The High Court has published its reasons for allowing an appeal against a decision of the Supreme Court of Queensland on whether an unwilled criminally negligent act combined with an intention to kill or cause grievous bodily harm constitutes murder under s 302(1)(a) of the Criminal Code 1899 (Qld). Following a breakdown in their relationship and during a violent confrontation in front of witnesses, the appellant loaded and aimed a shotgun at the deceased, saying ‘I don’t give a fuck, I’ll kill you … I’ll go back to jail’, which then discharged (see –).
The appellant pleaded guilty to manslaughter charges but claimed he was not guilty of murder; the prosecution declined to accept that plea and, following a jury trial, he was convicted of murder and sentenced to life imprisonment. During the trial, expert evidence established that shotgun had been altered, with the effect that it was prone to discharge ‘half-cocked’, that is, pulling the trigger 10mm, then letting it go, accidentally or intentionally. The prosecution’s main case was that the appellant discharged the gun deliberately, intending to kill the deceased. The alternative case was that, if the jury was not satisfied that the appellant willed the act of firing the gun, but still accepted that its discharged was caused by the appellant’s failure to take reasonable care and precautions in the use or management of the gun, and that at the time he intended to kill or do grievous bodily harm to the deceased, then he was guilty of murder (at ). In line with that alternative case, the trial judge directed the jury to consider finding the appellant guilty of murder if they were not satisfied that the gun was discharged by his willed act (see details at ff). The Queensland Supreme Court (McMurdo P dissenting) dismissed the appellant’s appeal, holding that the appellant could be convicted of murder even if he accidentally fired the gone, provided that the jury accepted that he acted negligently in doing so and intended to seriously injure the deceased (see at ff).
At the conclusion of the hearings before the Full Court on 17 August 2017, Kiefel CJ stated that the Court was unanimously of the view that the appeal should be allowed, quashed the appellant’s conviction, and ordered a new trial. The Court published its reasons for that decision on 18 October 2017.
The Court (Kiefel CJ, Bell, Gageler, Nettle and Gordon JJ) unanimously held that criminal responsibility for murder cannot be founded on an unwilled act, and that, contrary to the QSC’s conclusions, identifying the act giving rise to criminal responsibility for murder under the Code is not done on a ‘more confined basis’ than the approach under the common law (at ).
Turning first to the definition of murder under the Code, the Court noted that the difficulty with the prosecution’s alternative case rested on a shift in time of the intentions that were relevant to the murder charge, and the ‘intention of which the jury was required to be satisfied was unrelated to the negligent failure which caused the death’: on the prosecution’s argument the omission causing death was failure to maintain and use the gun, but the jury was also directed that the relevant time that the appellant intended to make that omission murder was when the gun discharged (at ). Reiterating the general principles of criminal responsibility on acts and omissions in s 23 of the Code (see ff), the Court held (at , emphasis in original) that:
Section 302(1)(a) is not the statement of a free-standing mental element of criminal responsibility that can be attached to a negligent act or omission. The elements of the offence of murder for which s 302(1)(a) provides require the prosecution to prove that the unlawful killing was caused by an act or omission of the accused that was done or omitted to be done with the intention thereby of causing death or some grievous bodily harm to some other person. Section 302(1) is not an express provision of the Code relating to negligent acts or omissions for the purposes of s 23(1)(a): the offence of murder is not exempted from the rule that a person is not criminally responsible for an act or omission that occurs independently of the exercise of the person’s will.
Consequently, it was an error of law to leave the prosecution’s alternative case to the jury, and a new trial must be had.
Because a new trial is to be had, the Court added observations on the trial judge’s ruling on identifying the ‘act’ to which criminal responsibility attached. The Court endorsed the appellant’s submission that the perceived need to leave an alternative case to ‘plug [a] gap’ in the Code rested on a misunderstanding of the ‘act’ to which criminal responsibility attaches, namely that it is confined to pulling a trigger or releasing a hammer (at ). Reviewing the case law on this point, the Court emphasised that wounding or killing by firearm involves a set of acts; including loading, cocking, aiming, and firing a weapon (at ff). Whether the jury needs to be directed in terms of acts and negligent omissions in the terms of s 23 will depend on the case, but here the evidence of the peculiarities of the weapon used seems to require that direction (at ):
It remains that the determination of what constituted the act causing death was a factual one for the jury. The directions wrongly confined the jury’s consideration of the issue. The unchallenged evidence was that the appellant presented a loaded gun to the deceased at a distance of not more than 1.25 metres and that the resulting discharge could not have occurred unless the appellant had exerted pressure on the hammer, pulling it back at least to the almost fully cocked position. As McMurdo P recognised, it was open to the jury to find that the appellant’s actions in loading the gun, presenting it to the deceased and pulling back the hammer were connected, willed, acts, which caused the death of the deceased, notwithstanding that the prosecution had not excluded the possibility that the appellant’s finger slipped on the shortened spur of the hammer before he completed the action. In this event, it was necessary for the jury to consider whether on the whole of the evidence the prosecution had excluded the reasonable possibility that the appellant acted only to frighten the deceased and not with murderous intention. Plainly enough, the capacity of the gun to discharge as the result of the appellant’s finger slipping from the hammer spur was also relevant to the latter determination.
|High Court Judgment|| HCA 42||18 October 2017|
|High Court Documents||Koani|
|Full Court Hearing|| HCATrans 157||17 August 2017|
|Special Leave Determination|| HCATrans 70||6 April 2017|
|Appeal from QCA|| QCA 289|
I hope your readers won’t mind me reflecting on my own comment as posted on this site when special leave was granted in this case back in April:
“Not really [as the Qld Court of Appeal had reasoned], I say. It may well be within one of the worst categories of manslaughter, but it is not murder. The intent has to accompany the act of killing (or perhaps the ‘event’ of killing – the event for s 23 of the Qld Criminal Code) and not just ‘accompany’ in a temporal sense but in the sense that the killing is willed. Brandishing the weapon carelessly – as those who are robbing, assailing, threatening, overcoming resistance – no doubt tend to do disrupts the one integrated concept of willing a death and causing it through exercise of that will.”
A prescient comment, even though I say it myself.
The court in its judgment allowing the appeal observed at :
“The elements of the offence of murder for which s 302(1)(a) provides require the prosecution to prove that the unlawful killing was caused by an act or omission of the accused that was done or omitted to be done with the intention thereby of causing death or some grievous bodily harm to some other person.”
Are there any prizes for correctly forecasting outcomes and, importantly, the reasons, on this website? Can I suggest such prize-awarding be considered?
Thanks again Kevin for your comments – unfortunately, no, there are no prizes for forecasts of any kind. I had briefly wondered about whether OH could host some kind of predictions league table a la Fantasy SCOTUS, but we’re fairly limited in the kinds of wordpress plugins that might be able to do that…
Well done, Kevin!
However, given the High Court’s concluding obiter regarding the definition of the “act” in a case such as this, there may yet be reason to think that the prosecution could succeed on a charge of murder.
Fair enough. I will have to be content with the fame and admiration of the many bloggers who have so left a comment on this posting.
It really is inexhaustible, this type of problem, isn’t it? Is the ‘act’ just squeezing the trigger — or taking up the gun, loading it, taking aim and causing its discharge?? Sometimes judges of the HC caution against overly refined analysis of the ‘ act’ but without analysis you get intermediate courts of appeal saying…well he intended to kill by shooting all along and did so….so?’
I think perhaps a very interesting part of the HC’s decision is the discussion of the late nineteenth century case of R v Macdonald and Macdonald. Macdonald is one of those nightmares of outback Queensland criminal law. (Other nightmares appear in particular, I think, in  QdR. Read it and may you Wake in Fright.) In Macdonald, a girl in her early teens was beaten, starved and maltreated until her death — by her father and wicked step-mother. Cooper J, I think, remarked how difficult he found it to keep his judgment unbiased when he consider the ‘trials’ of this ‘unhappy child’ in the last weeks of her life binding up her decaying fractured wrist apparently to save the bones which were falling away. His Honour thought the story unparelled in pathos in any fiction — but then it was the late nineteenth century and fiction has got a lot worse since then. Was it murder by extreme negligence? Can there be such a thing? As the HC explains it in Koani, on my reading, perhaps the answer is ‘no’, because negligence is always to be distinguished from deliberate neglect — murder by omission to provide necessaries can be distinguished quite clearly from manslaughter by omission to provide necessaries, for example. Eg, sociopaths who bind up and wall up victims and let them die slowly of dehydration, starvation and madness obviously cannot be satisfactorily categorised as as carelessly failing to provide food and drink to persons in their charge. (I think.)