(1968) 12 FLR 81[lb.012.FLR.00081]

[COURTS-MARTIAL APPEAL TRIBUNAL]

Re KNIGHT'S APPEAL

Courts-Martial Appeal Tribunal: Macfarlan J., President, Coldham Q.C., Deputy President, Wright, Member

SYDNEY, 24th May; MELBOURNE, 3rd June 1968
12 FLR 81

Criminal Law -- Felonious wounding -- Intent to cause grievous bodily harm -- Insufficiency of recklessness to establish specific intent -- Offences against the Person Act, 1861 (Imp.), s. 18.

By s. 18 of the Offences against the Person Act, 1861 (Imp.), whosoever shall unlawfully and maliciously by any means whatever wound any person with intent to do grievous bodily harm shall be liable to imprisonment for life.

Held, that the intent to be proved to establish a charge of felonious wounding under s. 18 of the Act is a specific intent to do grievous bodily harm. For this purpose it is not sufficient to establish an act done recklessly with foresight of consequence.

COURT-MARTIAL APPEAL.

The appellant appealed against his conviction of a charge of felonious wounding under s. 18 of the Offences against the Person Act, 1861 (Imp.). The material facts appear from the decision of the Tribunal.

J. H. Nankivell, for the appellant.

E. P. T. Raine, for the Military Board.

Cur adv vult

3 June 1968

The following decision was delivered:

The appellant was convicted by a general court-martial held at Vung Tau on 1st, 2nd, 3rd and 5th February, 1968, of the third charge which was as follows: "Third charge, s. 41, Army Act. When on active service committing a civil offence, that is to say, contrary to s. 18 of the Offences against the Person Act, 1861, in that he at Vung Tau, Vietnam, at about 23.45 hours on 6th December, 1967, wounded 216346 Corporal Vincent Joseph Holt with intent to do him grievous bodily harm."

A petition was lodged by the appellant pursuant to s. 20 of the Courts-Martial Appeals Act with the Military Board and this petition having been considered by the board was dismissed by the board on 5th April, 1968. An application for leave to appeal was heard by this Tribunal in Melbourne on 16th April, 1968, when leave was granted.

The substantial question raised was whether there had been any misdirection by the learned judge advocate concerning the intent required under the provisions of a 18 of the Offences against the Person Act, 1861 (Imp.). It should be pointed out that this ground

(1968) 12 FLR 81 at 82

was not mentioned in the petition to the Military Board and was only raised in argument during the hearing of the application for leave to appeal.

Section 18 of the Offences against the Person Act, 1861 is in the following terms: "Whosoever shall unlawfully and maliciously by any means whatsoever wound or cause any grievous bodily harm to any person, or shoot at any person, or, by drawing a trigger or in any other manner attempt to discharge any kind of loaded arms at any person with intent, in any of the cases aforesaid to maim, disfigure or disable any person, or to do some other grievous bodily harm to any person, or with intent to resist or prevent the lawful apprehension or detainer of any person shall be guilty of felony and being convicted thereof shall be liable ... to imprisonment for life. ... "

Section 20 of the same Act is in the following terms: "Whosoever shall unlawfully and maliciously wound or inflict any grievous bodily harm upon any other person either with or without any weapon or instrument shall be guilty of a misdemeanour, and being convicted thereof shall be liable to ... imprisonment. ... " The maximum punishment now provided for this offence is five years.

Section 18 is not a section that is easy to explain to a jury. As can be seen, it contains in effect two intents, one which is comprised in the word "maliciously" and the other in the specific intent set out in the latter part of the section.

In this statutory offence "maliciously" may well include the foresight of a consequence and therefore would include an act done recklessly with such foresight in mind, but when it comes to the question of specific intent, the intent to be proved must be the specific intent to do grievous bodily harm, and for this purpose recklessness is not sufficient. This appears clear from text-books such as Russell on Crime, 12th ed., at pp. 626-627, and Criminal Law, by Smith and Hogan, p. 256. See also article by Sir Bernard MacKenna, 1966 Criminal Law Review 548. We would also refer to a decision of the Court of Appeal, Criminal Appeal Division, R. v. Mowatt [1968] 1 Q.B. 421. At p. 426 Diplock L.J., delivering the judgment of the court, said as follows: "In s. 18 the word maliciously adds nothing. The intent expressly required by that section is more specific than such element of foresight of consequences as is implicit in the word `maliciously', and in directing a jury about an offence under this section the word maliciously is best ignored. In the offence under s. 20 and in the alternative verdict which may be given on a charge under s. 18, for neither of which is any specific intent required, the word maliciously does import upon the part of the person who unlawfully inflicts the wound or other grievous bodily

(1968) 12 FLR 81 at 83

harm, an awareness that his act may have the consequence of causing some physical harm to some other person."

We were referred to the decision of the High Court in Vallance v. The Queen (1961) 108 C.L.R. 56. This case involved the consideration of s. 172 of the Criminal Code of Tasmania, which in some respects is similar to s. 20 of the Offences against the Person Act, 1861. In that case, no question was raised concerning the acquittal of the defendant on a charge under s. 170 of the Code, which corresponds in many respects to s. 18 of the Offences against the Person Act. We do not think the case assists in the interpretation of s. 18.

It is not necessary to refer in any great detail to the events which occurred leading up to this unfortunate incident.

It appears that on the night of Wednesday, 6th December, 1967, there was a games night between the sergeants and the other ranks at the other ranks club known as the Arnold Club at 2.A.O.D. During the evening, card games and other games were played and a certain amount of liquor was consumed. There was a competition in the various games between the other ranks and the sergeants. Towards the end of the evening the appellant and two other ranks, one of whom was Cpl. Holt, were engaged in a card game with three sergeants. During the course of this game the appellant left the Arnold Club and became involved in a small fracas with Private Day. He then returned to the game and later a fracas developed between him and Private Carroll who was not a participant in the game. The appellant and Private Carroll continued the fight outside the club until the participants were both parted. At that stage the club was closed. It should be mentioned at this stage that the appellant pleaded "guilty" to a charge of assaulting Private Day, but pleaded "not guilty" to a further charge of assaulting Private Carroll. The court-martial found the appellant "not guilty" of the alleged assault on Private Carroll.

In front of the Arnold Club was a concrete patio which was some fourteen inches above the sand. A wooden pallet had been put in front of the patio near the door into the club to act as a step.

After Private Carroll and the appellant had been separated, Private Carroll was surrounded by a number of men including Private Day, and he received attention to a cut which he had received on his head when he fell against a table. The appellant was then seen to "jog off" in the direction of his quarters and later was seen "jogging" back towards the patio. He was observed returning by Cpl. Holt. Corporal Holt was the secretary of the club and had been one of the men who had separated Private Carroll and the appellant. When Cpl. Holt saw the appellant jogging back towards the club he went forward towards the step leading on to the patio and there met the appellant and placed his hands

(1968) 12 FLR 81 at 84

on the appellant's shoulders to restrain him from coming on to the patio. Corporal Holt then received what he thought was a hard punch on the chest between his shirt pockets. He retaliated and punched the appellant who, either in stepping back or as a result of the blow, fell down on the sand. Corporal Holt observed that he was bleeding, and then felt the wound.

It appears that the appellant had gone to his quarters and had obtained his S.L.R. bayonet. In his evidence he said in effect that he had obtained the bayonet to show it to Private Carroll and those surrounding him and to warn them that if they came to his quarters he would have the bayonet in bed.

After the wounding the appellant did not attempt to run away and was arrested. When asked by his superior officer did he stab Cpl. Holt he replied "Yes, sir, I did". The appellant gave evidence at the court-martial, and in cross examination was asked, "Is it possible that you could have thrust the bayonet at Cpl. Holt ?", and the answer was, "Well, the point is he did get it, didn't he, sir? Like he was wounded".

There was no evidence of any ill feeling between Cpl. Holt and the appellant. That evening Cpl. Holt had authorized free beer for the appellant who was duty cook, and the appellant had assisted Cpl. Holt to bring the supper from the kitchen to the club.

The appellant was found guilty of the third charge and was sentenced to be imprisoned for seven years and to be discharged from the defence forces of Australia.

In the course of a long, careful and scrupulously fair summary the learned judge advocate instructed the court-martial that before there could be a conviction on the charge of wounding with intent they must be satisfied on six essential ingredients, which he then set out. The six essential ingredients referred to by the learned judge advocate may be referred to shortly as follows: (1) Wounding. (2) That the wound was inflicted by the accused. (3) That the wound was inflicted unlawfully. (4) That the accused inflicted the wound maliciously. (5) That the accused had the specific intent. (6) That the accused intended to do grievous bodily harm.

Dealing with the fourth element, the learned judge advocate spoke as follows: "Fourthly, you must be satisfied that when the accused inflicted the wound he was acting maliciously, that is to say, he was acting either with an actual intention to do the particular kind of harm that in fact was done or alternatively that he was acting with recklessness as to whether such harm would occur or not. You must be satisfied that the accused had foreseen that the particular kind of harm might be done, and yet had gone on to take the risk of it. The word malicious is neither limited to nor does it require any ill will towards the person injured. The expression maliciously is a technical expression and I have explained its

(1968) 12 FLR 81 at 85

meaning to you in terms defined by the English courts and approved by our own High Court in the case of Vallance v. The Queen (1961) 108 C.L.R. 56."

Neither learned counsel submitted any criticism of this direction.

The learned judge advocate, having dealt with certain other matters, continued: "Fifthly, you must be satisfied that if the accused inflicted the wound, then at the time he inflicted it he had the specific intention of doing Cpl. Holt or some other person grievous bodily harm. The accused cannot be convicted of this offence unless you are satisfied that he acted with this specific intention, but it is not necessary for you to be satisfied that he had Cpl. Holt in mind. It would be sufficient to constitute the offence if you are satisfied that he intended to do grievous bodily harm to some other person or to mankind in general. I will direct you as to intention shortly but let me at this stage direct you that in ascertaining whether the accused had the necessary intention you may properly have regard to the weapon used and to the circumstances in which the injury was inflicted rather than to the nature of the injury itself.

"Sixthly, you must be satisfied that the accused intended to do grievous bodily harm. Grievous bodily harm has its ordinary and natural meaning and grievous means no more or no less than really serious.

"In relation to the issue of intent, if you were satisfied beyond reasonable doubt that there was a deliberate thrust forward, which had all the hallmarks of a punch in or in the vicinity of the stomach, then applying the tests of foreseeability, knowledge, realization, expectation, can you come to any other conclusion than that the accused at least intended to do some harm, and you may think perhaps that he intended to do grievous harm. On the other hand, if there were no such punch or if there were some doubt about there being such a punch and if the wound were inflicted accidentally, then the tests of foreseeability, knowledge, realization and expectation are not really applicable, because in the absence of intent the accused must be acquitted, because on this charge the fact that the accused may have been negligent in taking a naked bayonet into his hands and while it was there attempting to get on to the patio, is not a matter on which you can base a conviction. In a charge of this nature it is not a question of negligence, it is a question of actual intent or a question of recklessness."

In the light of the law as we have explained it above, these passages taken together amount to a misdirection. We cannot escape the conclusion that the learned judge advocate in attempting to explain the elements involved in this charge did fall into error in dealing with the specific intent.

(1968) 12 FLR 81 at 86

It is clear to us that the court-martial would have been left in no doubt at this stage that recklessness was sufficient to establish the specific intent. We have read and re-read the whole of the careful summary of the learned judge advocate, but the learned judge advocate, having established at this portion of his summary a dictionary in effect for the court-martial, nowhere has he later disabused their minds that recklessness is not sufficient for the specific intent in this statutory offence.

We are also of the view that the reference in the summary abovementioned to the specific intention of doing some other persons grievous bodily harm or doing some such harm to mankind in general did not assist the court-martial in understanding what was required for the specific intent. We are satisfied that this misdirection amounted to a substantial miscarriage of justice.

It is clear that the appellant could have been found guilty of the offence which is constituted by s. 20 of the Offences against the Person Act, 1861. This was clearly put by the learned judge advocate to the court-martial. It appears to us that if the court-martial had not found the appellant guilty of the offence under s. 18, then it would have inevitably convicted him of the offence under s. 20, and this was conceded by counsel for the appellant. Counsel for the Military Board submitted that in the circumstances we should apply the provisions of s. 23(2) of the Courts-Martial Appeals Act. We have given consideration to this submission but we are of the opinion that it cannot be said that a court-martial, properly directed, would "without doubt" have convicted the "appellant on the" third charge. See Stirland v. Director of Public Prosecutions [1944] A.C. 315.

Therefore, we substitute for the finding of the court-martial a finding of guilty of the offence under s. 20 of the Offences against the Person Act, 1861. In substitution for the sentence passed on the appellant by the court-martial, we sentence the appellant to be imprisoned for twelve months and to be discharged from the defence forces of the Commonwealth of Australia. The imprisonment is to date from 5th February, 1968, which was the date of the original sentence.

In arriving at this sentence we have taken into account the fact that the appellant has been convicted only of the lesser offence of malicious wounding, for which a maximum sentence of five years is imposed, and not of the more serious offence for which the maximum penalty is imprisonment for life. We have also considered the necessity of maintaining army discipline, the fact that the appellant had been in close arrest since 6th December, 1967, the age of the appellant, and the fact that his record did not show any disposition towards violent conduct.

(1968) 12 FLR 81 at 87

In this case the appellant was admitted to legal aid.

We make no order as to costs.

Orders accordingly.

Solicitors for the appellant: Frank Galbally & Peter O' Bryan.

Solicitor for the Military Board: H. E. Renfree (Commonwealth Crown Solicitor).

A.J.L.

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