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R v Koani QSC 325
SUPREME COURT OF QUEENSLAND
Indictment No 67 of 2015
CHRISTOPHER CHARLES KOANI
10.11 AM, TUESDAY, 3 NOVEMBER 2015
HER HONOUR: In this case, there is a real possibility that the jury may conclude on the evidence before it that, at the time the gun the defendant was holding discharged:
- the defendant intended to kill his girlfriend and, to that end, had loaded the gun and, from close range, had presented it, and at her; that he went to cock the gun with the plan that he would then discharge the weapon to effect his intention,
- but that because of a peculiarity of the gun, they are left with a reasonable doubt that he, in fact, pulled the trigger or otherwise deliberately discharged the gun.
They may have such a reasonable doubt based on the propensity of the gun to fire if, during the process of someone cocking it, that person’s finger or thumb slips off the spur of the hammer. The evidence was that the spur of the hammer had been shortened and was therefore hard to control and that, if the hammer was moved more than about 10 millimetres backwards in the process of cocking the gun then, due to a slip, released, the gun would fire. The ballistics expert talked about the slip of the thumb or finger from the hammer in this way as “hammer slip”, and I will use that term in these reasons.
So if the jury did reach that point in their deliberations, they would be left with a factual situation where the defendant intended to kill Ms Leaney by shooting her with the gun, had tried to do so, and in fact had done so, but that the actual death-causing act, to use the words of the cases, had not been a voluntary one. The defence submission was that, in these circumstances, section 23(1)(a) applied, and the only offence the jury could convict the defendant of was manslaughter, and that was manslaughter by reason of a breach of duty at s 289 of the code. It was said that murder was not available because there was no coincidence of mens rea and actus rea, so that, in the circumstances, murder was not open.
I note that the defence asked for particulars of the charge and that the Crown particularised those in a document which I have marked G for identification. The Crown particularised as its first case that the defendant deliberately caused the gun to discharge at a time when the defendant had intent, but put an alternative case that, at a time when he had intent, the defendant was in charge of a dangerous thing and failed to take care of it, that care being required by the duty laid down by section 289 of the code.
The defence submission is an unattractive one. And in this respect, I refer to the comments of Mason CJ in Royall v The Queen (1990) 172 CLR 378, 391-392. My view is that the result contended for by the defence is not a result required by law, although I must say that the solution to the legal difficulty thrown up by these very peculiar facts is by no means obvious.
My first thought was that the Crown could have overcome this apparent difficulty by relying on section 302(1)(b), ie, felony murder (see, for example, R v Demirian below, and footnote 37 in the judgment of Gaudron J in Murray v The Queen below). However, the Crown did not seek to rely on this provision and had not particularised its case that way. The Crown does not seek to make that case, and, even if it did, I do not think it could pursue the case now, for the defence case has been run in a very particular way, and the case of felony murder would, on the facts of this matter, involve a substantially different Crown case.
My next thought about the difficulty was that it might be resolved by the application of principles found in a collection of cases of which Royall (above) is one, where someone with intent to kill does actually kill, but in a slightly different way to that which they plan or intend. There are some very clear statements in R v Demirian (1989) VR 97. That was a case where a man secreted a bomb, which exploded. The Crown was not able to prove that the man set the bomb to explode. That is, the evidence could not exclude the reasonable possibility that the homemade bomb had not intentionally been set to explode, but had exploded because of a defect in construction:
Thus the Crown could not prove beyond reasonable doubt that [the man], in the exercise of his will to do so, did an act which set the bomb to explode and did it with the intention or with the knowledge of the probability that that very act would cause death. – p114
In the course of considering these facts, McGarvie and O'Bryan JJ cited an academic authority to this effect:
‘The result would be different once D had reached the stage of attempt. If he is raising the gun with the intention of shooting P through the head and it goes off and shoots P through the heart, no doubt that is murder.’
In the example given, it may be assumed that D had reached the stage of an attempt to murder. It may be assumed that under Victorian law D would be liable for murder under section 3A of the Crimes Act 1958 [felony murder]. If that section were not relied upon, D would only be guilty of murder if in accordance with the tests advanced by Barwick in Ryan’s case it could be shown that an act of his which caused death was done with the intention, or with the knowledge of the probability, that it would kill or cause grievous bodily harm. – p 115.
Demirian’s case was cited with approval in Royall (above). In that case, that is, in Royall, one of the real possibilities which the jury had to consider was whether the victim had flung herself out of a window or fallen out of a window in her attempts to avoid the defendant’s clubbing her to death with an ashtray in a ferocious attack. The question was analysed by the High Court as one of causation. Mason CJ made some comments at p 387 that juries are not engaged in a philosophical or scientific exercise but engaged in deciding a real question to be determined by a commonsense understanding of the facts before them. Mason CJ cited Thabo Meli v The Queen  1 WLR 228 about the taking of what the Privy Council called a “much too refined” approach to the coincidence between the guilty act and intention to kill – see p 392.
Mason CJ himself concluded:
It is enough that the accused has the requisite intent at the outset of his or her execution of a series of acts designed to cause, and causative of, death. Those cases illustrate the proposition that, where death is caused solely by the acts of the accused, the accused’s mistake as to the precise manner and time of the occurrence of death is not a factor on which the accused can rely – pp 392 – 393.
In Royall Brennan J discussed High Court authority including Vallance v The Queen (1961) 108 CLR 56 (a gunshot case). These authorities went to causation and went to the occurrence of a novus actus which broke the chain of causation so that an accused with intention was entitled to the benefit of the defence of accident (the equivalent of s 23(1)(b)). From those cases, Brennan J described the law as to criminal responsibility as being:
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 engages 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.
Significantly here, Brennan J went on to say:
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 fear it is likely to induce –p 399 – 400.
Brennan J cited Demirian as authority for that – “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.”
These broad statements of principle would seem, in my view, to mean that in the present case the defendant’s argument based on section 23(1)(a) must fail. If there were no other authority on point, I would make a ruling in accordance with these cases. However, there are specific gunshot cases in the High Court on appeal from Queensland which lead me to the view that such a course is not open to me, and I would note that I rather regret that, and I have sympathy with the dissent of Justices Gummow and Hayne in the High Court case of Murray and with the views of Gleeson CJ and Heydon J in Stevens (2005) 227 CLR 319 and, for that matter, with the views of McPherson JA in Murray in the Court of Appeal in Queensland at paragraphs 20 to 22.
Having said that, I will acknowledge that there is a difficulty with the application of the Royall line of cases to the present facts and it is that it puts the hammer slip in this case as being analogous to the flight of the victim in Royall, but that analogy is not perfect because it could not be said in the present case, as it was said by Deane and Dawson JJ in Royall:
In the present case there was no question that the acts of the applicant were voluntary and, whichever of those acts were regarded by the jury as having caused the death of the deceased, the intent which was required to accompany them was the same – p 413.
The other point against the application of the Royall line of authority is that neither Royall nor Demirian was a case which involved the application of the Queensland Criminal Code. Royall was a New South Wales case and, in particular, the definition of “murder” at section 18(1)(a) of the Crimes Act 1900 (NSW) was as follows:
Murder shall be taken to have been committed where the act of the accused, or thing by him 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.
And as the extracts from Demirian show, there are material differences between the definition of “murder” under section 302 of the Code and the law which applied in that Victorian case.
That these differences to the definition of “murder” in non-Code states make a material difference to the point with which I am dealing is illustrated by the case of Ryan v The Queen (1969) 121 CLR 205. In that case, in the course of robbing a shop, the defendant loaded and cocked a gun and held it to the back of the victim’s head. The defendant’s version was that he then attempted to use one of his hands to retrieve a piece of cord from his pocket with a view to tying his victim up. Then the victim moved suddenly, startled him and the gun discharged without a willed movement of his hands.
An appeal against a conviction of murder was dismissed because, having regard to the definition in section 18(1)(a) (above) as to reckless indifference, the jury:
…could have concluded that the act causing death was the presentation of the cocked, loaded gun with a safety catch unapplied and that its involuntary discharge was a likelihood which ought to have been in the contemplation of the applicant when presenting the gun in the circumstances - p 219 per Barwick CJ
Windeyer J put it this way:
It was said, in my view properly said, that if the jury did not think the accused had intentionally fired at the deceased, they could still find the accused guilty of murder as the shot was fired when the accused was doing an act obviously dangerous to human life. To point a loaded firearm at a man is a potentially dangerous thing to do – p 239.
Indeed, from the judgment of Windeyer J, it seems that the extended definition of “murder” in section 18(1)(a) influenced how the death-causing act was defined. Windeyer J thought that:
The conduct which caused the death was of course a complex of acts all done by the applicant – loading the rifle, cocking it, presenting it, pressing the trigger. But it was the final act, pressing the trigger of the loaded and levelled rifle, which made the conduct lethal – p 245.
This is quite integral to his conclusion, which was:
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 act which caused the death was, it seems to me, using the language of section 18 of the statute, an act of the accused – p 246.
In Murray v R (2002) 211 CLR 193, 199-200 Gaudron J distinguished Ryan’s case from a case under the Queensland Criminal Code because of the definition in section 18(1) of the New South Wales Act, and I think she was correct. She said:
Unlike section 18(1) of the Crimes Act 1900 (NSW), as it stood at the time of the decision in Ryan the definition of murder in s 302(1) of the Code contains no provision permitting a person to convicted of murder simply for an act done with reckless indifference to human life ... thus if the act causing death in this case were to be identified as simply presenting the loaded shotgun, that might constitute manslaughter by negligent act, but would not constitute murder. – 
The distinction means, I think, that in Queensland when looking at s 23(1)(a) the death-causing act cannot be defined in the way in which Windeyer J defined it in Ryan, but must be focused on and comprise only of, in a gunshot case, pulling the trigger or otherwise deliberately causing the weapon to discharge. That is, in the way it has been particularised by the Crown in this case. The authorities are analysed by Gaudron J in Murray at pp197-200 and there is also a helpful analysis in this regard in the text An Introduction to Criminal Law in Queensland and Western Australia, R.G. Kenney, 7th edition, 8.47-8.51.
The factual difficulty in Murray was very similar to the factual difficulty in this case. There was considerable evidence from which a jury might well have drawn the conclusion that the defendant intended to kill the deceased man but the defendant said that after having loaded and cocked the gun, and having pointed it at the deceased man with his finger on the trigger, there was a circumstance that caused the gun to fire without his voluntary act. As I say, I have quite some sympathy for the strong dissenting judgment in Murray of Justices Gummow and Hayne. The judgment of McPherson JA in the Court of Appeal is very much in the same vein as that dissent. Of the trial judge’s failure to leave a defence of accident to the jury, McPherson JA said of the judgments of Latham CJ and Dixon J in R v Mullen (1938) 59 CLR 124, 127-128:
A defence of accident ... was really a contention that the Crown had not proved an essential element of intention in the crime charged. ... On appeal Latham CJ and Dixon J nevertheless approached the question simply as one of intention to kill under s 302(1)(a). ... Their Honours plainly accepted that proof that the accused had intended to kill “negated” the application of s 23(1) which at that time embodied what is now s 23(1)(a) and s 23(1)(b). It was as Latham CJ said “an essential part of the Crown case to negative accidental killing”. – .
I would draw attention to the fact that the above dicta very closely resembles the statement of Brennan J in Royall which I extracted above in speaking of intention negating accident. McPherson JA in Murray continued:
To most ordinary people untutored in the subtleties of s 23(1)(a) it would seem contrary to logic and common sense to be told that, having found that the appellant had not only intended to cause death or grievous bodily harm but had succeeded in carrying that intention into effect he must nonetheless be acquitted if his act might have been one that took place “unconsciously” or independently of the exercise of his will ...
In the context of the evidence at the trial in the present case the appellant was entitled to be acquitted if the evidence suggesting that the shotgun discharged accidentally raised a reasonable doubt about his intention to kill or do grievous bodily harm. If it did not, there was no point in revisiting the same evidence to ask if it raised a reasonable doubt whether the shotgun had discharged independently of the exercise of his will in terms of s 23(1)(a). Factually, the two questions were the same in this case and raised a single issue which stated in its simplest form was whether the killing was deliberate. – -
I would note that the comments of Holmes JA (as she then was) at paragraph 31 of Forsythe  QCA 314 are really to the same effect as that passage from McPherson JA’s judgment in Murray.
Whatever the virtues of this view and the authority of those who have held it – see Kirby J in Murray at  ff – it did not carry the day in Murray, and I accept that that case requires that in the case before me the defence under s 23(1)(a) must be left to the jury as a separate matter from their being told that they must be satisfied of intention to kill at the time of the discharge of the gun, and in that regard also see Forsythe (above).
In Murray, Gaudron J in identifying these two separate areas of direction, that is, deliberate act and intention, says of intention that it was for the jury’s consideration, “if, but only if, the prosecution excluded the possibility of an unwilled act.” – 
With respect, I think that statement is correct in placing the consideration of the deliberate nature (or otherwise) of the act as anterior to the question of intention. And I note that the structure of the Crown’s particulars follows that framework. The submission on behalf of the Crown was that, accepting a direction had to be given as to s 23(1)(a), murder still arose for the jury’s consideration because even if they were to find that the discharge of the gun occurred because of hammer slip, provided the jury also thought that the discharge was in breach of the duty established by s 289 of the Code, they should consider whether they were satisfied that the defendant caused Ms Leaney’s death at the time when he held the requisite intent. Causation by means of s 289 having plugged the gap left by a reasonable doubt about a willed act, it would be open to the jury to find that the defendant had killed Ms Leaney with an intention within the operation of s 302(1)(a).
I must say that I was initially quite resistant to this argument for it seemed to me that the jury could not simultaneously find both that the defendant had an intention to kill and was reckless. On reflection and analysis, I changed my view. I think that part of the difficulty which I had initially stems from the fact that it is common to think of the provisions at chapter 27 of the Code as negligence provisions and, consciously or subconsciously, to think of those provision as analogous to the law of negligence in tort and, in particular, as analogous to a whole cause of action, and in this regard see the comments of Keane JA, as he then was, in Clark  QCA 168 .
When the heading to chapter 27 is considered, though, it can be seen that that chapter is not headed Criminal Negligence. It is headed Duties Relating to the Preservation of Human Life and, again, the introductory words to section 23(1) bear scrutiny in this regard, too, because they do not provide “subject to the express provisions of this Code relating to negligence…”. They provide “subject to the express provisions of this Code relating to negligent acts and omissions…”.
I think it is important to recognise that the provisions at chapter 27 of the Code do not create offences. They create duties and provide a mechanism with respect to the issue of causation and, in that respect, I must say my thinking was assisted by Kenney (above), paragraph 8.38. I think that the Crown seeks to use section 289 in this case as a component of its murder case, and I think that is the correct way to think of those sections in chapter 27, that is, that they are components of cases rather than complete definitions of offences.
So accepting and operating within the framework established by Murray that intention to kill for the purposes of section 302(1)(a) and a willed act within the meaning of s 23(1)(a) are different things, I think that it is legitimate for the Crown, as I say, to use section 289 as a component of its murder case essentially to plug the gap left by a reasonable doubt about a willed act. The whole point of Murray is that a jury might find that, notwithstanding an intention to kill, death occurred by reason of an act which was not deliberate. If that circumstance arises, I can see no difficulty with a non-deliberate act being characterised as criminally reckless and that criminal recklessness coexisting with an overall state of intention to kill.
The prosecutor could not give me any case in which section 289 had been applied either to charge someone or convict someone in this way and I have not found one myself. I must say that certainly gave me reason to hesitate before coming to my conclusions. In fact, defence counsel’s submissions were that to use the provision at 289 in the way contended for by the Crown was contrary to past practice. His submission was that the three steps enumerated by Gaudron J in Murray beginning at  are an exclusive framework for analysis in this regard, and I must say I do think this is a difficult question and I think there is some force in that contention.
However, I think the reason for the lack of authority on the application of 289 in this way may well result from the fact that before the High Court decision in Murray, if the law was analysed as it was by Dixon J in Mullen or by McPherson JA and McMurdo P in the Court of Appeal in Murray, there was no room for separation operation of s 23(1)(a) if intention were proved, so that the departure point for the Crown’s position in this case simply did not exist. And I think it would be most unlikely that there would be such a departure point if the defence were relying on s 23(1)(b). So I am comforted by the fact that that change in the law brought about by the majority decision in Murray essentially created the departure point for the Crown’s argument.
There is the infamous case of Macdonald  St R Qd R 151 which does provide an example of one of the chapter 27 duties being used as a component of a case of wilful murder. In that case, Chief Justice Cooper extracted part of the note of summing up provided to the Court by Powell J as follows:
Neglect where there was no intention that death should ensue was manslaughter; but wilful neglect coupled with ill treatment and absence of medical aid would amount to wilful murder if by these acts the jury was satisfied that it was contemplated by the prisoners that death would ensue. If the object of the prisoners was to kill a child by a slow course of torture and a slow course of neglect, it was murder. If there was no desire to kill the child, then it would amount to manslaughter – p 167.
Cooper CJ described that direction as accurate and learned and said this:
Wilful murder is the unlawful killing by any means of one person by another with the intention to cause his death. The ways in which death may be produced are numberless and unidentifiable. But if a person intending to cause another person’s death pursues towards him a course of conduct which causes his death, he is guilty of wilful murder – p 169.
I note that while s 285 of the Code is not couched in terms of making reasonable efforts to provide the necessaries of life, that was the position at common law – R v Senior  1 QB 238; Stone and Dobinson  QB 354. And I also note that is how the section was interpreted in Macdonald - see Cooper CJ at p 170, “it was clearly the duty of both prisoners to use reasonable efforts for persons in their position. …” It seems that at common law the duty to take care of dangerous things and the duty to provide necessities developed together - see Callaghan v The Queen (1952) 87 CLR 123, and the texts and authorities cited there.
I think that some comments in O'Halloran  Qd R 1 support the principle of using section 289 in the way contended for by the Crown. That was a case where a 13 year old child pointed a gun at his father and pulled the trigger. His evidence was that although he deliberately aimed, he deliberately aimed to miss. It was held that there was no application of section 289 available because, on the defendant’s story, what he did consisted of a deliberate act. It is on that particular point, whether or not there was a deliberate act, that I think that case is useful here. Philp J said:
In my view, the question of negligence did not arise on the evidence. The appellant’s act, on his own story, did not consist merely in carelessly aiming the rifle at a spot near his father; it consisted in deliberately so aiming then shutting his eyes and pulling the trigger. The whole of that act was a willed act deliberately – not negligently – endangering his father’s life, and he was responsible for his father’s death if that event were, as it certainly was, the foreseeable outcome of his willed act. – pp 2-3.
In this case, it is only if the jury find that there was no deliberate act that they would go on to consider 289, so that, on this point, this case is the opposite of what Philp J was describing. He was describing a case where there was a deliberate act, so that 289 had no operation. See also Hodgetts & Jackson (1991) Qd R 456, 461-2, per Thomas J.
Another submission by the defence was that there was a clear policy reason why, if intending all the acts up until the discharge of the gun, the defendant should not be liable for murder if the discharge of the gun occurred without his voluntary act. It was said that there would always be room or time for a change of intention between the last voluntary act and the death, so that it was consonant with policy or morality, perhaps, that in circumstances where the death-causing act occurred without a willed act, the only available charge ought to be manslaughter.
I think that the jury should be instructed that they need, in this case, to be certain that the intent endured right up until the point of discharge of the firearm before they could convict of murder, and I think that is the answer to that point. I would also say that that policy reason did not stand in the way of the law in the non-code states, and I would particularly refer to the extract of Brennan J’s judgment in Royall and the passage from Demirian which I have cited above.
So, in my view, then, the case ought to be left to the jury, that if the Crown has not satisfied them beyond reasonable doubt that the defendant deliberately discharged the shot which killed Ms Leaney, they then ought to consider whether or not there was a breach of section 298. If they consider that there was, they may still find the defendant guilty of murder if they find that, at the time the shot was fired, he had an intention to kill or do grievous bodily harm.
[Flow chart given to jury appended.]
R V KOANI
Has the Crown satisfied you beyond reasonable doubt that the gun was something that, if care or precaution was not taken in its use or management, the life, safety or health of a person might be endangered?
Not guilty of murder
Not guilty of manslaughter
End of deliberations
Has the Crown satisfied you beyond reasonable doubt that at the time he discharged the shot, the defendant intended either to kill Ms Leaney, or to do her grievous bodily harm?
Has the Crown satisfied you beyond reasonable doubt that the defendant failed to use reasonable care and take reasonable precautions around that danger, and that failure caused death?
Not guilty of murder
Not guilty of manslaughter
End of deliberations
Guilty of murder
End of deliberations
Has the Crown satisfied you beyond reasonable doubt that, at the time the gun discharged, the defendant intended either to kill Ms Leaney, or to do her grievous bodily harm?
Not guilty of murder
Guilty of manslaughter
End of deliberations
Not guilty of murder
Guilty of manslaughter
End of deliberations
Guilty of murder
End of deliberations
- Published Case Name:
R v Koani
- Shortened Case Name:
R v Koani
- Reported Citation:
 QSC 325
03 Nov 2015
|Event||Citation or File||Date||Notes|
|Primary Judgment|| QSC 325  2 Qd R 373||03 Nov 2015||Ruling on prosecution’s alternative case on murder. If the jury were not satisfied that the discharge of the gun was a willed act, they could find the accused guilty of murder pursuant to s 302(1)(a) of the Criminal Code (Qld) if they found that he breached his duty under s 289 of the Code to use reasonable care and take reasonable precautions in handling the weapon and, at the time that it discharged, he intended to kill the deceased: Dalton J.|
|Primary Judgment||SC67/15 (No citation)||04 Nov 2015||Date of conviction of murder.|
|Appeal Determined (QCA)|| QCA 289  1 Qd R 273||11 Nov 2016||Appeal against conviction dismissed. The prosecution's alternative case was properly left to the jury; no error in permitting prosecution to re-examine certain witness: Gotterson JA and Atkinson J (McMurdo P dissenting in part, it being incongruous, in her Honour’s view, that a provision expressed in terms of objective reasonableness, such as s 289, be coupled with a specific intent).|
|Special Leave Granted (HCA)|| HCATrans 70||06 Apr 2017||Mr Koani's application for special leave to appeal granted: Bell and Nettle JJ.|
|HCA Transcript|| HCATrans 157||17 Aug 2017||Appeal heard and orders made. Appeal allowed; conviction quashed; retrial ordered: Kiefel CJ, Bell, Gageler, Nettle and Gordon JJ.|
|HCA Judgment|| HCA 42; (2017) 263 CLR 427||18 Oct 2017||Reasons for orders in  HCATrans 157. Trial judge erred in law in leaving prosecution's alternative case to jury; intention to kill in s 302(1)(a) not a freestanding mental element that can be attached to a negligent act or omission; murder pursuant to s 302(1)(a) requires that act or omission causing death be done or made with intention thereby of causing death: Kiefel CJ, Bell, Gageler, Nettle and Gordon JJ. Mr Koani's conviction of murder at retrial upheld on appeal:  QCA 272.|