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Supreme Court 24 November 2021

R v Egan

[2021] NSWSC 1623

Homicide
CRIME MURDER TRIAL

Citation: R v Egan [2021] NSWSC 1623
Court: Supreme Court of New South Wales
Date: 24 November 2021
Judge(s): Button J

Background

The accused stood trial for murder, having already pleaded guilty to manslaughter by unlawful and dangerous act. The plea proceeded on the basis that, looking at his conduct as a whole on the night in question, the accused performed voluntary acts that caused the death of the deceased. Those acts included smashing a whiskey bottle, holding the broken neck of it, engaging in a struggle with the deceased, and the deceased sustaining a fatal injury.

While the accused did not contest the physical elements of homicide, he did dispute whether the specific movement underlying the stabbing itself was a willed muscular act. The Crown conceded that this specific question of voluntariness was an indispensable intermediate fact: before the jury could be satisfied of the mental elements required for murder (intention to kill or to cause grievous bodily harm), it first needed to be satisfied beyond reasonable doubt that the stabbing was underpinned by a willed act.

The accused was heavily intoxicated by alcohol at the relevant time, and it was conceded that the intoxication was self-induced. Button J used the shorthand of "macro-voluntariness" to describe the overarching voluntariness of the accused's conduct as a whole, and "micro-voluntariness" to describe the voluntariness of the particular stabbing movement. The question for the court was whether s 428G of the Crimes Act 1900 (NSW) prohibited the jury from taking that self-induced intoxication into account when considering the micro-voluntariness issue.

  • Whether s 428G of the Crimes Act 1900 (NSW), which prohibits taking self-induced intoxication into account in determining whether conduct was voluntary, applied where the physical elements of homicide were conceded but the voluntariness of a specific movement remained disputed as an evidentiary matter.
  • Whether s 428G operates only in relation to disputed elements of an offence or also applies to disputed pieces of evidence that bear on voluntariness.
  • Whether, in circumstances of ambiguity, the principle of legality required a narrower reading of s 428G.

Decision

Button J held that s 428G did not prohibit the jury from considering the accused's self-induced intoxication when determining whether the stabbing was underpinned by a willed act. His Honour reasoned that the section's heading refers to the "actus reus" of an offence, which signals a focus on whether the physical elements of an offence have been committed at all. Here, those elements were not in dispute: the accused had pleaded guilty to manslaughter and expressly conceded the physical elements of murder as well. What remained in dispute was an evidentiary question, not an elemental one.

His Honour drew a distinction between a situation where the accused denies the existence of a voluntary act as an element of the offence, and the present situation where the accused accepts that element but disputes a specific piece of evidence relevant to establishing the mental element for murder. Section 428G(1) directs attention to "whether the relevant conduct was voluntary" in the context of determining whether an offence has been committed. On Button J's analysis, where homicide is conceded and only the sufficiency of intent for murder is in dispute, the voluntariness question at stake is evidentiary, not elemental, and s 428G does not reach it.

Button J also applied the principle of legality. Part 11A of the Crimes Act was enacted after The Queen v O'Connor (1980) 146 CLR 64 departed from the English approach in R v Majewski [1977] AC 443, and the Part as a whole expanded criminal liability for intoxicated persons. Where ambiguity exists in a provision that inculpates, the principle of legality supports a narrower construction that avoids intruding on exculpatory principles at common law.

His Honour acknowledged the outcome could appear internally inconsistent, noting that s 428G operates as an absolute bar in straightforward cases but not here. However, Button J considered this result broadly consonant with Parliament's nuanced approach in Part 11A to the intersection of self-induced intoxication and criminal liability. He noted that the analysis would likely differ if the accused had denied homicide entirely and claimed a complete acquittal on voluntariness grounds.

Orders Made

  • The jury was directed that intoxication can be taken into account in determining whether the conceded indispensable intermediate fact of the stabbing having been underpinned by a willed act has been established beyond reasonable doubt.

Key Takeaways

  • Section 428G of the Crimes Act 1900 (NSW) prohibits taking self-induced intoxication into account when determining whether the physical elements (actus reus) of an offence are made out, but the Supreme Court held that this prohibition does not automatically extend to every evidentiary dispute touching on voluntariness.
  • Where an accused concedes the physical elements of homicide by pleading guilty to manslaughter, the question of whether a specific movement was willed may be treated as a disputed evidentiary matter rather than a disputed elemental matter, placing it outside the reach of s 428G on the facts here.
  • The distinction between "macro-voluntariness" (voluntary conduct as an element of the offence) and "micro-voluntariness" (the voluntariness of a specific movement as an indispensable intermediate fact in proving intent) proved central to the court's reasoning.
  • Under the principle of legality, ambiguity in a provision that expands criminal liability should be resolved in favour of a narrower construction that does not erode exculpatory common law principles.
  • Button J expressly left open the question of whether s 428G would apply differently if the accused had completely denied homicide and sought a full acquittal on the basis that no act was voluntary. The decision is confined to its unusual facts and no prior case law was identified directly on point.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1900 (NSW), s 428G (Part 11A, Intoxication)

Cases:
- Shepherd v The Queen (1990) 170 CLR 573; [1990] HCA 56 (indispensable intermediate facts and proof beyond reasonable doubt)
- The Queen v O'Connor (1980) 146 CLR 64; [1980] HCA 1 (intoxication and voluntariness at common law in Australia)
- R v Majewski (1976) 2 WLR 623; [1977] AC 443 (English approach to self-induced intoxication and criminal liability)