm
resulting from it, albeit not serious harm.
The law as to causation laid down in Mackie and Daley—where the victims were seeking to escape
the violence of the accused—is different from the direction as to causation which Cole J gave the jury in
the present case. The direction of his Honour was based on a direction approved by the Full Court of the
Supreme Court of New South Wales in R v Grimes & Lee (1894) 15 NSWR 209. There, the defendants
and the victim were travelling in the same compartment in a railway carriage. After being robbed and
assaulted by the defendants, the victim, thinking that his life was in danger, jumped out of the train and
was killed. The Full Court approved the direction of the trial judge that the defendants were guilty of
murder if immediately after the robbery and wounding had taken place the victim jumped through the
window because of ‘a well-founded and reasonable fear or apprehension that if he stayed in the carriage
he would be subjected to such further violence as would endanger his life, and if he left the carriage
thinking that by doing so he had a better chance of saving his life than by staying in, and was killed in
the fall’.
The direction in Grimes & Lee concentrated on the state of mind of the victim and required a finding
of causal connection if the objective facts made the fear well-founded and reasonable. Thus, on a Grimes
& Lee direction, it is not enough that the conduct of an accused person has induced the victim to take
a course of action which resulted in injury or was a substantial, operating cause. The fear of the victim
must be both ‘well-founded and reasonable’. It is, however, not easy to understand what is meant by a
well-founded and reasonable fear. If the fear was well-founded, it is difficult to see how any question of
reasonableness could arise. Further, the direction in Grimes & Lee did not take into account whether the
conduct of the victim was reasonably foreseeable; nor did it take into account whether what the victim did
was the natural consequence of the defendant’s conduct. Consequently, the law as laid down in Grimes &
Lee is difficult to reconcile with the law as laid down in many of the cases decided in this century.
The purpose of this extended discussion of the case law has been to demonstrate that the rules
concerning causation are in an inconsistent and unsatisfactory state in cases where harm to the victim
has occurred because of the subsequent acts or omissions of the victim or a third party. This branch of
the law is in evident need of rationalization. When such a situation exists, it is the duty of this Court, as
the ultimate appellate tribunal of the nation, to seek to achieve that object by recourse to the underlying
principles of the common law.
Judicial and academic efforts to achieve a coherent theory of common law causation have not met
with significant success. Perhaps the nature of the subject matter when combined with the lawyer’s need
to couple issues of factual causation with culpability make achievement of a coherent theory virtually
impossible. But there is little hope of obtaining a coherent theory of causation if the principles of causation
in criminal cases are significantly different from those in the civil law. No doubt the object of the civil
law is not the same as the object of the criminal law. But both areas of law use principles of causal
responsibility to limit liability for the consequences of wrongful acts. Tort and contract law do so, inter
alia, by rules of remoteness of damage which are based on notions of justice and morality: cf Overseas
Tankship (UK) Ltd v Morts Dock and Engineering Co Ltd (The Wagon Mound (No 1)) [1961] AC 388, at
pp 422–3. Criminal law does so by reference to rules that are based on notions of moral culpability.
82 PART 2: Homicide
Speaking generally, the broad principles of causation applicable in civil cases should be equally applicable
in criminal cases. The law of negligence, where issues of causation have arisen frequently, has used the
doctrines of reasonable foreseeability and novus actus interveniens to limit responsibility for negligent
acts and omissions which are causally connected with injury suffered: Mahony v J Kruschich (Demolitions)
Pty Ltd (1985) 156 CLR 522, at p 529. Reasonable foreseeability has been used to limit the liability of a
tortfeasor because ‘it does not seem consonant with current ideas of justice or morality that for an act of
negligence, however slight or venial, which results in some trivial foreseeable damage the actor should
be liable for all consequences however unforeseeable and however grave, so long as they can be said
to be ‘direct’: The Wagon Mound (No 1), at p 422. The novus actus interveniens doctrine has been used
to limit the liability of a tortfeasor because he or she is perceived as having no moral responsibility for
damage when a fully informed actor, not acting under constraint or pressure flowing from the tortfeasor’s
actions, has intervened and produced that damage even though it would not have occurred but for the
tortfeasor’s act or omission. For the same reasons, in a criminal case, a person should not be held liable
for a wrongful act or omission which has caused harm in a ‘but for’ sense if that harm was the product
of a novus actus interveniens or was not a reasonably foreseeable consequence of the act or omission. It
goes almost without saying, however, that a person should be held liable for harm which is causally linked
with his or her conduct and which he or she intended should be brought about by that conduct: cf Hart &
Honore, Causation in the Law (2nd edn, 1985), p 79.
The test of reasonable foresight is to be preferred to the ‘natural consequence’ test and the ‘operating
cause and … substantial cause’ test. The balance of authority favours the reasonable foresight test over
the ‘natural consequence’ test. Moreover, the word ‘natural’ is ambiguous. In Overseas Tankship (UK) Ltd
v The Miller Steamship Co Pty Ltd (The Wagon Mound (No 2)) [1967] 1 AC 617, Lord Reid said (at p 634),
‘(t)he word “natural” is found very often and is peculiarly ambiguous’. In Beech, Darling J, in using the
term ‘natural consequence’, seemed to mean that the consequence was one which ‘was a very likely
thing’. But the expression can also mean a consequence that might be expected to occur. In Roberts (at
p 102), Stephenson LJ approved the test in Beech. Yet his Lordship said that the test was: ‘Was it the
natural result of what the alleged assailant said and did, in the sense that it was something that could
reasonably have been foreseen as the consequence of what he was saying or doing?’ Furthermore,
despite the enthusiasm which some courts and writers have shown for the ‘operating cause and …
substantial cause’ test, I do not think that it is a satisfactory formula. The adjective ‘operating’ adds
nothing. Either an accused’s act is a cause or it is not a cause. The word ‘substantial’ means no more
than not de minimis. The result of the application of the ‘operating cause and … substantial cause’ test
in most cases is that the ‘but for’ test has been applied under another label.
In Hallett, however, the Full Court said (at p 149):
Foresight by the accused of the possibility or probability of death or grievous bodily harm from his
act, though very relevant to the question of malice aforethought, has nothing to do with the question
of causation.
As I have already pointed out, however, for the purposes of the criminal law, causation cannot be separated
from questions of moral culpability. And a person should not be regarded as morally culpable in respect of
harm which he or she did not intend and which no reasonable person could foresee.
However, notwithstanding what was said in Daley and Grimes & Lee, I do not think that either principle
or policy requires the conclusion that an accused is not causally responsible for the harm suffered by
the victim simply because the accused’s act or omission has caused the victim to act unreasonably.
One of the basic objects of the criminal law is the preservation of the Queen’s peace. If the conduct of
the accused in fact induces the victim to do something which ‘causes’ harm to him or her, the act of
the victim ought not to be regarded as a novus actus interveniens merely because it was unreasonable.
Persons subjected to violence or the threat of violence do not always think rationally or act reasonably.
The instinct of self-preservation often causes them to flee or to take action which, while avoiding the
immediate danger, places them in greater peril. Indeed, in some cases, the suicide of the victim should
not be regarded as breaking the causal chain of responsibility. If a person suicided to avoid further torture
and eventual death, I do not see why the causal chain should be taken as broken: cf People v Lewis
(1899) 57 Pac 470. The unreasonable failure of a victim to receive medical attention will not constitute a
novus actus interveniens: Blaue. How then can unreasonable conduct on the part of a victim in escaping
an attack automatically constitute a novus actus interveniens? It is true that in the first case the victim
has refused to take action which would prevent his or her death, while in the second case the victim has
taken action which causes his or her death. But in each case, the death occurs only because of conduct
on the part of the victim which is unreasonable by objective standards. It is not easy to see any distinction
in principle between the two cases. It is even more difficult to see why the conduct of the victim should
absolve the accused in one case and not the other.
The fact that the victim’s act is unreasonable in seeking to escape from the violent conduct of the
accused, therefore, does not seem enough by itself as a matter of either principle or policy to enable
the accused to escape causal responsibility for the harm which ensues. On the other hand, even though
the victim’s act is not a novus actus interveniens, to hold that the accused was criminally responsible for
harm which was not intended and which no reasonable person could have foreseen was likely to result
from his or her conduct would be an onerous imposition of the criminal law.
Consequently, in a case such as the present, an accused should not be held to be guilty unless his
or her conduct induced the victim to take action which resulted in harm to him or her and that harm was
either intended by the accused or was of a type which a reasonable person could have foreseen as a
consequence of the accused’s conduct. In determining whether a reasonable person could have foreseen
the harm suffered by the victim, an irrational or unreasonable conduct of the victim will be a variable factor
to be weighed according to all the circumstances of the case.
[Appeal dismissed.]
Aside from McHugh J, the other justices expressed similar tests with slight variations. Overall,
the common thread is that the reaction of the victim severs the causal chain only if the reaction
is unreasonable or disproportionate to the threat posed by the defendant. A majority comprised
of Deane, Dawson, Toohey, and Gaudron JJ held that the tort concept of reasonable foresight
should not be used in directing juries on the test of legal causation in self-preservation cases;
rather, the test is whether the victim’s reaction was an objectively reasonable or proportionate
response to the threat posed by the defendant. Brennan J, on the other hand, opted for a test
of what a person in the defendant’s position should have reasonably foreseen. While Mason CJ
generally agreed with the majority that instructing juries along the lines of the tort concept of
reasonable foresight might confuse rather than clarify the issue in many cases, he left open the
possibility that its use might be necessary in certain situations which he failed to specify. Which
types of scenarios do you think Mason CJ had in mind in leaving open this possibility?
As Mason CJ noted in Royall v The Queen, above, usually the trial judge will not have to
identify the act causing death, where there are a number of contributing acts and events; but
84 PART 2: Homicide
exceptionally, this will be necessary, as where the defendant argues that the act causing death was
an involuntary act on his or her part (and thus one to which criminal liability did not attach), or
that this act was not accompanied by mens rea. It was accepted in the New South Wales Court of
Criminal Appeal decision in R v PL (2009) 261 ALR 365; [2009] NSWCCA 256, that in the
evidential context of that case, the trial judge had been in error if he had proceeded on the basis
that the prosecution had to establish the particular act of the accused which caused death. The
court (Spigelman CJ, with whom McClellan CJ at CL and RA Hulme J concurred) noted that
there ‘have been numerous cases, generally based on circumstantial evidence, where a particular
act causing death could not be identified’ (at [50]). Notwithstanding this, it has on occasions
been the case that the prosecution could establish that the defendant did an act causing death
with the requisite mens rea. An instance would be where a person disappears, a body is never
found, but nonetheless the evidence, direct and circumstantial, is sufficient to establish the guilt
of a person (see, for instance, Burrell v The Queen (2007) 190 A Crim R 148; [2007] NSWCCA
65; Burrell v The Queen [2009] NSWCCA 193).
Questions
2.25 Does Mason CJ’s test import an element of subjectivity into the test?
2.26 According to Mason CJ, must the victim’s apprehension of physical harm be
reasonable, or will it suffice to establish that the victim was in fear of physical harm?
2.27 According to the majority view of Deane, Dawson, Toohey, and Gaudron JJ, if the
victim had had the option of escaping through the front door but unreasonably elected
to jump out of the window, could the defendant have successfully argued that the
causal chain was severed?
2.28 What inconsistency did McHugh J point out?
2.29 Was McHugh J satisfied with the decision in Blaue’s case?
2.30 Did McHugh J favour a test based solely upon the reasonableness or proportionality
of the victim’s response to the threat?
2.31 What test did McHugh J propose?
2.32 Is there an element of subjectivity in the test formulated by McHugh J?

2.33 In the aftermath of Royall, has the ‘egg-shell-skull’ doctrine been weakened?
2.34 Would the result in Blaue have been the same under the approach advanced by
McHugh J?
Thus, according to the majority in Royall, the prosecution must prove each of the following
in order to establish legal causation in self-preservation cases:
• that D induced in V a well-founded apprehension of physical harm;
• that it was reasonable for V to wish to escape; and
• that V selected a reasonable mode of escape.
After Royall, is it still true that one must take their victims as they find them, both physically
as well as emotionally? If it were, then would it not have been very easy for the High Court to
have decided Royall on that basis? Blaue, therefore, appears to have been overruled in so far as
it held that you take your victims as you find them psychologically—at least in self-preservation
cases. If you agree with McHugh J’s view that causation in criminal cases is a policy matter that
is inextricably intertwined with the notion of moral culpability, was the majority correct in
holding that juries should never be directed along the lines of reasonable foresight when deciding
issues of legal causation in self-preservation cases? Is McHugh J correct that a person should be
considered morally culpable for results which s/he either intended or should have reasonably
foreseen? If so, then is it not fair to say that the majority overlooked scenarios in which an
accused, because of peculiar facts known to him or her, should have reasonably foreseen what
would otherwise have been an objectively unreasonable or disproportionate attempt at self-
preservation? Is this why McHugh and Brennan JJ favoured the test of reasonable foresight
instead? Are these the types of situations that Mason CJ had in mind when he left open the
option of directing juries in terms of reasonable foresight?
It should be noted that five justices endorsed what is often referred to as the ‘rule of intended
consequences’. The essence of the rule is that whenever a defendant’s act or omission is a ‘but-
for’ cause of a result that was actually intended by the defendant, the defendant’s act or omission
will be deemed the legal cause of that result—notwithstanding the intervention of an event
that would otherwise have been regarded as superseding if the defendant had not intended that
result. This comports well with McHugh J’s view that legal causation is a policy matter that is
inextricably intertwined with the notion of moral culpability; that is, one is morally culpable for
results that he either intended or should have reasonably foreseen.
The High Court has yet to approve or disapprove of tests of legal causation employed by
other courts in contexts outside the sphere of self-preservation cases such as Hallett, Blaue, and
medical negligence cases such as Jordan, Smith, and Evans & Gardiner (No 2). Perhaps the test
of reasonable foresight that McHugh J advocated in cases where the putative superseding event
is an act or omission of a victim or third party will be adopted by a majority of the High Court
as it is presently constituted. Regrettably, the law in this area is in a state of disarray with many
important issues unresolved. At present, all one can do is work with the decided cases in an
attempt to resolve ambiguities in a manner that comports with the basic policy underlying the
doctrine of legal causation: imposing fair and reasonable limitations on criminal liability for the
wrongful acts or omissions of an accused. As long as this area of law remains unsettled, there is
an unacceptable risk that accused persons who are similarly situated will run the risk of disparate
treatment under the law as a result of differing directions to juries regarding the test of legal
causation. There can be no semblance of fairness in a system that is calculated to lead to such
inconsistent results. For a comprehensive discussion of the doctrine of legal causation in the
criminal law context, see KJ Arenson, ‘Causation in the Criminal Law: A Search for Doctrinal
Consistency’ (1996) 20 Criminal Law Journal 189.
Review questions
1 The defendant, an Armenian, planned to plant a bomb at the Turkish Consulate in Melbourne and
to kill members of the staff. The plan was to plant the bomb at 6 a.m., and time it to go off three
hours later at 9 a.m. The defendant carried the bomb into the Consulate building. In the darkness
he tripped, the bomb fell down a stairwell and exploded, and two night watchmen were killed. The
defendant is charged with murder. He argues that the act causing death—dropping the bomb
accidentally—was involuntary. Is this argument likely to be successful?
86 PART 2: Homicide
2 The defendant is charged with the murder of his wife and two children. According to the defendant,
his wife had taken herself and the two children to a swimming pool where she drowned the children
and then herself while the defendant looked on. The defendant is charged with three counts of
murder. Assume the defendant took no part in putting his wife and children into the water but stood
by, looking on, offering no encouragement or persuasion to his wife. How would you argue the case
for the prosecution on the issue of omission?
3 What was the ratio decidendi in Royall’s case? Is it limited to so-called self-preservation cases, or
is it applicable generally in all cases where causation is an issue?
4 Assume that after an argument at Melbourne Park, and without any legitimate claim of self-defence
or other lawful right to use force, A stabs B in the chest, intending to inflict grievous bodily harm.
Further assume that B is rushed to hospital where he is treated for what according to doctors is a
non-life-threatening wound. Shortly after being treated and while recovering in hospital, a tsunami
levels the hospital, killing all its inhabitants. A is then charged with the murder of B. According to the
Australian case law, what test should a jury apply in determining whether the tsunami constitutes
a superseding event, thereby severing the causal chain and relieving A of any liability for murder or
any other form of homicide? Under such a test, is the Crown likely to secure a conviction for murder
or any other form of homicide? If A had stabbed B while intending instead to cause B’s death, would
the outcome differ? Why, or why not?
5 Rambo is a bad father and treats his wife, Alice, badly. Arnie is Alice’s brother and Rambo’s brother-
in-law, although Arnie and Rambo have never gotten on well, mostly because of Rambo’s poor treat-
ment of Arnie’s sister. Bambi is Arnie’s latest girlfriend. One night Arnie spins around to Rambo’s
flat and lets off a tirade of abuse at Rambo. Rambo becomes incensed at Arnie and threatens him
with a shotgun. Arnie, aware of Rambo’s bad temper, jumps out the window, four floors above the
pavement, and is very seriously injured.
Bambi sees her distressed boyfriend on the pavement. She decides that perhaps she really was
not that fond of Arnie and disappears. Arnie is only discovered three hours later by a pedestrian who
immediately calls for medical assistance. Arnie dies as a result of his wounds, although medical
evidence suggests he would have had a 90 per cent chance of survival if he had received medical
care shortly after he was first discovered by Bambi.

Discuss the legal ramifications of this case from the standpoint of legal causation.
87
Chapter 3
Murder and Mens Rea
3.1 Introduction
Having canvassed the general category of actus reus in the context of unlawful homicide,
particularly murder, this chapter will focus on the mens rea requirement of murder. Two
particular doctrines of mens rea are canvassed: the doctrines of intention and recklessness. As
noted in Chapter 2, these doctrines encompass the four distinct mens reas of intention to kill,
intention to cause grievous bodily harm, recklessness as to causing death, and recklessness as to
causing grievous bodily harm. As you progress through the material in this chapter, continually
remind yourself that unless the actus reus can be established, the mens rea of the defendant is
simply irrelevant in so far as the crime of murder is concerned. As such, the recommended
approach is to establish the defendant’s voluntary act or omission as the legal cause of death
before proceeding to the requirement of mens rea. As you are now aware, however, these issues
are sometimes interconnected, and this will become apparent in some of the cases considered in
this chapter. For pedagogic purposes, our discussion will proceed in general as if the actus reus
has been established, unless required by the circumstances of the case.
After a detailed discussion of the mens reas that supply the express malice requirement of
murder, we will turn our attention to the law of constructive murder (see Chapter 2). Finally,
you will recall from Chapter 1, that although mens rea crimes are divided into the components
of actus reus and mens rea, there is also a common law requirement that the requisite mens
rea must temporally coincide with the defendant’s relevant voluntary act(s) or omission(s).
Consequently, the chapter concludes with an in-depth analysis of the doctrine of temporal
coincidence.
It is important to emphasise that homicide has provided the context in which many of the
general principles of criminal responsibility have evolved. It should be kept in mind, therefore,
that as with the doctrine of actus reus, so too are the doctrines of intention, recklessness, and
temporal coincidence relevant to a range of crimes that will be considered throughout this
88 PART 2: Homicide
book. As such, it is essential that you acquire a firm grasp of these doctrines before moving on
to the subsequent chapters.
As we saw in Chapter 2, in Victoria and South Australia, the offence of murder is defined
by the common law. In New South Wales, the offence of murder is defined by statute. In New
South Wales, s 18 of the Crimes Act 1900 provides:
18 Murder and manslaughter defined

(1) (a) Murder shall be taken to have been committed where the act of the accused,
or thing by him or her omitted to be done, causing the death charged, was
done or omitted with reckless indifference to human life, or with intent to
kill or inflict grievous bodily harm upon some person, or done in an attempt
to commit, or during or immediately after the commission, by the accused, or
some accomplice with him or her, of a crime punishable by imprisonment for
life or for 25 years.
(b) Every other punishable homicide shall be taken to be manslaughter.
(2) (a) No act or omission which was not malicious, or for which the accused had
lawful cause or excuse, shall be within this section.
(b) No punishment or forfeiture shall be incurred by any person who kills another
by misfortune only.
This definition parallels that at common law, and for the most part, common law case law
is relevant to its construction. The doing of an act causing death ‘with reckless indifference’ has
been construed as importing the common law principles governing reckless murder. For this head
of murder (statutory or common law), the prosecution must establish that the accused foresaw
the causation of death as probable (not merely possible), even though s/he did not desire that this
should happen: see Solomon v The Queen [1980] 1 NSWLR 321 at 327; Peterkin v The Queen
(1982) 6 A Crim R 351 at 354; R v Brown (1987) 78 ALR 368 at 376–7; Royall v The Queen
(1990) 172 CLR 378 at 395, 417, 431, 455; Ainsworth v The Queen (1994) 76 A Crim R 127
at 135–6. ‘Probable’ (or its synonym ‘likely’) need not be explained to the jury: Peterkin at 354.
Where the accused desires that death or grievous bodily harm should result from his or
her act—that is, acts with the objective of causing death or grievous bodily harm—the mens
rea will be that for intentional murder. This s 18 head of murder parallels intentional murder
at common law.
Section 18 murder differs from the common law in one respect. At common law, a person
who acts recklessly in relation to the infliction of grievous bodily harm—that is, who knows
that the infliction of grievous bodily harm is a probably outcome of his or her act—likewise has
the mens rea for reckless murder. Pursuant to s 18, however, and in contrast to the common law,
an accused who causes death while foreseeing the infliction of only grievous bodily harm (and
without any intent to cause this quantum of harm) does not commit murder.
The statutory head of constructive murder parallels that of felony-murder at common law,
except that the associated crimes are limited to those punishable by imprisonment for life or
twenty-five years. (As will be noted in section 3.6 below, common law felony-murder has been
displaced by analogous statutory offences in all jurisdictions.)
Chapter 3: Murder and Mens Rea 89
The requirement that the accused must have acted maliciously (sub-s 18(2)) has been
minimised by the courts on the basis that if the accused has acted with the mens rea for one of
the heads of murder then by definition s/he acted maliciously (however the concept is defined).
3.2 The mens rea element of murder

3.2.1 Overview
The general contours of mens rea and the various headings of murder were discussed in Chapter
1 (section 1.7) and Chapter 2 (section 2.3) respectively. It may be helpful to review these topics
again before proceeding to the balance of this chapter.
Intention sets the standard against which all the other forms of mens rea are measured.
Intention is always a question of fact to be determined by the fact-finder, having regard to all the
relevant circumstances. Although the definition of intention is unquestionably a matter of law,
the courts have generally declined to define it in directing juries and have opted instead to allow
juries to apply the term as a matter of common sense.
Before proceeding to the materials which follow, it should be emphasised that although
the mens rea element for murder may be fulfilled on the face of the evidence, this does not
necessarily lead to the conclusion that the killing constitutes murder. This is because the killing
may be excused by the operation of one or more defences, some of which will be dealt with in
Chapter 4.
Question
3.1 How do the mental elements for each category of murder differ from one another?
3.2.2 Motive
It is an axiom of the common law that a motive to kill does not amount to a mens rea for murder.
It is also a common law maxim that motive, while not a mens rea for murder (or any other
crime for that matter), may well be a highly relevant circumstance in determining whether the
requisite mens rea was present. In Hyam v DPP [1975] AC 55 at 73, Lord Hailsham, in his oft-
cited dictum, described motive as an emotion prompting an act:
The motive for murder in this sense may be jealousy, fear, hatred, desire for money,
perverted lust, or even, as in so-called ‘mercy killings’, compassion or love. In this sense,
motive is entirely distinct from intention or purpose. It is the stimulus which gives rise to
the intention (or the reason for the intention) and it is the latter and not the former which
converts an actus reus into a criminal act.
As we saw in Chapter 2, few murders are random. Overwhelmingly they are committed
by people known to the victim. Motive, therefore, is relevant evidence in proving or rebutting
a charge of murder. However, it is not an ingredient of the offence and, therefore, it is not a
requirement that the prosecution must prove in order to establish the offence.
90 PART 2: Homicide
Question
3.2 How does a motive to kill differ from an intention to kill?
3.2.3 Transferred malice

If the accused acts with the intention or the requisite degree of recklessness in causing another
human being to suffer death or grievous bodily harm, it is immaterial that s/he mistakenly kills B
when s/he acted with the requisite intention or recklessness in causing death or grievous bodily
harm to A. At common law this rule is sometimes referred to as the doctrine of ‘transferred
malice’ or ‘transferred intent’: see P Gillies, Criminal Law (4th edn, 1997) 77–8; see also the
discussion of transferred malice in Chapter 1.
In the Edenic situation of R v Saunders (1573) 2 Plowden 473; 75 ER 706, D gave a
poisoned apple to V, his wife, intending to kill her. V handed the apple to their child who ate it
and died. D was convicted of murder of the child even though the child’s death was the last thing
he intended. Similarly, even if the accused has not chosen a victim and shoots at random into a
crowd, this would be intentional murder—provided the accused realised at the time of his act
that the death of someone was substantially certain to occur: R v Martin (1881) LR 8 QBD 54
at 58 (per Stephen J). This is because the law regards one as having intended a result if s/he acts
with knowledge or an awareness that the result is substantially certain to occur as a result of his
or her volitional act or omission (see Chapter 1).
This rule serves to emphasise that the result which the crime of murder prohibits is causing
the death of another human being. It does not have to be any particular human being, but simply
a human being other than oneself. Similarly, what is prohibited is killing. If the defendant acts
with the intent to kill, for example, it does not matter how s/he kills, nor how s/he intended to
kill, as long as s/he intended to kill another human being. In any event, if the defendant acts with
any of the four mens reas that will suffice for murder in regard to another human being and ends
up killing an unintended victim, the doctrine of transferred malice will treat the defendant in
the same manner as if s/he had the requisite mens rea vis-à-vis the unintended victim.
Question
3.3 D gets into a fight with A. He decides to cause A grievous bodily harm and strikes at
him with all his might. However, his blow misses A and strikes V. V dies. Does D have
the mens rea for the murder of V?
3.2.4 Intention must be subjective

The final maxim of the common law in respect of mens rea is that the intention required is that
of the accused. In other words, the concept of intention, as with any form of mens rea, is always
subjective; that is, the defendant either has the requisite mens rea or s/he does not, and it is
immaterial whether or not a reasonable person, in similar circumstances, would have had such a
state of mind. That said, whether or not it was objectively reasonable for the defendant to have
had that state of mind is an important evidentiary factor for the jury to consider in determining
whether it was actually held by the defendant. Unless the defendant was intellectually impaired,
intoxicated, or there were other extenuating circumstances, it is fair to say that the more
objectively unreasonable it is for the defendant to claim that s/he lacked the requisite mens rea,
the more likely it is that the jury will reject the defendant’s claim.
The effect of this maxim is to make it difficult for the prosecution to prove intention or any
other form of mens rea. Moreover, it places added pressure on the police to obtain an admission
from the defendant that s/he actually intended to kill. Such an admission, if accepted as true by
the fact-finder, will, of course, satisfy the burden of proof on this issue. What of the situations
in which the police have been unable to obtain such an admission, or the admission, though
obtained, has been excluded from the trial because it was obtained by unlawful means? In these
circumstances, how is the intention of the accused to be proven? Here, the prosecution must rely
on circumstantial evidence; that is, it must rely on inferences, which the fact-finder is permitted
to draw from the available evidence as to the actual intention of the accused.
3.3 Intention to kill

3.3.1 Actual intention
Where the defendant’s voluntary act or omission causes death and at the time of the act or
omission s/he intends to cause death, the defendant is prima facie liable for murder. This is the
situation in all Australian jurisdictions. The High Court has not yet offered a comprehensive
definition of ‘intention’, although in England there has been much discussion, albeit obscure, on
this matter. The reason for the difference is that in most Australian jurisdictions, recklessness is
a sufficient mens rea for murder. In difficult cases, therefore, it is unnecessary for the prosecution
to prove an actual intention to kill. In England, on the other hand, recklessness is not a sufficient
mens rea for murder and thus, with prosecutorial zeal, the House of Lords has attempted to
smuggle in recklessness under the guise of intention.
Given the Australian inclusion at common law of recklessness as a distinct heading of

murder, it is unlikely that the High Court or any court for that matter, will find it necessary to
provide a legal definition of intention. The courts have, however, used a variety of synonyms:
aim, purpose, object, wanting, even meaning. As was stated in R v Willmott (No 2) [1985] 2 Qld
R 413 at 418, an intention to do something exists where D ‘meant to do it’. As a general rule, it
can be said that one is regarded in law as intending a result if: (a) s/he acted with the conscious
purpose or desire to bring about such a result; or (b) s/he acted with the knowledge (‘awareness’
and ‘foresight’ are used interchangeably with knowledge—see Chapter 1) that such a result was
substantially certain to follow as a result of his or her voluntary act or omission.
Bearing in mind that recklessness is a sufficient mens rea for murder under Australian but
not English common law doctrine, it becomes crucial to understand where one draws the line
between intention and recklessness. This matter was addressed in some detail in Chapter 1, but
will be re-examined here in the context of the mens rea requirement for murder. The distinction
is not difficult to draw if one keeps in mind (as discussed in Chapter 1) that recklessness is,
in effect, an aggravated form of negligence and that all forms of negligence and intention are
92 PART 2: Homicide
mutually exclusive. If one intends to bring about a result, then by definition s/he does not act
negligently in any form in bringing about such a result. Conversely, if one acts negligently in any
form in bringing about a result, then by definition s/he does not act intentionally in bringing
about such a result.
3.3.2 Intention and foresight of probability of death

The law draws a distinction between an intention to kill on the defendant’s part and knowledge
(or awareness or foresight) by him or her that death will probably ensue as a consequence of
his or her volitional conduct. As noted above, that intention will be imputed in the scenario
in which the defendant acts with knowledge of the practical certainty that death will ensue,
as contrasted with the scenario in which the defendant acts while contemplating only the
probability that death will occur (recklessness).
3.4 Intention to cause grievous bodily harm

This is the second heading of murder. It differs from the first heading (intention to kill), not
because of any variance in the meaning of intention, but only in terms of what you must intend.
In other words, for this heading of murder, the prosecution must prove that at the time of the
relevant voluntary act or omission, the defendant intended only to cause grievous bodily harm.
As noted in Chapter 2, an intention to cause grievous bodily harm suffices as the mens reas for
murder in New South Wales, South Australia, and Victoria.
3.4.1 Grievous bodily harm

Apart from defining the meaning of intention, the only remaining issue in this heading of
murder is what amounts to ‘grievous bodily harm’. This issue has been addressed in contexts
other than murder, most notably in various common law and statutory assault offences in which
causing or attempting to cause grievous bodily harm is a constituent element. As a practical

matter, however, there is usually little advantage to be gained in disputing its precise meaning.
The reason for this will be discussed below.
Grievous bodily harm may be caused without the use of any weapon: R v Heaton (1899) 5
ALR (CN) 61. It may also be caused by cutting off V’s air supply by placing a pillow over her
face in order to stop her from screaming, as in R v Rhodes (1984) 14 A Crim R 124. In this case,
the Victorian Court of Criminal Appeal agreed with the decision in R v Ross [1922] VLR 329,
which held that a violent assault to the throat for the purpose of stopping V from moaning and
groaning could be an assault with the intention of causing grievous bodily harm.
Despite these situations, the judiciary has generally taken the view that grievous bodily harm
is merely a synonym for ‘really serious bodily harm’ and, therefore, the two expressions may be
used interchangeably: R v Miller [1951] VLR 346 at 356–7. Compare the preference of the
South Australian courts for the use of the expression ‘grievous bodily harm’: R v Perks (1986) 41
SASR 335. For a sense of the extent of harm envisaged, one needs to turn to the law of assaults
which, at common law, drew distinctions between the lesser harm of actual bodily harm and the
greater harm of grievous bodily harm (see Chapter 6).
3.4.2 An objective standard

Whether the harm amounts to grievous bodily harm is to be assessed by the fact-finder according
to an objective standard. The jury is simply to determine whether, according to the ordinary
usage and current standards, the harm was grievous bodily harm. Thus, it is immaterial what the
victim’s opinion of the harm is.
3.5
Recklessness as to causing death or grievous
bodily harm
3.5.1 The test for recklessness
This is the third heading of common law murder. In contrast to the former two categories, the
prosecution is not required to prove that the defendant possessed an intention. Recklessness is
a lesser mode of mens rea, and as such is easier for the prosecution to prove. It is important to
recall from the previous discussion that reckless murder exists in New South Wales, Victoria,
and South Australia. In New South Wales, however, the only type of recklessness that will suffice
for murder is recklessness as to causing death (as opposed to recklessness as to causing grievous
bodily harm).
As with all categories of murder, the actus reus must always be proven. The difference is, as
indicated, in the mens rea required. The following, however, may be taken as a general definition.
Under Australian common law doctrine, it is murder for the defendant to kill the victim by
engaging in conduct that s/he knows (or of which s/he is aware or foresees) will probably cause
death or grievous bodily harm to another human being, even if s/he does not intend either
result. This heading of murder is referred to as reckless murder. To emphasise this point, what
establishes the mens rea of reckless murder is the defendant’s knowledge that death or grievous
bodily harm will probably result from his or her voluntary act or omission.
3.5.2 Distinguishing recklessness from intention

As noted earlier, there is a distinction between intentional and reckless killing, which rests
on the degree of foresight (knowledge) of probability. If the likelihood that the defendant’s
conduct will cause death or grievous bodily harm is so high as to be deemed a practical certainty,
the defendant’s state of mind will be regarded in law as an intention to kill or cause grievous
bodily harm. On the other hand, if the foresight (knowledge) of the likelihood of causing death
or grievous bodily harm is even slightly lower, then the defendant’s state of mind will be no
more than recklessness as to causing death or grievous bodily harm. As we shall discover, only
recklessness of the ‘probability’ type, (as opposed to the ‘possibility’ type) will suffice for murder.
As we shall also discover, whether recklessness rises to the ‘probability’ genre depends upon
the degree of likelihood of the occurrence of death or grievous bodily harm that the defendant
foresaw at the time of his or her voluntary act or omission. Ordinary or even gross negligence,
where the defendant never adverts to the potential for death or grievous bodily harm under
circumstances where a reasonable person in the defendant’s position would have so adverted is,
94 PART 2: Homicide
of course, not a mens rea; rather, it is merely conduct that falls below the standard of care required
of all persons to protect their neighbours from unreasonable risks of harm (see Chapter 1).
3.5.3 Justification for the doctrine of reckless murder

Given the degree of harm that the criminal justice system is trying to prevent in homicide cases,
the common law is unwilling to draw a difference between the state of mind of an individual
who intends to kill or cause grievous bodily harm and an individual who acts without intending
to kill or cause grievous bodily harm, but nonetheless adverts to the probability that death or
grievous bodily harm will ensue.
Questions
3.4 Should there be a distinction between reckless murder and intentional murder?
3.5 If D foresees that death or grievous bodily harm is a high probability, but not a practi-
cal certainty, should this be treated under the rules relating to intentional murder or
reckless murder?
As with the meaning of intention, the meaning and scope of recklessness can only be
appreciated by paying close attention to the way the courts have applied the doctrine of
recklessness in their judgments.
There are essentially three issues that have been addressed in the cases: (a) the mentalities
that are encompassed by the notion of recklessness; (b) the meaning of foresight (or knowledge
or awareness) in recklessness; and (c) the degree of risk that the defendant must foresee. The
leading case in this area is R v Crabbe (1985) 58 ALR 417. In order to fully appreciate the impact
of Crabbe, we first consider the earlier case of R v Pemble (1971) 124 CLR 107.
R v Pemble
(1971) 124 CLR 107

[ The appellant was convicted of murder by shooting. He asserted that he did not know that the rifle which
caused death was loaded; that he intended only to frighten the deceased; that he held the rifle pointed
in the air; that he stumbled and the rifle discharged; and that he had not meant to hurt the deceased.
The prosecution adduced evidence to establish that the appellant shot the deceased with the intent to kill
her or do her grievous bodily harm. The defence was conducted on the footing that the appellant was not
guilty of murder but of manslaughter, and the jury was not invited to acquit. The judge instructed the jury
that murder in one of its forms was ‘the killing of a person by another in circumstances where the killer
has a reckless indifference as to the consequences of his act’. Having referred to the evidence the judge
said: ‘It is a matter for you to decide whether you think this accused is guilty of murder, or something less’.
The jury were directed that the accused was innocent until found guilty, and that the onus upon the Crown
was to prove his guilt beyond reasonable doubt: that if they had any doubt, the accused was entitled to
the benefit of it. Upon appeal against the conviction, Held, that the direction to the jury was inadequate, by
Barwick CJ, McTiernan and Menzies JJ, on the ground that it did not make clear that before a killing with
reckless indifference could constitute murder, the recklessness must involve foresight of or advertence to
the probability (or per Barwick CJ, Windeyer J, the possibility) of death or grievous bodily harm resulting.
Accordingly the conviction of murder should be quashed, and held further by Barwick CJ, McTiernan
and Windeyer JJ, Menzies J dissenting, that s 47(4) of the Northern Territory Supreme Court Act 1961
(Cth) authorised the court to substitute a verdict of guilty of manslaughter for that of guilty of murder and
that such a verdict should be substituted for the verdict found.]
Judgment
Barwick CJ: The grounds of his appeal are misdirection and non-direction of the jury by the learned trial
judge. The case presents unusual features, which necessitate a recital both of the basic facts and of the
course of the trial. I will first give the appellant’s account of the happenings on 25th September 1970, the
day of the shooting, drawn from his statement in court and from his statements to investigating police,
which were proved in evidence. The appellant did not give evidence on oath.
The appellant and the deceased had been cohabitating for some period before the fatal day. However,
some days before that day, the deceased had apparently decided to terminate the relationship and to
separate from him, a course which the appellant neither approved nor relished. The appellant made
overtures to her with indifferent or, perhaps I should say fluctuating, success. But a definite break had
come in their relationship a day or so before 25th September. On that day the appellant spoke to the
deceased’s father at the Darwin Hotel. He told the appellant that the deceased had not come home the
previous night. The father said to the appellant: ‘That daughter of mine is no good. She wants shooting’.
To which he replied: ‘Leave her alone Dad, she’s only young’. The father responded: ‘She’ll come home
with her arm or leg broken the way she is carrying on’. After leaving the deceased’s father, the appellant
had a couple of games of pool and then tried to find the whereabouts of a man from whom he hoped to
gain employment. A little after seven in the evening he arrived at the hotel called ‘The Dolphin’ where he
saw the deceased, her sister, and her father. He offered them a lift out to the Fannie Bay Hotel in his car,
but was told by the deceased that they were going to Berrimah. The appellant went to Fannie Bay where
he arrived about 8 o’clock in the evening. Just after he got there the father’s remark about shooting played
on his mind; ‘that he (the father) had said that he felt like shooting her himself’. He was possessed of
a single shot .22 gauge rifle which he had with him in his car, which was at this time about 600 yards
from the Fannie Bay Hotel. He then cut down both the length of the barrel and the butt of the rifle with
a hacksaw for the purpose of enabling him ‘to creep up behind the deceased’. Having left the car and
the rifle in it, he went closer to the hotel where he saw the deceased and a man. The deceased was
sitting on the mudguard of a car parked outside the hotel. He hadn’t expected to see the deceased at the
Fannie Bay Hotel because he thought she had gone to Berrimah as she had said she was intending to do.
When he saw the deceased on the car outside the hotel he decided to frighten her by use of the rifle in
some fashion. He returned to the car, obtained the rifle, cocked it and approached the deceased from
behind carrying the rifle in his hand about level with his shoulder and pointing upwards with his finger
on the trigger. He didn’t know the rifle was loaded; a bullet could have been left in it when he was last
shooting geese. When he was a couple of feet from her, he yelled out the deceased’s name to attract her
attention but then stumbled and the rifle discharged. He said he had no intention of hurting the deceased,
that he loved her and that whilst now he realised it was a stupid thing to do, he only meant to frighten her.
In fact the bullet from the rifle entered the back of the deceased’s head and lodged in the midline
of the frontal part of the brain roughly equidistant between the two ears. She was quickly removed to
hospital, but she was dead in the sense that her heart was not beating nor was she breathing when the
96 PART 2: Homicide
body arrived at the hospital. A massage of the heart revived her for a short time but she died by the end
of the evening or in the first minutes of the next morning.
I will not trouble to fully detail the evidence given by the eye witnesses because there is no question
that there was adequate evidence upon which the jury could find that the appellant shot the deceased
with the intent to kill her or at the very least to do her grievous bodily harm. However these witnesses saw
the appellant holding the rifle with an extended arm pointing it at and very close to the back of the head
of the deceased. They saw no stumble and no cry from the appellant.
It is important that I now give an account of the course of the trial. In his opening address to the jury,
the counsel for the appellant said this:
On the question of murder, Gentlemen, I think for your present purposes you may regard it as a killing
of one person by another, accompanied either by an intention to kill or by an intention to commit
grievous bodily harm or by reckless indifference as to the consequences of the act complained of.
In the summing up, the trial judge had these things to say:
I agree with Mr Barker’s definition of murder as he announced it and using his own words ‘the killing
of one person by another with the intention on the part of the killer to kill’ or alternatively it is the
killing of one person by another with the intention to commit grievous bodily harm on that person and
alternatively again it is the killing of one person by another in circumstances where the killer has a
reckless indifference as to the consequence of his act.
Later still his Honour said:
[I]f you can fairly decide that the accused really did not intend to do anything more than frighten the
girl, you should acquit him of murder. If on the other hand, you are satisfied, beyond all reasonable
doubt, that he intended either to kill her or do grievous bodily harm or that he was careless of her
safety and security that he did not care, one way or the other, then you should convict him of murder.
When asked by counsel for the appellant to give direction as to manslaughter the trial judge said to
the jury:
Yes, well, undoubtedly Mr Barker (counsel for the appellant at his trial) is quite correct. That in any
case you have the absolute right to bring in a verdict of manslaughter, if you are not satisfied beyond
reasonable doubt of the charge of murder. Manslaughter is, as counsel has said, something less
than murder. It has not been successfully defined at all by any of the judicial authorities that have
attempted to do it but it is—it really lies in the field of lack of intent to kill. It must also lie in the lack
of intent to do grievous bodily harm. It must also lie in the third ground that I mentioned to you so
often, that is, he had no care whatever of her safety and security and just acted arbitrarily and with no
thought at all for her protection and safety. And if you can conclude that that was the correct position
then you should bring in a verdict of manslaughter.
To this direction no exception was taken and there was no request for any other or future direction.
After a little more than an hour and a half of deliberation the jury returned to the court to ask a
question. The question asked of his Honour was: ‘Would you give us a definition of the words “couldn’t
care less”’. There followed a discussion which I reproduce verbatim:
THE FOREMAN: Well you gave us the three—wilful intent to commit murder and intent to do bodily
harm, or if he was in a position he couldn’t care less whether he did it or not.
HIS HONOUR: Well, I did not say that. There has to be a reckless indifference to the consequence of
his act, are the words I used. Those are pretty well the words—
THE FOREMAN: Well, that is the definition that we put on it.
HIS HONOUR: Oh, yes. Well the words I read out are the words you used—
MR BARKER: Yes, your Honour.
HIS HONOUR: And they are the conventional—
MR BARKER: It is not without difficulty in this case. I wonder if your Honour would perhaps direct the
jury’s attention to this, that the indifference to consequence must exist at the moment of the rifle
being fired and not at the time that the accused was walking with the rifle. The question is whether
if, at the time the rifle was discharged, he was indifferent as to whether—as to what would happen
as a result and that the recklessness is not relevant to the time that he was walking along with the
rifle, but only at the crucial time that the trigger was pressed.
HIS HONOUR: Well, what do you say about that, Mr Raby? Do you agree with that?
MR RABY: I think it goes a little further back in most cases—it goes back to what the general
attitude of the accused was throughout that particular part of the proceedings. If he is reckless of the
consequence as he is walking along to the car, for instance.
MR BARKER: I would submit strongly to this, your Honour, it would be only relevant to this aspect—is
the act of pressing the trigger for whatever reason it was pressed.
HIS HONOUR: Yes.
MR BARKER: Whether at the time he was reckless to the consequences of the rifle discharged. That
would seem to me the correct submission.
HIS HONOUR: Yes. Well, I think that substantially is the question. Whether he had a complete
indifference to the consequences of the act when he pressed the trigger. Now is that—?
THE FOREMAN: Yes, that answers our question, thanks very much.
About half an hour later the jury returned a verdict of guilty, not stating of what. But it was rightly taken
by the clerk of arraigns to be a verdict of guilty of murder, that being the only count of the indictment.
The submissions of the appellant are that the direction as to recklessness was basically inadequate
in that it neither called attention to the need to consider whether or not the appellant had foreseen the
likely consequences of his contemplated acts nor gave any assistance to the jury in relation to the facts
which might be relevant to the formation of a conclusion as to the appellant’s state of mind in relation to
those consequences.
But, there remains for consideration, in my opinion, important aspects of the summing up. First, there
is the question whether the direction given as to what some have called murder by recklessness was
inadequate. …
I now turn to the first of the matters which seem to me to remain for consideration in this case. Of
course, it is not appropriate in every case to give a direction as to reckless indifference to the consequence
of a contemplated act as an aspect of the crime of murder. Indeed, occasions for doing so, where there
is material from which an intent to kill can be inferred, must be unusual. A trial judge, in my opinion,
98 PART 2: Homicide
must be careful in a case of that kind to examine evidence closely to satisfy himself that that evidence
could support a conclusion that the accused acted with reckless indifference. A direction as to that
aspect of murder when there is not material to warrant a conclusion that the accused acted with reckless
indifference is likely to cause confusion in the minds of the jurymen, and ought not to be given. However,
in my opinion, in this case the jury, if they were unwilling to infer an intent to kill or to do grievous bodily
harm, were entitled to accept the view that the appellant foresaw the possible consequences of the
discharge of the rifle if it discharged or was discharged whilst he was in proximity to the deceased; that
he must have known that the rifle was loaded; and that he approached the deceased with the cocked
sawn-off rifle in that frame of mind and that he pulled the trigger to discharge the weapon: or they could
accept the appellant’s statement that he stumbled with the rifle held aloft, at a time when he merely
wished to frighten her. On either view they were entitled, in my opinion, to conclude that the approach to
the deceased in such a fashion was an act done with reckless indifference to human life. I would reject
therefore the submission that the case was not one in which reference to murder by recklessness could
properly be made.
I should mention that it was suggested at one stage of the appellant’s argument of this case that
murder can only be committed if there is present an intent to kill or to do grievous bodily harm. It was
said that recklessness, however defined, would not warrant a conviction for murder where death resulted
from it. But clearly that submission was misconceived. Malice as a necessary ingredient of the crime of
murder is of course a state of mind of the accused, an actual state of mind. But a mind intending to kill
or a mind reckless, in the sense I will mention, as to whether death or serious bodily harm results from a
contemplated act or course of conduct is relevantly a malicious mind. All these to which I refer bear out
the proposition that the requisite malice may consist of intention or recklessness in the proper sense of
that term.
But it is of paramount significance to observe that recklessness to be relevant involves foresight of
or, as it is sometimes said, advertence to, the consequences of the contemplated act and a willingness to
run the risk of likelihood, or even perhaps the possibility, of those consequences maturing into actuality.
This aspect of recklessness entails an indifference to a result of which at least the likelihood is foreseen.
An awareness of the consequences of the contemplated act is thus essential. This aspect of the branch
of the law relating to murder is of importance in reviewing the summing up in the present case. It is the
state of the accused’s mind in this respect about which the jury must be satisfied to the requisite extent.
In my opinion, the summing up was in this connexion inadequate. Bearing in mind the relative ease
with which the lay mind can pass from inadvertent negligence to recklessness, as advertent negligence,
and can substitute objective tests of a reasonable man for the subjective requirement of recklessness, if the
trial judge decides that the case warrants a direction on the matter at all, a summing up which leaves to a
jury the possibility of a verdict of murder by recklessness must necessarily be both full and precise. Besides
formally expounding the elements of the law in this respect with simplicity and precision, the summing up
must assist the jury in connexion with the facts relevant to their consideration of that aspect of murder.
The state of mind of the accused is rarely so exhibited as to enable it to be directly observed. Its
reckless quality, if that quality relevantly exists, must almost invariably be a matter of inference. Although
what the jury think a reasonable man might have foreseen is a legitimate step in reasoning towards
a conclusion as to the accused’s actual state of mind, a firm emphasis on the latter as the fact to be
found by the jury is necessary to ensure that they do not make the mistake of treating what they think a
reasonable man’s reaction would be in the circumstances as decisive of the accused’s state of mind. They
need also to be reminded that the accused’s circumstances are relevant to the decision as to his state of
mind; for example his age and background, educational and social, his current emotional state, and his
state of sobriety. They should be expressly told that they need to be satisfied beyond any reasonable doubt
that he must have foreseen, and in that sense did foresee, the consequences of the act he contemplated.
It clearly is not enough to use the word ‘reckless’ or the words ‘reckless indifference’ to a jury in order
to alert them to the state of mind which they must find to exist. No doubt to one familiar with a precise
use of language, a reckless indifference to consequence does involve an indifference to what is a known
or a foreseen consequence. But, in my opinion, it is far from adequate in the instruction of laymen as
to the elements of the crime of murder merely to use a formula, such as has been done in this case,
containing the expression ‘a reckless indifference’ to consequence. It may be suspected that the jury in
this case may have obtained from the several endeavours made in the summing up to indicate of what
relevant recklessness might consist the notion of indifference to a foreseen consequence. But I am not
prepared to act upon any such impression which might be gathered from their intelligent questioning. In
my opinion, the summing up was basically defective in not informing the jury, and with emphasis of which
I have spoken, that actual foresight by the accused of the consequences of his acts was basic to the
recklessness of mind of which they were told. I should add that it is in my opinion sufficient that the death
or grievous bodily injury of the person towards or in connexion with whom the accused contemplated an
act or omission should be foreseen by him as possible. I see no logical reason why in such a case as the
present it should be probable, though, of course, it must not be merely a remote possibility. It must be
something which it is seen could happen so that if nevertheless the contemplated act is done it can be
said that it was done with indifference to the fact that death or grievous bodily harm might ensue.
Further, summing up was, in my opinion, defective in that it gave the jury no assistance in their
consideration of the facts relevant to a conclusion as to the accused’s state of mind. That the conclusion
could only be founded on inference, including a consideration of what a reasonable man might or ought
to have foreseen, emphasised the need for the jury to be given guidance in relation to the facts. On the
ground alone therefore that the jury were not adequately directed as to murder by reckless indifference,
in my opinion the conviction for murder must be set aside.
In my opinion, therefore, the conviction for murder and the sentence passed thereon should be set
aside, a verdict of guilty of manslaughter should be entered and the case remitted to the Supreme Court
of the Northern Territory to pass such sentence upon the verdict of guilty of manslaughter as may be
warranted in the law for that offence.
McTiernan J: The jury ought to have been told that the reckless indifference was not enough, unless the
accused foresaw that death or grievous bodily harm would be a probable or likely consequence of the
behaviour of the accused with the gun. The omission of such a direction was a serious defect in the trial.
In my opinion, because of it, the verdict ought to be set aside.
Menzies J: In this case the learned judge conducting the trial of the appellant upon a charge of murder—
to which he had pleaded not guilty—directed the jury with brevity upon the essentials of the case as they
seemed to him to have emerged from the trial, and the question now, as it seems to me, is whether that
direction was to any extent a misdirection. If it was, the appeal must be allowed and a new trial ordered,
for there is no proviso allowing a conviction to stand if an appeal court should think that no miscarriage
of justice has occurred.
To this charge a number of objections have been urged before this Court but to my mind the only
objections of weight are that the direction as to killing by recklessness did not accurately state the
elements of the crime of murder when the mental element was not to kill or cause grievous bodily harm.
100 PART 2: Homicide
I should add that I do not think that his Honour succeeded in the very difficult task of distinguishing
clearly between what may be described as a reckless killing constituting murder and a negligent killing
constituting manslaughter. The difference, as I apprehend it, is that to do an unjustifiable act causing
death, knowing that it is likely to cause death or grievous bodily harm, is murder, whereas to do a careless
act causing death, without any conscious acceptance of the risk which it’s doing involves, is manslaughter,
if the negligence is of so high a degree as to show a disregard for life, deserving punishment. An instance
of the former might be to kill a person in a street by intentionally dropping a large block of stone from a
high building into the crowded street below: an instance of the latter might be to kill a person in a street
by carelessly letting fall a large block of stone from a high building into a crowded street below. It would
not be a misuse of language to use the word ‘reckless’ both in relation to dropping and to letting fall the
stone, but the word without more in relation to the first would not, itself, bring out the essential difference
between the first and the second. The use of the words ‘recklessness’ or ‘recklessness indifference’ of
itself would not bring home to the jury that it is only a recklessness that involves actual foresight of the
probability of causing death or grievous bodily harm and indifference to that risk which does constitute
the mental element that must be found to support a conviction for murder. The difference between murder
and manslaughter is not found in the degree of carelessness exhibited; the critical difference relates to
the state of mind with which the fatal act is done.
In my opinion the judge here did not make clear that for murder there must be established the
coexistence with the act causing death of a state of mind described in Archbold’s, Criminal Pleading,
Evidence and Practice (37th edn, 1969), para 2483 as follows:
Knowledge that the act which causes death will probably cause the death of, or grievous bodily harm
to, some person, whether such person is the person actually killed or not, although some knowledge
is accompanied by indifference whether death or grievous bodily harm is caused or not, or by a wish
that it may not be caused.
It is for these reasons that I consider that the appeal should be allowed, conviction quashed and a
new trial ordered.
Windeyer J: I agree in the conclusion of the Chief Justice and in the order he purposes.
Owen J: [The solicitor for the appellant] asked the jury to acquit his client on the charge of murder and
to return a verdict of guilty on the charge of manslaughter. The case was thus fought on the basis that
the only question was whether the appellant was guilty of murder or not guilty of murder but guilty of
manslaughter and it was in this way that the learned trial judge charged the jury. A number of criticisms,
some of them I thought well founded, were directed to various aspects of the charge but I think it
necessary to deal with one matter only which, apart from any of the other submissions made to us, seems
to me to make it proper to order a new trial. The unsworn statement made by the appellant to the jury
was undoubtedly open to criticism on many grounds but its weight was for the jury. From it I think it would
have been open to them to infer that the case was one of accidental and not of lawful homicide or at least
to have had a reasonable doubt about the matter, and notwithstanding the course taken at the trial by
the solicitor for the appellant I am of opinion that that issue should have been left to the jury. The attitude
adopted by all concerned at the trial that a verdict of acquittal on both charges was not open seems to
have been based upon the assumption that on the appellant’s own statement he was approaching the girl,
armed with a rifle, with the intention of frightening her; that in so acting he was committing an assault;
and that if the rifle was fired accidentally as a result of the appellant stumbling in the course of that
assault, he was at least guilty of manslaughter. But on the appellant’s statement and from the fact that the
bullet entered the girl’s head behind her right ear, it may well have been that when he was approaching
her she was turned away from him and was unaware of his approach. If so, the appellant would not, in
my opinion, have been engaged in an assault upon the girl when the rifle discharged. As is pointed out in
Russell on Crime (12th edn, 1964), vol 1, at p 652:
An assault, as distinct from battery, is a threat by one man to inflict unlawful force (whether light or
heavy) upon another; it constitutes a crime at common law when the threatener, by some physical
act, has intentionally caused the other to believe that such force is about to be inflicted upon him. 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. The mens rea consists in the realisation by the offender
that his demeanour will produce that expectation.
And at p 653:
As the gist of the crime lies in the effect which the threat creates upon the mind of the victim it is
plain that on principle it can make no difference if the threatener in fact is quite unable to carry out
the threat, provided the victim does not know this, but believes the threat is about to be implemented.
In these circumstances, and despite the course taken by the solicitor for the appellant, I am of opinion that
the learned trial judge fell into error in telling the jury, as in effect he did, that the case was one either of
murder or of manslaughter.
Questions
3.6 What offence was D charged with, and of what offence was he ultimately convicted?
3.7 What evidence was there in support of the conviction?
3.8 Did D claim that the gun was loaded?
3.9 Does the doctrine of recklessness relate to the time that the fatal bullet was
discharged, or to all the surrounding circumstances?
3.10 In order to be convicted of murder, must D foresee the ‘probability’ or ‘possibility’ that
death or grievous bodily harm will ensue?
The High Court restated the reckless murder test and held that before a killing with
reckless indifference could constitute murder, the recklessness must involve: (a) foresight of, or
advertence to, the probability or possibility of death or grievous bodily harm resulting; and (b)
a willingness to run the risk of those consequences reaching fruition. It is essential that D must
advert to the possible or probable consequences (death or grievous bodily harm) of his or her
volitional act or omission. Note the effect of Crabbe’s case (considered below) on the question
of probability or possibility.
There were several factors that were contrary to a finding of murder: the defendant alleged
that he was unaware that the rifle was loaded and that he only intended to frighten the victim;
he claimed that he had merely pointed the rifle into the air; and his claim that the gun had
accidentally discharged when he inadvertently stumbled. Having regard to these circumstances,
could a jury have reasonably found that the defendant had acted with reckless indifference?
The High Court directed that the conviction of murder be set aside and a conviction of
manslaughter be substituted in lieu thereof, on the basis that the trial judge had failed to give the
jury an adequate direction on the meaning of recklessness.
3.5.4 Probability or likelihood

What exactly is the degree of risk of death or grievous bodily harm that the accused must
contemplate when s/he decides to nonetheless proceed in the face of that risk? There has been
much discussion as to whether the test requires foresight of probability or foresight of mere
possibility.
R v Crabbe
(1985) 156 CLR 464; [1985] 58 ALR 417
Judgment
Gibbs CJ, Wilson, Brennan, Deane, and Dawson JJ: This is an application by the Crown for special
leave to appeal from a decision of the Full Court of the Federal Court which, by majority, quashed the
conviction of the respondent on five counts of murder and ordered a new trial (Crabbe v R (1984)
56 ALR 733).
The alleged offences occurred in the early hours of the morning of 18 August 1983, in a motel near
Ayers Rock. The respondent had driven a road train, consisting of a prime mover and three trailers, to
Ayers Rock on 17 August. He there uncoupled one trailer and went about his work of delivering, loading
and unloading. Later during the evening, after he had consumed a substantial amount of alcohol, he
visited the Inland Motel and drank in a crowded bar. His behaviour in the bar caused nuisance and
annoyance and he was physically ejected from the bar. In the early hours of the morning following
this incident he returned to the motel at the controls of his prime mover, to which one trailer was now
attached. He drove the vehicle through the wall into the bar; as a result five persons died and many were
injured. The respondent did nothing to assist the injured but left the motel. He was apprehended the
following day.
The respondent was tried by the learned Chief Justice of the Northern Territory and a jury. After a
summing up to which no objection was or could have been taken, the jury retired but shortly afterwards
was recalled by the learned Chief Justice who, at the request of the Crown Prosecutor, gave a short
redirection which included the following passage:
It is this, I said to you, you will recall, that you had to be satisfied beyond reasonable doubt, on the
question of recklessness, that he knew that there would be people in the bar.
It is also a matter of law, of which I have been reminded, that if he thought that there might have
been, but chose to blind himself, chose not to avail himself of any opportunity of finding out. In other
words, if he swept round the corner and his state of mind was that there might have been people in
there, but he just went straight ahead blinding himself, not giving himself the opportunity of finding
out if there were going to be any people in there. So that he cannot—if he deliberately stops himself
being able to see whether or not there were people in there, as a deliberate choice. If he says, ‘Well,
I’m going to go ahead anyway. I think there might be people in there, but I’m not going to have a look,
so no one can say I know, because I didn’t look.’
Is that clear to you, that if he blinds himself to the possibility, so to speak, well, then he cannot
hide behind that. He cannot say that hiding behind his lack of actual knowledge.
The jury again retired, but about two and a half hours later returned seeking a ‘full definition’ of
murder and manslaughter. The learned Chief Justice then gave them a second redirection. Amongst other
things, he said:
A man commits murder if he kills somebody, having at the same time that he did the action which
caused the death, an intention to kill, or an intention to do really serious bodily injury; or, if when he
kills someone, his state of mind is such that he knows what he’s about to do is likely to kill someone,
but nevertheless goes ahead and does the act with reckless indifference to the consequences; or,
and this is the final alternative, if, when he does an act, he foresees the possibility that when he does
an act, he foresees the possibility that what he does might cause death, or really serious bodily injury,
nevertheless takes no reasonable step to ascertain whether or not it will.
Now, I’ll apply those things that I’ve told you to that case in hand. There appears, as I said to
you earlier, to be no dispute that Crabbe killed these people, in the sense that he drove the prime
mover and semi trailer into the bar of this motel at Ayers Rock, and that thereby he caused the deaths
of these five people, so that, when you’re considering whether or not he is guilty of murder, you have
to consider the state of mind at the time that he did it. If you’re satisfied beyond reasonable doubt
that, when he drove the truck into the motel, he intended to cause death or really serious bodily
harm to whoever might be in here, then he’s guilty of murder. If you’re satisfied beyond reasonable
doubt that his state of mind was that he knew that it was likely that if he drove the truck into the
motel bar, that he would cause death or really serious bodily injury, then he is guilty of murder. He’s
further guilty of murder if you’re satisfied beyond reasonable doubt that he foresaw the possibility
that there might have been some people in the bar, but he didn’t take any step that might have been
available to him to find out whether there were any people there or not, before he went ahead and
drove the vehicle in.
The majority of the Full Court held that the jury was misdirected by these passages, Assuming
that the doctrine of ‘wilful blindness’, to which the learned Chief Justice alluded in his first redirection,
is applicable to the case as the present, their Honours considered that it was erroneous to refer to
foresight of a possibility, rather than of a probability, that people might be in the bar and that death or
grievous bodily harm might result from the actions of the respondent. Further, the second redirection
fails to mention any element of deliberation—it suggests that a person should be treated as having
knowledge of facts if he neglects to take reasonable steps (or perhaps any steps) to find out the truth,
even though he does not deliberately refrain from taking such steps because he prefers to remain in
ignorance.
The Criminal Code Act 1983 (NT) had not been passed at the times material to this case and the rules
of the common law governed the question what mental element is necessary to constitute the crime of
murder, or, to use the traditional terminology, what is meant by malice aforethought. That question was
answered in Stephen’s Digest of Criminal Law (1st edn, 1877), in art 223 which, so far as is relevant, is
as follows:
… Murder is unlawful homicide with malice aforethought, Malice aforethought means …

(a) An intention to cause the death of, or grievous bodily harm to, any person, whether such
person is the person actually killed or not; (b) Knowledge that the act which causes death
will probably cause the death of, or grievous bodily harm to, some person, whether such person
is the person is the person actually killed or not, although such knowledge is accompanied by
indifference whether death or grievous bodily harm is caused or not, or by wish that it may not be
caused …
There has been in this court some difference of opinion as to whether the knowledge which an
accused must possess in order to render him guilty of murder when he lacks an actual intent to kill or to
do grievous bodily harm must be a knowledge of the probability that his acts will cause death or grievous
bodily harm (as Stephen’s Digest of Criminal Law holds) or whether knowledge of the possibility is enough.
In Pemble v R (1971) 124 CLR 107; [1971] ALR 762, Barwick CJ thought it sufficient that death or
grievous bodily harm should be foreseen as possible (see 124 CLR at 118–21), but McTiernan and
Menzies JJ were of the opinion that it was necessary that the accused should have foreseen or known (the
words are used without any apparent distinction) that death or grievous bodily harm would be probable or
likely (both expressions are used) consequences of the act: see at 127, 135. The matter was considered
again in La Fontaine v R (1976)136 CLR 62; 11 ALR 507. In that case Stephen J agreed (at (CLR) 85–6)
with the opinion expressed by Barwick CJ in Pemble v R that it was enough that the accused foresaw
the possible consequences of his acts, but Barwick CJ himself appeared now to think that it is an open
question whether it is sufficient if the accused appreciated a possibility rather than a probability of serious
harm (see CLR at 69). Gibbs and Jacobs JJ held that in a case of this kind an accused would not be
guilty of murder unless he foresaw that death or grievous bodily harm was a probable consequence of his
behaviour (see at 75–7 and 94–100); although Mason J left the question open he noted (at 91) that the
suggestion made by Barwick CJ in Pemble v R was not a view shared by McTiernan and Menzies JJ in
that case and that it was at odds with the speeches of the members of the House of Lords in R v Hyams
[1975] AC 55. Clearly the balance of opinion in this court has been in favour of the view that the mental
state necessary to constitute murder in a case of this kind is knowledge by the accused that his acts will
probably cause death or grievous bodily harm. The view that knowledge of a possibility is not enough has
been accepted by the Full Court of the Supreme Court of Victoria (R v Jakac [1961] VR 367; R v Sergi
[1974] VR 1; Nydan v R [1977] VR 430; R v Windsor [1982] VR 89), and by the Full Court of the Supreme
Court of South Australia (R v Hallett [1969] SASR 141).
The conclusion that a person is guilty of murder if he commits a fatal act knowing that it will probably
cause death or grievous bodily harm, but (absent an intention to kill or do grievous bodily harm) is not
guilty of murder if he knew only that his act might possibly cause death or grievous bodily harm, is not only
supported by a preponderance of authority but is sound in principle. The conduct of a person who does an
act, knowing that death or grievous bodily harm is a probable consequence, can naturally be regarded for
the purposes of criminal law as just as blameworthy as the conduct of one who does an act intended to
kill or to do grievous bodily harm. If an accused knows when he does an act that death or grievous bodily
harm is a probable consequence, he does the act expecting that death or grievous bodily harm will be
the likely result, for the word ‘probable’ means likely to happen. That state of mind is comparable with an
intention to kill or to do grievous bodily harm. There is a difference between the case in which a person
acts knowing that death or serious injury is only a possible consequence and where he knows that it is
a likely result. The former is not a case of murder even if death ensues, unless death or grievous bodily
harm is intended.
It should now be regarded as settled law in Australia, if no statutory provision affects the position, that
a person who, without lawful justification or excuse, does an act knowing that death or grievous bodily
harm will result, is guilty of murder if death in fact results. It is not enough that he does the act knowing
that it is possible but not likely that death or grievous harm might result.
A person who does an act causing death knowing that it is probable that the act will cause death
or grievous bodily harm is, as Stephen’s Digest states, guilty of murder, although such knowledge is
accompanied by indifference whether death or grievous bodily harm is caused or not, or even by a
wish that death or grievous bodily harm might not be caused. That does not mean that reckless
indifference is an element of the mental state necessary to constitute the crime of murder. It is not the
offender’s indifference to the consequences of his act but his knowledge that those consequences will
probably occur that is the relevant element. Of course, not every fatal act done with the knowledge that
death or grievous bodily harm will probably result is murder. The act may be lawful, that is, justified
or excused by law. A surgeon who competently performs a hazardous but necessary operation is not
criminally liable if the patient dies, even if the surgeon foresaw that his death was probable. Academic
writers have pointed out that in deciding whether an act is justifiable its social purpose or social utility is
important: see, for example, Howard, Criminal Law (4th edn, 1982), pp 54–5 and 357–9. That question
need not be discussed in the present case, where there was no possible justification or excuse for the
actions of the applicant. It should, however, be made clear that lack of social purpose is not an element
of the mental state with which we are here concerned, though it may bear on the question whether the
act is justifiable.
It was submitted on behalf of the Crown that a distinction can be drawn between foresight of the
consequences of an act—ie what harm it would do if persons were in a position to be affected by it when it
occurred—and a foresight of circumstances—ie of the fact that persons were in a position to be affected.
There is no justification in logic or principle for drawing a distinction of this kind. The test simply is whether
the accused person knew that his actions would probably cause death or grievous bodily harm.
Finally, there is the question whether the jury should have been directed on the question of ‘wilful
blindness’. When a person deliberately refrains from making inquiries because he prefers not to have the
result, when he wilfully shuts his eyes for fear that he may learn the truth, he may for some purposes be
treated as having the knowledge which he deliberately abstained from acquiring. According to Professor
Glanville Williams, Criminal Law: The General Part (2nd edn, 1961), p 159: ‘A court can properly find wilful
blindness only where it can almost be said that the defendant actually knew. He suspected the fact; he
realised its probability; but he refrained from obtaining the final confirmation because he wanted in the
event to be able to deny the knowledge. This, and this alone, is wilful blindness. It requires in effect a
finding that the defendant intended to cheat the administration of justice’.
Again, in the Textbook of Criminal Law (1978), p 79, Professor Glanville Williams said, in a passage
cited by Lord Edmund-Davies in R v Caldwell [1982] AC 341 at 358: ‘A person cannot, in any intelligible
meaning of the words, close his mind to a risk unless he first realises that there is a risk; and if he realises
that there is a risk, that is the end of the matter’.
These statements support the view that it cannot be said that an accused was wilfully blind to the
consequences of his acts unless he knew that those consequences were probable; if that is so, the
doctrine has no part to play in cases of murder.
Professor Howard, on the other hand, considers that an accused may be convicted of murder even
though he foresaw only the bare possibility that someone might be killed if, having foreseen that possibility,
he deliberately took no steps to ascertain the magnitude of risk: op cit, p 54. However, it seems to us that
to state the proposition in that manner is likely to mislead. The question is whether the accused knew or
foresaw that his actions would probably cause death or grievous bodily harm and actual knowledge or
foresight is necessary; imputed knowledge is not enough. Deliberate abstention from inquiry might, of
course, be evidence of the actual knowledge of the accused.
In the present case, there was no evidence that the respondent deliberately refrained from finding
out whether there was anyone in the bar and it was necessary to advert to the matter. Moreover, it was
misleading to speak in terms which suggest that the respondent may have foreseen the possibility that
there may have been some people in the bar. This passage, which is contained in the trial judge’s second
redirection, was likely to confuse in the jury’s mind the mental state which the respondent was required to
have had before he could be found guilty of murder. It amounts to material misdirection.
For these reasons the majority of the Full Court of the Federal Court was correct in setting aside the
conviction and ordering a new trial. Having regard to the importance of the matter, special leave to appeal
will be granted but the appeal must be dismissed.
[Appeal dismissed.]
Questions
3.11 Did D know that there were people in the bar?

3.12 How did the trial judge direct the jury on the meaning of reckless murder? Did the
High Court agree with the direction?
3.13 What defence did D raise?
3.14 What is meant by the term ‘wilful blindness’?
3.15 Is the notion of ‘wilful blindness’ consistent with the notion of recklessness?
3.16 What is the difference between ‘probability’ and ‘possibility’ type recklessness?
Which is harder for the Crown to prove?
3.17 According to the majority in Crabbe, is it necessary to prove that the accused acted
with ‘indifference’ in order to prove recklessness? Why, or why not?
In Crabbe, the High Court gave an example in which a person could act with knowledge
that death or grievous bodily harm would probably result without incurring liability for murder.
A surgeon who knowingly performs a dangerous medical procedure that results in the patient’s
death does not ordinarily incur liability for murder or any other form of unlawful homicide for
that matter. The reason is that recklessness (an aggravated form of negligence—see Chapter 1),
like all other forms of negligence, consists of conduct that falls below the standard required by
law to protect our neighbours from unreasonable risks of harm. Whether a risk is unreasonable
depends on the social utility of the conduct, the degree of risk involved in that conduct, the
likelihood that the risk will eventuate and the degree of burden required to take appropriate
measures to reduce or eliminate the risk: DB Dobbs, RE Keeton, WP Keeton, & DG Owen,
Prosser and Keeton on Torts (5th edn, 1984) 170–3. If a surgeon operates on a patient knowing
that there is a 50 per cent chance that the patient will not survive the operation, but that the
patient has no chance of surviving for more than a few days without the operation, is the risk
an unreasonable one? In circumstances such as these, the social utility of the surgeon’s conduct,
when considered in conjunction with the other aforementioned factors, leads inexorably to the
conclusion that it is not.
3.5.5 Measuring probability and likelihood

In Crabbe, the High Court explained that ‘probable’ means ‘likely to occur’. However, the court
did not elaborate on this expression which normally denotes a better than 50 per cent chance of
occurrence. The High Court clarified this issue to some extent in Boughey v The Queen (1986)
161 CLR 10. In Boughey, the court construed the words ‘likely to cause death’ in the context of
a statutory crime of murder under the Tasmanian Criminal Code.
Boughey v The Queen

(1986) 161 CLR 10
Judgment
Mason, Wilson, and Deane JJ: Crabbe was an appeal from the Full Court of the Federal Court in a case
where the jury had, at the trial, returned a verdict of guilty on five counts of murder against the accused
who had driven a prime mover and trailer into the bar of a motel near Ayers Rock. Since the Criminal Code
Act 1983 (NT) had not been passed at the time material to the case the decision was concerned with the
content of the common law rules defining the mental element of common law murder in a case where the
accused lacks an actual intent to kill or to do grievous bodily harm. The trial judge had directed the jury
that it would suffice if the accused had foreseen ‘the possibility that there might be some people in the
bar’ but had not taken available steps to ascertain the actual facts. The court held that, in such a case,
knowledge by the accused of a mere possibility that his acts might cause death or grievous bodily harm
does not suffice; knowledge of the probability or likelihood of such a result is necessary. In the course of
the joint judgment (at 469–70), the words ‘probable’ and ‘likely’ (and ‘probability’ and ‘likelihood’) were,
on a number of occasions, used as synonyms. Both words were consistently used in contrast to ‘possible’
(and ‘possibility’).
It is unnecessary for the purposes of the present application to consider whether the knowledge
of ‘probable’ or ‘likely’ consequences which suffices as an element of common law murder should
ever be explained in directions to a jury, as requiring knowledge of some precise degree of probability
or likelihood such as ‘more probable or likely than not’ or a minimum percentage figure or maximum
gambling odds. It suffices to say that it is plain enough that, in many and perhaps most cases, any
such explanation would be undesirable. In the ordinary case where an accused well knows that it
is probable or likely that his acts will cause death or grievous bodily harm, he will not have had the
occasion to consider, let alone attempt to calculate, the degree of mathematical probability that death
or grievous bodily harm will in fact result. In such a case, it would be liable to mislead or to border on
the unreal to direct the jury in terms which required them to convert the knowledge of the accused into
some such degree of mathematical probability. Certainly, there is nothing in the judgment in Crabbe
(or, we venture to think, in the statements in previous judgments in this court which we accepted and
applied in that case) which was intended to suggest a requirement that a person accused of murder
should have stayed to consider or attempt any such mathematical calculation or that a jury should be
required to translate or transform knowledge which an accused actually had into terms of mathematical
probability.
It is true that the meaning of the words ‘probable’ and ‘likely’ is liable to vary according to the
context in which they are used: see Tillmans Butcheries Pty Ltd v Australian Meat Industry Employees Union
(1979) 42 FLR 331 at 346–7; 27 ALR at 380–2; Australian Telecommunications v Krieg (1976)
14 SASR 303 at 311; Koufos v Czarnikow Ltd [1969] 1 AC 350 at 410–11. In the context of the content
of the element necessary to constitute common law murder, the gravity of the charge requires that the
content of the requirement that an accused knew of the probability or likelihood that his acts would
cause death be not discounted. Even in that context, however, it will ordinarily suffice to convey what
is involved in the requirement if the direction to the jury is framed in the words of the joint judgment in
Crabbe, namely, that the accused knew that death or grievous bodily harm was the probable or
likely consequence of his act and if reference is made to the distinction which was there stressed,
namely, the distinction between what is probable or likely on the one hand and what is possible on
the other …
The written memorandum which the learned trial judge furnished to the jury in the present case
strictly followed the terms of s 157(1)(b) and s 157(1)(c) of the Code in its use of the words ‘likely to
cause…death in the circumstances’. The applicant’s objection is not, however, to the use of the words or
to the absence of further explanation of them in the memorandum. It is to a passage in the record of his
Honour’s oral directions to the jury which reads as follows:
The expression ‘likely to cause her death’ is another of these somewhat generalised
expressions in the English language which most of us understand perfectly well, but would find
it difficult to define exactly. However, if something is likely to happen, there is a good chance that
it will happen. It is something that may well happen. You might say about it ‘It may not happen,
but there is a good chance that it will’. It’s likely to happen. Well, if he intended to cause her
bodily harm within the meaning of that definition, was it bodily harm which he knew was likely
to cause death in the circumstances? That, of course, involves his knowledge about what carotid
artery pressure involved, what the possibilities of it were, what the nature of the act and its
consequences were …
[I]t appears to us that … whatever may be the difficulties of precise definition, the expression
‘likely to cause death’ is an ordinary expression which is meant to convey the notion of a substantial
or real chance as distinct from what is a mere possibility. In our view, those comments went as far as
was desirable in the circumstances of the case. His Honour was correct in not introducing an added
requirement either that the applicant directed his mind to, or attempted to calculate, the degree of
mathematical probability that his acts would cause death in the circumstances or that the applicant knew
or ought to have known that it was ‘more likely than not’ or an ‘odds on chance’ that his actions would
cause death in the circumstances.
It follows that there is no substance in the proposed ground of appeal …
Question
3.18 Did Gibbs CJ, Mason, Wilson, and Deane JJ clarify the issue of how much lower than
50 per cent a likelihood of occurrence can be and still be regarded as ‘substantial or
real … distinct from what is a mere possibility’?
In R v Morrison [2007] SASC 168, the South Australian Court of Criminal Appeal held
that in order to be convicted of murder, the prosecution does not need to prove that the accused
was aware that his or her conduct was wrong. The court opined:
R v Morrison
[2007] SASC 168
(South Australian Court of Criminal Appeal)
Judgment
Gray, Sulan, and White JJ: The appellant was charged with the murder of Jaynee Sheridan and the
attempted murder of Gwenda Barty … When pressed, counsel for the appellant … submitted that it was
necessarily implicit … that an awareness of or appreciation of wrongness was an element of the offence
of murder.
Counsel for the appellant also drew attention to observations in Porter and Stapleton, said to
illustrate that an element of the offences [murder and wounding with intent to cause grievous bodily
harm] was an awareness of wrongness. However, those decisions were concerned with the criteria to
be established with respect to the defence of insanity. Neither authority suggests that awareness or
appreciation of wrongness is an element of either offence of which the appellant in the present case has
been convicted. Neither authority supports the proposition that for the appellant to be convicted of either
crime, the prosecution had to prove that the appellant was aware of or appreciated the wrongness of his
conduct.
In the present case, the prosecution had to prove beyond reasonable doubt that the appellant knew
that he was doing the criminal acts with which he was charged, that he knew all the facts constituting the
ingredients to make the acts criminal, and that those acts were involved in what he was doing.
The prosecution was required to prove that the act or acts of the appellant that caused the death
of Ms Sheridan were conscious and voluntary acts. Any act of the appellant that was unconscious, or
involuntary, could not amount to a crime. The crime consisted of the doing of a deliberate act or acts. In
this respect the Judge made findings that the conduct of the appellant, with respect to his victims, was
both conscious and deliberate. Again, these findings were not challenged on appeal.
The crime of murder required the prosecution to prove that the act or acts that caused the death
were undertaken with a particular guilty mind. In the present case the prosecution needed to prove that
the appellant had a relevant guilty mind—one in which the appellant intended either to kill Ms Sheridan
or to cause her grievous bodily harm.
It was not necessary that the guilty mind be directed against the person killed, or indeed, against
any particular person. In the present case such a guilty mind existed if the appellant intended to kill or do
grievous bodily harm to any other human being at the time when he did the act that caused the death of
Ms Sheridan.
‘Grievous bodily harm’ means really serious bodily harm. It is not a defence to murder where an
accused intends to inflict really serious bodily harm but does not intend to kill. If the appellant’s intention
was either to kill or to cause really serious bodily harm then he had the necessary guilty mind to constitute
this element of the crime of murder.
In summary, the prosecution had to prove two quite separate states of mind on the part of the
appellant—that his conduct was conscious and voluntary, and that he intended to kill or do grievous
bodily harm. Finally, in order to constitute the crime of murder the killing had to be done without lawful
justification or excuse. The Judge was correct to conclude that the prosecution established these matters
beyond a reasonable doubt.
In respect to the attack on Ms Barty, the Judge was satisfied beyond reasonable doubt that the
appellant intended to inflict harm on her and that he intended at least to cause her grievous bodily harm.
To adopt an expression used by the Judge, he was satisfied beyond reasonable doubt on the evidence
before him that the appellant engaged in relevantly purposive conduct.
The Judge was correct to conclude beyond reasonable doubt that the appellant stabbed Ms Barty
intending to cause Ms Barty grievous bodily harm.
The submission of counsel for the appellant that it was necessary for the prosecution to go further
and prove that the appellant was aware of or appreciated the wrongness of his conduct should be
rejected. This is not an element of the offence of murder. …
3.6 Constructive murder

3.6.1 Overview
The constructive murder rules originate from the common law felony-murder rule, which no
longer exists in Australia. Although many variations of the constructive murder rule have been
enunciated throughout the various common law and code jurisdictions, the essence of the rule is
that one who causes the death of another human being by an act of violence committed during
the course of or in furtherance of an offence involving violence, will be regarded as though
s/he had caused the death of another human being while acting with the requisite mens rea
for murder; that is, although the necessary mens rea for murder is actually lacking, it will be
implied or constructed because of the circumstances under which the killing occurred. In the
jurisdictions that have abolished the classification of offences into felonies and misdemeanours,
the term ‘felony-murder’ became obsolete and was replaced by the more apposite term,
‘constructive murder’.
New South Wales, South Australia and Victoria have statutory forms of constructive murder.
Although the exact elements of the offence differ across the jurisdictions, the essential features of
statutory constructive murder are that: (a) the accused caused the death of another person; (b)
in the course of or in furtherance of committing; and (c) a serious offence—normally involving
some element of violence: Crimes Act 1900 (NSW) sub-s 18(1); Criminal Law Consolidation
Act 1935 (SA) s 12A; and Crimes Act 1958 (Vic) s 3A. A common law offence of constructive
murder (unlawfully resisting an officer of justice in the execution of his or her duty) still exists
in Victoria and South Australia.
3.6.2 Origins and criticisms of the common law rule

The felony-murder rule originated in a legal context that is no longer applicable; that is, that any
killing in the course of an unlawful act was murder: Coke, 3 Inst 56, cf M Foster, Crown Law
(3rd edn, 1890) 258; R v Serne and Goldfinch (1887) 16 Cox CC 311. In Ross v The Queen
(1922) 30 CLR 246, the High Court enunciated a more narrow formulation of the rule as
encompassing an unintentional killing by one who is acting in the promotion or advancement of
the purpose of committing a felony. Two years earlier in DPP v Beard [1920] AC 479, the House
of Lords adopted an even more restrictive version of the rule that was limited to unintentional
killings occasioned by acts of violence committed during the course of, or in furtherance of, a
felony involving violence.
The felony-murder rule developed in times when the criminal law sought to deter
professional criminals from committing dangerous crimes that had the potential to result in the
death of another human being. In more recent times the rule has fallen into disrepute because
it violates the general precept that criminal liability requires a subjectively blameworthy state
of mind. More to the point, the rule is inimical to recent developments in the law of homicide,
particularly in the area of mens rea, where it is the defendant’s actual as opposed to imputed
state of mind that is relevant. As Brent Fisse puts it, ‘[t]he felony-murder rule is a barbarous relic
which quite unnecessarily complicates the law and its enforcement and should be abolished’: B
Fisse, Howard’s Criminal Law (5th edn, 1990) 71.
Against this argument, it should be noted that the crime of involuntary manslaughter by
unlawful and dangerous act (see Chapter 5) is basically a form of constructive manslaughter that
parallels the history and current use of the constructive murder doctrine. What this suggests
is that rather than being inconsistent with current developments in the law of homicide, the
constructive murder doctrine is actually in step with them. Of course, recognising that the
doctrine is consistent with modern law does not prevent the doctrine from being viewed as a
‘barbarous relic’.
Question
3.19 What do you consider to be the underlying rationale for the felony-murder and
constructive murder rules?
3.6.3 Causation
Constructive murder modifies the mens rea required for murder, but not the actus reus. As such,
the prosecution must still prove that the defendant’s volitional conduct was the legal cause of the
death of another human being.
3.6.4 Temporal connection between act and killing—in the

course or furtherance of an offence
In South Australia and Victoria, the expression ‘in the course or furtherance of an offence’, is
used to demarcate the temporal connection between the killing and the act. This expression
makes it clear that the relevant time period extends beyond when the crime is technically
completed.
R v Ryan & Walker

[1966] VR 553
[The appellants Ryan and Walker, who were prisoners at Pentridge, were convicted of murder and
manslaughter respectively. The prosecution adduced evidence at trial that Ryan had used a rifle and
overpowered a prison guard who he (Ryan) then forced into opening a gate that led to public streets
outside the prison. In the course of their successful escape from Pentridge, Ryan and Walker were
pursued by three prison guards, including the deceased (Hodson). There was evidence given that the
deceased was fatally shot by Ryan as he was pursuing Walker. Ryan claimed that he had not fired the fatal
shot, and the trial judge directed the jury that both defendants should be acquitted if it found that there
was reasonable doubt as to whether Ryan had fired the fatal shot. On appeal:]
Judgment
Winneke CJ, Hudson and McInerney JJ: Section 35 of the Gaols Act 1958 provides:
Every male person lawfully imprisoned for any crime misdemeanour or offence by the sentence
of any Court of competent jurisdiction, or employer at labour as a criminal on the roads or other
public works of Victoria, who escapes or attempts to escape from any gaol or from the custody of
any member of the police force, gaoler, or other officer in whose custody he may be, shall be guilty
of felony; and being lawfully convicted thereof shall be liable to imprisonment with or without hard
labour for a term of not more than five years.
The learned judge at the trial took the view that upon the proper construction of this section the
offence created by the words ‘who escapes … from any gaol’ may be established by proof of conduct on
the part of the prisoner which takes place even after he has succeeded in getting outside the confines of
the gaol in which he is incarcerated; that the offence of escaping from gaol involves as one of its essential
elements the regaining by the prisoner of his liberty: that this element is not satisfied the moment a
prisoner sets foot outside the walls of his gaol if he is followed immediately by his gaolers in pursuit of
him, who have not lost sight of him, and who are hot on his heels.
Having taken this view, the learned judge considered that it was beyond reasonable doubt that in
the circumstances disclosed by the evidence the applicants were still in the course of escaping and
committing the felony created by s 35 of the Gaols Act 1958 when Hodson was killed.
It was on the basis of this view that the learned trial judge directed the jury as to what the Crown had
to prove to establish murder—the crime charged. He said:
To establish murder the Crown must prove beyond reasonable doubt these things: First, that a
person, in this case Hodson, was killed. Well, gentlemen, it is a matter for you but there would not
appear to be much doubt about that. Secondly, that the accused caused his death whilst the accused
was of sound mind. Well, there seems to be no dispute that the accused were both of sound mind
although it remains a matter for you. Of course, that the accused Ryan caused his death is probably
the great issue in this case. Thirdly, you have to be satisfied beyond reasonable doubt that the act
which brought about his death was intentional, voluntary, conscious and deliberate. In other words
not accidental, or not done in a blackout or something of that nature. Again, although it remains a
matter for you, it seems, if it were done at all, to be no real questions of that element. Fourthly, that at
the time the act was done it was done either with the intention of killing Hodson or with the intention
of doing him grievous bodily harm. Gentlemen, you see there are two intents here that have to be
established. The act has to be done intentionally, that is one, and with the intention of killing the other
person, that is two.
The learned judge then gave an example of a deliberate act of shooting resulting in the death of a
man which would not amount to murder because it was not done with the intention of causing harm. He
then proceeded:
The last two elements, I think, need not concern you in this case but they will remain strictly of course
a matter for you. First, provided that there is no lawful justification or excuse for the killing—that
means such things as self defence, there are some circumstances where you can kill a man lawfully
in self defence; there seems to be no question of self defence here although it remains a matter
for you; and provided there is nothing in the circumstances which is sufficient in law to reduce the
killing from murder to manslaughter. That refers to such things as provocation, gentlemen, and again
there seems to be no question of that here, although it remains a matter for you. That is a general
definition of murder but there is one qualification, gentlemen. In certain circumstances the crime
murder may be established even though the accused had no actual intention of killing and that is so
in these circumstances. If a killing occurs by an act of violence in the course of a commission of a
felony involving violence or in the furtherance of the purpose of such felony the accused is guilty of
murder even though there is no actual intention of killing. This is known to lawyers as felony-murder.
The intention is imputed to the accused by law; it is what is called constructive malice. Now what
has the Crown got to establish in order to establish what I might for convenience call felony-murder?
First, it has got to establish that there was a felony being committed.
Then the learned judge referred to s 35 of the Gaols Act and the admissions that had been made
by counsel for both the applicants that they were in Pentridge serving sentences of long terms of
imprisonment as a result of convictions. He then proceeded:
The next thing is, it has got to be by an act of violence. Now what is an act of violence in this
connection? This may be said in definition, when the actor did the act if he must have contemplated
or as a reasonable man should have contemplated that death or grievous bodily harm was likely to
result, then this portion of the definition is satisfied. Next, in the commission of a felony involving
violence: commission means while he is doing it and before it is over. Once it is complete, of course,
there can be no question of felony-murder. Furtherance: in the furtherance of the purpose of such a
felony. Furtherance means the promotion or advancement of the purpose or helping forward of the
purpose.
The learned judge then gave an example of an act which would and one which would not amount to
the furtherance of the purpose of a felony and proceeded:
Now gentlemen, in the case of an escape from gaol, it is a matter to you, of course, but it may be that
the accused hoped very much that they would get away with it without anyone seeing them at all and
there would not be any violence. But it is open to you to find that this is just the sort of crime that if
detection occurred it is very likely indeed to lead to violence of one kind or another. Now, gentlemen,
if you are satisfied of those things, satisfied beyond reasonable doubt you would be entitled to return
a verdict of murder on this basis. It seems to me, but it is a matter for you, that as far as Ryan is
concerned this is not very important. The entire fight in this case has been as to whether beyond
reasonable doubt Ryan fired the shot. If he did not, of course, he is not guilty of anything. If he did, no
argument has been addressed to you by Mr Opas [counsel for Ryan] as to why you should not find
that all the other elements of murder were present. Evidence seems to disclose, and again I repeat
it is a matter for you, that if he did fire the shot he stopped dead in his tracks and fired deliberately
at Hodson and killed him. If that were so that would be murder without any resort to the doctrine of
felony-murder at all, so you may think … However, the question of felony-murder may be important
when we come to Walker’s case. Gentlemen, that is the law so far as it applies to Ryan and of course
both definitions also apply to Walker. As far as Walker is concerned, no one has suggested he fired
the fatal shot, or ever had a gun; and if you acquit Ryan I direct you in point of law that you must
acquit Walker. However, gentlemen, the Crown presents its case against Walker in this way.
…
As appears from his charge, the learned judge directed the jury that a verdict of murder might be
found on either of two bases.
If the jury founded its verdict on the first basis of express malice—an intention by Ryan to kill or do
grievous bodily harm—clearly no exception could be, or in fact was, taken to it. But if, as possible, it
reached its verdict on the second basis, this is of felony-murder, it becomes necessary to consider the
seventh and final ground of Ryan’s application, namely, that the learned judge misdirected the jury that
in the case of felony-murder the intention of the accused either to kill or do grievous bodily harm was
irrelevant in the circumstances of the case. Such a direction was in fact given and the learned judge did
tell the jury that it was sufficient in such a case if the killing was brought about by an act of violence which
the actor must have contemplated or as a reasonable man should have contemplated was likely to result
in death or grievous bodily harm. It was contended for the applicant that this brought into the definition of
felony-murder an objective element which was inconsistent with the ruling of the High Court in Parker v
R (1963) 111 CLR 610 at 632; [1963] ALR 524 at 537.
As to this there are, in our opinion, two answers.
In the first place, we think that the Solicitor-General was right in his submission that the principle
stated in Parker v R, supra, was expressed in relation to cases of express, and is not applicable to cases
of constructive murder. In the latter, once the intentional act of violence is found, the malice is imputed
by law, and if the principle referred to were to be applied, the effect would be to abolish the rule of
felony-murder.
Second, we think that the question whether the act by which the death is brought about is an act of
violence is, if the abortion cases are put on one side, one ordinarily to be determined by the character
of the particular act itself rather than by the intent of the actor. To that extent the learned trial judge’s
direction at this point introduced an unnecessary element, for it’s apparent that he was adopting the
language of directions given in the cases of deaths following abortion or an attempted abortion: see
R v Lumley 22 Cox CC 635 (CCC 1911); R v Brown & Brian [1949] VLR 177 at 181, [1949] ALR at 466,
per Lowe J. In such cases the direction is given as a guide in the determination of whether the killing is
murder or manslaughter. But such cases stand in a special category, no doubt for the reason pointed out
by the Court of Criminal Appeal, R v Stone 53 TLR 1046 at 1047 [1937] 3 All ER 920 at 921, namely that
‘In those cases, although an illegal act was being done, there was no intention to do any harm or anything
against the wish of the person hurt. Indeed the desire was to help or assist that person …’
In Stone’s case the direction complained of was the affirmative answer given by the trial judge to the
jury’s question: ‘If as a result of an intention to commit rape a girl is killed, although there was no intention
to kill her, is the man guilty of murder?’ Answer: ‘Yes, undoubtedly’.
In dismissing the appeal, the Court of Criminal Appeal rejected the appellant’s argument that ‘The
same steady growth of a current mercy which had appeared in recent years in constructive murder arising
out of the crime of abortion should apply to constructive murder arising out of the crime of “rape”’.
The position is, therefore, that in R v Stone, supra, the Court rejected the view that in felony-murder
not only must the act which caused death be one done in the course of committing a felony, but also that
the act must be one which, in the contemplation of a reasonable man, must be capable at least of causing
grievous bodily harm.
In these circumstances, the introduction of the necessary element could not have operated to the
prejudice of the applicant.
But even if, contrary to our view, the interpretation placed upon s 35 of the Gaols Act 1958 by the
learned judge was wrong so that his direction as to felony-murder constituted a misdirection, we are
none the less of opinion for the following reasons that no substantial miscarriage of justice has actually
occurred.
In our opinion, it is clear law that the killing of a person by the intentional use of force, knowingly to
prevent such person from making an arrest which he is authorised by common law to make, is murder
even if the person using force did not intend to kill or do grievous bodily harm, and even if he did not
foresee that he was likely to do so.
Whether the jury’s verdict against Ryan was based on express malice or felony-murder it must by that
verdict, having regard to the direction of the learned judge, be taken to have found that Ryan intentionally
fired the shot which killed Hodson. On the evidence, a jury properly directed could not, in our opinion,
reasonably have failed to draw the inference that, at the time when Ryan intentionally fired that shot:
(a) Walker had committed the felony of escaping from gaol;
(b) Hodson had reasonable grounds for believing that Walker had committed that felony;
(c) Hodson was attempting to apprehend Walker following the commission of that felony;
(d) Ryan knew that Walker had committed that felony;
(e) Ryan knew that Hodson was attempting to apprehend Walker following the commission of that felony;
(f) Ryan fired that shot to prevent the apprehension of Walker by Hodson.
The result is that in law the case was one of constructive murder by Ryan, because that finding and
those inferences mean that Ryan, knowing that Walker had committed the felony created by s 35 of the
Gaols Act 1958 and knowing that Hodson was attempting to arrest Walker, therefore intentionally used
force, which resulted in Hodson’s death, to prevent him from making that arrest. That, coupled with the
fact that Hodson was, in the above circumstances, lawfully authorised by common law to make the arrest
of Walker (see Christie v Leachinsky [1947] AC 573, [1947] All ER 567 (HL), and R v Hunt 1 Mood 93,
168 ER 1198 (CCR 1825), constituted Ryan’s action in killing Hodson, murder.
In any event, on the evidence and having regard to the closeness of the range at which Ryan fired
the shot, we are of the opinion that a jury properly directed could not reasonably have failed to draw
the inference that Ryan did in fact contemplate that death or grievous bodily harm was likely to result
to Hodson: see Smyth v R (1957) 98 CLR 163; [1957] ALR 441, and Parker v R (1963) 111 CLR 610 at
648–9, [1963] ALR 524 at 548–49, per Windeyer J.
As there was no suggestion that the firing was done in self-defence or provocation, the only
verdicts reasonably open in such circumstances were murder or manslaughter, on the basis of the
learned judge’s charge of the jury’s common law right to return such a verdict which it must be taken to
have rejected.
For these reasons, we are of opinion that the application on behalf of Ryan cannot succeed …
Questions
3.20 What offence(s) were Ryan and Walker charged with?

3.21 How did the killing of the warder take place?
3.22 If the jury had believed Ryan’s version of the facts, what should the verdict have been
in regard to Walker?
3.23 What was the alleged ‘felony’ that the defendants had participated in?
3.24 If Ryan had intentionally shot the warder, would there have been any need for the
Crown to resort to the felony-murder rule?
3.25 Does the felony of escaping from a gaol end when the prisoners have cleared the last
wall and escaped in a getaway car?
3.26 When does the felony of escaping from a gaol conclude?
3.27 Were the requirements of causation or voluntariness at issue in the case? Why, or
why not?
3.28 Did the trial judge or Supreme Court explain what constitutes an ‘act of violence’ or a
‘felony involving violence’?
R v Ryan & Walker was decided on the basis of the common law felony-murder rule. The
formulation of the rule adopted in this case was subsequently affirmed by the High Court in
Ryan v The Queen [1967] ALR 577.
In New South Wales, the act causing death must be done ‘in an attempt to commit, or during
or immediately after the commission … of a specified crime’: Crimes Act 1900 (NSW) s 18.
Literally, this phrase appears to be broader than ‘in the course or furtherance of ’. However, the
courts have interpreted it in a similar manner to ‘in the course or furtherance of ’: Mraz v The
Queen (1955) 93 CLR 505; R v Foster (1995) 78 A Crim R 517.
It has been commented that the s 18 terms ‘during’ and ‘immediately after’ do not have a
fixed legal meaning and that there is no point substituting other words for them in directing
the jury, and that the determination of whether the act causing death occurred during or
immediately after the foundational crime is one of fact for the jury: Hudd v The Queen (2013)
NSWCCA 57 at [99ff ], [178]. In this case the prosecution had contended that the act causing
death (discharging a gun) had occurred within one to three minutes of the foundation crime
(a robbery), and that this shooting had occurred immediately after the robbery. The appellant
was convicted of constructive murder. The appellate court by majority concluded that the judge
had wrongly removed from the jury the issue of whether the act causing death had occurred
immediately after the robbery, but these majority judges applied the proviso in sub-s 6(1) of
the Criminal Appeal Act 1912 (NSW) (which vests in the court a discretion to dismiss an
appeal notwithstanding that a ground for allowing it has been established, where no substantial
miscarriage of justice has actually occurred).
The act causing death must be a voluntary one. It follows that a direction to the jury that
takes away the issue of voluntariness (as where the trial judge instructs the jury that it does not
matter whether or not the gun was fired ‘deliberately’—in a case where the prosecution alleges
that the act causing death was the discharge of the gun) will have the consequence that the jury
has been misdirected: Penza v The Queen [2013] NSWCCA 21 at [167]. In that case, Hoeben
JA gave as an instance of an involuntary or unwilled act the involuntary discharge of a gun
during a struggle between the accused and the victim. This issue of voluntariness was canvassed
in Ryan v The Queen (1967) 121 CLR 205.
As noted previously, the felony-murder has now been supplanted by statutory constructive
murder offences that vary somewhat in their requirements. Some of these statutory schemes
reflect the current climate of hostility towards the constructive murder rule. In Victoria, for
example, s 3A of the Crimes Act 1958 (Vic) provides:
A person who unintentionally causes the death of another person by an act of violence done
in the course or furtherance of a crime the necessary elements of which include violence for
which a person upon first conviction may … be sentenced to … imprisonment for a term
of 10 years or more shall be liable to be convicted of murder as though he had killed that
person intentionally. [Emphasis added.]
3.6.5 Specified offences

In addition to the temporal requirement, the prosecution must establish that the act of violence
was done in the course of committing or attempting to commit a specified offence. In Victoria,
pursuant to s 3A of the Crimes Act 1958 (Vic), the act must be done in the course or furtherance
of a crime which is incapable of being committed without violence. In light of the meaning
ascribed to the term ‘violence’ by the Supreme Court of Victoria in R v Butcher [1986] VR 43,
it appears that there are few offences, aside from robbery and armed robbery under ss 75 and
75A of the Crimes Act 1958 (Vic) respectively, that could serve as a predicate for a successful
prosecution under s 3A. This appears to be in contradiction to language from both Butcher and
the Parliamentary debates leading to the enactment of s 3A, which suggests that the legislative
intent was to codify the common law rule as set forth in Ryan & Walker.
R v Butcher
[1986] VR 43

[The facts of this case are stated in Chapter 2.]
Judgment
Murphy, Murray, and Gobbo JJ: Sections 75 and 75A of the Crimes Act 1958 contain statutory
definitions of robbery and armed robbery. They read:
75 (1) A person is guilty of robbery if he steals, and immediately before or at the time of doing so,
and in order to do so, he uses force on any person or puts or seeks to put any person in fear that he
or another person will be then and there subjected to force.
(2) A person guilty of robbery, or of assault with intent to rob, is guilty of an indictable offence and
liable to imprisonment for a term not exceeding twenty years.
75A (1) A person is guilty of armed robbery if he commits any robbery and at the time has with him
a firearm, imitation firearm, offensive weapon, explosive or imitation explosive within the meaning
assigned to those terms for the purposes of section 77(1).
(2) A person guilty of armed robbery is guilty of an indictable offence and liable to imprisonment for
a term not exceeding 25 years.
A knife is an offensive weapon within the meaning of s 77(1).
It was submitted that the word ‘violence’ does not appear in s 75 nor s 75A, that a threat of force is
not violence, nor is seeking to put a person in fear of force.
In fact, it was submitted, there is in the Crimes Act 1958, and in crimes chargeable at common law,
scarcely an example of a crime, the necessary elements of which include violence, and that consequently
the effect of s 3A is to remove from consideration as a crime for which any person may now be convicted
of murder. The submissions on these grounds require an examination of the common law crime of robbery,
and of how and why it was that robbery came to be recognised in this state as a crime of violence: see
R v Trevor Raymond Flight (unreported, Full Court, Starke J, 29 July 1977).
There can, we think, following an examination of the cases, be little doubt but that at common law,
robbery was always considered to be a crime of violence whether carried out by actual force or merely
putting a person in fear. The violence, which included putting in fear, must precede or exist simultaneously
with the taking. It is not sufficient to turn a larceny into a robbery, if the force or putting in fear is
consequent of the larceny.
When speaking of ‘crime involving violence’ and ‘crimes of violence’ it appears that reference was
intended to be made to such crimes as robbery and rape. However, in the Court of Appeal the distinction,
if any, to be drawn between felonies ‘intrinsically involving violence’ such as rape or robbery and felonies
which merely happened to be accompanied by violence does not appear to have been consistently
drawn. Thus in R v Grant & Gilbert (1954) 38 Cr App R 107, shortly before the Homicide Act 1957, the
appellant had unintentionally caused the death of another in the course of a felony, namely larceny in a
dwelling-house. He had been convicted of murder (manslaughter having been withdrawn from the jury).
His counsel on the appeal submitted that the proper meaning of the term felony in the expression ‘felony
involving violence’ is a felony ‘intrinsically involving violence’ such as rape or robbery with violence and
not a felony merely incidentally accompanied or preceded by violence. In Grant’s case, he submitted,
the felony in contemplation was that of a ‘larceny in a dwelling-house, which was not intrinsically
involving violence’. Counsel for the prosecution was not called upon. The Court, comprising Goddard LCJ,
Hilbery and Lynskey JJ, recited the facts, which included a plan by the appellant and another to jump
on the porter, tie him up, and put him in the telephone box and then to steal. In fact several blows were
struck, and then the porter died apparently from suffocation from a gag, which may have prevented him
expelling blood.
Goddard LCJ, delivering the judgment, said, at (38 Cr App R) at 110:
As in the course of the argument my brother Lynskey put it, if the act is the result of a preconceived
intention, that supplies malice which is necessary in law and the killing becomes a killing with malice
aforethought. Here there was a preconceived intention to overcome Smart and therefore to use
violence against him. The felony, therefore, on which the appellants embarked was a felony to steal
from a dwelling house and, knowing there would be a watchman there, to offer violence towards him.
In those circumstances, as that violence resulted in the death of the unhappy man, the appellants
were guilty of murder’. [Emphasis ours.]
It is clear to our minds that s 3A of the Crimes Act 1958 (Vic) expressly departs from the construction
of the felony-murder rule as expressed by Lord Goddard in the above mentioned case. It restricts the
application of the rule to crimes of a particular class, that class being crimes the necessary elements of
which include violence (as understood at common law) and which crimes are punishable by penalties as
specified in the sub-section.
Section 3A(1) also departed from the view of the felony-murder rule as expressed by the Full Court
of Victoria in R v Brown & Brian (1949) 56 ALR 462. In that case, after considering the different ways in
which the rule had been stated in the past, Lowe J said, at 466: ‘For fifty years past the view prevailing in
England seems consistently to have been that death unintentionally brought about in the commission or
furtherance of a felony is only murder in the actor if the felony is one which is dangerous to life and likely
to cause death’. See also Kenny, Outlines of Criminal Law, 15th edn, p 158.
This latter view was also expressed by the learned trial judge in R v Ryan & Walker, although it did not
find favour either with the Full Court on appeal or with the legislature in Victoria in 1981, for s 3A(2) states
that the felony-murder rule is set out therein. See also R v Ryan & Walker [1966] VR 553.
Has then the Victorian statute altered the common law definition relating to robbery? The presumption
of interpretation is that it has not, for it does not state that it has. Has it introduced a non-violent element
in robbery?
It was submitted that since robbery may be committed if the accused simply ‘seeks to put any person
in fear’, it is not a necessary element of the crime that violence is committed. We would agree that actual
force need not be used either at common law or under the statute, but this is not the same thing as saying
violence need not be used. However, if actual force is not used, then the menace or threat must either be
such as to cause personal intimidation, or be intended to cause intimidation or submission. In our opinion,
if force is used there can be no debate but that this is actual violence. If threats are made personally
to intimidate or seeking to intimidate, this is also in our opinion violence. It may be put that the latter is
constructive violence, as Willes J said in Donnally’s case. But both putting a person in fear or seeking to
put a person in fear of being ‘subjected to force’ have always been accepted under the common law as
violence, sufficient to render a contemporaneous larceny a robbery.
In R v Desmond; R v Hall [1965] AC 960, Lord Morris of Borth-y-Gest said, at 979: ‘In earlier times
the offence [robbery] was probably limited to cases where there was actual violence to the person and a
forcible taking from the person. Gradually the conception as to what constituted robbery was extended.
Actual violence was not necessary. There might be a putting in fear of violence as by a threat of violence.
That could be called constructive violence.’
Accordingly, we are of the opinion that the statutory definition of robbery contained in s 75 does not
depart from the common law, and that it is still a crime of violence.
We turn to look more closely at s 3A of the Crimes Act 1958 (Vic), which was inserted by s 3 of the
Crimes Act (Classification of Offences) Act 1981. It contains two sub-sections which must, in our opinion,
be read in conjunction one with the other.
It reads:
3A (1) A person who unintentionally causes death of another person by an act of violence done in the
course or furtherance of a crime the necessary elements of which include violence for which a person
upon first conviction may, under or by virtue of any enactment, be sentenced to life imprisonment or
to imprisonment for a term of 10 years or more shall be liable to be convicted of murder as though
he had killed the person intentionally.
(2) The rule of law known as the felony-murder rule (whereby a person who unintentionally causes
death of another by an act of violence done in the course of furtherance of a felony of violence is
liable to be convicted of murder as though he had killed that person intentionally) is hereby abrogated.
For some time prior to 1981 numerous criticisms of what was loosely called the felony-murder rule
had been made. The Law Reform Commissioner, Mr TW Smith QC, in his first report to the Victorian
Government of August 1974 on the law of murder, stated that the felony-murder rule offended against
‘basic concepts of justice’ and he instanced in his Report the apparent width of its application and
recommended that it be abolished: Report No 1 Law of Murder, August 1974, pp 10–15.
Upon the second reading of the Crimes (Classification of Offences) Bill in the House by the Minister,
s 3 was amended omitting the words ‘crimes of violence’ appearing in the original Bill and substituting
in their stead the present words ‘crime, the necessary elements of which include violence’: Hansard vol
358, 6 May 1981, p 8688.
We gather from reading Hansard that the intent of the amendment was to make it abundantly clear
that the crimes in the commission of which the felony-murder rule as defined in s 3(2) was to continue in
force in the state of Victoria were to be of a class having ‘violence as one of its ingredients’ (see Hansard,
supra) and that the rule was not to apply simply because the particular crime committed was in fact one
which was committed violently. Certain writers, for example Colin Howard in his Australian Criminal Law,
had supported the diametrically opposed view of how the felony rule should apply because, we believe, of
the narrow interpretation the he placed upon the meaning of the word violence.
Since the passage of s 3A, if the felony-murder rule is to apply to deaths unintentionally caused, the
Crown must prove that the death was caused by the person charged ‘by an act of violence done in the
course or furtherance of a crime’ of the said class, which carries the penalties stipulated.
Violence in s 3A meant, it was submitted, the actual imposition of something more than a touching.
Here the act of violence which the learned trial judge left to the jury was ‘holding the knife out close to the
deceased’, and this, it was submitted, was not an act of violence.
The learned trial Judge charged the jury:
The act here relied upon is the act of the accused holding a knife out close to the deceased in all
the circumstances. That, the Crown says, is the act of violence which you can see referred to in the
second line of s 3A. He has got to cause the death of the deceased man by an act of violence. The
Crown says, as I have indicated, that the act of violence which caused death was the holding out
of the knife in all the circumstances and what thereafter happened was all related to that cause. I
will deal with the matter of causation later on. It will be open to you to find that the accused in fact
committed an act of violence in holding the knife out the way he did because in law violence does not
necessarily involve actual physical contact. And so the first element is that the accused committed
and intentionally committed an act of violence, that it is a conscious and voluntary act in holding the
knife out close in proximity to the deceased in all the circumstances. It would be open to you to find
that that was an act of violence. I must say, it appears to be conceded that the act of holding that
knife out in close proximity to the deceased was an intentional act, it was a conscious and voluntary
act. That part of it was not accidental, but it is a matter to you.
You must then consider whether you are satisfied that the act of the accused caused the death,
and I will deal with that in a moment. Lastly, you consider whether it was done in the course of
furtherance of an armed robbery. You need not trouble yourself with whether an armed robbery is
a crime referred to in the last three or four lines of that section. I tell you, as a matter of law, it is
a crime, one of the necessary elements of which include violence and it is a crime which, upon a
first offence, a person may be sentenced to imprisonment for a term of ten years or more. So the
elements, ultimately, that you have to involve yourself with [are] whether the accused committed an
act of violence, whether the act of violence caused the death and whether it was done in the course or
furtherance of the crime of armed robbery. ‘In the course of’ means that the act must occur during the
time from when the attempt has begun and before it is ended and be an act relevant to the robbery.
In our opinion, the word ‘violence’ where it is used in s 3A is not to be understood to refer only
to physical force but rather to include those aspects of intimidation and seeking to intimidate by the
exhibition of physical force or menaces as in the past have been constituted to include violence.
When the words ‘acts of violence’ and ‘crime the necessary elements of which include violence’ are
used in s 3A, violence is used in a descriptive sense. ‘Act of violence’ means an act of a violent kind, for
there is no legal definition of violence as such inside or outside which any particular act or threats may be
said to fall. Nor is there any common law crime in which violence is by definition an element.
This view is also consistent with violence as understood during the development of the English
language. As a matter of etymology, violence is a word having its origin in the Latin violentia, often
connoting vehemence or impetuosity. It is not synonymous with the use of physical force, although
physical force falls within its meaning. It is a word of wider significance in the law, as the cases show.
However, it seems to us that if the word ‘violence’ in the phrase ‘act of violence’ is understood to
be used in its etymological sense and in the descriptive way that it has been used in the cases, and to
embrace actual force used to overcome or nullify resistance and, as well, threats or menaces to induce
fear and terror to intimidate in order to remove or nullify resistance, the phrase is apt to express the type
of act which is required to call into play the felony-murder rule under s 3A.
The intention of the actor is vital in robbery. As we have said, it is not necessary to prove that actual
fear was inspired. If a man is waylaid and rendered unconscious by a blow from behind and his money is
taken from his clothing, this is robbery, if the intent of the actor was to steal by overpowering. If a drunken
person is unable to see the gun levelled at him by another, but against his will his money is taken, this is
robbery. If a courageous person is not frightened by the threats or menaces intentionally made, but his
money is taken nonetheless, this is also robbery.
The very old cases which held that running against a person, for the purpose of diverting his attention,
whilst his pockets are rifled is robbery, do so on the basis that the use of force with intent is sufficient.
But the intent now required may be a preparedness or intent to overpower the party robbed, to seek to
prevent his resisting—either by actual force or by intimidation, and not merely to get possession of money
or goods on him or in his keeping: R v Gnosil (1824) 1 C & P 304; R v Walls and Hughes (1845) 2 C & R
214; R v Edwards (1843) 1 Cox CC 32.
If there is not actual force used then the putting in fear or seeking to put in fear must be intended to
induce the victim through fear to part with the money or goods in his keeping.
The intent to cause the victim to fear personal injury is most common, by terror resulting from such
threatening, by word or gesture, as in common experience, is likely to create an apprehension of danger
and induce a person to part with his property for the safety of his person. The removal of the power of
resistance by threats or menaces (as by surrounding a person—without touching him), and the taking of
his money is robbery—as for to take away or to seek to take away a person’s power of resistance is to
use force: R v Hughes & Wellings (1825) 1 Lew CC 301; R v Reane (1794) 2 East PC 734; 2 Leach 616.
In the latter case, Eyre CJ said that a man might be said to take by violence, who deprived the other of the
power of resistance, by whatever means he did it.
Similarly, removal of resistance by threats of injury to property or to reputation have been held
sufficient threats of violence to provide the necessary element in robbery: R v Simons (1773) 2 East PC
731; R v Spencer (1783) 2 East PC 712.
These cases are simply illustrative of the fact that violence must be interpreted to include threats such
as in common experience would be expected or likely to take away resistance, which has always been
considered to be an element, necessary to prove, in the crime of robbery.
Without attempting to deal exhaustively with what other acts may or may not be considered to be acts
of violence, we are satisfied from our reading of the cases that holding out a knife towards another person
whilst he is three or four feet away and at the same time demanding money from him, is capable of being
found to be an act of violence within the meaning of s 3A(1).
It was submitted that this view was inconsistent with the view expressed by this Court in R v Ryan
& Walker—a decision was arrived at before the passage of the present s 3A of the Crimes Act 1958.
Although in that case the emphasis is not directed to the wording of s 3A, it is quite consistent with it.
Since that case does not appear to touch upon the concept of ‘accidental’ killing—as counsel put it—it
should perhaps be examined further.
In R v Ryan & Walker [1966] VR 553 the Full Court of Victoria rejected the submission that ‘in felony
murder not only must the act which caused death be one done in the course of committing a felony, but
also that the act must be one which, in the contemplation of a reasonable man, must be capable at least
of causing grievous bodily harm’: at 564. It held:
In our opinion, it is clear law that the killing of a person by the intentional use of force, knowingly to
prevent such person from making an arrest which is authorised by common law to make, is murder
even if the person using the force did not intend to kill or do grievous bodily harm, and even if he did
not foresee that he was likely to do so: see East, Pleas of the Crown, vol 1, p 295; Stephen, Digest
of Criminal Law, p 226(d); Halsbury 3rd edn, vol 10, p 707, para 1358; R v Woolmer (1832) 1 Mood
CC 334, 168 ER 1293; R v Williams (1833) 1 Mood CC 336, 168 ER 1314; Archbold, 35th edn, pp
973–4 and 1077; R v Howarth (1828) 1 Mood CC 207, 168 ER 1243; Russell, 10th edn, pp 503–4
and 554–51; R v Porter (1873) 12 Cox CC 444; R v Appleby (1940) 28 Cr App Rep 1; R v Vickers
[1957] 2 QB 664 at 670; [1957] 2 All ER 741, and R v Scriva (No 2) [1951] VLR 290, per Smith J,
at 304–5, [1951] ALR 733 and the authorities there referred to; and R v Tommy Ryan (1890) 11 LR
(NSW) 171.
For the purposes of the present case, it has been submitted that R v Ryan & Walker supports the view
that an accidental killing in the course of committing a felony of violence is not murder, and that the act
which causes the killing must be intentional, for otherwise, it was said, if the principle expressed in R v
Jarmain [1946] KB 74 applied, the reasoning in R v Ryan would be redundant.
We would be prepared to agree that the act which causes death must be intentional and must be
an act of violence. However, the use of the word ‘accidental’ in this submission is imprecise, and needs
examination. Section 3A only applies to ‘a person who unintentionally causes the death of another person
by an act of violence’, so that it is clear that an act of violence which causes death, which death is not
intended by the actor, fails within it. In this sense, s 3A covers ‘accidental’ killing.
What perhaps is intended by the submission is that if an act of violence which is intentionally performed
is attended by some unforeseen event, such as, for example, a cat running across the actor’s feet and
tripping him, with the consequences that the gun discharges ‘accidentally’ and the victim is killed, the
original act of violence may not cause the death, which is accidental, and the actor does ‘unintentionally’
cause the death of another person by an act of violence. This latter conclusion may as a matter of
causation be debatable, but if the submission is stated in this way, the submission itself provides its own
answer; for it is not every death that occurs in the course of a felony of the class specified, that renders
the actor liable for murder. It is only death which is unintentionally caused by an act of violence. The issue
of causation which arises in the example given above arises in every case, and must be resolved by the
jury before s 3A(1) can be applied. The learned trial judge in the present case properly instructed the jury
that this issue of causation had to be decided by them. The issue was: did the voluntary and deliberate
act of holding the knife out towards the victim cause his death?
In R v Jarmain [1946] 1 KB 74 the Court of Appeal was not concerned to interpret any statutory
provision such as s 3A(1), but the issue of causation inherent in the felony-murder rule was none the less
properly stated by Wrottesley J who said, at 80–1:
We think that the object and scope of this branch of the law is at least this, that he who uses violent
measures in the commission of a felony involving personal violence does so at his own risk, and is
guilty of murder if those violent measures result even inadvertently in the death of the victim. For this
purpose the use of a loaded firearm, in order to frighten the person victimised into submission is a
violent measure. [Emphasis ours.]
The other aspects of Jarmain’s case to which members of the High Court referred in Ryan v R
(1967)121 CLR 205 (at 226, per Barwick CJ; at 230, per Taylor and Owen JJ; at 235, per Menzies J; and
at 240, per Windeyer J) concern two issues, namely (i) whether the ‘accidental’ pressure of the trigger
of a gun which an accused person has intentionally loaded and intentionally pointed at his victim can be
said to be involuntary, and (ii) is the accidental pressure of the trigger as distinct from the loading and
pointing of a gun the violent act which caused death. It had been submitted to the Court either that both
the propositions could be established, or that the jury might at least be left in reasonable doubt about
them, and that, in that event, it could not be found that the act causing death was willed or voluntary, for
the accused said it was an accident.
In Ryan’s case, Taylor and Owen JJ thought it was ‘impossible to isolate the act of pressing the trigger
from the other circumstances and argue that it, alone, caused the wounding and death’: at 231. Menzies
J said, at 233: ‘I do not accept the contention of counsel for the applicant that the act causing Taylor’s
death ought, for the purposes of s 18(1) of the Crimes Act, to have been regarded as the mere pressing of
the trigger to discharge the rifle’. Windeyer J, after an interesting discussion of the meaning of the words
‘voluntary act’, ‘involuntary’, ‘unwilled’, and ‘reflex action’, said, at 246: ‘I have come to the conclusion
that if the applicant, being conscious of the situation in which he had put himself, pressed the trigger as
a result, however spontaneous, of the man whom he was threatening making some sudden movement, it
could not be said that his action was involuntary so as to make the homicide guiltless’.
The reasoning which prompted these remarks of the members of the High Court in the case of the
pressing of the trigger of a gun appear to us to apply, a fortiori, where the accused intentionally holds out
a knife to threaten the victim, whilst he is only three or four feet away, followed by the victim’s sudden
movement forwards onto the knife whilst it is still being held out.
We intend to reserve for future consideration, if necessary, the issue whether s 3A of the Crimes
Act 1958 (Vic) is applicable in a case where some unforeseen foreign agency intervenes whilst an act of
violence is being performed in the course of a relevant crime, and death results. It may simply be a matter
of causation, in which case it would be for the judge to rule whether as a matter of law it is open to find
that the relevant intentional act of violence caused death, and for the jury to decide whether in fact the
intentional act of violence caused death. That is not the case.
[Appeal dismissed. The High Court later refused Ryan’s application for special leave to appeal:
Ryan v The Queen (1966) 40 ALJR 326.]
Questions
3.29 For the purposes of s 3A, what constitutes an ‘act of violence’?

3.30 What is the difference between the expressions ‘in the course’ and ‘furtherance of’
as they are used in s 3A?
‘[N]ecessary elements of which include violence’: it is the interpretation of these words in

s 3A of the Crimes Act 1958 (Vic) that distinguishes the law in Victoria from the common
law position. A fleeting glance at the common law position will be useful in helping to fully
appreciate the impact of s 3A. Before proceeding to the common law position, however, readers
should be aware that in Zain v The Queen [2011] VSCA 80 (30 March 2011), the Victorian
Court of Appeal reaffirmed the meaning given in Butcher to the terms ‘act of violence’ and
‘violence’ as they are used in s 3A of the Crimes Act 1958 (Vic).
3.6.6 The common law position

In DPP v Beard [1920] AC 479, the House of Lords held that the felony-murder doctrine was
restricted to an unintentional killing caused by an act of violence done in the course of a felony
involving violence. Although the reference to the required act was conventionally referred to as
an ‘act of violence’, in technical terms this was not necessarily so. As Brent Fisse explains:
The present law requires an act by D to be violent and dangerous to the person of another.
The act has in the past been called an act of violence, but this is misleading, for the act
which causes death may not be violent in any helpful sense. In the normal usage of words
it is not a violent act to set fire to a building, and thereby commit the felony of arson, but
if someone is burnt to death in the building the act of setting fire to it is properly called
dangerous: B Fisse, Howard’s Criminal Law (5th edn, 1990) 68.
At common law, therefore, the term ‘act of violence’ is very broad and includes acts that
are literally and physically violent, as well as those that involve an objective risk of danger to
another or others. To what extent did Butcher narrow the scope of the term ‘act of violence’ for
the purposes of s 3A?
Questions
3.31 In R v Butcher, what crime had D committed?

3.32 Are robbery and armed robbery crimes the ‘necessary elements of which include
violence’?
3.33 How did V die?
3.34 Did D engage in an ‘act of violence’ prior to the fatal incident?
3.35 D argued that causation was not established because V lunged onto the knife. How
did the Full Court deal with the issue of causation?
3.36 Did the Full Court believe that ‘violence’ meant actual force?
3.37 According to the Full Supreme Court’s reasoning, would the crimes of rape and
kidnapping be regarded as crimes, the ‘necessary elements of which include
violence’?
3.38 Are there circumstances in which rape can be committed without violence? Is the
same true of kidnapping and arson?
The impact of s 3A, therefore, is that a crime does not count for the purposes of the new
constructive murder rule merely because it is committed in circumstances involving violence.
For a crime to attract the operation of this rule, it must be a crime ‘the necessary elements of
which include violence’. This is an extremely limiting rule because the definition or elements of
the offence must make it intrinsically violent. In other words, if the definitional elements of a
crime are such that it is possible to commit the crime without ‘violence’, as that term is defined in
Butcher, then the crime cannot serve as a predicate for a constructive murder conviction under
s 3A of the Crimes Act 1958 (Vic).
Although the Supreme Court’s discussion of the meaning of ‘violence’ was somewhat
discursive and ambiguous, the court intimated that in the context of s 3A, ‘violence’ denotes
the intentional use of force, or the threat of harm of any type which is used in order to overcome
another’s resistance or will.
While the Supreme Court held that armed robbery (s 75A of the Crimes Act 1958 (Vic))
qualified as such a crime under s 3A, its definition of ‘violence’ allows for a cogent argument that
crimes such as rape, arson, burglary, kidnapping, and many others that are generally considered
as crimes of violence, would not qualify. Definitionally, is it not possible to commit each of
these crimes without resorting to an act of violence? Rape and kidnapping, for example, can be
committed while the victim is unconscious and, therefore, do not satisfy this criterion. Thus,
the scope of s 3A is very limited, especially when one considers the added requirement under
s 3A that the crime must be punishable upon first conviction by a term of at least ten years’
imprisonment. This no doubt explains why relatively few prosecutions are brought under s
3A. It is noteworthy that Butcher was decided in 1986 and the Supreme Court has not had
occasion since then to address the question of whether the aforementioned crimes could serve
as a predicate for a prosecution under s 3A.
Question
3.39 Is gaol breaking a crime, the ‘necessary elements of which include violence’?
If the answer is ‘no’, then would Ryan & Walker be decided differently today under
s 3A?
In the other jurisdictions, the situation in relation to which crimes the offence of constructive
murder applies is also relatively restrictive. In New South Wales, the offence must be one which
is ‘punishable by imprisonment for life or for 25 years’: Crimes Act 1900 (NSW) sub-s 18(1)(a).
In South Australia, the Criminal Law Consolidation Act 1935 (SA) s 12A, states:
A person who commits an intentional act of violence while acting in the course or
furtherance of a major indictable offence punishable by imprisonment for ten years or more
(other than abortion [ie an offence against section 81(2)]), and thus causes the death of
another, is guilty of murder.
In R v Maurangi & Rivett [2000] SASC 347 (3 October 2000) it was held, at [24], that:
There is no doubt that s 12A changed what was the common law relating to felony murder .
The Crown does not now have to prove that death was caused in the commission of or
in furtherance of the commission of ‘a felony involving violence or danger’. Parliament has
substituted the following in lieu ‘a major indictable offence punishable by imprisonment for
ten years or more (other than abortion)’. Upon my reading of the Hansard report, that was
the only change intended. [Original emphasis.]
The elements of the constructive murder in South Australia were more recently discussed
by Kourakis J in R v Kageregere [2011] SASC 154. At [128]–[147], his Honour defines the
meaning of violence in this context and the scope of the offence in the following terms:
R v Kageregere
[2011] SASC 154
Kourakis J:
Constructive Murder
Section 12A of the [Criminal Law Consolidation Act ] (CLCA) provides:
12A—Causing death by an intentional act of violence

A person who commits an intentional act of violence while acting in the course or furtherance of a
major indictable offence punishable by imprisonment for ten years or more (other than abortion …),
and thus causes the death of another, is guilty of murder. …
I will refer to the offence in furtherance of which the act of violence is committed as the foundational
offence and to the nature of the liability created by s 12A as constructive murder …
[Section] 12A of the CLCA appears to effect the following reforms of the felony murder rule. First, it
replaces felonies as the foundational offence with offences carrying a maximum penalty of ten years or
more. This reform removes the anachronism of the felony/misdemeanour distinction and limits the scope
of constructive murder to offences serious enough to act as foundational offences by reference to the
maximum penalty.
Secondly, by requiring an intentional act of violence, it removes from the scope of constructive murder
death caused by pure accident. In R v CMM Martin J gave consideration to the question of whether
the expression ‘intentional act of violence’ required the prosecution prove more than a voluntary and
deliberate act. Whilst his Honour found it unnecessary to finally determine the question he indicated that
he was inclined to the view ‘that provided the act committed is one of violence, and this may depend on
the state of mind of the actor, it is sufficient to prove that the act was voluntary.’
In R v Butcher the Victorian Court of Criminal Appeal gave detailed consideration to what constitutes an
act of violence under that State’s equivalent ‘felony murder’ section. Whilst the Victorian section does not
include the word ‘intentional’ the Court considered the meaning of the word ‘violence’ in this context and
came to the view that it referred not only to physical force but included acts of intimidation and menaces. …
This view is also consistent with violence as understood during the development of the English
language. As a matter of etymology, violence is a word having its origin in the Latin violentia, often
connoting vehemence or impetuosity. It is not synonymous with the use of physical force, although physical
force falls within its meaning. It is a word of wider significance in the law, as the cases show. Smith
and Hall in their English–Latin Dictionary give as their first meaning of violence: ‘inherent overpowering
force, whether physical or mental’. In the Oxford English Dictionary violence is defined as follows: ‘(Law)
unlawful exercise of physical force, intimidation by the exhibition of this.’…
Returning to the proper construction of s 12A of the CLCA, in my view, the ordinary meaning of the
word violence is simply uncontrolled force.
There is no legislative definition of the phrase ‘intentional act of violence’ in s 12A of the CLCA. In the
Butterworths Concise Australian Legal Dictionary ‘violence’ is defined as ‘unjust, unwarranted or unlawful
use of force; violent conduct towards property or person, whether that conduct was intended to cause
injury or damage.’
In the context of the criminal law and the constructive murder rule, in particular, the word violence
means an uncontrolled force which carries a real, in the sense of not remote, risk of personal harm. In my
view, a violent act is not intended unless the accused has an appreciation of surrounding circumstances,
which, objectively viewed, make his act violent in the sense of unleashing unrestrained force which
carries a risk of personal harm. The following example illustrates, I hope, the relevance of the accused’s
subjective appreciation of the circumstances which make his act violent. To set alight to a car when
no-one else is in the vicinity is probably not of itself, an act of violence. To do so when someone is in the
car, or nearby, will almost always be a violent act. If an accused is not aware that someone is in the car, he
or she, generally, will not have committed an intentional act of violence. However, if the accused is aware
of someone’s presence his or her subjective belief that the person will easily escape does not make his
or her act any less an intentional act of violence.
The final construction issue to be dealt with is an obviously unintended consequence which would
ensue if a too literal construction of s 12A of the CLCA were adopted. The problem is this. The basic offence
of causing harm with intent to cause harm enacted by s 24 of the CLCA carries a maximum penalty of
10 years. Manslaughter carries a maximum penalty of life imprisonment. Both offences therefore qualify
as foundational offences. Intentional acts of violence may be, and usually are, involved in the commission
of both offences. Parliament could not have intended to attach a liability for murder if death results from
the commission of those two offences. To do so would undermine the common law mens rea for murder
in circumstances where the policy rationale for constructive murder had no application. Such a literal
construction would create substantial incoherence in the rules of criminal liability for homicide.
That plainly unintended, if not absurd, result can and should be avoided by limiting the denotation
of the foundational offence to offences other than manslaughter and offences committed for the sole
purpose of causing personal harm. That construction is consistent with the High Court’s approach to the
constructive murder provision of the Queensland Criminal Code. In Stuart v The Queen (Stuart) the High
Court considered the operation of s 302(2) of the Criminal Code (Qld). …
In Stuart the appellant had been charged with murder arising out of the death of a person caused by a
deliberately lit fire in a nightclub. The purpose of the act of arson was to extort money from the owners and
not to kill or cause harm. In explaining the operation of the provision Gibbs J distinguished the decision of
the High Court in Hughes v The King in the following way:
It appears clearly from the words of the section, and it has been laid down by this Court, that the act
of the accused which caused the death cannot at once constitute the dangerous act and the unlawful
purpose: ‘The paragraph relates to an act of such a nature as to be likely to endanger human life
when the act is done in the prosecution of a further purpose which is unlawful.’ The facts of Hughes
v The King clearly exemplify this principle; the dangerous act causing death was a violent assault but
the accused had no purpose other than to assault the deceased.
Gibbs J held that s 302 applied on the facts in Stuart because ‘the dangerous act was the striking of a
match and applying it to kerosene on the stairs of the hotel but the unlawful purpose was to commit arson
by burning down the hotel; the dangerous act and the unlawful purpose were not the same’.
In a separate but concurring judgement, Jacobs J explained Hughes in the following terms:
It was held in that case that when there is no purpose at all beyond the doing of the act which
constitutes the offence, then there is no relevant ‘unlawful purpose’ under the section. The facts of
the case show how sensibly that principle applies. The act was an assault but, on a view of the facts
which was open, there was no purpose beyond the making of the assault … However, many offences
are, and probably all can be, of greater complexity in the purpose which may accompany them than
an assault, unaccompanied by any purpose other than the making of an assault. Arson may be taken
as an example. (Emphasis added)
In my opinion, a construction analogous to that identified by Jacobs J applies to s 12A of the CLCA.
The purpose of the foundational offence alleged on a prosecution relying on s 12A must not be the
infliction of harm alone. If there is an additional criminal purpose for the commission of the foundational
offence, no difficulty is occasioned if the intentional act of violence also constitutes an element of the
foundational offence or is an act inextricably connected with it. Nor is it necessary to imply an element
such as that suggested by counsel for the accused: that the act of violence be ‘directed’ at the victim.
I take that submission to be that the act of violence must either be subjectively intended, or at least
objectively calculated, to harm or kill the victim. In my view that construction is inconsistent with the
manifest policy purpose of constructive murder liability and should be rejected. The very mischief of acts
of violence is that the harm they cause cannot be controlled and may extend beyond the person against
whom they are ‘directed’. Moreover, the limitation suggested by counsel on the operation of s 12A of the
CLCA has some similarity with the abortion rule which must have been known to the legislature, or its
advisors, but was not adopted by it.

[Footnotes omitted.]
3.6.7 Resisting lawful arrest—constructive murder

At common law, it is also constructive murder for the defendant to cause the death of another
human being by an act of violence committed during the course of resisting a lawful arrest or
escaping from lawful custody. This common law rule is only recognised in South Australia—R v
Fry (1992) 58 SASR 424—and Victoria. The rule was restated by the Full Court of the Supreme
Court of Victoria in R v Ryan & Walker (see above extract); see also R v Marshall (1987) 26 A
Crim R 259 at 271.
3.7 Temporal coincidence

We have already considered this doctrine when setting out the general principles of criminal
responsibility (see Chapter 1, section 1.7.4). It was noted there that where an offence is one of
mens rea, the common law requires a temporal coincidence between the defendant’s relevant
voluntary act or omission and the mens rea of the offence, as required by its common law or
statutory definition. It is, therefore, a basic requirement of the law of murder that the requisite
mens rea must be present at the same time as the defendant’s relevant act(s) or omission(s) that
legally causes the death of another human being. Thus, to commit the relevant voluntary act
or omission without the requisite mens rea will be insufficient to establish criminal liability.
Conversely, possession of a requisite mens rea that does not temporally coincide with the
defendant’s relevant voluntary act or omission will not result in criminal liability.
Although the doctrine of temporal coincidence rarely gives rise to disputes, the courts have
been very innovative in finding ways to circumvent the doctrine where its strict application
would lead to results that they perceive to be inequitable. Suppose that D, mistakenly believing
that he has killed V by striking him in the head, disposes of the body in a manner that does in
fact cause V’s death. Assume further that V would not have died as a result of the blow to the
head. What do you consider to be the difficulty facing the prosecution in this fact pattern? The
Privy Council was confronted with such a scenario in Thabo Meli v The Queen, the leading case
on the doctrine of temporal coincidence.
Thabo Meli v The Queen

[1954] 1 WLR 228
(Privy Council, on appeal from the High Court of Basutoland)
[ The judgment of their lordships was delivered by Lord Reid.] The four appellants in this case were
convicted of murder. … It is established by evidence … that there was a preconceived plot on the part of
the four accused to bring the deceased man to a hut and there to kill him; and then to fake an accident,
so that the accused should escape the real penalty of their act. The deceased man was brought to the
hut. He was there treated to beer and was at least partially intoxicated; and he was then struck over the
head in accordance with the plan of the accused.
Judgment
Lord Reid: There is no evidence that the accused then believed that he was dead, but their Lordships are
prepared to assume that they did; and it is only on that assumption that any statable case can be made
for this appeal. The accused took the body, rolled it over a low krantz or cliff, and dressed up the scene to
make it look like an accident. Obviously they believed at that time that the man was dead, but it appears
from the medical evidence that the injuries received in the hut were not sufficient to cause death and the
final cause of his death was exposure where he was left at the foot of the krantz.
The point of law which was raised in this case can be simply stated. It is said that two acts were
necessary and were separable: first, the attack in the hut; and, secondly, the placing of the body outside
afterwards. It is said that, while the first act was accompanied by mens rea, it was not the cause of death,
but the second act, while it was the cause of death, was not accompanied by mens rea; and on that
ground it is said that the accused are not guilty of any crime except perhaps culpable homicide.
It appears to their Lordships impossible to divide up what was really one transaction in this way.
There is no doubt that the accused set out to do all these acts in order to achieve their plan and as parts
of their plan: and it is much too refined a ground of judgment to say that, because they were under a
misapprehension at one stage and thought that their guilty purpose had been achieved before in fact it
was achieved, therefore they are to escape the penalties of the law. Their Lordships do not think that
this is a matter which is susceptible of elaboration. There appears to be no case either in South Africa
or England, or for that matter elsewhere, which resembles the present. Their Lordships can find no
difference relevant to the present case between the law of South Africa and the law of England, and
they are of opinion that by both laws there could be no separation such as that for which the accused
contend, so as to reduce the crime from murder to a lesser crime, merely the accused were under some
misapprehension for a time during the completion of their criminal plot.
Their Lordships must, therefore, humbly advise her Majesty that this appeal should be dismissed …
Questions
3.40 How did V die?

3.41 How many acts were possibly relevant to the attribution of liability?
3.42 At the time of the first act, what state of mind did D have?
3.43 At the time of the last act, what state of mind did D have?
3.44 Did the Privy Council divide up the various acts and attach D’s states of mind
accordingly?
The holding in Thabo Meli was later reaffirmed and refined by the English Court of Criminal
Appeal in R v Le Brun [1991] 4 All ER 673. In so doing, the Court of Criminal Appeal spelled
out the conditions under which two or more volitional acts or omissions may be regarded in law
as one continuous act or omission:
(1) There must be a sequence of events that can be regarded as the same transaction, even if
there is an appreciable time difference between the mens rea and the fatal act or omission;
and
(2) A chain of causation must be established between the initial voluntary act or omission
when the mens rea was present, and the fatal voluntary act or omission.
In Thabo Meli, the Privy Council believed, erroneously in our opinion, that only one
voluntary act on the part of the appellant could be regarded as the legal cause of death: namely,
the act of rolling the deceased over the cliff, thereby exposing him to the elements that ultimately
brought about his death. Based on this erroneous assumption, the Council reasoned that a strict
application of the doctrine of temporal coincidence would necessitate an acquittal because the
appellant, believing that the deceased was dead at the time, lacked the mens rea for murder.
Determined that the appellant should not avoid a murder conviction, the Council relaxed the
requirement of temporal coincidence in favour of a more pragmatic approach that allows two
or more volitional acts (or omissions) to be regarded as one continuous act, provided they are
interconnected by a common purpose (in this case, to kill and dispose of the body). Finding
that the appellant’s acts were so interconnected, the Council also found the requisite temporal
coincidence and affirmed the murder conviction.
Was the Council correct in its assumption that only the act of rolling the deceased’s body
over the cliff could be regarded as a legal cause of death? Could cases like Thabo Meli be decided
on another rationale which does not create the fiction that two or more voluntary acts or
omissions are, in reality, one act or omission? In Thabo Meli, is it not true that the appellant’s
initial voluntary act of striking the victim in the head was a ‘but-for’ cause of the victim’s death?
Did it not set forth a chain of interconnected events that finally culminated in the victim’s death?
If so, as it appears, was there an intervening event that arguably severed the causal chain? If the
only possible superseding events were the acts of the appellant in disposing of the body, what
test of legal causation would you apply to determine whether such acts were superseding? Does
McHugh J’s opinion in Royall offer any guidance on this issue? While McHugh J’s opinion
addresses only acts or omissions of victims and third parties, is there any reason in logic or
principle to exclude acts or omissions of a defendant as well? If they should be included, would
the acts of Thabo Meli in disposing of the body satisfy the test of reasonable foresight? If so,
would the same result have been achieved by applying an extended version of McHugh J’s test
of legal causation? If so, which of these approaches do you prefer? Does the Le Brun criterion
of a causal connection between the initial act accompanied by the mens rea and the ‘fatal’ act
amount to a tacit recognition that there is in fact a ‘but-for’ connection between the initial act
and death?
Questions
3.45 D plans to kill V. He drops poison in her coffee. She then lapses into unconsciousness,
although the poison would not have caused her death. Thinking she is dead, D hides
her body in the attic. V dies of suffocation from being left in the attic. Is there temporal
coincidence?
3.46 It is a pitch black evening on a country lane. D does not see V in his path and
accidentally runs over her, causing her death. When he realises who he has killed, D
is happy. Has D committed murder?
3.47 D intentionally runs over V with his car in an attempt to kill him. Thinking V is dead,
D drives over V’s body again as he makes his escape. In fact, however, V’s death was
caused when he was run over by D as he was making his escape. Has D committed
murder?
Review questions
1 From your reading, what do you consider to be the difference between recklessness and inten-
tion? What type of recklessness will suffice for murder under the current Australian common law
doctrine?
2 Don, noticing a beautiful young woman in a pub, approaches her and asks her out. When she
politely refuses, he decides to get even with her by placing a date rape drug in her drink while her
attention is diverted. Although Don’s plan was to simply leave the pub and go elsewhere before
the woman lost consciousness, much to his surprise she passes out within seconds and before
he could make his exit. Don then decides to rape the woman by telling the bartender and the
other patrons that the woman is ‘with him’ and he will see that she gets home safely. Instead, Don
transports the unconscious woman to his flat and has vaginal intercourse with her. Regrettably, and
much to Don’s surprise, the woman dies during intercourse as a result of an allergic reaction to the
date rape drug. Don, aware of his predicament, discovers the woman’s address and obtains her
flat key by snooping through her purse. He then drives her home and places her body on the living
room couch. Eventually Don confesses to what he has done and he is subsequently charged with
murder and constructive murder under s 3A of the Crimes Act 1958 (Vic).
Discuss the likelihood of conviction on each count.
3 David likes to shoot at game. He goes into a nearby paddock to seek his prey. It is a public paddock
and David is aware of the fact that children from the village often play there. However, it is early
in the morning and a school day. David knows this, because he has just sent his daughter off
to school.
David has been warned before by the local council that it is dangerous to the public for him to
hunt in the paddock. He sees an unusual movement in the bushes, accompanied by grunting sounds.
Thinking it must be his prey, he shoots. A heavy thud ensues and David is not quite sure what he has
shot. At that moment he hears a teacher calling to her pupils. David panics and runs home. In fact,
he has shot and killed a homeless drunk by the name of Stan. When David reaches home, he learns
that he is responsible for Stan’s death, but also realises that no one saw him and decides to remain
silent. In the meantime, David comes to you for advice, posing what has happened in the form ‘I have
a friend who … etc’.
Discuss whether there is any criminal liability for murder. Your answer here should clearly identify
the relevant head of murder, as well as clearly identifying and discussing the legal problems that are
raised by the hypothetical scenario.
4 Critically analyse the reasoning of the Privy Council and Court of Appeal in the Thabo Meli and Le
Brun cases respectively. Could one or both cases have been decided the same way without resort-
ing to the fiction that two or more volitional acts can be treated as one continuous voluntary act?
Why, or why not?
133
Chapter 4
Murder: The Doctrines of

Provocation and Self-defence
4.1 Introduction
Having introduced you to the mens rea and actus reus components of murder, this chapter
focuses on two of the primary defences to murder: provocation and self-defence. Our primary
focus will be on the defence of provocation, which is a partial defence to murder. The chapter
then concludes with an examination of self-defence, which is a complete defence to murder as
well as other homicide and assault offences.
The situations envisaged by these defences are those in which the defendant resorts to force
or the threat thereof as part of a self-help stratagem in response to the actions of another or
others. In recent years the law in these areas has undergone significant reform. Consequently, its
parameters are still undefined in certain respects.
The defences of provocation and self-defence are imbued with the more general question
of the extent to which the criminal law is prepared to take into account individual differences
(personal and/or cultural) in the attribution of criminal responsibility. The background to the
emergence of this issue in criminal law is the belated recognition of the prevalence of domestic
violence and Australia’s status as a nation of great ethnic and cultural diversity.
4.2 Provocation
4.2.1 Overview
Subject to some notable exceptions to be discussed below, provocation is generally available
as a defence to only one type of crime: murder. The defence is raised in situations where the
deceased has engaged in provocative conduct (albeit not the type of provocative conduct that
would provide lawful justification for the use of deadly force) in the presence of the defendant
that is of such a nature as might have caused an ordinary person to act as the defendant did in
resorting to the use of deadly force. If invoked successfully, provocation operates as a partial
defence in reducing what would otherwise be a conviction for murder to a conviction for
the lesser crime of voluntary manslaughter. The underlying rationale for the defence is often
expressed in terms of a reasonable concession to human frailty: DO O’Connor & PA Fairall,
Criminal Defences (3rd edn, 1996) 197; L Waller & CR Williams, Criminal Law, Text and
Cases (9th edn, 2001) 205. Succinctly stated, the law considers that although killings in
response to serious provocation are not excused or justified, it is nonetheless a reasonable
concession to human frailty to recognise that killing under such circumstances is within the
normal range of human temperaments.
The doctrine of provocation stands in sharp contrast to self-defence and other secondary (or
affirmative) defences, which, if invoked successfully, entitle the accused to an outright acquittal.
As explained in Chapter 2, a defendant who successfully invokes the defence of provocation or
any of the other secondary or ‘affirmative’ defences is deemed in law as having acted without the
requisite malice aforethought for the crime of murder.
4.2.2 Procedure and tactics

It may be helpful at this juncture to review the discussions of the defences and burdens of proof
provided in Chapter 1.
Much of this chapter will be concerned with discussing the definitional elements of
the doctrine of provocation. Before doing so, however, it is necessary to briefly explain how
these definitional elements mesh with tactical and procedural considerations. Without an
understanding of these considerations, many of the contentious issues and judicial opinions
relating to the defence of provocation will seem esoteric and obscure to say the least.
Under the Australian common law doctrine of provocation, the defence is generally
confined to situations in which the prosecution has charged the crime of murder. It should
be noted, however, that there is Australian authority which suggests that the defence may
be invoked in prosecutions for attempted murder and assaults involving an intention to kill:
R v Duvivier (1981) 5 A Crim R 89 at 93ff (per Mitchell J); at 106ff (per Zelling J); R v Newman
[1948] VLR 61 at 65 (per Barry J); R v Spartels [1953] VLR 194; R v Carter [1959] VR
105 (per Sholl J); R v Helmhout (1980) 1 A Crim R 103 at 106ff (per Blackburn CJ). For
authority that confines the operation of the defence to the crime of murder, see McGhee v The
Queen (1995) 130 ALR 142 (construing the Criminal Code 1924 (Tas) (discussed below at
4.2.3.10)); R v Wells (1981) 28 SASR 63 (per Jacabs J); R v Farrar [1992] 1 VR 190 at 210;
R v Roche (1987) 29 A Crim R 168 at 169, 174 (construing the Criminal Code 1913 (WA));
R v Falla [1964] VR 78 at 80 (per Pape J). See P Gillies, Criminal Law (4th edn, 1997) 384–7
for an analysis of the arguments for and against restricting the operation of the defence to the
crime of murder.
In Victoria the defence of provocation as a partial defence to murder has been abolished:
Crimes Act 1958 (Vic) s 3B. Provocation remains a partial defence to murder in New South
Chapter 4: Murder: The Doctrines of Provocation and Self-defence 135
Wales and South Australia. In New South Wales it is now in statutory form: Crimes Act 1900
(NSW) s 23.
In the context of prosecutions for murder, the defence is only viable in instances where the
prosecution is able to discharge its evidential burden with regard to the constituent elements
of the crime of murder. In this respect, it is the mens rea of murder that will be important. If
the mens rea for murder cannot be proven by the prosecution, there is little point in pleading
the defence of provocation. However, as a practical matter, it is not prudent for the defence to
place all of its eggs in one basket. As such, the defence will typically argue in the alternative. The
defence will argue that the defendant did not have an intention to kill or cause grievous bodily
harm, nor was s/he reckless as to causing death or grievous bodily harm. If it is found that s/he
did possess the requisite mens rea, then the defence will argue that the defendant formed that
mens rea under the influence of provocation.
Thus, it is only when the prosecution has proven that the defendant has acted with an
intention to kill or cause grievous bodily harm, or that the defendant has acted with recklessness
as to causing the same, that the defence has the opportunity to successfully interpose the defence
of provocation. As with any secondary defence, the defendant bears the evidential burden on
its constituent elements (see Chapter 1). With the exception of the insanity and diminished
capacity defences that repose a higher evidential burden on the defendant, the evidential
burden is satisfied if the court is persuaded that the evidence, when viewed in the light most
favourable to the defendant, is such that a jury could reasonably entertain reasonable doubt
as to whether each of the constituent elements of the defence have been made out. If the court
does not so find, the defence is withdrawn in the sense that it is not submitted to the fact- finder
for consideration. If the court does so find, then the defence is submitted to the fact-finder
and with an appropriate direction in the event of a jury trial. The legal burden then rests with
the prosecution to negate the defence beyond a reasonable doubt. To accomplish this, the
prosecution need only prove beyond reasonable doubt that at least one element of the defence is
lacking. This could be achieved, for example, by persuading the fact-finder (beyond reasonable
doubt) that the formation of the mens rea was unconnected to the provocation (that the mens
rea was not formed under the influence of the provocation).
A final tactical or procedural consideration that should be noted relates to when the
judge must put the issue of provocation to the jury. Obviously, if the defence has discharged
the evidential burden, then the judge is required to put the defence of provocation to the
jury for them to decide; this is because the defence of provocation has become a part of what
the prosecution must rebut in order to prove the crime of murder beyond reasonable doubt.
The tactical issue arises when the defence has not raised nor wanted to raise the defence of
provocation, yet in the course of the trial evidence has emerged that sufficiently raises the
possibility that the defendant was provoked.
What happens in such a situation? It is fraught with danger for the defence. Why? The
defence might not have raised it because it believes there is a good chance of a complete acquittal
on the basis, for example, that the prosecution cannot prove the mens rea of murder. Giving
the jury the chance to consider provocation will thus raise the spectre of a verdict of guilty of
manslaughter, rather than not guilty of murder. This spectre is an ever-present possibility because
the courts have held that where the evidence is sufficient to raise the issue of provocation, the
judge must put the issue to the jury—irrespective of whether the defence wanted to, or did in fact
raise it: Van Den Hoek v The Queen (1986) 161 CLR 158 at 162.
Questions
4.1 Must an intention to kill or cause grievous bodily harm or recklessness as to causing
death or grievous bodily harm be proven before there is reliance on the defence of
provocation?
4.2 What tactical difficulties will the prosecution and defence encounter where provocation
could be an issue in the trial?
4.3 Who bears the legal and evidential burdens, and in relation to what issues?
4.2.3 Defining the defence

The defence of provocation is a creature of the common law. It has a long history going as far
back as the seventeenth century. The doctrine emerged from a multiplicity of rulings over a long
period during which the law of homicide underwent a considerable transformation. For judicial
consideration of the history, see Parker v The Queen (1963) 111 CLR 610 (per Windeyer J). An
excellent history of the doctrine is found in J Horder, Provocation and Responsibility (1992).
Provocation was developed as a part of the law’s concession to human frailty at a time when the
penalty for murder was death. As Tindall J noted in R v Hayward (1836) 6 C & P 157 at 159,
the doctrine evolved out of ‘compassion to human infirmity’.
For the purposes of orientation, a general and often cited definition of the doctrine is
provided by King CJ in the case of R v The Queen (1981) 28 SASR 321 at 321–2:
The killing of one person by another with intention to kill or do serious bodily harm is
murder. Such a killing may, however, be reduced to manslaughter if the killing results
from a sudden and temporary loss of self-control on the part of the killer which is brought
about by acts or words of the deceased amounting in law to provocation. To amount to
provocation the acts or words must satisfy the following tests: (1) they must be done or said
by the deceased to or in the presence of the killer; (2) they must have caused in the killer
a sudden and temporary loss of self-control rendering the killer so subject to passion as to
make him for the moment not the master of his mind; (3) they must be of such character as
might cause an ordinary person to lose his self-control to such extent as to act as the killer
has acted.
Each of the three elements of the definition gives rise to further issues that will be considered
in this chapter. These elements will be discussed in the order in which they appear in the above
quotation. The first element may be referred to as the conduct element of the defence. The second
and third elements may be referred to as the mental elements because they relate to the mentality
of the defendant. The second element requires an assessment of the defendant’s mentality
according to a subjective standard, while the third element requires an assessment of his or her
mentality according to what is an essentially objective standard.
Questions
4.4 If the defence of provocation can be made out, should there be a complete acquittal?
4.5 If the defence of provocation can be made out, should there instead be a resulting
murder conviction with provocation factored in only as a mitigating circumstance for
sentencing purposes?
4.6 For what types of persons do you think the doctrine of provocation was intended?
4.2.3.1 The conduct element

Not all conduct, of course, is provocative, nor does all provocative conduct amount to
provocation for the purposes of the legal doctrine of provocation as a defence. The question,
therefore, is what type of provocative conduct amounts to provocation for the purposes of the
defence? In addressing this question, a number of discrete responses can be discerned in the
case law: the judge and jury must have regard to all relevant circumstances; the conduct may be
either non-verbal actions, words, or a combination thereof; the conduct need not be directed at
or done with the purpose of provoking the defendant; and the provocative conduct must take
place in the presence of the defendant. In this section, we elaborate on each of these issues.
4.2.3.2 Regard to all the circumstances

At a minimum, the defence requires some conduct on the part of the deceased that causes the
defendant to resort to deadly force. The conduct does not need to be unlawful. This conduct
can consist of a single incident or many such incidents, although there is often a final incident
that pushes the defendant ‘over the edge’ so to speak, which is often referred to as the ‘trigger
incident’. There is, however, some elasticity in the process of identifying the trigger incident.
A prosecutor will naturally seek to limit the availability of the defence by narrowly construing
it as requiring the defendant to isolate and identify a single provocative act on the part of the
deceased that is proximate enough to the defendant’s lethal reaction to ground the second and
third elements of the defence: namely, the mental elements (subjective and objective) alluded to
earlier. As you are about to discover, this type of construction has not been warmly received by
the judiciary or the legislative bodies that have now enacted statutory versions of the defence.
To the contrary, the tendency in recent years has been to expand the scope of the conduct that
will amount to legally provocative conduct. In particular, the provocative conduct need not be
limited to any single or isolated act that is of such a nature as might have induced an ordinary
person to kill. Rather, the judge and jury must have regard to all the provocative conduct on the
part of the deceased, for what counts is the cumulative effect of the conduct.
The rule requiring the judge and jury to have regard to all the provocative conduct and
its cumulative effect has existed for decades in Australia. The practices of the courts, however,
seemed at times to be at odds with the rule. There are many explanations for this departure from
the rule in practice. One would be to say that although the rule embodied neutrality, it did not
prevent the judges and juries from acting according to their prejudices. Another would be to
suggest that much of the practices of trial courts are not determined by the legal rules of the
substantive criminal law, but by the rituals and etiquette of court practices that lend credibility
to some rules and a lack thereof to others. For the most part, however, this rule has been followed
since the judgments of the High Court of Australia and Privy Council in Parker v The Queen
(1963) 111 CLR 610 and Parker v The Queen (1964) 111 CLR 665 respectively.
Parker v The Queen

(1963) 111 CLR 610
Judgment
Dixon CJ: This is an application for special leave to appeal from an order made on 24 November 1961
by the Full Court of the Supreme Court of New South Wales sitting as a Court of Criminal Appeal, whereby
an appeal by the appellant from a conviction of murder was dismissed.
Part of the complaint of the applicant against his conviction is that a question of provocation was not
submitted to the jury and therefore was not considered by the tribunal of fact.
It goes without saying that a distinction must be maintained between the manner in which the court
examines the evidence for the purpose of ascertaining whether a question of provocation should have
been submitted to the jury and the manner in which the court examines the evidence in considering
whether there is material sufficient to support the jury’s conclusion that the applicant was guilty of
homicide amounting, if considered independently of any possible extenuation such as provocation, to
murder. Compare the statement of Lord Devlin for the Privy Council in Lee Chun-Chuen v R [1963] AC
220 at 229–30, [1963] 1 All ER 73 at 77–8 (1962). It was for the jury to decide what weight they would
give to the evidence before them as it affected this primary question and since they have decided it
against the applicant it is enough to sustain their conclusion so considered if contained in the evidence
there is enough reasonably to lead to that conclusion, even if another view might be formed of this or that
part of the evidentiary material. But on the question of provocation there has been no decision of the jury
and the question is whether they ought to have been allowed to decide it. Perhaps it may be said that
the question is to be considered just as if the jury had decided it in favour of the prisoner and, by some
freak of procedure, the question arose whether that decision could be sustained. The point is that the
issue before the Court of Criminal Appeal was whether by any possibility the jury might not unreasonably
discover in the material before them enough to enable them to find a case of provocation. The selection
and evaluation of the facts and factors upon which that conclusion would be based would be for the jury,
and it would not matter what qualifying or opposing considerations the court might see: they would not
matter because the question was, ex hypothesi, one for the jury and not for the court.
The facts material to the homicide may be stated very shortly. The indictment alleged the murder of
one Daniel Christopher Bingham, known as Daniel Kelly, at Jerilderie on 16 October 1960. Jerilderie is
in the plain country in the Southern Riverina about 40 miles north of the Victorian border. There was an
outstation in the district called New Camp, consisting of a two-roomed dwelling probably of galvanised
iron. There a stationhand named Noel Craig and his wife and children had been living for some weeks.
Some distance away at New Camp there were shearers’ quarters and a shearing shed and there some
four months earlier Craig had found that Dan Kelly, as it is convenient to call the deceased, had taken
up his quarters. Some time in the earlier part of September, as it would seem from Craig’s evidence, the
prisoner, his wife, and six children arrived in a car at New Camp. The prisoner’s wife was Craig’s sister
and was of Maori extraction. They had been married for ten years but Craig had not seen them for the
last seven years before they drove up to the outstation with their six children in their car. Parker said he
wished to look around for a job and asked could they stay. He and his wife and their youngest child slept
in the car and the other five children slept in the Craigs’ house. Shortly after the Parkers came, Craig
went in search of a sheep to kill and met Dan Kelly. Craig was accompanied by Parker and his wife and
a nephew of Craig. Dan Kelly asked them to have a cup of tea at the shearers’ huts and they all took tea
in the kitchen. In the ensuing week Dan Kelly visited the house at New Camp on five or six evenings and
once or twice in the daytime. There were various purposes for the visits by day and in the evenings cards
were played. The play went on so late on one night during the week that Dan Kelly was given a stretcher
in the kitchen and slept there. On Friday (which was 13 October 1960) Dan Kelly came over early in the
afternoon during the hours he might have been expected to be at work. Some comment was made and
Parker said to Craig that he was only coming over to hang about Joan, Parker’s wife, and asked if Craig
had noticed. A little later Parker again said that Dan Kelly was only ‘hanging around Joan’. Craig says he
made no answer. On Sunday morning (16 October) about 10.30, Craig and Parker were about to set out
for a neighbouring station to borrow some tools. Dan Kelly was to go with them, but after getting in the car
he got out of the car to stay behind. Perhaps Kelly had come over that morning. Perhaps he had slept the
night there. Parker commented to Craig that Kelly was still hanging around Joan. He called his wife Joan
over to the car, according to Craig, and told her to go inside and do some work so that Dan Kelly would not
hang around. Craig said that he and Parker were absent until about 1.05 p.m. They found Mrs Craig and
her children, Mrs Parker and her children and Dan Kelly on their way to a dam about 300 yards distant to
swim. Parker whistled to his wife and called out to her, speaking Maori. What he said was not translated,
though no reason appears for thinking that her brother, Craig, did not understand it. However, she turned
round and stood while Parker drove over to her to talk to her. Craig told his wife to come and get his meal
and began to use the tools he had obtained and to do some work. Kelly came to see what he was doing
and then went into the house. About a quarter of an hour later Craig himself returned to the house and
there he heard Parker say to Dan Kelly: ‘Why can’t you find a single girl? Have you no principles?’ Kelly
replied: ‘I lost my principles years ago’. According to the prisoner, during this conversation he referred
to his wife being part Maori and thereupon Kelly made a response implying the worst intentions and of
a kind most insulting to her. Parker returned too from talking to his wife in order to speak to Craig. She
apparently had gone to the dam to swim, whence with the rest of the party with her she returned an hour
later. Parker said to Craig: ‘I think there is something on between Joan and Dan Kelly’ and asked Craig:
‘Don’t you think so?’ Craig replied: ‘It appears so’. An hour and twenty minutes later Parker called Craig
from the job he had returned to do. Craig went to him at his car and Parker said to him: ‘She is leaving
with Dan and if she does I will get him. There are a lot of dark nights and one of these dark nights I will
be waiting for him.’ Parker was a very small man and Kelly a big one and it seems that there had been
some talk already of the futility of Parker attempting to deal with Kelly with his hands. A few minutes later
he called Craig over to speak to him with his wife and children. He told them that he had got a job at
Albury. Would she go with them there? The children said that they would like to go there. Craig says that
Mrs Parker said: ‘It’s no good Frank’, and walked away. Craig said that Parker already asked him to put
Kelly off the place. Craig said that he would tell Kelly to go and in fact he did tell him to go. Parker got out
of his car and told Kelly to get going while he was lucky: he said that if his, Parker’s, wife was going with
him he had better go up to the gate and wait for her; he (Parker) would escort her to the gate. Next Craig
saw Parker take a broken rod from the old Ford at which Craig had been working to his, Parker’s, car, get
out of his tool box and cut the end off. He, Craig, saw him proceed to file it: his evidence is that he asked
him what he was doing, that Parker answered, ‘Nothing’; he wrenched it from Parker saying, ‘You had just
better give that to me’, and that he had better pull himself together, he had gone off the deep end, and
that he had the children to think of. Parker, he said, replied: ‘I won’t be here to look after the kids—Joan
will—and that other bastard will not be either.’ He then seemed to quieten down a little but went down
to some trees and there wept and sobbed. He came back for a jacket and returned to the trees, sobbing.
Somewhere in this colloquy Parker said to Craig: ‘It is no good me fighting him, he would beat me by hand,
he is too big, he fights too well’.
In the meantime, Mrs Parker went off, with Craig’s niece and nephew, in the direction of the road,
where Kelly had already gone. They helped with three bags. It was the opposite direction that Parker
took to weep in the trees or bushes. According to Craig’s evidence it was after the three had gone in the
same direction as Dan Kelly that Parker went down to the trees or bushes and cried. After about 15 or
20 minutes Parker came back and asked for help in starting the car. It would seem that a track starting in
the opposite direction from the vicinity of the shed or hut came out on the same road, which was called
the Goolgumbla Road. The prisoner may have taken that track or road. Jerilderie lay to the south along
Goolgumbla Road and the couple on the bicycle went south. The evidence seemed to show, in any case,
that the prisoner left in the car about five minutes later and followed them. In a more general description
of Parker’s conduct before his wife left, Craig said that he seemed dazed, that he followed her about and
seemed to be begging her (scil. to stay). Craig said that Parker was emotionally very upset, that he was
deeply in love with his wife and children and took great pride in them. There was a ‘knuckle duster’ in
Parker’s car and both Parker and Dan Kelly habitually carried sheath knives. According to the evidence
of a niece and nephew the three cases or pieces of luggage were carried up towards but not quite to
the gate to the road. Then Joan Parker and Dan Kelly got on his bicycle and left. She sat in front of him,
sideways, on the bar between the seat and the handle bars. She faced left. The prisoner overtook them.
They dismounted. In a statement which police took from the prisoner at the Jerilderie Police Station on
the night of 16 October 1960 and which the notation says he signed at 11.30 p.m., the following account
appears of what occurred from this point:
I started the car up and drove up the road: getting up the road I seen Kelly doubling my wife on his
push bike and as I got up closer they both got off the bike then stood alongside the road, he was
standing on the gravel and the wife was standing on the grass. I aimed the front left hand mudguard
at him and the bike; after I hit him I swerved and put my foot down onto the accelerator as I was going
off the road, and I went through a greasy boggy patch and then swerved up over the wrong side of
the road with the nose of my car facing towards the table drain. I got out of the car and I looked for
the wife and at first I couldn’t see her and when I first seen her she was laying in the table drain face
down and I thought that I had killed her. I done my block, lost my temper and walked to where Kelly
was and started hitting him, then I heard the wife moan and struggling in the water. I left Kelly and
pulled the wife out of the table drain and she was in agony then. It flashed through my mind that if it
had not been for Kelly I wouldn’t have injured the wife, I pulled out my knife that I had in my belt and
went back and stabbed him in the throat. After I done that the wife struggled and tried to sit herself
up on the bank. I pulled her up further and told her to lay still and from then I went over to Johnny
Littles’ through the paddock and when I got to Johnny Littles’ he was not there.
The medical evidence is to the effect that the Government Medical Officer who, with the police,
reached the scene of the homicide about 4 p.m. on 16 October 1960, found Dan Kelly lying dead on his
right side on the western side of the roadway across a table drain. Both his legs were broken below the
knees. He had numerous wounds on the face, throat and neck on the exposed part of the body. There
were a great number of wounds on the face (the ‘knuckle duster’ might have been responsible) but the
only two of significance were one on each side of the neck. On the right side there was an incised wound
about half an inch long made by a sharp instrument which had penetrated the larynx but had missed
large blood vessels. There was a wound on the left side of the neck which had penetrated at a different
angle and had severed the internal jugular vein. There was a great deal of blood. The knife had penetrated
further into the muscles at the base of the tongue, deeply. Both bones of the legs were broken at about
14 inches above the ground. All this was borne out by the evidence of a post-mortem. Death might be
attributed to the combined wounds or to the wounds in the neck, particularly the last one, and the loss
of blood.
The prisoner showed great remorse and anxiety over his wife and maintained that he did not mean
the car to hit her. At the trial he took the position that he set out from New Camp to overtake them and
get her back to the children and him without thought of injuring Kelly, at all events beyond having a fight
or the like with him; and that after driving towards them as he drew closer and closer to them standing
there ‘everything seemed to go black’ and he lost control. The description he gave in his evidence in chief
has already been set out.
It is convenient to take from the report of the learned judge who presided at the trial a summary of
some evidence and of the course taken.
Eventually, Mrs Parker told her husband that she was running away with Kelly. The evidence indicated
that Parker was greatly upset and pleaded with her not to go. Later in the day Mrs Parker left with
Kelly on his bicycle. Parker followed in his car and drove it at high speed at Kelly where he stood
with his bicycle at the edge of the road. The impact broke both Kelly’s legs and may have rendered
him unconscious. Parker then attacked him, where he lay, with a knuckle duster which he kept in
his car, and finally stabbed him repeatedly with a knife which he always wore. The circumstances
of the killing were not in dispute. The evidence was that he then broke into a nearby house and
telephoned the police. He was given a lift by Mr Jukes who drove him to the police station. Mr Jukes
and the police officers gave evidence that Parker told them that he had intended to kill Kelly. In the
witness box, Parker stated that he had not intended to kill Kelly, but only to bring his wife back to
their children. It was argued on his behalf that the attacks were unpremeditated and instantaneous
reactions on his part to an emotional crisis of overwhelming intensity. The jury were directed that, in
the circumstances of this case, provocation was not available as a defence.
… I pass to what appears to me to be the crux of the case. The question upon which the fate of this
application depends is, I think, whether it was right to withdraw from the jury the possibility of holding the
homicide by the prisoner to be manslaughter and not murder because done under provocation of a kind
which in the circumstances reduced, or might be regarded as reducing, what otherwise might be murder
to manslaughter. … It seems to have been taken as proved, if not admitted, that he attacked Dan Kelly
while lying on the ground and that after using the knuckle duster he drove his knife into each side of
his neck or throat, death being the result, on the footing he killed him so that he committed the crime of
murder, unless by something exterior to the killing or leading up to it the homicide was justified or reduced
to manslaughter. Nothing seems to me to have been of more importance at the stage when the case was
in the Court of Criminal Appeal than a consideration of the possibility of a jury finding manslaughter on
the ground of provocation. On the application before this Court the Solicitor-General for New South Wales
appeared for the Crown and he informed us that he conceded that there were substantial arguments
that could be put for the applicant that provocation should have been left to the jury and that he would
not oppose special leave being granted limited to that ground. When the learned Solicitor-General came
to argue the application for the Crown he went somewhat further. After saying that he understood that
before the Court of Criminal Appeal the prosecutor argued that the learned judge was right in withdrawing
the issue from the jury, he went on to say that so far he (the Solicitor-General) had not said more than
that there are substantial arguments that could be put for the appellant. The learned Solicitor-General
proceeded:
If the Court was asking me what I would submit, I would be inclined to say that on the whole I would
submit that the issue ought to have been left to the jury, but there are some difficult questions, and
that is a rather hesitant reply.
… But it had long been recognised that a homicide might be ‘reduced’, that is extenuated, to
manslaughter if it was the result of a provocation which the law would accept as sufficient extenuation
to warrant the crime being treated as manslaughter. East (1 PC 238) after enumerating a number of
examples says:
In all the instances above enumerated the party killing is supposed to have taken all advantages in
the heat of blood over the person slain; but to have received such a provocation as the law presumes
might in human frailty heat the blood to a proportionable degree of resentment, and keep it boiling
to the moment of the fact: so that the party may rather be considered as having acted under a
temporary suspension of reason, than from any deliberate malicious motive. And it has been shown,
that in the case of a legal provocation, strictly so considered, this heat will extenuate the guilt of the
party acting under its adequate influence, even though he made use of a deadly weapon. It has also
been more than once observed, that the punishment inflicted upon any sort of provocation, whether
in its nature admitted by law to be such, or taken only as explanatory of the act done, must not greatly
exceed the offence received. This has been urged with caution; because in those cases where the
mercy of the law interposes in pity to human frailty, it will not try the culprit by the rigid rule of justice
and examine with the most scrupulous nicety whether he cut off the exact pound of flesh.
Now it is obvious that the manner of life of the period and the conceptions and moral relations which might
point of causality be responsible for homicide were in many respects remote from those of today, Sir WS
Holdsworth observes (8 History of English Law, p 302):
The readiness with which all classes resorted to lethal weapons to assert their rights, or to avenge
any insult real or fancied, gave abundant opportunity for elaborating the distinctions between the
various kinds of homicide, and, in particular, the distinction between murder and manslaughter.
Holdsworth sets out two or three examples from the sixteenth and seventeenth centuries and goes on:
On the question what would amount to a provocation, it was ruled in 1666 that mere words would
not be an adequate provocation for homicide; ‘but if upon ill words both parties suddenly fight, and
one kill the other, this is but manslaughter, for it is a combat between two upon sudden heat’. But
other cases show that this question gave rise to many difficult questions and divisions of judicial
opinion. …
Had Parker found Dan Kelly and his wife in adultery and then and there killed Kelly with his knife it
seems clear enough that the jury might have held that he acted on sufficient provocation and that the
crime was manslaughter only. There would in such a case be no delay in which the blood might cool and
cease ‘his safer guides to rule’. In the present case Parker had been engaged in an emotional attempt to
prevent Kelly taking his wife away with him: it did not cease, the pursuit was but part of it. He had been
insulted, taunted, he had listened to his children’s prayers to his wife not to depart with his adulterous
rival. He drove after them as they left. So far from there being an interval for cooling, time was occupied
in events, speech on the part of Dan Kelly and also of his wife, and the mounting certainty that Kelly
would take his wife from him. It is not for the court to find the facts but for the jury, and certainly on the
evidence the inference was open to them that after a persistent emotional effort to prevent the success
of Kelly’s attempt to deprive him of his wife and his children of her care, and after passionate appeals
to Kelly and Joan Parker, met by Kelly with insults, the prisoner armed himself and followed them with
no intermission or interval and in a completely distraught condition. We are not living in the conditions
of the sixteenth, seventeenth, or eighteenth century. According to the standards governing our society in
the later nineteenth century and the twentieth century, the succession of events and the conduct of Dan
Kelly brought a very strong provocation to an emotional nature, a provocation still in actual operation when
Parker came upon Dan Kelly with his wife. That at all events is a view which the jury were entitled to adopt.
They might, if properly directed, have considered that (again to use Othello’s words) ‘passion having (his)
best judgement collied assayed to lead the way’.
Much difficulty about provocation appears to have arisen from the dicta contained in the speech of
Viscount Simon in Holmes v Director of Public Prosecutions [1946] AC 588, particularly at 598, [1946] 2
All ER 124 at 127 (HL), upon which much of the obiter dicta in R v Scriva (No 2) [1951] VLR 298; [1951]
ALR 733 appears to rest. When Viscount Simon says: ‘… where the provocation inspires an actual
intention to kill, … or to inflict grievous bodily harm, the doctrine that provocation may reduce murder
to manslaughter seldom applies’, I should have thought that the use of the word ‘seldom’ implied that
sometimes the doctrine nevertheless did apply. But in Lee Chun-Chuen v R [1963] AC 220 at 227; [1963]
1 All ER 73 at 76 (1962), Lord Devlin (speaking for the Privy Council) said:
It is plain that Viscount Simon must have meant the word ‘actual’ to have a limiting effect and that
he had in mind some particular category of intention. He cannot have meant that any sort of intention
to kill or cause grievous bodily harm was generally incompatible with manslaughter because that
would eliminate provocation as a line of defence. In the present case, for example, earlier in his
summing-up the judge properly directed the jury that they could not find murder unless there was an
intent to kill or cause grievous bodily harm. By telling them that if that intent was present, they could
not find manslaughter, he was telling them that they must find murder or nothing and so in effect
excluding the issue of provocation.
In Attorney-General for Ceylon v Perera [1953] AC 200 at 206, Lord Goddard, for the Privy Council,
had said:
The defence of provocation may arise where a person does intend to kill or inflict grievous bodily
harm but his intention to do so arises from sudden passion involving loss of self-control by reason of
provocation. An illustration is to be found in the case of a man finding his wife in the act of adultery
who kills her or her paramour, and the law has always regarded that, although an intentional act,
as amounting only to manslaughter by reason of the provocation received, although no doubt the
accused person intended to cause death or grievous bodily harm.
In Lee Chun-Chuen’s case [1963] AC 220 at 228; [1963] 1 All ER 73 at 77 (1962), Lord Devlin says this:
Their Lordships think it right to reaffirm the law as stated by Lord Goddard and to do so with special
reference to Lord Simon’s dictum, to which Lord Goddard did not advert. Lord Goddard’s statement
can be reconciled with the dictum only if the word ‘actual’ in the dictum is treated as the distinguishing
feature. Their Lordships do not think it necessary to interpret the dictum any further than to say that
it cannot be read as meaning that the proof of any sort of intent to kill negatives provocation. Lord
Simon was evidently concerning himself with the theoretical relationship of provocation to malice
and in particular with the notion that where there is malice there is murder; and he may have had it
in mind that actual intent in the sense of premeditation must generally negative provocation. Their
Lordships do not think that this part of his speech can safely be taken as a basis for a direction to a
jury, since even with the most careful explanation it is liable to be misunderstood. Where, as in the
present case, the substance of it was given to the jury without any explanation, their Lordships agree
with the Supreme Court that it amounts to a serious misdirection in law.
There has been ever-recurring tendency to treat ‘provocation’ as merely something inconsistent with
and therefore negativing malice aforethought, and no doubt that can be seen in the discussion of the
reference by Viscount Simon to intention. In the constant use in definitions or descriptions of ‘provocation’
of the word ‘sudden’ the same desire appears to exclude cases of premeditation. On the facts of the
present case a jury might readily have taken the view that no premeditated intention had actuated the
homicide, that the prisoner had responded to the sustained mental torture by the deceased and his own
wife until all self-control broke. In the view of Lord Devlin (for the Privy Council):
If there was some material on which a jury acting reasonably could have found manslaughter, it
cannot be said with certainty that they would have found murder. It is not, of course, for the defence
to make out a prima facie case of provocation. It is for the prosecution to prove that the killing was
unprovoked. All that the defence need to do is to point to material which could induce a reasonable
doubt (ibid [1963] AC at 229; [1963] 1 All ER at 77).
The jury might find all the elements of suddenness in the unalleviated pressure and the breaking
down of control as the prisoner came to the end of his pursuit of the man taking away his wife. Unless
the special provisions of the statute law of New South Wales require a different conclusion, I would treat
the case as one in which the prisoner was entitled to a direction authorising the jury, if they so chose, to
find manslaughter and not murder.
In Holmes v Director of Public Prosecutions [1946] AC 588; [1946] 2 All ER 124 (HL), it was held
that provocative words without action did not afford sufficient provocation to reduce to manslaughter
a homicide that otherwise amounted to murder. This was not laid down absolutely, but subject to an
explanation of what was meant by ‘mere words’ and an allowance of the exclusion of cases where there
are circumstances of a most extreme and exceptional character: apparently what was in contemplation
were words of a ‘violently provocative’ nature. It seems that considered as a general or abstract question,
there had been varying views of dicta expressed. In New South Wales an attempt to settle the question
by statute was made and, by the Criminal Law Amendment Act 1883 s 370, a provision was enacted in
the following terms:
Where on the trial of a person for murder it appears that the act causing death was induced by the
use of grossly insulting language or gestures on the part of the deceased the jury may consider the
provocation offered as in the case of provocation by a blow. And where on any such trial it appears
that the act or omission causing death does not amount to murder but does amount to manslaughter
the jury may acquit the accused of murder and find him guilty of manslaughter and he shall be
liable to punishment accordingly. Provided always that in no case shall the crime be reduced from
murder to manslaughter by reason of provocation unless the jury find that (a) such provocation was
not intentionally caused by any word or act on the part of the accused (b) that it was reasonably
calculated to deprive an ordinary person of the power of self control and did in fact deprive the
accused of such power (c) and that the act causing death was done suddenly in the heat of passion
caused by such provocation without intent to take life.
It will be seen that the provision includes a statement of what one would suppose to have been the
long accepted rule that a prisoner might upon an indictment of murder be convicted of manslaughter:
1 Chitty’s Criminal Law (1816), p 638. Apart from a desire to clear up the doubt as to mere words as
provocation it is not easy to see why it was framed. In the Crimes Act 1900 s 23 represents the material
parts of s 370. The great importance of the provision in the present case lies in the concluding words
‘without intent to take life’. When the prisoner thrust his knife into each side of Dan Kelly’s throat the
absence of all intention of every kind to take life might be too hard to credit. But having regard to the
observations by Lord Devlin already quoted and upon general principles of interpretation it seems proper
to understand the words in question as limited to premeditated intention. Further, the following account
of the ‘modern law’ of the ‘burden of proof’ in relation to the subject, given by Lord Devlin in Lee Chun-
Chuen’s case [1963] AC 220 at 229; [1963] 1 All ER 73 at 77 (1962), must be kept in mind:
It is not, of course, for the defence to make out a prima facie case of provocation. It is for the
prosecution to prove that the killing was unprovoked. All that the defence need do is to point to
material which could induce reasonable doubt.
This of course is qualified in application by the quotation from Lord Simon which follows. But it leaves it as
a matter for the jury: cf the discussion in Vallance v R (1961) 108 CLR 56; [1963] ALR 461.
In my opinion, the prisoner’s case on provocation should have been left to the jury and the conviction
of murder cannot stand …
I think that Parker should be tried again: that is unless it were thought better in all the circumstances
to substitute a conviction of manslaughter for that of murder.
Taylor and Owen JJ: … we are unable to perceive any reason why we should strain to give to the proviso
(to s 23) any meaning other than that which upon its face it so clearly bears.
On this view of the section the learned trial judge, in our opinion, acted correctly in withdrawing
the issue of provocation from the jury. The reason why we hold this opinion may be stated shortly. The
applicant followed Kelly and his wife either with the intention of killing the former or with no such intent.
If he did follow them with that intent that is the end of the matter. It is, we think, not unfair to say the
evidence that he did follow with such an intent is almost overwhelming. Indeed, the evidence is that
the applicant so declared on more than one occasion and this evidence, so far as we can see, was not
disputed. But in evidence at the trial he said that when he followed them he merely did so in order to bring
his wife back and that he had no intention of killing Kelly at that time. If the jury were at liberty so to find
then, whatever may have been the applicant’s condition earlier in the day, he was not, when he set out to
follow them, deprived of the power of self-control in any relevant sense. It may, perhaps, be said that the
sight of his wife and Kelly together on the road was just another circumstance in the sequence of events
relied upon as provocation and that, in any case, it was not the running down of Kelly which caused his
death. On the applicant’s evidence at the trial it was the sight of his injured wife, whom he, at first, thought
had been killed, that determined him to kill Kelly. This is the alternative view which emerges from his
evidence at the trial and on neither view was there a case of provocation to go to the jury.
There is, we think, a further reason why it was proper that this issue should not have been left for
the jury’s consideration. It has been said that the proviso is silent upon the question whether there must
be some reasonable relationship between the provocation and the act or acts causing death. This is so in
the sense that no express mention is made of this factor. But, surely, when the proviso requires that the
provocation must be such that it was reasonably calculated to deprive an ordinary person of the power
of self-control, and did in fact deprive the accused of such power, it is speaking of loss of the power of
self-control in relation to the act or acts causing death. In other words, the question is not whether there
was some loss of the power of self-control, but whether the loss of self-control was of such extent and
degree as to provide an explanation for, or to constitute, in some measure, an excuse for the acts causing
death. And, of course, the provocation must have been of such a character as was calculated to deprive
an ordinary person of the power of self-control to that extent. In our view, the sequence and nature of
the acts which caused Kelly’s death were such that it was not open to a jury to find for the applicant on
either of these matters … Accordingly the application for special leave should, in our opinion, be refused.
[Menzies J delivered a separate judgment agreeing, in general, with the views expressed in the joint
judgment of Taylor and Owen JJ and with their conclusion that special leave to appeal should be refused.
Windeyer J delivered a separate dissenting judgment agreeing in substance with the views of Dixon CJ.
Special leave to appeal refused. The accused then sought special leave to appeal to the Privy Council.]
Parker v The Queen

(1964) 111 CLR 665
(Judicial Committee of the Privy Council)
Judgment
Lord Morris of Borth-y-Gest (speaking for a Board consisting of himself, Viscount Radcliffe, and
Lords Evershed, Hodson, and Pearce): The appellant made application to the High Court of Australia for
special leave to appeal. The High Court of Australia after hearing full argument, by a majority, decided to
refuse the application. Their reasons for judgment were given on 24 May 1963. Thereafter by order dated
23 October 1963 special leave to appeal to Her Majesty in Council was granted …
After the conclusion of the hearing before the Board their Lordships intimated that for the reasons
which would be later be stated in their judgment their Lordships would humbly advise Her Majesty that
the appeal should be allowed, that the decisions below should be set aside and that the case should
be remitted to the Court of Criminal Appeal of New South Wales with a direction that they should quash
the appellant’s conviction for murder and either enter a verdict of manslaughter and impose sentence
accordingly or order a new trial, whichever course they intended proper in the interests of justice in the
existing circumstances.
The direct or immediate question which is raised in the appeal is whether the issue of provocation
should have been left to the jury: involved in this are the questions of general importance as to the
effect of s 23 of the Crimes Act 1900 and as to the direction to be given to a jury in New South Wales if
provocation is left to them.
Section 23 is a re-enactment of s 370 of the Act of 1883. There can be no doubt that before
1883 it was accepted law that in certain circumstances a killing which followed upon provocation was
manslaughter and not murder. The classical definition of murder recorded in Coke, 3 Inst 47, included the
words ‘unlawfully killeth … with malice aforethought, either express by the party or implied by law’. …
It would seem therefore that there was ‘malice forethought’ when there was premeditation. There could
however be the necessary malice to sustain a charge of murder if there was a deliberate killing ‘without
any provocation’. In the notable case of R v Mawgridge Kel 119, 84 ER 1107 (QB 1706), where the charge
was one of murder the jury found a special verdict and prayed the advice of the court whether on their
findings of fact the case was one of murder or of manslaughter. Though before the day appointed for the
resolution of the court the prisoner had escaped, the opinion of the judges (which was that the prisoner
was guilty of murder) was given in a learned judgment. In the course of it was said:
Therefore when a man shall without any provocation stab another with a dagger or knock out his
brains with a bottle this is express malice for he designedly and purposely did him the mischief.
The judgment proceeded to consider:
… what is in law such a provocation to a man to commit an act of violence upon another, whereby
he shall deprive him of his life, so as to extenuate the fact and make it to be a manslaughter only.
Examples were given of circumstances which were ‘always allowed to be sufficient provocations’.
The cited examples would seem to include cases where there may have been or must have been an
intention to kill.
In Maddy’s case, 1 Vent 158, 86 ER 108 (KB 1671) where the charge was that of murdering
one Mavers the jury found a special verdict to the effect that upon coming into his house Maddy had
found Mavers in the act of adultery with his (Maddy’s) wife and had immediately taken up a stool
and struck Mavers on the head so that he died instantly. The jury found that Maddy had no ‘precedent
malice’ towards Mavers. The court held that the case was one of manslaughter ‘the provocation being
exceedingly great and found that there was no precedent malice’. It would seem to be clear that in
employing the words ‘precedent malice’ it was not being suggested that there was no intention to kill or to
cause grievous bodily harm but rather that the accused had had no such intention prior to the time when
he suddenly discovered Mavers in the act of adultery.
Many decided cases could be cited which showed in the period prior to 1883, that where provocation
existed a crime could be reduced from murder to manslaughter even though the provocative act induced
an intention to kill. The provocative act had to be such as was likely to arouse passion in the breast of a
reasonable man and which did in fact arouse it in the accused so that his conduct resulted from his being
suddenly though temporarily deprived of his power of self-control and rendered not master of his mind.
To be attacked by blows might induce a killing which constituted the crime on manslaughter rather than
murder. Insulting words, on the other hand, which led to a killing, were not sufficient to lessen the crime
from one of murder to one of manslaughter (see eg, R v Taylor 5 Burr 2793, 98 ER 466 (KB 1771)).
Without referring more elaborately to authority their Lordships consider that the background against
which the legislation of 1883 has to be considered is that a killing which took place when provocation
caused the power of self-control to be overwhelmed by the heat of passion could constitute the crime of
manslaughter rather than that of murder even though there might be an actual intention to kill produced by
the provocation. Section 370 of the Act of 1883 effected certain changes. A jury could thereafter hold that
if an act causing death was induced by the use of grossly insulting language or gestures on the part of the
deceased, the crime might be manslaughter rather than murder for the reason that the grossly insulting
language or gestures could be held to have provoked just as a blow could be held to have provoked. The
next part of the section enacted what is now sub-s 2 of s 23 of the Crimes Act. That sub-section is not
in its application limited to cases where provocation results from languages or gestures rather than from
a blow or blows: the sub-section refers to any trial of a person for murder. Nor is the proviso limited to
any particular class of case where provocation comes in question. It applies whenever the facts warrant
an examination by the jury of the question whether provocation could ‘reduce’ a crime from murder to
manslaughter. The proviso does not purport to define provocation nor to prescribe or categorise every one
of the elements of provocation. It states that ‘in no case’ can there be the reducing fact of provocation
unless a jury find three things. They must find that the accused did not himself engineer the provocation
or in other words that is ‘was not intentionally caused by any word or act’ of his. Next they must find that
the provocation was reasonably calculated to deprive an ordinary person of the power of self-control and
that it did in fact so deprive the accused. Thirdly, they must find that the act which caused the death ‘was
done suddenly in the heat of passion caused by such provocation, without intent to take life’. It is the last
five words which have occasioned difficulty and a difference of judicial opinion.
It is clear that if (in a case where no question of provocation arises) the act of an accused person
which causes death is done with intent to inflict grievous bodily harm, though not with intent to kill,
the crime of murder is committed. (See s 18 of the Crimes Act 1900 ) In dealing with provocation s 23
does not refer to an intent to inflict grievous bodily harm; it refers to an absence of ‘intent to take life’.
It would seem therefore that if the words of s 23 are construed according to the strictest possible literal
interpretation then provocation could reduce the crime of killing from murder to manslaughter if the loss
of self-control caused by the provocation induced an intent to cause grievous bodily harm but not if it
induced an intent to take life. This would be a surprising distinction and also it would impose upon a jury
the very difficult task of assessing with some precision the quality or quantity of the intent which, at a
particular moment, actuated a man who, ex hypothesi, was deprived of the power of self-control.
If the most limited and most literal construction of the words of the proviso to s 23 is adopted it seems
to their Lordships that even on that basis the issue of provocation ought not in the present case to have
been withdrawn from the jury. On that basis it was open to the jury to say that though the act causing
death was done with intent to cause grievous bodily harm it was not done with intent to take life. Their
Lordships have referred to the evidence which was given. It was for the jury to determine what was the
‘act causing death’: it was for them to determine whether it was done suddenly in the heat of passion
caused by provocation and without intent to take life. It was for them to consider the nature and duration
of the provocation and whether it was reasonably calculated to deprive an ordinary person of the power of
self-control and whether the appellant was so deprived and whether he continued to be so deprived at the
time that he committed the act causing the death of the deceased. The jury might well have taken the view
that the appellant was tormented beyond endurance. His wife, whom he loved, was being lured away from
him and from their children despite protests, appeals, and remonstrances. In open defiance of his grief
and his anguish his wife was being taken by one who had jeered at his (the appellant’s) lesser strength
and who had spoken with unashamed relish of his lascivious intents. Though there was an interval of
time between the moment when the appellant’s wife and the deceased went away and the moment when
the appellant overtook them and then caused the death of the deceased, a jury might well consider and
would be entitled to consider that the deceased’s whole conduct was such as might ‘heat the blood to a
proportionable degree of resentment and keep it boiling to the moment of the fact’ (see 1 East PC 238).
Furthermore even if it had to be considered whether or not there was intent to take life at the very instant
of committing the ‘act causing death’, there was divergent evidence as to such matter. The issue was
for the jury, who were the judges of all questions of fact. Their Lordships are unable to share the view of
those who considered that there was no issue for the jury or that what occurred both before and after the
deceased had been knocked down by the accused’s car left no room for doubting that the accused killed
the deceased intentionally. There was much evidence which, if accepted by the jury, was very damaging
to the accused. His evidence at the trial, however, summarised above, was to the effect that he had no
intention of killing the deceased.
Their Lordships consider that whatever view is accepted as to the construction of the proviso to s 23
the case ought not to have been withdrawn from the jury. Indeed the learned Solicitor-General for New
South Wales (for whose assistance the Board is much indebted) did not resile before their Lordships from
the position which he adopted before the High Court of Australia, namely that the issue of provocation
should have been left to the jury at the trial.
It would be sufficient for the determination of this appeal for their Lordships, agreeing with the
conclusions of Dixon CJ and Windeyer J, to hold that the appeal should have been allowed for the reason
that the issue of provocation should on any view have been left to the jury. Their Lordships consider,
however, that they should express their conclusions more fully both as to the meaning of the proviso and
as to its effect upon questions concerning the onus of proof.
In arriving at a conclusion as to the meaning of the relevant words in the proviso it is not unreasonable
to have regard to the law concerning provocation as it had been laid down and as it was for the most part
accepted before 1883. Reference may be made to 1 East PC, where at 232 it is stated that:
… whenever death ensues from sudden transports of passion or heat of blood if upon a reasonable
provocation and without malice or if upon sudden combat it will be manslaughter.
By ‘malice’ the learned author meant, as he said, ‘express malice’.

Their Lordships have come to the conclusion that the relevant language in the proviso to s 23
should not be taken to have intended a disturbance of principles which were all well recognised and long
established. In argument the learned Solicitor-General was prepared to concede that some qualification
of the word ‘intent’ must be accepted. He was prepared to accept ‘definite’ or ‘conscious’ or ‘formed’ or
‘specific’ or ‘actual’ or (less readily) ‘deliberate’. He was not disposed to accept the epithet by Dixon CJ,
namely ‘premeditated’. Their Lordships consider, however, that in its context the word ‘intent’ must denote
a purpose of the accused which is distinct from a purpose which is the product of a state of passion
caused by a provocative act. The words ‘without intent to take life’ in the proviso must be regarded as
an essential part of the larger formula which is contained in the words of para (c). In agreement with
Windeyer J, their Lordships consider that those words form a single composite description of an act which
is provoked, and that the words should not be read as if, broken into parts, they stated several matters
to be considered separately and independently of one another. Something which is done ‘suddenly’ and
‘in the heat of passion’ caused by provocation is, as it were, something done automatically or impulsively
and at a time when there is a temporary suspension of the reason: an act so done is not controlled or
planned or preconceived or deliberate. It would seem therefore that the concluding words in paragraph (c)
were designed to cover an intent which in whole or in part does not arise from the passion and which is
unrelated to the provocation and is not caused by it. As already indicated it has long been recognised that
the defence of provocation may apply even where an intent to kill had been created. When in delivering
the judgment of the Board in Attorney-General for Ceylon v Perera [1953] AC 200 at 206, Lord Goddard
said:
… the defence of provocation may arise where a person does intend to kill or inflict grievous bodily
harm but his intention to do so arises from sudden passion involving loss of self-control by reason
of provocations …
New doctrine was not being proclaimed. (See also Lee Chun-Chuen v R [1963] AC 220, [1963] 1 All
ER 73 (PC).) It would seem most unlikely that the words now being considered were designed to change
the law so as to take away much of the substance of the conception of provocation as a reason for
reducing a crime from murder to manslaughter. Their Lordships would therefore accept the adjective used
by Dixon CJ, namely ‘premeditated’, understanding that what is thereby meant is that the homicidal act
was the result of the passionate impetus caused by the provocation (assuming always that the conditions
of paras (a) and (b) are satisfied) and that it was not done pursuant to an ‘intent’ to take life which was
either formed previously to or was formed independently of the provocation. Just as under para (a) the
provocation must not be intentionally caused by the accused, so under para (c) some provocative act
must not be seized upon by an accused (who does not as a result act suddenly and in the heat of passion)
as providing an appropriate moment and a convenient excuse for carrying out some previously existing
purpose or acting upon an old grudge.
If the evidence given in a case contains some reasonable evidence of provocation, ie some evidence
fit for the consideration of the jury, then the issue of provocation must be left to the jury, even though the
issue has not been specifically raised by the defence … Whether in any case there is evidence fit for
consideration by a jury on a particular matter is a question of law. A judge may, therefore, in some cases
properly withdraw any question of provocation from the jury … but for the reasons which they have given,
their Lordships consider that in the present case the issue should have been left to the jury.
It remains to consider what effect the proviso has in New South Wales upon the question of the
burden of proof in a trial for murder where the issue of provocation arises. It seems to their Lordships that
the duty which lies upon the prosecution to prove the guilt of an accused person beyond reasonable doubt
is not affected save to the extent that s 23 lays it down that there can only be a reduction from murder
to manslaughter by reason of provocation if the jury positively find that the requirements of paras (a) and
(b) and (c) of the proviso are satisfied. The duty and onus of the prosecution to negative provocation is to
that extent lightened for the reason that provocation may only be found if the evidence in a case entitles
a jury to find that the requirements of the proviso are satisfied. … In such cases and if the prosecution
have not otherwise negatived the possibility of provocation then the jury may reduce a crime from murder
to manslaughter.
[Appeal allowed.]
Questions
4.7 According to the facts as recounted by Dixon CJ, what acts or series of acts would
you consider to be provocative?
4.8 In Dixon CJ’s detailed recounting of the facts, what is the relevance of his references
to ethnicity?
4.9 Was the jury given a direction on the defence of provocation? If not, why?
4.10 How many provocative acts took place, and who did them?
4.11 Which acts or series of acts did Dixon CJ isolate as the provocative conduct? Were
they different to those identified by Taylor and Owen JJ?
4.12 What did the High Court and Privy Council identify as the trigger incident that incited
D to kill?
4.13 What view was adopted by the courts on the question of whether words alone could
amount in law to provocative conduct?
4.14 Why is the relationship between the defendant’s mens rea and the provocative
conduct crucial to the success or failure of this defence?
4.15 How did the Privy Council construe the words, ‘without intent to take life’ as used in s
23 of the Crimes Act 1900 (NSW)? What would a literal construction of those words
have done to the defence of provocation and why?
The Privy Council held that under the circumstances, Kelly’s use of crude language, his
attitude at the time of departure when the defendant was begging, and the overall cumulative
effect of his behaviour were enough to lay the foundation for a defence. Do you agree with this
assessment? Lord Morris observed (at 673):
The jury might well have taken the view that the appellant was tormented beyond
endurance. His wife whom he loved was being lured away from him and their children
despite protests, appeals and remonstrances. In open defiance of his grief and his anguish
his wife was being taken by one who had jeered at his (the appellant’s) lesser strength and
had spoken with unashamed relish of his lascivious intents. Though there was an interval
of time between the moment when the appellant’s wife and the deceased went away and
the moment when the appellant overtook them and then caused the death of the deceased,
a jury might well consider and would be entitled to consider that the deceased’s whole
conduct was such as might heat the blood to a proportionable degree of resentment and
keep it boiling to the moment of the fact.
In many cases where the defence of provocation is raised, the ‘trigger incident’ is preceded
by a history of provocative conduct.
It should be noted that the traditional definition of murder at common law requires the
accused to have acted with malice aforethought (see Chapter 2, section 2.3). This is a term of art
that is often misunderstood. To a layperson, this term suggests ‘premeditation’ in the sense that
the accused made a considered choice to kill and then carried out the plan. In legal parlance,
however, the terms ‘malice aforethought’ and ‘premeditation’ are used interchangeably and
merely denote that: (a) the accused acted with one of the mens reas sufficient for murder; and (b)
that there were insufficient extenuating factors (as with the defence of ‘diminished capacity’),
or insufficient provocative conduct on the part of V to reduce the crime of murder to voluntary
manslaughter, or lack of lawful excuse (such as, for example, self-defence) that would entitle
the defendant to an outright acquittal. On the other hand, where there are such extenuating
factors, or there is sufficient provocation to reduce the crime to voluntary manslaughter, or
there is lawful excuse for killing, the accused is deemed in law to have acted without ‘malice
aforethought’ or ‘premeditation’. This was explained, to a limited extent, by the Privy Council
in Parker.
4.2.3.3 Words alone

As you will have noted when reading Parker’s case, several comments were made by the various
judges concerning the issue of whether words alone can amount to sufficient provocative conduct
for the purposes of the doctrine. It has always been accepted that non-verbal acts could qualify
as provocative conduct, but until recently the courts have been sceptical as to whether words
alone could suffice. Under the current Australian common law doctrine, it is now settled that
words alone can found a defence of provocation, provided that they are of a violently provocative
or exceptional nature.
Moffa v The Queen

(1977) 138 CLR 601
Judgment
Barwick CJ: I feel bound to agree with my brother Gibbs’ conclusion that if nothing more had been
established by the applicant by way of provocation than mere words and if those words were not, to
use the language of Viscount Simon in Holmes v Director of Public Prosecutions [1946] AC 588; [1946]
2 All ER 124, of a violently provocative character, the onus upon the Crown of establishing beyond any
reasonable doubt that the killing of the applicant’s wife was unprovoked did not specifically arise. In
that situation, the trial judge would have been in error in leaving to the jury a case of provocation and,
consequently, errors made in the summing up in relation to that issue, had there been occasion to place
a case of provocation before the jury, would not have required the quashing of the applicant’s conviction.
Accordingly, on that footing, special leave should be refused.
But I am unable to agree that the statement of the applicant at his trial disclosed no more than a case
of mere words by way of provocation or, if there were no provocation but by mere words, that those words
could not be said to be of a violently provocative character. Whilst I agree that it has long been accepted
that a confession of adultery, even if unexpected and suddenly made, can never afford ground for the
conclusion that an ordinary man would thereby be led to lose his self-control to the point of forming an
intent to murder or to do grievous bodily harm, I must say that circumstances do alter cases and that
such an unqualified rule is hardly consonant with the ‘benignity of the law’ in its concession to ‘human
infirmity’: Foster, Discourse II on Homicide (2nd edn), p 255.
Before setting out my reasons for thinking that the situation described by the applicant to the jury—
an account which they would be entitled to accept—provided a basis for placing on the Crown the onus
of establishing beyond reasonable doubt that the killing of the deceased was unprovoked, I ought to
observe that it was not suggested by the Crown that the killing was premeditated. The intent to kill or to
do grievous bodily harm to the deceased was formed on the morning of her death. Indeed, it could well
be concluded that it was formed after and consequential upon the exchanges between the deceased
and the applicant on that morning. There was therefore material upon which it could be concluded that
the applicant had lost his self-control at the time he formed the intent to kill or grievously wound the
deceased: and that that was due to what the deceased had said and done immediately before that
loss occurred. There is nothing suggested about the applicant, his disposition, or mental balance, which
could be called in human terms extraordinary. That he was emotionally disturbed by his wife’s disclosed
attitude to him did not make him, in my view, other than an ordinary man: and, in particular, other than
an ordinary man of his ethnic derivation. If the use of the word ‘reasonable’, in the statement of what
is called the objective test in relation to provocation, would exclude from consideration such emotional
reactions, I have even greater reason for preferring the description ‘ordinary man’ in the formulation of
that test.
The applicant’s account of the critical events of the morning of 21 August, the day of the death of the
deceased, is set out in the reasons for judgment to which I have referred. The totality of the deceased’s
conduct on that occasion, according to that account, was that there was vituperative and scornful
rejection of the applicant’s connubial advances, a contemptuous denial of any continuing affection, a
proclamation of finality in the termination of their relationship coupled with an expression of pleasure in
having had intercourse promiscuously with neighbouring men. This statement of enjoyment in that course
of conduct might reasonably be thought, particularly if coupled with the manner of her rejection of the
applicant, to contain an assertion, contemptuously expressed by the deceased, of sexual inadequacy on
the part of the applicant. Whilst in themselves small matters, the threat of physical violence to reinforce
her rejection of him, the throwing of the telephone as an expression of contempt and the use made of
the nude photographs, form part of the whole situation. To describe that situation as consisting merely of
words is not, in my opinion, to reflect the reality of the total scene. I am of the opinion that a jury would
be entitled to view the situation in its entirety as I have briefly described it, including the implied taunt of
the applicant’s incapacity sexually to satisfy the deceased as she had found other men could. If they took
that view, it was open to them to conclude that an ordinary man, placed as was the applicant, would so
far lose his self-control as to form an intention at least to do grievous bodily harm to his wife. Whether
they would or would not take such a view of the situation would essentially be a matter for them. They are
credited with a knowledge of how the ordinary man would react in such a situation. Many might think that
they should not draw any such conclusion. But there are limits to the control of such a factual situation
which the court can exercise. If, as I think, the situation was not composed of mere words of a not violently
provocative character, the court cannot refuse to allow the tribunal of fact to decide the matter unless
it is quite clear that no reasonable person could possibly conclude that, in the situation most favourably
viewed from the standpoint of the accused, an ordinary man could have so far lost his self-control as to
form an intent at least to do grievous bodily harm to his wife. With every respect to those of a different
opinion, I cannot think that the trial judge would have been justified in this case, in refusing to leave to the
jury the question of provocation. In particular, and with due respect to the views expressed in the Supreme
Court of South Australia, I do not think that it can properly be said that it was not reasonably possible to
conclude that, in the total situation described by the applicant, an ordinary man might so far lose his self-
control as to form at least an intent to do his wife grievous bodily harm. As I have said, whether it should
be concluded that an ordinary man would do so is a question exclusively for the jury, however much a
court may be inclined to think that a jury should not do so. Accordingly, it was not an error to place that
matter before them.
It therefore becomes necessary for me to consider the submissions made on behalf of the applicant
as to propriety and sufficiency of the summing up in relation to provocation … I shall deal, first, with the
submission that the learned trial judge did not tell the jury that, if they thought the accused’s account of
the event of the fatal morning was reasonably possible and further thought that it was reasonably possible
that such a situation would cause an ordinary man to lose his self-control so far as to form an intent
to kill or do grievous bodily harm, the onus lay on the Crown to establish beyond reasonable doubt that
the killing was unprovoked. I have expressed the submission in this expanded form in order to bring out
the essential elements. As I have said, the State of South Australia has not by statute varied the relevant
common law. The question of onus is therefore governed by Woolmington v Director of Public Prosecutions
[1935] AC 462; [1935] All ER Rep 1. The difficulties which that decision places in the path of the Crown
in its endeavour to establish an unlawful killing are obvious; and the difficulty a jury must have in applying
the onus in a case where the provocation may be marginal in some or all of its necessary ingredients is
equally obvious. Thus extreme care is called for in the instruction of a jury where provocation is open to
them if a proper balance is to be maintained between Crown and accused.
But, as the law stands in South Australia, if there is room for a finding of provocation, it is for the
Crown to establish beyond reasonable doubt that the killing was unprovoked. It is essential that the jury be
so instructed in plain and direct terms. There is no doubt the trial judge did not do so in this case. Indeed,
the impression I get from reading and rereading the summing up is that the jury would, by its terms, be
led to believe that the onus is on the accused. I take the following extracts from the summing up, which,
though extracted, do present a fair picture of the summing up as a whole.
After dealing with the necessity of an intent to kill or do grievous bodily harm, the judge said:
There is another form of act—and probably what the defence suggests in this case may bring it
nearer to this type of act—which would reduce murder to manslaughter. That is where there is an
intention to cause at least bodily harm—grievous bodily harm—but the conduct, or some act or
series of acts on the part of the deceased person has been such as is likely to cause a reasonable
person to be so rendered subject to passion or loss of control as to be led to use the violence which
results in the death and does in fact lead the accused to use such violence. Now, if that happens,
then the crime is reduced from murder to manslaughter; and that may happen even where there is
an actual intention to kill if the intention arose from a loss of self-control in the accused by reason of
provocation in the way in which I have defined provocation. Such provocation must have been such
that it might have caused a reasonable person to use the violence which the accused used and it did
in fact cause the accused to use that violence. …
… if you find it reasonably possible that he was acting under provocation such as would have
caused a reasonable man to act as he acted and such as did cause him to act as he did act, then he
is to be convicted of manslaughter and not murder, even though you may find not only that he killed
his wife, but that he intended to kill her. You may find that he killed his wife, he didn’t intend to kill
her, he intended to do her some harm, he intended to do her grievous bodily harm, but if you think it
reasonably possible that he was acting under provocation in the sense which I have described, that
is sufficient to find him guilty of manslaughter and not murder. …
The judge devoted a considerable part of the summing up to indicating available criticisms of the
applicant’s evidence, with constant emphasis upon the need for the jury to believe what he said in his
statement in the court and on several occasions counselling them to look for corroboration of parts of that
statement. The judge said:
… and then you come back once again to the question—‘Did she so provoke him as to reduce
this from murder to manslaughter?’ Well, one of the things of course that you will do is that you will
consider what he said when he first spoke to other people and what he has said to you, because you
have to decide whether what he has said to you could reasonably possibly be true. If you believe that
he is not telling you the truth, then you may find it difficult to find anything other than he intended to
kill her and that he was not sufficiently provoked for it to amount to manslaughter.
At another point the judge said: ‘If, of course, you don’t believe she said what he said she said on the
last day about screwing everyone in the street, if you don’t believe that provoked him into killing her, do
you believe that in fact it was because she wanted a divorce, because he says she wanted more money
than he was able to give her?’ After discussing the applicant’s evidence as to the events of the morning
of the killing, the judge said: ‘You will doubtless find that such things would not provoke a reasonable
man to inflict the injuries which this man inflicted upon his wife and is not enough provocation sufficient
to reduce murder to manslaughter’.
Of course, if a jury does not believe the account of the accused of the matters which are suggested to
constitute provocation, it may be said that the Crown has satisfied the onus of establishing that the killing
was unprovoked. But their function is not merely to weigh the accused’s credit. If the accused’s account
is a reasonably possible account—and that is the first step they must take—they must in substance be
satisfied beyond reasonable doubt that those events did not happen. Disbelief of the accused may not in
all circumstances compel that satisfaction to the requisite degree. Thus, the continual emphasis in this
summing up upon criticism of the accused’s statement and the need to believe it, at least tended to give
the impression that the accused bore an onus of in fact establishing those events.
In making these observations upon the summing up, I am not unmindful of the considerable difficulty
faced by a trial judge in ensuring, on the one hand, that the onus is properly expressed and, on the
other hand, that the jury are assisted in their difficult task of examining the facts in relation to each
necessary ingredient of operative provocation. But, allowing for the difficulty, I am clearly of opinion that
this summing up failed properly to instruct the jury as to the onus of proof, if the possibility of provocation
reasonably appeared. For this reason, being of the view that provocation was open upon the facts of the
case, the conviction for murder cannot stand. …
There remains the question whether there should be a new trial or whether we should adopt the
course taken in Johnson v R, supra. The Crown was asked to indicate whether, in the event that the Court
was of the opinion that the conviction for murder could not stand, it would insist upon a new trial. We
have been informed that, in the circumstances of the case, the Crown does not do so. Accordingly, in
my opinion, the conviction for murder should be set aside and a conviction for manslaughter substituted,
there being no basis on which the accused could be acquitted.
Mason J: There is no absolute rule against words founding a case of provocation. The existence of such
an absolute rule would draw an arbitrary distinction between words and conduct which is unsupportable
in logic. No doubt provocative acts justifying the reduction of murder to manslaughter are more readily
imagined and more frequently encountered than provocative words which justify the same result. Violent
acts, rather than violent words, are more likely to induce an ordinary person to lose his self-control. And
a case of provocation by words may be more easily invented than a case of provocation by conduct,
particularly when the victim was the wife of the accused. There is, therefore, an element of public policy
as well as common sense in requiring the close scrutiny of claims of provocation rounded in words, rather
than conduct.
The observations of Blackburn J and Viscount Simon to which I have referred are salutary warnings
against a too-ready acceptance of claims of provocation based on words alone. They emphasise the
necessity of compliance with the demanding requirements which underlie the concept of provocation.
The questions for the jury here, then, were whether the acts relied upon by the applicant were
reasonably calculated to deprive an ordinary man of the power of self-control, whether they in fact did
so deprive the applicant and whether he continued to be so deprived at the time he struck the deceased
with the pipe. The question for us is whether it can be said that no reasonable man could answer these
questions favourably to the applicant in light of the account of the relevant events given by him at the
trial. For my part, I feel some diffidence in predicting with assurance how an ordinary man placed in
the applicant’s situation might react if he were confronted with the occurrences on which the applicant
relied. I am not prepared to say that no reasonable man could conclude that an ordinary man would be
so deprived of his power of self-control by what occurred as to form an intention to kill or do grievous
bodily harm to his wife.
Murphy J:
Common law provocation

In South Australia, the law of provocation is entirely decisional. We are not bound by statutory direction
as we were in Johnson v R (1976) 11 ALR 23. Provocation is a defence to murder (and arises when
the elements of murder are present). The defence is that the accused killed because the deceased’s
provocative conduct caused him to lose self-control. This basic formulation of the defence is often referred
to as the subjective test (the behaviour of the accused is considered without reference to objective
standards).
Provocative conduct has generally been regarded as involving physical violence. The refusal to
recognise provocation by words or gestures is no longer justifiable, although it may have been on public
policy grounds when the practice of carrying weapons and duelling persisted.
Rulings on whether certain words amount to provocation reflect the attitudes of society, or even of
particular judges. For example, a sudden confession of adultery was sufficient provocation in R v Rothwell
(1871) 12 Cox CC 145, but not in Holmes v DPP [1946] AC 588; 2 All ER 124. Such rulings are a
by-product of the reasonable man test.
The ‘reasonable’ or ‘ordinary’ man test

This test requires the accused’s behaviour to be of the standard which a reasonable or ordinary man
would exhibit. This is used in addition to the subjective test.
Provocation was originally treated as a question of law but, for some time before the invention of the
reasonable man test, it was treated as a question of fact for the jury (see R v Lynch (1832) 5 C & P 324;
R v Hayward (1833) 6 C & P 157; R v Thomas (1837) 7 C & P 817; Russell on Crime (12th edn, Chapter 29).
The test appeared at least by 1837 when Justice Coleridge stated: ‘Though the law condescends to
human frailty, it will not indulge human ferocity. It considers man to be a rational being and requires that
he should exercise a reasonable control over his passions’ (R v Kirkham (1837) 8 C & P 115 at 119).
Its invention, however, is usually credited to Mr Justice Keating who directed that: ‘There must exist such
an amount of provocation as would be excited by the circumstances in the mind of a reasonable man, and
so as to lead the jury to ascribe the act to the influence of that passion’ (R v Welsh (1869) 11 Cox CC 336).
This was approved in R v Alexander (1913) 23 Cox CC 604 and R v Lesbini [1914] 3 KB 1116, and the
test has been applied in cases such as Mancini v DPP [1942] AC 1; [1941] 3 All ER 272; Holmes v DPP,
supra; Bedder v DPP [1954] 2 All ER 801; and Lee Chun-Chuen v R [1963] AC 220; [1963] 1 All ER 73.
Objections to the test

The test cannot withstand critical examination. It is not clear whether the reasonable or ordinary man, if
he was subjected to the same provocation, would (or might) have lost control, or would have lost control to
the extent of killing the deceased, or would have lost control to the extent of killing in the manner he did.
Is he a complete stranger subjected to the provocative conduct or a person in the same circumstances
as the accused? To be in the same circumstances, he should be taken to be in the same relationship with
the deceased (in this case, a marital relationship) and must have experienced the relationship. In a case
such as this, he should have lived the life of the accused or it would be impractical to speak of what a
reasonable or ordinary man would do in the circumstances. For example, it might have been an unbearable
insult to a person of the accused’s origin to be called a ‘black bastard’. Once the full circumstances are
taken into account, the objective test disappears because it adds nothing to the subjective test. For this
reason, those who adhere to the objective test have rigidly excluded individual peculiarities of the accused
(for example, low intelligence, impotence, pugnacity).
The objective test is not suitable even for a superficially homogeneous society, and the more
heterogeneous our society becomes, the more inappropriate the test is. Behaviour is influenced by age,
sex, ethnic origin, climatic and other living conditions, biorhythms, educations, occupation, and, above all,
individual differences. It is impossible to construct a model of a reasonable or ordinary South Australian
for the purpose of assessing emotional flashpoint, loss of self-control, and capacity to kill under particular
circumstances. In the Northern Territory Supreme Court, Kriewaldt J refused to apply the test to a tribal
aborigine and used the standard to the accused’s tribe (see Colin Howard, What Colour is the ‘Reasonable
Man’? (1961) Crim LR 41). The Judicial Committee of the Privy Council stated in Kwaku Mensah v R
[1946] AC 83 that the test for provocation was that of ‘the ordinary West African villager’ and that ‘on
just such questions … the knowledge and common sense of a local jury are invaluable’ (at 93): see also
Rankin (1966) 60 QJPR 128. The same considerations apply to cultural sub-groups such as migrants. The
objective test should not be modified by establishing different standards for different groups on society.
This would result in unequal treatment.
The objective test should be discarded. It has no place in a rational criminal jurisprudence. It has
been subjected to widespread, severe and, in my opinion, valid criticism (see Russell on Crime (12th edn,
Chapter 29); Alex Samuels, ‘Excusable Loss of Self Control in Homicide’ (1971) 34 MLR 163; Morris &
Howard, Studies in Criminal Law (1970); Smith & Hogan, Criminal Law (2nd edn), p 215; B Brown,
‘The Ordinary Man in Provocation: Anglo-Saxon Attitudes and Unreasonable Non-Englishman’ (1964) 13
ICLQ 203 at p 223; Glanville Williams, ‘Provocation and the Reasonable Man’ (1954) Crim LR 740). It
received only a partial defence by Dr Ashworth, who concedes that the accused’s personal characteristics
should be considered by the court, but not individual peculiarities bearing on his level of self-control (‘The
Doctrine of Provocation’ (1976) 35 CLJ 292). I share the view of Lord Simonds that the distinction is too
refined (Bedder v DPP, supra), but the insistence on the rigid application of the test led to what Glanville
Williams observed: ‘It is difficult to see how this test, intelligently understood and applied, can ever give
rise to an acquittal of murder’ (‘Provocation and the Reasonable Man’, p 750). In such an application of
the test, the ordinary or reasonable man simply does not kill if he is provoked.
Much of the opposition to discarding the objective test is based on the assumption that this will
undermine the social fabric and cheapen the value of human life. It is easily overlooked (see Brown,
p 230) that the defence is only to murder, and its success results in a conviction for manslaughter (for
which the maximum punishment is currently imprisonment for life). The law of provocation is concerned
with unreasonable behaviour, killing committed by a person who has lost self-control and temporarily
deserted the standard of civilised conduct. It degrades our standards of civilisation to construct a model of
a reasonable or ordinary man and then to impute to him the characteristic that, under provocation (which
does not call for defence of himself or others), he would kill the person responsible for the provocation.
Taking the issue of provocation from the jury

It has been said of the reasonable man test that: ‘The most disagreeable consequence of its application
over the 40 year period prior to the Homicide Act has been its part in the substantial restoration of the
early position where provocation was entirely a matter of law for the judge. For a feature of the modern
common law doctrine has been the Bench’s readiness to exclude from the jury evidence of provocation
which it regards as insufficient to reduce the crime to manslaughter’ (Brown, p 203).
The Full Court of the Supreme Court of South Australia rejected the appeal on the basis that, even if
the directions on provocation were wrong, the trial judge should have directed the jury that in law there
was no evidence of provocation fit for the jury’s consideration. This was an application of the objective
test, which, as I have said, has no place in provocation.
The trial judge was correct to leave the question of provocation with the jury. Even if the objective test
were applied, the accused’s statement could be regarded by the jury as amounting to: ‘I am an ordinary
reasonable man. I killed my wife only because she provoked me so much that I lost self-control’. This is
evidently material that, if accepted, satisfies the objective test. If the judge decided that no ordinary or
reasonable man could (or would) have so acted, he would be in effect forming an opinion that the accused
is not an ordinary or reasonable man, and treating this opinion as conclusive. To take away the issue of
provocation in these circumstances would be to usurp the function of the jury.
Reasonable retaliation
It is not essential to the defence that there be proportionate retaliation (a reasonable proportion) between
the killing or the manner of killing and the provocative conduct (Johnson v R (1976) 11 ALR 23). Viscount
Simon’s statement in Mancini v DPP [1942] AC 1; [1941] 3 All ER 272, that ‘the mode of resentment
must bear a reasonable relation to the provocation’ is not the law in South Australia. It expresses in a
different way one version of the same objective test (that a reasonable or ordinary man would, in the
circumstances, have lost his control to the extent of killing in the way he did). Proportionality in the sense
of the nature or degree of the response is of course relevant to whether the killing occurred while the
accused was out of control because of the provocation (see Johnson v R ).
Cooling-off period
There is no requirement that there must not have been time to cool off or regain self-control. The interval
between provocation and the killing may, but need not, be short and I see no reason why intermediate
temporary regaining of control should exclude the defence. These considerations are no doubt relevant to
the real question whether the killing was done in the passion of the fury (that is, because of loss of self-
control) brought about by the provocation.
Onus of proof
The onus is on the prosecution to establish beyond reasonable doubt that the killing was unprovoked
(Woolmington v DPP [1935] AC 462; [1935] All ER Rep 1). Although, as Lord Sankey said there, ‘It is
sufficient if the accused raises a doubt’, it is not necessary for the accused to do this. The directions by
the trial judge were defective in failing to make this clear. The prosecution contended that, even so, the
appeal should be dismissed as there was no substantial miscarriage of justice. This contention must be
rejected: ‘… every accused person is entitled to a trial in which the relevant law is correctly explained
to the jury and the rules of procedure and evidence are strictly followed. If there is any failure in any of
these respects, and the appellant may thereby have lost a chance which was fairly open to him of being
acquitted, there is, in the eye of the law, a miscarriage of justice. Justice has miscarried in such cases,
because the appellant has not had what the law says that he shall have, and justice is justice according
to law’ (Fullager J in Mraz v R (1955) 93 CLR 493 at 514; [1955] ALR 929 at 940). There is no need to
consider the other grounds.
The conviction for murder cannot stand. The applicant’s case is that he was guilty of manslaughter
only. Special leave to appeal should be granted. The appeal should be upheld and the conviction for
murder set aside and replaced by a conviction for manslaughter.
[Stephen J delivered a brief concurring judgment. Gibbs J dissented.]
Questions
4.16 Whom did Moffa kill?

4.17 What was the triggering act in Moffa ?
4.18 Was there one or more than one provocative act? What did Barwick CJ consider to be
the ‘total scene’?
4.19 Were the provocative acts on the part of the victim limited to words only?
4.20 Was there any violent conduct on the part of the deceased wife?
4.21 Do you think that the wife’s use of racial epithets was a key factor in the judgment?
Why, or why not?
4.22 What were Murphy J’s objections to the defence of provocation?
4.23 Why did Murphy J disapprove of the ‘objective test’?
4.24 The present position is that words alone can amount to sufficient provocation, pro-
vided they are of an appropriately violent character. Did any of the justices explain
why there has been and still is a reluctance to allow ‘mere words’ to ground the
defence of provocation?
The issue of whether words alone can amount to provocation was considered in R v Kumar
(2002) 5 VR 193, where Eames JA and O’Bryan AJA (Batt JA did not expressly consider the
issue) held that mere words could constitute provocation, but only where they are violently
provocative. Eames JA, at [57], stated that:
the question whether words alone may suffice for provocation, and, if so, words of what
character, cannot be regarded as having been definitively resolved in Victoria. The weight
of authority, however, supports the conclusion that ‘mere words’ are capable of constituting
provocation if they are ‘violently provocative’.
O’Bryan AJA, at [139], opined:
This is a case where the objective test must be applied to ‘mere words alone’. In my opinion,
the law on provocation has developed to the stage where, as a matter of principle, it may
be stated that words which are merely insulting, hurtful and offensive, but are not of a
‘violently provocative character’ cannot satisfy the objective test. Into the equation, account
must be taken of the context in which the words were used and the degree of reaction
produced by the words. In the present case, the words were no more than insulting, hurtful
and offensive, but the appellant’s reaction, whether or not attributable to the words, was
both extreme and of great ferocity, his intention being to kill and mutilate the deceased … In
my opinion, if the appellant was angered and offended by the deceased’s words, no ordinary
person could then and there form the necessary murderous intent and no reasonable jury
properly instructed could find otherwise [Footnotes omitted.]
His Honour added:
I am willing to assume that ‘violently provocative words’, in very exceptional circumstances,

are capable of causing an ordinary person to lose self-control and act as ferociously as did
the appellant, but I have never experienced such a case in my lengthy experience with the
criminal law.
In New South Wales the words must be ‘grossly insulting’: Crimes Act 1900 (NSW)
sub-s 23(2)(a).
4.2.3.4 The conduct need not be aimed at the accused

The defendant must have been provoked. However, at common law, there is no rule that the
deceased must have acted with the explicit aim, purpose, or intent of provoking the defendant.
The main question is whether or not the victim’s conduct was of such a nature as might have
provoked an ordinary person, in like circumstances, to lose self-control to such an extent as to
resort to deadly force.
In R v Terry [1964] VR 248 at 250, Pape J ruled that:
the mere fact that the provocation was not offered by the deceased to the accused, but
was offered to the deceased’s wife and the accused’s sister, does not prevent the operation
of the principle that provocation will reduce murder to manslaughter provided that the
provocation was offered in the presence of the accused, and provided all the other elements
of provocation are present.
Thus, it is the presence of the accused at the scene of the provocative conduct that is crucial
under the law. It means that the victim did not have to be aware of the defendant’s presence. For
example, the defendant may have stumbled on a secret tryst. It is important to emphasise that
although the provocative conduct does not have to be directed at or intended to provoke the
defendant, it will of course help the defendant’s case if s/he can introduce evidence that it was so
directed or intended.
4.2.3.5 Provocation must take place in the presence of the accused

As the definition in R v The Queen (1981) 28 SASR 321 (quoted above at 4.2.3) states, at
common law the provocation must take place in the presence of the defendant. ‘Presence’ means
within the sight or hearing of the defendant. The requirement of presence, however, has been
ignored on rare occasions in which strict adherence to the requirement would have led to results
that were at odds with the sensibilities of court and jury. In R v Fisher (1837) 8 C & P 182, for
example, a father, upon being informed that his son had been sodomised, stalked the victim for
two days before stabbing him. The trial judge nevertheless permitted the defence to go to the
jury despite the conspicuous absence of any provocative conduct on the part of the deceased
which occurred in the presence of the accused. Oddly, the trial judge then gave the jury a proper
direction on the presence requirement, only to have it ignored by the jury, which ultimately
acquitted the defendant of murder on the ground of provocation.
R v Arden
[1975] VR 449
(Supreme Court of Victoria)
Judgment
Menhennitt J: Counsel for the accused has intimated that he proposes, unless I direct to the contrary, to
put it to the jury that in this case if the jury were otherwise satisfied of all the elements of murder, none
the less the crime was reduced to manslaughter by provocation and by inference he has invited me or,
indeed, urged me to put that to the jury as part of my charge. Counsel for the Crown, the learned Crown
Prosecutor, has submitted that in this case I should not leave provocation in the legal sense to the jury.
In order to rule upon this matter I assume, for the present purposes, findings on the evidence most
favourable to the accused and I make the following assumptions of fact which seem to me to be all the
most favourable that could be made in the accused’s favour. Those assumptions of fact are: that the
accused and one Kay Campbell had been living together for approximately 11 months as man and wife on
the day on which the deceased man met his death and that the accused was in love with Kay Campbell;
that she believed that she was two months pregnant to him; that he had been informed by her of this
belief approximately one month before the date of the death of the deceased and that he believed what
she told him as to her pregnancy. I further assume that it is open to the jury to find that on the day on
which the deceased met his death the deceased in fact raped Kay Campbell and in the course of doing so
tore her pantyhose and pants but that the accused was not present when that rape took place. I further
assume that relatively shortly thereafter Kay Campbell told the accused what had happened and showed
him her torn pantyhose and pants; that because of what he had been told the accused went immediately
to where the deceased was in fact lying on a mattress asleep in a room of the house and for this purpose
I assume in favour of the accused that what he was told by Kay Campbell was told to him in another
room of that house. I assume also on the evidence that when the accused came upon the deceased, the
deceased was lying asleep; that the accused woke the deceased and charged him with the rape; that
the deceased denied the rape; that the accused thereupon punched the deceased a number of times,
three or four; that the deceased kicked the accused in the chest; that the accused then went elsewhere in
the building and obtained the iron pipe with which he returned and dealt the fatal blows to the deceased’s
head, being on the evidence in fact five blows, but I assume for present purposes three, as confessed by
the accused, and blows inflicted with significant force. I also assume in favour of the accused that all the
facts to which I have referred would be sufficient to amount in evidence to provocation sufficient to reduce
murder to manslaughter but for the one element to which I shall now refer. The facts which I have outlined
indicate that there was no conduct on the part of the deceased in the presence of the accused which was
in any way provoking of the accused. The effect on the accused’s mind was solely as a result of what he
was told and shown by Kay Campbell.
The question which arises is, it appears to me, an important one and one on which I am obliged to
rule and that is whether it is a necessary element of provocation that there be in such circumstances such
as the present some conduct on the part of the deceased, be it by actions or words, which provokes the
accused and I assume for present purposes that conduct against a third person, other than the deceased,
is sufficient, provided it takes place in the presence of the accused.
It is well established by authority that if adultery is committed in circumstances where a husband
sees his wife committing adultery with another man and thereupon kills the other man or his wife if all
the other elements of provocation are present, that is sufficient to reduce murder to manslaughter. The
principle is stated in Archbold (38th edn, 1973), para 2506 as follows: ‘If a man takes another in adultery
with his wife and kills him directly upon the spot, this is manslaughter only: 1 Hale 486; R v Manning, Sir
T Raym 212; R v Pearson, 2 Lew 216; R v Kelly, 2 C & K 814.’ There was authority before the decision
of the House of Lords in Holmes v Director of Public Prosecutions [1946] AC 588; [1946] 2 All ER 124
that a confession by a wife of adultery could constitute provocation but in that case, at (AC) p 600,
Viscount Simon, in a judgment concurred in by the other three Lords, said: ‘In my view, however, a sudden
confession of adultery without more can never constitute provocation of a sort which might reduce murder
to manslaughter’. There is authority that the principles stated in the passage I have referred to in relation
to adultery by a wife does not extend to unmarried persons, even though they be living together as man
and wife. It was so decided in England in R v Palmer [1913] 2 KB 29 and R v Greening [1913] 3 KB 846.
In R v Lyden [1962] Tas SR 1 it was held that the provisions of the Maintenance Act in Tasmania produced
the result that persons living together in a de facto relationship for 12 months or more were to be treated
as being in the same position as a married husband and wife. However, I assume for the purposes of the
present case, although it is not necessary to decide it one way or the other, that if the accused had actually
seen the deceased committing rape against his de facto wife, believing she was two months pregnant,
that would be sufficient to constitute a basis for provocation in law. However, the issue remains whether
it is sufficient if the accused sees nothing of the conduct of the deceased and is merely informed thereof
by his de facto wife.
Having considered the authorities, I have reached the conclusion that the law is that it is not sufficient
to constitute provocation for an accused person to be informed by another that conduct such as the
raping of her when pregnant has taken place, and that, in order to constitute the necessary element to
establish provocation, there must be some conduct on the part of the deceased person in the presence
of the accused person in order to establish provocation in law. This conclusion appears to me to follow
from the following decisions.
In R v Fisher (1837), 8 C & P 182; 173 ER 452, the Court, consisting of Mr Justice Park, Mr Baron
Parke, and Mr Recorder Law was concerned with a case where a father, having heard that a man had
committed an unnatural offence with his son, went after the man who he was told had committed the
unnatural offence and stabbed him to death. It was held by the Court that this did not found a basis for
provocation sufficient to reduce murder to manslaughter. Mr Justice Park, speaking for the Court, at p 185
in 8 C & P, p 454 in 173 ER, said: ‘If this man had seen the thing happen, and had at that moment inflicted
the injury, I should have rather inclined to think that it would have been within the rule in that case—at
least, I should have reserved it for the opinion of the Judges. ’
In R v Ball (1924), 18 Cr App Rep 149, the Court of Criminal Appeal, constituted by Lord Hewart, Lord
Chief Justice, and Shearman and Salter JJ, in dealing with a case of a man killing his wife’s lover, said,
at p 154: ‘Certainly it would be ludicrous to suggest that in this country the knowledge that a man’s wife
has been debauched by another man is an excuse for shooting the offender. ’
That passage was cited with approval by the Full Court of the Supreme Court of New South Wales
in R v Withers (1925), 25 SR (NSW) 382 at p 397, when Street, CJ, delivering the judgment with which
the other members of the Court concurred, quoted the passage I have just quoted from Ball’s case and
continued: ‘If a man’s wife is unfaithful to him he has his remedy, but no man is allowed to give way to his
passion or his anger, or to take the law into his own hands. ’
In R v Terry [1964] VR 248, Pape J, having reviewed the authorities and having held that conduct not
against the accused but against a third person, if conducted in the accused’s presence, could constitute
provocation in law, at p 249, quoted from Kenny’s Outlines of Criminal Law (18th edn, 1962), at p 172,
where the passage reads, ‘There is some authority for the view that the defence of provocation is available
to one who has killed someone who was making an attack upon a third person. Thus it was suggested
that a father might be so provoked if he found a man committing an unnatural offence upon his son
(R v Fisher (1837), 8 C & P 182 at p 185; 173 ER 452), and R v Harrington ((1866) 10 Cox CC 370) was a
conviction for manslaughter of a man who had killed his daughter’s husband whom he saw beating her’.
After dealing with other authorities, his Honour continues, at the foot of p 249, ‘The cases of Harrington
and Fisher, supra, would appear to support the view that there can be provocation by conduct which was
not primarily directed to the accused, provided it took place in his presence. ’
In Holmes v The Director of Public Prosecutions [1946] AC 588; [1946] 2 All ER 124, Viscount Simon,
in delivering the speech which was concurred in by the other Law Lords, drew the distinction between
two kinds of words in the discussion as to whether the mere words could ever constitute provocation. He
contrasted words in the sense of insulting and abusive language with words in a sense of an account of
what had happened, and it was in relation to the latter, that is, an account of what had happened, that he
made the statement which I repeat, namely: ‘In my view, however, a sudden confession of adultery without
more can never constitute provocation of a sort which might reduce murder to manslaughter’.
In the light of all those authorities, I have concluded that for there to be sufficient to constitute
provocation, conduct of some kind, whether it be physical conduct or words, on the part of the person
killed must take place in the presence of the accused person. The rationale of this rule appears to me
to be as follows. If a person actually sees conduct taking place in respect to a third person and he is
provoked thereby, it is understandable that he may be provoked to the extent of taking the other person’s
life and in circumstances which would reduce murder to manslaughter. Where, however, all that happened
is that the accused is told something by a third person there enters immediately the element of belief, and
there is nothing tangible upon which the accused can be said to have acted.
The point can be demonstrated by a theoretical set of circumstances which would involve the accused
in the present case being told something which was not factual. If, for example, Kay Campbell had not in
fact been raped, but she had told the accused that she had been and had produced for his inspection torn
clothing which she had said had been torn in the rape, such as torn pantyhose and pants, the submission
on behalf of the accused must logically be, and counsel for the accused so submitted, that the accused
would be justified in taking the life of another man in circumstances which would reduce murder to
manslaughter, even though there was no truth whatsoever in what he was told.
The example appears to me to reveal the rationale of the rule, namely that for there to be provocation
there must be conduct of some kind, even if it be only words, in the accused’s presence.
There is this further element in the present case. What the House of Lords said in Holmes v The
Director of Public Prosecutions, supra, about the confession of adultery, raises a doubt whether a
confession by a man that he raped another would be sufficient to constitute provocation. However, in the
present case there is not even that. When tackled with the rape which Kay Campbell said had taken place,
the deceased denied, on the evidence, that there had been such a rape, so that even if a confession of
rape in those circumstances could have been sufficient to constitute a basis for provocation, that was
not present.
Accordingly, I rule that on the evidence in the present case there is not, on any view of the evidence,
evidence upon which a jury could find that there was in law provocation sufficient to reduce murder to
manslaughter, and I rule accordingly and shall not direct the jury that provocation is open, and in all the
circumstances may well think it appropriate to not leave the jury in doubt about the matter, by making
some appropriate reference to the topic and the ruling I have given, without, of course, doing that in any
detail.
Questions
4.25 What was the provocative conduct?

4.26 What was the trigger incident?
4.27 Was the trigger incident the spouse’s complaint or the victim’s denial?
4.28 For the purposes of the defence of provocation, did Menhennit J state that the
provocative conduct must take place in the presence of the defendant? Did Menhennit
J enunciate the underlying rationale for the presence requirement?
4.29 Did Menhennit J consider that the provocative conduct had taken place in the
defendant’s presence?
4.30 In Parker, did the provocative acts occur in the presence of the defendant?
4.31 In Moffa, did the provocative acts occur in the presence of the defendant?
4.32 How would you distinguish the above two cases of Moffa and Parker from Arden?
4.33 According to Menhennit J, can a deceased’s words alone, even if spoken in the
presence of the defendant, amount to provocation in law if they relate only to past
conduct on the part of the victim that did not occur in D’s presence?
4.34 If the answer to the previous question is in the negative, is Menhennit J’s view con-
sistent with that of the majority of the High Court in Moffa? Is Menhennit J’s view on
this issue consonant with the underlying rationale of the provocation defence?
If one or more provocative acts occur in the defendant’s absence, but s/he is nonetheless
aware of them prior to the ‘trigger incident’, the courts have had a tendency to relax the presence
requirement and allow such acts to be factored in—provided that at least some provocative
conduct has occurred in the defendant’s presence.
R v The Queen
(1981) 28 SASR 321
Judgment
King CJ: The appellant was found guilty by a jury of the crime of murder. The appellant killed her husband
during the early hours of the morning of Thursday 2 April 1981 by attacking him with an axe while he
was sleeping. Her counsel at the trial sought to raise a defence of provocation but the learned trial judge
refused to leave that issue to the jury. The principal issue argued before us on this appeal is whether his
Honour was correct in withdrawing provocation from the jury.
The events of the night of Wednesday 1 April, which are said to have amounted to provocation,
occurred, on the appellant’s case, against an appalling background of domestic violence and ill treatment.
The deceased and the appellant (who is now forty seven years of age) were married in 1954. There are
six children of the marriage, five girls and one boy, whose ages range from twenty five to thirteen years.
The deceased was violent, domineering, and manipulative, being at all times determined to have his own
way. He had affairs with other women and even brought one of them with him when he visited his wife in
hospital following the birth of a child. He regularly used threats and violence towards the appellant and the
children. Unknown to the appellant, the deceased committed incest with all his daughters. The two eldest
left home for this reason some five years ago. In the case of the daughter Denice, who gave evidence,
sexual interference by the deceased began when she was six years of age and actual intercourse began
when she was ten. The deceased terrorised the girls as well as their mother by means of violence and
threats.
The tensions which existed in the home as a result of that conduct began to intensify when the
daughters, Denice and Annette, returned from a holiday in Melbourne on Friday 27 March 1981. They
indicated that they wished to leave home and to go to Melbourne to live. The deceased reacted violently
and refused to let them go. The deceased’s bad mood continued over the weekend. On the Tuesday,
following the violent scene, the deceased forced the three girls, Denice, Annette, and Fiona, to leave
the house. He then visited the appellant at her place of employment and created an angry scene. The
appellant persuaded the girls to return. The deceased took Denice out in a motor car leaving the appellant
to worry about her safety. The deceased raped Denice in the car and inflicted knife wounds on her. When
they returned home the appellant saw the injuries. The deceased announced that there would be no more
talk of the girls leaving home. The appellant did not sleep at all that night, and on the Wednesday morning
she obtained a rifle from the house next door and bought some bullets. Later that morning Denice told the
appellant about the history of sexual interference with the girls. This was the appellant’s first knowledge
of that sexual abuse. It affected her profoundly. She said in evidence that she ‘seemed to freeze up,
everything went cold’. She has little recollection of what occurred at work that day. She was alone in the
house for an hour or two after arriving home from work. At about half an hour after midnight, the deceased
and Denice arrived home.
In the light of that recital of the version of the facts most favourable to the appellant, it is desirable
to make some observations as to what does not constitute provocation in law. The loss of self-control,
which is essential, is not to be confused with the emotions of hatred, resentment, fear, or revenge. If the
appellant, when in control of her mind and will, decided to kill the appellant because those emotions or
any of them had been produced in her by the enormity of the deceased’s past behaviour and threatened
future behaviour or because she considered that that was the only way in which she or her children could
be protected from the deceased’s molestations in the future, the crime would nevertheless be murder.
The law of a well ordered and civilised society cannot countenance deliberate killing, even to the extent of
treating it as extenuated, as a response to the conduct of another, however abhorrent that conduct might
be. Nor can society countenance killing as a means of averting some apprehended harm in the future.
The law, of course, permits the use by a person of force, even to the extent of inflicting death, if that is
necessary to defend that person against immediately threatened harm. But the law has always and must
always set its face against killing by way of prevention of harm which is merely feared for the future.
Other measures which are peaceful and lawful must be resorted to in order to deal with threats of future
harm. Self-defence is therefore not in question in this case. Moreover, the history of incest occurring in
the absence of the appellant cannot of itself amount to provocation unless they are spoken or done to or
in the presence of the killer (Fisher (1837) 8 C & P 182; 173 ER 452; Mouers (1921) 57 DLR 569; Terry
[1964] VR 248; Arden [1975] VR 449), although, of course, such words or conduct may be important as
part of the background against which what is said or done by the deceased to the killer is to be assessed.
In determining whether the deceased’s actions and words on the fatal night could amount to
provocation in law, it is necessary to consider them against the background of family violence and sexual
abuse. I have reached the conclusion that, at least on the version of the facts most favourable to the
appellant, it was open to a reasonable jury to take the view that an ordinary person possessing those
characteristics of the appellant which rendered her susceptible, might suffer, in consequence of the
deceased’s words and actions on the fatal night, a loss of self-control to the extent of doing what the
appellant did. The deceased’s words and actions in the presence of the appellant on the fatal night might
appear innocuous enough on the face of them. They must, however, be viewed against the background of
brutality, sexual assault, intimidation and manipulation. When stroking the appellant’s arm and cuddling
up to her in bed, and when telling her that they could be one happy family and that the girls would not
be leaving, the deceased was not only aware of his own infamous conduct but must also have at least
suspected that the appellant knew or strongly suspected that, in addition to the long history of cruelty, he
had habitually engaged in sexual abuse of her daughters. The implication of the words was therefore that
this horror would continue and that the girls would be prevented from leaving by forms of intimidation
and manipulation which were only too familiar to the appellant. In this context it was, in my opinion, open
to the jury to treat the words themselves and the caressing actions which accompanied them as highly
provocative and quite capable of producing in an ordinary mother endowed with the natural instincts of
love and protection of her daughters, such a loss of self-control as might lead to a killing. A jury might
find, to adopt the words of Dixon J in Parker (1963) 111 CLR 610 at 630, ‘all the elements of suddenness
in the unalleviated pressure and the breaking down of control’ as the night’s events reached their climax
in the bed. There was the effect of a sustained course of cruelty over the years: Jeffrey [1967] VR 467 at
484. There was, moreover, the progressive build-up of tension and horror from the time the girls returned
on the previous Friday. There was the intensification of the tension on the Wednesday night. The effect of
the final actions and words are to be gauged in this context. There was, it is true, some interval of time
between the provocative conduct and the killing, but in the words of Windeyer J in Parker at 663, ‘passion
and emotion were mounting not declining’.
Some formulations, particularly in early times, of the rule as to provocation require that conduct to
amount to provocation must be unlawful. It seems, however, that unlawfulness as a separate requirement
has become obsolete. It is not mentioned in the classic formulation in Duffy [1949] 1 All ER 932 and
has not been mentioned in modern cases decided on the common law in the High Court of Australia, the
House of Lords, or the Privy Council. This is not surprising. In times when the criteria of provocation were
‘expressed in terms directed to duels and personal quarrels among men who ordinarily bear arms or to
violence produced by violence’ (Parker at 630 per Dixon CJ), it was natural to include the unlawfulness
of the conduct as one of the criteria. The modern cases, however, are not for the most part concerned
with clashes between armed men, but with provocative conduct of a different type, very often consisting
of matrimonial infidelity or wounding words and gestures, which conduct is frequently not unlawful. If
the requirement of unlawfulness which was considered to be one of the criteria of provocation could be
satisfied by a tendency of the conduct towards a breach of the peace, the requirement added nothing
to what is required by the objective test as to self-control. If conduct is such as might cause an ordinary
person to lose his self-control to such an extent as to perpetrate the violent act which has resulted in
death, it must assuredly have a tendency towards a breach of peace. In my opinion, unlawfulness can no
longer be regarded as a separate element in the test, and it is satisfied by a tendency towards a breach
of the peace; the conduct in this case satisfies that element. Words and actions on the part of a husband
towards his wife, which convey to her, as a reasonable person, the implication that the husband intends
to continue an infamous course of domineering and incestuous behaviour towards their daughters and to
prevent them from escaping, must surely have a tendency towards a breach of the peace.
I think also that it was open to a reasonable jury to conclude that this appellant did lose her self-
control and that she killed while in that state. The ferocity of the attack and the words and actions which
accompanied it, as described by the appellant, are suggestive of loss of control. The appellant in her
evidence did not expressly describe her state of mind in terms of loss of self-control, but that is not
necessary: Lee Chun-Chuen [1963] AC 220 at 232. Loss of self-control can be shown by inference
instead of direct evidence: Lee Chun-Chuen at 233; Hopper [1915] 2 KB 431; Kwaku Mensah [1964]
AC 83; Sreckovic [1973] WAR 85. There is sufficient, in my opinion, in the circumstances of the killing and
the account given by the appellant to enable a jury, if it thought proper, to infer that the appellant killed at
a time when she had lost her self-control.
There is, I am bound to say, a substantial body of evidence which tends to indicate that the appellant
killed the deceased, not in consequence of any loss of self-control, but in consequence of a decision
made while in command of her mind and will, and motivated by hatred and by a desire to ensure that
he never again molested her daughters. There is, indeed, much evidence to suggest that the decision to
kill was made many hours before the fatal incident occurred. It is unnecessary to refer in detail to this
evidence. It would require the careful consideration of a jury at a new trial. To say that there is an issue fit
for the consideration of a jury is to say nothing as to whether that issue ought to be resolved in favour of
the prosecution or the defence. Whatever might be thought of the cogency of the evidence suggestive of
the formation of an intention to kill quite independently of any provocation offered by the words or conduct
of the deceased on the Wednesday night, there is, in my opinion, material on the issue of provocation
which ought to have been left to the jury …
In my opinion, the conviction should be set aside and there should be a new trial on the information.
[Jacobs J agreed with King CJ. Zelling J dissented.]
Questions
4.35 Why did King CJ and Jacobs J reverse the trial judge’s decision to withdraw the
defence of provocation from the jury’s consideration?
4.36 In the opinion of the trial judge, what provocative acts were committed in the presence
of the accused?
4.37 Did King CJ and Jacobs J strictly limit the deceased’s provocative conduct to events
that occurred in the presence of the accused?
4.38 Did King CJ and Jacobs J hold that the provocative conduct must itself be unlawful
in order to amount to provocation as a matter of law? What legal reasoning did they
offer on this issue?
4.39 Why did the Full Supreme Court order a new trial rather than substitute a verdict of
voluntary manslaughter?
4.2.3.6 Must V be aware of the accused’s presence?

Whereas the above issue of presence focuses on the knowledge (sight or hearing) of the
defendant in respect of the provocative conduct, this issue focuses on whether the victim must
be aware of the defendant’s presence. We are once again confronted with an issue upon which
there is conflicting authority.
In R v Fricker (1986) 42 SASR 436, V and D’s girlfriend were unaware that D could see
them through a window, embracing and fondling. The South Australian Court of Criminal
Appeal held that the defence was unavailable because there was no offering of provocation
toward D, as V and D’s girlfriend were acting in privacy and were not aware that D was watching
and listening. Thus, Fricker appears to fly in the face of the general rule (noted earlier) that
the provocative conduct need not be directed at, or intended to provoke, the defendant.
For a decision in support of the general rule, see the Victorian Court of Appeal’s decision in
R v Gardner (1989) 42 A Crim R 279.
Question
4.40 Simone Weil is having an affair with her accountant. She does not want Cicero,
Simone’s spouse, to discover the affair. Unknown to Simone, Cicero sees her entering
a motel with her accountant. Cicero flies into a rage and kills his spouse as she leaves
the motel. Should the judge decide that there is prima facie provocative conduct, and
thus leave the issue to the jury to decide?
What must be emphasised, however, is that the legal inquiry at this stage is concerned with
whether or not the conduct amounts to provocative conduct. In answering that question, the
above cases establish two general criteria: (a) the judge and jury must consider the cumulative
effect of all the provocative conduct; and (b) there must be at least some provocative conduct
that occurs in the presence of the defendant. As general criteria, how they are used in any
particular case requires detailed attention to the manner in which the facts are constructed
in the judgments. The same is true in regard to the third and final (objective) element of the
defence.
4.2.3.7 The victim must provoke the accused

At common law the victim must provoke the accused. The victim does not, however, have to be
directly involved in the provocative conduct. At the very least, the victim must be implicated in
or connected with the provocation. If the victim is involved to a lesser extent (or not at all), then
the defendant cannot rely on that conduct as constituting provocative conduct for the purpose
of the doctrine: R v Gardner (1989) 42 A Crim R 279.
An example is the case of Roche v The Queen (1987) 29 A Crim R 168. In this case, V was in
bed with D’s estranged wife when he was discovered by D. Short of that moment of discovery,
V had played no active part in provoking D. The limit of his participation was his involvement
with D’s wife. It was held that provocation had indeed arisen from both parties (V and D’s wife);
see also R v Gardner (1989) 42 A Crim R 279.
Questions
4.41 In Fricker, did V intentionally offer provocation to the defendant? Was V connected
with the provocation?
4.42 In cases where V does not wish D to discover his or her provocative conduct, but D
does discover it and kills, will V be taken to have provoked D?
4.43 Does V’s conduct nonetheless qualify as provocative if V apologises for it?
In New South Wales the victim’s conduct must be ‘towards or affecting the accused’: Crimes
Act 1900 (NSW) sub-s 23(2)(a). It has yet to be determined judicially whether these words
extend to conduct which is not within eyesight or earshot of the accused (which may on one
analysis be the common law requirement).
At common law there is an important exception (which involves the application of the
doctrine of transferred malice—see Chapter 1) to the rule that the provocation must stem from
the victim. It concerns mistaken killings, where the accused is provoked by one person but kills
another by mistake: see R v Voukelatos [1990] VR 1 at 3–4; P Gillies, Criminal Law (4th edn,
1997). This exception does not apply in New South Wales: Crimes Act 1900 (NSW) sub-s 23(2).
At common law the defence is available even where the accused has intentionally caused
the deceased to act in a provocative manner: R v Voukelatos [1990] VR 1; Edwards v The Queen
[1973] AC 648. As New South Wales and South Australia are common law jurisdiction, the
same rule must be assumed to apply in those jurisdictions unless and until the New South
Wales and South Australia Parliaments express a contrary view, either expressly or by necessary
implication.
4.2.3.8 The subjective element: loss of self-control

Assuming the conduct element of the defence is satisfied, the doctrine introduces what is perhaps
the key notion involved in the modern doctrine of provocation: namely, self-control and its loss.
It is the loss of self-control that serves as the cornerstone of the law’s willingness to recognise the
defence as a ‘concession to human frailty’. As the quoted expression implies, it is axiomatic that
as normal human beings, we are all capable of self-control. What the doctrine of provocation
recognises is that we do not all exercise self-control. It is in recognition of this fact that the
second element of the defence requires the defendant to have actually lost his or her self-control.
The third element of the defence (the objective test) then draws a distinction between normal
and abnormal loss of self-control. We will examine the third element in the section 4.2.3.10.
What must be stressed for present purposes is that if one is successful in interposing the defence
of provocation, the law is effectively saying that, under the circumstances, the extent of that loss
of self-control was at least within the range of normal human temperament.
What is required in order to satisfy the second or ‘loss of self-control’ element of the defence?
This element requires: (1) that the defendant has in fact lost his or her self-control as a result of
the provocative conduct; and (2) that as a consequence of that loss, and while still being in a state
of loss, the defendant kills the person involved in provoking the defendant. The crucial concept
here is the notion of a loss of self-control that is causally linked to the provocative conduct and still
operating at the time the defendant kills. As these requirements are entirely subjective, the second
or ‘loss of self-control’ element of the defence is often referred to as the ‘subjective test’. Although
the loss of self-control typically arises out of anger, it can also arise out of fear. For the purposes
of the defence, it is immaterial whether the provocative conduct induces the defendant to lose
self-control out of anger or fear: Van Den Hoek v The Queen (1986) 161 CLR 158 at 166–7 (per
Mason J).
What counts as an actual loss of self-control by the defendant? In this area, the judges have
been enthusiastic in their use of metaphors to describe this loss. As Gleeson CJ remarked:
The necessity to resort to metaphor in expounding the law on this subject is disconcerting.
References to supposed raising or lowering of blood temperature, reason becoming
unseated, and passion mastering understanding, seem calculated to confound, rather
than assist analytical reasoning. However, our understanding of consciousness and
mental processes, as compared to our understanding of more readily observable physical
phenomena, is so limited that metaphor seems generally to be regarded as essential in the
expression of ideas which guide us in this area of discourse: Chhay v The Queen (1994)
72 A Crim R 1 at 9.
Here, the law is trying to think of an excessive passion and has no language, other than metaphor
(and specifically antithesis), with which to think it. What is encompassed by the metaphor of
loss of self-control is precisely the same as when we say, in everyday exasperation, ‘have you lost
your mind?’ Mason J provides further elaboration in Van Den Hoek v The Queen (1986) 161
CLR 158 at 166–7:
Traditionally the onset of sudden passion involving loss of self-control characteristic

of provocation has been associated with acts or actions which provoke the accused to
uncontrollable anger or resentment … a notion that may be traced back as far as Aristotle.
Indeed, the historical concept of provocation as a defence has reflected the ordinary
meaning of the word, that is, an act or action that excites anger or resentment. These days,
however, judicial discussion of the doctrine places emphasis on the accused’s sudden and
temporary loss of self-control, without necessarily attributing that loss of self-control to
anger or resentment, except in so far as it is asserted that the act which causes death was
done as a result of passion or, as it is colourfully expressed, ‘in the heat of passion’.
The only means of acquiring a deeper understanding of what is meant by ‘loss of self-control’
is, as Mason J suggests, to read our philosophy and history or, in other words, to read our
legal language. For those interested in bedside reading, Aristotle’s Nicomachean Ethics is the
philosophical reference that Mason J uses but does not cite.
4.2.3.9 Suddenness
As you are now aware, the judiciary has made repeated references to the notion of a sudden loss
of self-control. This is derived from a statement made by Devlin J in R v Duffy [1949] 1 All ER
932 at 933 that, by repeated citation, seemed to have hardened into a rule of law and, as such,
into a distinct requirement of the doctrine of provocation. For two reasons, this is no longer
true under the present common law doctrine. The first reason is attributable to the operation
of the ‘cumulative effect rule’, which requires that all provocative conduct on the part of the
deceased be taken into account—not merely the ‘triggering’ event. The second reason is simply
a function of the requisites of the second element of the defence; namely, that there must be a
causal connection between the provocative conduct and the defendant’s loss of self-control, and
the defendant must have killed at a time when s/he was still in that state of loss of control.
That is not to suggest that suddenness or the lack thereof in losing control is not an important
evidentiary factor in the success or failure of the defence. In point of fact, the longer the time
interval between the last act of provocation and the time of the killing, the more difficult it will
be for the defendant to persuade the fact-finder that s/he killed while acting in a state of loss of
self-control resulting from the provocative conduct. Conversely, the smaller the time interval
between the final provocative act and the time of the killing, the more likely it is that the fact-
finder will be persuaded that these requirements have been satisfied.
In short, the current law is that the defence of provocation will not be defeated by an interval
of time when it is apparent that the defendant has not regained self-control. However, the longer
the interval of time, the less credible the defendant’s argument will be that there was a loss of self-
control—and specifically a loss of control that was operating at the time of the killing. The fact
that the defence is not lost because an interval of time has passed in which the defendant has not
regained self-control was reaffirmed in Pollock v The Queen [2010] HCA 35 (20 October 2010).
In that case, a majority of the High Court relied upon common law principles in construing s
304 of the Criminal Code (NT); specifically, the court construed s 304 as not requiring the
accused to demonstrate as an element of this statutory defence of provocation that the killing
occurred prior to the time that an ordinary person’s blood (or passion) would have cooled.
In New South Wales, the requirement of suddenness has been expressly abolished: Crimes
Act 1900 (NSW) sub-s 23(2).
Questions
4.44 In Parker’s case, what conduct amounted to provocative conduct, and what lapse of
time was there between the last provocative act and the killing? Was there sufficient
time for the defendant to regain control?
4.45 At trial, who decides whether the defendant did in fact kill while acting under a state
of loss of self-control brought about by the provocative conduct?
4.46 From the cases you have read thus far, what conduct do the judges consider as
conduct expressing self-control and conduct expressing loss of self-control?
4.47 If it is accepted that a reasonable person would have had sufficient time to regain
self-control, will D be able to satisfy the second or ‘loss of self-control’ element of the
defence?
4.2.3.10 The objective element: the ordinary person

The third and final element of the defence requires that the provocative conduct be of such a
character as might have caused a hypothetical ordinary person, in like circumstances, to lose
self-control to such an extent as to act as the defendant did. As the defendant’s loss of control is
judged according to an objective standard, this particular element of the defence is sometimes
referred to as the ‘objective test’. Though easily stated, this element has engendered more than its
fair share of controversy. In particular, the controversy has centred on the meaning of the term
‘ordinary person’, for purposes of the defence of provocation. In Stingel v The Queen (1990)
171 CLR 312, the High Court grappled with this thorny issue. Although Stingel involved a
construction of the term ‘ordinary person’ in the context of s 160 of the Criminal Code 1924
(Tas) (which has now been abolished), the majority was clear in pointing out that their decision
was predicated on common law principles (at 320 per Mason CJ, Brennan, Deane, Dawson,
Toohey, Gaudron, and McHugh JJ).
Prior to examining this element in more detail, it should be noted that at common law and
in New South Wales, the test is framed in terms of possibility; that is, whether an ordinary
person might, or could have lost control: Crimes Act 1900 (NSW) sub-s 23(2)(b).
Stingel v The Queen

(1990) 97 ALR 1
Judgment
Mason CJ, Brennan, Deane, Dawson, Toohey, Gaudron, and McHugh JJ: This is an appeal, pursuant
to special leave, from a decision of the Court of Criminal Appeal of Tasmania (Nettlefold, Underwood, and
Wright JJ) dismissing an appeal from the appellant’s conviction of murder. The issue which the appeal
raises is whether, as the Court of Criminal Appeal held, the learned trial judge was correct in ruling that the
matters relied upon by the appellant as giving rise to a defence of provocation under s 160 of the Criminal
Code (Tas) (the Code) were not capable of constituting provocation under that section with the result that
that defence to the charge of murder was not left to the jury. The questions of law raised by that issue are
important and of some difficulty.
It is common ground that, in the early hours of the morning of 5 June 1988, the appellant, then aged
19, killed a young man named Jason Scott Taylor by stabbing him in the chest with a butcher’s knife.
At the time he was killed, Taylor was sitting with his 17-year-old girl friend (A) in a car parked in the
Recreation Ground at Scottsdale, a town near Launceston. The general nature of the relationship between
the appellant and A was not really in dispute. The relationship provides the context in which the events
of the night of 4 June must be viewed for the purpose of determining whether a defence of provocation
should have been left to the jury.
From May until about November 1986, A and the appellant went out together on a regular basis. At
that time A was a pupil at the Scottsdale High School. The relationship between them broke up, after a
series of arguments, about the time when A left school. It resumed for a few days around Christmas and
was then permanently terminated by A. Notwithstanding A’s communicated desire not to associate with
the appellant, he was and remained, to use the learned trial judge’s words, ‘obsessed by or infatuated
with’ her and would not leave her alone. He frequently waited for her outside her place of employment. He
followed her about and tried to talk to her. On a number of occasions when A told him she did not want
to see him or talk to him, he threatened her with violence. He even threatened to kill her so that no one
else could ‘have’ her.
In October or November 1987, A obtained a court order restraining the appellant from approaching
her or talking to her. At that time A was keeping company with another young man, Walter Baxter, who
gave evidence that the appellant frequently followed the two of them. On one occasion, according to
Baxter, he had been in the appellant’s car when the appellant pulled up, produced a rifle, fired a shot in
the air and told Baxter that that was what he proposed to do with anyone who ended up with A.
On Christmas Eve 1987, the appellant approached A while she was with her father and Baxter. There
was an exchange of words between A’s father and the appellant and the appellant struck the father’s car
as he drove off. On another occasion around Christmas 1987, the appellant approached A and informed
her that Baxter would ‘get it’ if he came to see her. Subsequently, the appellant was convicted of breach
of the restraining order.
The relationship between Baxter and A came to an end in January 1988. About that time, A developed
what the appellant described as ‘a loose relationship’ with Jason Taylor. By 4 June 1988, the appellant
(according to his unsworn statement at the trial) believed that Taylor was using A: ‘Pick her up, usually at
the football club cabaret, have sex with her, and have nothing more to do with her. ’
There was a considerable dispute at the trial about events on the night of 4 June leading up to the
killing of Jason Taylor and about the precise circumstances of the killing. It is common ground that the
issue involved in the appeal, namely, whether a defence of provocation should have been left to the jury,
falls to be resolved by reference to the version of events most favourable to the accused (see, eg, Lee
Chun-Chuen v R [1963] AC 220 at 230; Parker v R (1963) 111 CLR 610 at 161; Bedelph v R [1980]
Tas R 23 at 30, 42; Hutton v R [1986] Tas R 24 at 29–30). That version of events, which is, in important
respects, in sharp conflict with the sworn testimony of A, was contained in the appellant’s unsworn
statement. It is as follows.
On the evening of the killing there was a cabaret at the premises of the Scottsdale Football Club.
The appellant, A, and Taylor were all there. The appellant was feeling ‘unwell’ by reason of the combined
effect of having ‘got real drunk the night before’ and ‘a bad stomach ulcer which was playing up’. During
the course of the evening at the Club, he ‘consumed one Bundy and Coke … at about 9.15 p.m.’, having
already taken ‘a couple of Valium tablets at 7.30 p.m.’. The appellant was aware that Taylor and A were
also at the Club. He did not approach them, but ‘kept an eye on what (A) was doing’ and ‘noticed that
Jason Taylor was very drunk—real drunk’. At about 10 p.m. and ‘for no reason’ which the appellant could
see, Taylor walked up to him and punched him in the stomach. That made the appellant ‘feel more crook’
and he ‘started trembling’. According to the appellant, the ‘punch wasn’t to start a fight’. The appellant
‘kept right away and sat down’. Later, during the evening, he had ‘a couple of dances’ with three different
females. Subsequently, he saw A ‘kiss Ian Sowell’. Not long after, he saw an altercation between A and
Taylor, who ‘started pushing her around and telling her to ‘Piss off, piss off’’. The appellant moved over
to where they were.
His unsworn statement continues:
I wanted to go up to her and comfort her, but I didn’t have the courage. I was a bit frightened about
what would happen about the restraining order. Some other people came in and started comforting
her. I motioned my arms to the people who was with her to see if she was alright. She seemed to
calm down and remained in the company of other people.
Shortly afterwards, the appellant had a further encounter with Taylor in the Club. He asked Taylor why
he didn’t leave A alone. Taylor replied: ‘Yeah, yeah.’ Taylor ‘was crying drunk at this stage. He had tears
in his eyes and was falling all over the place.’ Taylor then took A, who was crying, outside. A came back
inside by herself and was still crying.
The cabaret at the Club finished at about 1 a.m. on the Sunday. The appellant ‘was aware that there
were several parties on afterwards’. He went to one of them. He had seen Taylor leave the Club with A and
noticed that they were not at the party. He remained at that party for about 15 minutes and then ‘went
for a drive down the street’. He ‘was concerned’ that Taylor ‘might hurt’ A. He had seen Taylor ‘throw a
drink followed by a glass at A on a previous occasion and … had seen her pushed about by him’. He
went to another local party where he remained for five minutes. He then went to a local café where he got
something to eat and remained for about half an hour. He returned to the second party for a further five
minutes. When he left there, he walked down the street with some other friends. He then got back into
his car ‘and decided to go for a drive and then went to the clubrooms’. His unsworn statement continues:
I went into the Recreation Ground. I saw Jason sitting in his car. He was sitting in the front seat and
appeared to be dozing. I decided to go over and have a talk to him about getting into A. I parked my
car facing the same way as his, about two metres away. I got out of the car and yelled ‘Taylor, Taylor’.
Just before I opened his door I saw A. I could see her head across his lap. I noticed he had no trousers
on. I then opened the door. I saw her giving him a head job. I saw she had her trousers off. He then
said ‘Piss off, you cunt, piss off’. She was still in the same place. After he spoke, she sort of looked
up. I then spat it. I felt myself getting really wild. Seeing her like that with him and being told to ‘Piss
off, you cunt’ by Jason caused me to lose control. We had not been alone often. I just got wild. I had
looked after her. She had told me she had been raped when she was little. She used to cry in my
arms over it. I was shocked. I felt that he was hurting me.
He had no trousers on and had an erection. She was naked from the waist down. I left the door
open and turned around and went back to my car. I lit up a smoke. I had a butcher’s knife in the car.
I got it and took a couple of draws on my cigarette. I looked back at Jason and the car door was still
open. Jason still had an erection and he was playing with himself.
She was naked in the car. I had smoked about a quarter of the cigarette. I don’t know what
happened to the cigarette, but I think that I put it out. The week before at football training he called
her ‘a slut’ because she got onto Tim Groves (George). I have remembered this since I made my
statement to the police. I pushed his right shoulder with my left hand. His hands came up towards
me to push me. I had the knife in my right hand, blade downwards. I grabbed the knife in both hands
and lunged downwards at him. I did not care where the knife went. I think the knife hit one of his
hands and then into his chest.
It all happened so quickly. It was what I had seen that really worked me up. I was really worked
up at the time. When I went out with A I had never had sex with her. She had told me she was
frightened of sex and that she had been raped when she was little. I don’t know but I feel that perhaps
she may have been forced into what she was doing. I knew that Jason was only using her, that he
did not love her, whereas I did.
It all happened really quickly. No-one said anything.
I was all worked up and feeling funny. It was like I was in a rage, almost to the stage where I felt
dazed. It was like I really didn’t know what happened until the knife went into him.
The defence of provocation, both at common law and under statutory provision, has attracted a
wealth of learned and instructive judicial and academic discussion. The judgments of members of the
Tasmanian Supreme Court in the many cases involving an issue of provocation that have arisen since
the enactment of the Code have made a significant contribution to that discussion. One finds in the
authorities, including some Tasmanian judgments, a perception that, in this particular field of criminal
law, the common law, the Codes and other statutory provisions, and judicial decisions about them, have
tended to interact and to reflect a degree of unity of underlying notions. While we share that perception,
we have thought it preferable, in disposing of the present appeal, to keep the focus of our consideration
firmly fixed upon the provisions of s 160 of the Code. In that regard, we are influenced by the fact that
the provocation provisions of the Code differ significantly from the provocation provisions of the Criminal
Codes of Queensland and Western Australia.
Section 160 relevantly provides:
(1) Culpable homicide, which would otherwise be murder, may be reduced to manslaughter if the person
who causes death does so in the heat of passion caused by sudden provocation.
(2) Any wrongful act or insult of such nature as to be sufficient to deprive an ordinary person of the power
of self-control, and which, in fact, deprives the offender of the power of self control, is provocation, if
the offender acts upon it on the sudden, and before there has been time for his passion to cool.
(3) Whether the conditions required by sub-section (2) were or were not present in the particular case is
a question of fact, and the question whether any matter alleged is, or is not, capable of constituting
provocation is a matter of law.
The section can be traced to s 176 of the Draft Code prepared by the Criminal Code Bill Commission
of 1879 for submission to the British Parliament. The draft s 176, like the Draft Code of which it formed
part, was not introduced in England. It was, however, adopted by the Canadian Parliament and was in
force in Canada when the code was enacted by the Tasmanian Parliament in 1924 (see Criminal Code
RSC 1906, c 146, s 261, formerly Criminal Code 1892, c 29, s 229). The only variation between s 160(1)
and (2) of the Code on the one hand and the corresponding sub-sections of the United Kingdom draft
and the Canadian Code on the other was the insertion of the words and punctuation ‘and which, in fact,
deprives the offender of the power of self-control, is’ in the Tasmanian sub-s (2) in substitution for the
words ‘may be’.
The argument in the present case centred around four distinct questions … The second is the
content of the test embodied in s 160(2)’s requirement that the wrongful act of insult be ‘of such a nature
as to be sufficient to deprive an ordinary person of the power of self control’. The third is the function
of a trial judge in deciding, pursuant to s 160(3), whether ‘any matter alleged is, or is not, capable of
constituting provocation’. The fourth, which is the ultimate issue on the appeal, fails to be answered in
the light of the answers to those three earlier questions. It is whether the learned trial judge was, in the
circumstances of the case, correct in declining to leave provocation to the jury.
‘Of such a nature as to be sufficient to deprive an ordinary person of the power of self-control’
The requirement that the wrongful act or insult be of such a nature as to be sufficient to deprive an
ordinary person of the power of self-control is clearly intended to involve an objective threshold test. It
is only if that test is satisfied that it becomes necessary to consider whether the accused was, in fact,
subjectively deprived of his or her self-control. As Wilson J pointed out in R v Hill (1986) 1 SCR 313
at 342; (1986) 25 CCC (3d) 322 at 344, the ‘rather cryptic statutory language requires interpretation
in order to achieve the presumed purpose of the legislature in requiring the accused’s conduct to be
measured against that of the ‘ordinary person’’. Wilson J went on to identify ‘the rationale underlying the
objective test’ in words (SCR at 343; CCC at 345) which are, in our view, applicable to the corresponding
test in s 160 of the Code:
The objective standard, therefore, may be said to exist in order to ensure that in the evaluation of
the provocation defence there is no fluctuating standard of self-control against which accuseds are
measured. The governing principles are those of equality and individual responsibility, so that all
persons are held to the same standard notwithstanding their distinctive personality traits and varying
capacities to achieve the standard.
As will be seen, however, that does not mean that the objective test was intended to be applied in a
vacuum or without regard to such of the accused’s personal characteristics, attributes, or history as serve
to identify the implications and to affect the gravity of the particular wrongful act or insult.
Section 160(2)’s objective test refers merely to depriving ‘an ordinary person of the power of self-
control’ without expressly identifying the extent of the necessary loss of control. In Parker v R, Taylor and
Owen JJ were of the view that similar words in the objective test contained in s 23(2) of the Crimes Act
1900 (NSW) should be construed as referring to such a loss of self-control by ‘an ordinary person’ as
would encompass what the accused had done. Their Honours said (at 641):
… surely, when the proviso requires that the provocation must be such that it was reasonably
calculated to deprive an ordinary person of the power of self-control, and did in fact deprive the
accused of such power, it is speaking of loss of the power of self-control in relation to the act or acts
causing death. And, of course, the provocation must have been of such a character as was calculated
to deprive an ordinary person of the power of self control to that extent.
This extract from their Honours’ judgment was approved by four of the five members of the court
in Johnson v R (1976) 11 ALR 23; 136 CLR 619 at 637–8 (per Barwick CJ) and 658 (per Gibbs J, with
whom Mason J (at 660) and Jacobs J (on the relevant question, at 666) agreed). It should be accepted
as applying to s 160(2) of the Code. Accordingly, the wrongful act or insult must have been capable of
provoking an ordinary person not merely to some retaliation, but to retaliation ‘to the degree and method
and continuance of violence which produces the death’ (Holmes v Director of Public Prosecution [1946]
AC 588 at 597; and see, generally, Sreckovic v R [1973] WAR 85 at 91).
The central question posed by the objective test—ie of such a nature as to be sufficient—obviously
cannot be answered without the identification of the content and relevant implications of the wrongful act
or insult and an objective assessment of its gravity in the circumstances of the particular case. Conduct
which may in some circumstances be quite unprovocative may be intensely so in other circumstances.
Particular acts or words which may, if viewed in isolation, be insignificant may be extremely provocative
when viewed cumulatively. Thus, in Moffa, where the deceased’s insulting conduct had culminated in the
throwing of a telephone at the applicant, Gibbs J commented ((CLR) at 616; (ALR) at 233):
However, it is no doubt right to infer that the throwing of the telephone was only the last straw
that caused the applicant’s control to collapse. In any case, in deciding whether there is sufficient
evidence of provocation, it is necessary to have regard to the whole of the deceased person’s conduct
at the relevant time, for acts and words which considered separately could not amount to provocation
may in combination, or cumulatively, be enough to cause a reasonable person to lose his self-control
and resort to the kind of violence that caused the death. Everything that the deceased said and did
on 21 August must therefore be considered in deciding whether there was provocation.
In the same case, Barwick CJ ((CLR) at 606) referred to the ‘totality of the deceased’s conduct’ and
pointed out that ‘a jury would be entitled to view the situation in its entirety’.
Even more important, the content and extent of the provocative conduct must be assessed from
the viewpoint of the particular accused. Were it otherwise, it would be quite impossible to identify the
gravity of the particular provocation. In that regard, none of the attributes or characteristics of a particular
accused will be necessarily irrelevant to an assessment of the content and extent of the provocation
involved in the relevant conduct. For example, any one or more of the accused’s age, sex, race, physical
features, personal attributes, personal relationships, and past history may be relevant to an objective
assessment of the gravity of a particular wrongful act or insult, so understood and assessed, upon the
power of self-control of a truly hypothetical ‘ordinary person’. Subject to a qualification in relation to age
(see below), the extent of the power of self-control of that hypothetical ordinary person is unaffected
by the personal characteristics or attributes of the particular accused. It will, however, be affected by
contemporary conditions and attitudes (see per Gibbs J, Moffa, (CLR) at 616–17). Thus in Parker (at 654),
Windeyer J pointed out that many reported rulings in provocation cases ‘show how different in weight and
character are the things that matter in one age from those which matter in another’.
It has been suggested that, under a provision such as s 160(2), the jury should ‘be instructed to
put themselves, as the embodiment of the ordinary person, in the accused’s shoes’ for the purpose of
determining the possible effect of the wrongful act or insult upon the power of self-control of the ordinary
person (see, eg, R v Hill (SCR) at 347); when read in the context of a particular summing up, it seems
to us that it should be avoided. True it is that the jury, viewed collectively, can be seen as representing
the ordinary or the average member of the public. To instruct the jury to put themselves in the shoes
of the accused for the purpose of determining whether the wrongful act or insult was of such a nature
as to deprive an ordinary person of the power of self-control could, however, involve the danger that it
might be construed by an individual juror as an invitation to substitute himself or herself, with his or
her individual strengths and weaknesses, for the hypothetical ordinary person. The result could be to
displace the objective standard by the particular juror’s subjective view of his or her personal power of
self-control regardless of whether it would be greater or less than that which should be attributed to a
hypothetical ordinary person. If that occurred, it would be but a short step to the position where a defence
of provocation would be sustained by a particular juror only if that juror was prepared to concede that he
or she would have been guilty of the crime of manslaughter if placed in the situation of the accused. That
would involve a mistaken and unduly harsh operation of s 160(2)’s objective test.
The function of the ‘ordinary person’ in s 160(2) should not be confused with the role of the
‘reasonable man’ in the law of negligence (see, eg, Moffa (CLR) at 613; R v Webb (1977) 16 SASR
309 at 313). Before ‘provocation becomes an operative factor’ in a murder trial, the prosecution ‘must
have satisfied the jury beyond reasonable doubt that murder, provocation apart, had been committed by
the accused’ (per Barwick CJ, Johnson (CLR) at 633). To make what the reasonable man of the law of
negligence would have done in the circumstances the controlling standard of what might constitute a
defence of provocation to a charge of murder would in effect be to abolish the defence since it is all but
impossible to envisage circumstances in which a wrongful act or insult would so provoke the circumspect
and careful reasonable man of the law of negligence that, not acting in self-defence, he would kill his
neighbour in circumstances which would, but for the provocation, be murder. The point was well made by
the Full Court of the Supreme Court of Victoria (Herring CJ, Smith and Hudson JJ) in R v Enright [1961]
VR 663 at 669, in a passage which was subsequently adopted by Neasey J, in the Tasmanian Court of
Criminal Appeal in Kearnan v R (2 August 1968, unreported):
The doctrine of provocation is often stated in terms which make its application depend upon whether
the provocation was such as could have destroyed the self-control of a ‘reasonable’ man. In this
field, however, the ‘reasonable’ man is not that model of prudence that he tends to become in
the law of torts. Here he is, by hypothesis, a person capable of losing his self-control to the extent
of internationally wounding or even killing another, when there is no need to do so for his own
protection: Attorney-General for Ceylon v Perera [1953] AC 200. It is preferable, we think, to refer
to him, as many of the cases do, as the ‘ordinary’ man. That expression points to the fact that he
is brought into the doctrine for the purpose of denying the benefits of it, not to all those who react
unreasonably to provocation, but only to those whose reactions show a lack of self control falling
outside the ordinary or common range of human temperaments.
The assumption underlying the objective test in s 160(2) is not that to do an act which would otherwise
be murder may be an ordinary or reasonable reaction to a wrongful act or insult. The assumption is that
a wrongful act or insult may be of such a nature as to be sufficient to provoke an ordinary person to
lose his or her self-control to an extent that he or she does the unreasonable and extraordinary, that is
to say, an act which, were it not for the provocation, would constitute the crime of murder. In its context
in s 160(2), the phrase ‘to be sufficient to’ should not be construed as meaning ‘would’. It should be
construed as meaning ‘to have the capacity to’, ‘to be capable of’ or ‘could’ or ‘might’ (see R v Fricker
(1986) 42 SASR 436 at 443).
No doubt, there are classes or groups within the community whose average powers of self-control
may be higher or lower than the community average. Indeed, it may be that the average power of self-
control of the members of one sex is higher or lower than the average power of self-control of members of
the opposite sex. The principle of equality before the law requires, however, that the differences between
different classes or groups be reflected only in the limits within which a particular level of self-control
can be characterised as ordinary. The lowest level of self-control which falls within those limits or that
range is required of all members of the community. There is, however, one qualification which should be
made to that general approach. It is that considerations of fairness and common sense dictate that, in
at least some circumstances, the age of the accused should be attributed to the ordinary person of the
objective test.
If s 160(2) were applicable only to cases where the accused was an adult, there would be no
compelling reason why the references to the power of self-control of an ordinary person should be
construed otherwise than as referring to the power of self-control of an ordinary adult. The sub-section
is, however, applicable to cases where the accused is criminally responsible while still an infant (see
the Code, s 18). It has generally been accepted that it would be unduly harsh to require of an immature
accused the minimum standard of self-control possessed by the ordinary adult. True it is that there are
those who would see this qualification as a departure from an entirely objective standard of self-control. It
is one thing to say that age may be taken into account in assessing the gravity of provocation but another
thing altogether to say that it should determine the degree of self-control required in the circumstances.
And once it is accepted that the required standard of self-control may be qualified by immaturity, then
it may be argued that the qualification should be extended to other human conditions such as sex or
senility. Moreover, it cannot be said that the criminal law displays a similar solicitude for youth in other
areas. The test of criminal negligence giving rise to involuntary manslaughter is, for example, entirely
objective, taking no account of the age of the accused (see Director of Public Prosecutions v Newbury
[1977] AC 500). But the approach may be justified on grounds other than compassion, since the process
of development from childhood to maturity is something which, being common to us all, is an aspect
of ordinariness. In McHale v Watson (1966) 115 CLR 199 at 213–14, Kitto J spoke of the exclusion of
abnormalities in the formation of an objective standard of care for the purposes of negligence. His words
are apposite in the present context:
The principle is of course applicable to a child. The standard of care being objective, it is no answer
for him, any more than it is for an adult, to say that the harm he caused was due to his being
abnormally slow-witted, quick-tempered, absent-minded or inexperienced. But it does not follow that
he cannot rely in his defence upon a limitation upon the capacity for foresight or prudence, not as
being personal to himself, but as being characteristic of humanity at his stage of development and
in that sense normal. By doing so he appeals to a standard of ordinariness, to an objective and not
a subjective standard. In regard to the things which pertain to foresight and prudence—experience,
understanding of causes and effects, balance of judgement, thoughtfulness—it is absurd, indeed
it is a misuse of language, to speak of normality in relation to persons of all ages taken together. In
those things normality is, for children, something different from what normality is for adults; the very
concept of normality is a concept of rising levels until ‘years of discretion’ are attained. The law does
not arbitrarily fix upon any particular age for this purpose, and tribunals of fact may well give effect
to different views as to the age at which normal adults’ foresight and prudence are reasonably to be
expected in relation to particular sets of circumstances.
There is, we think, adequate justification in policy, reason, and authority for taking age, in the sense of
immaturity, into account in setting the standard of self-control required by reference to the ordinary man
(see Camplin, at 717–18, 721–2; R v Romano (1984) 36 SASR 283 at 288–9; Hill (SCR) at 332, 337,
350–1, and 353; (CCC) at 336, 340, 351, and 353).
A more difficult question is whether the age of the accused should be attributed to the ordinary
person in a case such as the present, where the accused is a young adult in his or her late teens (see
Age of Majority Act 1973 (Tas) s 3). As a broad generalisation, it is true to say that the powers of self-
control of a young adult of 18 or 19 years are likely to be less than those of a more mature person. On
balance, it seems to us that the preferable approach is to attribute the age of the accused to the ordinary
person of the objective test, at least in any case where it may be open to the jury to take the view that the
accused is immature by reason of youthfulness. It should be mentioned that there are statements in some
cases which support the view that the ‘ordinary person’ under an objective test such as that contained in
s 160(2) should be invested with the sex as well as the age of the particular accused (see eg, Camplin,
at 718; R v Conway (1985) 17 CCC (3d) 481 at 487). As we have indicated, however, we consider that
the only characteristic or attribute of the particular accused which should be attributed to the ‘ordinary
person’ for the purposes of the objective test of s 160(2) is that of age (cf R v Romano, at 288–9; Hill
(SCR) at 351–2; (CCC) at 351).
In the light of what has been written above, the effect of the threshold objective test of s 160(2) can be
stated in summary form. It is to pose for the jury the question whether, in all the circumstances of the case,
the wrongful act or insult, with its implications and gravity identified and assessed in the manner we have
indicated, was of such a nature that it could or might cause an ordinary person (or, when appropriate, an
ordinary person of the age of the accused), that is to say, a hypothetical or imaginary person with powers
of self-control within the limits of what is ordinary (for a person of that age), to do what the accused did.
A consideration of that question will almost inevitably involve projecting the hypothetical ordinary person
of s 160(2) into the position of the accused at the time of the killing. There is nothing objectionable about
that so long as it is remembered that the reference to the ordinary person of s 160 is not a reference to
a person of precisely identifiable powers of self-control but a reference to a person with powers of self-
control within the range or limits of what is ‘ordinary’ for a person of the relevant age. In that regard, it
must be borne in mind that s 160(2) refers to ‘an ordinary person’ and not to ‘the average person’.
A projection of the ‘ordinary person’ of the objective test into the position of the accused at the time
of the killing will, however, involve a particular difficulty in a case where the existence of some attribute
or characteristic of the accused is relevant both to the identification of the content of the gravity of the
wrongful act or insult and to the level of power of self-control of any person possessed of it. As Crawford
J pointed out in Jeffrey v R [1982] Tas R 199 at 233, self-control tends to reflect many characteristics
and ‘the degree of self-control possessed by a person may vary according to the specific qualities of his
character’. If, for example, a person is obsessively jealous or extraordinarily excitable and pugnacious,
his powers of self-control are hardly likely to be within the range which might properly be regarded as
‘ordinary’ (cf R v Fricker, at 445). In a case where it is necessary to take some such characteristic or
attribute into account for the purpose of identifying the content or gravity of the wrongful act or insult (eg
a case of grave insult centred upon that characteristic or attribute), the objective test will, none the less,
require that the provocative effect of the wrongful act or insult, with its content and gravity so identified, be
assessed by reference to the powers of self-control of a hypothetical ‘ordinary person’ who is unaffected
by that extraordinary attribute or characteristic. In other words, the fact that the particular accused lacks
the power of self-control of an ordinary person by reason of some attribute or characteristic which must
be taken into account in identifying the content or gravity of the particular wrongful act or insult will not
affect the reference point of the objective test, namely, the power of self-control of a hypothetical ‘ordinary
person’.
The function of the trial judge under s 160(3)

Unlike some other statutory provisions dealing with a defence of provocation, s 160 contains no reference
to onus of proof. In the absence of such reference, the fundamental principle enunciated in Woolmington
v Director of Public Prosecutions [1935] AC 462 is applicable with the result that, in a case where the
evidence gives rise to a question of provocation, the onus lies upon the Crown to disprove provocation
beyond reasonable doubt (see Packett v R (1937) 58 CLR 190 at 212, 222; Moffa (CLR) at 607–8, 612,
628). That that is so has long been accepted in Tasmania and was not questioned in argument of the
present appeal.
The words ‘and the question whether any matter alleged is, or is not, capable of constituting
provocation is a matter of law’ were introduced into s 160(3) in 1934. It has been suggested (see per
Clark J, Packett v R (1937) 33 Tas LR 18 at 44) that the purpose of that amendment was ‘to restore the
law as laid down in Thorpe v R ’ (1925) 18 Cr App R 189. In Thorpe’s case (at 191), the Court of Criminal
Appeal (Hewart LCJ, Avory and Shearman JJ) stated the law as being:
If there is no evidence on which a verdict of manslaughter can properly be found, it is the duty of the
judge not to leave the question to the jury, notwithstanding that it has not been raised by the defence,
and is inconsistent with the defence which is raised. (And see, generally, Van Den Hoek v The Queen
(1986) 161 CLR 158 at 161–2; 69 ALR 1.)
It is unnecessary to consider whether the amendment of s 160(3) was, in truth, necessary to ‘restore’
the position at common law. It suffices to say that the reference to ‘matter alleged’ in sub-s (3) should be
construed as meaning matter or material in the evidence and that, at least in its amended form, sub-s
(3) entrusts to the trial judge the ‘question of law’ whether there is material in the evidence capable of
constituting provocation. If, but only if, that question of law is answered in the affirmative, provocation
must be left to the jury for its consideration, even in a case where it has not been specifically relied upon
by the defence.
In determining the answer to that question of law, a trial judge must be mindful of the fact that, where
provocation is raised by the evidence, the ultimate question for the consideration of the jury must be
framed by reference to the onus of proof resting upon the prosecution. So framed, that ultimate question
would be whether the jury are satisfied beyond reasonable doubt of the absence of provocation, that is to
say, that the killing was unprovoked in the relevant sense. As Dixon J pointed out in Packett, at 213–14:
… upon the question whether a finding of manslaughter on the ground of provocation would in a
given case be unreasonable, the ruling of the House of Lords in Woolmington’s case has, of course,
an important bearing. For it may be open to entertain a reasonable doubt of provocation although it
would be unreasonable to find affirmatively that provocation existed and was sufficient.
A trial judge must also be mindful of the fact that the question is not whether he or she considers
that there is a reasonable doubt that the killing was unprovoked. As s 160(3) makes clear, that is a
question for the jury. The question for a trial judge is whether there is material in the evidence which
is ‘capable of constituting provocation’. The result is that the question for a trial judge under s 160(3)
can be summarised as being whether, on the version of events most favourable to the accused which
is suggested by material in the evidence, a jury acting reasonably might fail to be satisfied beyond
reasonable doubt that the killing was unprovoked in the relevant sense.
The critical question is whether the jury might, if it accepted that view of the gravity and implications
of the provocative conduct, have entertained a reasonable doubt about whether the objective test was not
satisfied. In our view, no jury could have entertained such a reasonable doubt. The appellant’s infatuation
with—and associated jealousy in relation to—A was something which itself inevitably detracted from
his actual powers of self-control. That being so, while the infatuation could be relevant to assessing the
gravity of the insult involved in the profane and dismissive comment made to him, it cannot be seen, for
the purposes of the objective test, as diminishing the power of self-control of the hypothetical ordinary
person. There is an added element of artificiality involved in projecting the hypothetical ordinary person
of the objective test into the situation of the appellant at the time of the killing since it is unlikely that
a person with power of self-control within the range attributable to a hypothetical ordinary 19-year-old
would, in all the circumstances, including the court order restraining the appellant from approaching A,
have been at the scene in the first place. Certainly, in the context of that court order and of the appellant’s
past harassment of A, notwithstanding her discouragement of his advances, it is difficult to conceive that
any ordinary 19-year-old would have been even surprised to be told in strong and abusive terms to go
away when he intruded, as the appellant did, upon the privacy of the deceased and A as they voluntarily
engaged in sexual activity late at night in a darkened car. Be that as it may, no jury, acting reasonably,
could fail to be satisfied beyond reasonable doubt that the conduct of the deceased, including the insulting
remark and the sexual activities in which he and A were allegedly engaging, was not of such a nature as to
be sufficient to deprive any hypothetical ordinary 19-year-old of the power of self-control to the extent that
he would go to his own car, obtain a butcher’s knife, and fatally stab the deceased with it. Put differently,
no jury, acting reasonably, could fail to be satisfied beyond reasonable doubt that the appellant’s reaction
to the conduct of the deceased fell far below the minimum limits of the range of powers of self-control
which must be attributed to any hypothetical ordinary 19-year-old.
It follows that the learned trial judge was correct in declining to leave a defence of provocation under
s 160 to the jury. The appeal should be dismissed.
Questions
4.48 From which jurisdiction did this case arise?

4.49 Although the defence of provocation has now been abolished in Tasmania, why is this
decision important in terms of precedent?
4.50 Was D’s appeal successful?
4.51 What age was D?
4.52 What was isolated as the provocative conduct and ‘trigger incident’?
4.53 Which limb of the ‘ordinary person’ test was under consideration before the High
Court?
4.54 Why did the High Court opt for the ‘ordinary’ rather than ‘reasonable person’ standard
in applying the objective component of the defence of provocation?
4.55 Did the High Court follow Camplin in so far as that case held that that the ‘ordinary
person’ should be invested with both the age and sex of the accused in regard to the
second limb of the objective test?
4.56 On what basis did the High Court conclude that the ‘ordinary person’ should be
invested with the age of D for the purposes of the second limb?
4.57 On what basis did the High Court find that on the facts, the second limb would not
have been satisfied?
4.58 How did the High Court state the test of whether an accused has satisfied the eviden-
tial burden with regard to the defence of provocation?
The objective test enunciated in Stingel was later reaffirmed by the High Court in
R v Masciantonio (1995) 129 ALR 575. The test consists of two limbs that may be expressed
in terms of whether the provocation was such that a hypothetical ordinary person in the same
circumstances as the accused:
(1) might have been provoked; and
(2) might have lost self-control to such an extent as to act as the defendant did in resorting to
the use of deadly force.
4.2.3.11 The first limb

The first limb involves an objective assessment of the magnitude or ‘gravity’ of the conduct that
is said to constitute the provocation. Under this limb, the focus is limited solely to the question
of whether an ordinary person, in like circumstances, might have been provoked—not whether
such an ordinary person might have been provoked to such an extent as to act as the defendant
did. In applying this test, the hypothetical ordinary person is credited with all of the defendant’s
personal attributes, save for the exceptions of being in a self-induced state of intoxication or
having an unusually excitable or pugnacious personality: DPP v Camplin [1978] AC 705
at 718 (per Lord Diplock); at 722 (per Lord Morris); at 725 (per Lord Simon); R v Dutton
(1979) 21 SASR 356 at 357 (per King CJ); at 377 (per Cox J); R v Dincer [1983] 1 VR 460 at
463 (per Lush J). Thus, characteristics such as the defendant’s age, gender, ethnicity, personal
experiences, physical characteristics, and the like, are imputed to the ordinary person under this
limb. In reality, therefore, the first limb is a hybrid test that is comprised of both objective and
subjective components. With nearly all of the defendant’s personal characteristics imputed to
the ordinary person in deciding whether such a person in like circumstances would have been
similarly provoked, it is all but a foregone conclusion that the defendant will surmount the
first limb of the objective test. Thus, the law gives at least the appearance of being eminently
fair and generous to the accused. In Masciantonio v The Queen (1995) 129 ALR 575 at 581,
the majority’s joint judgment summed up the first limb of the objective test in the following
broad terms:
the gravity of the conduct said to constitute the provocation must be assessed by all the
relevant characteristics of the accused. Conduct which might be insulting or hurtful
to one person, might be extremely so to another because of that person’s age, sex, race,
ethnicity, physical features, personal attributes, personal relationships or past history. The
provocation must be put into context and it is only by having regard to the attributes or
characteristics of the accused that this can be done.
4.2.3.12 The second limb

The apparent generosity extended by the first limb is belied, however, by the fact that the defence
of provocation fails unless the defendant can surmount the second and more demanding limb
of the objective test. It is here that the defendant must demonstrate that reasonable doubt exists
as to whether the provocation was of such a nature that an ordinary person might have lost self-
control to such an extent as to act as s/he did. But under this limb, the only personal attribute
that is credited to the hypothetical ordinary person is the defendant’s age. Thus, the second limb
of the objective test essentially nullifies the individual differences that are taken into account in
the first limb.
Excluding characteristics such as the defendant’s ethnicity, personal history, physical
attributes and other factors from the second limb may appear to be excessively restrictive and
inconsistent with the notion that the provocation defence was spawned as a concession to
human frailty. If, for example, black or Jewish persons are subjected to racial or ethnic taunts
that might fairly be considered as violently provocative when addressed to blacks or Jews
respectively, but not others, is it fair to treat them as though they were not black or Jewish
for purposes of the second limb of the objective test? On the other hand, to what extent can
the law impute a defendant’s personal characteristics to the ‘ordinary’ person under the second
limb without rendering some persons more equal than others before the law? It may well be
that characteristics other than age do actually filter into the jurors’ deliberations through that
portion of the second limb that requires them to determine whether an ‘ordinary’ person of the
defendant’s age, in like circumstances, might have lost self-control to such an extent as to resort
to the use of deadly force. Can there really be ‘like circumstances’ without imputing factors such
as race and ethnicity in certain situations? For a severe critique of the current state of the law
regarding the second limb of the objective test, see Masciantonio v The Queen (1995) 129 ALR
575 (per McHugh J); for a staunch defence of the current law, see Green v The Queen (1997) 148
ALR 659 (per Kirby J). Green v The Queen (1997) 148 ALR 659 is the most recent High Court
decision in which provocation was revisited. However, it did not provide further clarification on
the issue, nor did it overrule Stingel or Masciantonio.
Questions
4.59 If D sees his wife kissing V and is so enraged that he kills V, would provocation be
established if the ‘ordinary person’ would not have killed?
4.60 Do you believe that the ‘ordinary person’ test ensures that the defence of provocation
is not subject to a fluctuating standard of self-control against which defendants are
measured?
4.61 What is the difference between the ‘ordinary person’ and the ‘reasonable person’?
4.62 What were Murphy J’s objections in Moffa to the ‘ordinary person’ test?
4.63 In a country like Australia, whose national identity is defined according to a multicultural
standard, does it make any sense to speak of the ‘ordinary person’? If it does, what
characteristics would you attribute to the personality of the ordinary person?
4.64 D is a hot-tempered man. At a bar, V becomes intoxicated and makes abusive
remarks about D, who is also intoxicated. As a result, D throws a broken bottle at V
and kills him. Will the fact that D is hot-tempered be taken into account in applying
the objective test? Will D’s intoxicated state be taken into account?
4.65 What are the limits of the individualisation of the objective standard?
4.66 Should a woman who has killed her husband be entitled to have the fact that she is
suffering from battered women’s syndrome taken into account in the operation of the
objective test?
4.67 Should an urban Koori be able to argue that his or her individual and cultural history
are relevant in considering whether an ordinary person might have been provoked to
such an extent as to have acted as s/he did?
In South Australia, the, history, rationale, and future of the provocation defence was recently
discussed by Kourakis J in R v Hajistassi [2010] SASC 111, where the Court of Criminal Appeal
of South Australia upheld the decision of the trial judge not to allow the provocation defence
to go to the jury.
R v Hajistassi
(2010) 107 SASR 67; [2010] SASC 111
(Court of Criminal Appeal, South Australia)
Judgment
Kourakis J: As the substantive law of manslaughter presently stands, an offence which would otherwise
be murder is manslaughter if the prosecution fails to disprove the following elements beyond reasonable
doubt:
(a) Provocative conduct of the deceased or his proxy which, assessed from the perspective of the accused,
has the capacity to cause an ordinary person to lose self control to such an extent that he kills; and
(b) A resulting sudden and temporary loss of self control to the extent that the accused kills before he
has had the opportunity to regain his composure because he is not the master of his mind.
It is the obligation of the trial Judge to direct the jury on all legal questions which are put in issue
at trial and are raised by the evidence. In the context of provocation manslaughter, it is often said that
there must be evidentiary material which is capable of constituting manslaughter. To put the threshold for
leaving manslaughter by reference to an evidentiary onus is a convenient shorthand, but care must be
taken not to slide from an evidentiary onus to a persuasive one. In Stingel v The Queen and Masciantonio
v The Queen, the High Court warned that the threshold test is more accurately stated as ‘whether, on the
version of events most favourable to the accused which is suggested by material in the evidence, a jury
acting reasonably might fail to be satisfied beyond reasonable doubt that the killing was unprovoked in
the relevant sense’.
I have had the benefit of reading the draft judgment of White and David JJ. For the reasons given by
their Honours, I agree that on the evidence the jury could not have failed to have been satisfied that the
appellant was in control when he killed his victim. I also agree with their Honours in concluding that the
jury must have been satisfied that an ordinary person in the proven circumstances would not have lost his
self control such that he would decide to kill or cause serious harm. However, I provide my own reasons
for coming to this latter conclusion below.
Provocation—the historical and contemporary context

The appellant’s contention that the trial Judge erred in law in failing to leave provocation to the jury,
notwithstanding the concession at trial that provocation was no part of the defence case, provides yet
another instance of the problematic nature of the defence both as a matter of practice and in point of
legal principle. In light of contemporary social norms and neuropsychological learning, the legal test for
provocation appears to me to be artificial and, I think, increasingly difficult to apply. I wish to briefly explain
why that is so.
Manslaughter by provocation appears to have emerged from the doctrine of ‘manslaughter by chance
medley’ where a killing on a sudden falling out between men armed with deadly weapons was treated
as manslaughter because the circumstances negatived malice aforethought. Stephen described the
evolutionary stage from that early doctrine which had been reached by the 18th century in this way:
The superficial view that when one man kills another it must be either upon waylaying and
premeditation or upon a sudden falling out, has been superseded by the broader and deeper
view that the moral character of homicide must be judged of principally by the extent to which the
circumstances of the case show, on the one hand, brutal ferocity, whether called into action suddenly
or otherwise, or on the other, inability to control natural anger excited by a serious cause.
By the 19th century an act which would otherwise be murder was manslaughter ‘if the act by which
death is caused is done in the heat of passion caused by provocation unless the provocation was sought
or voluntarily provoked by the offender as an excuse for killing or doing bodily harm’. The law accepted
that assaults, fights and the sight of adultery could amount to sufficient provocation. In the draft code
proposed by the Criminal Code Commissioners late in the 19th century, ‘provocation’ was defined in a
way which, on its face, closely resembles the law as it is applied today:
Any wrongful act or insult of such a nature as to be sufficient to deprive an ordinary person the power
of self control … if the offender acts upon it on the sudden and before there has been time for his
passion to cool.
However, in the 20th century the requirement of ‘suddenness’ was relaxed. A little later the ordinary
person was psychologically cleft and endowed with a subjective appreciation of the gravity of the
provocative conduct, but left with ‘ordinary’ powers of self control.
The primary difficulty with the defence of provocation is that the concept of ‘loss of self control’
has no precise psychological, social or legal meaning. In one sense whenever an unjustified killing is
committed there has been some loss of self control. The law, however, distinguishes between a sudden
short-lived loss of self control experienced in the face of offensive conduct and a more persistent resolve
to transgress against the moral precept against homicide. Secondly, as I have mentioned, the law
distinguishes between those with the ordinary power of self control and those without it. There is no clear
bright line against which to make either of the distinctions.
Neuropsychological studies have identified particular parts of the brain which are responsible for
inhibition and self control. The prefrontal cortex appears to be the site of ‘executive function’, which
regulates impulsive-aggressive behaviour. Lesions to the orbital-frontal area are associated with impulsive
aggression. Imaging of the brain has shown a difference in neural activity in those regions of the brain
between persons suffering borderline personality disorders with a behavioural dysfunction and control
groups. Other studies have differentiated between disturbed inhibition of behaviour, diminished capacity
to reflect on consequences and the inability to postpone reward (delay aversion) and have identified
different mechanisms which may be responsible for each of those dysfunctions.
The detail of these studies is not of present importance. What is important is that neuropsychology
has identified a physiological basis for the law’s distinction, which is not practically susceptible of forensic
proof in a criminal trial, between a sudden loss of self control and premeditated behaviour. But that very
physiological basis suggests that a loss of self control of the order under consideration here results from
an organic dysfunction of the cerebral mechanisms responsible for self control.
To my mind it is not at all surprising that the explanation for some persons losing self control to the
point of killing may be a dysfunction of those parts of the brain responsible for impulse control rather
than the incapacity of those mechanisms, even when properly functioning, to limit the ordinary person’s
response to provocative conduct. I would be very surprised if, at least in contemporary Australian society,
many persons or even more than a very small number of them would kill in the face of the insults that are
still considered sufficient to cause an ‘ordinary’ person to lose self control. The Law Reform Commission
of Western Australia has taken a similar view:
As discussed below, a common feature of intimate partner homicides is the breakdown of the
relationship or jealousy caused by infidelity. Bearing in mind the incidence of divorce and the
frequency in which other relationships end, it is clear that ordinary people do not respond to
relationship breakups or infidelity by killing their partners. As Coss stated, ‘[m]en who kill when
affronted by their intimate partners are truly extraordinary’. (emphasis in original)
I acknowledge that it ‘is not an appropriate test for provocation to ask whether most people would
have responded in the same way as the accused’. A jury must consider whether an ordinary person
could lose self control and kill as a result of provocation. However, the undoubted truth that most people
do not react in that way must inform the question whether an ordinary person could lose self control in
similar circumstances and suggests that he (and it is most often a man who relies on this partial excuse)
could not. In my view, common human experience suggests that an abnormality in the functioning of the
brain which controls behaviour of the sort discovered by neuropsychological investigation is a more likely
cause of a sudden loss of self control than a hypersensitivity to such insults as infidelity or homosexual
advances which are still sometimes considered sufficient to raise provocation. In this respect I share
the difficulty expressed by Cox J in the following passage in R v Romano in accepting that the ordinary
person would lose control and kill in response to provocation of the sort that has been accepted as
sufficient in the past:
There is no difficulty in regarding what the wife allegedly said as callous and hurtful and possibly
confirmatory of an infidelity that the accused had previously suspected. It is to be borne in mind,
however, that a successful defence of provocation requires the possibility of an ordinary man reacting
as the accused reacted—that is, not returning his wife’s abuse or even striking her, but shooting at
her with the intention either of killing her or of doing her some really serious harm. For myself, I do not
find that an easy proposition to accept. There is not much point in the law insisting upon an objective
element in a provocation defence in this respect and then attributing to the ordinary man an ability
to kill or to inflict serious physical harm with a lethal weapon in response to quite disproportionate
provocation. It is not a matter of standards or moral judgment or sensitivity or compassion, but of how
ordinary people, even ordinary people with particular characteristics, behave. However, it must be
acknowledged that the test, as shown in such cases as Moffa v The Queen and The Queen v Webb
and The Queen v R, is not as exacting as it once was. I must be guided, in my understanding of the
ordinary man, by the majority judgments in those cases, not by the minority judgments.
Ultimately, the objective element of provocation is determined not so much by a hypothetical factual
inquiry into the fictional mind of the ordinary person but by the application of a normative standard to
the provocative conduct. The objective test of provocation is fundamentally determined by the question
of whether society would accept that a person who loses self control in those circumstances and kills
should be distinguished from others who form, and act on, an intention to kill. Whether or not an ordinary
person would have lost self control in the face of the relevant provocative conduct ultimately involves the
application of a social standard based on contemporary values.
The social context which informs that standard has changed much since the 19th century. An
‘ordinary’ military officer would now be expected to refrain from killing a colleague who spits in his face
after branding him a coward. For myself, I would doubt whether much of the conduct which was thought
at various times over the last century to have the capacity to cause an ordinary person to lose self control
to the point of killing another would now be so regarded. Modern police forces have proliferated and
methods of policing have advanced considerably since the establishment of the Metropolitan Police Force
for London in 1829 by Sir Robert Peel. The appropriate response to a sudden falling out or an actual or
apprehended assault, where self defence is not immediately necessary, is to seek police assistance and
later, if appropriate, compensation. Some of the other grounds which traditionally have been thought to
have the potential to cause a person with ordinary self restraint to lose control reflect a view of manhood
which is no longer generally accepted. There do not appear to be any sound policy reasons to treat the
sudden discovery of infidelity, the shock of a homosexual advance or other similar personal affronts as a
sufficient basis to partially excuse what would otherwise be murder.
Tension with excessive self defence manslaughter

The continued existence of manslaughter by provocation also causes some incoherence with the law
relating to the partial excuse of murder by reason of excessive self defence. The decision in R v Howe,
that excessive self defence reduces what would otherwise be murder to manslaughter, was affirmed in
Viro v The Queen. It is still the law in South Australia. In Van Den Hoek v The Queen, Mason CJ held that
a loss of self control induced, at least in part, by fear would reduce murder to manslaughter. Mason CJ
thought that there was no inconsistency between the two defences because provocation focused on loss
of self control and the defence of self defence on the appropriateness of the response. At the time Van
Den Hoek was decided it was still the common law position that excessive self defence reduced murder
to manslaughter. That position was reversed in Zecevic. In Masciantonio v The Queen, which was decided
after Zecevic, the High Court referred to that part of judgment of Mason CJ in Van Den Hoek with approval.
In my respectful opinion, although it is true that there is strictly no inconsistency in the dual position
that provocation and excessive self defence can reduce what would otherwise be murder to manslaughter,
there is much practical tension between them. If excessive self defence is negatived because it is proved
beyond reasonable doubt that the accused knew that his conduct was not necessary for a defensive
purpose, it is difficult to see how or why his loss of self control should partially excuse murder and reduce
the killing to manslaughter when, on this premise, the accused was sufficiently rational to appreciate that
his conduct was not defensive.
Interstate reform
Provocation has been abolished in Tasmania, Victoria, and New Zealand.
The Law Reform Commission of Western Australia has recommended the repeal of the relevant
statutory provision of the Criminal Code of Western Australia together with the reform of replacing
the mandatory life sentence for murder with a ‘prescriptive sentence of life imprisonment’. This
recommendation recognises that since the abolition of the death penalty the distinction between a
premeditated killing and one resulting from a sudden loss of self control may, subject to mandatory non-
parole provisions, be accommodated in sentencing.
In the Northern Territory and the Australian Capital Territory non-violent sexual advances are deemed
to be insufficient to provoke on an ordinary person to kill.
Application to this case

Recognising that the power of self control which the ordinary man is expected to exercise is a question
of fact to be decided in each case, trial Judges and the Court of Criminal Appeal must approach their
respective tasks informed not only by the majority judgments of the past to which Cox J referred in
Romano but also by contemporary community standards.
The provocative conduct relied on by the appellant in this case is the argument which he had with
the deceased about his mother and the subsequent fight in which his eyes were gouged. The violence
inflicted on the appellant’s mother was not in itself conduct capable of provoking the appellant in the legal
sense, nor was the disclosure of that violence by the appellant’s mother the provocative conduct of the
deceased. Domestic violence is unfortunately all too common, but there are many agencies available to
give assistance to the victims of that violence. I understand that many sons in the appellant’s position may
wish to confront their mother’s tormentor. However, applying contemporary normative standards I would
hold that even the ordinary person who comes to blows over the issue would not become so incensed
by a combination of indignation at the response of the unrepentant perpetrator of the violence and being
overwhelmed by a fear of injury to himself that he would lose control and kill. I therefore find that a
reasonable jury would be satisfied that the ordinary person would not be so affected by the combination
of fear and anger that the appellant may have felt that he would form, and act on, an intention to kill.
[In a separate judgment, White and David JJ concurred with the judgment of Kourakis J. Appeal
dismissed.] [Footnotes omitted.]
4.2.4 New South Wales: statutory provocation

In New South Wales, s 23 of the Crimes Act 1900 provides for a statutory defence of provocation:
23 Trial for murder—provocation

(1) Where, on the trial of a person for murder, it appears that the act or omission causing
death was an act done or omitted under provocation and, but for this subsection and
the provocation, the jury would have found the accused guilty of murder, the jury
shall acquit the accused of murder and find the accused guilty of manslaughter.
(2) For the purposes of subsection (1), an act or omission causing death is an act done or
omitted under provocation where:
(a) the act or omission is the result of a loss of self-control on the part of the
accused that was induced by any conduct of the deceased (including grossly
insulting words or gestures) towards or affecting the accused, and
(b) that conduct of the deceased was such as could have induced an ordinary
person in the position of the accused to have so far lost self-control as to have
formed an intent to kill, or to inflict grievous bodily harm upon, the deceased,
whether that conduct of the deceased occurred immediately before the act or omission
causing death or at any previous time.
(3) For the purpose of determining whether an act or omission causing death was an act
done or omitted under provocation as provided by subsection (2), there is no rule of
law that provocation is negatived if:
(a) there was not a reasonable proportion between the act or omission causing
death and the conduct of the deceased that induced the act or omission,
(b) the act or omission causing death was not an act done or omitted suddenly, or
(c) the act or omission causing death was an act done or omitted with any intent to
take life or inflict grievous bodily harm.
(4) Where, on the trial of a person for murder, there is any evidence that the act causing
death was an act done or omitted under provocation as provided by subsection (2),
the onus is on the prosecution to prove beyond reasonable doubt that the act or
omission causing death was not an act done or omitted under provocation.
(5) This section does not exclude or limit any defence to a charge of murder.
As noted above, the defence of provocation in New South Wales takes a statutory form.
The present s 23 was enacted in 1982, replacing the former statutory defence of provocation
provided for in the like-numbered section. The s 23 defence, like its predecessor, draws heavily
on common law principles and the preceding discussion is relevant. Like the common law, it
operates to reduce liability for murder to that for manslaughter. It provides for a subjective and
an objective test.
Like the common law, it requires that there be an act or acts of provocation causing a loss of
self-control on the part of D, as a result of which s/he kills V. The section provides that the conduct
can consist of words, reflecting the present common law position. Section 23 does not in terms
require that the provocative conduct take place in the presence of the defendant (the common
law does require this), but it has been construed as requiring this: R v Quartly (1986) 22 A Crim
R 252 at 256ff. This construction was queried by two justices of the High Court in Davis v The
Queen (1998) 73 ALJR 139, when refusing leave to appeal against conviction; see also Clarke
v The Queen [2008] NSWCCA 36 at [10]ff, [32]–[33] (where the matter was commented
upon obiter). The effect of this construction would preclude the operation of the defence in,
for example, a situation of ‘hearsay provocation’ where D is motivated to murder V after a third
party has reported provocative words by V (Clarke v The Queen, ibid).
As at common law, the provocation must come from the deceased, but it need not be aimed at
the defendant (it must be conduct ‘towards or affecting’ the defendant): R v Quartly, ibid 258–9.
The subjective test (sub-s 23(2)(a)) parallels the common law test. The defendant must have
lost control as a result of the provocation and as a result of this loss of control have killed the
person offering the provocation. Section 23 explicitly provides that the loss of control need not
have been sudden, reflecting current common law doctrine. The fact that there is a temporal gap
between the provocation and the loss of control does not represent a legal barrier to invoking
the defence, although it may represent an evidential one.
The objective test (sub-s 23(2)(b)) broadly parallels the common law equivalent, and thus
reference to the common law cases will be needed.
The provision in sub-s 23(3)(a) that the fact that there was not a reasonable proportion
between the conduct causing death and the provocation mirrors the common law; this lack of
proportion is not a legal barrier but it may be an evidential barrier to invoking the defence. Section
428F of the Crimes Act 1900 (NSW) provides that a state of intoxication is not to be imputed to
the reasonable (or ordinary) person when applying a reasonable (or ordinary) person test.
4.2.5 The future of provocation as a defence

4.2.5.1 Overview
The defence of provocation is highly controversial. It entails that there is a relevant difference
between the provoked and unprovoked killer. There have been loud calls to abolish the defence
of provocation. Academics, politicians, Standing Committees, Law Reform Committees, and

members of the general community have argued for either abolition or modification of the
defence. Calls to abolish the defence gained renewed momentum following the Victorian Court
of Appeal decision in R v Kumar (2002) 5 VR 193; [2002] VSCA 139 (this decision was prior
to the statutory abolition of provocation in Victoria, but the reasoning is still relevant given
that provocation applies in most other Australian jurisdictions). In Kumar, the court rejected
an appeal of a convicted killer, who argued that the jury should have been allowed to consider
provocation in circumstances where he killed his estranged partner after she insulted him and
his family and threatened to have sexual relations with another man in his presence. O’Bryan J
opined that the defence was anachronistic, occasionally resulted in unjustified jury verdicts and,
therefore, should be abolished. As O’Bryan explained (at [176]):
I regard provocation as anachronistic in the law of murder since the abolition of capital
punishment and would support its abolition as a so-called defence by Parliament. I adopt
the view of Kirby, J in Green, which is repeated by Eames, JA’s judgment (in this case). I have
experienced, as I believe have other judges who have presided over murder trials, unjustified
jury verdicts which could only be explained in terms of provocation … It is important and
necessary to maintain objective standards of behaviour for the protection of human life.
Judges’ views will differ, as they have in the present case, as to how an ordinary person will
react to particular conduct or words. [Footnotes omitted.]
As noted above, provocation was developed as a partial defence to murder during the
seventeenth century as a means of avoiding the mandatory death sentence for the crime of murder.
Since times have changed dramatically in this regard, another justification must be found. Given
the significant penalty discount that follows from a successful plea of provocation, it is apparent
that those who kill in response to adequate provocation are deemed less blameworthy or morally
culpable than those who kill in the absence of such provocation (or mitigating circumstances
giving rise to the partial defence of diminished responsibility (see Chapter 15)).
4.2.5.2 Culpability: harm and mental state

There are two variables that determine an actor’s level of culpability: the harm done and the
mental state of the actor. In so far as homicide offences are concerned, the former variable is
constant; death is a necessary ingredient of all homicide offences. Thus, the theory must go that
provocation links into the latter variable.
In terms of the immediate mental state that results in the killing, there is once again no
difference. To be guilty of murder or voluntary manslaughter, the actor must have intended
to cause death or grievous bodily harm to another person (or be reckless as to causing death or
grievous bodily harm).
The difference is that people who form the requisite mental state for murder because of a loss
of self-control are assumed to be less blameworthy than those who form the same mental state
for other reasons. This assumption constitutes the underpinning of the defence of provocation.
The critical issue concerning the soundness of the defence is whether this assumption is valid.
There are two arguments that can be advanced in support of this view.
4.2.5.3 Anger as a special emotion?

The first is that anger is an emotion that, for some reason, is viewed as more laudable than other
emotions that lead to the mens rea for murder. This is obviously wrong. There is a simple way
to test for the desirability of an emotion. Should it be encouraged? Does it normally lead to
desirable consequences? The answer is unequivocally no. Anger in fact seems to have almost no
redeeming features in modern-day society.
From an evolutionary perspective, it may have been possible to mount an argument that
anger was an appropriate disposition in some circumstances. For example, it may have been of
some utility in fostering the necessary courage to fend off a violent predator. And certainly the
defence of provocation was developed in a time when life was far less orderly and secure. In DPP
v Camplin [1978] AC 705, Lord Diplock considered the history of provocation. In so doing he
wrote (at 713–14):
The human infirmity upon which the law first took compassion in a violent age when men
bore weapons for their own protection when going about their business appears to have
been chance medley or a sudden falling out at which both parties have recourse to their
weapons and fight on equal terms. Chance medley as a ground of provocation was extended
to assault and battery committed by the deceased upon the accused in other circumstances
than a sudden falling out; but with two exceptions actual violence offered by the deceased
to the accused remained the badge of provocation right up to the passing of the Act of 1957.
The two exceptions were the discovery by a husband of his wife in the act of committing
adultery and the discovery by a father of someone committing sodomy on his son; but these
apart, insulting words or gestures unaccompanied by physical attack did not in law amount
to provocation.
However, in Western countries that are governed by the rule of law and where citizens enjoy
a high level of personal security, there is no positive role for anger. Accordingly, the defence is
inconsistent with current notions of a civilised society. To this end, it should be noted that to
the extent that the state cannot protect citizens from the attacks of others, anger as a defensive
mechanism is accommodated in the law by the doctrine of self-defence.
Aside from the fact that anger should not be encouraged, there is no reason in logic or
principle for allowing anger alone to serve as an excuse. As noted by J Horder, in Provocation and
Responsibility (1992) 194, 197, why do we regard anger as an excusing condition but not killings
motivated by spite, greed, and lust? Or for that matter, if the current defence of provocation
is used as a benchmark for the development of legal principle, why do we not allow emotions
that are palpably desirable to be similarly excusatory when they manifest an intention to kill?
Is it justifiable that a person who kills another out of love and kindness in a euthanasia scenario
should be guilty of murder, yet an accused who kills in anger should be convicted of the lesser
crime of voluntary manslaughter?
4.2.5.4 Anger as unavoidable?

The strongest argument in favour of preserving the defence of provocation is that while anger is
an ugly human emotion, it is a state of mind that people cannot control and, therefore, people
who kill under such circumstances are less culpable. It is this assumption that underpins the
argument that provocation is a ‘concession to the frailty of human nature’. Thus, the argument
is that anger is a common human experience that diminishes self-control, making law-abiding
behaviour more difficult.
This raises the fundamental issue in the provocation debate; namely, are people actually
capable of controlling anger and rage? Or, are there certain stimuli that are so powerful and
pointed that the will of individuals is effectively captive to them to such an extent that they have
little (if any) choice to do anything other than lash out? If it is true that human beings (or some
of them) are constituted in such a manner that an angered response is in some cases effectively
pre-determined (whether due to psychological or environmental considerations), then a strong
argument can be made that killings born out of anger are less blameworthy than other forms of
killing. If this portrait of human nature is flawed and human beings do in fact have a meaningful
level of control over their actions when confronted with unsavoury stimuli, then the response to
those who kill in anger should be altogether different. It should be something along the lines of
‘he or she should have walked away’.
4.2.5.5 The law assumes people have some degree of control over anger
To this end, the first observation that can be made is that the manner in which the defence of
provocation is structured leads inexorably to the conclusion that people are not totally at the
mercy of their emotions. The defence requires a diminished level of self-control rather than,
as the test is literally expressed, a loss of self-control. A literal loss of self-control or volition
would entitle the accused to an acquittal. Stanley Yeo correctly suggests the test of loss of control
requires that the provocative conduct creates in the accused intense anger, panic, or fear that in
turn causes the murderous intent: S Yeo, ‘Peisley: Case and Comment’ (1992) 16 Criminal Law
Journal 197 at 199. The defence recognises that even under extreme anger people make choices,
albeit choices that may later be regretted or that would not have been made absent extreme
emotion. Dressler states:
The loss of self-control is not totally excusable, because the law’s assumption is that the
provoked party was not wholly incapable of controlling or channelling his anger. If an
accused was totally incapable, a full excuse would be defensible: J Dressler, ‘Why Keep the
Provocation Defence?: Some Reflections on a Difficult Subject’ (2002) 86 Minnesota Law
Review 959 at 974.
Stated differently, if an accused forms the mens rea for murder, then a choice has been
made to pursue that path. Retaliation by physical violence is not a pre-determined response
by a person wronged and angered. The way in which the defence is structured suggests that the
angered person may choose an alternate reaction and be ‘righteously indignant’ and bring the
‘wrongdoing to the attention of the wrongdoer and perhaps others’: J Horder, Provocation and
Responsibility (1992) 96.
4.2.5.6 How much control do we have?

If one subscribes to the view that anger is controllable, albeit difficult in certain circumstances,
the next issue is how difficult? To this end, the contemporary view of human behaviour is that
people are capable of assuming greater control of their emotions. We do in fact have a meaningful
level of control regarding the depth of our emotions, and this is true notwithstanding that there
are certain stimuli that are likely to make us happy, sad, disappointed, or angry.
Following a comprehensive examination of the leading theories of emotion, William Lyons
in Emotion (1980) states that emotions stem from a four-part process. First, there must be an
object or stimulus. This can take the form of an infinite number of things, including material
(physical) objects and intentional objects (the objects of our mental states). Once a stimulus
has occurred, the actor then forms a belief about the object. The actor then evaluates the object
according to that belief. Once the evaluation has been made, an emotion may then follow. In
short, the process is: (1) object; (2) belief about the object; (3) evaluation; and (4) emotion.
There is then, of course, the behaviour that results from the emotion.
The critical point to note here is that emotions are not reflexive events. They are not things
that simply happen to us: people have significant input into their development. There are
numerous ways in which emotions can be avoided or prevented. First, one can simply avoid the
object that causes an emotion. If one is afraid of snakes, s/he should avoid grass. This alternative
is obviously limited, given that people cannot always avoid certain situations. However, there
are alternative avoidance strategies. On the basis of the model of emotion developed by Lyons,
it is possible to not only avoid the development of some emotions, but ‘also exercise control over
one’s emotions on occasion by deliberately aborting them once they have taken root’: W Lyons,
Emotion (1980) 197. Given our capacity to control our emotions and the behaviour stemming
from them, people are blameworthy for inducing in themselves an emotional state (even if the
emotion is one we usually approve of ) where it can be foreseen that such an emotional state
will lead to undesirable consequences. Moreover, excessive displays of emotion may be deemed
blameworthy:
If the occurrence of emotional states makes acting on the motives inherent in such emotional
states more likely, then deliberately to abandon oneself to an emotional state could be
deliberately to abandon what control one does have over one’s emotional behaviour. When
angry, for example, one might feel like indulging in physical violence, which usually turns
out to be morally reprehensible. Now if one fosters anger, savouring the outraged feelings
and aggressive impulses, knowing that one normally acts on them quite implosively, one
can be said to be deliberately loosening one’s aggressive impulses. If something morally
undesirable does then result from my fit of anger, I can be blamed, not merely for not
controlling my anger, but for deliberately putting myself into a position which I knew from
previous experience would lead to uncontrollable behaviour. … Now of course one need
not have fostered or induced an emotion to incur blame for its undesirable consequences.
It may just be a strong emotion in any case, with unfortunate effects, in which case one may
deserve blame for failing to try to quell the emotion and curb the behaviour stemming from
it: Lyons, ibid 205.
Psychologists affirm this view. Reilly concludes that despite offering different explanations
for the origin of extreme emotion (whether it be a combination of bio-physical mechanisms or
cognitive processes), psychologists were united in the belief that extreme emotion involves an
element of choice—and if there is choice then there can never be a loss of control. Reilly writes:
Since there is always an element of choice, there may never be a loss of self-control. If a
person’s reaction in an extreme emotional state is chosen, the element of excuse may
disappear altogether. With no loss of self control, there is only a state of violence which is
at all times connected in a complicated way to a series of choices: a choice not to get angry;
a choice whether or not to translate the anger into aggression; a choice whether or not to
enter a state corresponding to a loss of self-control in which one can act upon the aggression
without restraint; and once in this state, a choice whether or not to act with homicidal
violence: A Reilly, ‘Loss of Self-control in Provocation’ (1997) 21 Criminal Law Journal
320 at 325, 326.
Thus, it emerges that the notion of ‘concession to human frailty’ is misguided. Human
beings are not that frail after all. Angry impulses do not so overwhelm people to the point that
they enslave them. People are endowed with a high level of choice concerning how they act, even
in relation to the most provocative forms of conduct. Those who lash out when confronted with
a distasteful experience do not respond in this manner because of an absence of a meaningful
choice. They do so because they elect to do so. Indeed, while certain people are more prone to
get angry and act violently than others, people are not pre-programmed to act in such a manner.
Given that this propensity invariably leads to untoward consequences (like all other destructive
mental states), people should be required to suppress rather than vent it. It is unfortunate that
the law, by recognising provocation as a partial defence to the most serious crime known to our
system of law, has chosen to tolerate unchecked displays of anger.
People are required to suppress all other forms of emotional responses, even the typically
desirable emotional states such as love, kindness, and sympathy. And this is true even when it
is foreseeable that acting in accordance with these emotional responses will result in unlawful
(or otherwise harmful) consequences. There is no difference in principle in the case of anger.
This is especially so given that there is no evidence to suggest that emotions other than anger are
any less capable of generating the same degree of passion. The desire to save a young lamb from
slaughter (which results in an agent stealing the lamb) or the desire to ensure that a loved one
does not die in pain (resulting in an act of mercy killing) might be just as powerful as the anger
stemming from a confession of adultery. The latter should enjoy no special privilege in the law.
To continue to place anger in such a special position is unjustifiable at the psychological
and normative levels. It also runs counter to the educative role that law, especially the criminal
law and the process of state-imposed punishment, is thought to have in discouraging certain
undesirable forms of conduct. In R v Collins, unreported, Court of Criminal Appeal (Vic),
Tadgell J, 26 Nov 1984, Tadgell J, quoting the words of Sir John Barry, stated that the criminal
law (and in particular the process of punishment): ‘Serves by its solemn procedures as a teacher
of minimal standards of morality and behaviour; as an agency for the expression of public
indignation and condemnation; and as a force operating to produce cohesion within society’.
If this is correct and the law does have some educational role, a concession at the sentencing
inquiry in relation to behaviour motivated by anger can only serve to at least partially legitimise
such behaviour.
Question
4.68 Do you agree with the above discussion (in section 4.2.5)? Are there any other rea-
sons that can be offered in support of the defence of provocation? Should the defence
be abolished?
4.2.5.7 Provocation and morally objectionable standards

It has also been suggested that the provocation test is objectionable for other reasons. Most
notably it has been argued that the first hypothetical person (the one endowed with the features
of the accused) may indirectly permit racist and other morally objectionable standards to be
adopted by the law. As noted by Ian Leader-Elliott, imbuing the ordinary person with the
cultural background of the accused may give rise to essentialist views of certain cultures, thereby
incorporating racist standards into the law: I Leader-Elliott, ‘Sex, Race and Provocation: In
Defence of Stingel’ (1996), 20 Criminal Law Journal 72. See also S Yeo, ‘Sex, Ethnicity, Power
of Self-control and Provocation Revised’ (1996) 18 Sydney Law Review 304. The law ought
not to make cardinal universal norms, such as the right to one’s physical and sexual autonomy,
subservient to the misguided elitist and discriminatory ideals of cultural groups. By continuing
to do this, the defence of provocation actually discriminates against defendants who come
from cultures that advocate equality and tolerance. Why should an Anglo-Saxon defendant
be punished for killing his straying wife more than the defendant who comes from a culture in
which women are still regarded as little more than property?
Against this view, it has been suggested that to refuse to endow the ordinary or reasonable
person with the characteristics of the accused leads to inequality and discrimination. For
example, McHugh J writes:
Unless the ethnic or cultural background of the accused is attributed to the ordinary
person, the objective test of self-control results in inequality before the law. Real equality
before the law cannot exist when ethnic or cultural minorities are convicted or acquitted of
murder according to a standard that reflects the values of the dominant class but does not
reflect the values of those minorities: Masciantonio v The Queen (1995) 183 CLR 58 at 74.
This approach is arguably erroneous for two related reasons. The first is that it involves a
misunderstanding of the nature of equality. Second, it fails to pay sufficient regard to the need
for the law to adopt universal values.
Equality and non-discrimination have been treated as synonymous. The principle of equal
treatment requires that similar cases should not be treated differently and dissimilar cases must
not be treated alike unless objectively justified. In essence, discrimination is to treat people
differently when they are similar in relevant respects or to treat them similarly when they are
different in relevant respects; that is, to discriminate is to treat someone differently without a
relevant basis for the difference.
In the context of the provocation debate, the failure of the law to incorporate the values
of certain ethnic or cultural groups into the objective test would not of itself constitute
discrimination. It will only constitute discrimination if there is no relevant basis for ignoring
such values. However, there is quite often a relevant basis; namely, that the views endorsed by
the groups in question are morally offensive or otherwise lead to undesirable social hierarchies
or institutions. Cultures that subordinate the interests of groups such as women should be
ignored. It is morally wrong that men should believe and act in a way that demeans women
to the status of something akin to property. Just as it is wrong in Australia and the United
Kingdom, it is equally wrong in countries such as Iraq and Saudi Arabia. As one of us has
argued previously, there are certain universal (objective) moral truths that transcend cultures
and time: M Bagaric, ‘A Utilitarian Argument: Laying the Foundation for a Coherent System
of Law’ (2002) 10 Otago Law Review (NZ) 163. Further, if cultural traits and sensitivities are
to be incorporated into the law of provocation, there is no reason in principle that they should
be reflected in the law generally. Logical consistency would mean, for example, that some men
would be permitted to have more than one wife, female circumcision would be permitted,
and some women would be compelled to always have sex with their partners. See further, M
Bagaric & L Neal, ‘Provocation: The Ongoing Subservience of Principle to Tradition’ (2003)
67 Journal of Criminal Law 237.
Question
4.69 Do you agree that it is wrong to incorporate the individual traits of the accused into
the hypothetical person test? If provocation is retained as a defence, is there another
test that can be adopted?
4.3 The doctrine of self-defence

4.3.1 General
The doctrine of self-defence was one of the first defences that emerged in the rise of the law
of homicide. At common law, it is recognised that a person may lawfully use force or the
threat thereof in order to prevent the imminent and unjustified use of the same against his or
her person. Furthermore, since to act in self-defence is to act lawfully, the doctrine provides
a complete defence to criminal liability. As with all secondary or ‘affirmative’ defences, the
evidential burden rests with the defendant. And as with all such defences with the exception
of the insanity and diminished responsibility defences, once the evidential burden is met the
legal burden then rests with the prosecution to negate self-defence beyond a reasonable doubt.
As noted earlier in section 4.2.2, the prosecution can achieve this by negating at least one of the
constituent elements of the defence beyond a reasonable doubt.
The principles that comprise the doctrine of self-defence are also applicable to a range
of other related defences in which force or the threat thereof may be lawfully used. These
include the defence of others, the defence of property, to prevent an escape from a lawful
arrest for a crime, to effectuate a lawful arrest, and to prevent the commission of a crime: see
DO O’Connor & PA Fairall, Criminal Defences (3rd edn, 1996) 178, 195. Unlike provocation,
which, under Australian common law doctrine is generally available only as a defence to the
crime of murder (see section 4.2.2), self-defence and the foregoing related defences are available
in prosecutions for murder or any other offences that require the use of force or the threat thereof
as a constituent element (such as non-fatal assault crimes). In this chapter, however, our primary
concern is with the application of these defences in the context of murder prosecutions. Our
reason for interjecting the doctrine of self-defence and other related defences at this juncture
will become apparent after you have read the extract from Zecevic v DPP (1987) 162 CLR
645 (below), the leading High Court decision on the Australian common law doctrine of
self-defence. Because of the attention given to each of these defences in this chapter, they will
not be covered in Part 8 of this book.
The principles discussed below reflect the common law position. In Victoria the law relating
to self-defence is governed by common law principles, albeit subject to some very important
statutory changes that will be examined below. Although the law of self-defence in the other
jurisdictions is governed by statute, similar rules apply. The relevant differences are also discussed
below.
4.3.2 Subjective and objective test: common law

For many years there was confusion as to the test to be applied where self-defence was interposed
as a defence to a charge of murder. The judiciary was unclear as to whether the defence consisted
of a test that was purely subjective, or a test that combined both subjective and objective
components.
In substance, four conditions had to be satisfied for the defence to succeed:
(1) D must have believed that the use of force or the threat thereof was necessary to defend
himself or herself from the application or the threat thereof of imminent and unjustified
force against his or her person;
(2) D must have believed on reasonable grounds that it was necessary to use force or the
threat thereof for such a purpose;
(3) D must have believed that the amount of force used (or the threat thereof ) was no greater
than was necessary to defend himself or herself under the circumstances; and
(4) D must have believed on reasonable grounds that the amount of force used (or the
threat thereof ) was no greater than was necessary to defend himself or herself under the
circumstances.
The first and third conditions are regarded as subjective, while the second and fourth are
regarded as objective.
Questions
4.70 D is attacked by V. V is much smaller and weaker than D and has no special expertise
in the martial arts or self-defence. D is not only aware of this, but has achieved a black
belt in karate. D is so angered by V’s attack that he beats him to death with an iron
rod. If D pleads self-defence, is he likely to satisfy the subjective conditions?
4.71 Assuming that D succeeds on both subjective conditions, is he likely to satisfy the
objective conditions?
4.72 Should self-defence be concerned solely with D’s state of mind?
4.73 Should a successful plea of self-defence result in a complete acquittal?

4.74 Do you believe that the test for self-defence should be similar to the provocation test?
4.3.3 Conflicting case law and the rule in Zecevic

At one time it was held that where D succeeded on the subjective conditions but failed on either
of the objective conditions, D would be guilty of the lesser offence of voluntary manslaughter.
Thus, in R v Howe (1958) 100 CLR 448, the High Court held that where an accused was
entitled to use some degree of force in self-defence, but used an excessive amount of force that
resulted in the death of her attacker, the accused was guilty of voluntary manslaughter rather
than murder. This amounted to a partial defence to murder and was referred to as ‘excessive
self-defence’: S Yeo, ‘Excessive Self-defence, Macauley’s Penal Code and Universal Law’ (1990)
7 Australian Bar Review 223. The ‘excessive self-defence’ doctrine was rejected by the Privy
Council in Palmer v The Queen [1971] AC 814. The reason given for the rejection was that the
objective conditions were essential elements of the doctrine of self-defence and, therefore, the
defence was an ‘all or nothing’ proposition; that is, guilty of murder or not guilty of murder.
In Viro v The Queen (1978) 141 CLR 88, however, the High Court refused to follow the
decisions of the Privy Council on this issue and opted instead to follow the Australian common
law doctrine. Then in Zecevic v DPP, the High Court reconsidered the doctrines of self-defence
and excessive self-defence.
Zecevic v Director of Public Prosecutions

(1987) 162 CLR 645; (1987) 71 ALR 641
Judgment
Wilson, Dawson, and Toohey JJ: The issue of self-defence was raised but, notwithstanding the matters
which the appellant asserted in his unsworn statement, that issue was withdrawn from the jury by the
trial judge. His Honour took this course because he concluded that the only inference open upon the
evidence was that the appellant did not reasonably believe that an unlawful attack which threatened him
with death or serious bodily harm was being or was about to be made upon him. In so ruling the trial
judge apparently had regard to the first of the propositions laid down in Viro v R (1978) 141 CLR 88, 18
ALR 257 in the judgment of Mason J (CLR at 146–7, ALR at 303). It is convenient at this point to set out
those propositions because, as will emerge, their relevance in this case extends beyond the first of them.
They are as follows:
(1) (a) It is for the jury first to consider whether when the accused killed the deceased the accused
reasonably believed that an unlawful attack which threatened him with death or serious
bodily harm was being or was to be made upon him.
(b) By the expression ‘reasonably believed’ is meant, not what a reasonable man would have
believed, but what the accused himself might reasonably believe in all the circumstances in
which he found himself.
(2) If the jury is satisfied beyond reasonable doubt that there was no reasonable belief by the
accused of such an attack no question of self-defence arises.
(3) If the jury is not satisfied beyond reasonable doubt that there was no such reasonable belief by
the accused, it must then consider whether the force in fact used by the accused was reasonably
proportionate to the danger which he believed he faced.
(4) If the jury is not satisfied beyond reasonable doubt that more force was used than was reasonably
proportionate it should acquit.
(5) If the jury is satisfied beyond reasonable doubt that more force was used, its verdict should be
either manslaughter or murder, that depending upon the answer to the final question for the
jury—did the accused believe that the force which he used was reasonably proportionate to the
danger which he believed he faced?
(6) If the jury is satisfied beyond reasonable doubt that the accused did not have such a belief, the
verdict will be murder. If it is not satisfied beyond reasonable doubt that the accused did not have
that belief, the verdict will be manslaughter.
Although self-defence is still commonly referred to as a defence, the ultimate onus of proof with
respect to self-defence does not rest on the accused. Since Woolmington v Director of Public Prosecutions
[1935] AC 462, it has been clearly established that once the evidence discloses the possibility that the
fatal act was done in self-defence, a burden falls upon the prosecution to disprove the fact, that is to
say, to prove beyond reasonable doubt that the fatal act was not done in self-defence. The jury must
be instructed accordingly whether or not the plea is actually raised by the accused: Director of Public
Prosecutions v Walker [1974] 1 WLR 1090 at 1094.
The six propositions were intended to state in summary form the issues which arise for the
determination of a jury when a plea of self-defence is raised in a case of homicide. To the extent that they
deal with the use of excessive force, they are based upon the view expressed by Dixon CJ in R v Howe
(1958) 100 CLR 448 at 460–1. In expressing that view, Dixon CJ assumed that an occasion for self-
defence had arisen and that the force or violence used went beyond what was needed for the protection
of the accused or what the accused could reasonably have believed was necessary for his protection.
Upon those assumptions Dixon CJ asked what crime was committed as a result and his reply, at 461,
was as follows:
There is no clear and definite judicial decision providing an answer to this question but it seems
reasonable in principle to regard such a homicide as reduced to manslaughter, and that view has the
support of not a few judicial statements to be found in the reports.
That view, which in Howe was adopted by McTiernan and Fullagar JJ, was not accepted by the Privy
Council in Palmer v R [1971] AC 814, but in Viro it was unanimously held that this court is no longer
bound by decisions of the Privy Council. Whilst the correctness of the decision in Howe was the basis
upon which Mason J enunciated certain of the propositions in Viro, those propositions were accepted by
Gibbs J (CLR at 128), Jacobs J (CLR at 158), and Murphy J (CLR at 171) only for the purpose of achieving
a measure of certainty in a situation of diversity of opinion, and Barwick CJ was in dissent. The status of
Viro as an authority upon the use of excessive force in self-defence is, for this reason, open to question.
Moreover, it is apparent that difficulties have been experienced in instructing juries in accordance with the
fifth and sixth propositions in Viro, which, being based upon Howe, necessarily contain refinements which
cannot be expressed in a way which makes them readily understandable. It is for these reasons that it is
appropriate to turn once again to Viro.

The relevant issue in Viro was whether manslaughter is the appropriate verdict where only the use of
excessive force stands in the way of an acquittal upon a charge of murder. Only three justices (Stephen,
Mason, and Aickin JJ) were of the view that manslaughter was the appropriate verdict and in so holding
relied upon Howe and the rationale that ‘the moral culpability of a person who kills another in defending
himself but who fails in a plea of self-defence only because the force which he believed to be necessary
exceeded that which was reasonably necessary falls short of moral culpability ordinarily associated with
murder’: Viro (CLR at 139) per Mason J. On the other hand, the remaining four justices (Barwick CJ,
Gibbs, Jacobs and Murphy JJ) were, for differing reasons, of the view that Howe should not be followed
and that the ‘defence of self-defence either succeeds so as to result in an acquittal or it is disproved in
which case as a defence is rejected’: see Palmer at 832. Barwick CJ and Gibbs J preferred the approach
of the Privy Council in Palmer at 831: ‘It is both good law and good sense that he may do, but may only do,
what is reasonably necessary. But everything will depend upon the particular facts and circumstances’.
It is apparent, we think, from the difficulties which appear to have been experienced in the application
of Viro, that there is wisdom in the observation of the Privy Council in Palmer that an explanation of
the law of self-defence requires no set words or formula. The question to be asked in the end is quite
simple. It is whether the accused believed upon reasonable grounds that it was necessary in self-defence
to do what he did. If he had that belief and there were reasonable grounds for it, or if the jury is left in
reasonable doubt about the matter, then he is entitled to an acquittal. Stated in that form, the question
is one of general application and is not limited to cases of homicide. Where homicide is involved, some
elaboration may be necessary.
Murder consists of an unlawful killing done with intent to kill or to do grievous bodily harm.
Recklessness may be put to one side as having no apparent relevance in the context of self-defence.
A killing which is done in self-defence is done with justification or excuse and is not unlawful, though
it be done with intent to kill or do grievous bodily harm. However, a person who kills with the intention
of killing or of doing serious bodily harm can hardly believe on reasonable grounds that it is necessary
to do so in order to defend himself unless he perceives a threat which calls for that response. A threat
does not ordinarily call for that response unless it causes a reasonable apprehension on the part of that
person of death or serious bodily harm. If the response of an accused goes beyond what he believed to
be necessary to defend himself or if there were no reasonable grounds for a belief on his part that the
response was necessary in defence of himself, then the occasion will not have been one which would
support a plea of self-defence. That is to say, the killing will have been without justification or excuse and it
will be for the jury to determine how it must be regarded. If it was done with intent to kill or to do grievous
bodily harm, then unless there was provocation reducing it to manslaughter, it will be murder.
There is, however, one situation which requires particular mention. It should, we think, be regarded
as raising only evidentiary matters to be considered in arriving at an answer to the ultimate question,
although in the Code States it is treated as raising matters of law: see s 272 of the Criminal Code
1899 (Qld); s 249 of the Criminal Code 1913 (WA); s 47 of the Criminal Code 1924 (Tas). Where an
accused person raising a plea of self-defence was the original aggressor and induced or provoked the
assault against which he claims the right to defend himself, it will be for the jury to consider whether
the original aggression had ceased so as to have enabled the accused to form a belief, upon reasonable
grounds, that his actions were necessary in self-defence. For this purpose, it will be relevant to consider
the extent to which the accused declined further conflict and quit the use of force or retreated from it,
these being matters which may bear upon the nature of the occasion and the use which the accused
made of it. Indeed, even in circumstances in which the accused was not the original aggressor, retreat in
the face of a threat of violence before resort to force may be relevant to the belief of the accused or the
reasonableness of the grounds upon which the accused based his belief. There is, however, no longer
any rule that the accused must have retreated as far as possible before attempting to defend himself. It
is a circumstance to be considered with all the others in determining whether the accused believed upon
reasonable grounds that what he did was necessary in self-defence: Howe at 462–4 per Dixon CJ; Viro
(CLR at 115–16) per Gibbs J.
What we have said involves a departure from the propositions which were accepted in Viro, but it is
necessary to refer specifically to only two of the differences. In Viro self-defence is confined to a response
to an unlawful attack, whereas the law as we have explained it is not so confined. Whilst in most cases
in which self defence is raised, the attack said to give rise to the need for the accused to defend himself
will have been unlawful, as a matter of law there is no requirement that it should have been so. This is
demonstrated by the exhaustive examination of authority carried out by Orminston J in R v Lawson &
Forsythe. Thus, for example, self-defence is available against an attack by a person who, by reason of
insanity, is incapable of forming the necessary intent to commit a crime. It is however, only in an unusual
situation that an attack which is not unlawful will provide reasonable grounds for resort to violence in
self-defence. The whole of the surrounding circumstances are to be taken into account and where an
accused person has created the situation in which force might lawfully be applied to apprehend him or
cause him to desist—where, for example, he is engaged in criminal behaviour of a violent kind—then the
only reasonable view of his resistance to that force will be that he is acting, not in self-defence, but as an
aggressor in pursuit of his original design. A person may not create a continuing situation of emergency
and provoke a lawful attack upon himself and yet claim upon reasonable grounds the right to defend
himself against that attack.
The second difference lies in the treatment of the use of excessive or disproportionate force. As we
have expressed the law, the use of excessive force in the belief that it was necessary in self-defence will
not automatically result in a verdict of manslaughter. If the jury concludes that there were no reasonable
grounds for belief that the degree of force used was necessary, the defence of self-defence will fail and
the circumstances will fail to be considered by the jury without reference to that plea. There is some force
in the view, adopted by Stephen, Mason and Aickin JJ in Viro, that this may result in the conviction for
murder of a person lacking the moral culpability associated with that crime. Experience would suggest,
however, that such a result is unlikely in practice. As the Court of Appeal in England pointed out in McInnes
(1971) 55 Cr App R 551 at 562:
… it is important to stress that the facts upon which the plea of self-defence is unsuccessfully
sought to be based may nevertheless serve the accused in good stead. They may, for example, go
to show that he may have acted under provocation or that, although acting unlawfully, he may have
lacked the intent to kill or cause serious bodily harm, and in that way render the proper verdict one
of manslaughter.
And, as we have already said, an accused person is not liable to be convicted of murder unless the jury is
satisfied beyond reasonable doubt that there was an intention to kill or do grievous bodily harm.
We have anxiously considered whether the departures which we propose from Howe and Viro could
occasion injustice to persons presently awaiting trial for offences where self-defence may be raised,
including the present appellant in the event of a new trial. For the reasons which we have given, we think
this unlikely. Of course, the risk of injustice, however slight, must be weighed carefully. On the other hand,
there are compelling reasons for the course which we propose. Believing, as we do, that the law as we
have set it out is dictated by basic principle upon a matter of fundamental importance, it is unthinkable
that the court should abdicate its responsibility by declining to declare it accordingly. It has the virtue of
being readily understandable by a jury. It restores consistency to the law relating to self-defence, whether
raised in a case of homicide or otherwise. Finally, it has the effect of expressing the common law in terms
which are in accord with the views expressed in Palmer (adopted in England in McInnes) and which are
generally consonant with the law in the Code States.
Mason CJ: In Viro v R (1978) 141 CLR 88, 18 ALR 257, this court followed the law with respect to
self-defence as stated in R v Howe (1958) 100 CLR 448, in preference to Palmer v R [1971] AC 814. In
Viro only three members of the court (Stephen J, Aickin J and I) considered that the law had been stated
correctly in Howe. Because there was a diversity of opinion among the other members of the court,
Gibbs, Jacobs and Murphy JJ, recognising the need to give practical guidance to trial courts concluded,
contrary to their preferred views, that juries should be instructed in accordance with the law as stated in
Howe. Since then, when the issue of self-defence has arisen for decision in trials for murder, trial judges
have directed juries in terms of, or in accordance with, the six propositions which I formulated, with the
concurrence of Stephen and Aickin JJ, at the end of my judgment in Viro.
In Viro I considered that we should accept and follow Howe because: ‘… the moral culpability of a
person who kills another in defending himself but who fails in a plea of self-defence only because the
force which he believed to be necessary exceeded that which was reasonably necessary falls short of the
moral culpability ordinarily associated with murder’ ((CLR) at 139, (ALR) at 297).
And I thought that much of the uncertainty that was said to be inherent in the application of the
principle enunciated in Howe would disappear as the principle came to be refined and elaborated in later
cases.
Regrettably this has not taken place. Instead trial judges have continued to encounter difficulties in
explaining the elements of the Viro formulation to juries: see R v McManus (1985) 2 NSWLR 448 at 461–2;
R v Lawson & Forsythe [1986] VR 515 at 547–9. With the benefit of hindsight it can be seen that it was a
mistake to attempt to state the law of self-defence in a form which sought to take account of the onus of
proof. This attempt led to complexity which might otherwise have been avoided. And the same comment
might be made about the inclusion in the formulation of three separate elements of reasonableness. But
that was the doctrine according to Howe. Quite apart from these aspects of the matter, the need to make
findings about the accused’s reasonable belief and his subjective belief rendered the jury’s already difficult
task even more complex. I am not confident that a reformation of the Viro formulation will enable trial judges
to explain simply to juries the issue which they are called upon to determine according to the Howe doctrine.
It is interesting to observe that the Judicial Committee in Palmer, well in advance of the Viro formulation,
described the Howe doctrine as ‘requiring a jury to go through a complicated and difficult process’ (at 831).
Obviously this evaluation of Howe played a decisive part in its rejection because Lord Morris went on to
speak (at 831) of the version of the defence vindicated in Palmer as ‘one which can be and will be readily
understood by any jury’, as ‘a straightforward conception’, involving ‘no abstruse legal thought’.
I still believe that the doctrine enunciated in Howe and Viro expresses a concept of self-defence which
best accords with acceptable standards of culpability, so that an accused whose only error is that he lacks
reasonable grounds for his belief that the degree of force used was necessary for his self-defence is guilty
of manslaughter, not murder. But in the light of experience since Viro, which is in my view not wholly to
be accounted for by the complexity of the summary formulation at the end of my judgment, I recognise
that the doctrine imposes an onerous burden on trial judges and juries. In this respect I take note of the
fact that in this case Wilson, Brennan, Dawson, and Toohey JJ have concluded that the doctrine of self-
defence enunciated in Howe creates difficulty problems for trial judges and juries. For this reason there is
a serious risk that the doctrine will not achieve its desired goal.
In the result I now consider that we should accept that the joint judgment of Wilson, Dawson, and
Toohey JJ correctly states the law of self-defence. The law on this topic in Australia will then conform to
the law in the United Kingdom as expounded in Palmer and R v McInnes [1971] 1 WLR 1600; [1971]
3 All ER 295, and in other jurisdictions. The risk that an accused person may be convicted of murder
when he lacks reasonable grounds for his belief that the degree of force used was necessary for his self-
defence will be alleviated by several factors. It is for the Crown to establish that there was an absence of
reasonable grounds for the accused’s belief. A jury will be slow to make such a finding if the Crown has
failed to satisfy them that the accused did not honestly believe that the force used was necessary. And
the jury will not return a verdict of murder unless it is satisfied that there was an intention to kill or to do
grievous bodily harm.
For the reasons given by Wilson, Dawson, and Toohey JJ, I would allow the appeal.
Deane J: The approach of the majority in Viro … conformed with authority in this country and accords
with the approach which has been generally accepted in other countries of the common law world. As
will be seen, the difficulties in the Viro formulation can be resolved without the wholesale reversal of the
law of self-defence for which the appellant contends. In my view, there is simply no warrant for such a
wholesale reversal of what I see as settled law. That being so, the starting point of a consideration of the
present case must be acceptance of the proposition, for which Viro is clear authority, that an objective
element of reasonableness is a constituent of self-defence as a complete defence in a case of homicide.
The question arises whether it is nonetheless necessary to retain the first and second stage tests of
reasonableness as different and distinct tests.
The first and second stage requirements of reasonableness under the formulation are, upon analysis,
a mixture of the objective and subjective. The accused’s belief that an unlawful attack of the relevant
kind was being made upon him must have been reasonable not in the completely objective sense of
what a reasonable man would have believed but in the qualified objective sense of what the accused
himself might reasonably believe in all the circumstances in which he found himself. The second stage
requirement is again not a completely objective one. It is that the force in fact used by the accused was
reasonably proportionate to the danger which he believed he faced. Under the words of the formulation,
it is arguable that there is a subtle difference in nature between the notions of reasonableness conveyed
by the first and second stage requirements in that the first, as worded, is one of the reasonableness of
the subjective belief of an unlawful attack, whereas the second, as worded, is of the reasonableness not
of the subjective belief of proportionality but of actual proportionality between force used and perceived
danger. Such a subtle difference in nature would be open to the valid objection that it was more likely to
bemuse than assist the jury. Upon analysis however, it seems to me that no such difference in nature was
intended. When it is read in the context of the judgments of Stephen, Mason, Jacobs, and Aickin JJ in
Viro and of the judgment of Dixon CJ (in which McTiernan and Fullagar JJ concurred) in R v Howe (1958)
100 CLR 448, the second stage requirement of reasonableness in the Viro formulation can be seen as
intended to reflect the second of the two tests of proportionality which Dixon CJ propounded in alternative
form throughout his judgment in Howe. Dixon CJ initially expressed that test (at 460) in words which, like
those of the Viro formulation, literally indicate a requirement of actual proportionality between the force
used and the perceived danger: ‘no more force than was proportionate to the danger in which he …
reasonably supposed he stood’. In a more detailed statement of the test subsequently in his judgment
however (at 460–1), Dixon CJ indicated that he did not intend, by that wording, to convey anything more
than the need for a reasonably held belief on the part of the accused that there was proportionality
between the force used and the reasonably perceived danger (‘what the circumstances could cause him
reasonably to believe’ to be necessary for his protection). If, as I think it should be, the second stage test
of reasonableness in the Viro formulation is read in that sense, there is no difference in nature between
it and the first stage test. Each consists of a requirement that a subjective perception or belief of the
accused should be reasonable in the circumstances in which the accused was placed. So understood,
the first and second stage requirements of reasonableness under the Viro formulation are properly to be
seen as the complementary components of an overall requirement that the accused reasonably believed
that he was acting in self-defence in the sense of using appropriate force against an unlawful attack of the
relevant kind. The question remains whether it is necessary that the first and second stage requirements
of reasonableness should be kept separate.
As has been mentioned, the effect of the Viro formulation is that a failure to satisfy the first stage
test of reasonableness means that the defence fails completely in that, even if all other elements of it
were present, it cannot avail to reduce the offence from murder to manslaughter. In that context, the clear
distinction which the formulation draws between the first and second stage tests reflects the majority
decision on the central question in that case. That question was whether, in a case of homicide where
self-defence fails only because the second stage requirement of reasonableness is not satisfied, that is to
say, where the accused genuinely believed that there was proportionality between the force used and the
danger which he faced but that belief was not a reasonable one, the effect of the presence of the other
elements of the defence is to reduce the offence from murder to manslaughter. The answer given by the
majority to that question was in the affirmative. That answer was soundly based on commonly accepted
notions of justice.
The defence of self-defence is embedded deeply in ordinary standards of what is fair and just. It
sounds as readily in the voice of the schoolchild who protests that he or she was only defending himself
or herself from the attack of another child as it does in that of the sovereign state which claims that it
was but protecting its citizens or its territory against the aggression of another state. As a matter of those
ordinary standards, the defence does not extend to excuse action which goes too far in the sense that it is
excessive or disproportionate to the situation of actual or threatened attack. Even in such a case, however,
the fact that what was done was done genuinely in self-defence differentiates the culpability involved
from the case where what was done was done wantonly and without any such extenuation. The same
can be said of the analogous, and perhaps a fortiori, case where what was done was done genuinely, but
excessively, in defence of another. In this country, at least since R v Howe, it has been accepted that the
common law relating to homicide has reflected this ordinary perception of what is fair and just. As Dixon
CJ observed in Howe (at 461), it seems ‘reasonable in principle to regard such a homicide as reduced
to manslaughter’. More than 12 years after Howe the decision of the Privy Council on an appeal from
Jamaica in Palmer v R [1971] AC 814 was seen, in the context of times that are gone, as requiring a
reconsideration of the question by this court. Such a reconsideration was undertaken by the whole court
in Viro. The result of it was that the decision and reasoning in Howe were affirmed. In unambiguous
terms, a majority of the court accepted that the preferable view was that, where self-defence failed as a
complete defence in a case of homicide only by reason of use of excessive force, the law of this country
accorded with ordinary standards of culpability and adjudged the accused to be guilty of manslaughter,
not murder (see Viro CLR at 132–3 (Stephen J), at 139 (Mason J), at 153 (Jacobs J) and at 180 (Aickin J)).
The rationale, as a matter of legal principle, of that view which was accepted by those four members
of the court corresponded with that which had been advanced by the members of the Supreme Court
of South Australia in Howe ((1958) SASR 95 at 122) and accepted by Dixon CJ in that case, namely,
that, notwithstanding the existence of an intent to kill or inflict grievous bodily harm, the fact that a man
genuinely believed that he was doing only what he was entitled (or morally obliged) to do and acting in
reasonable defence of himself (or another) ‘would deprive the act of the requisite’ element of ‘malice
aforethought’ which distinguishes murder from manslaughter (see per Jacobs J in Viro (CLR) at 153).
It was not submitted on behalf of the Crown or the appellant that the court should overrule Viro on the
precise point which it decided and hold that in a case of homicide where self-defence failed only because
the accused’s belief of proportionality was not a reasonable one, the proper verdict was murder. That
question is, however, addressed in the judgments of other members of the court and it is necessary that
I advert to it. With due respect to those who see the matter differently, it appears to me that considerations
of authority, principle and justice combine to require the conclusion that the decision in Viro on the point
should be left undisturbed. Considerations of authority, in that Viro was a considered decision of a majority
of the whole court confirming a previous considered decision of a majority of the court on the same point.
Considerations of underlying principle, in that it was, in my view correctly recognised in both Howe and
Viro that even the existence of an intention to kill or inflict grievous bodily harm will not constitute the
requisite mens rea for murder if what was done was essentially defensive in its character in the sense
that the accused genuinely believed that he was doing no more than was reasonably necessary to defend
himself or another person against an unjustifiable attack (see The People (Attorney-General) v Dwyer
(1972) IR 416 at 423–4, 431–2; O’Brien, ‘Excessive Self-defence: A Need for Legislation’ (1982–83), 25
Crim LQ 441 at 449–55). It is, however, considerations of justice which compel a refusal to overrule the
decisions in Howe and Viro. Those considerations of justice operate at two levels.
The first level at which considerations of justice militate against overruling the decisions in Howe and
Viro is that to which reference has already been made. As has been said, the decision of the court in those
cases reflected, and was expressly based upon, the ordinary perception of what is fair and just, namely,
that ‘the moral culpability of a person who kills another in defending himself (or another person) but who
fails in a plea of self-defence (or defence of another) only because (of excessive force) falls short of the
moral culpability ordinarily associated with murder’ (see per Mason J, Viro (CLR) at 139). At the second
level, the considerations of justice involved are not abstract ones. They relate to what is just and proper
in the administration of the criminal law. It is to a consideration of them that I now turn. In the absence of
any contrary suggestion in argument, I approach that consideration on the long-accepted basis that any
overruling of Howe and Viro would not be merely prospective.
There may be circumstances in which an ultimate appellate court is justified in overruling a previous
decision of its own with the consequence that what had previously been accepted as a defence to a
charge of murder is no longer, and never was, such a defence (cf, in the context of a lesser offence,
R v Shivpuri [1987] AC 1). Be that as it may, however, such circumstances do not exist in the present
case. The previous decision (Viro) was not an unconsidered or isolated one. It was given after a lengthy
period of consideration and affirmed an earlier considered decision of the court (Howe) on the very
point. There is no general public perception that the previous decision on the point was mistaken (see,
for example, Smith, ‘Excessive Defence—A Rejection of Australian Initiative?’ (1972), Crim LR 524 at
533–4; Glanville Williams, Textbook of Criminal Law (2nd edn, 1983), pp 546–7; Criminal Law Revision
Committee, 14th Report ‘Offences against the Person’ (1980), para 288; Law Reform Commission of
Canada, Working Paper 33 Homicide, (1984), pp 70–1; but cf Brisson v R 139 DLR (3d) 685 at 703–6).
Indeed, neither party has suggested, let alone argued, that the decisions in Howe and Viro on that point
should be overruled. In these circumstances, to overrule Viro and Howe would be to retrospectively abolish
a defence which, if one goes back no further than Viro, had been available under the common law of this
country, as unambiguously settled by this court, for the past nine years.
It is no answer to the foregoing to say that, if excessive self-defence (or defence of another) is
abolished as a defence which may reduce murder to manslaughter, a person who has acted genuinely
but unreasonably in such defence may be acquitted of murder on the ground of provocation. There
may, no doubt, be cases in which a defence of provocation is available to a person who has acted
excessively in self-defence. The two defences are however quite distinct. Excessive self-defence may well
be available in circumstances where there is no basis at all for a defence of provocation. Indeed, in some
circumstances there may be an element of inconsistency between a genuine (albeit unreasonable) belief
that what was done was done reasonably in self-defence (or defence of another) and the loss of control
which ordinarily lies at the heart of a defence of provocation. Nor is it any answer to the foregoing to say
that a jury, encouraged by sympathetic directions by a trial judge on the question of reasonableness, is
unlikely to disregard commonly accepted notions of justice and completely acquit any accused who has
acted genuinely in self-defence if excessive self-defence is not available as a defence which reduces
murder to manslaughter. It is an indictment, rather than a vindication, of a proposition of criminal law
to say that its harshness is such that it will be avoided by a perception, on the part of judge or jury, that
the avoidance of injustice to an accused requires that what was unreasonable should be rationalised as
reasonable so that, given the choice between murder and complete acquittal in a case where the only
remaining defence was self-defence, a person who had intentionally killed in unreasonable or excessive
defence of himself or another can be found not guilty of any crime at all.
What then are the considerations which weigh in favour of an overruling of Howe and Viro at this
stage? There is none which seems to me to be legitimate. True it is that there are some decisions in
other common law jurisdictions which are inconsistent with the decisions in Howe and Viro that excessive
self-defence in a homicide case is effective to reduce the offence from murder to manslaughter. The
most important of those cases (excluding those involving the provisions of a Criminal Code) remains the
decision of the Privy Council in Palmer. The Privy Council’s decision was, however, carefully considered by
the whole court and rejected by a clear majority in Viro. It is also true that there are strong arguments to
the effect that, both as a matter of history and as a matter of principle, the approach adopted in Palmer
or in the dissenting judgment of Barwick CJ in Viro is to be preferred to that accepted by the majority in
Viro (and see, as to the difficulties of principle involved in the subsequent application of Palmer, Glanville
Williams, op cit, p 507). They must also encounter modern notions of the content of malice aforethought
in the crime of murder and the greater relevance in present jurisprudence of notions of abstract justice.
The compelling answer to those arguments for present purposes is, however, that they were understood,
considered and rejected by the court in Howe and Viro. There remains the consideration that to abolish
excessive self-defence as a defence to murder would make the functions of a trial judge (in summing up)
and a jury (in reaching a verdict) somewhat easier. That consideration seems to me to be of no validity
whatever when what is involved is a question whether this court should overrule a previous decision of its
own with the practical effect that an established defence to murder should be retrospectively abolished.
Indeed, there are a few things that would be more likely to undermine the institution of trial by jury than
for this court to adopt the approach that a decision having that practical effect was made necessary by a
need to make the task of a jury easier.
With the benefit of hindsight, it seems to me that the Viro formulation of the task of a jury in a homicide
case where self-defence is raised is open to legitimate criticism on two distinct grounds. The first is that
it appears to me that the formulation fails adequately to distinguish between factual considerations and
legal principle. The result is unduly to complicate legal principle. This complication of legal principle is
heightened by the synthesis of the constituents of a defence of self-defence and the operation of the
onus of proof in relation to such a defence. The result of the abovementioned synthesis is an unavoidable
use of negatives and one double negative which makes overall comprehension somewhat difficult even
for a lawyer.
The second criticism is that the Viro formulation contains what is for me a basic and complicating
conceptual anomaly. The anomaly lies in the different consequences of an absence of the relevant
elements of reasonableness in the first and second stage requirements. Accepting, as Viro established,
that an objective element of reasonableness is a requirement of the common law defence of self-defence
as a complete answer in a case of homicide, one would expect the requirement to apply indifferently to
the other elements of the defence, that is to say, one would expect the complete defence to be that the
accused reasonably believed that he was acting in reasonable self-defence in the relevant sense. If the
defence failed as a complete defence only by reason of the absence of the element of reasonableness of
the accused’s belief, there is no real basis in principle or justice for the drawing of general distinctions in
terms of moral culpability or subjective malice according to whether the reason for failure was that the
accused’s perception of an occasion of self-defence was unreasonable or that his belief that the amount
of force used was reasonably proportionate to the danger was unreasonable. In either event, the position
disclosed by the failure of the defence as a complete defence would be that the accused genuinely,
though unreasonably, believed that he was acting in reasonable self-defence. Regardless of whether
one sees the basis of the decision in Viro that excessive self-defence reduces homicide from murder to
manslaughter as lying in ordinary standards of moral culpability or in modern notions of the content of
malice aforethought in the crime of murder, it is anomalous that the offence should not also be reduced
to manslaughter in a case where the element of objective reasonableness in the accused’s belief that
he was acting in self-defence is absent because the accused’s genuine perception of an occasion of
self-defence was unreasonable. The majority of the court in Viro did not address itself to that question. In
my view, the actual reasoning in the majority judgments in Viro supports the conclusion that the proper
verdict in a case of homicide where self-defence fails as a complete defence by reason only of the fact
that the accused’s genuine belief that he was acting in reasonable self-defence was not reasonably
held is manslaughter regardless of whether the absence of the element of reasonableness is caused by
the unreasonableness of the perception of an occasion of self-defence or the unreasonableness of the
belief that the force used was not excessive. If that view be accepted, as I think it should be, much of
the difficulty of the Viro formulation disappears in that there is no longer any need to distinguish between
the first and second stage requirements of reasonableness.
If the views expressed above were to be accepted, the result would be that the inherent difficulties
in the Viro formulation would no longer complicate the task of the trial judge and jury on a murder trial
involving an issue of self-defence. The criminal onus of disproof which rests on the Crown in relation to
self-defence would, of course, need to be carefully explained. Otherwise, the jury could be instructed to
the effect that self-defence constitutes a complete defence if, when the accused killed the deceased, he
was acting in reasonable self-defence and that he had been so acting if he had reasonably believed that
what he was doing was reasonable and necessary in his own defence against an unjustified attack which
threatened him with death or serious bodily harm. Those elements of the defence would, of course, need
to be adjusted according to the circumstances of particular cases. Thus, the concept of serious bodily
harm should, in an appropriate case, be expanded to include serious bodily abuse, by way of, for example,
sexual abuse or prolonged incarceration. Again, in an appropriate case, the direction would need to be
adjusted to the case where what was involved was a defence not of self but of another or where the
unjustified attack was threatened rather than actual. The members of the jury could thereafter be told that,
even though they were satisfied that the belief of the accused was not reasonable, it sufficed to reduce
what would otherwise be murder to manslaughter if, when the accused killed the deceased, he believed
what he was doing was reasonable and necessary in his own defence against an unjustified attack of the
relevant kind. I would stress that the above would constitute no more than guidance in the formulation of
such directions as may be appropriate to the facts and circumstances of particular cases.
The problems involved in the requirement, as an element of self-defence, that the accused believed
that the attack against which he was defending himself was ‘unlawful’ have been highlighted by McGarvie
and Ormiston JJ in the course of their helpful judgments in R v Lawson & Forsythe [1986] VR 515. For
the reasons given by Brennan J in his judgment in the present case, however, I do not accept the view
that that requirement should be completely done away with. On the other hand, to require as an element
of self-defence a belief by the accused that the attack was ‘unlawful’ raises formidable and unnecessary
problems of meaning and common sense. If, in such a requirement, ‘unlawful’ is used as meaning neither
justified nor susceptible of defence as a matter of legal technicality, the requirement is framed in terms
which are inappropriate to be applied by a lay jury to the thought processes of an ordinary accused.
Moreover, if ‘unlawful’ is used in that sense, the requirement would border on the absurd in that it would
effectively exclude self-defence as a defence in a case where an innocent victim had defended himself
from a life-threatening attack made by an assailant who obviously was insane or who obviously believed
on reasonable but mistaken grounds that he was threatened with a grievous attack. These problems seem
to me to be largely, if not completely, eliminated if the relevant requirement is framed not in terms of legal
technicality but in terms of factual justification. It is for that reason that I have used the word ‘unjustified’
rather than the word ‘unlawful’ which was accepted in the Viro formulation.
[Brennan J delivered a separate judgment agreeing with Wilson, Dawson, and Toohey JJ. Appeal
allowed.]
Although the law of self-defence in Victoria is generally governed by common law principles,
the Victorian Parliament has instituted some important statutory changes. These changes are
confined strictly to ‘relevant offences’ as defined in s 9AB (below). Especially noteworthy is that
Victoria has reinstated the ‘excessive self-defence’ doctrine by creating the new statutory offence
of defensive homicide. The key provisions of the new legislation are embodied in ss 9AB, 9AC,
9AD, 9AE, 9AF, 9AH, and 9AJ of the Crimes Act 1958 (Vic), inserted by way of the Crimes
(Homicide) Act 2005 (Vic). These sections provide:
9AB Definitions and application of Subdivision
In this Subdivision—
‘relevant offence’ means murder, manslaughter or defensive homicide.

(2) Without taking away from the law relating to any other offences and except as otherwise expressly
provided by this Subdivision, this Subdivision applies only to relevant offences.
9AC Murder—‘self-defence’
A person is not guilty of murder if he or she carries out the conduct that would otherwise
constitute murder while believing the conduct to be necessary to defend himself or herself or
another person from the infliction of death or really serious injury.
Note 1: See section 4 for alternative verdict of defensive homicide where the accused had no
reasonable grounds for the belief.
Note 2: This section does not apply where the response is to lawful conduct—see section 9AF.
Note 3: See section 9AH as to belief in circumstances where family violence is alleged.
9AD Defensive homicide
A person who, by his or her conduct, kills another person in circumstances that, but for section
9AC, would constitute murder, is guilty of an indictable offence (defensive homicide) and liable
to level 3 imprisonment (20 years maximum) if he or she did not have reasonable grounds for the
belief referred to in that section.
9AE Manslaughter—‘self-defence’
A person is not guilty of manslaughter if he or she carries out the conduct that would otherwise
constitute manslaughter while believing the conduct to be necessary—
(a) to defend himself or herself or another person; or

(b) to prevent or terminate the unlawful deprivation of his or her liberty or the liberty of another
person—
and he or she had reasonable grounds for that belief.
Note 1: See section 9AH as to reasonable grounds for the belief in circumstances where family
violence is alleged.
Note 2: This section does not apply where the response is to lawful conduct—see section 9AF.
9AF Self-defence exceptions do not apply in the case of lawful conduct
Sections 9AC and 9AE do not apply if—
(a) the person is responding to lawful conduct; and

(b) at the time of his or her response, the person knows that the conduct is lawful.
9AH Family violence
(1) Without limiting section 9AC, 9AD or 9AE, for the purposes of murder, defensive homicide or
manslaughter, in circumstances where family violence is alleged a person may believe, and may
have reasonable grounds for believing, that his or her conduct is necessary—
(a) to defend himself or herself or another person; or

(b) to prevent or terminate the unlawful deprivation of his or her liberty or the liberty of
another person—
even if—
(c) he or she is responding to a harm that is not immediate; or
(d) his or her response involves the use of force in excess of the force involved in the harm
or threatened harm …
Sections 9AC and 9AD also apply to a charge of attempted murder: R v Pepper (2007) 16
VR 637; [2007] VSC 234 at [41]; R v Derich [2009] VSC 104 at [1]. Although attempted
murder is not a ‘relevant offence’ according to a literal reading of s 9AB, it is difficult to quarrel
with the notion that if ss 9AC and 9AD constitute a complete defence to a charge of murder,
they should also constitute a complete defence when the charge is one of attempted murder
because a death has not resulted. That argument aside, neither Pepper nor Derich were decided
by the Full Court of Appeal and, therefore, to some extent the matter must be regarded as open
to question until the Full Court of Appeal has authoritatively decided this issue.
In ss 9AC, 9AD, 9AE and 9AF, there is no express requirement that a person invoking any
of these provisions must believe on reasonable grounds that the harm or threatened harm in
question is imminent. On the other hand, Victoria’s status as a common law jurisdiction dictates
that absent a clear intention to supplant the common law, either expressly or by necessary
implication, its courts are duty bound to resolve statutory ambiguities according to common
law precepts. As the common law of self-defence and defence of others requires that an accused
believe on reasonable grounds that the use of force or the threat thereof is necessary to protect
oneself or another from the unlawful and immediate application of force, a cogent argument
exists that none of the above sections displaces the requirement of immediacy: R v Conlon
(1993) 69 A Crim R 92 at 98 (per Hunt CJ); Police v Hailemarium (1999) 73 SASR 319 at
326; [1999] SASC 96 (12 March 1999) at [24] (per Mullighan J): ‘The condition of existing
attack or imminent danger has long been regarded as essential for self defence to afford lawful
excuse for violence’: Halsbury’s Laws of Australia, Vol 9, [130]–[1100]; see also Granger v State,
13 Tenn 459 (1830); People v Lombard, 17 Cal 316 (1861); State v Schroeder, 103 Kan 770
(1918). This is yet another issue that will ultimately require authoritative resolution by the Full
Court of Appeal.
In Babic v The Queen [2010] VSCA 198 (17 August 2010), the Victorian Court of
Appeal held that in enacting the above statutory self-defence and defence of others provisions
relating to the ‘relevant offences’ of murder, manslaughter, and defensive homicide, it was the
clear intention of Parliament to displace the common law rules of self-defence and defence
of others. With regard to all other offences, however, the common law remains in effect: at
[44]–[104] (per Neave and Harper JJA); at [6] (per Ashley J). It is important to note that
the court expressed the same view concerning ss 9AG and 9AI. These are statutory defences of
duress and necessity (the latter is referred to as ‘sudden or extraordinary emergency’) respectively
which, like ss 9AC, 9AD, and 9AF, apply only in relation to ‘relevant offences’ within the
meaning of s 9AB (above): ibid. Readers should remind themselves of this in Chapter 14 which
examines the defences of duress and necessity in great depth.
9AJ Intoxication
(1) If any part of an element of a relevant offence, or of a defence to a relevant offence,

relies on reasonable belief, in determining whether that reasonable belief existed,
regard must be had to the standard of a reasonable person who is not intoxicated.
relies on a person having reasonable grounds for a belief, in determining whether
those reasonable grounds existed, regard must be had to the standard of a reasonable
person who is not intoxicated.
relies on reasonable response, in determining whether that response was reasonable,
regard must be had to the standard of a reasonable person who is not intoxicated.
(4) If a person’s intoxication is not self-induced, in determining whether any part of
an element of a relevant offence, or of a defence to a relevant offence, relying on
reasonable belief, having reasonable grounds for a belief or reasonable response exists,
regard must be had to the standard of a reasonable person intoxicated to the same
extent as the person concerned.
(5) For the purposes of this section, intoxication is self-induced unless it came about—
(a) involuntarily; or
(b) because of fraud, sudden or extraordinary emergency, accident, reasonable
mistake, duress or force; or
(c) from the use of a drug for which a prescription is required and that was used in
accordance with the directions of the person who prescribed it; or
(d) from the use of a drug for which no prescription is required and that was used
for a purpose, and in accordance with the dosage level, recommended by the
manufacturer.
(6) Despite sub-section (5), intoxication is self-induced in the circumstances referred
to in sub-section (5)(c) or (d) if the person using the drug knew, or had reason to
believe, when the person took the drug that the drug would significantly impair the
person’s judgment or control.
In so far as the common law doctrine of self-defence is concerned, it is important to note
the Court of Appeal’s decision in R v Portelli (2004) 10 VR 259; [2004] VSCA 178 (1 October
2004). Ormiston JA, with whom Winneke P and Charles JA concurred, held that the same
test governing the common law doctrine of self-defence is also applicable to the common law
doctrine of defence of others: at [11]–[19]. Ormiston JA further held that the latter doctrine
is not limited to the defence of one’s spouse, parent, child, master, servant, or other persons
with whom the accused has a special relationship, but extends to all persons: at [19]. Finally,
Ormiston JA dealt with the issue of whether the trial judge erred in directing the jury on the law
relating to self-defence. Although the trial judge directed the jury to apply the succinct test set
out in Zecevic, she further directed the jury that it was also necessary for it to decide whether the
accused’s actions were objectively disproportionate to any putative threat posed by the alleged
victim. In opining on this question, Ormiston JA wrote (at [31]):
Doubtless all the judge was trying to tell the jury in the present case was that the principal
aspect of the applicant’s behaviour which was in issue was whether his actions were out of
all proportion to the threat posed. … To do so may have been justified if it came as part of
the judge’s summary of the arguments put on each side. Here, however, her Honour was
attempting to give directions as to the relevant law. To pick out one relevant consideration,
namely proportionality, and to add a question based on it to a test which has been said now
on many occasions to be a single test, was playing with fire. If the correct single question
had just been asked and if the jury had given the correct answer to that, then what purpose
was being served by asking a further question? The judge, knowing that proportionality was
critical to the jury’s decision may well have thought that they had to return to it, albeit that
they had concluded (hypothetically) that the applicant’s conduct had been reasonable. They
were then asked, as the last consideration to be taken into account, whether objectively the
applicant’s response was out of proportion to the attack. … To do so was to emphasise one
aspect alone and in a way which made it both entirely objective and too limiting, in that
it suggested the applicant’s response must have been precisely proportionate to the threat.
The latter approach has been frowned on for many years and it was, clearly enough, merely
a shorthand by the judge who had early spoken of the relevant test being based on what was
‘plainly disproportionate’. As she had earlier said, precision of response cannot be expected
in the emergency of the moment, but it was not a matter where an objective assessment was
the whole answer. The jury was obliged to assess what the applicant believed was both the
risk faced … and what the applicant believed was necessary to do in response. In the end,
bearing in mind the onus resting on the prosecution, that belief had to be considered by the
jury to have been reasonable, but it was not merely a question of asking what was reasonable
from the viewpoint of an outside observer. Unfortunately the rider took the question of
proportionality beyond the subjective beliefs of the applicant and left it solely for objective
assessment by the jury, or so it may have appeared. Such an approach placed an undue and
inappropriate emphasis on one issue alone. It should not have been added to the correct
test in the way that it was.
For a more recent decision reaffirming the above passages from Portelli, see R v Said [2009]
VSCA 244 (20 October 2009).
Also consider the following statutory provisions in the jurisdictions where the common law
position on self-defence does not apply.
4.3.4 New South Wales

A doctrine of self-defence has been enacted in Part 11 Division 3 of the Crimes Act 1900. It has
been commented that these provisions do not codify the common law (although obviously their
drafting has been influenced by it): R v Katarzynski [2002] NSWSC 613 at [27].
In New South Wales, Part 11 Division 3 of the Crimes Act 1900 provides (in part):
418 Self-defence—when available
(1) A person is not criminally responsible for an offence if the person carries out the
conduct constituting the offence in self-defence.
(2) A person carries out conduct in self-defence if and only if the person believes the
conduct is necessary:
(a) to defend himself or herself or another person, or
(b) to prevent or terminate the unlawful deprivation of his or her liberty or the
liberty of another person, or

(c) to protect property from unlawful taking, destruction, damage, or interference,
or
(d) to prevent criminal trespass to any land or premises or to remove a person
committing any such criminal trespass,
and the conduct is a reasonable response in the circumstances as he or she perceives them.
419 Self-defence—onus of proof
In any criminal proceedings in which the application of this Division is raised, the
prosecution has the onus of proving, beyond reasonable doubt, that the person did not
carry out the conduct in self-defence.
420 Self-defence—not available if death inflicted to protect property or trespass to

property
This Division does not apply if the person uses force that involves the intentional or reckless
infliction of death only:
(a) to protect property, or

(b) to prevent criminal trespass or to remove a person committing criminal trespass.
421 Self-defence—excessive force that inflicts death
(1) This section applies if:

(a) the person uses force that involves the infliction of death, and
(b) the conduct is not a reasonable response in the circumstances as he or she
perceives them, but the person believes the conduct is necessary:
(c) to defend himself or herself or another person, or
(d) to prevent or terminate the unlawful deprivation of his or her liberty or the
liberty of another person.
(2) The person is not criminally responsible for murder but, on a trial for murder, the
person is to be found guilty of manslaughter if the person is otherwise criminally
responsible for manslaughter.
422 Self-defence—response to lawful conduct
This Division is not excluded merely because:
(a) the conduct to which the person responds is lawful, or

(b) the other person carrying out the conduct to which the person responds is not
criminally responsible for it.
Section 418 is the primary provision, providing for the lawful use of force in specified
situations including self-defence. It will be pleaded in response to charges of homicide and
assault (although it is not in terms confined to these situations). It provides for both a subjective
and an objective test. The onus is on the Crown to prove beyond reasonable doubt that, at
the minimum, one of the two tests has not been satisfied. If it disproves either, the defendant
loses the benefit of the s 418 defence. (Obviously if the Crown disproves both the defendant
likewise cannot rely on s 418.) The onus of proof is imposed upon the prosecution by s 419. The
effect of these provisions is that the defendant must adduce or point to evidence that makes it a
reasonable possibility that his or her conduct fulfils both tests. This will preclude the prosecution
from disproving both beyond reasonable doubt.
The first test is a subjective test; that is, the defendant must have believed that his or her
conduct in self-defence was necessary. The second test is a hybrid objective–subjective test: the
defendant’s conduct must be a reasonable response (objective), but not to the circumstances as
they actually are, rather to the circumstances as s/he perceives them to be (subjective). Thus, for
example, if the defendant shot a person who had trained a gun on him or her and said, ‘You are
dead’, it is not material that the gun was not loaded. If the defendant believed that it was and that
the other party was about to pull the trigger, s/he would be on strong ground in arguing that the
second test had been fulfilled.
Section 420 precludes resort to the defence if D uses force involving the intentional or
reckless infliction of death (merely) to protect property or to prevent criminal trespass, and so
on. Thus, D would not be entitled intentionally to shoot an unarmed person intending to kill
him or her merely because s/he had broken into D’s premises.
Section 421 provides for what may colloquially be termed a ‘half-way house’. Pursuant to
it, where D is faced with a situation of self-defence, or the need to defend another person, or
to prevent or terminate the unlawful deprivation of D’s liberty or that of another person, and
s/he would be entitled to an acquittal pursuant to s 418 but for the fact that D’s conduct was
not a reasonable response to the situation as D perceived it, his or her liability for what would
otherwise be murder is reduced to manslaughter.
Section 422 provides, inter alia, that the benefit of the defence is not lost merely because
the conduct to which the defendant responds is lawful. This would be an unusual situation. It
may be that D believes that a person is attempting unlawfully to deprive him or her of his or
her liberty without lawful cause, even though the person is in fact acting lawfully, as where an
undercover police officer mistakenly identifies D as a wanted person.
Section 428F should also be noted in this context:
428F Intoxication in relation to the reasonable person test
If, for the purposes of determining whether a person is guilty of an offence, it is necessary to
compare the state of mind of the person with that of a reasonable person, the comparison
is to be made between the conduct or state of mind of the person and that of a reasonable
person who is not intoxicated.
This situation is dealt with in the case that is extracted immediately below.
R v Katarzynski
[2002] NSWSC 613
(Supreme Court of New South Wales)
[A ruling during trial by the trial judge:]

Howie J: The accused has been indicted for murder and is currently standing trial before a jury. The
deceased was shot by the accused following a number of altercations between them in a hotel in Liverpool
in the early hours of the morning of 6 April 2001. There is ample evidence before the jury that the accused
was intoxicated as a result of his voluntary consumption of alcohol at the time of the shooting. There is no
issue that the accused committed the act which caused the death of the deceased although, it will be a
matter for the jury to determine whether the act causing death was voluntary and whether the accused at
the time of firing the gun had the necessary mental state for the offence of murder.
The Crown has conceded that on the evidence led in the trial it is open for the jury to find that there
was a real possibility that when the accused shot the deceased he was acting in his own self defence. The
Crown has also conceded that the applicable law relevant to that issue is Part 11 Division 3 of the Crimes
Act 1900 (NSW), see R v Michael James Taylor [2002] NSWSC 610.
…
The evidence in this trial would appear to give rise to a consideration by the jury of whether the
accused was acting in self-defence under s 418(2); that is whether there is a reasonable possibility that
he believed his conduct in firing the hand gun three times toward the deceased was necessary to defend
himself and, whether such conduct was ‘a reasonable response in the circumstances as he perceived
them’. Depending upon what decision the jury comes to on that issue, it may be open for it to find the
accused guilty of manslaughter under the excessive force provision in s 421.
At the close of the Crown case I raised with counsel the interpretation of s 418(2) and in particular
whether the accused’s intoxication was a relevant matter to a determination of the reasonableness of
his response to what he perceived to be the threat to him presented by the deceased at the time that he
fired the hand gun, a bullet from which passed through the deceased’s heart. To understand the point it is
necessary to refer briefly to the most recent history of the law of self-defence in this State.
At common law, at least since Zecevic v Director of Public Prosecutions (Victoria) (1987) 162 CLR
645, the question to be asked by a jury when considering the issue of self-defence on a trial of murder
was whether there was a real possibility that the accused believed upon reasonable grounds that it was
necessary in self-defence to do what he did when his act caused the death of the deceased. If the Crown
did not prove beyond reasonable doubt either that the accused did not hold such a belief or that he had no
reasonable grounds for such a belief, he was to be acquitted: Dziduch (1990) 47 A Crim R 378 at 379–80.
It was the accused’s belief, based upon the circumstances as the accused perceived them to be, which
has to be reasonable and not the belief of the reasonable man: R v Hawes (1994) 35 NSWLR 294 at 306.
In Conlon (1993) 69 A Crim R 92 Hunt CJ at CL, as a trial judge sitting without a jury, had to consider
the relevance of the accused’s intoxication by alcohol and cannabis on the issue of self-defence. His
Honour determined that intoxication was relevant both to a consideration of whether the accused had
reasonable grounds for his belief that it was necessary to act to defend himself and the reasonableness
of his response to his perceived need to defend himself.
In the course of his judgment his Honour stated (at 98–9):
The Crown, however, argued that the decision as to whether there were reasonable grounds for
any belief on the part of the accused that it was necessary in self-defence to do what he did was a
completely objective one. But it is clear from the formulation of the issue in Zecevic v DPP that it is
the belief of the accused, and not that of the hypothetical reasonable person in the position of the
accused, which has to be reasonable. And the reference in the joint judgment of Wilson, Dawson and
Toohey JJ (at 658; 171) to ‘the requirement of reasonableness’ as having ‘remained part of the law
of self-defence’ since it was an ingredient of the law of excusable homicide suggests to me that they
did not intend to depart from the nature of the analogous decisions posed in relation to self-defence
in Viro, as to whether the accused reasonably believed that he was threatened with an attack and as
to whether he believed that his response to that threat was reasonably proportionate to the danger
which he believed that he faced. The first of those analogous decisions was a mixture of the objective
and the subjective; it was not completely objective, in the sense of what a reasonable person would
have believed, but rather it was what the accused himself might reasonably have believed in all the
circumstances in which he found himself: see proposition 1(b) as expressed by Mason J in Viro (at
146); see also Helmhout (1979) 1 A Crim R 464 at 467–8, a decision of the Full Court of the Federal
Court. The second decision was completely subjective, in the sense that it required no more than
a subjective belief that reasonable proportionality existed where in fact it did not: Viro (at 143), per
Mason J; Zecevic v DPP (at 672; 181–2), per Deane J.
It seems to me that it would require a very clear statement by the High Court that it had intended
to substitute a completely objective assessment for that of a mixed objective and subjective nature as
had been posed in Viro. No such statement has been made, and the issue does not appear to have
been discussed in any case since Zecevic v DPP. The submission by the Crown that the decision is
a completely objective one is rejected.
That, however, does not resolve the problem which arises in the present case. Although the
mixed objective and subjective nature of the assessment as to whether the accused’s belief was
based on reasonable grounds means that account must be taken of those personal characteristics
of this particular accused which might affect his appreciation of the gravity of the threat which he
faced and as to the reasonableness of his response to that danger, the Crown has argued (as an
alternative to the argument which I have rejected) that voluntarily induced intoxication through the
consumption of alcohol or drugs should not be taken into account as such a personal characteristic
because (it is said) to do so would entitle those whose perceptions are mistaken by reason only of
such intoxication to kill with impunity.
No judgment of an Australian court (reported or unreported) given since Zecevic v DPP has been
found which insists that such a personal characteristic should be excluded from this assessment. The
issue appears, surprisingly, not to have been discussed. It has been discussed in England, although
the law relating to self-defence there has developed somewhat differently to the way in which it has
now been stated by the High Court in Zecevic v DPP.
His Honour then proceeded to consider a number of English cases and the decision in McCullough v R
[1982] Tas R 43 in which the view had been taken that the intoxication of the accused was irrelevant to
a consideration of the reasonableness of his response to the threat he perceived. Hunt CJ at CL refused
to follow those cases in light of statements made by members of the High Court in Zecevic v DPP. His
Honour concluded:
In my opinion, therefore, I should take into account the voluntarily induced intoxication of the accused
in the present case—in so far as it may have affected either his appreciation of the gravity of the
threat which he faced or the reasonableness of his response to that danger—in determining whether
the Crown has established that there were no reasonable grounds for a belief by him that it was
necessary in self-defence to fire the bullet into the head of Hulands which in fact caused his death,
with the intention of at least inflicting grievous bodily harm upon him.
The common law, therefore, provided that self-defence existed where the accused (a) believed that
he was called upon to defend himself, (b) that his conduct was necessary in order to defend himself and
(c) that he had reasonable grounds for each of those beliefs. The intoxication of the accused was relevant
to a consideration of each of those matters.
On 1 December 1998 the Home Invasion (Occupants Protection) Act 1998 came into operation. The
relevant provisions of that Act were as follows:
6 Self-defence
An occupant of a dwelling house may act in self-defence against an intruder if the occupant believes
on reasonable grounds that it is necessary to do so.
7 Defence of other persons
An occupant of a dwelling house may act in defence of any other person in the dwelling house
against an intruder if the occupant believes on reasonable grounds that it is necessary to do so.
8 Defence of property
An occupant of a dwelling house may act in defence of any property of, or within, the dwelling house
against an intruder if the occupant believes on reasonable grounds that it is necessary to do so.
9 Reasonable grounds
Whether grounds are reasonable grounds for the purposes of section 6, 7 or 8 is to be determined
having regard to the belief of the occupant, based on the circumstances as the occupant perceived
them to be.
11 Immunity from criminal liability
(1) An occupant of a dwelling house who acts in accordance with section 6, 7 or 8 is immune from
criminal liability resulting from his or her acts.
The operation of those provisions was considered in R v Munro [2001] NSWCCA 187. That was an
appeal against a verdict of guilty in a trial by judge alone conducted by Badgery-Parker AJ. In dismissing
the appeal Stein JA, with whom the other members of the Court agreed, stated:
At the trial counsel for the accused argued that while s 6 of the Act did not depart from the common
law with respect to self-defence, other provisions did so depart. It was submitted that s 9 extended
the rights of an occupier at common law.
Section 9 provides:
Whether grounds are reasonable grounds for the purposes of section 6, 7, or 8 is to be

determined having regard to the belief of the occupant, based on the circumstances as
the occupant perceived them to be.
Counsel had submitted that the words ‘having regard to’ required the belief of the occupant to be
taken into account in determining whether the grounds for that belief were reasonable. With respect
to this Badgery-Parker AJ said:
The interpretation of s 9 for which Mr Toomey contends would require that the phrase ‘the
belief of the occupant’ in s 9 was intended to refer to a belief on the part of the occupant,
not that it was necessary for him to act as he did in self-defence (the belief to which s 6
refers) but rather a belief on his part that he had reasonable grounds for believing that it
was necessary for him to act as he did in self-defence.
In rejecting the contention his Honour said:
The significance of the words in s 9, ‘having regard to the belief of the occupant’ is
to emphasise that the determination which has to be made ‘whether the grounds are
reasonable grounds for the purposes of s 6’ is a determination about the grounds upon
which the occupant himself (the actual person, not some hypothetical person in the same
position as the occupant) held the relevant belief.
In my opinion, this conclusion is correct. As his Honour said, the construction contended for
would make it almost impossible to apply s 10(b) of the Act. Nor was there anything in the language
of s 9 to suggest that the word ‘belief’ did not have the same connotation as ‘believe’ in s 6, referring
to the belief (for the purposes of s 6) which the occupant must hold so that he may lawfully act in
self defence against an intruder.
As his Honour noted, the conclusion that he had reached was entirely consistent with the second
reading speech which repeatedly emphasises that the purpose of the Act was to declare and codify
the common law.
I agree with his Honour’s conclusion on this issue and the reasoning which underlay it.
On 22 February 2002 the Home Invasion (Occupants Protection) Act 1998 was repealed by s 4 of
the Crimes Amendment (Self Defence) Act 2001. That later Act amended the Crimes Act by inserting
into it the current provisions of Part 11 Division 3. In her Second Reading Speech introducing the Crimes
Amendment (Self Defence) Act 2001 the relevant Minister indicated that the provisions were based, with
two exceptions, upon the recommendations of the Model Criminal Code Officers Committee (MCCOC).
The Minister said:
I turn now to the model proposed by the Model Criminal Code Officers Committee. That model
removes the objective element of the test as to what the defendant perceived the danger to be.
This represents the common law before the case of Zecevic v DPP (Vic) (1987) 162 CLR 645. It
means that a person who really thought they were in danger, even if they were mistaken about that
perception, may be able to rely on self-defence for their actions. The person’s actions on the basis
of their belief still has to be reasonable, but the belief itself is totally based on their circumstances as
the person perceived them to be.
The Bill follows the general concept of self-defence laid down by the Model Criminal Code, so
that a defendant who actually believed it was necessary to do what he or she did to repel an attack,
even if they were wrong about that perception, may seek to rely on self-defence, so long as it was a
reasonable response in the circumstances as perceived by the defendant. However the Bill contains
two fundamental departures from the Model Criminal Code.
Those two departures were the re-introduction of the concept of excessive self-defence in relation to
murder and the extent of the right to defend property neither of which are relevant to the present issue.
The Minister, having referred to those two matters in detail, went on:
The Bill repeals the Home Invasion (Occupants Protection) Act 1998 and the Workplace (Occupants
Protection) Act 2001 so that the law can apply uniformly across all situations where self-defence
might arise. It will effectively abolish the current common law regarding self-defence. In every case
it will be the general concept of self-defence, as codified in the Bill, which will apply. However, the
common law is not made irrelevant—the provisions in the Bill are firmly grounded in common law
principles.
In December 1992 MCCOC issued its Final Report on the subject of Chapter 2 of the proposed Model
Criminal Code. That chapter deals with the general principles of criminal responsibility. MCCOC proposed
a provision dealing with self-defence which is in almost identical terms with that contained in s 418 of
the Crimes Act. It is as follows:
313 Self-defence
A person is not criminally responsible for an offence if the conduct constituting the offence was
carried out by him or her in self-defence.
313.1 Conduct is carried out by a person in self-defence if
• the person believed that the conduct was necessary:

• to defend himself or herself or another person; or
• to prevent or terminate the unlawful imprisonment of himself or another person, or
• to protect property from unlawful appropriation, destruction, damage or interference, or
• to prevent criminal trespass to any land or premises or to remove a person committing any
such criminal trespass,
• his or her conduct was a reasonable response in the circumstances as perceived by him or her.
In explanation of this provision the report stated (at 69):
The test as to necessity is subjective but the test as to proportion is objective. It requires the response
to of the accused to be objectively proportionate to the situation which the accused subjectively
believed she or he faced (the words ‘as perceived by him or her’ were added to make this clear). The
approach is consistent with s 46 of the Tasmanian Code.
It should be noted that the decision in McCullough, which Hunt CJ at CL distinguished in Conlon,
concerned the interpretation of s 46 of the Tasmanian Code. In McCullough the Court of Criminal
Appeal said:
In our opinion the learned trial judge in these passages properly directed the jury that the test
of reasonableness under s 46(2) is a subjective test, in the limited sense that the question to be
considered by the jury was whether it was reasonable for the applicant in all his then circumstances
to hold the relevant apprehension and to have the relevant belief (cf Muratovic [1967] Qd R 15 at
201). It is true that the learned trial judge did not tell the jury that one such circumstance to be taken
into account was the applicant’s state of partial intoxication (if they thought he was in that state), but
since that was one of his then circumstances the jury would have taken it into account, and it would
have been proper to do so, in relation to the issue whether the applicant in fact held the apprehension
and the belief to which the subsection refers. But it would have been a wrong direction to tell the
jury that they could or should take such state of intoxication into account in deciding whether or not
the applicant’s apprehension and belief, if he held them, were reasonable or held on reasonable
grounds. The criterion of reasonableness is in its nature an objective one, and in our view it would be
incongruous and wrong to contemplate the proposition that a person’s exercise of judgment might be
unreasonable if he was sober, but reasonable because he was drunk. Any more positive or detailed
direction than the learned trial judge gave was unnecessary, but if a more specific direction were to
be given it should be in the terms that a person’s state of intoxication may be taken into account in
considering whether or not he held the apprehension and belief to which subs 46(2) refers, but not
in respect of whether such apprehension and belief were reasonable or held on reasonable grounds.
In the present case the Crown has contended that, even if Conlon represented the common law
position on the assessment of reasonable grounds for the accused’s belief as to what conduct was
necessary in self-defence, it does not represent the position with respect to a ‘reasonable response’
under s 418, which provision, it was submitted does not, and was not intended to, codify the common
law. The Crown’s submission was that, although intoxication is relevant to an assessment of the belief
held by the accused as to what conduct was necessary in his self-defence and as to the circumstances
perceived by the accused, it is not relevant to an assessment of the reasonableness of the accused’s
response to those circumstances.
Mr Cusack QC for the accused has argued that the common law as stated by Hunt CJ at CL should be
maintained in the interpretation of s 418 as, in his submission, the terms of the section do not manifest
a clear intention on the part of the Parliament to displace the common law requirement that intoxication
be considered both when determining the belief of the accused and the reasonableness of his conduct.
He points out that had Parliament wished to bring about the result, for which the Crown contends, it could
have easily done so by using the term ‘a reasonable person’ which would have picked up s 428F of the
Crimes Act. That section states:
If, for the purposes of determining whether a person is guilty of an offence, it is necessary to compare
the state of mind of the person with that of a reasonable person, the comparison is to be made
between the conduct or state of mind of the person and that of a reasonable person who is not
intoxicated.
However, it should be noted that s 418(2) is concerned not with the state of mind of a reasonable
person but with the reasonableness of the conduct of the accused having regard to his or her state of
mind.
In my view the Crown’s submission should be accepted. I acknowledge that to do so is a departure
from the common law position as pronounced in Conlon to the possible detriment of an accused person
but such a result flows from a consideration both of the words of the section and of the history of the
legislation that I have set out briefly above.
The question now posed for the jury, where there is evidence raising self-defence, is not the same
as it was at common law after Zecevic v DPP and as it was considered in Conlon. The questions to be
asked by the jury under s 418 are: (i) is there is a reasonable possibility that the accused believed that
his or her conduct was necessary in order to defend himself or herself; and, (ii) if there is, is there also a
reasonable possibility that what the accused did was a reasonable response to the circumstances as he
or she perceived them.
The first issue is determined from a completely subjective point of view considering all the personal
characteristics of the accused at the time he or she carried out the conduct. The second issue is
determined by an entirely objective assessment of the proportionality of the accused’s response to the
situation the accused subjectively believed he or she faced. The Crown will negative self-defence if it
proves beyond reasonable doubt either (i) that the accused did not genuinely believe that it was necessary
to act as he or she did in his or her own defence or (ii) that what the accused did was not a reasonable
response to the danger, as he or she perceived it to be.
The issue as to the reasonableness of the accused’s response is objective in so far as the jury is not
concerned with what the accused believed was necessary to respond to the circumstances as he or she
perceived them to be. The current provision is not concerned with whether the accused’s belief as to what
was the necessary response was a reasonable one or whether he or she had reasonable grounds for that
belief. This is where the current provisions are in contrast to the position at common law: the accused
need not have reasonable grounds for his or her belief that it was necessary to act in the way he or she
did in order to defend himself or herself. It is sufficient if the accused genuinely holds that belief.
It will be a matter for the jury to decide what matters it should take into account when determining
whether the response of the accused was reasonable in the circumstances in which he or she found
himself or herself. The jury is not assessing the response of the ordinary or reasonable person but the
response of the accused. In making that assessment it is obvious than some of the personal attributes of
the accused will be relevant just as will be some of the surrounding physical circumstances in which the
accused acted. So matters such as the age of the accused, his or her gender, or the state of his or her
health may be regarded by the jury. Whether or not some particular personal characteristic of the accused
is to be considered will depend largely upon the particular facts of the case.
But in my opinion one matter that must be irrelevant to an assessment of the reasonableness of
the accused’s response is his or her state of sobriety. As was pointed out in McCullough, it is logically
incongruous ‘to contemplate the proposition that a person’s exercise of judgment might be unreasonable
if he was sober, but reasonable because he was drunk’. Apart from Conlon, I am not aware of any other
decision that has held that intoxication is a matter relevant to an evaluation of the reasonableness of the
conduct or belief of a person. It is not relevant at common law to an evaluation of the accused’s response
to provocation or the belief of a reasonable person as to the dangerousness of the accused’s actions for
the offence of manslaughter.
In Conlon Hunt CJ at CL expressed the view that he was not prepared to introduce the policy applied
in the interpretation of s 46 of the Tasmanian Code in McCullough to the interpretation of the decision in
Zecevic v DPP. I do not believe that I am similarly constrained. As I have indicated s 418 is not, and was
not intended to be, a codification of the common law. Further, the general policy adopted by the legislature
in respect of the relevance of intoxication to the criminal law is contained in Part 11A of the Crimes Act.
The provisions of that Part have limited the use that a court can make of the fact that an accused is
intoxicated when considering criminal responsibility. In my view, if the policy enunciated in Part 11A were
not adopted in construing s 418, the result would be to create an illogical and unacceptable inconsistency
in the criminal law of this State with regard to the relevance of intoxication to criminal responsibility.
For these reasons I directed the jury to the effect that they must take into account the accused’s
intoxication when considering whether he might have believed that it was necessary to act as he did
in defence of himself and when considering the circumstances as he perceived them, but not when
assessing whether his response to those circumstances was reasonable.
Questions
4.75 In general terms, what do trial judges’ rulings deal with? Can they be a source of
precedent? What issue or issues did Howie J’s ruling deal with? What did he conclude
was the relevant law?
4.76 How did Howie J formulate the s 418 doctrine of self-defence?
4.77 The ruling alludes to s 428F referring to the ‘reasonable person’. Why was it not
decisive in resolving the instant issue?
4.78 Is the hybrid objective–subjective test in the s 418 self-defence doctrine to be pre-
ferred to the wholly objective common law test?
In Presidential Security Services of Australia Pty Ltd v Brilley (2008) 73 NSWLR 241; [2008]
NSWCA 204 at [135], it was observed that there is nothing inconsistent between D having an
intention to injure (or kill) and application of the self-defence doctrine. The applicability of the
latter logically will need to be considered only after an offence of homicide or assault has been
proven against D.
4.3.5 South Australia

In South Australia, the Criminal Law Consolidation Act 1935 (SA) s 15 provides:
(1) It is a defence to a charge of an offence if:
(a) the defendant genuinely believed the conduct to which the charge relates to be
necessary and reasonable for a defensive purpose; and
(b) the conduct was, in the circumstances as the defendant genuinely believed
them to be, reasonably proportionate to the threat that the defendant genuinely
believed to exist.
(2) It is a partial defence to a charge of murder (reducing the offence to manslaughter), if:
(a) the defendant genuinely believed the conduct to which the charge relates to be
necessary and reasonable for a defensive purpose; but
(b) the conduct was not, in the circumstances as the defendant genuinely believed
them to be, reasonably proportionate to the threat that the defendant genuinely
believed to exist.
(3) For the purposes of this section, a person acts for a ‘defensive purpose if the person
acts—
(a) in self defence or in defence of another; or
(b) to prevent or terminate the unlawful imprisonment of himself, herself or
another.
(4) However, if a person—
(a) resists another who is purporting to exercise a power of arrest or some other
power of law enforcement; or
(b) resists another who is acting in response to an unlawful act against person or
property committed by the person or to which the person is a party,
the person will not be taken to be acting for a defensive purpose unless the person
genuinely believes, on reasonable grounds, that the other person is acting unlawfully.
(5) If a defendant raises a defence under this section, the defence is taken to have been
established unless the prosecution disproves the defence beyond reasonable doubt.
Section 15B provides:
15B—Reasonable proportionality
A requirement under this Division that the defendant’s conduct be (objectively) reasonably
proportionate to the threat that the defendant genuinely believed to exist does not imply
that the force used by the defendant cannot exceed the force used against him or her.
Section 15A deals with the scope of self-defence in the context of protection of property,
prevention of trespass, and making an arrest.
Thus, in South Australia, the test for self-defence has two limbs: the first is subjective and
the second objective. In R v Heffernan; R v Stephens [2012] SASCFC 70 at [35], the South
Australian Court of Criminal Appeal approved the following summing up by a trial judge which
explains the operation of the test and the two elements:
R v Heffernan; R v Stephens
[2012] SASCFC 70
(Supreme Court of South Australia, Court of Criminal Appeal)
Gray J: To understand the complaint about the Judge’s directions in respect of self-defence, it is
necessary to extract a lengthy passage from the summing up. The Judge in the course of his summing
up addressed the jury in the following terms:
However, I am not quite finished with that because I have not dealt with the question of self-defence.
That is a little more complicated and I want to go back and give you some directions about that.
Remember, self-defence is the third element that we are talking about. Was it unlawful? Let me talk
generally about self-defence because that has been raised very clearly in this case in the evidence
of Mr Heffernan. In some situations it is lawful to use force against another person. Force used in
self-defence is an example of that. When a person is subjected to or genuinely fears an attack, he
may use force, even lethal force, to defend himself. The law entitles him to do what is reasonably
necessary for the purposes of self-defence. However, generally speaking defence for this purpose
means defence. A person who claims to be acting in justified self-defence must have acted and
believed himself to be acting in defence. To engage willingly in combat is not acting in self-defence.
Self-defence can never be a cover-up for aggression. Self-defence can never be called in aid to
justify retaliation or revenge. If the danger that the person perceived he was facing was over and the
occasion for self-defence was at an end he cannot keep going. Then again on the other side of the
coin a person, who according to the circumstances as he understands them, genuinely believes that
he was threatened with attack is not obliged to wait until the attack begins.
Ladies and gentlemen, they are just general remarks about self-defence but let me turn more
specifically to what the law regards as justifiable self-defence and let me be clear and direct you
that although the defence of self-defence is raised by the defendant and you heard it raised in the
evidence of Mr Heffernan, he was the one who told you why he stabbed the deceased and he said
it was because it was in self-defence, because he raises it that does not mean that there is an onus
upon him to prove it. Once it is raised as it has been here the prosecution have to prove beyond
reasonable doubt that it does not apply. If it does not do that, then his actions would have been
lawful. The prosecution has to prove that they are unlawful. In other words, the prosecution has to
exclude beyond reasonable doubt self-defence to prove that the accused’s conduct was unlawful. So
in anything I say about self-defence you must remember the overarching principle that the onus is
upon the Crown to disprove that self-defence exists. It is not for the defence to prove.
Ladies and gentlemen, putting that aside now, let me just direct you about self-defence in
relation to this case. It is a complete defence to the charge of murder if two things exist. One, the
accused genuinely believed that the act which killed the deceased was necessary and reasonable
in his own defence. That is the first situation that has to exist, bearing in mind that he does not have
to prove it, it is for the Crown to disprove it. That is the first thing. So it looks into the mind of the
accused. Secondly, if the first situation exists bearing in mind the onus of proof, that the conduct in
the circumstances as the accused genuinely believed to exist was reasonably proportionate to the
threat which he believed he faced. If both of those situations exist, that is a complete defence to
murder. When I say both of them exist, it is for the Crown to prove beyond reasonable doubt they do
not exist. There is no onus on the defence.
Let me go back. The first limb requires the Crown to disprove that the accused genuinely believed
that the act, namely the stabbing which killed the deceased, was necessary and reasonable in his
own defence. Looking at that aspect it is what we call a subjective test. We look into the mind of the
accused at what he genuinely believed. If the Crown prove to you beyond reasonable doubt that there
is no such genuine belief or proves to you beyond reasonable doubt he was not telling the truth when
he gave that version, then you need go no further, you need not think about the second limb as far
as self-defence is concerned, it just does not apply, therefore the act would be unlawful. If, however,
you found that it is reasonably possible that the accused is telling the truth and that the accused
himself genuinely believed that the act that killed the deceased was necessary and reasonable in
his own defence, you will then go to the second limb and that is: Was the conduct that caused the
death in the circumstances as the accused genuinely believed them to be reasonably proportionate
to the threat which he believed he faced? That is an objective view. It is for you to assess whether
his actions were proportionate to the threat bearing in mind the situation which he believed he faced
putting yourself in his shoes. You decide whether what he did was reasonably proportionate, was it a
fair thing in the circumstances. Ladies and gentlemen, that is a matter for you objectively looking at
the situation as the defendant faced to decide. In other words, it is for you to assess the situation as
to whether it was proportionate to the threat the actions he took as I said in the light of the position
that he was in and as he saw the situation. If the prosecution also fails to prove beyond reasonable
doubt that it was not proportionate, then that is a complete defence. In other words, both situations
exist, that is a complete defence. So he had to have the genuine belief and what he did had to be
proportionate to the threat that he faced.
In this case, the Court of Appeal held that the trial judge did not err in using the word
‘proportionate’ rather than ‘reasonably proportionate’ when directing the jury as to the
requirements of self-defence under s 15 of the Criminal Law Consolidation Act 1935 (SA).
Similarly in R v Yout [2012] SASCFC 1 at [11]–[15], the court held that the trial judge did not
err in using the phrase ‘reasonable self-defence’ when directing the jury on self-defence.
See also Roberts v The Queen [2011] SASCFC 117 at [83]–[113]; R v Dunn [2012]
SASCFC 40.
Questions
4.79 In Zecevic, did the trial judge allow the issue of self-defence to go to the jury? Why,
or why not?
4.80 If a reasonable person would regard D’s use of force as excessive under the
circumstances, does that lead inexorably to the conclusion that D has failed to satisfy
the objective conditions?
4.81 According to the judgments of Wilson, Dawson, Toohey JJ, and Mason CJ in Zecevic,
what reasons were given for abolishing the doctrine of excessive self-defence? Do
you find any of these reasons to be compelling? Why, or why not?
4.82 What counter arguments were made by Deane J? Do you find any of them to be
compelling? Why, or why not?
4.83 According to the joint judgment of Wilson, Dawson, and Toohey JJ, can the doctrine of
self-defence be articulated in the form of a simple question? If so, does that question
encompass the four conditions set forth above in section 4.3.2?
4.84 Consider the formulation encompassed by the simple question: Which, if any, of D’s
personal attributes are taken into account in assessing whether or not D had reason-
able grounds for believing that ‘it was necessary in self-defence to do what he did’?
Were Wilson, Dawson, and Toohey JJ clear on this point?
In R v Conlon (1993) 69 A Crim R 92 (NSW SC), Hunt J held that under the Zecevic
formulation of self-defence, all personal characteristics of an accused, including self-induced
intoxication, must be taken into account in deciding whether s/he believed on reasonable
grounds that it was necessary to do what s/he did. This decision was followed by the New South
Wales Court of Criminal Appeal in R v Hawes (1994) 35 NSWLR 294 at 306. See, however,
Crimes Act 1958 (Vic) s 9AJ which prohibits an accused’s intoxicated state from being taken
into account unless it was non-self-induced (but only where the ‘relevant offences’ (s 9AB) of
murder, manslaughter, and defensive homicide are concerned).
Questions
4.85 Is the huge disparity between the defences of provocation and self-defence in taking
D’s personal attributes into account justified? Is the justification predicated on the
comparative degrees of moral culpability that the law ascribes to both D and V in
situations where these defences could be argued successfully?
4.86 Which, if any, personal attributes of D should be taken into account in answering the
simple question in Zecevic?
4.87 According to the joint judgment of Wilson, Dawson, and Toohey JJ, what specific rules
apply when D is the original aggressor and yet argues self-defence?
4.88 According to the joint judgment of Wilson, Dawson, and Toohey JJ, is it a legal
requirement that one must retreat as far as possible before force or the threat thereof
can be justified in self-defence? If not, is this a relevant factor in answering the simple
question formulated in Zecevic? Why, or why not?
4.89 Under the Zecevic formulation of self-defence, must D’s response actually be
proportionate to the threat in order for the defence to succeed?

4.90 Must V’s threat be imminent in order for the defence to succeed?
4.91 Must V’s threat actually be unlawful in order for the defence to succeed? Why did
Deane J prefer to state that V’s threat must be ‘unjustified’ as opposed to ‘unlawful’?
What example did he use to illustrate his preference for the term ‘unjustified’?
4.3.6 Summary of self-defence

To summarise the effect of Zecevic’s case, a number of propositions may be listed:
• The doctrine of self-defence entails one question, applicable to all crimes in which the
defence is available: namely, ‘whether the accused believed upon reasonable grounds that it
was necessary in self-defence to do what he did’ (at 661).
• This general doctrine involves both a subjective and objective test. The subjective requirement
is that the defendant must honestly believe in the necessity of using force and in the amount
of force actually used; the objective requirement is that there be reasonable grounds for the
defendant’s belief in regard to both the need to use force and the amount of force used.
• Unless both the subjective and objective requirements are met, the defence will fail
completely. In South Australia and New South Wales, in cases of excessive self-defence a
compromise position exists. An accused is entitled to a reduction to voluntary manslaughter
if his or her genuine belief in the need to use deadly force in self-defence was unreasonable.
This is similar to the Australian common law position on excessive self-defence as it stood
prior to Zecevic.
• There is no requirement that the accused is actually under attack. Self-defence can also be
raised where the accused perceives that an attack is imminent. This is also the position in
South Australia: Criminal Law Consolidation Act 1935 (SA) s 15. See also Crimes Act 1900
(NSW) s 418.
• At common law there is no requirement that the attack be unlawful: see Zecevic at 653. This
is also the position in the New South Wales and South Australia: Crimes Act 1900 (NSW)
s 422; Criminal Law Consolidation Act 1935 (SA) s 15. The position in South Australia,
however, is that where a person is responding to an unlawful act committed by the accused,
self-defence is only available where the accused believes on reasonable grounds that the
person is acting unlawfully: Criminal Law Consolidation Act 1935 (SA) sub-s 15(4).
• Failure to establish self-defence does not preclude D from interposing the provocation
defence.
4.3.7 Related defences: defence of property, others, preventing

crimes, and escape
The lawful use of force or the threat thereof is not limited to defending oneself from the unlawful
and imminent use of force or the threat thereof. It is also lawful to use force or the threat thereof,
and in some instances lethal force, in a number of other circumstances. These include situations
in which force is used:
(1) To defend another person(s). At common law, early authority limited this defence to
persons with whom the accused was in the special relationship such as master/servant
or parent/child. In principle, however, there seems to be little justification for such a
limitation and more recent authority suggests that the defence can apply to the defence of
a stranger: R v Duff [1967] 1 QB 63 at 67; R v Redman [1978] VR 178. This view has now
been adopted in New South Wales and South Australia: Crimes Act 1900 (NSW) sub-ss
418(2)(a), 421(1)(c); Criminal Law Consolidation Act 1935 (SA) s 15.
(2) In defence of one’s personal or real property. In light of the test for self-defence at
common law, it is unlikely that an attack on property without an attack on a person could
justify the application of lethal force. However, in some circumstances a lesser amount of
force may be justified: Crimes Act 1900 (NSW) sub-ss 418(2)(c), 420(a); Criminal Law
Consolidation Act 1935 (SA) sub-s 15A(1)(a)(i).
(3) In order to prevent the commission of a crime: Crimes Act 1900 (NSW) sub-s 418(2);
Criminal Law Consolidation Act 1935 (SA) sub-s 15A(1).
(4) In order to exercise a power of lawful arrest or prevent an escape from lawful arrest or
custody: Crimes Act 1900 (NSW) sub-s 418(2); Criminal Law Consolidation Act 1935
(SA) sub-s 15A(1)(a)(iii); Crimes Act 1958 (Vic) s 462A.
The other secondary defences to homicide will be dealt with in Part 8 of this book which
pertains to the criminal defences generally.
Review questions
1 Bob is married and lives in his home with his wife and three teenage children. Recently, Bob discov-
ered that his wife had been having a long-term affair with Leigh, one of her co-workers. Although
Bob eventually forgave his wife, there continued to be bad blood between him and Leigh who had
threatened to kill Bob on numerous occasions, one as recently as five days ago. One night one
of Bob’s children, Sam, came home at around 2 a.m. after attending a party with some friends.
Sam had forgotten to take his house key and decided that rather than wake up the entire family,
he would gain entry by prying open a window on the ground floor of the home. Bob, unaware that
Sam had broken his midnight curfew, immediately assumed that he was being burgled or, even
worse, that Leigh had come to make good on his threats. Bob retrieved his sawn-off shotgun from
his bedroom closet, made his way downstairs, and opened fire on what he genuinely believed was
a burglar or Leigh. Bob was horrified to discover that he had unwittingly killed Sam.
Discuss what, if any, criminal liability Bob will likely incur. Would your assessment change if Bob
had been intoxicated at the time of the incident? Would it make any difference if Bob’s intoxication
had not been self-induced? Why, or why not?
2 Aristotle is charged with the murders of his estranged wife Diotima and her boyfriend, Plato. Plato
and Diotima lived together and on the occasion in question, Aristotle had come around to collect
some money that was owed to him by Diotima. Aristotle could not help making a quip about Plato
and Diotima, who was usually quite placid, lost her temper. She told Aristotle that no woman would
go out with him because he talked too much and had an answer and a question for everything. She
added that this was understandable because he came from that unintelligent city of Thessalonika,
whereas Plato was an Athenian—and ‘you can’t get better lovers than Athenians’. Aristotle became
incensed and just at that moment Plato, who had been sleeping in the bedroom down the corridor
and into which Aristotle could see, moved and thereby dislodged the sheets, exposing his torso.
Aristotle then pushed his way through the fly-wire door and fatally shot both Diotima and Plato.
Assess the availability of the defence of provocation in respect of both homicides.
3 Sara has been the victim of repeated abuse by her husband Malcolm. On the day in question,
Malcolm had come home demanding his dinner. During dinner, Malcolm repeatedly argued with
Sara. After dinner, Malcolm went into the lounge room and watched television while sitting on the
sofa. Later, Sara entered the room and said, ‘Come to bed’. Malcolm then accused her of selling her
body, and insulted her with a series of sexist epithets. Sara nonetheless pleaded with him to come
to bed. He responded by telling her that he would kill her while she was asleep. Sara then went
to the kitchen, obtained a butcher’s knife, and sharpened it. She returned to the lounge room, sat
on the sofa, and once again requested that Malcolm to come to bed. Malcolm repeated his threat
to kill her in her sleep, to which she replied, ‘No, I’ll kill you’. Malcolm then taunted her again with
sexist epithets and said she wouldn’t have the guts. According to her testimony at trial, the next
thing Sara recalled was that Malcolm lay dead on the couch with a knife in him. Sara was charged
with murder.
Advise Sara on any viable defences as well as the likelihood of pleading them successfully.
230
Chapter 5
Involuntary Manslaughter
5.1 Introduction
In this chapter we focus our attention on the final heading of unlawful homicide recognised at
common law: involuntary manslaughter. It would be helpful to once again review the various
categories of unlawful homicide discussed in Chapter 2.
You will recall from our discussion there that involuntary manslaughter is broadly defined
as an act or omission that causes the death of another human being without lawful excuse and
under circumstances that do not amount to murder or voluntary manslaughter.
A suggested methodology for dealing with issues of unlawful homicide is to begin by
inquiring into the defendant’s possible liability for the most serious of the unlawful homicide
offences: murder. The first step is to determine whether a volitional act or omission on the part
of the defendant can be identified as the legal cause of the death of another human being. If
the answer is no, then there is no homicide, lawful or unlawful, and the matter ends there. If
the answer is yes, then the next step is to ascertain whether the defendant’s act or omission was
accompanied by one of the four mens reas that will suffice for the crime of murder. If the answer
is yes, then the issue becomes one of whether the defendant can successfully interpose one or
more of the partial defences set out in Chapter 2 (section 2.3.2) in order to reduce the offence
to voluntary manslaughter or, alternatively, successfully interpose one or more of the secondary
defences and thereby secure an outright acquittal. If the answer is no, then both murder and
voluntary manslaughter can be ruled out on the basis that the requisite mens rea is lacking.
In that event, the next step is to examine the defendant’s liability for constructive murder.
Assuming that there is no liability under this doctrine, the only potential liability for unlawful
homicide at common law will be under one or both headings of involuntary manslaughter.
There are two distinct headings of involuntary manslaughter that exist in various forms in
all Australian jurisdictions, except the Northern Territory. The first, involuntary manslaughter
Chapter 5: Involuntary Manslaughter 231
by unlawful and dangerous act, is also known as ‘constructive manslaughter’. The second,
involuntary manslaughter by criminal negligence, is sometimes referred to as ‘negligent
manslaughter’. It is important to point out that although these two forms of manslaughter are
separate and distinct in so far as their constituent elements are concerned, there will be many
instances in which these offences will overlap. It is on these constituent elements that the balance
of this chapter will focus.
Question
5.1 What is the difference between both types of manslaughter and murder?
5.2 Relationship between categories of manslaughter

As you will discover in the materials that follow, the two categories of involuntary manslaughter
are distinct, but do overlap in some cases. What you must keep in mind, therefore, is that a
conviction for involuntary manslaughter may be predicated on either or both headings of this
offence. In procedural terms, this means that the defendant will be charged generally with
involuntary manslaughter, and the prosecution is then free to argue liability by reference to
either or both headings.
5.3
Involuntary manslaughter by unlawful and
dangerous act
5.3.1 Unlawful and dangerous act
Until the latter part of the nineteenth century, an accused committed involuntary manslaughter
by unlawful and dangerous act (sometimes referred to as ‘constructive manslaughter’) if s/he
caused the death of another human being during the course of committing any unlawful act,
including non-criminal unlawful acts which merely gave rise to tort or other forms of civil
liability. With the passage of time, the courts came to view this formulation as overly broad and
laden with the potential for unduly harsh consequences. Consequently, in R v Franklin (1883)
15 Cox CC 163, the ‘unlawful act’ component of the offence was circumscribed to include only
violations of the criminal law. This remains the law under the present Australian and English
common law doctrines. The scope of the offence was further restricted some sixty years later in
R v Larkin [1943] 1 All ER 217. In Larkin, the English Court of Appeal held that in order
to incur liability under this heading of involuntary manslaughter, the ‘unlawful act’ must also
constitute a ‘dangerous act’ in the sense that it must have been ‘likely to injure another person’
(at 219). In R v Church [1966] 1 QB 59, the Court of Appeal refined the term ‘dangerous act’
to denote acts that ‘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). Thus, under the English common law doctrine, the question of whether an ‘unlawful
act’ is also a ‘dangerous act’ is to be determined by an objective standard.
Notwithstanding the tendency of English courts to gradually restrict the ambit of liability
under this category of involuntary manslaughter, the Church formulation of dangerousness was
still seen by many as overly harsh. Under this formulation, for example, a defendant who is
unaware that someone is a haemophiliac and causes their death by pricking them with a pin
will incur liability for manslaughter—irrespective of the fact that a reasonable person in the
defendant’s position would not have foreseen a significant risk that death or grievous bodily
harm would ensue.
In R v Holzer [1968] VR 481, Smith J enunciated a new formulation of the test of
dangerousness that appeared to greatly diminish the potential for such Draconian results.
Under this formulation, a ‘dangerous act’ is one that ‘a reasonable man in the accused’s
position, performing the very act which the accused performed, would have realized … was
exposing another or others to an appreciable risk of really serious injury’ (at 482). The Holzer
approach was adopted by the Court of Criminal Appeal of Victoria in R v Wills [1983] 2 VR
201 at 211–13. In Wilson v The Queen (1992) 107 ALR 257, the leading Australian case on this
heading of involuntary manslaughter, the High Court refined and expounded upon the Holzer
test. The Wilson test applies in New South Wales, Victoria, and South Australia. The High
Court confirmed the Holzer test in Burns v The Queen [2012] HCA 35 at [8ff ] (per French
CJ); and at [75] (per Gummow, Hayne, Crennan, Kiefel, and Bell JJ, who further observed that
the supply of a drug may be an unlawful act but that it is not in itself a dangerous act; rather,
the identification of any element of dangerousness would need to focus on the ingesting of the
drug [at 76]).
In R v Pannozzo (2007) 178 A Crim R 323; [2007] VSCA 245, the court held that the trial
judge had not erred in not defining the term ‘dangerous’ in a situation where the alleged conduct
was obviously of this nature (pointing and discharging a rifle in the direction of the deceased
(at [42]ff )).
Before proceeding to Wilson, however, it is useful to comment briefly on the familiar
requirement of legal causation and the critical distinction between a voluntary act or omission
and a mens rea.
5.3.2 Causation
As in all homicides, the death of the victim must be legally caused by a voluntary act or omission
on the part of the accused. It is suggested that you familiarise yourself once again with the
discussions in Chapter 2, sections 2.7–2.10.
5.3.3 Voluntariness and intention

It is sometimes said that the crime of involuntary manslaughter by unlawful and dangerous
act requires that the defendant must have intended to do the unlawful and dangerous act (or
omission). Because of the use of the word ‘intended,’ one might erroneously conclude that this
is a crime of mens rea. In this context, however, the word ‘intended’ merely denotes, as with
any crime (other than situation crimes), that in order to satisfy the actus reus component of
the offence, there must be some voluntary act or omission on the part of the defendant that
legally causes the non-mental elements of the offence to occur (see Chapter 1, sections 1.7.2 and
1.7.3). As you are about to discover, the non-mental elements of this category of involuntary
manslaughter will vary depending upon the nature of the ‘unlawful’ act that is involved.
Wilson v The Queen

(1992) 174 CLR 313; 107 ALR 257
Judgment
Mason CJ, Toohey, Gaudron, and McHugh JJ: The appellant was charged with the murder of Warren
George Forsythe Ormsby. He was acquitted of that charge but was convicted of manslaughter. He stood
trial jointly with Wayne Dennis Cumming, who was found not guilty of murder and manslaughter. Both
offences are dealt with in the Criminal Law Consolidation Act 1935 (SA) (the Act) but neither is defined in
the Act. Their elements are to be found in the common law.
The facts
The events giving rise to the charge against the appellant were as follows. On the evening of 15 September
1989 the appellant, his girlfriend Kerri Ann Bennier, and Cumming were at the home occupied by Cumming’s
stepfather and the appellant’s mother. The appellant and Bennier walked to a nearby hotel to collect some
alcohol from the appellant’s mother who was at the hotel with Cumming’s stepfather. On the way they met
the deceased, a middle-aged man, who was under the influence of liquor. The deceased exchanged words
with the appellant and Bennier. The appellant thought that the deceased was rambling on and making it
hard for him to pass. The appellant then told Bennier to go back home to get Cumming so, he said, that
Cumming might go to the hotel and collect the alcohol. When Cumming arrived at the scene with Bennier,
the appellant and the deceased were still there. The appellant claimed that the deceased had earlier
pushed him and that, after Cumming arrived, the deceased ‘put his arm on the back of my neck and tried
to kiss me’. The deceased then ‘shouldered me’. The appellant tried to walk away, saw that the deceased’s
fists were clenched at his side, and thought the deceased was going to hit him. This evidence followed:
Q—So what did you do? A—That’s when I hit him.

Q—How hard did you hit him? A—It wasn’t really—I didn’t think it was really that very hard.
Q—It wasn’t soft either. A—No.
Q—Only the one time. A—Yes, I only hit him the once.
The blow was to the deceased’s face, causing him to fall to the ground, where his head ‘landed in
the dirt part near the hedge’. The appellant then walked off with Bennier. As he did, Cumming rolled
the deceased on to his stomach, went through his pockets, rolled him on to his back and ‘smashed his
head on the concrete … twice’. The cause of the deceased’s death was brain damage, his injuries being
consistent with one impact. The Crown’s case, as presented in final address, suggested the fall from the
appellant’s punch as the more likely cause of death. The trial judge’s direction seems to have left the fall
from the appellant’s punch or Cumming’s later actions as likely to have caused death. This aspect is not
crucial to the questions now before this court.
The case against the appellant

The case against both accused was one of felony-murder, it being alleged that they assaulted the
deceased in the course of robbing him. In answer to this charge the appellant denied any participation in
the robbery and any intention of causing serious harm to the deceased; he also relied on self-defence.
This court is not directly concerned with the trial judge’s directions as to murder. But it may be noted that
his Honour directed the jury that if the deceased was killed in the course of a joint enterprise between
Cumming and the appellant or, if one aided or abetted the other in the killing, they should find both guilty
of murder. The trial judge also directed the jury to consider whether either man, acting on his own, was
guilty of murder. Since both were found not guilty of murder, it must be taken that the jury rejected an
intention to kill or to do grievous bodily harm on the part of either.
On the alternative verdict of manslaughter, his Honour directed the jury in the following terms:
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.
Although the complaint regarding self-defence and manslaughter is part of the grounds of appeal
to this court, it is hard to see how self-defence could have been a real issue at the trial. The appellant
was free to walk away from the deceased at any time and the deceased could not have been thought by
the appellant to represent a threat to him, particularly as Cumming was with him. The appellant’s real
complaint, to which we now turn, is the direction as to ‘unlawful and dangerous act’ as an element of
manslaughter.
The question of manslaughter arising from an unlawful and dangerous act is an uncertain area of the
law, reflecting a divergence between Australian and English authorities as to the degree of danger which
must exist. It is useful to approach the question on an historical footing with a view to determining whether
it is possible to spell out any clear principle from the relevant authorities. This involves looking first at the
development of the law relating to culpable homicide.
Culpable homicide
The common law of homicide began with the principle that all who cause death, whether intentionally or
accidentally, are liable to conviction for murder. Its history reflects a continuing effort to limit that liability.
Fletcher observes:
The historic point of departure is the principle that unless a killing is justified … the party causing
death is always accountable … It was causing death, not the manner and culpability of acting,
that determined liability. When the law of homicide came under the King’s jurisdiction in the twelfth
century and became a crime punished by death, the general principle of liability began to admit of
exceptions.
By the thirteenth century, a charge of homicide arising from an accidental death could be met by the
plea of per infortunium or misadventure. Death occurring in the course of an unlawful act was culpable by
reason of the unavailability of the per infortunium or misadventure plea; W. Hawkins, M. Hale, and E. Coke
consider the matter in that context. The excuses of accident, self-preservation, and insanity marked the
beginning of the move to bring homicide back to the category of cases in which the offender had a fair
opportunity of avoiding death of the victim.
Even as late as the sixteenth century, culpable homicide was thought of as a single undivided offence
and the judges were more concerned with distinguishing between:
What was culpable [homicide] and what was covered by such defences as self-defence and
misadventure, than with making distinctions based on differing degrees of culpability.
However, in that century, manslaughter was used from time to time as a term mitigating murder in
cases in which the killing had been accidental or unintended or, though deliberate, involved an element
of provocation or self-defence. But the distinction between murder and manslaughter was not precisely
formulated. The earliest reported verdict of manslaughter was recorded in Salisbury’s case (1553)
1 Plowd 100; (1553) 75 ER 158 where co-conspirators, intending to ambush and kill Ellis, by mistake
killed his servant. John Salisbury, a servant of one of the conspirators, having no part in the conspiracy,
joined the affray and wounded the deceased.
The emergence of manslaughter as a separate and lesser offence than murder marks the beginning
of an approach that causing death is innocent unless additional factors (such as an intent to kill or the
taking of an excessive risk) are present. The grounds for rejecting an excuse become the grounds for
liability, and killing in the course of an unlawful act, in the absence of the requisite intent for murder, is
recognised as constituting manslaughter.
Even after the emergence of manslaughter as a separate and lesser offence, Coke maintained that
the unavailability of the plea per infortunium meant that the killing was murder. Logically this was so.
The fact that Coke’s view was not adopted indicates how attractive was the culpability/dangerousness
approach. Hale did not follow Coke’s view. Unlike Coke, he classified the killing of a boy when shooting at
a deer in another’s park manslaughter, evidently treating the shooting in the park as unlawful.
In the early eighteenth century, Hawkins, in his chapter on per infortunium, appears to place the
unavailability of the plea not so much on the fact of the unlawfulness of the act as on the level of risk
involved:
Sect 9. But if a person kills another by shooting at a deer, &c in a third person’s park, in the doing
whereof he is a trespasser; or by shooting off a gun, or throwing stones in a city or highway, or

other place where men usually resort; or by throwing stones at another wantonly in play. Which is a
dangerous sport, and has not the least appearance of any good intent; or by doing any other such
idle action as cannot but endanger the bodily hurt of some one or other, or by tilting or playing at
handsword without the king’s command; or by parrying with naked swords covered with buttons at
the points, or with swords in the scabbards, or such like rash sports, which cannot be used without
the manifest hazard of life, he is guilty of manslaughter.
Sect 10. And if a man happen to kill another in the execution of a malicious and deliberate purpose
to do him a personal hurt, by wounding or beating him, or in the wilful commission of any unlawful
act, which necessarily tends to raise tumults, and quarrels, and consequently cannot but be attended
with the danger of personal hurt to some one or other; as by committing a riot, robbing a park, &c he
shall be adjudged guilty of murder …
Sect 12. Neither shall he be adjudged guilty of a less crime, who kills another, in doing such a wilful
act, as shews him to be as dangerous as a wild beast, and an enemy to mankind in general; as by
going deliberately with a horse used to strike, or discharging a gun, among a multitude of people, or
throwing a great stone or piece of timber from a house into a street, through which he knows that
many are passing; and it is no excuse that he intended no harm to anyone in particular, or that he
meant to do it only for sport, or to frighten the people, &c (in each case, emphasis added).
Thus, an unlawful and dangerous act was not a rationale or basis of liability, but a factor negativing
a defence which otherwise was available to cut down what approached strict liability for causing death.
Though expressed in that way, the grounds for negativing the defence were easily transformed into
grounds of liability.
This transformation began to occur with the publication of Foster’s Discourse for Homicide in 1762.
Beginning with per infortunium as a concept of excuse, Foster then discussed the unlawful act as a
standard for gauging the gravity of the killing. However, he adopted the felony-murder rule so that a
killing in the course of an act with intent to commit a felony amounted to murder. The rule ascribes malice
aforethought to the accused when he kills in the perpetration of a felony. The doctrine of transferred
felonious intent and its analytical consequence, the crime of felony-murder, not only were regarded by
Stephen as the only blot on Foster’s work, but also marked the end of the possibility of matching moral
culpability to legal liability in homicide. Liability contingent on such a felony as the lawfulness of the
accused’s intended act, with only limited relation to its foreseeable consequences, is precisely the kind of
rule that ‘erodes the relation between criminal liability and moral culpability.’
The felony-murder rule was kept within confined bounds by insisting that the felonious act be ‘known
to be dangerous to life, and likely in itself to cause death’: R v Serne (1887) 16 Cox CC 311 at 313.
By the mid-eighteenth century, Blackstone was able to say that killing another ‘amounts to murder,
unless where justified …; excused on the account of accident or self preservation; or alleviated into
manslaughter’.
In the nineteenth century, the English courts applied the rule that, if a death occurred in the course
of an unlawful act not amounting to a felony, the killing should be treated as manslaughter. Stephen, in A
Digest of The Criminal Law (1887), Arts 222–23, states it as the common law rule. As thus expressed, the
rule was harsh because it involved liability for manslaughter in the case of an unlawful act which was not
dangerous. In other words, causing death in the course of performing a mere unlawful act does not supply
the level of culpability appropriate to manslaughter as an instance of culpable homicide.
Manslaughter by an unlawful and dangerous act

The rigour of the common law was softened by a number of decisions. In R v Franklin (1883)
15 Cox CC 163 at 165, Field J spoke of his ‘great abhorrence of constructive crime’ and held that
the requirement of unlawfulness was not met by the act in question being no more than a civil wrong. In
R v Larkin the Court of Criminal Appeal required that the unlawful act be dangerous and that it be ‘likely to
injure’. In R v Church [1966] 1 QB 59 at 69 the Court of Criminal Appeal rejected as erroneous a direction that:
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.
In the view of the court (at 70):
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.
In DDP v Newbury [1977] AC 500 the House of Lords examined the matter afresh. It affirmed the test
adopted in Larkin and Church. It held that an accused was guilty of manslaughter if he intentionally did
an act that was unlawful and dangerous and the act inadvertently caused death; that it was unnecessary
to prove that the accused knew that the act was unlawful or dangerous; and that the test was still
the objective test, namely whether all sober and reasonable people would recognise that the act was
dangerous in the sense of carrying with it the risk of some harm, not whether the accused recognised its
danger. As King CJ observed in the present case (at 284):
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 argument, appears to imply that the test is also met if there
is an actual intention to cause harm or an actual realisation that harm is likely, although that is not
necessary if the act is objectively dangerous.
And, as King CJ pointed out, Larkin, Church, and Newbury were not cases of intentional infliction
of harm. There are, however, decisions of English courts which suggest that the intentional infliction of
harm by means of an unlawful act may be sufficient to constitute manslaughter. The question of battery
manslaughter is considered later in this judgment.
The Australian decisions

A convenient starting point for a review of the Australian authorities is the decision of this court in Mamote-
Kulang v R (1964) 111 CLR 62. It will be necessary to refer to that case again in the context of battery
manslaughter. The appellant struck the deceased a blow with the back of his hand to the side of the
abdomen, intending to hurt her and cause her pain but not further injury. He was convicted of manslaughter.
The judgments were concerned mainly with the meaning of the term ‘accident’ in the relevant legislation
of Papua New Guinea but it seems that, in the view of Taylor, Owen, and Windeyer JJ, death resulting
from the intentional infliction of pain by an unlawful blow would constitute manslaughter at common law.
R v Holzer [1968] VR 481 required consideration of a question which had not arisen in Mamote-
Kulang but which was at the heart of some of the English decisions to which reference has been made.
The question was as to the application in Australia of the notion that, in the case of manslaughter by an
unlawful and dangerous act, the test of recognition of danger was objective. In dealing with that aspect
Smith J said (at 482):
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 realised
that he was exposing another or others to an appreciable risk of really serious injury … [I]t is not
sufficient, as it was held to be in R v Church … to show there was risk of some harm resulting, albeit
not serious harm.
As can be seen from this passage, Smith J imposed a stricter test that had been applied in Church
and in some other decisions, by requiring that the Crown establish an appreciable risk of ‘really serious
injury’. There is a respectable body of later authority which tends to support the approach taken by Smith
J in Holzer. That approach was expressly approved by the Court of Criminal Appeal of Victoria in R v Wills
[1983] 2 VR 201 at 211–13, though this court was concerned primarily with the objective nature of the
test to be applied. In Crusius v R (1982) 5 A Crim R 427 at 428 the Court of Criminal Appeal of Victoria
referred to Holzer with apparent approval, though the court was concerned only with ‘one limb’ of that
case, namely, ‘specific intent to commit a battery’.
Faced with this conflict of authority, King CJ concluded (at 286) that the Court of Criminal Appeal of
South Australia ‘should adopt the Holzer’s test’. In the event, King CJ, while holding that there had been a
defect in the trial’s summing up, concluded that there had been no miscarriage of justice (at 288). Cox J
considered that the English authorities, in particular Larkin and Church, should be followed in preference
to Holzer (at 304–5). Matheson J also favoured the English approach. His Honour was influenced by the
fact that Newbury was decided at the time when appeals lay from Australia to the Privy Council and that
therefore a decision of the House of Lords was ‘very persuasive’ (at 307). This, with respect, is a tenuous
basis on which to resolve the conflict of authority.
Unlawful and dangerous act

The jury must be taken to have convicted the appellant of manslaughter by reason of an unlawful and
dangerous act causing death. This was not a case of death resulting from criminal negligence.
Whether the ‘act’ in question was the punch by the appellant to the deceased’s face or the hitting of the
deceased’s head on the concrete by Cumming, it was an unlawful act. In view of Cumming’s acquittal, only the
punch arises for consideration. In view of what has been said about self-defence, the punch must be treated as
an unlawful act. Before the Court of Criminal Appeal the appeal was conducted as if only the punch was in issue
so far as the appellant was concerned. And that is how the appeal was conducted before this court.
Whatever may be said of the consequences of that act, there was no suggestion that it was accidental.
Thus the area of inquiry narrows further and, in the end, focuses on the question: was the act of
the appellant punching the deceased dangerous? That question in turn gives rise to another: was it
enough that the appellant (that is, a reasonable person in his position) appreciated the risk of some injury
to the deceased from the act or did the jury have to be satisfied that he appreciated the risk of really
serious injury?
Resolving the authorities

There are good reasons why the test in Holzer should be preferred to that in Newbury; the reasons
are those advanced by King CJ in the present case. One is the development of the law ‘towards closer
correlation between moral culpability and legal responsibility’: (1991) 53 A Crim R 281 at 286. Another is
that the scope of constructive crime ‘should be confined to what is truly unavoidable’ (at 287). A further
reason advanced by King CJ is that the persuasive authority of a decision of the Full Supreme Court of an
Australian state in this area of the law is greater than decisions of courts of other countries ‘which may
reflect different community attitudes and standards’ (at 287). The decision to which his Honour referred
was, no doubt, a reference to Wills.
It is not possible to resolve this conflict of authority and assert a proposition in general terms without
first considering another category of manslaughter envisaged by Smith J in his direction to the jury in
Holzer. He said ([1968] VR 481 at 483):
[T]he blow, the assault and battery, was given or committed by the accused with the intention of
doing Harvey some physical injury, not merely of a trivial or negligible character. The intended injury
need not be a serious injury. Indeed, if it were a serious injury that was intended we would be in the
field of murder, not manslaughter. The injury intended may be of a minor character but it must not
be merely trivial or negligible.
Battery manslaughter
Although Smith J did not use the term, effectively he was speaking of battery manslaughter. This additional
category of manslaughter (if it exists) involves a subjective test of intention and a low degree of harm.
Because of the low degree of requisite harm, it has been suggested that there is significant congruity
between the English test for unlawful and dangerous act manslaughter and Smith J’s identification of a
third category of manslaughter, although the latter imports a subjective intention.
This idea of such a category as battery manslaughter does nothing to advance the law in what is, in
any event, a somewhat clouded area. In particular, it tends to confuse intent with a willed act. The actus
reus here is the unlawful and dangerous act which causes death. Questions of causation will of course
arise but they do not arise here. The mens rea required relates to the unlawful and dangerous act; the act
must be willed and not accidental. At common law (and, indeed, under the Criminal Codes) manslaughter
is not generally an offence requiring a particular intention; in that respect it is sharply distinguishable from
the offence of murder.
In two decisions of this court Windeyer J lent some support to the idea of manslaughter resulting
from a blow intended to hurt. He did so in Mamote-Kulang (1964) 111 CLR 62 at 79 when he said, in the
passage quoted earlier:
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.
This statement has been criticised because the only authority offered by Windeyer J for the proposition
was Hale’s History of the Pleas of the Crown. Again, the criticism continues, it is not clear if Windeyer J
was in truth referring to manslaughter by an unlawful and dangerous act, whether he had in mind reckless
negligence, or whether the assertion ‘was a vestige of the old common law principle that all killings
caused by an unlawful act were at least manslaughter’. Later, in Timbu Kolian v R (1968) 119 CLR 47 at
59–60, 67–8, Windeyer J spoke somewhat obliquely in terms which might be thought to affirm what he
said in Mamote-Kulang.
There is nothing in the earlier cases, and only Stephen among the text writers, to provide explicit
support for the intentional harm category. In Mamote-Kulang (at 79) Windeyer J relied on Hale’s History
of the Pleas of the Crown (31) which reads:
Regularly he that voluntarily and knowingly intends hurt to the person of a man, tho he intend not
death, yet if death ensues, it excuseth not from the guilt of murder, or manslaughter at least; as if A
intends to beat B but not to kill him, yet if death ensues, this is not per infortunium, but murder or
manslaughter, as the circumstances of the case happen.
The passage is equivocal because it does not seek to distinguish between an intent to cause grievous
bodily harm and an intent to inflict a lesser degree of harm. Section 10 of the passage quoted from
Hawkins earlier in this judgment is inconsistent with the concept of battery manslaughter. According
to Hawkins, the intention to cause some hurt would result in murder. It may be thought that s 9 of
the passage provides justification for what was said in Mamote-Kulang but only on the footing that
the doctrine of transferred malice does not apply. That doctrine achieved recognition subsequently in
consequence of Foster’s work.
However, Stephen provides support for Windeyer J’s view. He gives the following illustrations.
(1) A, knowing that B is suffering from disease of the heart, and intending to kill B, gives B a slight push,
and thereby kills B. A commits murder.
(2) A in the last illustration pushes B unlawfully, but without knowledge of his state of health or intention
to kill him, or to do grievous bodily harm. A commits manslaughter. If A laid his hand gently on B to
attract his attention, and by doing so startled and killed him, A’s act would be no offence at all.
These illustrations obviously cover the factual situation faced by Windeyer J in Mamote-Kulang. It should,
however be noted that Stephen footnotes each illustration with the comment: ‘I know of no direct authority
for these illustrations, but they follow directly from the principles stated in the note’.
Two further illustrations by Stephen are apposite:
(4) A waylays B, intent to beat, but not intending to kill him or to do grievous bodily harm. A beats B and
does kill him. This is manslaughter at least, and may be murder if the beating were so violent as to be
likely, according to common knowledge, to cause death.
(5) A strikes B with a small stick not intending either to kill or to do grievous bodily harm. The blow kills
B. A commits manslaughter.
This time Stephen cites authority …
An examination of Foster does not bear out Stephen’s examples. Foster first distinguishes different
types of unlawful acts. If death results from an act which is malum in se (inherently wrong, or wrong in
itself), it may be murder or manslaughter, ‘as circumstances may vary the nature of it.’ If death results
from an act which is merely malum prohibitum (wrong under the law), it will be manslaughter. Foster
then sets out Hale’s statement that if A intends to beat B, but not to kill him, and death ensues, it is
murder or manslaughter depending on the circumstances. Foster interprets this to mean that if A intends
to beat B ‘in anger or from preconceived malice’ and death ensues it will be murder, because it was an
act in malum in se. Foster, therefore, provides no reason from drawing a distinction between intent to do
grievous bodily harm and intent to do some lesser harm.
Likewise, Rowley’s case, relied upon by Stephen for his illustration (5), fails to make the distinction
clear. Two boys were fighting and one, bloodied, ran home to his father. The father, on seeing his son, ran
three-quarters of a mile and struck the other boy on the head with a small cudgel, of which blow the boy
died. The father was convicted of manslaughter. Foster interprets the verdict as arising from the fact that
the stroke with ‘a cudgel’ was ‘not likely to kill’.
Rowley’s case does not state that the nature of the father’s intention was to hurt the boy to an extent
less than grievous bodily harm. It may have been to do grievous bodily harm or a lesser hurt. The decisive
factor leading to a manslaughter verdict was that the blow was ‘not likely to kill’, that is, an objective test
rather than an inquiry into subjective intent.
Another early case, similar to Rowley’s case, is Turner’s case. There, a master struck a servant with a
clog and the boy died. The master was convicted of manslaughter on the basis that:
because the clog was so small, there could be no design to do any great harm to the boy, much less
to kill him; and a master may correct a servant in a reasonable manner for a fault.
In the same category is R v Wiggs (1784) 1 Leach 378, p 1784 (168 ER 291). The victim was a
shepherd boy who negligently allowed some sheep to escape. His employer, seeing this, picked up a stake
that was lying on the ground and threw it at the boy. The stake, which hit the boy on the head, fractured
his skull, causing death soon after. The report is short, and is a mixture of references to provocation, the
right of a master to correct his servant and the degree of dangerousness of the act. As to the latter factor,
the judge’s direction to the jury reported (at (Leach) 378; [ER] 292) as:
For using a weapon from which death is likely to ensue, imports a mischievous disposition, and the
law implies that a degree of malice attended the act, which, if death actually happens, will be murder.
Therefore if you should think the stake was an improper instrument, you will further consider whether
it is probable that it was used with an intent to kill. If you think it was, you must find the prisoner Guilty
of Murder. But on the contrary, if you are persuaded that it was not done with an intent to kill, the
crime will then amount at most to manslaughter. The verdict was manslaughter.
Lastly, in this regard, there is R v Oneby (1727) 2 Ld Ryan 1485; (1727) 92 ER 465. The accused was
convicted of murder when he killed the deceased in a fight. The court found that the accused had malice
towards the deceased for some time before the fight, thus negating the defence of provocation. In its
deliberations, the court discussed murder and manslaughter, saying (at (Ld Raym) 1488–9; [ER] 467–8)
murder is the proper verdict where the accused:
strikes at him [B, the deceased] with any dangerous weapon, as a pistol, hammer, large stone &c
which in all probability might kill B or do him some great bodily hurt … this will be murder … since
in all probability it might have occasioned B’s death, or done him some great bodily harm, the law
implies malice prepense.
Rowley’s case, Turner’s case, and Wiggs are all consistent with the Stephen/Windeyer J battery
manslaughter doctrine. But the three cases are also consistent with reasoning directed to the doing of an
unlawful and dangerous act resulting in death. If anything, that seems to be the more likely explanation
since the distinction between the degrees of intent to cause harm was not mentioned in the judgments.
In these circumstances, there is no authority which should constrain the court to accept the correctness
of the battery manslaughter doctrine.
Conclusion
The notion of manslaughter by the intentional infliction of some harm carries with it the consequence
that a person may be convicted of manslaughter for an act which was neither intended nor likely to
cause death. In this context we do not think it is helpful to speak in terms of reasonable foreseeability;
the concept is one likely to cause confusion. But it is appropriate to observe that in such a case a
person may be held guilty of manslaughter for a death that was quite unexpected, whether the test
applied in that respect is subjective or objective. It may be said that the same is true of unlawful and
dangerous act manslaughter. But the criticism loses its force if the test in Holzer is applied so that, before
a conviction may ensue, a reasonable person would have realised that he or she was exposing another to
an appreciable risk of really serious injury.
However, the utility of a qualifier such as ‘really’ is very questionable. ‘Serious’ and ‘really serious’
may have quite different connotations in some situations. While the Holzer direction does not seem to
have given rise to difficulties in this regard, the emphasis on really serious injury brings manslaughter
perilously close to murder in this respect. The distinction between the two may easily be blurred in the
minds of the jury. It is better to speak of an unlawful and dangerous act carrying with it an appreciable risk
of serious injury. A direction in those terms gives adequate recognition to the seriousness of manslaughter
and to respect for human life, while preserving a clear distinction from murder. The approach in Holzer
takes away the idea of unexpectedness to a large extent. It does not remove it entirely but then we are not
in the area of murder (and its relevant extent) but in the area of manslaughter.
Manslaughter by an unlawful and dangerous act (in the Holzer sense) is a relevant and appropriate
category of manslaughter. Manslaughter by the intentional infliction of some harm answers neither
description. It continues the rigour of the early common law and ought to play no part in contemporary
law. This approach leaves two categories of involuntary manslaughter at common law: manslaughter by
an unlawful and dangerous act carrying with it an appreciable risk of serious injury, and manslaughter
by criminal negligence; it is unnecessary to prove that these two categories should be replaced by one.
But, as the law stands, there are differences between them. In the case of manslaughter by criminal
negligence, it is unnecessary to prove that the accused’s act was unlawful: Andrews v DPP [1937] AC
576. And the tests of dangerousness are different. An appreciable risk of serious injury is required in the
case of manslaughter by an unlawful and dangerous act. For manslaughter by criminal negligence, the
test is ‘a high risk that death or grievous bodily harm would follow’: Nydam v R [1977] VR 430 at 445.
As the question of criminal negligence was not relied on in the present appeal, we need say no more as
to the appropriateness of the distinctions that presently exist between this category of manslaughter and
manslaughter by an unlawful and dangerous act.
Adoption of the test in Holzer as to the level of danger applying to manslaughter by an unlawful
and dangerous act and abolition of battery manslaughter do not create a gap in the law. Cases of death
resulting from a serious assault, which would have fallen within battery manslaughter, will be covered
by manslaughter by an unlawful and dangerous act. Cases of death resulting unexpectedly from a
comparatively minor assault, which have also fallen within battery manslaughter, will be covered by the
law as to assault. A conviction for manslaughter in such situations does not reflect the principle that
there should be a close correlation between moral culpability and legal responsibility, and is therefore
inappropriate.
The direction and the proviso

In the present case the trial judge’s direction to the jury fell short of what is required by Holzer in two
respects.
First, the jury were not invited directly to resolve for themselves whether the punch administered
by the appellant constituted an assault and therefore an unlawful act. But, as suggested earlier in this
judgment, it is hard to conceive the punch as being other than an assault in the circumstances. As King
CJ pointed out in Wilson v R (1991) 53 A Crim R 281 at 287:
The only suggested justification, however, was self-defence and that was negatived by the verdict
of the jury.
There remains the further question: were the jury sufficiently directed to assess whether a reasonable
person, in the appellant’s position, would have realised that, in punching the deceased, he was exposing
him to an appreciable risk of serious injury? The trial judge spoke of a ‘dangerous act’ without identifying
what that meant. The jury might well have thought that if the punch carried a risk of injury to the deceased,
not necessarily an appreciable risk of serious injury, that was enough to constitute manslaughter. In
applying the proviso, King CJ said (at 288):
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.
The first sentence in the passage is logically supported, though it has overtones of battery manslaughter.
It is the second sentence that causes problems. In the end the jury had to determine whether the
appellant’s act in punching the deceased was, from the standpoint of a reasonable person, an act carrying
with it an appreciable risk of serious injury to the deceased. They were not so directed; they were told
to consider whether it was a dangerous act. The distinction is not merely semantic. An act may be
dangerous without carrying with it an appreciable risk of serious injury and, unless the two elements are
brought to the minds of the jury, there is a real danger that they may wrongly convict of manslaughter.
The answer the jury may have reached in the present case, had they been adequately directed, cannot
be assumed.
It is not possible to conclude that no substantial miscarriage of justice occurred and it is therefore not
appropriate to apply the proviso in s 353(1) of the Act. The appeal should be allowed, the conviction for
manslaughter quashed, and a new trial on that charge ordered.
Brennan, Deane, and Dawson JJ: Once it is accepted that the test in a case of manslaughter by an
unlawful and dangerous act is that of the existence, objectively determined, of a likelihood or risk of injury
such that it can be said that the act in question was dangerous, there is no function for the so-called
battery manslaughter doctrine. If the test were to be set at a higher level suggested by Smith J in Holzer,
then there would be a gap in the law which could be filled only by some such doctrine. One principle
which stands higher than all others in the criminal law is the sanctity of human life. If manslaughter
by an unlawful and dangerous act were limited to cases where the act in question exposed another or
others to grievous bodily harm, there would be no need for the law to hold at the same time that, where a
person deliberately and without lawful justification or excuse causes injury to another which is not trivial
or negligible and that other dies as a result, the crime of manslaughter is committed. There would be a
need because the law does and should regard death in those circumstances with gravity. In Giorgianni v R
(1985) 156 CLR 473 at 503; 58 ALR 641, Wilson, Deane, and Dawson JJ cited as an accurate statement
of the law a passage from the judgment of the Court of Criminal Appeal in R v Creamer [1966] 1 QB 72
at 82 that included the following:
A man is guilty of involuntary manslaughter when he intends an unlawful act and one likely to do
harm to the person and death results which was neither foreseen nor intended. It is the accident of
death resulting which makes him guilty of manslaughter opposed to some lesser offence such as
assault, or, in the present case, abortion. This can no doubt be said to be illogical, since the culpability
is the same, but nevertheless, it is an illogicality which runs throughout the whole of our law, both
the common and the statute law.
Of course, not every case is of the same gravity. As Lord Salmon pointed out in Newbury [1977]
AC 500 at 507, cases of manslaughter vary infinitely in this respect. That is the utility of the offence. It
enables the law to express forcefully its regard for human life, at the same time allowing the particular
circumstances to be reflected in the penalty imposed.
And if, as we think is the law, the test for a dangerous act is no more than whether there is a sufficient
likelihood of risk of sufficient injury to enable the act to be characterised as dangerous, then any offence
of battery manslaughter, if it emerged at some time in the diverse history of the crime of manslaughter,
has been subsumed in the crime of manslaughter by an unlawful and dangerous act. A battery is always
unlawful and the only question now is whether the act involved is at the same time dangerous.
In this case 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 ‘really that very hard’ but not soft. The
trial judge directed the jury:
A serious assault—you may think that punch by Wilson or 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.
While that direction was less helpful than it might have been, it was not, in the circumstances inadequate.
Clearly the act in question exposed the deceased to injury and it was open to the jury to find that it was
dangerous.
Questions
5.2 How did D kill V? Did he have an intention to kill or cause grievous bodily harm?
5.3 Was there a possibility of conviction under the constructive murder rule? Why, or
why not?
5.4 Did the majority tacitly approve of the trial judge’s direction that in order to constitute
a dangerous act, ‘[t]he crime must be an act in serious breach of the criminal law’?
(Emphasis added.)
The trial judge did not elaborate on what amounts to a serious breach of the criminal law,
and none of the High Court justices addressed this issue one way or the other. In R v Pullman
(1991) 25 NSWLR 89, decided just one year prior to Wilson, the New South Wales Court of
Criminal Appeal held that traffic offences amounting to mere technical breaches of the criminal
law do not amount to unlawful acts for purposes of this heading of manslaughter. The Court
of Criminal Appeal went on to state, however, that acts which are unlawful in themselves, and
not merely technical violations of the criminal law, would suffice. It is not altogether clear from
the decision in Pullman where the line is to be drawn between mere technical breaches of the
criminal law and acts that are in themselves unlawful. At first glance, it appears that the court
was simply referring to the age-old distinction between malum in se offences such as arson,
burglary, and assault, for example, which are recognised at common law and regarded as
inherently wrong or wrong in themselves; and malum prohibitum offences, which are statutory
offences that are neither recognised at common law nor regarded as inherently wrong (such
as traffic and other statutory offences that are regarded as technically wrong under the law):
Foster, Report and Discussions (2nd edn, 1776) 259, 294–5. But if that is so, how does one
explain the court’s pronouncement, albeit obiter dicta, that the malum prohibitum traffic offence
of driving a vehicle while under the influence of alcohol would constitute an unlawful act under
this heading of manslaughter: Pullman (1991) 25 NSWLR 89 at 96?
It is likely that one reason this issue was not addressed in Wilson is because the offence at
issue was an assault that clearly met the malum in se criterion. This, it can be argued, amounts
to tacit approval of both the trial judge’s direction and the distinction between malum in se
and malum prohibitum offences for purposes of this heading of manslaughter. Although this
issue has yet to be authoritatively resolved, the Court of Criminal Appeal’s pronouncement in
Pullman that driving under the influence of alcohol would indeed constitute an ‘unlawful act’
in this context illustrates that in modern times the distinction between malum in se and malum
prohibitum offences has become murky and unworkable in many instances.
The test of dangerousness enunciated in Wilson is now the centre piece of the unlawful
and dangerous act manslaughter doctrine. While it is useful to retain the requirement that an
unlawful act must consist of a breach of the criminal law in order to limit the scope of liability
for unlawful homicide, the Wilson test is couched in terms that smack of the malum in se notion
that the defendant’s act must be one that is inherently wrong. Under the Wilson formulation,
therefore, the emphasis is not on the nomenclature attached to the particular breach of the
criminal law; rather, the emphasis is on whether ‘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 serious injury’ (at [25]). Thus, crimes that appear
relatively innocuous on their face can be committed under circumstances that make them
dangerous and inherently wrong. If an accused’s act or omission satisfies the Wilson test, it
should be considered inherently wrong in every sense of the malum in se epithet, thus obviating
the need to delve into the murky waters of distinguishing between acts which are wrong in
themselves and those that are merely in technical breach of the criminal law. This approach is
not only consistent with the Pullman pronouncement regarding the offence of driving under
the influence of alcohol, but may well also explain why the High Court did not feel constrained
to concern itself with this issue in Wilson.
In the more recent case of R v Gould [2009] VSCA 130 (11 June 2009) at [46]–[49],
the Victorian Court of Appeal disapproved of the trial judge’s direction that the test of
‘dangerousness’ is that ‘the circumstances must be such that a reasonable person in the position
of the accused would have appreciated that the act was likely to expose the deceased to an
appreciable risk of serious injury’ (emphasis added). In particular, the court held that it was an
error to include the word ‘likely’ as it was not used in the test set forth in Wilson. Indeed, the
inclusion of the word imposes a higher burden on the prosecution in proving the element of
‘dangerousness’ than the test enunciated in Wilson.
Questions
5.5 Which test of dangerousness did the majority in Wilson adopt?

5.6 What reasons did the High Court give for not following the English authorities?
5.7 What relevance did the history of the law of manslaughter have to the decision of
the case?
5.8 On what basis did the majority in Wilson disapprove of the ‘intentional infliction of
harm’ or ‘battery’ manslaughter doctrine?

5.9 According to the majority in Wilson, what is meant by the term ‘serious injury’? Do
you find the majority’s explanation of this term to be satisfactory?
5.10 Which of the two joint judgments in Wilson comports best with the law’s forceful
regard for human life? Why?
5.11 According to the majority judgment in Wilson, what degree of risk must a reasonable
person in the defendant’s position foresee? Why did the majority delete the word
‘really’ from the expression ‘really serious injury’? Was it because the court felt that
the inclusion of the word ‘really’ brought this offence perilously close to murder?
Given that murder is a crime of mens rea and the Wilson test of dangerousness is
largely an objective one, do you share the justices’ concern?
5.12 On the facts of Wilson, would you consider D’s act as objectively involving an
appreciable risk of death or serious injury to V?
5.13 D hits V with a baseball bat on the knee. V dies. Would D’s act fall within the test of
dangerousness?
5.14 D, unaware that V is a haemophiliac and intending to cause him minor injury, punches
him in the face. V dies as a result. Would D’s act fall within the test of dangerousness?
Is D’s lack of knowledge of V’s condition relevant to the issue of whether his act
satisfies the test of dangerousness? Why, or why not?
5.15 If D had lightly slapped V on the head with the intention of startling him and V died
because he had a soft skull, would D be liable under this category of involuntary
manslaughter? Why, or why not?
5.3.4 The reasonable person

It is necessary to determine what is meant by the term ‘reasonable person’ for purposes
of the Wilson test. To date, however, the decisions are unclear as to which, if any, of the
defendant’s characteristics will be attributed to the ‘reasonable person’. In the common law
jurisdictions of New South Wales, South Australia, and Victoria it is rebuttably presumed
that common law principles apply unless the presumption is displaced by Parliament, either
expressly or by necessary implication. Accordingly, when an ambiguity arises as to the meaning
of a term such as ‘reasonable person’, the term will be accorded whatever meaning, if any,
it has at common law. In the context of tort law, it is well settled that the ‘reasonable person’ will
have: the normal mental capacity of a person the same age as the defendant; any knowledge,
skill, or experience the defendant actually had; any skill or knowledge the defendant claimed
to have; the defendant’s physical characteristics (such as blindness, for example); and such
skill, experience, and information as an ordinary person in the community would have:
McHale v Watson (1966) 115 CLR 199; R v Wills [1983] 2 VE 201 at 214; JG Fleming, The
Law of Torts (8th edn, 1992) 108–14; F Trindade & P Cane, The Law of Torts in Australia
(2nd edn, 1993) 419–26; P Keeton, R Keeton, DB Dobbs & D Owen, Prosser and Keeton
on Torts (5th edn, 1984) 178–92. Although one may argue that the meaning of the term
‘reasonable person’ in tort law is not necessarily the same as in criminal law, there appears to be
no reason in logic or principle to draw such a distinction. The writers believe, therefore, that
the term does have a meaning at common law that applies in both the tort and criminal law
contexts.
The elements of unlawful and dangerous act manslaughter were discussed by Layton J in
R v Edwards [2008] SASC 303. In this case, the accused (Edwards) was convicted of killing the
victim (Esposito). A retrial was ordered (see R v Edwards [2009] SASC 233) on appeal, but for
reasons unrelated to the observation of Layton J (below) regarding unlawful and dangerous act
manslaughter. Layton J made several important points with regard to which of the accused’s
personal attributes are to be attributed to the hypothetical reasonable person.
R v Edwards
[2008] SASC 303
Judgment
Layton J: I now finally turn to consider the elements of the offence and apply them to my findings
of fact. A death that occurs whilst a person is committing an unlawful and dangerous act amounts
to manslaughter. The prosecution is required to prove the following elements beyond reasonable doubt.
First, that Edwards killed Esposito, namely that the action or actions of Edwards were a substantial
cause of death.
Second, that the act or acts of Edwards were dangerous, namely that a reasonable person in
Edwards’ position would have realised that his actions would have exposed Esposito to an appreciable
risk of serious injury.
Third, that the act or acts of Edwards causing the death were unlawful. In this case, the issue is
whether the acts of Edwards were not unlawful because they were performed for the purpose of assisting
a lawful arrest or for the purpose of defence of either himself or others.
I am already satisfied beyond reasonable doubt as to the first element, namely that the act of Edwards
in maintaining headlocks in the form of a choker hold and sleeper hold for approximately five and a
half minutes was a substantial cause of the death of Esposito. This was exacerbated by the upper body
pressure applied by him on Esposito.
Turning now to the second element, this requires the prosecution to prove that a reasonable person in
Edwards’ position would have realised that his actions exposed Esposito to an appreciable risk of serious
injury. It is not necessary for the prosecution to prove that Edwards intended to cause death, and indeed,
death may have been quite unexpected. The test is objective. It is sufficient that the prosecution prove
that from the standpoint of a reasonable person in the circumstances of Edwards, the acts would expose
Esposito to an appreciable risk of serious injury.
This second element requires discussion of a number of matters. First, the application of the
objective test of a reasonable person in the circumstances of the accused. This feature is common to
both forms of manslaughter. Although there are significant differences between the elements of the two
forms of manslaughter, there is commonality in identifying the features of the reasonable person in the
circumstances of the accused. This is not surprising, given that these two kinds of involuntary manslaughter
do not require proof of malice aforethought and both require the application of an objective test. This
common aspect was specifically considered by the Full Court of Victoria in R v Wills. In that case Lush J,
with whom Murphy and Fullagar JJ concurred, said:
In my opinion, the danger test relevant to manslaughter by unlawful and dangerous act is and always
has been an objective test. It was plainly laid down by this Court in R v Nydam [1977] VR 430 that
the danger element in manslaughter by criminal negligence was to be determined objectively. In
fact in negligent manslaughter both the element of criminal negligence in conduct and the element
of involvement of a high risk that death or grievous bodily harm would follow are wholly objective.
Parallel with that, in manslaughter by unlawful and dangerous act the lawfulness of the act is
determined by considerations extraneous to the subjective state of the accused man, except so
far as the unlawful act may involve some concept of mens rea. The unlawfulness of the act stands
parallel with the criminal negligence of negligent manslaughter, and equally the risk factor relevant
to manslaughter by unlawful and dangerous act stands as an objective consideration parallel with the
objective danger assessment of negligent manslaughter.
If the circumstances in which the accused man’s or reasonable man’s appreciation of danger are
to be assessed are to be regarded as including the ephemeral emotional and mental conditions of
the accused man, the test begins to take on a subjective appearance. If it were extended to matters
relating for instance, to alcohol and drugs, it would in my opinion become clearly subjective.
In my opinion it is sufficient for the present case to say that the circumstances relevant to
the question whether a reasonable man would appreciate danger include the physical features of
the situation and of the action of the accused man involved. I would not, for my part, include the
idiosyncrasies of the accused man or his ephemeral emotional or mental state. They are matters
peculiar to him which would affect his judgment of danger but the relevant judgment must be, by
definition, the judgment of a reasonable man.
Fullagar J also added that in the context of the circumstances of the case before the Full Court that:
[T]he state of the stage on which the act is committed which must be considered, cannot include
matters which are calculated to influence the judgment of the actor himself as to whether the act
was dangerous or not, because that would be to bring into the equation a judgment by a man whose
reason and judgment are in a morbid and clouded condition, whereas the reasonable man for the
purposes of this particular rule of law is a man who judges with the unclouded reasoning power of a
healthy and reasonable mind.
The discussion by the High Court in R v Lavender, is also pertinent to this aspect of this offence,
albeit that the Court was addressing the offence of manslaughter by criminal negligence. The reasonable
hypothetical person would be imbued with the qualities of age, experience and knowledge of the accused
and would have normal fortitude and strength of mind.
Age, experience and knowledge of the accused

In this case the age of the reasonable hypothetical person would be approximately 28 years old. He
would be a fit young man who had been a security officer for some years and had been in charge of other
security officers at the hotel as the second in charge to Spencer.
The reasonable hypothetical person would have the following training as Edwards indicated he had
undergone. Edwards had undertaken five days of full time training as a security officer with Marksman
Security Training in 1997. He admitted that during that course he had received training in defence tactics,
blocks, strikes, take-downs and restraining holds. Restraining holds included wristlocks and arm bars.
The two main take-down holds were a straight arm bar and a ‘goose neck’, which is the application of
pressure on the wrists.
At some time between 1996 and late 2000, early 2001, Edwards had been a student at the Wing
Chun Academy for about a year or so. This was a martial arts academy. He was a student of Graham
Kuerschner (‘Kuerschner’). Kuerschner later taught Edwards in a ‘Street Defensive Tactics’ course in late
2000, early 2001. This was a course which taught self-defence tactics involving strikes, kicks or holds.
That course did not teach the application of neck holds such as choker holds or sleeper holds, but rather
taught how to get out of such holds.
Edwards also had first aid training for cardio pulmonary resuscitation.
The training courses such as the ones undertaken by Edwards with Marksman Security Training did
not include training in relation to the use of these holds and their seriousness. Marksman Security Training
did not give such training until approximately 2003–2004. Edwards had not received formal training on
the use of headlocks such as sleeper holds or choker holds, but only training about how to get out of
such holds.
The reasonable hypothetical person would also have the following experience of Edwards. Edwards
said that as a security officer at various hotels he had applied various holds such as ‘arm holds, leg holds,
headlocks, anything you can do to stop someone from getting up or to hold someone down’. He said he
had previously applied headlocks on one or two occasions, which meant grabbing someone around, ‘The
head, the neck, anything. Different situations require different things’.
In addition, Edwards agreed that he knew before that night that any interference to the supply of
blood to the brain could potentially be dangerous; that he knew carotid arteries were in the neck; and
that oxygen was transported to the brain through the carotid arteries. He knew that pressure to the neck
may have the potential to compromise the carotid arteries. Further, he knew that applying pressure to the
neck may be dangerous ‘depending on how you went about it’. Further, that wrapping an arm around the
neck to the Adam’s apple in more or less the crook of the arm could be dangerous, but he did not know
how dangerous .
I accept that Edwards did not know, and a reasonable hypothetical person would not know, that
a pressure of only two kilograms applied to the jugular veins for 20 to 30 seconds could produce
unconsciousness and that if the pressure were applied for three minutes or so then death or serious injury
would result. I also accept that Edwards did not know, and a reasonable hypothetical person would not
know, that a force of five kilograms applied to the sides of the neck so as to block the carotid arteries for
10 to 15 seconds could produce unconsciousness, and after a couple of minutes death or serious injury.
The reasonable hypothetical person would therefore have the characteristics of age, knowledge and
experience of Edwards as set out [above].
For reasons discussed in the context of manslaughter by criminal negligence, I conclude that minor
concussion and shock as suffered by Edwards are not relevant features to be taken into account in
considering the characteristics of the reasonable hypothetical person in the circumstances of Edwards
in this case.
As to the circumstances of Edwards as known by him on the night which, in turn, are assumed to be
the circumstances of the reasonable hypothetical person, they are as follows.
The circumstances known by Edwards were that an altercation had broken out involving the three
patrons and security officers in the manner I have found. Edwards became involved in the altercation and
received punches to the face, including a significant punch to his right eye. Edwards first became involved
with Esposito on the southern wall and briefly placed him in a headlock close to a sleeper hold, slipping
into a choker hold, whilst he was bringing Esposito down against the southern wall. With the assistance of
other security officers, Edwards dragged Esposito to the northern wall. After initially applying an arm bar
hold, he applied a choker hold and sleeper hold for a period of five and a half minutes.
During the time Edwards had Esposito in the different headlocks on the northern wall the foyer was
noisy. Reid was very close by and was shouting, moving and being controlled by other security officers.
Further to the west Mills was also shouting and was being controlled by other security officers. It was a
chaotic environment. At the same time, Edwards was assisted in the holding of Esposito by, mostly, three
other persons. During the period of five and a half minutes Esposito offered very little, and eventually no,
resistance. Spencer communicated with Edwards on three occasions.
The question that arises is whether a reasonable person in the circumstances of Edwards as above
described would have realised that his action in maintaining headlocks over a period of five and a half
minutes would have exposed Esposito to an appreciable risk of serious injury.
Counsel for Edwards argued both in the context of manslaughter by unlawful and dangerous act,
as well as manslaughter by criminal negligence, that a reasonable hypothetical person would not have
known that only a small amount of pressure was required on certain portions of the neck for a very
short period of time before it could produce unconsciousness and death. As indicated above, I accept
that proposition. However, in this case I am not dealing with a few seconds, or even three minutes. It
is not just a sleeper hold which was applied by Edwards, but a combination of holds over five and a
half minutes. In my opinion, a reasonable hypothetical person in the circumstances of Edwards would
appreciate that holding a person by applying pressure around the neck area for over five and a half
minutes would be exposing that person to an appreciable risk of serious injury. This, in my view, is
generally known, even if the precise physiological mechanism is not understood. It is, as Pix indicated,
commonsense. Further, by reason of his training as previously described, Edwards had a better
appreciation than many that pressure on the neck could compromise oxygen supply. There is also the
exacerbating factor of upper body pressure applied by Edwards on Esposito who was lying on the ground.
A reasonable hypothetical person in the circumstances of Edwards would also know that the application of
upper body pressure can also affect a person’s ability to breathe. I am therefore satisfied that the second
element of this offence has been proved beyond reasonable doubt by reason of the headlocks applied by
Edwards, quite apart from the additional factor of upper body pressure …
[Footnotes omitted.]
In determining whether a person has acted as a reasonable person would have, it may be
necessary to consider, where it exists, a common practice in the relevant field of endeavour:
‘To hold defendants to standards of conduct that do not reflect the common experience of the
relevant community can only bring the law of negligence, and with it the administration of
justice, into disrepute’, in the words of McHugh J in Dovuro Pty Ltd v Wilkins (2003) 215
CLR 317; [2003] HCA 51 at [34], cited in Cittadini v The Queen [2009] NSWCCA 302
at [108], in the context of a consideration of the elements of negligent manslaughter. It was

observed in the latter decision that a person when acting in accordance with common practice
may nevertheless be negligent; that is, where a reasonable person in D’s position would
have foreseen and acted so as to reduce the risk of harm to V (at [109]). In Cittadini, the
appellant, who was managing director of a boat-building firm, successfully appealed against his
manslaughter conviction. Several persons had drowned when a yacht built by his firm capsized,
after the keel broke off, because of faulty construction. Evidence centred upon the operations of
his boat-building business. In the opinion of the Court of Appeal, the evidence was such that it
was not open to the jury to conclude (as the Crown invited them to) that the failure of the keel
was caused by the negligent failure of the appellant to put in place reasonable measures for the
supervision of the construction process and provide adequate quality control (at [86]).
The English Court of Appeal’s decision in R v Lamb [1967] 2 QB 981 serves as a good
illustration of the distinction between the ‘unlawful’ and ‘dangerous’ act elements and the
fact that both must be proven by the prosecution. A situation akin to memorable scenes from
the movie The Deer Hunter was replayed before the English Court of Appeal. Two young
men were playing with a revolver which, to their knowledge, had two shells in the chambers,
neither of which was opposite the barrel. D and V were unaware of how a revolver worked, and
believed there was no danger in what they were doing. The D, in jest and with no intention of
harming V, pointed the revolver at his friend, who was also treating the incident as a joke, and fired it,
killing V. D was charged with involuntary manslaughter on two grounds: namely, killing by
doing an unlawful and dangerous act, and killing by criminal negligence. He was convicted.
The English Court of Appeal quashed the conviction for involuntary manslaughter by an
unlawful and dangerous act on the basis that there had been no common assault. Since both
were treating the situation as a practical joke, the victim had no apprehension of imminent
violence (a constituent element of common assault). Therefore, as there was no common assault
or any other criminal offence, there was no unlawful act upon which to build the conviction
for involuntary manslaughter. Should D have been convicted of involuntary manslaughter by
criminal negligence? After reading the material in section 5.4 below, you should be in a good
position to offer an informed opinion on this question.
It should be kept in mind that if a prosecution for this type of manslaughter is predicated
on a crime of mens rea, then of course the necessary mens rea, among other things, will have to
be proven in order to secure a conviction. On the other hand, if the prosecution is relying on a
non-mens rea offence to satisfy the unlawful act component, it will not be necessary to prove
a mens rea in order to obtain a conviction. Since it is therefore possible to obtain a conviction
without proving a mens rea, this type of involuntary manslaughter is properly classified as a non-
mens rea offence.
In summary, there are three elements that comprise the common law offence of involuntary
manslaughter by an unlawful and dangerous act:
(1) there must be an ‘unlawful act’;
(2) the ‘unlawful act’ must also be a ‘dangerous act’ under the Wilson test; and
(3) the act which is both ‘unlawful’ and ‘dangerous’ must be the legal cause of the death of
another human being.
5.4 Involuntary manslaughter by criminal negligence

5.4.1 Breach of a duty of care
The first element of involuntary manslaughter by criminal negligence (hereafter referred to as
‘negligent manslaughter’) is that D’s voluntary act or omission to act must be in breach of a
duty of care owed to V. Whether a duty of care is breached in regard to a particular person is
governed by ordinary principles of negligence in the law of torts. Where criminal liability is
predicated on an omission to act, this requires D to have made a conscious decision to refrain
from acting under circumstances in which the law imposes a duty to act. It may be helpful at
this juncture to refer to our discussion in Chapter 1, section 1.7 of voluntary omissions to act,
and the circumstances under which the law imposes a duty to act. For illustrations of negligent
manslaughter arising out of omissions to act, see R v Russell & Russell [1987] Crim LR 494;
R v Instan (1983) 17 Cox CC 602; R v Stone & Dobinson [1977] QB 354; R v Russell [1933]
VLR 59. For decisions involving unsuccessful attempts to predicate liability for negligent
manslaughter on an omission to act, see R v Taktak (1988) 34 A Crim R 334; R v Shepherd
(1862) Le Ca 147 169 ER 1340; R v Nichols 13 Cox CC 75 (1874). In Burns v The Queen
[2012] HCA 35, the appellant had supplied the prohibited drug methadone to a person who
died from its effects. The Crown submitted that in the circumstances the accused owed a duty
of care deriving from the act of supply to get medical assistance for the person when it became
apparent that he was suffering an adverse reaction to the drug. The trial judge instructed the jury
accordingly, and the defendant was convicted. The conviction was upheld by the New South
Wales Supreme Court (Burns v The Queen [2011] NSWCCA 56), but reversed by the High
Court. Gummow, Hayne, Crennan, Kiefel, and Bell JJ noted that ‘[a]s a general proposition
the law does not impose an obligation on individuals to act to rescue or otherwise to preserve
human life’ (at [97]). While the law does recognise that such an obligation may be imposed
by statute or contract or because of a relationship between individuals (at [97]), the law did
not impose an obligation in the fact situation contended for by the prosecution (at [97]).
Further, the ‘relationship of supplier of prohibited drugs and recipient does not lend itself to
the imposition of such a duty … there is absent the element of control which is found in those
relationships in which the law imposes a duty on a person to act to preserve life’ (at [107]). It
was open to the legislature to change the law and impose a duty in this class of case if it saw fit
(at [108]). Heydon J commented that the ‘“moral feeling” of the community would probably
be strongly hostile to the appellant’s conduct in not summoning medical aid for the deceased.
But that is no reason for a retrospective change in the criminal law to be made by this Court’
(at [131]).
5.4.2 The standard of negligence

Negligence is generally defined as conduct that falls below the standard required by law for the
protection of others against unreasonable risks of harm: JG Fleming, The Law of Torts (8th edn,
1992) 103. In ascertaining whether a person’s conduct meets this criterion, the law weighs the
social utility of the conduct in question, the magnitude of the risk involved in the conduct, the
likelihood that the risk will materialise, and the burden involved in taking appropriate measures
to minimise or eliminate the risk: ibid at 114–19. The law has long recognised varying degrees
of negligence, depending not only upon a weighing of the aforementioned factors, but also upon
whether the defendant’s unjustified risk-taking was done with advertence or inadvertence to the
risk involved. The lowest and least culpable form of negligence is ordinary negligence of the type
that warrants compensation under tort law. Here, the defendant’s conduct is deemed to have
fallen below the required standard when each of the above factors is taken into account. At the
opposite end of the spectrum is recklessness, the highest and most culpable form of negligence.
As pointed out in Chapter 1, section 1.7, recklessness is both a mens rea as well as an aggravated
form of negligence in which the defendant actually directs his or her mind to the unreasonable
risk of harm and, nonetheless, elects to proceed in spite of it. As discussed in Chapters 2 and
3, recklessness can be of the ‘possibility’ or ‘probability’ genre, the latter constituting the more
blameworthy form of the two. Between ordinary negligence and the two forms of recklessness
or ‘aggravated negligence’, there is a fourth category that is referred to as ‘gross’ or ‘criminal’
negligence. The precise nature of the risk-taking necessary for this heading of negligence has
been the subject of much debate and controversy. In large measure, this controversy emanates
from the fact that at common law there are very few instances in which negligent conduct is
criminalised. Thus, there is a dearth of authority on the question of what constitutes ‘gross’ or
‘criminal’ negligence at common law. We now turn our attention to this contentious issue.
Nydam v The Queen

[1977] VR 430
[The defendant was convicted of the murder of his former lover and one other person as a result of
throwing petrol in their vicinity and then intentionally setting it alight. The defendant maintained throughout
the trial that he had not intended to take the life of anyone other than himself, despite having followed his
former lover to the hairdressing salon where the incident occurred. The trial judge directed the jury that
it was fairly open to them on the evidence presented to convict the defendant of either reckless murder
or negligent manslaughter. One of the key issues presented on appeal was whether a proper direction
had been given to the jury in regard to the degree of negligence required to convict for the latter offence.
On appeal:]
Judgment
Young CJ, McInerney and Crockett JJ: What then is the appropriate test to be applied for manslaughter
by criminal negligence? In Victoria a dictum of Smith J, in R v Holzer, supra, has been accepted as a
correct statement of law. In that case his Honour said, at 482: ‘we are not here concerned with the
doctrine of manslaughter by criminal negligence, under which, as I understand the law founded upon the
House of Lords’ decision in Andrews v Director of Public Prosecutions [1937] AC 576, [1937] 2 All ER
552, 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 realised 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’.
Any dictum of Smith J, a very learned judge and a most distinguished lawyer, is entitled to the greatest
respect. Yet we have come to the conclusion that it ought not to be accepted as correctly propounding the
test to be applied in case of manslaughter by criminal negligence. We have reached the conclusion for
substantially three reasons, which may be summarised as follows:
(1) Although the dictum of Smith J, in Holzer’s case has not been expressly criticised in the High Court, it
appears to be inconsistent with such guidance on the point as can be extracted from the judgments
of that Court in Pemble’s case and La Fontaine’s case.
(2) The dictum may in any event represent a misreading of Lord Aitkin’s speech in Andrews v Director
of Public Prosecutions, supra, which has been much criticised and which has been said to leave the
position far from clear (cf Smith & Hogan, Criminal Law (2nd edn, 1969), p 225).
(3) The weight of authority appears to favour an objective rather than a subjective test. We shall develop
each of these reasons in turn.
In Pemble v R (1971) 124 CLR 107, counsel for the accused had invited the jury to convict the
accused of manslaughter on the basis that the death had been caused by an unlawful and dangerous
act which was done without any intention of killing or inflicting grievous bodily harm (see at 111–12). In
his charge to the jury the trial judge had, inter alia, left murder by recklessness as one of the ways open
to the jury to convict the accused of murder (see at 113). No question of manslaughter by criminal
negligence was left to the jury, although in many cases of manslaughter by an unlawful and dangerous act
it is not clear that it would not have been open on the facts (see at 110–11). Barwick CJ mentioned,
at 122, the concept of ‘culpable or criminal negligence resulting though by accident in a killing will
make that killing manslaughter’, but found no need to consider it. His Honour and McTiernan J, who
did not mention criminal negligence, treated the case as one of manslaughter by an unlawful and
dangerous act.
Menzies J, however, considered that specific direction was necessary as to manslaughter by an
unlawful and dangerous act and as to manslaughter by criminal negligence (see at 133). His Honour
cited the observations of Smith J in R v Longley [1962] VR 137 at 148. He also quoted, at 134, the very
dictum of Smith J in R v Holzer, supra, which is here under discussion, and did so without any indication
of disapproval. Indeed, his Honour preceded the reference by the observation: ‘It is no longer sufficient
to sustain a verdict of manslaughter to establish merely that homicide occurred in the course of the
commission of an unlawful act …’ In spite, however, of this apparent approval of Smith J’s dictum in
Holzer’s case, Menzies J proceeded, at 135, to define the difference between murder and recklessness,
and manslaughter by criminal negligence in a way that may be said, with the greatest respect, to be
inconsistent with an acceptance of Smith J’s dictum. We shall quote the passage in full because in
addition to containing his Honour’s definition of the difference, it gives useful examples, as Crockett J
pointed out in Allwood’s case of the cases which the doctrine of murder by recklessness was developed
to meet.
After saying that the trial judge in Pemble’s case was in error because he directed 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, his Honour said:
The conclusion which I have just expressed is sufficient to determine this case, but I should add, that
I do not think that his Honour succeeded in the very difficult task of distinguishing clearly between
what may be described as a reckless killing constituting murder and a negligent killing constituting
manslaughter. The difference as I apprehend it, is that to do an unjustifiable act causing death,
knowing that it is likely to cause death or grievous bodily harm is murder, whereas to do a careless
act causing death, without any conscious acceptance of risk which its doing involves is manslaughter,
if the negligence is of so high a degree as to show a disregard for life deserving punishment. An
instance of the former might be to kill a person in a street by intentionally dropping a stone from
a high building into a crowded street below; an instance of the latter might be to kill a person in
a street by carelessly letting fall a large block of stone from a high building into a crowded street
below. It would not be a misuse of language to use the word ‘reckless’ both in relation to dropping
and letting fall the stone, but that word without more in relation to the first would not, of itself, bring
out the essential difference between the first and the second. The use of the words ‘recklessness’
or ‘reckless indifference’ of itself would not bring home to the jury that it is only a recklessness that
involves actual foresight of the probability of causing death or grievous bodily harm which does
constitute the mental element that must be found to support a conviction for murder. The difference
between murder and manslaughter is not to be found in the degree of carelessness exhibited; the
critical difference relates to the state of mind with which the fatal act is done.
That passage may, with great respect, be said to contain some suggestion that negligence is a state
of mind rather than conduct, a view criticised by Smith and Hogan, supra, at 222, but the examples which
his Honour gave seem clearly enough to involve the proposition that the test for manslaughter by criminal
negligence is an objective and not a subjective test.
Windeyer J appears to have considered the case as one possibly involving manslaughter by criminal
negligence, but his Honour did not in any way define the difference between that crime and murder by
recklessness. Similarly, Owen J did not discuss the distinction.
In La Fontaine’s case only Gibbs J averted to the problem. After saying that ‘recklessness’ should not
be used by a judge when summing up to a jury, because to do so is to invite confusion between murder
and manslaughter resulting from criminal negligence, his Honour pointed out that in many, if not most,
cases where the Crown alleges murder by recklessness, it will also allege in the alternative that the
accused was guilty of manslaughter by criminal negligence. His Honour also said:
It is enough to tell them that it is only if the accused actually knows that his act will probably cause
death or grievous bodily harm that he can be convicted of murder. The extreme gravity of his offence
lies in the fact that he fully realised the probable consequences of his act and was prepared to take
the chance that they would ensue. If he did not in fact foresee that death or grievous bodily harm
would probably be caused by his act, he would not be guilty of murder even though a reasonable
man would have foreseen that such a result was probable; in those circumstances he might however
be guilty of manslaughter.
This passage suggests that his Honour had an objective test in mind in the case of manslaughter by
criminal negligence.
We turn next to Andrew’s case itself. Lord Atkin’s speech has been subjected to much comment
and discussion, but with all respect to those who think otherwise (eg Russell on Crime (12th edn, 1964)
by JWC Turner, p 591, and see Kenny’s Outlines of Criminal Law (19th edn, 1966), by JWC Turner,
p 189 where the learned editor says that Lord Atkin oscillated between the adoption of an objective and
a subjective test), we do not think that his Lordship was intending to lay down a subjective test. We shall
not quote extensively from the speech. It is sufficient to refer to the passage, p 583, where his Lordship
said: ‘Simple lack of care such as will constitute civil liability is not enough: for purposes of criminal law
there are degrees of negligence: and a very high degree of negligence is required to be proved before
the felony is established’.
This formulation is entirely consistent with an objective standard and it is to be noted that a little
earlier Lord Atkin said that he did not find the connotations of mens rea (a reference to what was said in
R v Bateman (1925) 19 Cr App R 8 at 11 by Lord Hewart CJ) helpful in distinguishing degrees of negligence.
So far as other authorities are concerned, there are undoubtedly cases of manslaughter by negligence
in which a subjective test has been applied by most eminent judges.
A modern statement of the test for manslaughter by criminal negligence may be found in the reasons
of the Court of Criminal Appeal for allowing the appeal in Bateman v R (1925) 19 Cr App R 8, which
were delivered by Lord Hewart CJ. It was there pointed out, at 11, that in a civil case, if there has been a
falling short of the standard of reasonable care required by law, it matters not how far from the standard
the falling short is; the extent of the liability depends not on the degree of liability but on the amount of
damage done. In the Criminal Court, on the other hand, the amount and the degree of negligence are
the determining factors. The problem has rather been to enunciate a test which enables a jury to decide
whether there has been such a falling short of the standard of care that a crime has been committed.
The Irish Court of Criminal Appeal clearly preferred the objective test in People v Dunleavy [1948]
IR 95 in which the Court said, at 101:
To say that a person is driving with a reckless regard for life means that he does not care whether
he kills anybody or not. Such a state of mind will ordinarily, but perhaps not universally, amount
to general malice sufficient to justify a conviction for murder. To say that a person is driving with
reckless disregard for the safety of others, may mean no more than that he does not care whether
or not he puts them in danger. This may amount to no more dangerous driving. To associate these
two ideas is not to achieve the desired mean, but possibly to import an ambiguity. On the other hand,
if the reference to recklessness is merely omitted, the jury are hardly given all the assistance which
they are entitled to expect.
This Court is of the opinion that a more satisfactory way of indicating to a jury the high degree of
negligence necessary to justify a conviction for manslaughter, is to relate it to the risk or likelihood of
substantial personal injury resulting from it, rather than to attach any qualification to the word ‘negligence’
or to the driver’s disregard for the life or safety of others. In this connection the American case of
Commonwealth v Welansky, 55 North Eastern Reporter, 2nd Series, 902, a decision of the Supreme Court
of Massachusetts, is of very considerable interest. ‘If the negligence proved is of a very high degree and
of such a character that any reasonable driver, endowed with ordinary road sense and in full possession of
his faculties, would realise, if he thought at all, that by driving in the manner which occasioned the fatality
he was without lawful excuse, incurring, in a high degree, the risk of causing substantial personal injury
to others, the crime of manslaughter appears clearly to be established’.
The Court concluded that the jury should be clearly told, inter alia: ‘That before they can convict of
manslaughter, which is a felony and a very serious crime, they must be satisfied that the fatal negligence
was of a very high degree; and was such as to involve, in a high degree, the risk or likelihood of substantial
personal injury to others’. In laying down that test the Court clearly did not think that it was departing in
any way from Andrew’s case, to which it had expressly referred …
In several cases the Crown allegations have been left to the jury upon the basis that they might
constitute manslaughter by criminal negligence or manslaughter by an unlawful and dangerous act.

R v Church, supra, was such a case. In it an objective test of what constituted a dangerous act was
adopted. This test was supplied by Smith J in R v Holzer, supra, and it was approved by the House of
Lords in DDP v Newbury. Lord Salmon made it clear (WLR at 923) that he did not regard it as doing so.
No doubt manslaughter does involve mens rea. But to use the language of Lord Salmon in Newbury’s
case (WLR at 923), the necessary intent is no more than an intent to do the acts which constitute the
crime. The problem is to formulate the requirement in terms which will enable the jury to determine
whether the case is one of murder by recklessness or manslaughter by criminal negligence. The requisite
in the latter crime does not involve a consciousness on the part of the accused of the likelihood of his acts
causing death or serious bodily harm to the victim or persons placed in similar relationship as the victim
was to the accused. The requisite mens rea is, rather, an intent to do the act which, in fact, caused the
death of the victim, but to do that act in circumstances where the doing of it involves a great falling short
of the standard of care required of a reasonable man in the circumstances and a high degree of risk or
likelihood of the occurrence of death or serious bodily harm if that standard of care was not observed,
that is to say, such a falling short and such a risk as to warrant punishment under the criminal law. This
formulation proceeds on the footing that the accused man did not in fact advert (although a reasonable
man would have adverted) to the probability that death or grievous bodily harm would ensue. It adopts the
view of Menzies J in Pemble v R, supra, and of Lord Hailsham in Hyam v Director of Public Prosecutions,
supra, (AC at 79) that if the accused knows that the act is likely to cause death or grievous bodily harm,
and consciously accepts the risk, it is murder. The formulation is consistent with the objective test of
manslaughter by an unlawful and dangerous act approved by the House of Lords in DDP v Newbury,
supra.
Finally, we would draw support from the decision of the High Court in Callaghan v R (1952) 87 CLR
115. We have not referred to it earlier for it is a case which was concerned with the degree of negligence
required to establish manslaughter under the Criminal Code of Western Australia. Its significance for the
present purposes is that the Court decided that the standard set by the Code for the degree of negligence
punishable as manslaughter should be regarded as that set by the common law in cases where negligence
amounts to manslaughter. The court dismissed many of the cases, including Andrew’s case, supra, in
which manslaughter by negligence was involved, and nowhere suggested that the standard of negligence
set by the common law was to be measured by a subjective test.
In order to establish manslaughter by criminal negligence, it is sufficient if the prosecution shows
that the act which caused the death was done by the accused consciously and voluntarily, without any
intention of causing death or grievous bodily harm but in circumstances which involved such a great
falling short of the standard of care which a reasonable man would have exercised and which involved
such a high risk that death or grievous bodily harm would follow that the doing of the act merited criminal
punishment. A direction to that effect was not given in the instant case and the direction which was in
fact given by the learned trial judge was not in accordance with the test as we have formulated it. This
consideration provides an additional reason for quashing the verdict and ordering a new trial, although the
ground was not taken in the notice of appeal or argued before us.
Questions
5.16 What reasons were given by the Full Supreme Court of Victoria in Nydam v The Queen
for not following the obiter dicta of Smith J in R v Holzer?

5.17 Was the Full Supreme Court technically correct when it opined that this category
of involuntary manslaughter has a mens rea element? If not, what other legal
requirement was the court actually referring to when it erroneously used the term
mens rea in connection with this offence?
5.18 On what basis did the Full Supreme Court draw a distinction between recklessness
and criminal negligence?
5.19 What formula or test did the Full Supreme Court enunciate in respect of the type of
negligence that must be proven to sustain a conviction for negligent manslaughter?
In what critical respect does it differ from negligence of the recklessness type?
5.20 Is the test of criminal negligence an objective or subjective one?
5.21 Is there any significant difference between unlawful and dangerous act manslaughter
and negligent manslaughter? If so, what is it?
5.22 Under this category of involuntary manslaughter, is it necessary that the defendant’s
conduct be in itself unlawful, independent of any liability for negligent manslaughter?
5.4.3 Conduct amounting to criminal negligence

In Nydam, the court held that the type of negligence required for this heading of involuntary
manslaughter involves ‘a great falling short of the standard of care required of a reasonable
man under the circumstances and a high degree of risk or likelihood of the occurrence of
death or serious bodily harm if that standard of care was not observed; that is to say, such a
falling short and such a risk as to warrant punishment under the criminal law’. This is also the
level of negligence required to establish negligent manslaughter in the code jurisdictions: see,
for example, Griffiths v The Queen (1994) 125 ALR 545; R v Taiters [1997] 1 QR 33. As the
court in Nydam explained, the test for conduct amounting to criminal negligence means, at
the very least, that the accused ‘did not in fact advert (although a reasonable man would have
adverted) to the probability that death or grievous bodily harm would ensue’ (emphasis added).
This formulation, therefore, does not require the accused to have acted with recklessness. As
this category of involuntary manslaughter can be made out without proof that the defendant
acted with a mens rea, it too is properly categorised as an offence of non-mens rea. This view
is in accordance with the weight of Australian authority, though it should be pointed out
that in Wilson, only three of the High Court justices expressly approved of the foregoing
quoted passages: Wilson v The Queen (1992) 61 A Crim R 63 at 76 (per Brennan, Deane, and
Dawson JJ); the remaining four justices did not render an opinion on this question. For other
authority in support of the view that negligent manslaughter is not an offence of mens rea, see
R v Seymour [1983] 2 All ER 1058 at 1064; Kong Cheuk Kwan v The Queen (1985) 82 Cr App R
18 at 24–5; P Gillies, Criminal Law (4th edn, 1997) 648–52. For authority to the contrary, see,
for example, R v Lamb [1967] 2 QB 981 at 988; R v Holzer [1968] VR 481 (per Smith J). This
issue, however, was finally put to rest by the High Court in R v Lavender (2005) 222 CLR 67;
[2005] HCA 37. In Lavender, all of the High Court justices reaffirmed not only the two forms
of involuntary manslaughter that exist at common law, but also the test of criminal negligence
set out in Nydam. The decision in Cittadini v The Queen [2009] NSWCCA 302 is to similar
effect: ‘The degree of negligence must extend beyond a mere matter of compensation between
the citizens [and] show such disregard for the life and safety of others as to amount to a crime
against the state’ (at [38]). This can be the case whether or not the defendant is advertent to the
risk that his or her conduct causes.
That is not to say that negligent manslaughter could not be committed with a mens rea. If,
for example, the defendant acted recklessly as to the ‘possibility’ of legally causing the death of
another human being, a cogent argument can be made that this too amounts to involuntary
manslaughter by criminal negligence. If one accepts this argument, then the prosecution
would have proven a more culpable degree of negligence than the law requires. This may be
beneficial to the prosecution in cases where the trial judge has wide discretion in sentencing. In
constructing such an argument, however, much depends on the meaning to be ascribed to the
word ‘probability’ in the above-quoted Nydam formulation of criminal negligence.
The word ‘probability’ in this context was not defined or in any way expounded upon in
Nydam. As negligent manslaughter is a common law offence, one must resort to common law
principles in resolving this ambiguity. The word ‘probability’, at least in the context of murder
at common law, was defined in Crabbe and later refined in Boughey (see Chapter 3) as denoting
a real and significant, as opposed to merely a remote chance, of the occurrence of death or
grievous bodily harm. If one assumes that the word ‘probability’ carries the same meaning in
the Nydam formulation of criminal negligence, it is apparent that the justification for imposing
liability for negligent manslaughter under this standard is predicated on a combination of the
negative social utility of the risk-taking conduct, the magnitude of the risk (death or grievous
bodily harm), and the likelihood that the risk will materialise. In contrast, when one acts with
mere ‘possibility’ type recklessness, by definition s/he does not advert to anything more than a
real ‘possibility’ that the contemplated harm will reach fruition. On the other hand, ‘possibility’
type recklessness is an aggravated form of negligence that involves advertence to an unjustified
risk and a decision to proceed in spite of it. Though the chance that the risk will materialise is
lower than that required under the Nydam standard, the fact that the risk must be more than
merely a remote possibility, coupled with the defendant’s advertence to the risk, appears to more
than compensate for the fact that there is less than a ‘probability’ that the risk will materialise.
If it were otherwise, then how does one explain why the law regards advertent unjustified risk-
taking (recklessness), both of the ‘possibility’ and ‘probability’ genre, as an aggravated and
more blameworthy form of negligence than inadvertent unjustified risk-taking, whether in the
form of ordinary or criminal negligence? In our view, therefore, a person commits negligent
manslaughter if s/he, without lawful excuse, causes the death of another human being while
acting with ‘possibility’ type recklessness as to causing death or grievous bodily harm.
The mental state necessary for negligent manslaughter was discussed recently by Layton J in
R v Edwards, the facts of which are set out above.
R v Edwards
[2008] SASC 303
Judgment
Layton J: A killing that occurs through criminal negligence amounts to manslaughter. The test is whether
there was ‘a great falling short of the standard of care’ which a reasonable person would have exercised,
involving ‘such a high risk that death or grievous bodily harm would follow the doing of the act’ that it
merits punishment. The elements of the offence require the prosecution to prove that:
• a duty of care was owed by the accused to the victim;
• the acts of the accused which caused death were performed consciously and voluntarily;
• the acts of the accused amounted to a breach of that duty of care which was a great falling short of
the standard of care which a reasonable person in the circumstance[s] would have exercised; and
• a reasonable person in the situation of the accused would have appreciated that his actions would
involve a high risk of death or grievous bodily harm.
The only state of mind required is an intent to perform the actus reus. No malice is required. The test
is entirely objective, as it is based on the standard of a reasonable hypothetical person. The accused does
not need to be aware that he is acting negligently, nor does it involve a consideration of the consciousness
of the accused of the likelihood of his actions causing death or grievous bodily harm. It is not necessary
for the accused to even have adverted to the probability of his actions being negligent.
What is required is a comparison between the conduct of the accused and the conduct of a reasonable
person who possesses the same attributes as the accused (such as age, special knowledge and skills) in
the circumstances in which he found himself, having regard to the ordinary fortitude and strength of mind
which a reasonable person has. It must be proved that a reasonable person in the circumstances of the
accused would have appreciated the dangerousness of the actions, or put another way, the reasonable
person would have appreciated that there was a high risk that death or grievous bodily harm would follow
the actions.
The accused’s own knowledge of the circumstances is relevant to considering the circumstances of
the accused. The acts which comprise the breach of duty need not be unlawful.
This need for objectivity with regard to the reasonable hypothetical person is in conformity with the
other form of involuntary manslaughter, namely unlawful and dangerous act discussed earlier. In this way,
both forms of manslaughter reflect the value which is placed by the law upon human life.
In relation to the reasonable hypothetical person, regard can be had to their age and special
knowledge and skills.
It has also been suggested in New South Wales Sugar Milling Co-operative Ltd v EPA that the standard
of criminal negligence may differ according to the nature of the offence. If the offence is a serious one, the
departure from the standard of reasonableness must be greater than if the offence is minor.
One of the difficulties that has been discussed by many commentators and also the Victorian Law
Reform Commission is the problem of formulating an objective standard that is not overly punitive, having
regard to the fact that a breach of the standard amounts to a criminal offence. This problem arises when
considering who is the ‘reasonable person’. The test of ‘reasonable person’ poses potentially severe
difficulties for those persons who may be unable to reach the standards of a reasonable person by
virtue of some inherent physical or intellectual disability. This was specifically recognised by Kirby J in
R v Lavender when he said:
It is true, that in extreme situations, a person may be exposed to criminal liability for being objectively
at fault in circumstances where no one would regard that person as culpable. For instance, it would
not be rational to impute blame to a person who is physically or mentally incapable of achieving a
standard of care expected by the criminal law. (references omitted)
In so stating this, Kirby J referred to an article by Honoré, ‘Responsibility and Luck: The Moral Basis
of Strict Liability’. Kirby J’s footnote reads:
However, if that person enters in a situation cognisant of their incompetence to deal with that situation
then they may well be properly blamed for harm that they cause.
Kirby J continued that this may be theoretical by reason of the fact that:
In the overwhelming majority of cases, a person who causes death by aggravated criminal negligence
will be regarded as extremely blameworthy. The criminal law, by fixing liability only on those who act
with aggravated negligence confines liability to cases of very serious wrongdoing in circumstances
of moral blame. In Wilson, Mason CJ, Toohey, Gaudron and McHugh JJ stated that there must
‘… be a close correlation between moral culpability and legal responsibility [for manslaughter].’
Notwithstanding that manslaughter is defined by reference to an objective test, this correlation is
assured by the degree of negligence required.
In this case, it was argued by counsel for Edwards that in looking at the characteristics of the
reasonable hypothetical person in the circumstances in which Edwards found himself, I should have
regard to the evidence that Edwards was, at the time when he was applying a hold on Esposito, suffering
from concussion, which impaired his judgment of the situation. Ms Powell submitted that there were a
number of ways in which this factor could be taken into account: as a characteristic of the reasonable
hypothetical person; as part of the circumstances which applied to Edwards at the time; or in assessing
the degree of the breach of the standard of care required, using the Kirby J approach.
By way of response Mr Brebner, on behalf of the prosecution, submitted that this factor, even if it did
exist, should not be taken into account. He submitted that the test was deliberately objective and that
this would be importing a subjective quality into the test. In his submission there was no such thing as a
‘reasonably dazed hypothetical person.’
I agree with the submissions of the prosecution. In light of the above authorities on this point, it is
inappropriate to take into account any dazed condition of Edwards, due to minor concussion or shock
as an attribute of the reasonable hypothetical person. Further, this feature is not a relevant factor to be
regarded as part of the ‘circumstances’ in which Edwards found himself. This is a personal quality and it
is therefore not relevant to the circumstances in which he applied the headlocks.
As to the gravamen of the breach of the duty, it is arguable that such a condition may potentially
be taken into account in looking at the seriousness of the breach if the obiter of Kirby J is followed; the
majority do not refer to this point in their reasoning … (footnotes omitted).
In summary, the following elements must be proven in order to convict for negligent
manslaughter:
(1) a voluntary act or omission to act (where there is a legal duty to act) on the part of the
accused;
(2) a legal causal connection between the voluntary act or omission and the death of another
human being;
(3) that the relevant voluntary act or omission amounted to a breach of a duty of care owed to
the deceased; and
(4) that the breach of a duty of care was of such a degree as to rise to the level of ‘gross’ or
‘criminal’ negligence.
5.4.4 Involuntary manslaughter by omission
R v Taktak
(1988) 14 NSWLR 226
(New South Wales Court of Criminal Appeal)
Judgment
Carruthers J [who came to the same conclusion as the other two members of the court; that is, that
the appellant’s conviction for manslaughter should be quashed]: This case is a microcosm of the human
devastation wreaked by the flourishing drug trade. The events giving rise to the trial and consequential
appeal tell of the exploitation and ultimate death of a fifteen year old girl who became addicted to heroin
and turned to prostitution to support her addiction. However, whatever the sociological implications of this
tragedy may be, the legal question which has arisen for this Court to determine is whether Elias Taktak (the
appellant) was rightly convicted of causing her death by the commission of the offence of manslaughter.
It was clearly open to the jury to find that the appellant was in March 1984 an associate of one Zouhier
Rabih, who conducted what was referred to as a ‘dog shop’ at premises at Randwick, to which a residence
was attached. Rabih also traded in drugs. The appellant was addicted to heroin and from time to time
obtained supplies of that drug from Rabih. The appellant was accordingly to some extent dependent upon
Rabih and thus amenable to his wishes. On 19 March 1984, Rabih requested the appellant to procure two
prostitutes to attend a party at a residential building in Liverpool Street, city. The girls were to be paid by
cash and (as it later appeared) to be supplied with heroin. Thus on the evening of 19 March the appellant
approached the deceased, Linda Anne Kirby, and a young friend of hers at premises known as the ‘Snooker
Room’ in Darlinghurst and put Rabih’s proposition to them. The girls agreed to the proposition and went
with the appellant to the ‘dog shop’, where they were introduced to Rabih. The girls then left with Rabih to
go to ‘the party’ at Liverpool Street and the appellant remained at the ‘dog shop’. At some time in the early
hours of 20 March, Rabih rang the appellant and said: ‘Come and take your girl, the black already left at
half past twelve to go to work. The other girl is still in bed, come and pick her up.’
When asked where he was, Rabih replied: ‘The tall building in Liverpool Street, the girl will be out
the front.’
The appellant then went by taxi to the apartment building in Liverpool Street, the location of which
was previously known to him. Rabih was in the foyer of the building and Miss Kirby was also in the foyer,
sitting on the floor. She was moaning and unable to speak. Rabih told the appellant to take her to his
place. When asked what had happened to the girl, Rabih replied ‘she take too much heroin or something’.
The appellant then carried Miss Kirby to the waiting taxi and placed her in the back seat. The taxi returned
to the ‘dog shop’, where the appellant carried her inside and placed her on a bed. Miss Kirby was
vomiting. The appellant tried to awaken her by slapping her face and washing it with cold water. He also
pumped her chest and gave her mouth to mouth resuscitation.
About 10 am, Rabih arrived at the shop. Being unable to awaken Miss Kirby, Rabih went to the nearby
surgery of Dr Eric d’Souza, arriving there about 10.15 am. Dr d’Souza said that he would come as soon
as he could. About five minutes later the appellant arrived at the surgery. He said: ‘Doctor, please come
immediately because I think she is serious.’ Dr d’Souza then went to the shop and having examined Miss
Kirby and attempted to resuscitate her he concluded that she was dead. Dr d’Souza thought that she had
been dead for one or two hours. He asked the appellant when he had last seen Miss Kirby alive and the
appellant replied: ‘Oh, just before I called you and she was making groaning noises.’
Now against that background it is necessary to note that there were two areas of uncertainty in the
Crown case in so far as times were concerned. The first aspect relates to the time of death; Dr Brighton,
an expert in forensic medicine, who performed the autopsy upon the body of Miss Kirby, expressed the
view in evidence that death could have occurred as early as 4.30 am or as late as 9.15 am on 20 March.
The second aspect relates to the time at which the appellant returned to the ‘dog shop’ with Miss Kirby.
In this regard the Crown tendered a record of interview in which the appellant stated that he arrived
back at the shop ‘close to four o’clock’. The Crown also tendered the record of a conversation between
the appellant and an investigating police officer on 30 January 1985 in which the appellant said that he
arrived back at the shop between 4.00 am and 7.00 am. In view of this conflicting evidence it was not
possible in my view for the jury to determine beyond reasonable doubt the time which elapsed between
the appellant taking Miss Kirby into his care and her death.
A number of grounds of appeal were argued before us but I find it necessary to refer only to the
ground that the conviction was unsafe and unsatisfactory.
The offence with which the appellant was charged may conveniently be referred to as manslaughter
by criminal negligence. Thus it was incumbent upon the Crown to prove beyond reasonable doubt:
(1) That the appellant owed a duty of care in law to Miss Kirby.
(2) That it was the omission of the appellant to obtain medical treatment which was the proximate cause
of Miss Kirby’s death.
(3) That such omission by the appellant was conscious and voluntary, without any intention of causing
death but in circumstances which involved such a great falling short of the standard of care which a
reasonable man would have exercised and which involved such a high risk that death would follow
that the omission merited criminal punishment.
See Nydam v The Queen [1977] VR 430 at 445; R v Taylor (1983) 9 A Crim R 358; R v Wills [1983]
2 VR 201 and Re Lamperd (1983) 63 FLR 470 at 475–476; 46 ALR 371 at 375; 8 A Crim R 417 at 420.
I have had the considerable benefit of reading in draft form the judgment of Yeldham J, with which I
generally agree, save with respect to the reservations which his Honour holds in relation to the Crown’s proof
of the first element. If I may respectfully say so, I do not share his Honour’s reservations in that regard. To
my mind the evidence led by the Crown was capable of satisfying the jury beyond reasonable doubt that the
appellant owed a duty of care in law to Miss Kirby. That duty flowed from his taking her unconscious body
into his exclusive custody and control and thereby removing her from the potentiality of appropriate aid from
others. The legal principles are, I think, conveniently stated in 40 Am Jur 2d, par 90 at 383:
Generally speaking, the affirmative legal duty which is the vital element of a homicide charge based
upon failure to supply medical or surgical attention may exist, first, where a statute imposes a duty
to care for another; second, where one stands in a certain status or relationship to another; third,
where one has assumed a contractual duty to care for another; and fourth, where one has voluntarily
assumed the care of another and has so secluded the helpless person as to prevent others from
rendering aid.
For authority to support the fourth category reference may be made to R v Nicholls (1874) 13 Cox
CC 75; R v Stone & Dobinson [1977] QB 354; Jones v United States of America 308 F 2d 307 (1962)
and People v Beardsley 113 NW 1128 (1907). The complexity of modern society is such that the duty of
care cannot be confined to specific categories of legal relationships such as husband and wife, parent
and child; the duty will also arise where one person has voluntarily assumed the care of another who is
helpless, through whatever cause and so secluded such person as to prevent others from rendering aid.
Thus I find the following passage in 100 ALR 2d 488, par 4 to be apposite:
Duties dictated merely by good morals, or by human considerations, are not generally within the
domain of the law, and therefore one who did not become a good Samaritan by providing medical
care when a witness to the distress of a sick or injured person does not become criminally responsible
should death come to such person because of a lack of medical attention. Legal rights and duties,
however, may arise out of those complex relations of human society which create correlative rights
and duties the performance of which is so necessary to the good order and well-being of society that
the state makes their observance obligatory.
In so far as the conviction is concerned, I think the problems lie with the second and third elements.
In view of the wholly uncertain state of the evidence regarding the period of time during which Miss Kirby
was alive and in the exclusive custody of the appellant, the jury could not in my view have been satisfied
beyond reasonable doubt of either of those two elements. The jury were unable to assess what time was
available to the appellant to make a responsible assessment of the critical state of Miss Kirby’s health
and to determine whether his crude attempts at resuscitation were adequate to preserve her life. Further,
they were unable to assess the time available to the appellant to obtain lifesaving medical treatment for
her even if he had acted with expedition, bearing in mind the delay inherent in getting her to the hospital
and the provision of the requisite treatment. In this context the Crown evidence could not satisfy the
demanding tests of causation and the elements of criminal negligence.
I am mindful of Dr d’Souza’s evidence that the appellant told him that Miss Kirby was making groaning
noises just before he called the doctor. However, any inference that Miss Kirby was then alive is wholly
inconsistent with Dr d’Souza’s evidence as to the likely time of death and does not fit comfortably with
the evidence of Dr Brighton.
Thus in my view it was not open to the jury on the whole of the evidence to be satisfied beyond
reasonable doubt of the commission of the offence and the conviction should be quashed: Chamberlain v
The Queen (No 2) (1984)153 CLR 521.
Accordingly, I agree with the orders proposed by Yeldham J.
Questions
5.23 What are the tests for determining whether D has committed negligent manslaughter
by omission?
5.24 Why was the appellant’s conviction quashed in this case?
5.25 Does the level of negligence required for a conviction differ as between manslaughter
by commission and manslaughter by omission? If not, should it?
In Burns v The Queen [2012] HCA 35, the appellant supplied methadone to a person who
died as a result of the combination of this drug with a prescription drug. The appellant was
convicted of involuntary manslaughter in circumstances where the prosecution’s case alleged

two alternative theories for the offence. The first was that supplying methadone was an unlawful
and dangerous act. The other was that by not calling for medical attention for the victim, the
appellant had committed involuntary manslaughter by criminal negligence. The second theory
was predicated on the fact that the victim was ‘out of it’ when he was given the drugs, thus giving
rise to an omission to act on the part of the appellant in circumstances in which there was a legal
duty to act which, it was argued, amounted to involuntary manslaughter by criminal negligence.
The High Court allowed the appeal. It held, inter alia, that the supply of methadone to a person
cannot, by itself, constitute an unlawful and dangerous act. Given that that case was put in the
alternative and the theory upon which the appellant was convicted was not known, the court
ordered a retrial.
The judgment of Gummow, Hayne, Crennan, Kiefel, and Bell JJ was quite confusing in so
far as it rejected the notion that in the absence of accessorial liability, the mere act of illegally
supplying another with an controlled substance cannot amount to a dangerous act of the type
required for involuntary manslaughter by unlawful and dangerous act (see section 5.3). In the
following passages, after citing English authorites, the New South Wales Court of Criminal
Appeal’s decision in this case, and various academic commentary, the justices opined:
To supply drugs to another may be an unlawful act but it is not in itself a dangerous act. Any
danger lies in ingesting what is supplied …
The analysis of the causation of homicide in Royall v The Queen is posited on an

acceptance that the voluntary and informed act of an adult negatives causal connection.
Absent intimidation, mistake or other vitiating factor, what an adult of sound mind does is
not in law treated as having been caused by another. The introduction of the concept of the
predictable response of the sane adult actor would radically change the rationale for and
the nature of the causal inquiry. Neither party invited this Court to endorse that approach.
The deceased was a sane adult. It is not suggested that his decision to take the
methadone was vitiated by mistake or duress. His ability to reason as to the wisdom of
taking methadone is likely to have been affected by the drugs that he had already taken
but this is not to deny that his act was voluntary and informed. It was informed because
he knew that he was taking methadone. He chose to take methadone not knowing what
effect that drug would have in combination with the drugs he had already taken. A foolish
decision to take a prohibited drug not knowing its likely effects is nonetheless the drug
taker’s voluntary and informed decision.
The Crown’s concession that the unlawful supply of methadone was not an act capable
of founding liability for manslaughter should be accepted. The supply of the methadone
was not an act that carried an appreciable risk of serious injury. That risk arose when the
drug was consumed. The cause of the death of the deceased in law was the consumption of
the methadone and not the anterior act of supply of the drug: ibid [76], [86] (footnotes
omitted).
With respect, the cited English authorities, the New South Wales Court of Criminal Appeal,
and the various academic commentary relied heavily upon the novus actus interveniens test in
determining whether an event that occurs subsequent to the accused’s voluntary act or omission
but before death, is of sufficient magnitude that it, rather than the accused’s conduct, should be
regarded as the legal cause of death; that is, whether it is such a dominant cause of death that it
should be regarded as severing the causal chain as a matter of public policy. Although this test
has been used to determine issues of causation under current Australian common law doctrine in
the context of tort law, it has been resoundingly rejected by the Australian courts in the criminal
law sphere. In Royall v The Queen (1990) 172 CLR 378, for example (see Chapter 2), which is
considered the leading High Court decision to date on causation in the criminal law, only two of
the seven justices expressly or impliedly referred to this test. Moreover, neither adopted it in the
context of self-preservation type cases such as Royall or, for that matter, any type of criminal fact
pattern such as an Act of God type scenario, medical negligence cases, or cases such as R v Blaue
[1975] 1 WLR 1411 (see Chapter 2) in which a deceased’s unreasonable omission to act would
have been all but certain to save his or her life. In fact, the justices were careful to emphasise that
the Crown had made a concession in the lower courts that merely supplying an illegal drug,
without more, cannot satisfy the test of dangerousness required for this heading of involuntary
manslaughter. Finally, it should be pointed out that whether the act(s) or omission(s) upon
which the Crown seeks to predicate liability for this heading of involuntary manslaughter are
sufficient to satisfy the element of dangerousness is a totally different question than whether or
not the requisite legal causal nexus exists between the accused’s relevant act(s) or omission(s)
and the non-mens rea (actus reus) elements of the offence.
We believe that the High Court erroneously conflated the two issues in order to obfuscate
the fact that illegally supplying a drug to another would, in the overwhelming majority of cases,
satisfy the test of dangerousness enunciated in Wilson v The Queen (1992) 61 A Crim R 63. In
that decision, Mason CJ, Toohey, Gaudron, and McHugh JJ stated the test of dangerousness as
whether ‘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
serious injury’: at [76]. Using this formulation, it is difficult to envisage many circumstances in
which illegally supplying another with a controlled substance would not meet the Wilson test.
In Burns, the justices also commented on the circumstances in which the law imposes a
positive duty to assist other people. The justices wrote (at [97], [98], [101]:
Criminal liability does not fasten on the omission to act, save in the case of an omission to
do something that a person is under a legal obligation to do. As a general proposition, the
law does not impose an obligation on individuals to rescue or otherwise to act to preserve
human life. Such an obligation may be imposed by statute or contract or because of the
relationship between individuals. The relationships of parent and child, and doctor and
patient, are recognised as imposing a duty of this kind. A person may voluntarily assume an
obligation to care for a helpless person and thereby become subject to such a duty. Outside
limited exceptions, a person remains at liberty in law to refuse to hold out her hand to the
person drowning in the shallow pool.
The appellant had no relationship with the deceased beyond that of acquaintance.
He called at her home to purchase prohibited drugs. He took the drugs in her home and
suffered an adverse reaction to them in her presence. He left her home at her request while
in a compromised state. He died within hours as the result of the combined effect of the
drug supplied by the appellant and drugs that he had earlier taken. In question is the source
of the legal duty which obliged the appellant to obtain medical assistance for the deceased
and how her failure to do so can be said to have been a cause of his death. …
The appellant was not in a relationship with the deceased which the law recognises as
imposing an obligation to act to preserve life. She had not voluntarily assumed the care of
the deceased nor had she secluded him such as to deny him the opportunity that others
would assist him.
However, courts must be circumspect in identifying categories of relations that give rise to a
previously unrecognised legal obligation to act. The relationship of supplier of prohibited drugs
and recipient does not lend itself to the imposition of such a duty. Apart from considerations
of incongruity, there is absent the element of control which is found in those relationships in
which the law imposes a duty on a person to act to preserve life.
It is open to the legislature to criminalise the failure of the supplier of a prohibited drug
to take reasonable steps to provide medical assistance to the drug user. This might be done by
making the failure to act itself an offence or by imposing a statutory duty on the supplier with
attendant liability for manslaughter in the case of gross breach. Difficult policy choices may
be involved in the decision to enact an offence of either kind. The desirability of making drug
suppliers responsible for the deaths of drug users is one objective to which reference has been
made earlier in these reasons. Another objective may be to minimise the incidence of fatal drug
overdoses. Exposing the supplier to the risk of conviction for manslaughter (or other serious
offence) when the user dies of an overdose at the supplier’s premises, while advancing the former
objective, may not necessarily promote the latter. The development of the law along the lines
urged by the Crown is a matter for the legislature and not the courts.
This conclusion made it unnecessary to address the parties’ submissions respecting
causation on the case in criminal negligence. It is sufficient to note that the circumstance that
the deceased was capable of leaving and did leave the unit after evincing his disinclination for
medical assistance presents a formidable obstacle to proof that the appellant’s failure to call an
ambulance was a cause of his death.
In the context of this chapter, another relevant form of statutory homicide is s 14 of the
Criminal Law Consolidation Act 1935 (SA) which provides:
14—Criminal liability for neglect where death or serious harm results from
unlawful act
(1) A person (the ‘defendant’) is guilty of the offence of criminal neglect if—
(a) a child or a vulnerable adult (the ‘victim’) dies or suffers serious harm as a result
of an unlawful act; and
(b) the defendant had, at the time of the act, a duty of care to the victim; and
(c) the defendant was, or ought to have been, aware that there was an appreciable
risk that serious harm would be caused to the victim by the unlawful act; and
(d) the defendant failed to take steps that he or she could reasonably be expected
to have taken in the circumstances to protect the victim from harm and the
defendant’s failure to do so was, in the circumstances, so serious that a criminal
penalty is warranted. …
(3) For the purposes of this section, the defendant has a duty of care to the victim if the
defendant is a parent or guardian of the victim or has assumed responsibility for the
victim’s care.
(4) In this section—
‘act’ includes—
(a) an omission; and
(b) a course of conduct;
‘child’ means a person under 16 years of age;
‘serious harm’ means—
(a) harm that endangers, or is likely to endanger, a person’s life; or
(b) harm that consists of, or is likely to result in, loss of, or serious and protracted
impairment of, a part of the body or a physical or mental function; or
(c) harm that consists of, or is likely to result in, serious disfigurement;
‘unlawful’—an act is unlawful if it—

(a) constitutes an offence; or
(b) would constitute an offence if committed by an adult of full legal capacity;
‘vulnerable adult’ means a person aged 16 years or above whose ability to protect himself or
herself from an unlawful act is significantly impaired through physical or mental disability,
illness or infirmity.
Question
5.26 Section 14 is clearly not a statutory codification of either heading of involuntary man-
slaughter under common law doctrine as discussed above. Should s 14 be viewed as
a hybrid of both common law headings when death results from an omission to act
where the accused was under a legal duty to act as described in sub-s 14(3)?
5.4.5 Motorists
Many appellate cases have arisen out of motoring accidents. Where death is caused by motor
accidents, juries have traditionally been reluctant to convict the offender of involuntary
manslaughter. In the hope that juries would find it more palatable to convict for deaths caused
by criminal negligence involving the use of motor vehicles, Victoria has enacted the statutory
offence of culpable driving causing death: Crimes Act 1958 (Vic) s 318. As with the Victorian
and New South Wales offences of infanticide (see Chapter 2), this is yet another instance in
which Parliament has enacted a statutory unlawful homicide offence to augment the unlawful
homicide offences recognised at common law. With the exception of sub-s 318(2)(a) of the
Crimes Act 1958 (Vic), which allows for conviction under circumstances that would justify a
conviction for reckless murder at common law, the Victorian statute allows for conviction under
circumstances that would justify a conviction for negligent manslaughter. Section 318 of the
Victorian statute provides:

(1) Any person who by culpable driving of a motor vehicle causes the death of another
person shall be guilty of an indictable offence and shall be liable to … imprisonment
(20 years maximum) or a level 3 fine or both.
(2) For the purposes of sub-section (1) a person drives a motor vehicle culpably if he
drives the motor vehicle—
(a) recklessly, that is to say, if he consciously and unjustifiably disregards a
substantial risk that the death of another person or the infliction of grievous
bodily harm upon another person may result from his driving; or
(b) negligently, that is to say, if he fails unjustifiably and to a gross degree to observe
the standard of care which a reasonable man would have observed in all the
circumstances of the case; or
(c) whilst under the influence of alcohol to such an extent as to be incapable of
having proper control of the motor vehicle; or
(d) whilst under the influence of a drug to such an extent as to be incapable of

having proper control of the motor vehicle …
(4) A person who is convicted or acquitted of an indictable offence under this section
shall not in respect of the death concerned subsequently be prosecuted for unlawful
homicide or under this section …
All other jurisdictions have enacted similar legislation, although the degree of negligence
necessary to convict is lower than that required for negligent manslaughter or under sub-s
318(2)(b)–(d) of the Crimes Act 1958 (Vic): Crimes Act 1900 (NSW) ss 52A, 52AA; Criminal
Law Consolidation Act 1935 (SA) ss 19A, 19B. Another important difference between these
provisions and sub-s 318(2)(b)–(d) of the Crimes Act 1958 (Vic) is that the former also apply
where the defendant’s culpable driving merely causes grievous bodily harm.
Questions
5.27 Why do you think juries generally prefer to convict on the charge of culpable driving
as opposed to involuntary manslaughter?
5.28 Which offence carries greater condemnation?
5.4.6 Medical negligence

Traditionally, juries have been reluctant to convict a doctor of the manslaughter of a person
under his or her treatment. There is no sound legal reason, however, why medical treatment
which is the legal cause of death and satisfies the Nydam standard should escape criminal liability
for involuntary manslaughter by criminal negligence. With the passage of time, this reluctance
to convict doctors and other health care workers appears to be diminishing.
5.5
Statutory homicides parallelling involuntary
manslaughter—the instance of assault

causing death
It is always open to the legislature to enact offences of homicide that parallel the common law
heads of involuntary homicide. The example of causing death by culpable driving has been noted
in section 5.4.5.
Another instance is the offence of assault causing death created by s 25A of the Crimes Act
1900 (NSW). This offence was enacted in recognition of the reluctance of juries to convict
persons of manslaughter in fact situations of the type encompassed by it. Section 25A(1)
provides that the offence consists of (a) the intentional hitting of another person with any part
of the person’s body or with an object held by that person, in a situation where (b) the assault
is not authorised or excused by law, and (c) the assault causes the death of the person who has
been hit.
For the purposes of the offence the death is caused whether the victim is killed as a result of
the injuries received directly from the assault or from hitting the ground as a consequence of the
assault. The mens rea element requires no more than proof that the accused had the intention
of hitting the deceased (indeed, it is specifically provided that it is not necessary to prove that
the death was reasonably foreseeable). Where the assailant was intoxicated at the time when the
assault is committed, a minimum sentence of eight years imprisonment is imposed (s 25B). (No
such minimum is applies when the assailant is not intoxicated, on the implied and questionable
premise that the sober offender is less culpable.)
The concept of intoxication is not defined (although see s 428A), but the accused is
conclusively presumed to be intoxicated where his or her blood or breath has a prescribed
minimum concentration of alcohol (s 25A(6)). (The prosecution can in the alternative
undertake to prove intoxication with other evidence, and indeed will always need to do so where
intoxication caused by a drug other than alcohol is alleged.) The defence of intoxication may
not be advanced in relation to this offence. It is, however, a defence if the intoxication was not
self-induced within the meaning of Part 11A of the Act (s 25A(5)(a)). The defence of significant
cognitive impairment may also be raised (s 25A(5)(b)).
Review questions
1 After a verbal argument between Shakespeare and his former wife Mary, Mary’s de facto spouse
Frank and her brother Sam paid Shakespeare a visit at his home. There was an altercation between
Shakespeare and Frank, and at some stage Frank punched Shakespeare in the face. Sam said that
they would ‘get’ Shakespeare later. Frank and Sam then left and sat in Sam’s car, which was on the
opposite side of the road to Shakespeare’s house. Shakespeare got a rifle, loaded it, went outside,
aimed the rifle in the direction of the car, and shot once. After passing through the rear door of
the car on the driver’s side, the shot killed Sam, who was sitting in the driver’s seat. Shakespeare
claimed that his intention was to put a hole in the car to scare them off—to show them that he had
a gun and was prepared to use it to defend himself. He later told police that he believed they had
gone to the car to get a gun or some other weapon, and would be back to carry out their threats.
It was later determined that at the time of the killing, Shakespeare’s vision was impaired by blood
emanating from the wound he received when Frank struck him in the face.
Discuss the criminal liability of Shakespeare for manslaughter.
2 James Dean shoots with revolvers for a hobby. One afternoon Immanuel and Friedrich visit him.
Unknown to Dean, they play with one of his revolvers. They are not aware of the fact that the
revolver is loaded. Immanuel, being a rational bloke, is concerned that the gun might be loaded
and tells Friedrich to put it down. Friedrich tells Immanuel that he is too caught up with his critical
faculties, and that the revolver can’t be loaded as Dean always unloads his revolvers. Friedrich pulls
the trigger and kills Immanuel.
Discuss the criminal liability of Dean and Friedrich.
3 Assume that it is illegal to sell heroin, but perfectly legal to use it. D and V are long-time users of
heroin. Assume further that D not only sells heroin to V, but unwittingly injects him with a lethal dose
with V’s full—albeit misinformed—consent. Finally, assume that V dies from the heroin overdose.
Should D be charged with murder or manslaughter? If manslaughter, which type?
4 Dr John is a well-respected medical doctor who is a general practitioner in good standing with the
State Regulatory Board of Medical Practitioners. While Dr John was on an extended holiday, a letter
arrived at his home notifying him that his annual licence fee was due in a week. When Dr John
returned from his vacation some three weeks after the letter arrived, he threw it in the rubbish bin
in the mistaken belief that it was merely a Christmas card that he had already seen. The following
day Dr John saw a patient, Renee, for what he correctly diagnosed as a bacterial ear infection.
Dr John asked Renee if she was allergic to any medications and she responded, ‘None that I’m
aware of’. Dr John prescribed a widely used antibiotic that, according to medical experts, was
an entirely appropriate medication to prescribe for Renee’s condition. Unfortunately, Renee had
a severe allergic reaction to the antibiotic and died within a few minutes after ingesting the drug.
Discuss what, if any, criminal liability Dr John should incur.
If Dr John had impersonated a medical doctor without having received any medical training and
killed a patient by prescribing a totally inappropriate drug that presented a very high risk of death
or serious injury given the circumstances, would your conclusion differ from the previous scenario?
Why, or why not?
5 A nationwide strike has been going on for several months. The largest mining company in the
country is bringing in scab labour under police escort. On the occasion in question, the police escort
consists of two police officers on motorbikes, followed by a taxi carrying the scab miner. Two striking
miners, Carmichael and Fraser, have positioned themselves on a bridge over the highway, intending
to drop a concrete slab off the parapet and into the outside lane where there is no traffic. They just
want to frighten the scab labour. When they raise the concrete slab, Fraser slips and stumbles, and
the slab falls off the bridge and into the path of the oncoming police escort. The two police officers
swerve and come to rest on the embankment. The taxi, however, careers off the road into a wall and
the taxi-driver dies. Discuss the criminal liability of Carmichael and Fraser. If you were the prosecutor,
which charges would you prefer against them?
273
Assault
Part
3
Chapter 6 Laws of Assault 274
Chapter 7 Sexual Assault 316
274
Chapter 6
Laws of Assault
6.1 Introduction
In this chapter, we consider the law of non-sexual and non-fatal assaults and related offences.
An assault is generically defined as the unlawful application of force or threat of force against
another person without his or her consent.
The most basic offence in the law of non-sexual and non-fatal assault is the common law
offence of common assault. Many of the principles that apply in this area were developed in the
context of common law assault (or common assault). Hence, this provides a good building block
for the study of assault-related offences and is the main focus of this chapter.
In this chapter we also discuss the doctrine of consent. This has become a controversial issue
in the context of offences against the person generally, and especially in relation to rape trials
where the central issue is often the consent of the victim. We address a number of situations
in which the consent of the victim has been a crucial issue in the attribution of responsibility
for assault. Some examples of this include sporting contests, medical procedures, and lawful
chastisement. In Chapter 7, we return to the doctrine of consent in the context of the sexual
assault offences of rape and indecent assault. We also discuss the availability of some of the
general defences in the context of assault. Thus, you are reminded of the doctrines of self-defence
and provocation specifically. Finally, we discuss a number of related offences such as kidnapping,
false imprisonment, stalking, and endangerment offences.
The common law crime of common assault envisages two general situations: (a) where the
accused creates an apprehension (awareness) in another person of an unlawful and imminent
application of force without the other person’s consent (this is known as the ‘threat’ or ‘assault’
genre of common assault); and (b) where the accused unlawfully applies force against another
person (whether by a part of the accused’s body or through an instrumentality such as a car or
a stick) without his or her consent (this is known as the ‘force’ or ‘battery’ genre of common
Chapter 6: Laws of Assault 275
assault). The distinction between an assault and a battery is not commonly used. Instead, the
generic term ‘common assault’ is used to refer to both the application of force and the threat
of force: R v Lynsey [1995] 3 All ER 654. Throughout the remainder of this chapter, unless
a contrary intention is expressly indicated, the term ‘common assault’ includes both the force
(battery) and threat (assault) limbs of assault.
In the New South Wales, the definition of assault continues to be found at common law.
(Section 61 of the Crimes Act 1900 (NSW) refers to the offence without defining it. Section
61 provides for the trial in indictment of common assault, but the effect of the Criminal
Procedure Act 1986 (NSW), taken with s 61, is that the offence will be triable summarily unless
an election is made for trial on indictment.) In Victoria, s 23 of the Summary Offences Act 1966
(Vic) encompasses a summary offence of assault. This is comprised of the same elements as the
common law offence of common assault that still exists in Victoria as an indictable offence:
R v Patton [1998] 1 VR 7; Crimes Act 1958 (Vic) s 320. South Australia has a statutory version
of assault which has supplanted the common law offence of common assault: Criminal Law
Consolidation Act 1935 (SA) s 20. As with common assault, this statutory offence contains
both a force and a threats limb. There are, however, some significant differences between this
statutory assault (extracted in section 6.3.2.4) and the offence at common law. These differences
are examined below.
Questions
6.1 What is the difference between assault and battery in the context of the crime of
common assault?
6.2 On public transport there is a lot of human contact such as brushing up against
others, bumping into them, and pushing them aside. Are these commuters guilty of
common assault? Is there an implied consent to certain forms of contact? If so, can
it be revoked? See, in particular, sub-s 20(2) of the Criminal Law Consolidation Act
1935 (SA), extracted below.
We now examine more closely the elements of common assault. We commence with the
mens rea and then look at the actus reus of the offence. It is important to emphasise that common
assault does not require injury to be inflicted on the victim. Where the victim sustains some
degree of injury, other and more serious assault offences are more appropriate. These offences
are discussed after common assault.
6.2 Mens rea of common assault

6.2.1 Intention and recklessness
An intention to commit an assault (to apply force to another or place another in apprehension
of an imminent application of force) is sufficient to constitute the mens rea of assault. The
question of whether recklessness will suffice as a mens rea for common assault was settled in the
leading case of R v Venna [1975] 3 All ER 788.
276 PART 3: Assault
R v Venna
[1975] 3 All ER 788; [1975] 3 WLR 737
(Court of Appeal, Criminal Division)
[A struggle ensued between the appellant and various police officers who were attempting to arrest
him. The appellant claimed that he had fallen during the altercation and had accidentally kicked one of
the officers in an attempt to get up off the ground, thereby fracturing a bone in the officer’s hand. The
appellant was charged, inter alia, with common assault. The trial judge directed the jury that they need
not find that the appellant intended to kick the officer in order to convict; rather, it was sufficient for them
to find that the appellant was ‘reckless as to who was there, not caring … whether he kicked somebody’.
On appeal:]
Judgment
James LJ: Counsel for the appellant argued that the direction [given by the trial judge] is wrong in
law because it states that the mental element of recklessness is enough, when coupled with the actus
reus of physical contact, to constitute the battery involved in assault occasioning actual bodily harm.
Recklessness, it is argued, is not enough; there must be intention to do the physical act the subject matter
of the charge.
In Fagan v Metropolitan Police Commissioner, it was said [1968] 3 All ER 442, [1969] 1 QB 439 at
440: ‘An assault is any act which intentionally or possibly recklessly causes another person to apprehend
immediate and unlawful personal violence’. In Fagan it was not necessary to decide the question whether
proof of recklessness is sufficient to establish the mens rea ingredient of assault. That question falls for
decision in the present case. Why it was considered necessary for the Crown to put the case forward
on the alternative bases of ‘intention’ and ‘recklessness’ is not clear to us. This resulted in the direction
given in the summing up.
On the evidence of the appellant himself, one would have thought that the inescapable inference was
that the appellant intended to make physical contact with whoever might try to restrain him. Be that as it
may, in the light of the direction given, the verdict may have been arrived at on the basis of ‘recklessness’.
Counsel for the appellant cited Ackroyd v Barrett (1894) 11 TLR 115 in support of his argument that
recklessness, which falls short of intention, is not enough to support a charge of battery, and argued that,
there being no authority to the contrary, it is now too late to extend the law by a decision of the courts and
that any extension must be by the decision of Parliament.
Counsel for the appellant sought support from the distinction between the offences which are assaults
and offences which by statute include the element contained in the word ‘maliciously’, eg unlawful and
malicious wounding contrary to s 20 of the Offences against the Person Act 1861, in which recklessness
will suffice to support the charge: see R v Cunningham [1957] 2 All ER 412, [1957] 2 QB 396. Insofar as
the editors of textbooks commit themselves to an opinion on this branch of the law, they are favourable to
the view that recklessness is or should logically be sufficient to support the charge of assault or battery:
see Glanville Williams, Criminal Law (2nd edn, 1961), p 65, para 27; Kenney’s Outlines of Criminal Law
(19th edn, 1964), vol 1, p 164; Russell, Russell on Crime (12th edn, 1964), vol 1, p 656 and Smith &
Hogan, Criminal Law (3rd edn, 1973), pp 284 at 286.
We think that the decision in Ackroyd v Barrett is explicable on the basis that the facts of the case
did not support a finding of recklessness. The case was not argued for both sides. R v Bradshaw (1878)
14 Cox CC 83 can be read as supporting the view that unlawful physical force applied recklessly
constitutes a criminal assault. In our view the element of mens rea in the offence of battery is satisfied
by proof that the defendant intentionally or recklessly applied force to the person of another. If it were
otherwise, the strange consequence would be that an offence of unlawful wounding contrary to s 20 of
the Offences against the Person Act 1861 could be established by proof that the defendant wounded
the victim either intentionally or recklessly, but if the victim’s skin was not broken and the offence was
therefore laid as an assault occasioning actual bodily harm contrary to s 47 of the 1861 Act, it would be
necessary to prove that the physical force was intentionally applied.
We see no reason in logic or in law why a person who recklessly applies physical force to the person
of another should be outside the criminal law of assault. In many cases the dividing line between intention
and recklessness is barely distinguishable. This is such a case. In our judgment the direction was right in
law; this ground of appeal fails.
[Appeal dismissed.]
See also Vallance v The Queen (1961) 108 CLR 56; MacPherson v Brown (1975) 12
SASR 184; R v Spratt [1990] 1 WLR 1073.
Questions
6.3 What arguments did counsel for the appellant make in support of the view that
recklessness is an insufficient mens rea for assault?
6.4 Why were these arguments rejected?
6.5 Did the court feel that it was easy to distinguish between intention and recklessness?
The judgment of James LJ made reference to the definition of assault enunciated in Fagan
v Metropolitan Police Commissioner [1969] 1 QB 439 at 440: ‘An assault is any act which
intentionally or possibly recklessly causes a person to apprehend immediate and unlawful
personal violence’ (emphasis added). Aware of the uncertainty emanating from the use of the
word ‘possibly’, James LJ resorted to academic commentary for guidance on this issue. After
reviewing such commentary, James LJ opined (at (WLR) 743): ‘We see no reason in logic or
in law why a person who recklessly applies physical force to the person of another should be
outside the criminal law of assault.’ Venna was later affirmed in the Victorian judgment of Bacash
v The Queen [1981] VR 923. Thus, recklessness is a sufficient mens rea for assault at common law.
As we have seen in the context of murder, recklessness involves the requirement of foresight
of harm. The question then is whether it is enough that an accused foresees that his or her act
will possibly injure another, or whether s/he must foresee that his or her act will probably injure
another. This distinction did not arise in either Venna or Bacash.
As you will recall, recklessness in the context of murder requires foresight of a probability
that death or grievous bodily harm will ensue (‘probability’ type recklessness). Given the fact
that it is possible to convict the accused of murder or voluntary manslaughter if the assault
results in death, it would seem that ‘possibility’ type recklessness should suffice for assaults that
do not result in death. Against this, it may be argued that although mere assaults do not result in
death, some assaults are nonetheless extremely serious. Thus, the difficulty in proving the offence
278 PART 3: Assault
should be maintained by requiring the prosecution to prove ‘probability’ type recklessness.

Can you think of any other arguments for either side on this issue? According to the weight of
academic commentary, and with some exceptions to be noted in this and subsequent chapters,
recklessness denotes mere ‘possibility’ type recklessness—except in the context of murder and
voluntary manslaughter.
Questions
6.6 What is the mens rea for assault at common law?

6.7 Can an accused be guilty of negligent or even grossly negligent common assault?
6.3 Actus reus of common assault

In this section we will consider the issues concerning the actus reus requirement in the law of
common assault.
6.3.1 Force (or battery) limb

The actus reus for the force (battery) limb of common assault is relatively straightforward. It
is constituted by the slightest degree of contact or touching without consent or other lawful
excuse: McIntyre v The Queen [2009] NSWCCA 305 at [40]. It was commented in that case,
at [42], that it ‘has been said that the law cannot draw the line between different degrees of
violence, and therefore totally prohibits the first and lowest stage of it’ (that is, a mere touching),
citing Secretary, Department of Health and Community Services v JWB and SMB (Marion’s Case)
(1992) 175 CLR 218 at 233, 265–6. There is no requirement that the contact must be hostile:
Collins v Wilcock [1984] 3 ALL ER 374 at 378; Boughey v The Queen (1986) 161 CLR 10 at 25.
Further, there is no requirement that the contact causes injury or hurt: Collins v Wilcock [1984]
3 All ER 374 at 378; Boughey v The Queen (1986) 161 CLR 10; Criminal Law Consolidation
Act 1935 (SA) s 20. If the application of force results in injury, then the accused may also be
charged with an aggravated form of assault.
At common law the application of force must be direct. This means that it must be aimed
at the victim or at an object on which the victim is supported such as, for example, a ladder:
R v Salisbury [1976] VR 452; R v Sherriff [1969] Crim LR 260. The position is broader in South
Australia where indirect application of force will suffice for the actus reus component: Criminal
Law Consolidation Act 1935 (SA) sub-s 20(1)(a). Thus, in South Australia, the accused can be
guilty of assault even where a third party applies force to the victim. In Victoria, some cases have
defined force in very broad terms so as to include the application of heat, light, electrical force,
gas, or any other substance or thing so as to cause injury or discomfort: Crimes Act 1958 (Vic)
s 31. This is an aggravated form of assault where the victim is a police officer or where there is an
intention to commit an indictable offence or assist a person in order to avoid lawful detention.
This broad definition of force, however, does not extend to common assault: sub-s 31(3).
At common law and in South Australia absence of consent is an element of the offence
of common assault. It follows that the prosecution must prove beyond reasonable doubt that
the victim did not expressly or impliedly consent to the assault: R v Clarence (1888) 22 LR
QBD 23; Criminal Law Consolidation Act 1935 (SA) sub-s 20(1).
6.3.2 Threats limb

6.3.2.1 Words alone?
At common law, the minimal requirement for the actus reus of assault is conduct that creates
an apprehension of an unlawful and imminent touching of the victim. The question thus
becomes what conduct is relevant conduct for the purposes of the law of assault. The traditional
assumption was that the conduct had to involve some kind of physical behaviour—physical
gestures such as waving your hands about, movement of the body to block someone’s path,
flourishing a knife, and so on. On the basis of this assumption, a maxim developed that ‘mere
words’ could not constitute an assault.
Not too much weight should be given to this maxim, however, since it must be placed in
the context of the definition of assault; namely, the conduct must create an apprehension of
unlawful and imminent contact. If the words create the requisite apprehension, then the courts
have had little trouble with this ‘maxim’. At common law words alone can constitute an assault.
The civil case of Barton v Armstrong [1969] SASR 205 is often cited as authority for the
proposition that words alone can suffice for an assault. In Barton, the plaintiff argued that the
defendant, a person in a position of authority and whom the plaintiff generally feared, had
threatened him with serious violence over the telephone. Taylor J held (at [455]) that ‘I am
not persuaded that threats uttered over the telephone are to be properly characterised as mere
words. I think it is a matter of the circumstances’. Thus, it is far from clear that the judgment of
Taylor J stands for the proposition that words alone can constitute an assault in either the tort
or criminal law context. See also R v Secretary (1996) 5 NTLR 96.
It is probably accurate to state, therefore, that when words form the conduct grounding
liability, they must be viewed in their proper context. The primary question that must be
asked is whether the words, in the context in which they were used, (a) created in the victim
an apprehension of an imminent touching and (b) whether the apprehension of the imminent
touching was such that a reasonable person, in like circumstances, would have apprehended it.
In appropriate circumstances, therefore, there is no reason in logic or principle that words alone
cannot ground an assault.
In South Australia, it is clear that an assault can be constituted by words alone: Criminal
Law Consolidation Act 1935 (SA) sub-s 20(1)(c).
6.3.2.2 Apprehension
In order for an assault to occur at common law, the victim must be placed in apprehension of
the unlawful and imminent use of force against his or her person. ‘Apprehension’ in this context
denotes an awareness of the unlawful and imminent application of force: R v McNamara [1954]
VLR 137; Pemble v The Queen (1971) 124 CLR 107 at 122. Thus, an assault (as opposed to a
battery) cannot be committed on a person who is asleep or unconscious.
In South Australia, however, the accused can be convicted of assault even where the victim
is unaware of the accused’s threatening actions. Pursuant to sub-s 20(1) of the Criminal Law
280 PART 3: Assault
Consolidation Act 1935, an assault can occur where as a result of the threats by the accused there
are reasonable grounds for the victim to believe that the accused will carry out the threat or
there is a reasonable possibility that the accused will carry out the threat. If the victim does not
actually form the belief available to him or her about the possible application of force, this does
not exculpate the accused.
6.3.2.3 Fear
While at common law it is a requirement that the victim be placed in apprehension of impending
contact, a question arises as to whether an assault requires that the victim must be placed in
actual fear of imminent contact or whether it is enough that s/he is placed in apprehension
of such contact. The better view appears to be that adopted in Brady v Schatzel [1911]
St R Qd 206 at 208: ‘It is not material that the person assaulted should be put in fear … If that
were so, it would make an assault dependent not upon the intention of the assailant, but upon
the question whether the party assaulted was a courageous or timid person.’: see, however, Ryan
v Kuhl [1979] VR 315. In order for an assault to occur, the threat must be such that a reasonable
person in like circumstances would have been placed in apprehension: Barton v Armstrong
[1969] 2 NSWR 451 at 455. If the defendant is aware that the victim is unusually timid,
however, it is sufficient that s/he is in fact placed in apprehension: MacPherson v Beath (1975)
12 SASR 174. Thus, while the element of apprehension is comprised of both a subjective and
objective component in the typical case, it is entirely subjective in instances where the accused is
aware that the victim is excessively timid. In South Australia, it is now clear that the victim need
not be placed in fear for an assault to occur: Criminal Law Consolidation Act 1935 (SA) s 20.
6.3.2.4 The imminence of the application of force

The victim must apprehend the imminent or immediate application of physical force. On
occasion, however, the notion of imminence has been broadly construed to include threats of
future violence. In Zanker v Vartzokas (1988) 34 A Crim R 11 (SA SC), the female victim
accepted a lift from the defendant who offered her money for sex. She refused the offer and
demanded to be let out of the car. The defendant refused to stop, accelerated, and said he was
going to take her to a friend’s house where his mate would really ‘fix her up’. The victim became
so scared that she jumped out of the car while it was still in motion and sustained minor injuries.
The victim was unaware of how far it was to the ‘mate’s house’ and, therefore, had no indication
as to what point in time the threat would be carried out. In affirming the assault conviction, the
Supreme Court of South Australia opined that a ‘present fear of relatively immediate imminent
violence was instilled in the [the victim’s] mind from the moment the words were uttered and
that fear was kept alive in her mind’ (at 14).
In South Australia at least, it appears that the concept of imminence does not necessarily
mean that the victim must apprehend that the application of force will immediately follow
the threat. This is particularly so where the defendant maintains a position of control and
dominance over the victim: see also R v Ireland; R v Burstow [1998] AC 147. While s 20 of
the Criminal Law Consolidation Act 1935 (SA) was enacted after Zanker, it appears that the
Zanker principle continues to apply. In other common law jurisdictions, however, it may well
be that an assault requires the victim be placed in apprehension of an imminent application
of physical force. In R v Knight (1988) 35 Crim R 314 at 318, for example, it was held by the
New South Wales Court of Criminal Appeal that an assault could be committed by telephone,
but only if there was an immediate threat of force. This decision is inconsistent with the court’s
earlier decision in Barton v Armstrong which held that the threat could be one of imminent
or future violence. It should be noted, however, that Barton is of limited utility as a criminal
law precedent because it involved a tort action rather than a criminal prosecution. Moreover,
as noted earlier in Fagan v Metropolitan Police Commissioner [1969] 1 QB 439, Lord Parker
and James J defined an assault as ‘any act which intentionally—or possibly recklessly—causes
another person to apprehend immediate and unlawful personal violence’. While it is true that
this English decision is merely persuasive authority in Australia, the New South Wales Court
of Criminal Appeal’s decision in Knight lends further credence to the view that imminence is
indeed a constituent element of common assault under common law doctrine.
For the sake of completeness, s 20 of the Criminal Law Consolidation Act 1935 (SA) is now
extracted. It states:
20 Assault
(1) A person commits an assault if the person, without the consent of another person
(the ‘victim’)—
(a) intentionally applies force (directly or indirectly) to the victim; or
(b) intentionally makes physical contact (directly or indirectly) with the
victim, knowing that the victim might reasonably object to the contact in
the circumstances (whether or not the victim was at the time aware of the
contact); or
(c) threatens (by words or conduct) to apply force (directly or indirectly) to the
victim and there are reasonable grounds for the victim to believe that—
(i) the person who makes the threat is in a position to carry out the threat
and intends to do so; or
(ii) there is a real possibility that the person will carry out the threat; or
(d) does an act of which the intended purpose is to apply force (directly or
indirectly) to the victim; or

(e) accosts or impedes another in a threatening manner.
(2) However—
(a) conduct that lies within limits of what would be generally accepted in the
community as normal incidents of social interaction or community life cannot
amount to an assault; and
(b) conduct that is justified or excused by law cannot amount to an assault.
Section 20 differs from the offence of common assault in several important respects. Two of
the most significant are that unlike common assault, there is no scope for recklessness to operate
as a mens rea; and s 20 encompasses conduct on the part of the accused that has either a direct
or indirect effect on the alleged victim.
6.3.2.5 Conditional threats

A conditional threat is capable of grounding liability for assault. An example of a conditional
threat is where D says: ‘If you come near me I will shoot’ or ‘Your money or your life’. In the
282 PART 3: Assault
context of assault, therefore, a conditional threat is one that threatens the use of force if the other
person fails to comply with the stated condition. A conditional threat must be distinguished
from what is often referred to as a ‘hypothetical threat’. A hypothetical threat is one in which a
person makes clear to another that s/he does not intend to use force or the threat thereof against
him or her. Thus, to even refer to this as a hypothetical threat is a misnomer because it involves
no threat at all. An example would be A telling B that ‘if it weren’t for the fact that I am bigger
and stronger than you, I would knock your block off ’.
In the best-known case on so-called ‘hypothetical threats,’ Tuberville v Savage (1669)
1 Mod 3, Tuberville put his hand on his sword and said to Savage: ‘If it were not assize-time
I would not take such language from you’. Savage thereupon attacked him, and in the ensuing
fight Tuberville lost an eye. Tuberville sued for assault and Savage pleaded self-defence. It was
ruled that Tuberville’s words and the placing of his hand on his sword were not an assault. Clearly
his words, ‘If it were not assize-time …’, showed he had no present intention of touching Savage.
Moreover, no reasonable person in Savage’s position would have been placed in apprehension
of an imminent touching; the words, therefore, negated two of the constituent elements of
common assault.
Questions
6.8 If Tuberville’s acts were not an assault, could Savage have maintained a defence of
self-defence?
6.9 Did Tuberville’s alleged assault involve any conduct, or was it just words?
The matter of ‘conditional threats’ was considered in the Supreme Court of South Australia
in Rozsa v Samuels.
Rozsa v Samuels
[1969] SASR 205

[The accused was a taxi-driver who was convicted of assaulting another taxi-driver. The victim
remonstrated with the accused in relation to his queue jumping, announcing that he would punch the
accused in the head. In response, the accused brandished a knife and said, ‘I will cut you to bits if you try
it’. The issue raised on appeal was whether a conditional threat to use force can amount to an assault.
On appeal:]
Judgment
Hogarth J: The first question arising in these circumstances is whether, putting aside for the moment
the consideration of whether the appellant was acting in reasonable self-defence, his actions constituted
an assault.
A person is guilty of an assault if he unlawfully displays force against another in such a way that he
creates in the mind of that other the belief that force is about to be used against him, provided he intended
to create such belief. The gist of the offence is the creation of a fear in the mind of the person assailed that
unlawful force is about to be used against him. On the facts of the present case this raises the question
whether a threat to use force, accompanied by words which indicate that the threat is conditional upon
an unlawful act of the man threatened, Drummond, can constitute an assault in the eyes of the law. It
is well established that a gesture which could otherwise constitute an assault will not be an assault if it
is accompanied by words which clearly indicate that, notwithstanding the gesture, the man making the
apparent threat does not in fact intend to use force.
Thus in the old case of Tuberville v Savage (1669) 1 Mod 3 (86 ER 684), the defendant attempted
to justify an assault upon the plaintiff as being in self-defence when it was proved that the plaintiff had
placed his hand upon his sword saying, ‘Were it not assize time I would not take such language from you.’
It was held that these words clearly indicated that, in spite of this gesture, the plaintiff did not intend to use
his sword for the purpose of attacking the defendant and consequently the defendant was unable to rely
upon the defence of self-defence. What is to be said, however, of a gesture which of itself would amount
to a threat of violence, accompanied by words which indicate that the violence will only be offered in fact
if the person threatened does or fails to do some act?
Or where the assailant does some act which of itself is equivocal, but which is accompanied by words
indicating an intention to use violence if the person threatened does or fails to do some particular thing?
Where a threat was made to apply force if a police constable approached the assailant in order to do his
duty, it was held by the Court of Appeal of New Zealand that the mere fact that the threat was conditional
did not prevent its constituting one of the elements necessary for establishing the assault (Police v
Greaves [1964] NZLR 295); and similarly, if a threat is made to apply force unless the person assailed
complies with some unlawful demand, eg as pointed out in Police v Greaves, the threat of a highwayman,
‘Your money or your life’. In such case, if a pistol is pointed at the victim it would be idle to say that there
was not a threat to apply force to the person of another in circumstances in which the person making the
threat had, or at least had caused the other to believe on reasonable grounds that he had, present ability
to effect this purpose; and therefore an assault had been committed. But what of the case where a threat
is made to apply force unless the person threatened desists from some unlawful course of action which
he proposes? The problem was discussed by Dr Glanville Williams in his article ‘Assault and Words’, 1957
Crim LR 219, where at pp 222–3 he discusses some American authorities. In State v Myerfield (1867)
61 NC 108, Pearson CJ explained the law of conditional threat as follows: when the threat to strike is
explained by words showing that it is not the intention of the party to strike, this is not an assault. (This
is consistent with Tuberville v Savage (1669) 1 Mod 3 (86 ER 684).) On the other hand, when the threat
is made with a condition precedent showing that it is not the intention to strike provided that the condition
is performed by the other, a distinction is taken. If the condition is one which the party has the right to
impose, the threat to strike unless the condition is complied with is not an assault; so that where a man,
being forbidden, is about to enter my house and I raise a stick and say, ‘If you attempt to enter I will knock
you down’, there is no assault even though it would be battery for me to carry out my threat (Dr Williams
points out that this dictum is inconsistent with the English case of Read v Coker (1853) 13 CB 850
(138 ER 1437)). But if the condition is one that the party has no right to impose, the threat to strike is an
assault notwithstanding the condition. Pearson CJ went on to say that there is an exception to the general
rule when the threat to strike is made with a deadly weapon, in which case the law does not allow the case
to be qualified by the imposition of a condition even though it is one that the party had the right to impose.
Dr Williams pointed out that in English law there is no authority for distinguishing between threatening
with a deadly weapon and other threats of extreme force. He takes the view that a threat of extreme force
is unlawful if the use of the force would be unlawful. He is supported in this view by another American
284 PART 3: Assault
case, Hairston v The State (1877) 54 Miss 689. In that case the defendant pointed a pistol at another and
said, ‘I will shoot any man who attempts to stop my mules’. It was held that the defendant could not on
these facts be convicted of an assault with intent to murder, because the intent in such an assault must
be absolute and not conditional; but the Court intimated that he could have been convicted of an assault
simply because he had threatened more force than he could lawfully have used. If the mules had been
stopped he could have used moderate force, as by striking with the hand or threatening to do so. But
since he could not have justified actual shooting to prevent the mules being stopped, he could not justify
threatening to do so. Dr Williams points out that this general line of argument accords with that implicit in
Read v Coker (1853) 13 CB 850 (138 ER 1437).
I have come to the conclusion that the views expressed by Dr Williams correctly state the law as it is
to be applied in this State. In the present case it seems to me that the proper test to determine whether
or not there was an assault is to ask, if Drummond had attempted to strike the appellant in the manner
which he threatened, would the appellant have been justified in defending himself by using the table
knife? If he would have been justified in doing so, then he was entitled to make the conditional threat,
and there was no assault.
As the matter was argued in the Court below, the case presented for the appellant was that the
defendant did no more than offer reasonable force in self-defence, and that for that reason the force
offered was not unlawfully offered. In this connection it seems to me that it would be dangerous to
take the appellant at his word when he threatened to cut Drummond ‘to bits’; but I have no doubt that
the threat was intended to convey the meaning that he would use the knife to stab Drummond, or at least
to stab at him if he attacked the appellant. This problem poses the same question as that which I raised
earlier in considering whether a conditional threat of violence could constitute an assault. On this the
Special Magistrate said: ‘The defendant in the case before me had a knife in his car, and I feel that what
he did was beyond the ordinary bounds of self-defence.’ It follows that, on his finding, the appellant’s
conditional threat to use violence was a threat to use more force than the Special Magistrate would have
considered reasonable in the circumstances.
[Appeal dismissed.]
Questions
6.10 Did the accused allege that he was acting in self-defence?

6.11 Who perpetrated the first assault?
6.12 For what specific conduct was the accused convicted?
6.13 Upon what condition was the accused’s threat made?
6.14 Who made the first threat?
Here there was a gesture by D that amounted to a threat of violence, but this gesture was
accompanied by words that indicated that the violence would only follow if V came near D. But
what if there is a threat to assault unless V desists from an unlawful act? The Supreme Court
focused on an article by Glanville Williams, in which he distinguished between:
• threats to strike negated by words (‘hypothetical threats’); and
• threats to strike where the threat is made with a condition precedent—meaning that there is
no intention to strike providing that the condition is performed by the other (‘conditional
threats’).
However, conditional threats fall within two categories, namely: (1) where the condition is
one which the party has a legal right to impose (here there is no assault unless excessive force is
threatened—see below); and (2) where the condition is one which the party has no legal right
to impose (here the threat to strike is an assault notwithstanding the condition).
Hence, the former type of condition precedent envisages the situation where D threatens
another with physical force if the other attempts to enter D’s house. Here, there is no assault
even if the threat is carried out due to the other person’s failure to comply with the condition
precedent. However, Williams also points out that where a person makes a conditional threat
under circumstances where he has a legal right to impose the condition, he will nonetheless have
committed an assault if the amount of force threatened was more than the law would allow him
to use if the other had failed to comply with the condition. The force in such situations must be
no more than the law would allow if the lawful condition were not complied with. Herein lies
the basis of the decision in Rosza’s case.
Questions
6.15 In Rosza, was the accused successful in his plea of self-defence?

6.16 Was the condition imposed by the accused one that he had a legal right to impose?
6.17 If the condition imposed by the accused was one that he had no legal right to impose,
why was he convicted?
6.18 Was the force offered by the accused reasonable under the circumstances?
6.19 A threatens to shoot B unless B empties his pockets. Is there an assault?
6.20 B threatens to remove C’s hand from his shoulder unless C removes it himself
immediately. Is there an assault?
6.21 E threatens to shoot F if he enters onto his property. Is there an assault?
6.22 F threatens to shoot E if E does not permit F to enter onto E’s land. Is this an assault?
6.4 Temporal coincidence

Fagan v Metropolitan Police Commissioner
[1968] 3 All ER 442
(Queen’s Bench Divisional Court)
Judgment
James J: The appellant, Vincent Martel Fagan, was convicted by the Willesden magistrates of assaulting
David Morris, a police constable, in the execution of his duty on August 31, 1967. He appealed to quarter
sessions. On October 25, 1967, his appeal was heard by Middlesex Quarter Sessions and was dismissed.
This matter now comes before the court on appeal by way of case stated from that decision of quarter
sessions.
The sole question is whether the prosecution proved facts which in law amounted to an assault.
On August 31, 1967, the appellant was reversing a motor car in Fortunegate Road, London, NW10,
when Police Constable Morris directed him to drive the car forwards to the kerbside, and standing in front
286 PART 3: Assault
of the car pointed out a suitable place in which to park. At first the appellant stopped the car too far from
the kerb for the officer’s liking. Morris asked him to park closer and indicated a precise spot. The appellant
drove forward towards him and stopped it with the offside wheel on Morris’s left foot. ‘Get off, you are
on my foot,’ said the officer. ‘Fuck you, you can wait,’ said the appellant. The engine of the car stopped
running. Morris repeated several times ‘Get off my foot’. The appellant said reluctantly ‘Okay man, okay’,
and then slowly turned on the ignition of the vehicle and reversed it off the officer’s foot. The appellant
had either turned the ignition off to stop the engine or turned it off after the engine had stopped running.
The justices at quarter sessions on those facts were left in doubt as to whether the mounting of
the wheel on to the officer’s foot was deliberate or accidental. They were satisfied, however, beyond all
reasonable doubt that the appellant ‘knowingly, provocatively and unnecessarily allowed the wheel to
remain on the foot after the officer said “Get off, you are on my foot”’. They found that on those facts an
assault was proved.
Mr Abbas, for the appellant, relied upon the passage in Stone’s Justices’ Manual (1968), vol 1, p 651,
where assault is defined. He contends that on the finding of the justices the initial mounting of the wheel
could not be an assault and that the act of the wheel mounting the foot came to an end without there
being any mens rea. It is argued that thereafter there was no act on the part of the appellant which could
constitute an actus reus but only the omission or failure to remove the wheel as soon as he was asked.
That failure, it is said, could not in law be an assault, nor could it in law provide the necessary mens rea
to convert the original act of mounting the foot into an assault.
Mr Rant for the respondent argues that the first mounting of the foot was an actus reus which act
continued until the moment of time at which the wheel was removed. During that continuing act, it is said,
the appellant formed the necessary intention to constitute the element of mens rea and once that element
was added to the continuing act, an assault took place. In the alternative, Mr Rant argues that there can
be situations in which there is a duty to act and that in such situations an omission to act in breach of duty
would in law amount to an assault. It is unnecessary to formulate any concluded views on this alternative.
In our judgment the question arising, which has been argued on general principles, falls to be decided
on the facts of the particular case. An assault is any act which intentionally—or possibly recklessly—
causes another person to apprehend immediate and unlawful personal violence. Although ‘assault’ is
an independent crime and is to be treated as such, for practical purposes today ‘assault’ is generally
synonymous with the term ‘battery’ and is a term used to mean the actual intended use of unlawful force
to another person without his consent. On the facts of the present case the ‘assault’ alleged involved
a ‘battery’. Where an assault involves a battery, it matters not, in our judgment, whether the battery
is inflicted directly by the body of the offender or through the medium of some weapon or instrument
controlled by the action of the offender. An assault may be committed by the laying of a hand upon
another, and the action does not cease to be an assault if it is a stick held in the hand and not the hand
itself which is laid on the person of the victim. So for our part we see no difference in principle between
the action of stepping on to a person’s toe and maintaining that position, and the action of driving a car
on to a person’s foot and sitting in the car whilst its position on the foot is maintained.
To constitute the offence of assault some intentional act must have been performed: a mere omission
to act cannot amount to an assault. Without going into the question whether words alone can constitute
an assault, it is clear that the words spoken by the appellant could not alone amount to an assault; they
can only shed a light on the appellant’s action. For our part we think the crucial question is whether in
this case the act of the appellant can be said to be complete and spent at the moment of time when the
car wheel came to rest on the foot or whether his act is to be regarded as a continuing act operating until
the wheel was removed. In our judgment a distinction is to be drawn between acts which are complete—
though results may continue to flow—and those acts which are continuing. Once the act is complete it
cannot thereafter be said to be a threat to inflict unlawful force upon the victim. If the act, as distinct from
the results thereof, is a continuing act there is a continuing threat to inflict unlawful force. If the assault
involves a battery and that battery continues there is a continuing act of assault.
For an assault to be committed both the elements of actus reus and mens rea must be present at
the same time. The actus reus is the action causing the effect on the victim’s mind (see the observations
of Park B in R v St George (1840) 9 C & P 483, 490, 493). The mens rea is the intention to cause that
effect. It is not necessary that mens rea should be present at the inception of the actus reus; it can be
superimposed upon an existing act. On the other hand the subsequent inception of mens rea cannot
convert an act which has been completed without mens rea into an assault.
In our judgment the Willesden magistrates and quarter sessions were right in law. On the facts found
the action of the appellant may have been initially unintentional, but the time came when, knowing that the
wheel was on the officer’s foot, the appellant (1) remained seated in the car so that his body through the
medium of the car was in contact with the officer, (2) switched off the ignition of the car, (3) maintained
the wheel of the car on the foot and (4) used words indicating the intention of keeping the wheel in that
position. For our part we cannot regard such conduct as mere omission or inactivity.
There was an act constituting a battery which at its inception was not criminal because there was no
element of intention but which became criminal from the moment the intention was formed to produce
the apprehension which was flowing from the continuing act. The fallacy of the appellant’s argument is
that it seeks to equate the facts of this case with such a case as where a motorist has accidentally run
over a person and, that action having been completed, fails to assist the victim with the intent that the
victim should suffer.
We would dismiss this appeal.
Bridge J: I fully agree with my Lords as to the relevant principles to be applied. No mere omission to act
can amount to an assault. Both the elements of actus reus and mens rea must be present at the same
time, but the one may be superimposed on the other. It is in the application of these principles to the highly
unusual facts of this case that I have, with regret, reached a different conclusion from the majority of the
Court. I have no sympathy at all for the appellant, who behaved disgracefully. But I have been unable to
find any way of regarding the facts which satisfies me that they amounted to the crime of assault. This
has not been for want of trying. But at every attempt I have encountered the inescapable question: after
the wheel of the appellant’s car had accidentally come to rest on the constable’s foot, what was it that
the appellant did which constituted the act of assault? However the question is approached, the answer
I feel obliged to give is: precisely nothing. The car rested on the foot by its own weight and remained
stationary by its own inertia. The appellant’s fault was that he omitted to manipulate the controls to set
it in motion again.
Neither the fact that the appellant remained in the driver’s seat nor that he switched off the ignition
seem to me to be of any relevance. The constable’s plight would have been no better, but might well have
been worse, if the appellant had alighted from the car leaving the ignition switched on. Similarly I can get
no help from the suggested analogies. If one man accidentally treads on another’s toe or touches him
with a stick, but deliberately maintains pressure with foot or stick after the victim protests, there is clearly
an assault. But there is no true parallel between such cases and the present case. It is not, to my mind,
a legitimate use of language to speak of the appellant ‘holding’ or ‘maintaining’ the car wheel on the
288 PART 3: Assault
constable’s foot. The expression which corresponds to the reality is that used by the justices in the case
stated. They say, quite rightly, that he ‘allowed’ the wheel to remain.
With a reluctantly dissenting voice I would allow this appeal and quash the appellant’s conviction.
[Appeal dismissed.]
See also R v Miller [1982] 2 All ER 386.
Questions
6.23 With what offence was the accused charged?

6.24 Had D applied physical force against V?
6.25 What was the accused’s defence?
6.26 According to the court, can mens rea be attributed after an act is committed?
6.27 If mens rea is to be attributed, must that act be continuing?
6.28 Compare Fagan with Thabo Meli v The Queen [1954] 1 WLR 228 (see Chapter 3). Do
you consider the concept of temporal coincidence that was used in these cases to be
result-oriented and elastic?
In expounding on the doctrine of temporal coincidence, the English Divisional Court in

Fagan distinguished between criminal acts that are complete—‘though results may continue to
flow’—and those acts that are regarded as ‘continuing’. If the act was complete when the wheel
came to rest on the officer’s foot, then there was no assault for want of temporal coincidence. If
the act could be regarded as one that continued until the wheel was removed from the officer’s
foot, temporal coincidence was present and an assault was committed. The court ultimately
held that D’s initial act of driving onto the officer’s foot (when no mens rea existed) was one
continuous act and, hence, there was temporal coincidence at the moment D resolved to delay
removing the wheel from the officer’s foot. The conviction was therefore affirmed.
It is noteworthy that the Divisional Court was of the opinion that a voluntary omission to
act (where there was a legal duty to do so) could not serve as a predicate for common assault. The
reason was not explained and there appears to be no sound reason in logic or principle for this
view. As Fagan is not binding on the Australian courts, in our view the better reasoned approach is
that because D’s negligent conduct placed V in danger, D was under a legal duty to take remedial
action once he realised the wheel had come to rest on V’s foot. D’s conscious decision not to take
immediate action, therefore, amounted to a voluntary omission to act that could ground liability
for common assault. If so, then the temporal coincidence problem is solved without the need to
resort to the type of tortured and result-oriented reasoning employed in Fagan.
6.5 Aggravated assault

6.5.1 Assault resulting in a particular level of harm
In addition to common assault, there are a large number of more serious assault offences that are
normally referred to as ‘aggravated assaults’. In this context, ‘assault’ is used in a generic fashion
to refer to a non-consensual form of touching, as not all of the elements of common assault need
to be established for most of these offences. The most common and serious types of aggravated
assaults are those resulting in a particular level of harm. The terminology used to describe the
requisite level of harm differs among the various jurisdictions. Generally, however, there are two
different levels of harm: injury or actual bodily harm and serious injury or grievous bodily harm.
6.5.2 The actus reus of aggravated assault

In New South Wales, South Australia, and Victoria, it is an offence to commit an assault
occasioning actual bodily harm or injury. The precise wording differs in each jurisdiction. In
New South Wales, the term used is ‘actual bodily harm’: Crimes Act 1900 (NSW) s 59. In
Victoria, the equivalent term is ‘injury’: Crimes Act 1958 (Vic) s 15; the term ‘harm’ is used
in South Australia: Criminal Law Consolidation Act 1935 (SA) ss 21, 24.
In New South Wales the term ‘actual bodily harm’ is accorded its normal meaning and
is generally defined to include ‘any hurt or injury calculated to interfere with the health or
comfort of V. Such hurt or injury need not be permanent but must … be more than merely
transient or trifling’: R v Donovan [1934] 2 KB 498 at 509. Harm is not confined to physical
injury and can extend to psychiatric injury: R v Ireland; R v Burstow [1997] 4 All ER 225.
In New South Wales, the Court of Criminal Appeal commented that: ‘If a victim has been
psychologically injured in a very serious way, going beyond merely transient emotions,
feelings and states of mind, that would likely amount to actual bodily harm’: McIntyre
v The Queen [2009] NSWCCA 305 at [45], citing Li v The Queen [2005] NSWCCA 442
at [45]. In Victoria, injury is statutorily defined in s 15 of the Crimes Act 1958 as including
‘physical injury… or… harm to mental health—whether temporary or permanent’. Further,
s 15 defines physical injury as including ‘unconsciousness, disfigurement, substantial pain,
infection with a disease and the impairment of bodily function’. In South Australia, harm
is defined slightly more broadly. Section 21 of the Criminal Law Consolidation Act 1935
(SA) provides:
‘harm’ means physical or mental harm (whether temporary or permanent); …

‘mental harm’ means psychological harm and does not include emotional reactions such as
distress, grief, fear or anger unless they result in psychological harm;
‘physical harm’ includes—

(a) unconsciousness;
(b) pain;
(c) disfigurement;
(d) infection with a disease; …
The next most serious level of injury is commonly known as grievous bodily harm. It is
an offence in all jurisdictions to cause this level of injury to another person. Under Victoria’s
pervasive regime of non-sexual and non-fatal assaults, the term used is ‘serious injury’, which is
defined under s 15 of the Crimes Act 1958 (Vic) as:
(a) an injury (including the cumulative effect of more than one injury) that—
(i) endangers life; or
(ii) is substantial and protracted; or
290 PART 3: Assault
(b) the destruction, other than in the course of a medical procedure, of the foetus of a
pregnant woman, whether or not the woman suffers any other harm.
‘Injury’ is defined by s 15 as physical injury or harm to mental health, whether temporary or

permanent. Section 15 defines ‘physical injury’ as including ‘unconsciousness, disfigurement,
substantial pain, infection with a disease and an impairment of bodily function’; and ‘harm to
mental health’ as including ‘psychological harm [but not] an emotional reaction such as distress,
grief, fear or anger unless it results in psychological harm’.
‘Serious harm’, which is the term used in South Australia, has a narrower meaning than
‘serious injury’ in Victoria. ‘Serious harm’ is defined pursuant to s 21 of the Criminal Law
Consolidation Act 1935 (SA) as:
(a) harm that endangers a person’s life; or

(b) harm that consists of, or results in, serious and protracted impairment of a physical or
mental function; or
(c) harm that consists of, or results in, serious disfigurement.
The term ‘grievous bodily harm’ is used in New South Wales: Crimes Act 1900 (NSW)
ss 35, 54.
Whether an injury constitutes actual bodily harm or grievous bodily harm is a question of
fact to be determined by the jury. In New South Wales, ‘grievous bodily harm’ includes ‘any
permanent or serious disfiguring of the person’: Crimes Act 1900 (NSW) s 4. It was commented
in New South Wales ‘that grievous bodily harm means really serious bodily injury is the direction
usually given where grievous bodily harm is an element or part of an element of an offence …
[and that it was in the instant case] unnecessary for the trial judge to direct the jury that they
should take into account the quantity and quality of the injury’: Rosenberg v The Queen [2009]
NSWCCA 148 at [196].
In South Australia, assaults which cause harm or serious harm are further divided into
‘basic’ and ‘aggravated’ forms of the crime, with the aggravated versions carrying higher
penalties. Pursuant to s 5AA of the Criminal Law Consolidation Act 1935 (SA), circumstances
of aggravation include where the accused: deliberately and systematically inflicted severe pain
on the victim; used or threatened to use an offensive weapon when committing the offence;
committed the offence against a police officer or prison officer; committed the offence against a
child or person aged over 60 years, or the accused’s spouse; or committed the offence to dissuade
the victim from taking legal proceedings.
6.5.2.1 ‘Cause’ or ‘occasion’

There are differences among the jurisdictions regarding the verb that is used in conjunction with
the terms ‘actual bodily harm’, ‘grievous bodily harm’, or in Victoria, ‘injury’ or ‘serious injury’.
The verb may be ‘causes’ (see Crimes Act 1900 (NSW) ss 33, 35); ‘occasioning’ (see Crimes Act
1900 (NSW) s 59); or ‘causing’ (Crimes Act 1900 (NSW) s 54; Criminal Law Consolidation Act
1935 (SA) ss 23, 24; Crimes Act 1958 (Vic) ss 16, 17, 18, 24).
Little now turns on these distinctions. The term ‘cause’ is used in all jurisdictions and, as
noted in Chapter 2, the principle of causation has a broad application that transcends cases of
unlawful homicide. The term ‘occasioning’ would appear to have a meaning that is similar, if not
identical, to the term ‘cause’.
6.5.3 Mens rea for aggravated assault

6.5.3.1 Intention and recklessness
The mens rea required for assaults resulting in some level of harm is similar to that of common
assault; that is, two forms of mens rea will suffice: intention and recklessness. However, there are
two issues that emerge in relation to the mens rea element of the more serious forms of assault.
The first is whether the intention or recklessness relates to the use of force or the injury caused
(whether the offence is a ‘conduct’ or ‘result’-oriented crime). The second issue is the standard
of recklessness to be applied. Must the accused foresee the probability of injury, or will foresight
of a mere possibility of injury suffice? The answer to these issues differs across the jurisdictions.
In Victoria the position was set out in R v Campbell [1997] 2 VR 585 where it was held that
in relation to the offence of recklessly causing serious injury and all other statutory non-sexual
assault offences set forth in ss 16–33 of the Crimes Act 1958 (Vic), the degree of recklessness
required is foresight of the probability of proscribed harm.
In South Australia, recklessness will also suffice where the assault relates to harm or serious
harm. Under s 21 of the Criminal Law Consolidation Act 1935 (SA), however, it is limited to
circumstances where the accused:
(a) is aware of a substantial risk that his or her conduct could result in harm or serious
harm (as the case requires); and
(b) engages in the conduct despite the risk and without adequate justification.
In New South Wales, certain of the aggravated assault provisions defined mens rea wholly or
partly by the use of the term ‘maliciously’. This was defined in the now repealed s 5 of the Crimes
Act 1900 (NSW). The concept of malice could be established by proof, inter alia, of intention or
recklessness. It had the potential to confuse juries. The mens rea of these assaults is now defined
in whole or part by the requirement that the accused has acted intentionally, or recklessly. The
concept of ‘recklessness’ is defined in s 4A thus: ‘For the purposes of this Act, if an element of an
offence is recklessness, that element may also be established by proof of intention or knowledge’.
It follows that an offence of recklessness can be committed intentionally, recklessly, or with

relevant knowledge (for example, with knowledge that act A will cause result B, even if B is not
intended).
Section 33 of the Crimes Act 1900 (NSW), inter alia, creates offences of wounding with
intent to cause grievous bodily harm and causing grievous bodily harm with intent to cause
grievous bodily harm. These offences require proof of actual intention to cause this quantum
of harm. Recklessness as to this will not suffice: R v McKnoulty (1995) 77 A Crim R 333
at 345; R v Belfon [1976] 3 All ER 46 at 53; R v Purcell (1986) 83 A Crim R 45 at 474–8. This
conclusion is reinforced by the recent changes to the Act in relation to aggravated assaults. If the
legislature had intended that the s 33 offences (and other cognate offences of intention) could
be committed intentionally or recklessly, the term ‘recklessly’ rather than ‘intentionally’ would
have been used.
Section 35, inter alia, creates offences of recklessly causing grievous bodily harm, and reckless
wounding. Where an aggravated assault can be committed recklessly, authority holds that it is
sufficient that the accused (at the minimum) foresees that it is possible (rather than probable)
that some harm will result to the person of the victim: R v Coleman (1990) 19 NSWLR 467
292 PART 3: Assault
at 475; R v Stokes (1990) 51 A Crim R 25 at 40; Hogan v The Queen (2008) 186 A Crim R 52;
[2008] NSWCCA 150 at [65]; Chen v The Queen (2013) NSWCCA 116 at [34]. The mens rea
for offences such as those in s 35 is the same as for common assault: they are distinguished only
by the requirement that a greater quantum of harm result. The accused does not have to have
foreseen this quantum as possible; to reiterate, s/he merely has to foresee the possibility that
some harm would result.
An intention to inflict grievous bodily harm can be inferred from a single blow: with a fist:
Quach v The Queen [2008] NSWCCA 284 at [35]ff.
R v Westaway
(1991) 52 A Crim R 336
(Court of Criminal Appeal, Victoria)
Judgment
Brooking J: In the present case, the learned trial judge told the jury that the requirement that serious
injury be intentionally caused was met if the accused intended to do the act which in fact caused serious
injury. It was not necessary that the accused should have intended to cause serious injury. If the accused
intended to do an act, meant to do that act, and that act in fact caused serious injury, the offence was
committed. There was on the presentment an alternative charge of recklessly causing serious injury. His
Honour told the jury that serious injury was recklessly caused if the accused caused serious injury and at
the time of the act causing serious injury he was aware that the act involved the risk of causing serious
injury and was indifferent as to whether the act caused serious injury.
At the trial exception was taken by the applicant’s counsel to that part of the charge which dealt with
the requirement of intention in the more serious offence, it being put that a specific intent to cause serious
injury was an ingredient of the crime. His Honour declined to redirect. It is clear that in this respect the
learned judge fell into error. When s 16 refers to a person who ‘intentionally causes serious injury’, what
it requires to have been intentionally done is the causing of serious injury. The section does not speak of
intentionally doing an act which causes serious injury. It speaks of intentionally causing serious injury. The
intention required is an intention to do that.

The word ‘intentionally’ in s 16 is superfluous on the view taken by his Honour, for if the section simply
made it an offence to cause serious injury an Australian court would be bound to hold that the act causing
serious injury must have been intentionally done for an offence to have been committed: O’Connor (1980)
146 CLR 64.
If the requirement of intention in s 16 is attached not to the causing of serious injury but merely to
the doing of the act which in fact causes serious injury, then the requirement of recklessness in s 17 is
presumably attached not to the causing of serious injury but merely to the doing of the act which in fact
causes serious injury. But the learned judge’s approach was not consistent here, for his Honour directed
the jury that ‘recklessly’ in s 17 required that the accused should have been aware that his act involved
the risk of causing serious injury and have been indifferent as to whether the act caused serious injury.
Consistency of approach would have required his Honour to tell the jury that ‘recklessly’ in s 17 required
not recklessness as to the causing of serious injury but recklessness as to the mere doing of the act which
in fact caused serious injury.
It would be extraordinary if s 16 made it an offence punishable by up to 15 years imprisonment to

do an act intentionally wherever that act in fact caused serious injury, even though the serious injury was
unintended and was indeed improbable and even not reasonably foreseeable.
[Young CJ and Marks J agreed with Brooking J. Appeal allowed and a new trial ordered.]
Questions
6.29 With what statutory assault offences was the defendant charged?
6.30 According to the Court of Criminal Appeal, how did the trial judge err in his direction
to the jury? How should the jury have been directed?
6.31 According to the court, must D cause serious injury, intend to cause serious injury, or
both?
6.32 In obiter dicta, did the court specify which type of recklessness will suffice in order
to convict under s 17? In light of the High Court’s earlier ruling in R v Crabbe (1985)
156 CLR 464 (see Chapter 3), was the trial judge correct in directing the jury that
recklessness required proof that the accused was not only aware of the risk of serious
injury, but indifferent to the risk as well?
6.33 In regard to the s 16 charge, upon which basic principles of criminal law was the trial
judge confused in his direction to the jury?
6.34 Do you agree with the Court of Criminal Appeal’s interpretation of the statute? Is it too
literal? Not literal enough?
Section 16 defines an offence that was then punishable by up to fifteen years’ imprisonment;
it is now punishable by up to twenty years’ imprisonment. With that in mind, Brooking J
opined that ‘[i]t would be extraordinary if s 16 made it an offence punishable by up to 15 years
imprisonment to do an act intentionally wherever that act in fact caused serious injury, even
though the serious injury was unintended and was indeed improbable and even not reasonably
foreseeable.’
6.5.3.2 Negligence
At common law, there is no crime of negligent assault. In New South Wales and Victoria,
however, it is a statutory offence to cause serious harm or grievous bodily harm by a negligent
act or omission: Crimes Act 1900 (NSW) s 54; Crimes Act 1958 (Vic) s 24. One court viewed
the concept of negligence as being synonymous with that required for negligent manslaughter;
that is, the negligence must have ‘gone beyond a mere matter of compensation between subjects
and to have shown such a disregard for life and safety of others as to amount to a crime against
the State and conduct deserving of punishment’: Clout v Hutchinson (1950) 67 WN (NSW)
203 at 203, citing R v Bateman (1925) 19 Cr App R 8 at 111–12. The scope of liability for
negligently causing serious harm is more limited in South Australia; it only applies to situations
where the accused has a duty of care toward the victim: Criminal Law Consolidation Act 1935
(SA), ss 14, 30 (strict liability).
The definition of ‘negligent’ was considered by the Full Supreme Court of Victoria in
R v Shields.
294 PART 3: Assault
R v Shields
[1981] VR 717
Judgment
[The Full Court (Young CJ, Anderson and Brooking JJ) delivered the following judgment:] On 10 April
1980 the applicant, Terrence John Shields, was presented in the County Court at Melbourne, on four
counts. By count 1 he was charged with culpable driving causing death, the form of culpability specified in
the presentment being negligence: Crimes Act 1958, s 318(2) (b). By counts 2, 3, and 4 he was charged
with negligently causing grievous bodily injury: Crimes Act 1958 s 26, the alleged victim being a different
person in the case of each of those three counts.
All four counts arose out of an incident which occurred shortly after midnight on the night of
9–10 December 1977, when a motor car driven by the applicant on Nepean Highway, Brighton, struck
four young men who were on the roadway, killing one of them and injuring the others. On 16 April 1980
the jury brought in a verdict of not guilty on counts 1, 2 and 3 and guilty on count 4. On the following
day the learned judge fined the applicant $1500, in default 12 months’ imprisonment, and made an
appropriate order in respect of his driver’s licence.
The applicant now applies to this Court for leave to appeal against his conviction, the first of the
grounds relied upon being that the learned judge misdirected the jury as to the meaning of ‘negligently’
in s 26 of the Crimes Act 1958. By s 26: ‘Whosoever by negligently doing or omitting to do any act
causes grievous bodily injury to any other person, shall be guilty of a misdemeanor, and shall be liable to
imprisonment for a term of not more than three years.’
The learned judge directed the jury that the negligence necessary to sustain the charges under s
26 was less serious than the negligence necessary to sustain the charge of culpable driving and that the
negligence required under s 26 need not be gross but must be serious. Mr Redlich, who appeared for the
applicant in this Court, submitted that this direction was erroneous, his primary submission being that
the negligence required by s 26 was the same as the negligence required to constitute manslaughter by
negligence. The Solicitor-General put as the preferred view the submission that s 26 requires only the
negligence that will support an action for damages; in the alternative he contended that the direction
given in Bull’s case was correct.
Section 26 was first enacted long before the motor car appeared on the roads. It is quite general in
its application to negligent acts and omissions. A wide variety of situations may readily be conceived in
which conduct could be regarded by the tribunal of fact as falling just on the wrong side of the line so as
to give rise to civil liability for negligence and in which the injuries sustained, while far from gross, were
yet capable of being viewed as grievous bodily injury. It seems unlikely to have been intended that an
indictable offence should be committed by the man who negligently slams a carriage door and crushes
a passenger’s finger, or by the dentist who, in drawing a tooth, negligently breaks the patient’s jaw, or by
the pedestrian who, hurrying along the footpath, negligently bumps into another, causing him to lose his
balance and fall, breaking a leg, assuming in each case that the negligence was no more than such as
would sustain an action for damages.
The suggestion of a halfway house, lying between civil negligence and the negligence of felonious
homicide, while less obnoxious to the moral philosopher, presents the lawyer with difficulties. The distinction
between negligence sounding in damages and negligence for the purposes of the law of homicide has
itself been elusive. Even at the present day it is impossible to draw the distinction in terms which do
not require a discretionary determination or value judgment on the part of the jury, either by reason of
the epithet used to describe the degree of negligence required or because of the direction to consider
whether the act merited criminal punishment. If the law is to recognise a tertium quid, lying somewhere
between civil negligence and that which will make the actor guilty of manslaughter, the difficulty of
drawing lines of demarcation is increased. The negligence need not be ‘gross’ but must be ‘serious’.
What is the jury to be told if they ask when negligence ceases to be merely serious and becomes gross?
The act or omission must merit criminal punishment, but not in the same sense as negligence sufficiently
culpable to constitute manslaughter. Since s 26 stands alone in the law of causing grievous bodily injury
by negligence (of whatever degree), the degree of culpability necessary for the purposes of s 26 cannot be
explained to the jury by directing them that the conduct must be such as to merit punishment under s 26
but not such as to merit punishment for some more serious offence constituted by the negligent causing
of grievous bodily injury. Any attempt to expound the sense in which negligence must for the purposes
of s 26 merit criminal punishment by instructing the jury that it need not be so culpable as to merit
punishment for manslaughter, or for culpable driving causing death by negligence, is open to the objection
that the jury is being asked to compare negligence causing serious injury with negligence causing death.
Parliament may create summary or indictable offences in which one ingredient is mere civil
negligence. Parliament may create summary or indictable offences in which one ingredient is negligence
lying somewhere between civil negligence and the negligence of the law of homicide, and if Parliament
does this, some appropriate means for a magistrate to direct himself or a judge to direct a jury must be
found. In Dabholkar v R [1948] AC 221 the Judicial Committee determined that the negligence required
by a provision of the Tanganyika Penal Code was of a higher degree than the negligence which gave rise
to a claim for compensation but was not of so high a degree as that which was necessary to constitute
manslaughter.
According to Glanville Williams, Criminal Law: The General Part (2nd edn), para 38, ‘It is a tenable
proposition that where a criminal statute demands the use of reasonable care, it must be interpreted
prima facie as penalizing only criminal, that is, gross negligence.’ Brett & Waller, Criminal Law (4th edn),
para 3.17, treat s 26 of the Crimes Act 1958 as confined to gross negligence.
In construing s 26 of the Crimes Act 1958 regard must be had to its history. Leaving aside the
increase in maximum penalty from two years to three years made by Act No 7645, s 26 has been in the
same terms since 1915, when it was to be found as s 23 of the Crimes Act 1915. In the Crimes Act 1890
and in the Criminal Law and Practice Statute 1864 the provision appeared as s 24 and in these two Acts,
apart from a difference in punctuation, the section was in the same terms, which did not differ materially
from the section as in force from 1915 onwards. Section 24 of the Acts of 1864 and 1890 was as follows
(leaving aside the difference in punctuation):
Whosoever by negligently doing or omitting to do any act shall cause grievous bodily injury to any
other person shall be guilty of a misdemeanor and being convicted thereof shall be liable at the
discretion of the Court to be imprisoned for any term not exceeding two years.
In the Act of 1864 s 24 appeared in a division headed ‘Acts causing or tending to cause Danger to
Life or Bodily Harm’ and the other sections comprising that division appear to have been drawn from
the Imperial Offences against the Person Act 1861 (24 & 25 Vict c 100). Section 24 itself came from a
296 PART 3: Assault
different source, being Act 25 Vict No 146 of the Parliament of Victoria, ‘An Act for the Punishment of any
Person who shall by his negligence cause grievous bodily injury to any other Person’. By s I of that Act
which passed in 1862:
If any person shall by negligently doing or omitting to do any act cause grievous bodily injury to any
other person he shall be deemed guilty of a misdemeanor.
Section II provided for the apprehension of offenders.

The preamble of Act No 146 is illuminating:
Whereas a person who by his negligence causes the death of any other person is deemed guilty of a
felony but there is in many cases no provision for the punishment of a person who by his negligence
causes to another grievous bodily injury not resulting in death and whereas it is expedient that the
law should be amended in this respect so that every person guilty of any such negligence as last
aforesaid shall be liable to be punished as hereinafter mentioned …
Where the enactment is not expressed in unambiguous terms recourse may be had to the preamble
to ascertain what was the occasion for the alteration of the law: Bowtell v Goldsbrough Mort & Co Ltd
(1905) 3 CLR 444, at p 451. The preamble shows clearly that the intention of the legislature, in creating
this offence in 1862, was to impose criminal liability for causing grievous bodily injury in circumstances
in which, had death resulted, the offender would by reason of his negligence have been guilty of
manslaughter. It may be noted, as a matter of interest, that s 201 of the draft Code which in 1878
formed an appendix to the report of the Royal Commission into the Criminal Code Bill (which Commission
comprised Lord Blackburn, Lush and Barry, JJ and Sir James Stephen) made it an offence, under the
heading ‘Negligent acts punishable with two years imprisonment’, to cause, not grievous bodily injury, but
actual bodily harm to any person ‘under such circumstances that if death had been caused’ the offender
‘would have been guilty of manslaughter’.
Even without the assistance of the preamble to the Victorian Act, we would have concluded that
the legislature, in creating in 1862 the misdemeanor of causing grievous bodily injury to a person by
negligently doing or omitting to do any act, was concerned with negligent acts or omissions such as would
have made the offender guilty of manslaughter had death resulted from them. In 1862 it was common for
juries on manslaughter trials to be directed in terms of ‘negligence’, or in terms of both ‘negligence’ and
‘culpable negligence’ without differentiation between those two terms; it was also common for juries to be
directed in terms of ‘culpable negligence’ or in terms of ‘gross negligence’ or some like expression. At the
Shrewsbury Summer Assizes on 29 July 1874 Lush J, in charging a jury spoke of ‘gross negligence’; but
on the very next day his Lordship directed the jury on another manslaughter trial in terms of ‘negligence’
only: R v Finney (1874) 12 Cox CC 625; R v Jones (1874) 12 Cox CC 628.
The question of the extent to which, apart from statute, the criminal law imposes responsibility for
negligent acts or omissions otherwise than in relation to homicide need not be explored. For it is clear that
such responsibility is imposed in respect of a handful of uncommon offences at the most. Manslaughter
is, and was in 1862, for practical purposes the criminal offence in relation to which at common law a
negligent act or omission could result in conviction. In a statute making the negligent causing of grievous
bodily injury a misdemeanor it is, we consider, quite apart from the guidance afforded by the preamble, to
the criminal law in general and to the law relating to manslaughter in particular, that resort should be had
in determining the meaning of the expression ‘negligently’.
Having regard to the preamble of the Act of 1862 and to the terms in which juries were at the time
of that Act directed in cases of manslaughter by negligence, we think it clear that the section under
consideration was concerned with negligence such as would constitute the crime of manslaughter.
The view which we have taken of the effect of s 26 makes it unnecessary to consider any of the other
grounds taken in the notice of application for leave to appeal against conviction.
Since the applicant was acquitted on the count of culpable driving, a new trial should not be ordered
on the count of negligently causing grievous bodily injury to Butler. The application for leave to appeal
against conviction will be granted, and the appeal treated as instituted and heard instanter and allowed.
The conviction and sentence are quashed and a judgment and verdict of acquittal will be entered in
respect of the count upon which the applicant was convicted.
Questions
6.35 Is negligently causing serious injury an indictable offence?

6.36 Had V died, what offence could D be charged with?
6.37 What standard of negligence is required? Is it the same as in civil cases?
6.38 What is meant by ‘gross’ negligence?
The Full Supreme Court considered the history of the section and its predecessors and had
special regard to the fact that the offence was indictable and, at the time of the judgment, carried
a maximum prison sentence of three years. The court concluded that ‘the legislature, in creating
… the misdemeanour of causing [serious injury] to a person by negligently doing or omitting
to do any act, was concerned with negligent acts or omissions such as would have made the
offender guilty of manslaughter had death resulted from them.’
The court went so far as to approve the direction in Nydam v The Queen [1977] VR 430,
with appropriate modification for the circumstances of assault:
The direction should be based upon that which would be appropriate to a charge of
manslaughter, the usual manslaughter direction being modified so as to reflect the
circumstance that s [24] is concerned with [serious injury]. Accordingly the jury may be
directed that the act or omission must have taken place in circumstances which involved
such a great falling short of the standard of care which a reasonable man would have
exercised, and which involved such a high risk that [serious injury] would follow, that the
act or omission merits punishment under the criminal law.
You will recall that in Nydam (see Chapter 5), the Full Supreme Court added that ‘[t]his
formulation proceeds on the footing that the accused man did not in fact advert (although a
reasonable man would have adverted) to the probability that death or grievous bodily harm
would ensue’ (emphasis added).
6.5.4 Other forms of aggravated assault

Before concluding the discussion on aggravated assaults, it should be noted that there are two
other broad categories of aggravated assault.
298 PART 3: Assault
(1) Assaults accompanied by a specific form of intention—this category applies where an

accused has the mens rea for common assault and an additional intention. The additional
intention can take a variety of forms. In all three jurisdictions it is an offence to commit
an assault with the intention to commit another crime: Crimes Act 1900 (NSW) s 61K;
Criminal Law Consolidation Act 1935 (SA) s 270B; Crimes Act 1958 (Vic) s 31. It is also
an offence in New South Wales and Victoria to commit an assault with intent to resist or
prevent the lawful apprehension of a person: Crimes Act 1900 (NSW) s 58; Crimes Act
1958 (Vic) sub-s 31(1)(c).
(2) Assaults committed on people belonging to a particular class—assaults on certain classes
of persons that are deemed more vulnerable than others are regarded as more serious.
Depending on the jurisdiction, the classes of persons receiving special protection include
police offices, young persons, female members of the public service or judiciary, members
of the clergy, and seamen.
6.6 Consent
6.6.1 Overview
In the law of assault, it is a general maxim that a person who consents to the application of
force has no right to complain. As stated in R v Schloss (1897) Q CR 337 at 339, ‘[t]he term
assault of itself involves the notion of want of consent. An assault with consent is not an assault
at all.’ Though true in a very limited sense, this statement is subject to a major qualification;
namely, that as a matter of public policy the law does not allow persons to consent to the
infliction of actual or grievous bodily harm. There are, however, some notable exceptions to this
qualification: lawful sporting events, surgical procedures, and lawful chastisement. As you are
about to discover, each of these exceptions is subject to certain conditions.
6.6.2 Lawful sporting events

In Pallante v Stadiums Pty Ltd [1976] VR 331, the plaintiff brought an action against the
organisers of a boxing contest for negligence in respect of injuries affecting his eyesight which
he sustained in the course of a professional boxing event. The defendant argued that under
common law doctrine, a person may not consent to the infliction of actual bodily harm. Thus,
boxing amounted to an assault and the plaintiff ’s participation in an illegal activity prohibited
him from recovering damages.
The Full Supreme Court of Victoria held that while one cannot generally consent to the
infliction of actual bodily harm, the common law recognises an exception in the case of lawful
sporting events which are not inherently dangerous to life or limb and in which the infliction
of actual bodily harm is reasonably to be expected under the rules—provided the participants’
predominant intention does not become that of inflicting grievous bodily harm. If that does become
the predominant intention, the lawful activities exception does not apply.
Naturally, boxing is a sport that envisages harm, but as the Full Supreme Court explained
(at 337): ‘[1] in a spirit of anger or a hostile spirit and [2] with the predominant intention of
inflicting substantial bodily harm so as to disable or otherwise physically subdue the opponent
it may be an assault even though each of the contestants may have consented to the infliction of
blows on himself ’.
Pallante seems to ignore the fact that boxing contests often do involve hostility. On the other
hand, the pre-match comments should be regarded as part of the professional showmanship
and not be taken as evidence of hostile intentions. The key consideration seems to be the
‘professionalism’ of the enterprise. This is indicated by comparison with the courts’ approach
to ordinary fighting.
Does this exception extend to non-sporting event activities such as tattooing and
ear-piercing, which in all other respects satisfy the conditions set forth in Pallante? Although
this issue was not specifically addressed in Pallante, there does not appear to be any sound
justification for limiting the exception to activities that are properly categorised as ‘sporting
events’. Guidance on this question may be gleaned from the decision of the House of Lords in
R v Brown [1993] 2 All ER 75.
In Brown, the accused were homosexuals who for a number of years willingly engaged in
acts of sadomasochism in private locations. The police seized videotapes of the activities and
charged the accused with assault occasioning actual bodily harm and unlawful wounding. None
of the accused pressed for charges to be laid and there was no indication that the activities were
non-consensual. In writing for the majority of the House of Lords, Lord Templeman opined
that the question of whether consent should be recognised as a defence to a crime that involves
occasioning actual or grievous bodily harm should turn on whether the activity in question is
one that should be characterised as lawful in the same sense as, for example, boxing, rugby, or
surgical procedures. This, his Lordship opined, will depend on whether the perceived social
utility of the activity outweighs any risks of harm emanating from it to such an extent as to
render it a socially acceptable activity. Accordingly, Lord Templeman concluded that there were
no ostensible social benefits in homosexual sadomasochism; to the contrary, his Lordship opined
that the activities at issue involved nothing more than the deliberate infliction of violence for
no other reason than the indulgence of cruelty and degradation toward their victims that was
both injurious and serendipitously dangerous to them. Lord Templemam held, therefore that
under the particular circumstances of the case, consent was not a defence to the charges. In so
holding, the House of Lords reaffirmed the general rule that a person cannot lawfully consent
to the infliction of actual or grievous bodily harm unless the situation falls within one of the
established exceptions.
Although the House of Lords decided in favour of the prosecution on the facts of the case,
it is important to emphasise that the reasoning employed by the majority was similar to that of
the Full Supreme Court of Victoria in Pallante. In particular, the House of Lords was greatly
influenced by the fact that the drugs and alcohol consumed during the activities in question
made them inherently dangerous to life or limb. This appears to follow the spirit of Pallante and
suggests that lawful activities other than those characterised as ‘sporting events’ can indeed
qualify under the exception, provided that the other requisites of the Pallante exception are
satisfied. This view is buttressed by the fact that one can lawfully consent to the infliction of
actual bodily harm that is an expected and normal consequence of activities such as tattooing,
male circumcision, body piercing, and branding: see, for example, R v Wilson [1996] 3 WLR
125 (holding that it was lawful for a husband to brand his initials on his wife’s buttocks).
300 PART 3: Assault
6.6.3 Sexual activity

Neal v The Queen
[2011] VSCA 172
(Court of Appeal, Victoria)
Judgment
Nettle, Redlich JJA and Kyrou AJA: Turning to Ground 3(a), the applicant contended that the judge
erred by declining to direct the jury that, in order to convict the applicant of reckless conduct endangering
a complainant, the Crown had to establish that it was not reasonably possible that the complainant was
aware of the risk of HIV infection and had voluntarily assumed the risk or, alternatively, that the applicant
believed that the complainant was consenting to the assumption of the risk.
In his ruling on the point the judge said:
This Court is bound by the decision [in] Stein, which stated that ‘no recognition will be accorded to
the consent of an individual to the infliction of significant physical injury upon himself,’ as stated by
Justice Vincent in McIntosh. In the present matter, there is no argument contesting that HIV infection
is a serious injury. Thus, the fact that the injury sustained in this matter occurred in a context different
from that sustained by the deceased in Stein does not provide a compelling reason to not follow the
Court of Appeal’s reasoning. As Justice Vincent stated in McIntosh, if a victim consents to an activity
that involved the infliction of significant physical injury ‘or the reckless acceptance of the risk that it
will occur, then the consent of the victim will not be recognized’.
In R v Welch, the Ontario Court of Appeal held, ‘the extent to which consent may form a defence
to physical violence was a matter to be determined according to public policy and public interest.’
In this case, we are faced with a matter relevant to the propagation of the HIV virus, which has been
defined by the Crimes Act of 1958 as a ‘very serious disease’. By making this specification through
subsection (2) of Section 19A of that Act, the legislature has demonstrated its awareness of the
general threat to public health that is posed by HIV. In my view public policy dictates that the medical
welfare of society must be considered in matters involving the transmission of serious diseases, as it
not only threatens the health of individuals, but also that of all Victorian citizens.
Counsel for the applicant accepted that Vincent J’s remarks in R v McIntosh, and the decision of this
court in R v Stein, may appear to support the judge’s ruling. But, in counsel’s submission, those cases are
properly to be distinguished in accordance with the reasoning of the English Court of Appeal in R v Dica.
We agree. The logical starting point is the decision of the House of Lords in Reg v Brown, on which
Stein was based. In Brown, the appellants were convicted of offences under s 20 and s 47 of the
Offences Against the Person Act 1861 (UK) of occasioning grievous bodily harm and actual bodily harm
in the course of ritual of sadomasochistic practices. The question on appeal was whether the victims’
willing and enthusiastic consent to the practices provided a defence. Lord Templeman, who delivered
the principal majority speech, reasoned that the question was to be decided according to whether ritual
sadomasochism should be recognised as a ‘lawful activity’ in the same way that, for example, surgery
or boxing or playing rugby are recognised as lawful activities. In turn, that was to be decided according
to whether the perceived social advantages of the activity so outweighed the risk of harm which might
flow from it as to render it a socially acceptable activity. Lord Templeman took account of the fact that

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1

Chapter 1 The Fundamentals of Criminal Law 02

The Fundamentals of Criminal

Proprietary Articles Trade Association v Attorney-General (Canada) [1931] AC 310 at 314.

1.2.2 The justification of the criminal law

1.2.2.1 The principle of liberty

1.2.2.2 Morality and the criminal law

1.2.3 Possible reform suggestions

1.3.2 The goals of sentencing

Crime Control (1973) 29.

and alcohol programs, or anger management courses. Newly developed cognitive-behavioural

1.3 What is punishment?

1.4 Sources of criminal law

1.5 Criminal capacity

a pattern of repeated offending,

1.6 Classification of crimes

1.7.1 Elements of an offence

1.7.2 Mens rea

1.7.3 Actus reus

32–3 (footnotes omitted).

1.7.4 The doctrine of temporal coincidence

1.7.6 Strict liability

1.7.7 Inchoate crimes

1.7.8 Participatory liability

1.7.9 Transferred malice

1.8 Burdens of proof

1 What is meant by the term corpus delicti ?

18 What is meant by the term ‘principal in the first degree’?

dies of smoke inhalation before he can be rescued by the fire brigade.

Chapter 2 Homicide and Actus Reus 40

Chapter 3 Murder and Mens Rea 87

Chapter 4 Murder: The Doctrines of Provocation and Self-defence 133

Chapter 5 Involuntary Manslaughter 230

Homicide and Actus Reus

answers to these questions.

2.2 The legal reality of homicide

Number Intimates Family Friends/ Strangers Other a

Source: AIC NHMP 2006–07 at http://www.aic.gov.au/en/statistics/homicide/victim-offender.aspx

2.3 Categories of unlawful homicide

2.3.3 Defining homicide

2.4 The meaning of ‘life’ and ‘death’

2.4.1 Foetus and child

2.3 When is a person ‘in being’?

2.5 Actus reus: overview

In our view, this direction was both correct and adequate.

2.7.2 First causal test: the operating and

2.7.2.1 Take your victim as you find him/her

2.7.2.2 Medical treatment

R v Evans & Gardiner (No 2)

wound inflicted by the prisoner was the cause of death.’

2.7.3 Second causal test: the novus actus interveniens test

2.7.4 Third and fourth causal tests: the natural

Royall v The Queen

No exception was taken to this direction at the trial.

per Stephenson LJ at p 102. So if an act is so unexpected that no reasonable person could be expected to

responsible for the injuries which result.

2.32 Is there an element of subjectivity in the test formulated by McHugh J?

care shortly after he was first discovered by Bambi.

Murder and Mens Rea

18 Murder and manslaughter defined

3.2 The mens rea element of murder

3.2 How does a motive to kill differ from an intention to kill?

3.2.3 Transferred malice