The Queen v Morgan[1999] QCA 348

REASONS FOR JUDGMENT - McMURDO P

Judgment delivered 7 September 1999

1. I have read the reasons for judgment of Pincus JA who has set out the relevant facts and issues.
2. I agree that it was unnecessary in this case to direct the jury in respect of s 23(1)(a) of the Criminal Code for the reasons given by Pincus JA; evidence relevant to s 23(1)(a) did not, in my view, establish any "act" on the part of the appellant which could have occurred independently of the exercise of his will.  Nevertheless, many judges would, out of caution, give a direction on s 23(1)(a) on facts such as these where it is difficult to clearly identify whether or not there has been some positive act on the part of the accused;^[1] in such cases it may be wiser to leave that issue to the jury for their determination.  Section 23(1)(b) was properly left to the jury and there is no complaint in respect of that direction.
3. I also agree that the question of manslaughter by way of criminal negligence under  s 289 of the Code should have been left to the jury as there was some evidence of it which the jury could have accepted even though neither the prosecution nor the defence requested such a direction:  I would add to the relevant authorities listed by Pincus JA on this point R v Hodgetts and Jackson.^[2]
4. The next issue is whether this error has resulted in a miscarriage of justice depriving the appellant of the chance of an acquittal fairly open to him.
5. The jury's verdict of guilty of murder under s 302(1)(b) Criminal Code means that they were satisfied beyond reasonable doubt that the appellant did an act (stabbed the deceased) in prosecution of an unlawful purpose (armed robbery) and the act was of such a nature as to be likely to endanger human life.
6. Section 289 Criminal Code provides that:

"It is the duty of every person who has in the person's charge or under the person's control anything, whether living or inanimate, and whether moving or stationary, of such a nature that in the absence of care or precaution in its use or management, the life, safety, or health of any person may be endangered, to use reasonable care and take reasonable precautions to avoid such danger, and the person is held to have caused any consequences which result to the life or health of any person by reason of any omission to perform that duty."

7. This was not a case of murder or nothing.  The learned trial judge left the issue of manslaughter to the jury.  She said:

"Now, the charge of murder: as you have heard, there are alternative verdicts open, guilty or not guilty of murder.  If not guilty of murder, guilty or not guilty of manslaughter.  This is the way the law works.  A person who unlawfully kills another is guilty of a crime.  That crime is called murder or manslaughter, according to the circumstances of the case.  The killing is unlawful unless it is authorised justified or excused by law, and I will come back to this in due course.  Manslaughter is unlawful killing in circumstances that do not constitute murder."

8. Her Honour explained to the jury the elements of murder under s 302(1)(b) which must be proved beyond reasonable doubt before convicting.  Her Honour then mentioned the issues of accident, self-defence and provocation which had been raised, emphasising that it was for the prosecution to satisfy them beyond reasonable doubt that none of these applied, adding:

"Before you could reach that conclusion you would have to consider the version put forward on behalf of the accused and it is basically this: that Morgan and Garbutt intended merely to get the money from Wilkinson and run; Wilkinson would not give it to them; Garbutt kicked Wilkinson in the head; Wilkinson punched Morgan; Morgan hit back; Morgan took the knife, swung it at Wilkinson and missed, and as he pulled the knife back Wilkinson punched him and that is when the knife went in. ...

On the whole of the evidence are you left with a reasonable doubt that it may have happened as the accused's counsel has suggested?"

9. Her Honour next dealt with accident under s 23(1)(b) Criminal Code and self-defence.
10. Her Honour dealt with provocation saying:

"Before you could convict the accused of murder, as opposed to manslaughter, you would have to be satisfied beyond reasonable doubt that the killing was unprovoked."

11. Her Honour next dealt with the elements of robbery, before saying:

"... it is for you to decide whether the accused is guilty or not guilty of murder.  If he is not guilty of murder, is he guilty or not guilty of manslaughter ... If you are not satisfied of all of the elements of the charge of murder beyond reasonable doubt, then the only honest verdict you can bring in is not guilty, but if you are satisfied beyond reasonable doubt, the only honest verdict is guilty of murder.  Similarly, if you come to a consideration of manslaughter and similarly when you come to the consideration of the robbery."

12. In my view, the fact that the alternative verdict of manslaughter was left to the jury in this case, albeit not on the basis of criminal negligence distinguishes it from cases like Pemble v The Queen,^[3] R v Guise,^[4] R v O'Halloran^[5] and R v Jeffrey.^[6]
13. The verdict of guilty of murder under s 302(1)(b) Criminal Code means the jury was satisfied beyond reasonable doubt that the appellant's version set out in para 8 of these reasons should be rejected, although without any consideration of s 289 Criminal Code.  As accident under s 23(1)(b) Criminal Code was left for their consideration without reference to s 289, this was an unnecessarily favourable direction for the appellant.
14. The failure to direct the jury that a verdict of guilty of manslaughter was open by way of s 289 Criminal Code will not warrant the allowing of the appeal and a re-trial unless the Court is satisfied that a substantial miscarriage of justice has actually occurred.^[7]  This Court in considering that issue in Jeffrey,^[8] did not find unanimity of approach.  McPherson JA said:

"The adequacy of the direction in such cases is, as has more than once been said, not to be determined in a vacuum, but according to what was the real issue between the Crown and the accused: R v Holden [1974] 2 NSWLR 548, 558, citing what was said by Menzies J in Ryan v The Queen (1967) 121 CLR 205, 232."

Pincus JA said:^[9]

"If this means that failure to tell the jury that they may bring in a lesser verdict cannot be a misdirection, so long as the guilty verdict returned is inconsistent with the lesser verdict, then I respectfully disagree.  Circumstances can well be imagined in which failure to direct the jury of the possibility of a verdict of guilty of a lesser offence than that of which an offender has been convicted may cause injustice.  That will surely be so, in general, if the lesser verdict is open on the evidence and has been raised as a possibility by the defence."

Davies JA noted:^[10]

"Whether a verdict of murder ... would have been inevitable ... had the jury been properly directed ... depends on an objective question ... .  The evidence relevant to that question is in much the same form before this Court as it was before the jury.  The question therefore does not involve evaluation of evidence, as it would if there were any questions of credibility and, although it does involve competing inferences of fact, in my view only one inference is reasonably open.

In drawing inferences from the facts proved and in assessing that question of probability this Court is in as good a position as the jury would have been if it had been properly directed."

15. In R v Auld,^[11]  this Court dismissed an appeal where there had been a failure to direct on s 289 in respect of an offence of unlawful wounding.  Davies JA concluded that:

"... for reasons given by McPherson JA, an ordinary person would have reasonably foreseen that event as a possible outcome."

McPherson JA concluded that s 289 Criminal Code had no application to the circumstances of the case where Auld had made a downward movement with the knife aimed in the direction of the victim; it was not a case of passive control of a dangerous thing or a pure omission to act. 

Lee J concluded that:

"... even if there had been any real doubt that the appellant intended to strike the complainant, it is difficult to conclude that a jury, properly directed on the scope of section 289 of the Code and the standard required for criminal negligence, would still not inevitably have found beyond reasonable doubt that the appellant was guilty."

16. The jury's verdict in this case means that they necessarily rejected beyond reasonable doubt provocation; self-defence; accident under s 23(1)(b) (even though the directions given in the absence of  directions in respect of s 289 were more favourable than they need have been) and the appellant's version set out in para 8 of these reasons.  They were also told that manslaughter, unlawful killing in circumstances which do not constitute murder, was a verdict open to them.  They had been told by the judge to consider the appellant's version and only if they rejected it beyond reasonable doubt could they convict.  As Pincus JA has noted and as is obvious from the facts set out in his reasons, the prosecution case as to murder under s 302(1)(b) Criminal Code was very strong.  The summing up as a whole was balanced and fair and in some ways more favourable to the appellant than it need have been.  In my view, had a direction to the jury in respect of s 289 Criminal Code been given, the jury would still inevitably have convicted, having rejected the appellant's version set out in para 8 of my reasons beyond reasonable doubt.  Taking the approach of McPherson JA in Jeffrey, the jury has considered the real issue between the prosecution and the appellant and rejected the appellant's version beyond reasonable doubt.  Taking the approach of Davies JA in Jeffrey, the only inference reasonably open from the facts of this case is that the jury would, in rejecting the appellant's version, self-defence, accident under s 23(1)(b) and provocation, have declined to find any evidence supporting a verdict of guilty of manslaughter by way of s 289. Whilst I agree with Pincus JA's comments in Jeffrey that "Circumstances can well be imagined in which failure to direct the jury of the possibility of a verdict of guilty of a lesser offence than that of which an offender has been convicted may cause injustice", in my view this is not such a case.  It is contrary to logic and common sense to conclude that failure to give a direction in respect of s 289 on the facts of this case has deprived the appellant of the chance of an acquittal.  The position may be different had manslaughter not been left as an alternative verdict at all.
17. I am satisfied that the appellant has not been deprived of a chance of an acquittal and that the error made by the learned trial judge in failing to direct the jury as to manslaughter under s 289 of the Criminal Code has not resulted in a miscarriage of justice.
18. I would therefore dismiss the appeal.

REASONS FOR JUDGMENT - PINCUS JA

Judgment delivered 7 September 1999

1. The appellant was convicted in the Supreme Court of the offences of murder and of robbery in company with personal violence.  The Crown case was that the appellant and one Garbutt robbed the deceased, taking $250 from him, and that in the course of the robbery the appellant stabbed the deceased in the chest and so caused his death.  The principal factual issue at the trial was whether the appellant deliberately stabbed the deceased or whether, as he told the police in interview, the facts were as follows:  the deceased received the fatal wound after the appellant pulled a knife out and unsuccessfully tried to stab him;  the deceased then attempted to punch the appellant and impaled himself on the knife, which was in the process of being withdrawn after the unsuccessful stabbing attempt.

2. Initially the notice of appeal relied only on the judge not having given the jury a direction about s 289 of the Criminal Code, relating to criminal negligence.  But there have recently been raised two further grounds:  one, that the judge did not properly direct the jury as to the elements of murder and, secondly, that the judge did not direct the jury to "consider the question of intoxication in respect of whether the [a]ppellant's act of stabbing was deliberate or was done in furtherance of the unlawful purpose of robbery".  Neither of these two has, in my opinion, any substance.  The arguments were all directed to the conviction of murder.

3. It is desirable to explain in more detail what the appellant told police about the stabbing.  Unfortunately, as happens too often, parts of the transcript indicate that in important respects what was said was indistinct.  The first account begins with an assertion that the appellant and his accomplice decided to rob someone, that (having presumably encountered the deceased) the accomplice kicked him in the head;  then the transcript goes on:

"Then he got up and took a swing at me and busted me lip open.  I hit him back.  And he took another swing and hit me again.  And then I grabbed a knife out of my pocket, and had it in my hand, and I took a swing and then [indistinct] before it hit him, and just as I was pulling it back he went and punched me, and that's when it went in, and then I ripped it out and I stood there and me mate started shaking him saying 'Give me your money' ".

It appears that the appellant was saying that he took the knife out and swung it at the deceased but pulled back without hitting the deceased;  as the knife was being pulled back the deceased punched the appellant and that was when the knife penetrated him.  A second account of the matter has the deceased being kicked in the head, getting up and swinging at the appellant.  It goes on -

"... and then - while all of that was happening my mate [indistinct] a few more punches in this fellow's head, and that's when the knife went in, but it just went overboard too quick".

In a further explanation on the same page of the transcript, the appellant reiterated that the deceased was kicked, jumped up and swung at and hurt the appellant who hit him back.  It goes on -

"... then he hit me again, and that's when the knife come out.  And - it didn't hit him - just missed him, then, um, he took another swing at me as I was pulling the knife back, and that's when it [indistinct]".

This seems to be consistent with the first version, in that it conveys that the appellant struck at the deceased with the knife but did not make contact and then, as the deceased attempted to strike the appellant again, he made contact with the knife.  Without going into detail, the same appears from a further version, later in the transcript.

4. There was no challenge to the Crown assertion that the appellant said these things, whereas other accounts of the relevant events claimed to have been given by him are in dispute.  One which is not in dispute is the letter he wrote to a friend (Exhibit 30).  This is quite inconsistent with what the police were told;  it accuses the appellant's accomplice of having stabbed the deceased.  Another version which a jury might have thought to be of interest is a letter (Exhibit 19) written by the appellant's then girlfriend a week after the killing to a friend of hers explaining what she claimed the appellant had told her.  This letter was admitted as refuting a suggestion of recent fabrication by the writer, who gave evidence against the appellant, but had given statements to the police which were inconsistent with her evidence.  The letter says in effect that the appellant and his accomplice decided to rob the victim, that the accomplice kicked the victim in the face then punched him: "Troy punched him then [the appellant] stabbed him in the chest".  There was other evidence from which the jury were entitled to be satisfied that the stabbing was deliberate, for example that he told a witness (McConnell), according to her, that he stabbed the victim "but wasn't aiming to kill him.  He only stabbed him so he wouldn't get up and chase him because - with the wallet".

5. The Crown case was that the victim's death was caused "by means of an act done in the prosecution of an unlawful purpose, which act is of such a nature as to be likely to endanger human life" - i.e. it was based on s 302(1)(b) of the Criminal Code.  It is not immediately obvious, on the face of s 302(1)(b), that the defence of accident applies to it.  However, it is established that it does apply:  Stuart (1974) 134 CLR 426 at 433, 438, 445.  I have drawn attention to the statements made to the police which could properly have been relied on by the defence as raising a doubt about accident.  That doubt would have been whether it was true, as the appellant told the police, that the stabbing occurred at a time when the appellant was not thrusting the blade toward, but moving it away from, the victim.

6. This seems, in the light of the whole of the evidence, quite unlikely, but not so preposterous as to enable the Crown to say that a defence of accident was not fairly raised.  The only evidence given which raised it was that which I have set out above - the statements made by the appellant to the police.  Apart from those statements, a rational jury could not have acquitted on the basis of the defence of accident.  The primary judge told the jury, in effect, that the Crown had to satisfy them beyond reasonable doubt that the account which the appellant gave to the police, which her Honour summarised for them, was untrue.  Her Honour then, in the very next section, explained briefly what the relevant defence of accident involved, under s 23(1)(b), and told the jury that the Crown had to exclude that.  These directions, which are set out in full below, were succinct and perfectly adequate.

7. It was argued before us that the judge should have given a direction under s 23(1)(a) of the Code, on the basis that there was a question whether the death was caused by an act that occurred independently of the exercise of the appellant's will.  The argument, so far as I understood it, was that on the version given to the police the fatal wound was not caused by any willed act of the appellant.  But there was no suggestion that anything the appellant did was not willed.  According to the version he gave to the police, he swung the knife at the deceased, missed him and while the knife was being pulled back from that attempt the deceased impaled himself upon it.  There is no occasion to take the language of s 23(1)(a) beyond its natural meaning, which requires the identification of an act or omission on the part of the accused which would, apart from s 23(1)(a), have produced the result that the accused was guilty of an offence.  Here, no such act or omission relevant to the s 23 defence can be identified.  See Kaparonovski (1973) 133 CLR 209 at 231 and Falconer (1990) 171 CLR 30 at 38, 39.  In Falconer the firing by the appellant of a loaded gun was held to be the act and the act was held not to include the resultant fatal wounding.  So in this case the act was the appellant's movement of the knife, not the resultant wounding.  This view is also consistent with Taiters [1997] 1 QdR 333 at 335:

"It should now be taken that in the construction of s 23 the reference to 'act' is to 'some physical action apart from its consequences' ...".

8. I note that the relationship between s 23 and s 302(1)(b) was discussed in Fitzgerald (CA No 183 of 1998, 9 April 1999; [1999] QCA 109);  the leading judgment written by McPherson JA discusses Stuart (1974) 134 CLR 426, and goes on:

"It has the practical effect in a case like this of reducing almost to vanishing point the distinction between murder under s 302(1)(b) and manslaughter ...".

The reason for this observation is that s 302(1)(b) does not require that the lethal act be done deliberately;  there need be no intention to hurt anybody:  see s 302(3).  It was argued for the appellant here that the judge should have told the jury that "the act of stabbing must be a deliberate act on the part of the accused";  that would have been a misdirection.  In Fitzgerald, also a s 302(1)(b) case, the appellant poked a loaded gun, his finger being on the trigger, at the victim's head and it went off and killed her - he said, accidently.  The question the jury had to consider was whether the act I have mentioned was one "of such a nature as to be likely to endanger human life" - see paras. 13 and 14 of the reasons of McPherson JA.  The Crown did not have to show that the shooting was deliberate.

9. The facts of the present case were such that, in my view, the appellant's only real chance of an acquittal, if the jury acted rationally, was that some doubt might have been engendered by the story told to the police suggesting accident.  The question in the case is whether the judge properly left to the jury the possibility of a verdict of manslaughter on the basis of acceptance of, or a doubt brought about by, the evidence I have discussed in para 3.  The judge told the jury that they might find the appellant guilty of manslaughter if he were not guilty of murder.  Her Honour explained to the jury the effect of ss 291 and 303 of the Code and then, somewhat later, turned to issues which had been raised, of accident, self‑defence and provocation.  As to accident, the judge said:

"Now, the defence has raised the issue of accident.  Under our law a person is not criminally responsible for an event which occurs by accident.  As I said, the Crown has to exclude this.  To do so the Crown has to satisfy you beyond reasonable doubt that the accused intended that the death - that is the event in question - should occur, or that the accused foresaw death as a possible outcome, or that an ordinary person in the position of the accused would reasonably have foreseen death as a possible outcome.  That is accident".

10. Her Honour also instructed the jury, at other points in her summing-up, that if self‑defence was not excluded the appellant could not be found guilty of murder or manslaughter and that before they could "convict the accused of murder, as opposed to manslaughter" they would have to be satisfied that the killing was unprovoked.  That is, there were directions to the effect that self-defence excluded both murder and manslaughter, but provocation excluded one but not the other.  The judge did not say what would be the result of finding that the Crown case on murder failed because of the defence of accident.  Although, as is pointed out in Fitzgerald, the difference between murder under s 302(1)(b) and manslaughter may in some instances be rather fine, it is my opinion that the judge should have told the jury explicitly that if, because of the defence of accident, the Crown case of murder failed, then they had to consider whether the appellant was guilty of manslaughter.  It does not appear to me that an intelligent juror would necessarily have understood this from the directions which were given.

11. It may be that the reason why the judge did not give such a direction as I have just mentioned is to be found in the conclusion of a discussion which took place below, when the defence pressed for a direction on manslaughter under s 289 of the Criminal Code.  Her Honour declined to give such a direction, saying:

"If the Crown does not exclude accident it will follow that the killing was not unlawful and that the accused is entitled to be acquitted of both murder and manslaughter.  It is true that section 23 is subject to the criminal negligence provisions of the code.  However criminal negligence would be a basis for inculpation, not exculpation.  It is not relied on by the Crown.  In the circumstances, I do not propose direction the jury in terms of section 289".

12. There is room for argument as to whether the defence may insist on the jury in a murder case being told that a verdict of manslaughter may be given, even if there is nothing in the evidence to support it;  see dicta in Gammage (1969) 122 CLR 444 at 450, 451, 460 can be read as supporting the existence of such a right.  But whatever may be the position where there is no evidence supporting manslaughter, the judge must direct on manslaughter if there is a basis in the evidence to make consideration of manslaughter relevant and that is so even if the defence does not raise manslaughter:  Pemble (1971) 124 CLR 107 (which I discussed in Guise (CA No 96 of 1998, 19 June 1998; [1998] QCA 158)), Varley (1976) 51 ALJR 243 at 245, and Markby (1978) 140 CLR 108 at 113;  see also, on a related point, Suresh (1998) 72 ALJR 769; [1998] HCA 23 at para [54] and Gipp (1998) 72 ALJR 1012; [1998] HCA 21 at para [53].

13. Here, the reason given for not putting manslaughter on the basis of s 289 to the jury was that the Crown did not rely on it;  but the state of the evidence was such, in my respectful opinion, that the judge had to direct on manslaughter under s 289 even if the defence did not desire that;  the attitude of the Crown towards the availability of manslaughter was irrelevant. 

14. The question is whether the verdict of murder can be let stand, on the ground that by giving it the jury must have rejected the appellant's story, given to the police.  A discussion of the relevant authorities is to be found in Jeffrey (CA No 154 of 1997, 19 December 1997),  especially in the reasons of McPherson JA.  I suggested in my reasons in that case that it cannot be that:

"... failure to tell the jury that they may bring in a lesser verdict cannot be a misdirection, so long as the guilty verdict returned is inconsistent with the lesser verdict ...".

Here, the case was not one of murder or nothing, strong though the Crown's murder evidence was.  One cannot, in my view, conclude that the case being put to the jury as murder or nothing had no influence on the verdict;  one can understand a strong reluctance to acquit the appellant completely.

15. The case of murder therefore has in my opinion to be re-tried, but in view of discussion which took place below about the relationship between s 23 and s 289, it is desirable to say something about that.  As I have pointed out above, accident is a defence to a charge of murder under s 302(1)(b), so that s 23 has to be considered if there is evidence making that consideration relevant.

16. But does s 23 have any relevance, if the jury comes to consider a case of manslaughter based on s 289?  The cases are analysed in the decision of the Court of Criminal Appeal in Hodgetts and Jackson [1990] 1 QdR 456, and the view taken there - that s 23 is irrelevant in a prosecution founded on s 289 - was accepted in Guise (above) and in the judgment of McPherson JA in Auld (CA No 80 of 1997, 11 July 1997; [1997] QCA 202).  Griffiths (1994) 69 ALJR 77 is not inconsistent with this conclusion.  There the High Court held in effect that manslaughter - by shooting, in that instance - could be either done by a voluntary act or by criminal negligence.  Section 23 is relevant to the first case, but not to the second.  Here, on the facts, the only manslaughter case was one of criminal negligence under s 289.  That was so because the appellant's story making consideration of manslaughter relevant was such that, if it was accepted, the jury might have thought that the fatal wound was not caused by any act of stabbing by the appellant, but by the deceased impaling himself on the knife, which was being wielded dangerously.

In summary

17. (1)There was some evidence suggesting, not a deliberate stabbing, but death caused or contributed to by negligence within s 289.

2. The defence asked for manslaughter under s 289 to be left to the jury, but even if that had not been so, the learned primary judge should have given such directions.

3. Section 23 was relevant in considering the charge of murder, but not material to consideration of criminal negligence under s 289.

4. Although the Crown case of murder was very strong, one cannot be absolutely confident that the failure to leave manslaughter under s 289 to the jury could not have affected the verdict.

18. I would allow the appeal against the conviction of murder, set aside that conviction and order a new trial of the charge of murder.  I would dismiss the appeal so far as it relates to the conviction of robbery.

IN THE COURT OF APPEAL

SUPREME COURT OF QUEENSLAND

CA No 131 of 1999

Brisbane

Before McMurdo P

Pincus JA

Thomas JA

THE QUEEN

v

TONY DWAINE MORGAN

Appellant

REASONS FOR JUDGMENT - THOMAS JA

Judgment delivered 7 September 1999

1. In this case the appellant was charged with and convicted of murder under s 302(1)(b) of the Code.  The case was that the appellant stabbed the victim with a knife in the course of attempting to rob him.

2. Section 302(1)(b) relevantly states:

"... [A] person who unlawfully kills another ...

2. if death is caused by means of an act done in the prosecution of an unlawful purpose, which act is of such a nature as to be likely to endanger human life;

... is guilty of "murder"".

Accident

3. An account given by the appellant to the police in this case raises the question of an unwilled stabbing.  Such a defence ("accident") is by no means uncommonly raised by persons who choose to use a knife in a fight with another person.^[12]  In such struggles the contestants may engage in forward and backward motions.  Sometimes, as here, there is an allegation, with no living witness to contradict it, that the stabbing was an accident because the accused made no positive or conscious movement of the knife, that the victim was impaled through the victim's own positive forward movement onto the knife held by the accused, and that at the critical moment the accused was not trying to stab the victim at all.

4. In my view the appropriate defence that needs to be considered by a jury in such a case is the first limb of s 23 rather than the second.  Section 23 includes:

"...[A] person is not criminally responsible for -

1. an act or omission that occurs independently of the exercise of the person's will; or

2. an event that occurs by accident".

5. The "act" to be considered by a jury for the purposes of this first part of s 23 has been the subject of much consideration by courts, and it has now been confined to reasonably identifiable limits.  Since Vallance,^[13] Mamote-Kulang,^[14] Timbu Kolian,^[15] Kaporonovski^[16] and Falconer^[17] the "event" is readily identifiable as the consequence of the relevant actions, and in a homicide case the event will be the death of the victim.  The "act" is concerned with something that precedes that event.  However it is not restricted to the mere physical action of the accused person.  The act which entails criminal responsibility, as Kitto J noted in Vallance, may need to include some quality of the action or consequence caused by it or an accompanying state of mind.^[18]  In Falconer, Mason CJ, Brennan J and McHugh J, with whose conclusions in this respect Gaudron J agreed,^[19] adopted Kitto J's test, and concluded that "the act with which we are concerned in this case is the discharge by Mrs Falconer of the loaded gun; it is neither restricted to the mere contraction of the trigger finger nor does it extend to the fatal wounding of Mr Falconer".^[20]

6. It follows that the "act" for the purposes of s 23 is not restricted to the actual physical movement of the accused person.  The fact that the accused is holding a weapon, the nature of the weapon and the manner in which the accused causes it to function are comprehended.  So too is any act of the accused which causes the entry of the knife into the victim, or in common parlance, the act of stabbing. This is so whether the stabbing is effected by a forward movement or in the course of a backward movement.  Undue refinements of the concept of the "act" for the purposes of s 23 are likely to lead juries into the need to consider the philosophy of action, and this is to be avoided.

7. In most crimes involving the infliction of injury courts are concerned with acts rather than omissions.  However criminal responsibility may arise from an act or an omission, and s 23 applies both to acts and omissions.  In my view when a person chooses to brandish or hold a knife during a fight with another person his potential criminal responsibility may include omissions as well as acts, especially when a story like the present one falls to be assessed.  The question in a case of this kind is whether the stabbing (in the wider sense in which I have defined it) occurred independently of the exercise of the accused person's will.  Continuing to hold the knife firmly, exercising some control over the direction which it points, or even failure to release the knife may be a willed act or omission for whose consequences the accused person is responsible, even if the victim contributes to the result by forward motion. 

8. The accused's acts and omissions are the basis of any finding of causation and they must be willed if the accused is to be held responsible for them.  Often the evidence will not permit precise findings to be made on the mechanics of the entry of the knife.  Where there is a fight and a knife penetrates the body of the victim it will usually suffice to direct the jury that they must be satisfied to the required standard that a willed act of the accused caused the penetration and the injury. This may occur even if the victim contributed to the result by forward motion.  Comments such as those in the last sentence of the preceding paragraph may sometimes be of assistance.

9. During submissions the suggestion was made that in a case like this one the true defence is not under s 23 at all, but rather that there was no act performed by the accused at the material time and that accordingly he is not responsible for the act which caused the death.  The only support I can find for this notion is in the judgment of Taylor and Owen JJ in Ryan v The Queen.^[21]  Their Honours there stated:

"Where, however, the act which causes the wounding is not, in any relevant sense, the act of the accused, a charge based upon s. 98 [wounding in the course of a robbery] would fail because in such circumstances it would not be the act of the accused that caused the wounding.  It would follow, it seems to us, that in such a case and where the wounding resulted in death, the person accused would not be guilty either of murder or of manslaughter for the simple reason that it was not his act that caused the death". 

That however was not the majority view in that case and it may be contrasted with other approaches including that of Windeyer J.^[22] Moreover, care is needed in relation to observations on this topic made before Kaporonovski^[23] when the present approach towards identifying acts and events started to crystallise.  Prior to that time different meanings were attributed to "act" by different members of the High Court, ranging from the restricted view that in a firearm case the act was limited to the physical movement involved in using the trigger finger to the extreme view that the act encompassed the actual result to the victim.

10. I do not think that the view expressed by Taylor and Owen JJ in Ryan accords with the further development of this subject.  Whilst recognising that in this area such a view is arguable, I do not think that it affords a useful means of presenting to the jury the question whether a person's acts were such as to render him or her criminally responsible for a death or injury.  In the end it may not matter greatly whether such a defence is identified as the absence of any act (as Taylor and Owen JJ would put it) or as the absence of a willed act (as I would prefer it) but the latter accords more with the content of s 23(a).  It may also be noted that in Coolwell^[24] the Court of Criminal Appeal held that the first limb of s 23 was the appropriate defence in a situation like the present one.
11. It can be seen from the above discussion that I consider that the learned trial judge in this case erred in instructing the jury under the second limb of s 23 and not under the first.  However, as Pincus JA has pointed out, her Honour told the jury in effect that before they could convict the Crown had to satisfy them beyond reasonable doubt that the account which the appellant gave to the police was untrue.  That, for reasons which I have given, was unduly favourable to the appellant.  I would not uphold the appeal on the ground that directions under the first limb of s 23 were not given.

Manslaughter by criminal negligence

12. The remaining point to be resolved is whether the learned trial judge erred in failing to give directions that a verdict of manslaughter was available on the basis of criminal negligence, and if so whether that error may have led to a miscarriage of justice.
13. There are two separate streams of law which may lead to a conviction of manslaughter under the Criminal Code.  One is under Chapter 28 (homicide - suicide - concealment of birth); the other is under Chapter 27 (duties relating to the preservation of human life).  The distinction extends to a different approach on the issue of causation.^[25]  The difficulty of identifying manslaughter by reason of criminal negligence within the provisions of the Code has been noted in previous cases,^[26] but the position now seems reasonably well settled.  Section 289, which deals with the duty of persons in charge of dangerous things, provides its own statement on causation.  It firstly imposes a duty upon persons who have any dangerous thing in their control to take reasonable precautions to avoid danger, and then provides that the person having control of such a thing "is held to have caused any consequences which result to the life or health of any person by reason of any omission to perform that duty".  This presents a wider base of activity upon which a conviction may be based than the act or omission that causes death in homicides under Chapter 28.  Fighting another man while holding a knife might be the gravamen of a charge of manslaughter by criminal negligence, just as continuing to drive a car knowing it to be defective might be the gravamen of a motor car case based on criminal negligence.  An accused may be found criminally liable for the reasonably foreseeable consequences of fighting with a knife even if his final act was unwilled or even if the victim injures himself on the knife.  By contrast criminal liability for homicide under Chapter 28 is based upon the particular act or acts of the accused person which cause the death.
14. Among other distinctions between what I have termed these two streams of law relating to manslaughter, a defence of accident under s 23 is not available in a charge of manslaughter based upon criminal negligence.^[27] In Evgeniou^[28] it was observed that unless an accused is in breach of his duty under s 289 "he is not to be deemed to have killed ... and no authority, justification or excuse by law as provided by s. 291 ... [is] needed". 
15. Without discussing the differences any further it will be apparent that in cases where both streams of law relating to manslaughter have to be explained to the jury as alternatives, a good deal of complexity is unavoidable including the apparent availability of different results on the question of causation.  Most cases can be seen to fall into one stream or the other, but sometimes directions under both are necessary.  Hodgetts & Jackson^[29] was identified as a case of manslaughter on the basis of criminal negligence or nothing.  It was observed that conversely there were cases where it would be quite inappropriate to allow criminal negligence to go to the jury even as an alternative.  In that case I attempted to identify characteristics that might assist in identifying particular cases as belonging to one stream or the other.  Clearly s 289 does not apply in cases involving direct personal violence by blows to the body.  The problem area emerges when weapons are involved.

"If the essential Crown case is based on intention to cause harm, it will militate against the identification of the criminal acts as ones that proceeded from absence of care or precaution.  When the case is not based on s. 289, the accused must find his defence, if he can, in s. 23.

The problem will frequently be solved by the Crown indicating or particularising that its case is or is not based on criminal negligence.  This however will not prevent the ultimate presentation of alternatives to the jury if the evidence fairly leaves open alternative routes to conviction".^[30]

16. The question then is whether this was a case which required alternative directions to be given on both streams of the law relating to manslaughter.  It is necessary to examine the issues that arose at trial.  Whilst they may be approached in a different sequence, the following seems to me to be the most logical progression.

A. Did the appellant by an act or omission cause the victim's death?  If yes, the appellant should be held to have killed the victim.^[31] All killings of one human being by another are unlawful unless the act of killing is justified or excused by law.^[32] Subject to B, if the appellant killed the victim, he is guilty of unlawful killing which makes him guilty of either murder or manslaughter.^[33]

B. Was that killing rendered lawful by any justification or excuse such as self-defence or accident?  If "yes" then subject only to the possibility of separate directions on manslaughter through criminal negligence, the appellant must be found not guilty of both murder and manslaughter, that is to say, he must be completely acquitted.

Only if "yes" to A and "no" to B can the question of murder be considered under C below.

C. Are the requirements of s 302(1)(b) of the Code satisfied?  This inter alia requires proof that the appellant's act which caused death:

1. was done in the prosecution of an unlawful purpose (ie robbery); and

2. was of such a nature as to be likely to endanger human life.

If "yes", the appellant is guilty of murder.  If "no" to either (i) or (ii), he is not guilty of murder, but guilty of manslaughter under s 291.^[34]

D. Even if prima facie guilty of murder under C, if provocation is not excluded the appellant should be found guilty of manslaughter.^[35]

Were further directions on manslaughter based on criminal negligence necessary or desirable?

17. If on the jury's findings the appellant would be guilty of manslaughter under A, C or D, I consider that the description of still another route to that result would be otiose and confusing.  If guilty of murder the question of manslaughter by criminal negligence does not arise.  It is not an alternative to murder; rather it is swallowed up by the additional findings necessary to establish murder in C above.  And if not guilty of murder or manslaughter on any of the above bases, the only party who could benefit from a further direction on criminal negligence would be the Crown.  Such directions would give the Crown the possibility of a conviction of manslaughter in place of complete acquittal.  I consider that the learned trial judge was correct in substance when she observed that "criminal negligence would be a basis for inculpation not exculpation".  The Crown did not seek the benefit of this further option.  In these circumstances, if the learned trial judge erred in failing to present it to the jury, I consider that the failure to do so did not disadvantage the defence.  The loss of an advantage such as muddying the waters by further complex directions is not one of which the defence can legitimately complain.
18. The learned trial judge, favourably for the appellant, instructed the jury that if they had a reasonable doubt that the version given by him might be true, they should acquit.  The only basis upon which any rational basis of manslaughter by criminal negligence might arise in this case was upon that version.  The Crown case was one of death by direct violence committed by a man with a weapon.  In view of the unequivocal rejection of the appellant's version by the jury it is difficult to see any basis upon which he may have been deprived of a chance of acquittal by reason of the learned trial judge's failure to give the jury a further alternative verdict of guilty of manslaughter by reason of criminal negligence.
19. The facts were not complex.  The learned trial judge dealt fairly and by no means unfavourably with the wide range of defences that were raised.  Indeed her Honour even allowed provocation to go to the jury, seemingly on the basis that by daring to defend himself while being robbed the deceased may have provoked the appellant.  Accordingly the issues presented to the jury included accident, self-defence and provocation.  Inter alia the jury knew that they could return a verdict of manslaughter if they had a reasonable doubt on either element of s 302(1)(b).  Whilst the learned trial judge's summing-up could have been clearer on this aspect, it followed explicit statements by counsel for the Crown as follows:

"... is there any doubt in your mind that this death was caused by an act which was done in the prosecution of robbery and is there any doubt in your mind that that act was of such a nature as to be likely to endanger life?  If you were to answer 'no' to either one of those, then he would be guilty only of manslaughter ...".

20. I am satisfied that the jury was aware that manslaughter was the correct verdict if they had a reasonable doubt on either element of s 302(1)(b).  They were also instructed on manslaughter following provocation.  It seems to me that the jury had before them adequate options of bringing in a verdict of manslaughter if they were so minded.  This was certainly not a case which went to the jury as murder or nothing.  In such cases it is easy to see a miscarriage of justice when an alternative verdict of manslaughter was properly open and the jury was given no opportunity to bring in such a verdict. 
21. Whilst a case of manslaughter based on criminal negligence was open on the evidence, and whilst it would usually be regarded as an error for a trial judge to fail to put it as an alternative if requested to do so by the defence, in the circumstances of this case I have fluctuated in coming to a conclusion whether her Honour erred in declining to present this further alternative.  The determination of the issues that should be considered by the jury is part of the overall obligation of the trial judge to ensure that an accused person has a fair trial.  Her Honour's decision not to present a further alternative of manslaughter by criminal negligence was plainly designed to achieve this.  However, whilst a trial judge is not bound to present fatuous defences or to explain to juries purely theoretical lines of reasoning, where there is evidence that if acted upon may lead to a particular result and the defence seeks a direction which will inform the jury accordingly, one would normally expect such a direction to be given.  Whilst I think her Honour's decision was a practical one which on balance favoured the defence I have concluded with some hesitation that her Honour's failure to give this additional direction should be regarded as an error.  However the omission to give such a direction in this case could not in my view have impaired the appellant's chances of acquittal of murder, and could only have increased his jeopardy of conviction of manslaughter if he had managed to avoid conviction for murder.  If it is right to regard this as an error it is not an error that could have affected the result in favour of the appellant.  I consider that had such additional directions been given, the jury would inevitably have convicted the accused of murder as they did.^[36]
22. I also record my agreement with the reasons for judgment published by the President on this question, and in particular her Honour's summary of conclusions in paragraph 16.  I would dismiss the appeal.