R v Willmot (No 2) [1985] 2 Qd R 413

In R v Willmot (No 2),¹ the Court of Criminal Appeal considered whether the jury were misdirected on the element of intent in a murder conviction under s 302(1) of the Criminal Code.

COURT: Court of Criminal Appeal (DM Campbell J, Connolly and Moynihan JJ).

PROCEDURAL HISTORY: After a four-day trial, Willmot (Appellant) was convicted of murder pursuant to s 302(1) of the Criminal Code Act 1899 (Qld) (‘Criminal Code‘).²

FACTS:

1. Police found the victim deceased in her unit, bound and gagged, with a cord around her neck and visible injuries.³
2. A post-mortem confirmed the victim died from asphyxia, caused by the gag and ligature.⁴
3. Under cross-examination at trial, Willmot claimed he neither wanted nor intended to kill the victim; also admitting in a record of interview: ‘I went there with the intention of having sex with her’.⁵

GROUNDS FOR APPEAL:

The appellant appeals against their conviction on the ground that the trial judge misdirected the jury of the meaning of intention, as an element of murder under s 302(1) of the Criminal Code.

ISSUE:

Whether the trial judge erred in directing the jury on the meaning of intent?

RELEVANT LAW:

CRIMINAL CODE ACT 1899 (QLD) — MURDER

Section 302(1) of the Criminal Code Act 1899 relevantly provides for murder:

[A] person who unlawfully kills another under any of the following circumstances, that is to say–
(i) If the offender intends to cause the death of the person killed or to do the person killed some grievous bodily harm:
… is guilty of “murder”.⁶

DECISION:

The Court of Criminal Appeal agreed with the trial judge’s decision that the end need not be positively desired to bring s 302(1) of the Criminal Code into operation, however, the judge’s clarification of the meaning of intent could have led the jury to conclude that ‘all they had to be satisfied of was that the appellant foresaw the outcome of his conduct as a possibility’ (at [44]).⁷ This was a fatal misdirection requiring a new trial, because the appropriate test was that the risk should be highly probable, following Hyam v DPP.⁹

Connolly J warned of the dangers of trying to define the word ‘intention’ to the jury.¹⁰ After consultation with the Shorter Oxford Dictionary for a definition, ‘intends’ is ‘to mean, to have in mind’, which excludes the notion of desire, his Honour citing Moloney,¹¹ in support there is:

[N]o ambiguity about the expression as used in s 302(1) and it is not only unnecessary but undesirable, in charging the jury, to set about explaining an ordinary and well understood word in the English language.¹¹

Connolly J concluded (at [47]) that if there was direct evidence of the accused’s awareness that death or grievous bodily harm would probably result from his actions: ‘it is open to them [the jury] to infer from it that he intended to kill or do grievous bodily harm as the case may be’.¹²

FOOTNOTES:

1. R v Willmot (No 2) [1985] 2 Qd R 413 (‘Willmot‘). ↩︎
2. Australian Taxation Office for the Commonwealth of Australia, ‘R v. Willmot (No 2)‘ (Web Page, 13 February 2025) <https://www.ato.gov.au/law>. ↩︎
3. Ibid. ↩︎
4. See Willmot (n 1). ↩︎
5. Ibid. ↩︎
6. Criminal Code Act 1899 (Qld) s 302(1). ↩︎
7. Willmot (n 1) 44, cited in Andrew Hemming, Criminal Law Guidebook: Queensland and Western Australia (Oxford University Press, 2021) 131 (‘Hemming‘). ↩︎
8. Hyam v Director of Public Prosecutions [1975] AC 55, 74, cited in Hemming (n 7). ↩︎
9. See Hemming (n 7). ↩︎
10. R v Moloney [1985] 2 WLR 648, 664. This case concerned criminal intent and the distinction between murder and manslaughter. ↩︎
11. See Hemming (n 7). ↩︎
12. Willmot (n 1) 47, cited in Hemming (n 7). ↩︎