Boughey v The Queen [1986] HCA 29

High Court of Australia Gibbs C.J. Mason, Wilson, Brennan and Deane JJ. Boughey v The Queen [1986] HCA 29

ORDER Application for special leave to appeal refused.

Cur. adv. vult.

The following written judgments were delivered:—

June 6 Gibbs C.J.

I have had the advantage of reading in draft the judgment which has been prepared by Mason, Wilson and Deane JJ. Subject to the matters mentioned hereunder, I am in respectful agreement with what their Honours have said.

The first ground which was argued on behalf of the applicant was that the learned trial judge misdirected the jury as to the meaning of the expression "likely to cause death" in s. 157(1)(b) and 157(1)(c) of the Criminal Code Act 1924 Tas., as amended. In the course of discussing the effect of s. 157(1)(b) his Honour said:

The expression "likely to cause her death" is another of these somewhat generalised expressions in the English language which most of us understand perfectly well, but would not [sic] find it difficult to define exactly. However, if something is likely to happen, there is a good chance that it will happen. It is something that may well happen. You might say about it "It may not happen, but there is a good chance that it will." It's likely to happen. Well, if he intended to cause her bodily harm within the meaning of that definition, was it bodily harm which he knew was likely to cause her death in the circumstances? That, of course, involves his knowledge about what carotid artery pressure involved, what the possibilities of it were, what the nature of the act and its consequences were. A little later his Honour continued: Was what he intended bodily harm within the meaning of that expression? If it was, was it bodily harm which he knew. That means which he in his own mind knew was likely to cause her death in the circumstances. Was it likely to cause her death in the circumstances? That depends on the medical evidence, no doubt. He gave no direction in relation to the same words in s. 157(1)(c), but the jury were entitled to regard the direction as to the effect of par. (b) as applying to par. (c) also.