Armitage v The Queen - [2022] HCATrans 82

[2022] HCATrans 082

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
Brisbane No B68 of 2021

B e t w e e n -
STEPHEN ARMITAGE
Applicant
and
THE QUEEN
Respondent
Application for special leave to appeal

KEANE J
GORDON J
STEWARD J

TRANSCRIPT OF PROCEEDINGS

AT CANBERRA BY VIDEO CONNECTION

ON THURSDAY, 5 MAY 2022, AT 11.30 AM

KEANE J: In accordance with the Court’s protocol when sitting remotely, I will announce the appearances for the parties.

MR S.C. HOLT, QC appears with MR J.J. UNDERWOOD for the applicant. (instructed by Owens and Associates)

MR C.W. HEATON, QC appears with MR D. NARDONE for the respondent. (instructed by Office of the Director of Public Prosecutions (Qld))

KEANE J: Yes, Mr Holt.

MR HOLT: May it please the Court. We require an extension of time. I understand our friends only oppose if the matter is said not to have merit.

KEANE J: I think you can proceed on that footing.

MR HOLT: Thank you, you Honours. This application concerns the relationship fundamentally between the doctrine of joint criminal liability in Queensland, reflected in section 8 of the Code, and, more importantly, the principle known as the De Simoni principle that no one may be punished for an offence which he or she has not been convicted of, other than in particular circumstances. Here, in essence, our submission is that the applicant was punished by a sentence imposed on a resentencing by the Queensland Court of Appeal for allegations of torture when the Crown had withdrawn that charge of torture and chose not to proceed to a retrial in respect of it.

The error, in our respectful submission, is found at paragraph [64] of the judgment below. That is at page 86 of the application book. It is where the essence of the error is found. In essence, as the Court will know, what the Court of Appeal did there was to allow the sentence appeal on a relatively technical ground – that is, a ground associated with the calculation of the non‑parole period – and then come to resentence Mr Armitage and, in doing so, did so contrary to a submission that had been made before Mr Armitage in the Court of Appeal that he ought not be sentenced for any of the allegations that had underpinned the charge of torture which had been withdrawn.

The essence of the Court of Appeal’s reasoning at [64], which we say is in error and which founds the question of principle which arises on this application, is the claim that the particulars of torture constitute irrelevant circumstances of the offence of manslaughter by reason of the fact that the acts or omissions inform how manslaughter was a probable consequence of the prosecution of the common purpose.

Our respectful submission is to proceed in that way, that is, in essence, to say that other offences said to have been committed in the prosecution of a…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2022] HCATrans 82
Decision Date

CaseChat Overview and Summary

This matter came before the High Court of Australia on an application for special leave to appeal. The applicant, Mr Armitage, sought to challenge a decision of the Queensland Court of Appeal. The core of the dispute concerned the sentencing of Mr Armitage for manslaughter, specifically whether the sentencing judge and the Court of Appeal had impermissibly taken into account allegations of torture that had been withdrawn by the Crown and were not part of the manslaughter conviction.

The legal issues before the High Court were whether the sentencing of Mr Armitage for manslaughter had been vitiated by the application of the *De Simoni* principle, which prohibits punishing an individual for an offence of which they have not been convicted. The applicant argued that the Court of Appeal, in resentencing him, had effectively punished him for acts of torture by treating those allegations as aggravating factors for the manslaughter conviction, despite the Crown having withdrawn the torture charge and not proceeded to a retrial. The applicant contended that the particulars of the alleged torture constituted irrelevant circumstances for the manslaughter offence, and their consideration breached the *De Simoni* principle.

The applicant's primary submission was that the Court of Appeal erred by allowing the particulars of the withdrawn torture charge to inform and aggravate the sentence for manslaughter. This was said to be contrary to the *De Simoni* principle, as it amounted to punishment for an offence for which Mr Armitage had not been convicted. The applicant argued that the Crown's election not to proceed with the torture charge meant that Mr Armitage should only be sentenced on the basis of the proven offence of manslaughter, and that the alleged acts of torture, which were not proven to have caused the death and were not part of the common purpose to assault, should not have been relied upon to increase his sentence. The applicant conceded that acts causing or contributing to death could be relied upon, even if described as torture, but maintained that in this case, the causative link was unknown and the torture allegations were distinct from the manslaughter charge.

Orders