Carter v Attorney-General (No 2)

Case [2013] QCA 140

SUPREME COURT OF QUEENSLAND

CITATION:

Carter v Attorney-General for the State of Queensland [2013] QCA 140

PARTIES:

STEPHEN WAYNE CARTER
(appellant)
v
ATTORNEY GENERAL FOR THE STATE OF QUEENSLAND
(respondent)

FILE NO/S:

Appeal No 8863 of 2012
SC No 2587 of 2012

DIVISION:

Court of Appeal

PROCEEDING:

General Civil Appeal

ORIGINATING COURT:

Supreme Court at Brisbane

DELIVERED ON:

31 May 2013

DELIVERED AT:

Brisbane

HEARING DATE:

4 March 2013

JUDGES:

White JA, Atkinson and Martin JJ
Separate reasons for judgment of each member of the Court, each concurring as to the order made

ORDER:

Appeal dismissed.

CATCHWORDS:

CRIMINAL LAW – APPEAL AND NEW TRIAL – PARDON, COMMUTATION OF PENALTY, REFERENCE ON PETITION FOR PARDON AND INQUIRY AFTER CONVICTION – GENERALLY – where appellant convicted of murder for killing another at that other’s request – where appellant unsuccessfully petitioned Governor of Queensland for pardon pursuant to s 36 of the Constitution of Queensland 2001 – where appellant unsuccessfully applied for statutory order of review of Attorney-General’s decision not to refer appellant’s whole case to court pursuant to s 672A of the Criminal Code – whether Attorney erred in not referring matter to court – whether s 311 of Criminal Code is complete code for purposes of ascertaining criminal responsibility where a person has caused the death of another who is desirous of death – whether miscarriage of justice because trial judge failed to direct jury that if deceased was substantial or significant cause of her own death then appellant not guilty of murder

Constitution of Queensland 2001, s 36
Criminal Code 1899 (Qld), s 1, s 2, s 18, s 25, s 284, s 291, s 293, s 295, s 297, s 298, s 300, s 302(1), s 302(1)(a), s 304, s 304A, s 304B, s 311, Ch 67, s 668, s 668E, s 668E(1), s 672A, s 672A(a), s 672A(b), Ch 26, Ch 28
Judicial Review Act 1991 (Qld), 20(2)(e), s 20(2)(f), s 20(2)(i), s 26

Campbell v The Queen [1981] WAR 286; (1980) 2 A Crim R 157, cited
March v Stramere (E & MH) Pty Ltd (1991) 171 CLR 506; (1991) HCA 12, cited
National Insurance Co of New Zealand Ltd v Espagne (1961) 105 CLR 569; [1961] HCA 15, cited
Nicklinson v Ministry of Justice and Ors [2012] EWHC 304 (QB), cited
Pepper v A-G (Qld) [No2] [2008] 2 Qd R 353; [2008] QCA 207, cited
Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355; [1998] HCA 28, cited
R v Carter [2003] 2 Qd R 402; [2002] QCA 431, cited
R v Carter (2003) 141 A Crim R 142; [2003] QCA 515, considered
R v Grimes and Lee (1894) 15 NSWR(L) 209, cited
R v Lowrie & Ross [2000] 2 Qd R 529; [1999] QCA 305, cited
R v Main (1999) 105 A Crim R 412; [1999] QCA 148, cited
R v Sherrington[2001] QCA 105, cited
Royall v The Queen (1991) 172…

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Details
AGLC
Carter v Attorney-General for the State of Queensland [2013] QCA 140
Case
[2013] QCA 140
Decision Date

CaseChat Overview and Summary

The case of Carter v Attorney-General (No 2) involved the appellant who had been convicted of murder for killing another person at the deceased's request. After unsuccessfully petitioning the Governor of Queensland for a pardon under section 36 of the Constitution of Queensland 2001, the appellant applied for a statutory order of review of the Attorney-General's decision not to refer his case to court. The central issue before the court was whether the Attorney-General erred in not referring the matter to court and if section 311 of the Criminal Code was the complete code for determining criminal responsibility when a person caused the death of another who desired death. Additionally, the court had to consider whether there was a miscarriage of justice due to the trial judge's failure to direct the jury that if the deceased was a substantial or significant cause of her own death, the appellant was not guilty of murder.

The court examined whether the Queensland Constitution permitted the Governor to grant a pardon in cases where the appellant had been convicted of murder. It found that the Constitution's pardon provisions were limited to cases of criminal conviction, and therefore, did not extend to situations where a person had caused the death of another at the latter's request. The court also held that section 311 of the Criminal Code was the exclusive means of determining criminal responsibility in cases where a person caused the death of another who desired death. Furthermore, the court concluded that there was no miscarriage of justice, as the trial judge's failure to direct the jury on the issue of causation did not affect the outcome of the trial.

In summary, the court dismissed the appeal and found that the Attorney-General did not err in not referring the matter to court. The court held that section 311 of the Criminal Code was the complete code for determining criminal responsibility in cases where a person caused the death of another who desired death, and that there was no miscarriage of justice due to the trial judge's failure to direct the jury on the issue of causation.

Orders

Orders of the court

Appeal dismissed.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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