Supreme Court New South Wales Medium Neutral Citation: R v Egan [2021] NSWSC 1623 Hearing dates: 15 November 2021 – 3 December 2021 Date of orders: 24 November 2021 Decision date: 24 November 2021 Jurisdiction: Common Law Before: Button J Decision: (1) Direct the jury 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. Catchwords: CRIME – murder trial –– where accused pleaded guilty to manslaughter by unlawful and dangerous act on the basis that his acts, taken as a whole, were voluntary and caused the death of the deceased —where accused disputed in murder trial that the stabbing that directly caused death was voluntary —where Crown conceded that that was an indispensable intermediate fact with regard to proof of a necessary mental element for murder — accused intoxicated by alcohol at crucial time — concession that intoxication self-induced — whether statutory prohibition on taking into account self-induced intoxication with regard to proof of actus reus of an offence applies in those circumstances Legislation Cited: Crimes Act 1900 (NSW), s 428G Cases Cited: R v Majewski (1976) 2 WLR 623; [1977] AC 443 Shepherd v The Queen (1990) 170 CLR 573; [1990] HCA 56 The Queen v O'Connor (1980) 146 CLR 64; [1980] HCA 1 Category: Procedural rulings Parties: Regina (Crown) Graham Anthony Egan (Accused) Representation: Counsel: K Jeffreys (Crown) D Barrow (Accused) Solicitors: Office of the Director of Public Prosecutions (Crown) Legal Aid (Accused) File Number(s): 2019/295787 Publication restriction: Nil REVISED EX TEMPORE Judgment Background 1. A very unusual conundrum has arisen in this trial about the role that s 428G of the Crimes Act 1900 (NSW) can play in the jury's consideration. It is to be found in Part 11A – Intoxication, and it is as follows: 428G Intoxication and the actus reus of an offence (1) In determining whether a person has committed an offence, evidence of self-induced intoxication cannot be taken into account in determining whether the relevant conduct was voluntary. (2) However, a person is not criminally responsible for an offence if the relevant conduct resulted from intoxication that was not self-induced. 1. The question arises in these circumstances. The accused has pleaded guilty to manslaughter, and therefore accepted that, on a basis that focuses on his actions taken as a whole that evening, he did commit voluntary acts that caused the death of the deceased. 2. That is in circumstances where, as I understand it, it is conceded that he smashed a whiskey bottle; and was then holding the broken neck of it, which was obviously very sharp; engaged in a struggle with the deceased; possibly placed it in the vicinity of the deceased's neck during that struggle; and thereafter the deceased suffered an ultimately fatal injury. 3. To repeat: the accused has accepted that in those circumstances he is guilty of manslaughter by way of unlawful and dangerous act. 4. Throughout our lengthy but very helpful discussions, counsel and I have used the shorthand of referring to overarching voluntariness, focussing on Mr Egan's actions as a whole, as "macro-voluntariness". 5. What defence counsel has made clear is that what we have called "micro-voluntariness" – namely any particular alleged movement underpinning the alleged stabbing itself – is disputed, as to whether it was a willed movement of the muscles or not. 6. A further complication – and of course I do not refer to these complications in any sense critically – is that the Crown has accepted the following. The establishment of that fact – namely that at the time of the alleged stabbing there was a willed movement of the accused underpinning it – is an indispensable intermediate fact, about which the jury would need to be satisfied beyond reasonable doubt, before the jury could be satisfied beyond reasonable doubt about one or other of the mental elements for murder, intention to kill or intention to cause grievous bodily harm: see generally Shepherd v The Queen (1990) 170 CLR 573; [1990] HCA 56. Conundrum 1. The question arises then whether in those circumstances - in which in a nutshell, although macro-voluntariness is not disputed by defence counsel as an element either for murder or manslaughter, but micro-voluntariness is disputed as a piece of evidence and indeed a piece of evidence the establishment of which is an indispensable intermediate fact, s 428G has any prohibiting role to play. 2. At first, I thought that it did, and I invited the attention of the parties to it. 3. Madam Crown submits that it does. Summarising her submission succinctly, I understand it to be that, thinking about the objective intention of Parliament underpinning the introduction of Part 11A into the Crimes Act in 1995, Parliament is not to be understood to have permitted s 428G not to apply in these circumstances. 4. As well as that, I think the point can be made for the Crown that it is undoubtedly odd, for want of a better word, if in some circumstances intoxication is to be absolutely disregarded with regard to voluntariness, but in other circumstances - the unusual ones that arise here - it may be able to be taken into account. 5. I respectfully see the force in that. But I do believe in the unusual circumstances here that the prohibition in s 428G does not apply. I say that for the following reasons. 6. First, in the heading of the section, Parliament has used a Latin phrase that can be translated into English as the physical element of an offence. But the distinction that has been drawn here is that the accused is not denying the physical element of the offence of homicide. 7. That is the inevitable implication of his plea of guilty to manslaughter, and it has been made quite clear now, for abundant caution by defence counsel, that he is not denying the physical element of murder either. 8. In other words, the heading itself, I believe, is focussed upon elements, and denials of elements, as they pertain to the physical components of an offence. But here what is in play, for want of a better phrase, is not an element; it is conceded. What is in play between the parties is a dispute about evidence. 9. Secondly, and in similar vein, s 428G(1) reads "In determining whether a person has committed an offence, evidence of self-induced intoxication cannot be taken into account in determining whether the relevant conduct was voluntary". 10. Now again, at first blush one might think that is a blanket prohibition. But on deeper analysis, I do not believe that it is. It is focussing, I believe, on whether an offence has been committed at all; in other words, whether there has or have been any voluntary act or acts by the accused giving rise to criminal liability. 11. And I believe that the phrase at the end of s 428G(1) "whether the relevant conduct was voluntary" leads one back to the concept of the conduct relevant for establishment of an offence. 12. To repeat myself: the offence of homicide, looked at globally, is conceded here. What is resisted is the difference in elements between murder and manslaughter; that is, the mental elements that are necessary for murder that are not necessary for manslaughter. 13. Furthermore, as a matter of evidence but not as an element, the question is whether the particular movement underpinning the precise moment of the stabbing was a willed one. 14. In other words, delving more deeply into s 428G, in a nutshell and speaking very generally, I believe that it affects disputed elements with regard to voluntariness, not disputed evidence about the same question. 15. The third aspect is that it is well known that Part 11A worked significant alteration to the common law. It did so after basal questions about liability arose from The Queen v O'Connor (1980) 146 CLR 64; [1980] HCA 17, and in particular the divergence between the law of Australia and that of England and Wales as shown by The Queen v O'Connor and R v Majewski (1976) 2 WLR 623; [1977] AC 443. 16. There is no doubt that, taken as a whole, Part 11A expanded criminal liability in New South Wales with regard to intoxicated persons. 17. Speaking generally, in accordance with the principle of legality, if there is to be an expansion of inculpation, I believe that that needs to be expressed very specifically. In other words, if there be ambiguity about s 428G, I should shy away from reading it as an intrusion into exculpation by way of common law principles. 18. As I have said, my analysis can be understood as a whole as focussing on the proposition that what is in dispute here is an evidentiary matter, not a elemental matter. 19. I have been told that the Second Reading Speech sheds no light on this particular conundrum. Nor does any other case that has been able to be found by either of the parties, or of which I am aware. 20. I think the only other aspect to record is the following fourth matter. Although the outcome could be said to be odd in one sense, in another sense, I think it could be said to make sense, and perhaps be generally consonant with the objective intention of Parliament with regard to Part 11A. In particular, it could be consonant with the fact that the Part sought to bring a nuanced, discriminating approach to the problem of the intersection between self-induced intoxication and criminal liability. 21. What I mean is that this conundrum has arisen in a situation in which, and to a degree because, the accused has pleaded guilty to manslaughter. I think that my analysis could well be different if there were a complete denial on his part of homicide, and the assertion were that he is entitled to a complete acquittal. 22. To put that another way: if the element of voluntariness were in dispute, as opposed to this particular evidence about voluntariness, I think that the outcome would be different. 23. In summary: on a broader analysis, what is happening here is that the accused is disputing the specific intents necessary for murder, which he is perfectly entitled to do, including of course by way of asking the jury to reflect upon self-induced intoxication, in accordance with Part 11A. 24. Thereafter, underpinning that dispute is a further dispute about the particular movement he is alleged to have undertaken, which is accepted by the Crown to be an indispensable intermediate fact in proof of specific intent. 25. In other words, on reflection, I think that my analysis is generally consonant with the structure that Parliament enacted a quarter of a century ago. Conclusion 1. For all of those reasons, in accordance with draft Document 4 as it currently stands, I do propose to direct the jury that intoxication - and I interpolate that there is no question here of anything other than self-induced intoxication - can be taken into account with regard to whether the indispensable intermediate fact, of the particular movement of the muscles that underpinned the stabbing having been a willed one, has been established. Order 1. Direct the jury 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. ********** DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 16 December 2021