In what could prove to be an appallingly bad mistake, Steven Marshall, the Premier of South Australia has re-opened schools on the basis that it is safe to do so because of Australia’s relatively low COVID-19 infection and death rates.
What follows is a 12,000 word communication sent in an email at approximately 2.00 P.M. on the 28th April 2020 , in which I point out numerously scientific and legal reasons why re-opening South Australia’s public school may have been a violation of Commonwealth ‘Reckless Conduct’ and South Australian ‘Serious Risk to Public Health’ laws.
Being right is not the issue.
Saving lives is.
To: Mr. Steven Marshall MP
Premier of South Australia
Dear Mr. Marshall,
In the nutshell:
You have misled the people of South Australia; COVID-19 is a Category A virus, which may explain why only Year 12 students in Wuhan may return to school to sit for their exams. All other schools in Wuhan are closed. If anyone in South Australia dies because of your actions, you can be held accountable before the courts.
COVID-19 is so dangerous the federal government wants people to use the COVID APP and Professor Brendan Murphy wants concerts banned until everyone in Australia is vaccinated.
Bush, Blair and Howard lied, both to themselves and to us, with the “Iraq did not have weapons of mass destruction” and as a consequence, hundreds of thousands of innocent people have died.
In addition, over a period of decades, federal politicians have blatantly lied and as direct consequence, millions of people have been defrauded of billions of dollars and as yet un-numbered thousands of people have died.
As of 21:59 GMT on the 25th April 2020, the cumulative death toll from COVID-19 stood at 202,936 from cumulatively confirmed 2,912,046 cases of infection. It is also a fact that on the 19th March 2020, when 2,700 passengers were allowed to disembark from the MV Ruby Princess, there were 756 confirmed cases of COVID-19, in Australia. As of 21:59 GMT on the 25th April 2020 was 6,695 confirmed cases. At that point in time, there were also 80 known COVID-19 fatalities in Australia since the January 27th 2020.
Within the following information is the text of an email to the CEO of my 96-year-old mother’s nursing home at Craigmore. The social and economic pressure to re-open schools and to allow access to nursing home residents may result in fatal consequences as a result of what may prove to have been your violation the Reckless Conduct provisions in Section 31 of the Commonwealth Work Health & Safety Act 2011 (which is identical to SA’s Work Health & Safety legislation), and the deliberate violation of the Serious risk to public health provisions contained in Section 58 of the SA Public Health Act 2011. I am of the very public viewpoint that the deliberate violation of these statute laws by re-opening schools before the either a vaccine or a cure for COVID-19 exists may constitute a criminal act of reckless endangerment that is totally inconsistent with the duty of care that every South Australian public official, e.g. you, owes to every person in South Australia.
Therefore, in order to deprive you of plausible deniability, i.e. “I did not know”, these statutes are provided for your consideration. Section 31 of Commonwealth Work Health & Safety Act, which is binding upon every Australian resident, which of-course includes both you as a politician and myself as a semi-retired teacher. As residents of South Australia, we are both also bound by Sections 57 and 58 of the South Australian Public Health Act 2011, which are also provided to you. [NOTE: Bold and Italic text is used for clarity and emphasis.]
Commonwealth Work Health & Safety Act 2011 (Binding upon everyone in Australia.)
Section 31 Reckless conduct—Category 1
(1) A person commits a Category 1 offence if:
(a) the person has a health and safety duty; and
(b) the person, without reasonable excuse, engages in conduct that exposes an individual to whom that duty is owed to a risk of death or serious injury or illness; and
(c) the person is reckless as to the risk to an individual of death or serious injury or illness.
(a) In the case of an offence committed by an individual (other than as a person conducting a business or undertaking or as an officer of a person conducting a business or undertaking)—$300,000 or 5 years imprisonment or both.
(b) In the case of an offence committed by an individual as a person conducting a business or undertaking or as an officer of a person conducting a business or undertaking—$600,000 or 5 years imprisonment or both.
(c) In the case of an offence committed by a body corporate—$3,000,000.
(2) The prosecution bears the burden of proving that the conduct was engaged in without reasonable excuse.
[MY COMMENT]: With 2,826,035 cases of COVID-19 and 196,931 deaths since the outbreak began in December 2019, finding a legally valid “reasonable excuse” for deliberately violating these statutes and exposing 1,700,000 South Australians to this manifestly obvious life-threatening peril, is not legally possible.
32 Failure to comply with health and safety duty—Category 2
A person commits a Category 2 offence if:
(a) the person has a health and safety duty; and
(b) the person fails to comply with that duty; and
(c) the failure exposes an individual to a risk of death or serious injury or illness.
(a) In the case of an offence committed by an individual (other than as a person conducting a business or undertaking or as an officer of a person conducting a business or undertaking)—$150,000.
(b) In the case of an offence committed by an individual as a person conducting a business or undertaking or as an officer of a person conducting a business or undertaking—$300,000.
(c) In the case of an offence committed by a body corporate—$1,500,000.
South Australia: Public Health Act 2011. (Binding on all persons within South Australia.)
57—Material risk to public health
(1) A person who causes a material risk to public health intentionally or recklessly and with the knowledge that harm to public health will result is guilty of an offence.
Maximum penalty: $250,000 or imprisonment for 5 years or both.
(2)A person who causes a material risk to public health in circumstances where the person ought reasonably be expected to know that harm to public health will result is guilty of an offence.
Maximum penalty: $120,000 or imprisonment for 2 years or both.
(3)A person who causes a material risk to public health is guilty of an offence.
Maximum penalty: $25,000.
Expiation fee: $750.
(4) For the purposes of this section, a material risk to public health occurs if the health of 1 or more persons has been, or might reasonably be expected to be, harmed by an act or omission of another, but does not include a case where the harm, or risk of harm, is trivial or negligible.
58—Serious risk to public health
(1) A person who causes a serious risk to public health intentionally or recklessly and with the knowledge that harm to public health will result is guilty of an offence.
Maximum penalty: $1 000 000 or imprisonment for 10 years or both.
(2) A person who causes a serious risk to public health in circumstances where the person ought reasonably be expected to know that harm to public health will result is guilty of an offence.
Maximum penalty: $500 000 or imprisonment for 7 years or both.
(3)A person who causes a serious risk to public health is guilty of an offence.
Maximum penalty: $120 000.
I would also draw your attention to the fact of law that you as a politician, Dr. Spurrier as a member of the medical profession, and myself as a member of the teaching profession, are also bound by the Manslaughter provisions in Section 13(1) of the South Australian Criminal Law Consolidation Act (1935):
(1) Any person who is convicted of manslaughter shall be liable to be imprisoned for life or to pay such fine as the court awards or to both such imprisonment and fine.
A member of the teaching profession since 1971, given the above-mentioned statute laws and the professional Duty-of-Care responsibilities of teachers, I am of the viewpoint that no school principal should allow staff, students, or any other member of the community, into school environments until such time as they can present a COVID-19 vaccination certificate.
The failure to require such a certificate means that the principal would be playing Russian roulette with the health, welfare and the safety of students, staff, and the broader community.
Civil Liability: The Donoghue Decision
“In 1932 Lord Atkin handed down a judgment that would become one of the most significant cases of the common law world, Donoghue v Stevenson.  AC 562
As the above comment from a Queensland Supreme Court library’s web page makes quite clear, the Donoghue decision established a significant Common Law legal precedent regarding the complex issue of Foreseeability and Accountability. In the context of over 202,000 COVID-19 deaths in just 3 months, the potential legal liability for South Australian taxpayers stemming from fatal errors of judgement by either Dr, Spurrier or yourself, is of mind-boggling enormity.
The US$20 million compensation payment to the family of Justine Damond in May 2019 makes it very clear that it is not ‘good government’ to deliberately expose South Australian taxpayers to such potentially massive legal liabilities by placing the lives of students and staff at risk for the presumed benefit of maintaining the children’s education.
“Facts do not cease to exist because they are ignored.” (Aldus Huxley – 1927)
The following 10 points raise further issues that you most definitely should not ignore:
POINT #1: As stated previously, we are both accountable under the above-mentioned laws as well as Commonwealth and State criminal codes that deal with the legal of mens mala when it comes to the reckless endangerment of life. Whilst I intend to uphold the law, the re-opening of schools may be compelling evidence of your utter contempt for the law.
POINT #2: SEEK LEGAL ADVICE: Your ability as the Premier of South Australia to misuse your lawful authority and by your actions or inactions, exacerbate the life-threatening risk posed by COVID-19, may, in law, constitute reckless conduct by ‘playing’ Russian roulette with the lives of every person in South Australia. However, the power to so recklessly endanger the lives of the people of South Australia does not imply the legal right to do so. If your actions result in serious illness or fatalities as a consequence of the re-opening schools and nursing home access, et cetera, then this email may be used as evidence that deprives you of any plausible deniability in any subsequent criminal or civil proceedings.
POINT #3: As is pointed out in the following text of my email to the CEO of Estia nursing homes, the Commonwealth is facing legal actions in both the Federal Court and in the International Criminal Court (the ICC). Currently, there is about ‘half-a-bus-load’ of South Australian public officials who may face indictment and prosecution in the ICC. These public officials may include people who chose to “see no evil”, e.g. Lee Odenwalder, Commissioner Grant Stevens, Superintendent Grant Moyle, Chief Inspector Tim Grant, Detective Richard Miles, Sheriff Mark Stokes, Coroner, Mark Johns, and your current Health Minister, Stephen Wade.
It is my belief that all of these people need to be held accountable for their failure to prevent a humanitarian disaster that is quite literally of holocaust proportions and that this accountability should occur under Australia’s judicial system rather than in the ICC.
POINT #4: In view of the repeated failure of Australia’s criminal justice system to prevent what I have chosen to publicly denounce as the “Appropriate Compliance Measures Murders”, I shall continue to press for an ICC investigation into these officially “irrelevant” deaths.
This means that once my email server confirms that your email server has received this email, I shall forward this email to the Information & Evidence gathering Unit of the ICC.
POINT #5: Text to Speech (TTS) and audio-video screen capture are software tools that are built-in to Windows 10. Both the sending of this email communication to you, and the forwarding to the ICC, will be screen-capture-video-recorded. As per my comments in Point #2 above, if required this video may be made available if you face criminal or civil proceedings for violating Commonwealth and State safety laws and/or criminal codes.
POINT #6: In addition, in order to assist the New South Wales Independent Inquiry into the Ruby Princess disaster to gain insight into the mindset of some politicians and senior public health officials who may be prepared to put political and economic agendas ahead of public safety, the text of this email will also be forwarded to Commissioner Bret Walker SC.
Sadly, the inquiry into the deaths of 99 aboriginal people in custody, the HIP inquiry, the Sexual Abuse of Children inquiry, the Nyland Inquiry, the Financial Services Royal Commission inquiry, the 2 Oakden Nursing Home inquiries, and the subsequent Royal Commission into the abuse of people in aged care facilities, are just a small subset of a very long list of official inquiries over the last 30-years into politically mismanaged blunders that, like the MV Ruby Princess fiasco, have resulted in fatal consequences.
POINT #7: One recurring feature of this seemingly endless stream of public inquiries is that the politicians and public officials who were most responsible for these fiascos invariably attempt to distance themselves from any responsibility or accountability for their negligence. For example, consider the excuse used by SACON and DECS officials in the following redacted minutes of a December 1993 meeting that DECS officials subsequently denied any knowledge of:
Minutes-forming Enclosure to
CC: MANAGER – REGIONAL SERVICES MANAGER – MINERAL FIBRES
RE: PUBLIC SECTOR AUDITS
Following initial audits carried out in this Region from the <Content deleted > list of <deleted> sections of the public sector, the Education Department has raised questions on requirements of certain aspects of our demands following <deleted> by Inspectors on <deleted> noted in some of the schools. One particular area of their concern has been the necessity to have in place where applicable an asbestos register.
Their claim was that they had five years to comply.
A meeting was held on Wednesday 23 December 1992 in the Conference Room on the 5th level of Natwest building to discuss these issues.
D L Blacker Regional Manager – Southern 4th January 1993
Circa 1990, an SA Health report in the media revealed that by 2020, an estimated 20,000 people in South Australia would either be dead, or dying of asbestos related illness. However, SA Health could not explain the primary source of the asbestos contamination.
In November 2005, whilst speaking on ABC Radio 891, Nick Xenophon described South Australia as the “Asbestos capital of the world”. However, he also could not explain why this was so.
In 1993, just months, after the secret meeting mentioned above, some of the DECS and SACON officials who were involved in that meeting participated in the rigging of safety tests of dust and fume extraction equipment at Cleve Area School. Graphic video of some of the “next door to useless” dust extraction equipment installed in the school’s Technical Studies classroom can be seen at the following URL:
Similar denial-of-accountability-deficiencies can be identified in the following statement, which was made by Senator Brandis during an ABC #QandA broadcast on the 20th February 2017:
“Now, this system involves a review of potentially millions of transfer payments, so of course there will be mistakes made, and I agree with what Piers Ackermann said, that when mistakes are made and they have terrible human consequences, then off course that’s a tragedy. But we do have to have appropriate compliance measures and the idea of data matching, introduced by Hawke and the idea of automated letters being sent to people when there is a discrepancy evident from the data-matching between the ATO data and the Centrelink data; it was introduced by you, is not a bad system. The methodology that has been used by this government is the same methodology that we inherited from you.”
In just 8-months, Centrelink’s fatal “mistakes”, which were justified on the basis of the need for “appropriate compliance measures” that had originally been introduced by the Hawke government, may have resulted in the deaths of some 630 welfare recipients. The failure to of any federal, state or territory law enforcement agency to investigate the “terrible human consequences” of Centrelink’s mistakes then resulted in another 1,400 fatalities over the next 20-months that were dismissed by as being of no significance because these deaths represented only 0.21% of the number of people who had received the now known to be unlawful ‘Robo-debt’ claims.
On the 18th September 2019, when speaking to David Koch on the Channel 7 Sunrise program, Scott Morrison made the following statement: Well, we want to make that process better, but I think the extent of this has been overstated by the Labour Party for obvious reasons.
Umm. And they used to run the same processes themselves, they just weren’t as, weren’t as forward leaning on ensuring that taxpayer’s money, when it was handed out in welfare and things like this, er, umm, was recovered where it should be.
The “they used to run the same processes themselves” statement by Scott Morrison confirmed the statement made by Senator Brandis in February 2017, i.e. that the now know to be unlawful, randomly lethal, Robo-debt ‘initiative’ had been set up the Labor Party. Whilst buck-passing the blame for initiating this brutally vicious traumatic fraud, Scott Morrison totally ignored both the known high error rate , which violated Section 142.2 of the Commonwealth criminal code, and, by his silence, he also abrogated a death toll that exceeded 2,000 since the 1st July 2016.
Commissioner Ian Hanger left readers of his report in no doubt about the inadequate leadership of Ms. Janine Leake in fatal fiasco that resulted in the 4 Home improvement Program fatalities. His comments in Sections 6.8 – 6.10 and his scathing criticism in Section 6.11, i.e. “It is a shame that those entrusted with the implementation of the HIP did not adhere to these principles” now raises serious questions concerning the adequacy, and merit of the information that has been provided by Commonwealth, State and Territory Chief Medical Officers to their respective governments? It is also important to note the legal implications in the following statements by Commissioner Hanger:
14.6.6 The APS ought to reinvigorate its willingness to provide, in writing, advice that is as frank and robust as the advice it is willing to give verbally. This requires cultural change of two kinds:
188.8.131.52 “senior officials and Ministers being aware they are entitled to act contrary to advice. The fact they received advice contrary to the way in which they act is no necessary or automatic basis to impugn the decision…”\
Quite clearly, when public officials provide “frank and robust advice” advice that is inconsistent with the real-world situation, or the government’s statutory or Common Law obligations, then Ministers are under no obligation to comply with that advice. Ministers have a sworn obligation to uphold the law and therefore legal responsibility and accountability for decisions that have fatal consequences rests with the Minister, not the advisor; a legal reality that every politician at every level of politics should never forget.
POINT #8: Consider the following report, which was posted on the Internet on the 17th April 2020: Coronavirus: Deputy Chief Medical Officer insists schools are safe to remain open
Precisely what was the Biometric Risk Assessment [BRA] made by the Deputy Chief Medical Officer that underpinned the rationality of that medical opinion, especially given that 9-days earlier the BMJ had indicated that the asymptomatic infection rates may be as high as 78% and, on the 10th April 2020, researchers published the following Journal of the American Medical Association (JAMA) article concerning the impact of COVID-19 in Wuhan.
Association of Public Health Interventions With the Epidemiology of the COVID-19 Outbreak in Wuhan, China. An Pan, PhD1; Li Liu, MD, PhD1; Chaolong Wang, PhD1; et al
JAMA. Published online April 10, 2020. doi:10.1001/jama.2020.6130
Results Among 32 583 laboratory-confirmed COVID-19 cases, the median patient age was 56.7 years (range, 0-103; interquartile range, 43.4-66.8) and 16 817 (51.6%) were women. The daily confirmed case rate peaked in the third period and declined afterward across geographic regions and sex and age groups, except for children and adolescents, whose rate of confirmed cases continued to increase. The daily confirmed case rate over the whole period in local health care workers (130.5 per million people [95% CI, 123.9-137.2]) was higher than that in the general population (41.5 per million people [95% CI, 41.0-41.9]). The proportion of severe and critical cases decreased from 53.1% to 10.3% over the 5 periods. The severity risk increased with age: compared with those aged 20 to 39 years (proportion of severe and critical cases, 12.1%), elderly people (≥80 years) had a higher risk of having severe or critical disease (proportion, 41.3%; risk ratio, 3.61 [95% CI, 3.31-3.95]) while younger people (<20 years) had a lower risk (proportion, 4.1%; risk ratio, 0.47 [95% CI, 0.31-0.70]). The effective reproduction number fluctuated above 3.0 before January 26, decreased to below 1.0 after February 6, and decreased further to less than 0.3 after March 1.
Conclusions and Relevance A series of multifaceted public health interventions was temporally associated with improved control of the COVID-19 outbreak in Wuhan, China. These findings may inform public health policy in other countries and regions.
The following information was published by Lia Lin Thomola on the 24th April 2020:
As of April 24, 2020, the novel coronavirus COVID-19 that originated in Wuhan, the capital of Hubei province in China, had infected over 84 thousand people and killed around 4,600 in the country. No death cases had been registered in the country for eight consecutive days. On April 17, 2020, health authorities in Wuhan revised its death toll, adding 50 percent more fatalities. After quarantine measures were implemented, the country reported no new local coronavirus COVID-19 transmissions for the first time on March 18, 2020. Over 90 percent of the patients had recovered.
Moving beyond the technical complexity of the above research findings, the core facts concerning COVID-19 are not difficult for the average person to understand:
[A] There is no known cure or vaccine for Coronavirus.
[B] World-wide, on the 17th April, the day when NSW Deputy Chief Medical officer made that statement, 8,347 people reportedly died of COVID-19 infection.
[C] Young people may not suffer serious harm but old people had a very high death rate.
[D} Almost 1 in infected people may be asymptomatic and not show symptoms.
[E] In the period Midnight on the morning of the 17th April to Midnight on the evening of the 24th April, a period of 8 calendar days, the COVID-19 death toll rose from 145,574 to 197,091.
[F] The death toll had increased by 51,527, i.e. an average of 6,439 deaths per day or 264 deaths per hour.
What these death statistics reveal is that until such time as the national community is immunized against COVID-19, the political push to re-open schools is the biological equivalent of Russian roulette, especially for the grandparents of school students who may provide after-school-care.
COMMUNITY RISK FACTORS:
Covid-19 research data from sources around the world draws attention to the impossible to define community risk factors, which may be unique to specific individuals. For example, I will be 72 years old in May; have both Diabetes and Pernicious Anaemia, and I am currently recovering from a bout of X-ray confirmed Pneumonia. Together, these 4 risk factors make it abundantly clear that if I come into contact with a student or fellow teacher who has an asymptomatic COVID-19 infection, the most likely outcome is that I will die. The same outcome is likely for any vulnerable person, e.g. a student with diabetes and/or asthma, or a staff member with an undiagnosed immune system problem.
The problem with schools is that they are a foreseeable concentration point for both the source of COVID-19 infection and potential victims of COVID-19 infection.
POINT #9: At 14.6.9 and 14.6.10 of the HIP Report, Commissioner Ian Hanger stated that “Good advice from the APS is unbiased and objective… Responsive advice is frank, honest, comprehensive, accurate and timely. The advice should be evidence-based, well argued and creative, anticipate issues and appreciate the underlying intent of government policy. Responsive advice is also forthright and direct and does not withhold or gloss over important known facts or ‘bad news’.
Those comments reflect the role of experts who advice the Courts on technical issues that jurists may not appropriately qualified to make informed legal judgements about. In the United States, the Federal Judicial Center produces a reference text that is used by United States courts as a guide to dealing with complex technical issues such as ‘expert’ evidence.
“First published in 1994 by the Federal Judicial Center, the Reference Manual on Scientific Evidence has been relied upon in the legal and academic communities and is often cited by various courts and others. Judges faced with disputes over the admissibility of scientific and technical evidence refer to the manual to help them better understand and evaluate the relevance, reliability and usefulness of the evidence being proffered. The manual is not intended to tell judges what is good science and what is not. Instead, it serves to help judges identify issues on which experts are likely to differ and to guide the inquiry of the court in seeking an informed resolution of the conflict.”
The above statement can be found at the following URL, which also contains a hyper-link to a free download of the Scientific Reference manual:
Pages 22 – 23 and contains the following statements, concerning the question as to whether or not a person may be regarded as an “expert”:
“As a threshold matter, the witness must be qualified as an expert to present expert opinion testimony. An expert needs more than proper credentials, whether grounded in “skill, experience, training or education” as set forth in Rule 702 of the Federal Rules of Evidence. A proposed expert must also have “knowledge.” For example, an expert who seeks to testify about the findings of epidemiological studies must be knowledgeable about the results of the studies and must take into account those studies that reach conclusions contrary to the position the expert seeks to advocate.”
This definition of an expert is consistent with the views expressed by Commissioner Ian Hanger that the advice provided by senior Australian Public Service advisors should be unbiased and objective, frank, honest, comprehensive, accurate and evidence-based.
POINT #10: Both the statistical evidence concerning the lethal spread of COVID-19 and the evidence-based opinions of highly respected independent non-government experts, e.g. Professor Xihong Lin [Biometrics; Harvard School of Public Health] and an April 7th British Medical Journal [BMJ] article seriously call into question potentially biased medical opinions that present only a carefully selected facts intended to justify the re-opening of schools.
Published on the Internet at April 8, 2020 12.45am AEST a BMJ article revealed that up to 78% of people with COVID-19 do not show symptoms:
Coronavirus: BMJ study suggests 78% don’t show symptoms – here’s what that could mean
The findings are in line with research from an Italian village at the epicentre of the outbreak showing that 50%-75% were asymptomatic, but represented “a formidable source” of contagion. A recent Icelandic study also showed that around 50% of those who tested positive to COVID-19 in a large-scale testing exercise were asymptomatic.
Meanwhile, a WHO report found that “80% of infections are mild or asymptomatic, 15% are severe infections and 5% are critical infections”. Though we don’t know what proportion of that 80% were purely asymptomatic, or exactly how the cases were counted, it again points to a large majority of cases who are not going into hospital and being tested.
The new BMJ study is seemingly different to the findings of studies from earlier in the pandemic, which suggested that the completely asymptomatic proportion of COVID-19 is small: 17.9% on the Diamond Princess Cruise Ship and 33.3% in Japanese people who were evacuated from Wuhan.
POINT #11: The public officials who allowed 2,700 people to disembark from the MV Ruby Princess never expected 22 people to die of COVID-19. Neither did they anticipate being the subject of a criminal investigation, a public commission of inquiry and a class action law suit.
In view of the life-threatening risk to vulnerable individuals in the Australian community, I believe that it is appropriate to vigorously challenge and question the views of government officials who may be misusing their professional and official status to promote the views of the government rather than presenting impartial ‘black hat’ facts . For example, how can any federal, state or territory government appointed expert claim that schools are safe when there is no cure and no vaccine for COVID-19, and asymptomatic rates amongst people who do not seek testing or medical support may be in the range 50-80% of community infection rates? With worldwide death rates daily being measured in thousands this is a compelling question as is the question as to how , with the re-opening of schools, or aged care facilities, are federal and state medical advisors able to justify their opinions in the face of these empirical facts the divergent opinions of internationally respected experts, and clearly worded statute law obligations such as Section 31 of the Commonwealth Work health & Safety Act and Sections 57 and 58 of the South Australian Public Health Act?
POINT #12: Politicians lie, and far too often, people die.
The Privy Council’s report to the English Parliament (HC 264, 6th July 2016) makes it very clear that the Coalition of the Willing lied their way into the war by falsely claiming to have ‘evidence’ that did not exist:
[Section 4.4 at paragraph 899] Reporting to President Bush, the Commission stated that “the [US] Intelligence Community was dead wrong in almost all of its pre-war judgments about Iraq’s weapons of mass destruction. This was a major intelligence failure.”
[At 900]. The evidence in this Section shows that, after the invasion, the UK Government, including the intelligence community, was reluctant to admit, and to recognise publicly, the mounting evidence that there had been failings in the UK’s pre-conflict collection, validation, analysis and presentation of intelligence on Iraq’s WMD.
If a March 2018 report by the Washington Post is accurate, around the world the cumulative death toll from the “Iraq has weapons of mass destruction” lie is, at minimum around 600,000, or possibly in excess of 750,000:
Tens of thousands of people died fighting in the Iraq War, which began 15 years ago Tuesday. Nearly 5,000 of them were U.S. service members. Tens of thousands were insurgents battling the transitional Iraqi government put in place after the ouster of Saddam Hussein.
But that figure obscures the actual number of deaths attributable to the conflict. During the war and during the Islamic State militant group’s occupation of as much as a third of the country in recent years, the number of deaths runs into the hundreds of thousands, including civilians killed as a result of violence and, more broadly, those who died because of the collapse of infrastructure and services in Iraq resulting from the ongoing conflict.
I believe that it is a statement of fact that a former South Australian resident, Kirsty Boden, died because John Howard and General Peter Cosgrove lied to the people of Australia. Had both men told the truth, i.e. that there was no “irrefutable evidence” that Iraq had weapons of mass destruction; merely their personal opinion that Iraq might have such weapons. The brazen lies and very public deceits surrounding the illegal invasion of Iraq, and the studious disregard by federal and state politicians for the lethal dangers posed by asbestos, and the more current problem of global warming, when combined with the massive deaths tolls that are measured in the hundreds of thousands, does not engender any high degree of confidence in the validity or integrity of politicians such as yourself and your post-election appointment of a ‘Yes Team’ of advisors, especially on the issue of COVID-19 and public safety. I would remind you that during the last South Australian election, you made a commitment to the people of South Australia not to further privatize the South Australian public transport, a promise that you recently broke.
I would point out that “non-core promises” contained in election policy statements are actually a criminal offence under the following SA Criminal Law Consolidation Act provision:
140—Dishonest dealings with documents
(1) For the purposes of this section, a document is false if the document gives a misleading impression about—
(a) the nature, validity or effect of the document; or
(b) any fact (such as, for example, the identity, capacity or official position of an apparent signatory to the document) on which its validity or effect may be dependent; or
(c) the existence or terms of a transaction to which the document appears to relate. by yourself.
The one upside to the life-threatening problem of COVID-19 is that it does focus people’s attention on the issue of survival and the need for informed responsible decisions by those appointed to deal with the problem. The text of a recent email to the CEO of Estia aged care homes is provided to underscore the fact that any decision-making on your part may be subject to the crucible of both public scrutiny and courtroom scrutiny. If nursing home operators allow people who have asymptomatic COVID-19 into nursing homes, the legal ramifications of multiple fatalities will be profound. The Amato decision, the Prygodicz class action and COVID-19 have all introduced new paradigms that politicians and public servants must now deal with. Parents of school-aged children, nursing home operators simply cannot take the risk that your decisions will place lives in danger. If you wish to flout the law and deliberately place lives in danger for your own politically motivated ends, as happened with the murderous Robo-dent ‘initiative’, then you can reasonably expect to held accountable in the courts rather than the polling booth.
POINT #12(a): COVID-19 IS A CATEGORY A VIRUS – REALM RINOVIRA
Dealing with COVID-19 is not about maintaining education standards or the prevention of an economic meltdown. It is solely about the survival of the species. The COVID-19 virus may have been a man-made virus that escaped from a Level 4 containment facility at the Wuhan Biological Research Centre, or it may be an ‘in-the-wild’ mutation of the SARS virus. Right now, the source of the virus is irrelevant. What matters is that COVID-19 is a Category A virus of the biological realm Ribovira, which is the same realm of virus as Ebola Zaire and Nile River Fever. In an ideal world, all persons who may be infected with COVID-19 would be treated in Level 4 negative pressure medical containment facilities.
“Murphy’s Law’: Professor Brandon Murphy is on the public record advising that concerts and hotel buffet meals are out until a vaccine is developed. It is therefore no great leap of logic that until a vaccine is developed, schools should also be ‘out’, i.e. NO VACCINE – NO SCHOOL. By promoting the false belief that ‘schools are safe’ you may have unleashed a Level 4 bio-hazard into the South Australian school system that could potentially kill thousands of people in South Australia.
Finally, are you able to provide parents and teachers with a copy of a World Health Organization document that independently substantiates your “schools are safe” claim?
Ronald Medlicott. Semi-retired teacher & volunteer lay-advocate.
EMAIL TO MR. IAN THORLEY, CEO OF ESTIA NURSING HOMES
Re: possibly premature winding back of COVID-19 restrictions by the federal government.
There is intense political, social and economic pressure upon governments around the world to wind back the very severe COVID-19 restrictions. Unfortunately, the COVID-19 virus, which is a Category A virus in the same class as Ebola Zaire, is totally insensitive to the pressures being placed upon governments and it is my recommendation that you seek independent advice concerning the appropriateness of relaxing the COVID-19 quarantine in Estia homes.
Death Toll Update Summary: In the 118 hours and 12 minutes of the period from Midnight on the evening of Saturday, 18th April to 22:12 PM on Thursday, 23rd April, there were 30,148 deaths, i.e. an overall average of 225 deaths per hour, or a death every 16 seconds.
 27th January 2020 – 17 deaths
 17th March 2020 – 7,979 deaths (An increase of 7,952 deaths in 50 days – approximately 160 deaths per day.)
 18th March 2020 – 8,591 deaths (612 more deaths – now at 25+ deaths PER HOUR)
NOTE: The MV Ruby Princess, after having “notified authorities” that some passengers had COVID-19, with at least 1 requiring hospital treatment and, incredibly, both the Federal Government and the New South Wales Government, in violation of long-standing Commonwealth and State quarantine laws, AND the Section 31 of the Commonwealth Work Health & Safety Act of 2011, allowed the MV Ruby Princess to not only dock, but to also freely disembark 2,700 passengers who were not placed in quarantine as per the cased with overseas airline passengers!
 19th March 2020 – 10,030 dead by the end of the day.
 20th March 2020 – 13,011 dead. (An increase of 2,981 deaths in 1 day – approximately 124 deaths per hour.)
APRIL 2020: 18th April datum point – 160,047
 19th April 2020 – 165,031 ( 4,984 deaths at an average of 207 per hour.)
 20th April 2020 – 170,379 ( 5,348 deaths at an average of 223 per hour.)
 21st April 2020 – 177,459 ( 7,080 deaths at an average of 295 per hour.)
 22nd April 2020 – 184,066 ( 6,607 deaths at an average of 275 per hour.)
 23rd April 2020 – 190,195 as of 22:12 Greenwich Mean Time. ( 6,129 deaths at an average of 276 deaths per hour.) 2,712,091 confirmed cases
Adding complexity is the radically changing circumstances caused by evidence being presented to the NSW Independent Inquiry into the MV Ruby Princess fiasco. Since the ship was allowed to dock and disembark passengers on the 19th March 2020, 21 people have died, (19 in Australia and 2 in the USA) and a reported 600 more people have been confirmed as COVID-19 cases.
Legal action has already been started in the USA and a class action is likely in Australia that is likely to highly successful due to the appalling ineptitude in the management of the COVID-19 crisis by Commonwealth and State governments.
Border Force blames NSW Health for letting Ruby Princess dock without coronavirus checks.
Australian Border Force has blamed New South Wales Health for giving the Ruby Princess the green light to dock in Sydney saying it was state authorities who decided not to send any health officers to the ship to check passengers for Covid-19.
In a forthright press conference, the force’s commissioner, Michael Outram, said ABF’s responsibilities for border control did not extend to health checks. But the NSW government is still insisting it was federal authorities who categorised the cruise ship carrying 2,700 people as “low risk”, resulting in the release of a major wave of 133 infections in the Australian community. In what is proving a catastrophe amid efforts to curb the spread of Covid-19 in Australia, politicians have expressed outrage that the system failed to isolate the Ruby Princess passengers and crew.
 THE FLIP SIDE:
Ruby Princess hotel manager ‘does not recall’ if Border Force involved in cruise ship disembarkation
The hotel manager on the Ruby Princess cruise ship has told an inquiry he “does not recall” the Australian Border Force being involved in the cruise ship’s docking and disembarkation in Sydney. Charles Verwall told the special commission of inquiry into the cruise ship that New South Wales Health had been involved, and had told the ship’s staff to ask sick passengers to present to the ship’s doctors, but did not want to conduct an on-board assessment before docking. Verwall also echoed the comments of the ship’s senior doctor, who told the inquiry yesterday that she was “surprised” passengers were allowed off the ship before coronavirus test results had come back.
On Thursday, Verwall told the inquiry that NSW Health officials boarded the ship on 8 March to conduct an assessment, but was surprised they did not do the same on the 18th or 19th. “We were expecting the same treatment from NSW Health as we received on the 8th,” he said. The manager said he was “surprised we were not screened by NSW Health in the morning [of the 19th]” even though swabs to be tested for Covid-19 had been taken.
Commissioner Bret Walker SC asked Verwall whether he observed any Australian Border Force officers having “any involvement of any kind in the disembarkation”.
“I do not recall that at all,” Verwall said.“You did not observe any ABF involvement at all?” Walker asked. “That is correct,” he said. Verwall also told the inquiry on Thursday that the cruise ship had been sailing “in the red zone” of the cruise company’s infectious disease scale for the entirety of the trip between 8 March and 18 March. Counsel assisting the inquiry, Richard Beasley SC, told the inquiry that the “infectious diseases policy of Princess Cruises has levels in green and red. “What level were you in when you docked on the 8th of March?” he asked Verwall. “We operated in the red level,” the hotel manager replied.
“Did the ship retain in that red zone through the voyage of 8th to 18th of March?”
“Yes.” Internal logs from the ship showed that more than 100 passengers had been ill when the ship docked in Sydney on 8 March. 2,700 passengers then boarded the ship that same day for a second cruise, which returned to Sydney on 18 March.Verwall told the inquiry that passengers were asked on the 16th and 17th to present to on-board medical staff if they had health issues, “at the request of NSW public health”. He then told the inquiry he did not observe any involvement of the Border Force in disembarkation. Walker asked the hotel manager: “Does it follow then, that there was nothing done to check passports? “I saw border patrol force was at the end of the terminal when guests were leaving, but I don’t think that was for guests, it was for crew,” he said.
He said he did not have any communication with managers or executives of the cruise ship’s operating company between 18 March and disembarkation on the 19th. The hotel manager also said they instituted an “elevated level of hygiene”, and this commenced before the second boatload of passengers boarded on 8 March. He said staff conducted “a complete sanitisation of all public areas and cabins”. However, he confirmed there were “dancers” and “a nightclub” on the ship and there “were no social distancing protocols” for those activities, or for the ship’s on-board cinema.
In Canberra, the commonwealth chief medical officer, Brendan Murphy, told a Senate committee into Covid-19 that he was “not directly involved” and “operational decisions” were made by state and territory human biosecurity officers.
TAKE NOTE OF THE FOLLOWING EXTRACTS FROM THE REPORT 2014 HOME IMPROVEMENT PROGRAM – MISMANAGING COVID-19 APPEARS TO BE A CASE OF HISTORY REPEATING ITSELF ON A VASTLY LARGER SCALE THAN THE HIP DISASTER.
The Report of the Royal Commission into the Home Improvement Program
175 years after the 1839 Royal Commission report to the English Parliament that Justice Brooking cited in Faure v. The Queen (see below), on the 31st August 2014, Commissioner Ian Hanger QC presented his report into the Home Improvement Program to the Governor-General. Some of the comments in what is now referred to as ‘The HIP Report’ are essentially a 21st century variation on the views expressed by the Royal commission in 1839.
ABROGATION OF RISK: Personal Abrogation of Risk – Ms. Janine Leake.
[At 7.12.207] Ms Leake said she had no part in the preparation of the Gantt charts but was ‘sure’ she would have had input into whether the times were realistic. She also consulted on the project schedule. She felt herself ‘one of the team’ rather than an expert providing advice. Doing so was a complete misunderstanding of her role. It meant that she abrogated responsibility for project management activities that the Program sorely required and which, no doubt, was one of the main reasons that the services of Everything Infrastructure had been retained in the first place.
[At 7.12.208] Her own evidence which I summarise below establishes that she did not take an interest in the matters in which a diligent project manager would have involved herself.
[7.12.209] At the 16 April PCG meeting, Ms Leake was given an ‘action item’ to work with Ms Murray-Pearce on the Risk Register. She worked, she thought, on the template, and how to calculate the significance of risk. She attended a working group meeting on 22 April 2009. Ms Leake was also given a task to set up bilateral meetings with Ms Kaminski and others. It is obvious that she did more than just set up the meeting, by looking at documents and so forth.
[7.12.210] On 22 April 2009, Ms Leake is recorded as having provided a Risk Summary and detailed Risk Analysis sheet prepared using Minter Ellison’s initial risk assessment. Ms Leake had no recollection of her having given any assistance in connection with the document or the meeting at which it was discussed. Nor could she remember anything material about exchanges that took place on about 22 April 2009 concerning training.
[7.12.211] Ms Leake also attended the PCG meeting on 8 May 2009 and the training workshop that also took place on that day. She did not know why. She thought she was there ‘as one of the direct reports to Kevin Keeffe’. Again these responses are highly unsatisfactory.
[At 7.12.214] The Government, Ms Leake said, would not have direct control over the program (including as to safety). She said she had these concerns ‘early on’ and raised them with Kevin Keeffe. She said that his response was that he would flag it ‘up the line’. This was insufficient. It was her responsibility to see such matters pursued.
[At 7.12.215] She knew that the full compliance program could not be put in place by 1 July 2009 and despite this, did not suggest putting back the HIP’s start date from 1 July 2009 to a later time. She made no inquiries about why the commencement date was apparently immovable. She thought the reason was that a ‘politician had made the announcement.’ One would expect that if she is involved with the HIP to provide “strategic management services” one would expect her to provide written advice to the effect: This can’t be done in the time allocated.
[At 7.12.216] I do not accept that Ms Leake’s role was as limited, peripheral and inconsequential as she said it was. She certainly sought to make it less significant than it ought, on any reasonable view, to have been, in both her statement and her oral evidence.
[At 7.12.217] Ms Leake declined an offer by the Commission to provide a further statement to deal with the matters which were the subject of her oral examination.
SYSTEMIC ABROGATION OF RISK: Governments Cannot Abrogate Risk .
[At 14.7.1 The identification and management of risks under the HIP was seriously deficient.
The risk of death and serious injury to installers, among the most serious of all the risks that might eventuate, was identified in working groups and in the risk identification process, but not recorded in the Risk Register and did not appear there until a death had occurred. This is the polar opposite of how a risk management process is supposed to work.
[At 184.108.40.206] Risk cannot be abrogated—Government must recognise that as much as it might seek to do so, risk cannot be abrogated. The responsibility of Government is to care for its citizens and to exercise care and diligence to do everything reasonable to ensure citizens are not placed in danger by its actions, particularly risk of death and serious injury.
[At 220.127.116.11.1] The Australian Government should not seek to abrogate responsibility for identified risk.
If another party (for example, a State or Territory Government) is identified as being able to mitigate an identified risk, this does not remove the Department’s responsibility to take the necessary steps to manage the risk and to ensure that others are doing the same.
The Australian Government should engage with the identified risk manager to ensure the adequacy of those arrangements for the new circumstance, and consider whether there are additional steps that it could take to complement that action.
SYSTEMIC FAILURE – WHY THE HIP WAS A DISASTER
[At 14.6.4] Public servants, like most people, are reluctant to jeopardise their employment in their chosen career.
[At 14.6.5] The solution is not to reinstate security of tenure. There are other means by which the importance of frank and fearless advice might be reinforced and, hopefully, made more common. I discuss them below.
[At 14.6.6] The APS ought to reinvigorate its willingness to provide, in writing, advice that is as frank and robust as the advice it is willing to give verbally. This requires cultural change of two kinds:
[18.104.22.168] senior officials and Ministers being aware they are entitled to act contrary to advice. The fact they received advice contrary to the way in which they act is no necessary or automatic basis to impugn the decision;
[At 22.214.171.124] public officials giving advice must be encouraged to think clearly, to free themselves as much as possible of institutional biases and taboos, and to have courage when giving advice.
[At 14.6.7] The APS ought to brief Ministers on the risks inherent in a recommended approach or advise on how the proposed approach might contain faults in the design or otherwise fail to work
Such a concerted focus on assessing the negatives associated with a proposal is a core component of the modes of thinking promoted by Edward De Bono—he refers to this manner of thinking as ‘black hat’ thinking’, and asserts that it should never be seen as an attempt to be obstructionist or argumentative, but instead should be seen as an opportunity to consider negative elements alongside the positives, and to make a decision informed by the balance of each.
As a practical measure, there should be a requirement to provide advice of this nature to Ministers at the same time as presenting a brief or proposal for a Minister’s consideration.
This could be done by including a section in the briefing template which requires the author to air risks relevant to the proposal (a ‘devil’s advocate’ section)—this would provide Ministers with an opportunity to make decisions fully informed about the implications and consequences thereof.
Officers must be supported to engage with personal risk when giving advice, rather than to remain complicit with a particular approach thought to be favoured by the Minister or a political adviser.
Senior officials must likewise satisfy themselves that advice concerning risks is accurate, independent, and comprehensive. Additionally, advice on risk, whether delivered in a written submission or verbally, should not be pitched at such a high level that it is impossible for the Minister to discern real tangible risks therein. Ministers and their advisers must not, by subtle suggestion or otherwise, dictate what advice they receive.
[At 14.6.8] Advice must be multifaceted. It must look at issues beyond the Department’s primary objective. For example, in the case of the HIP, advice on the economic impacts should have focused not only on the macro-economic stimulus impacts, but also on the likely impact on the industry itself in both the short and long term. For example a relevant consideration should have been the fact that at the end of the HIP (had it been successful) there would have been a lack of employment for those involved.
[At 14.6.9] As explained in Chapter 2 of the APSC Guide:
The APS works within, and to implement, the elected government’s policies and outcomes . . . Good advice from the APS is unbiased and objective. It is politically neutral but not naïve, and is developed and offered with an understanding of its implications and of the broader policy directions set by government.
[At 14.6.10] it is also said:
Responsive advice is frank, honest, comprehensive, accurate and timely.
The advice should be evidence-based, well argued and creative, anticipate issues and appreciate the underlying intent of government policy.
Responsive advice is also forthright and direct and does not withhold or gloss over important known facts or ‘bad news’.
Responsiveness demands a close and cooperative relationship with Ministers and their employees.
The policy advisory process is an iterative one, which may involve frequent feedback between the APS and the Minister and his or her office.
Responsive implementation of the government’s policies and programmes (APS Values (f)) is achieved through a close and cooperative relationship with Ministers and their employees.
Ministers may make decisions, and issue policy guidelines with which decisions made by APS employees must comply.
[At 14.6.11] It is a shame that those entrusted with the implementation of the HIP did not adhere to these principles.
[MY COMMENT] The Home Improvement Program was literally a lethal disaster because it was government economic policy driven rather than a safety driven government policy. Government advisors told the government what the government ministers wanted to hear instead of telling Ministers what they needed to hear. As the example above of Ms. Janine Leake reveals, when the process failed and people died, Rule 101 was deny any responsibility for causing the disaster.
CAVEAT EMPTOR: 6 years on and nothing has changed: Border force boss, Commissioner Michael Outram, and the Commonwealth’s Chief Medical Officer, Brendan Murphy are now making the same sort of excuses that Ms. Leake used in 2014 in order to abrogate any responsibility for this fatal fiasco.
Good decision-making on your part for the purpose of protecting Estia Homes clients requires the access to very best impartial, and objective inputs. I therefore strongly recommend that you consider watching the extremely informative, independent COVID-19 seminar hosted by the Broad Institute, an entity established by Harvard University and the MIT Schools of Public Health:
Infectious Disease & Microbiome Program Meeting, Broad Institute. March 20, 2020
PRESENTER; Dr.Xihong Lin – Professor of Biostatistics, HSPH, Professor of Statistics, Harvard University
The title is drop-dead boring, i.e. Evolving Epidemiology and Impact of Non-pharmaceutical Interventions on the Outbreak of Coronavirus Disease 2019 in Wuhan, China. However, Dr. Lin presents recent research, which the WHO used, when analyzing some 25,000+ lab-confirmed COVID-19 cases in Wuhan until February 18, 2020. The research findings could provide timely information on strategy development on controlling the outbreak in US and other countries. For CEO’s of aged care facilities, I would suggest that what Dr. Lin reveals about the impact of COVID-19 on senior citizens aged 60+ makes this 58 minute video compulsory viewing.
In making this recommendation, I would draw your attention to the following matters of fact:
 The Commonwealth is facing a class action law suit in the Federal court for ripping off 900,000 people with the Robo-debt “initiative”
 As the information in the URLs below reveal, the Commonwealth is facing the possibility of a Genocide & Crimes against Humanity investigation for the unreported, officially “irrelevant” death toll caused by 30-years of Robo-debt fraud and other systemic human rights violations that have caused thousands of preventable deaths.
ROBO DEBT – 2,030 dead Shalialah Medora
PEDESTRIAN TV: new data reveals over 2000 died after getting a Centrelink robodebt
SYDNEY CRIMINAL LAWYERS – Centrelink’s flawed Robo-debt is killing our most vulnerable.
Due to a Senate “confidential” classification, very few people in Australia are aware that in November 2005 the Senate’s Legal & Constitutional Affairs Legislation Committee secretly classified Submission 287 to the Anti-Terrorism Bill #2 Inquiry as “confidential” because this submission challenged the legality of the unreported welfare penalties triggered death toll.
Given the choice between making correct decisions that save lives, or making decisions that are politically popular, politicians have a deplorable track record of putting populism ahead of public safety, a fact underscored in the USA by Georgia’s government ignoring the COVID-19 threat by re-opening businesses tomorrow! Under Crown Law, such cavalier political populist decisions are a crime, but the law is not being enforced today as strictly as it was just 20 years ago; a fact underscored by the following 1999 Victorian supreme court decision, which predates the HIP Report by 15-years. Note that some of the precedents used by Justice Brooking data back to an 1839 Royal Commission report to the English Parliament that contains precedents that underpinned the 2014 HIP Report:
R v Faure  VSCA 166 (24 September 1999)
This appeal dealt with an appeal by a person who had engaged in a “game” of Russian roulette that resulted in a fatality. Crucial points of law cited by Justice Brooking in paragraphs 29 and 30 of the appeal concerning ‘mens mala’, i.e. deliberate intent, are based upon knowledge of the fact that an act could be dangerous to human life:
”The crime requires knowledge that it is probable that death or grievous bodily harm will result from the act.”
“It is the wilful exposure of life to peril that constitutes the crime.”
“Whether such a peril be wilfully occasioned is a question not of law but of fact, depending on a consideration of the nature of the act done, the circumstances under which it was done, the probability that the act under those circumstances would be fatal to life, and the consciousness on the part of the offender that such peril would ensue.”
“Malice, in the legal sense of the word, means, according to Mr Justice Foster, the mala mens, the heart bent upon mischief, as evidenced by general symptoms and circumstances.”
“[T]he question is properly one of fact, as dependent on the existence of peril, and the design to expose to peril.”
The state of the offender’s mind in thus exposing life to danger seems clearly to fall within the legal notion of mens rea for all purposes of plenary responsibility.”
The Supreme Court of Pennsylvania had no hesitation in affirming the conviction, observing (at 449) that the act had been done “in reckless and wanton disregard of the consequences
Justice Brooking’s findings:
[At 29] The second additional point worth mentioning concerns the case of reckless murder. The crime requires knowledge that it is probable that death or grievous bodily harm will result from the act. The requisite state of mind is predicated upon an objective fact – a probability.
It is regarded as “dangerous” for present purposes the pulling of a trigger even though the probability of the discharge of the firearm was mathematically quite low. As long ago as 1839 it was accepted by the distinguished English Royal Commissioners inquiring into the criminal law (Holdsworth, History of English Law, vol.15, p.143) that it would be murder if, knowing that one only of two (or three or four) pistols set before him was loaded, but not
knowing which one, the accused, for the pleasure of it, picked up one pistol, put it to another person’s head and pulled the trigger with fatal results. It is for this and another reason worth quoting at length from the Commissioners’ fourth report, contained in (1839) 19 Parliamentary Papers, pp.23-25:
“We proceed to offer some observations and illustrations, with a view to show that in the ordinary case where death is occasioned by the doing an act attended with manifest peril to life, the conclusion is properly not one of law but of fact, and that it is for the jury to decide whether the offender wilfully exposed life to manifest peril. Upon their affirming or negativing this proposition, the question whether he be guilty or not of murder, ought, we think, to depend. The ‘mens mala’, – the heart regardless of social duty, – are figurative expressions used to denote the criminal apathy or indifference with which an act is wilfully done which puts human life in peril.
Whether such a peril be wilfully occasioned is a question not of law but of fact, depending on a consideration of the nature of the act done, the circumstances under which it was done, the probability that the act under those circumstances would be fatal to life, and the consciousness on the part of the offender that such peril would ensue.
If A, knowing that one of two pistols was loaded with ball, but without knowing which, took one, and applying the muzzle to the head of B, pulled the trigger and shot him, having by chance taken the loaded one, this would be murder; for A wilfully placed B’s life in peril by his act. Here it was an even chance whether B was killed or not, – but it is evidence that the principle and the law founded upon it must be the same, even although the probability were less; as for instance, though the selection were made from three or four (one only being loaded) instead of two; although no doubt the degree of probability may be an important circumstance in ascertaining the fact of the intention of the offender to put in danger.
Neither the nature nor the degree of peril can possibly be the subject of legal definition; as well the knowledge of the offender that such peril exists, as the wilfulness of his act in proceeding notwithstanding that knowledge, are necessarily matters of fact, the existence of which is for the consideration of the jury. It may no doubt frequently appear, from the particular facts found by the jury, that the offender did wilfully expose human life to manifest peril, but still, as in numerous instances the court may be unable to draw the conclusion from the mere facts, it seems to be clear, as a general position, that the question is one of fact for the jury. In particular, it may be noticed that the fact of knowledge on the part of the accused, of the peril he was about to occasion by his act, must very frequently depend upon mere circumstantial evidence, upon the effect of which it is the province of a jury to decide. Malice, in the legal sense of the word, means, according to Mr Justice Foster, the mala mens, the heart bent upon mischief, as evidenced by general symptoms and circumstances.
When this definition is applied to an ordinary case of implied malice, as where a man throws a heavy stone over a wall into a street, through which many persons are likely to be passing, malice thus defined assumes a more precise meaning. The offender in such case does not intend the death or hurt of any one in particular, – the act may kill a stranger or may do no hurt at all: there is nothing, therefore, to make it criminal, and so to constitute implied malice, but the peril of destroying life wilfully occasioned. The ‘heart bent on mischief’ must in this case, and it is apprehended in all others, in the absence of a special definite rule of law which defines what is meant by implied malice, consist simply in the disregard of life manifested by exposing life to peril, although no malice in the popular sense of the term exist against any individual. It is the wilful exposure of life to peril that constitutes the crime. If one, knowing cakes to contain deadly poison, were to scatter them in a public street, and death were the consequence, the act would be murder, for the offender knew that what he did was likely to occasion loss of life; but if one did the same act without knowing or suspecting that the cakes contained poison he would be innocent in law as well as in morals, for, although the act be in truth equally dangerous whether knowledge exist or not, in the one case great peril to life is wilfully occasioned, and in the other not. And so in all cases it is essential to the criminality of the act, both in law and morals, not only that the act should in its own nature under the circumstances be attended with peril to life, but that the offender should be aware of such peril. Where the offender does an act attended with manifest danger to life wilfully, that is with knowledge of the consequences, he may properly be said to have the ‘mens mala, or heart bent upon mischief’; but if he does an act, however dangerous it be in its own nature, without any knowledge or suspicion of its tendency, that is, if he does not wilfully place life in peril, he cannot be said to show the mens mala, or heart bent on mischief. In such cases, therefore, it is plain that implied malice in law, according to Mr Justice Foster’s notion, means nothing more than the state or disposition of the offender’s mind when he wilfully does an act likely to kill or wilfully intends to put life in peril; but this is a conclusion to be drawn from the facts, viz., the probability that death will result from the act under the particular circumstances of the case, and the intention of the offender to occasion the peril regardless of consequences. …
In so atrocious a case as that of scattering poison, above, supposed, no doubt could well be entertained as to the guilt of the offender, dependent as it is on the circumstances of the act being in its own nature attended with manifest peril to life, and of the criminal intention on the part of the offender wilfully to place life in peril. In other instances, although the evidence be not so cogent, it will be found that the difficulties arise not from the necessity of calling in aid the operation of any new principle, or the applicability of those adverted to, but merely from doubt arising upon the matter of fact. The degree of probability that death will ensue from the act is susceptible of every variety from moral certainty to the remotest possibility; – the intention of the actor is also capable of degrees, closely indeed dependent on the greater or less degree of probability of mischief, from a direct intention to destroy life, to perfect innocence.
And such varieties, it may be observed, are not merely in proportion to the risk, but depend also on the knowledge and consciousness of the risk to life.
These elements are obviously matters of fact, to be decided as facts; they are beyond the reach of definition, and when probability of loss of life from doing the act, the knowledge of that probability on the part of the offender, and his criminal intention to occasion the risk have been determined in fact, the principle of law applies.
It is upon these principles that the different degrees of legal guilt, in the absence of a direct intention to kill, depend.
If poison instead of being, as in the case above supposed, used in such a manner as to occasion manifest danger to life, and with consciousness and knowledge of such danger, were to be used for the destruction of rats by placing it in a closet locked for greater precaution, the loss of human life would still be a barely possible, although most improbable, result from the act; a thief might by possibility break open the closet, and mistaking the poison for food, eat it and die. Here the fatal result would occur without the least blame, legal or moral, on the part of him who thus laid the poison. But between these two extreme cases lie an infinity of others, in respect of which important legal distinctions are requisite, although they may vary almost imperceptibly from each other, and particularly as to the degree of risk to human life which may be incurred. …
[T]he question is properly one of fact, as dependent on the existence of peril, and the design to expose to peril.”
The example of playing with pistols was given again by the Commissioners in their seventh report, printed in (1843) 19 Parliamentary Papers, p.24:
“[L]et it be supposed that a person knowing that one of two pistols is loaded, without knowing which, points one of them at the head of another person and draws the trigger, and (the loaded pistol having in fact been taken) shoots that person, the offender (consistently with the foregoing principles) ought to be deemed as fully responsible for the consequences as he would have been had he been aware that he took the loaded pistol, the fatal result being the same, and the mens rea existing in the one case as well as the other, without any such difference as to afford any substantial distinction for legal purposes. It seems to be clear that the application of the same principles would tend to the same conclusion, if instead of taking at hazard one of two pistols, one of three or of four, or of any other definite number, were taken, one only of that number being loaded. The probability of a fatal result would be diminished as the number from which the selection was made was increased, but still there would be a wilful risking of life attended with a fatal result, and as it seems a total absence of any intelligible principle of distinction for penal purposes. The state of the offender’s mind in thus exposing life to danger seems clearly to fall within the legal notion of mens rea for all purposes of plenary responsibility.”
[At 31] In 1946 the Supreme Court of Pennsylvania had before it an appeal by a young man of 17 convicted of the reckless murder of a 13-year-old boy with whom he had played “Russian poker”: Commonwealth v. Malone 354 Pa. 180; 47 A. 2d 445(1946). In Pennsylvania murder was divided into degrees by a statute which did not modify the common law rules defining murder, and in Malone the law was said to require for reckless murder an act of gross recklessness from which the defendant must reasonably anticipate death as likely to result.
The youth had placed a single cartridge in one of the five chambers of a revolver – he swore it was the chamber immediately to the right of the firing chamber – and placed the revolver against the boy’s side. He had then, without any spinning of the chamber, pulled the trigger three times, the third pull resulting in a fatal wound. The Supreme Court of Pennsylvania had no hesitation in affirming the conviction, observing (at 449) that the act had been done “in reckless and wanton disregard of the consequences which were at least sixty per cent certain from his thrice attempted discharge of a gun known to contain one bullet and aimed at a vital part of Long’s body”.
Ronald Medlicott. Registered teacher and volunteer lay-advocate