Charlie v The Queen

Case [1999] HCA 23

HIGH COURT OF AUSTRALIA

GLEESON CJ,
McHUGH, KIRBY, HAYNE AND CALLINAN JJ

KENNY CHARLIE  APPELLANT

AND

THE QUEEN  RESPONDENT

Charlie v The Queen [1999] HCA 23
13 May 1999
D11/1998

ORDER

Appeal dismissed.

On appeal from the Supreme Court of the Northern Territory

Representation:

S J Odgers with S J Cox for the appellant (instructed by Northern Territory Legal Aid Commission)

R S L Wild QC with M J Carey for the respondent (instructed by Director of Public Prosecutions, Northern Territory)

Notice:  This copy of the Court’s Reasons for Judgment is subject to formal revision prior to publication in the Commonwealth Law Reports.

CATCHWORDS

Charlie v The Queen

Criminal law – Murder – Relationship between general Code provision establishing excuse from criminal responsibility and specific provision creating offence of murder – Whether accused must foresee death as a possible consequence of conduct – Principles of statutory construction – Relevance of common law in construction of Code.

Criminal Code (NT), ss 31, 162(1)(a).

Breedon v The Queen (1993) 3 NTLR 119.
Vallance v The Queen (1961) 108 CLR 56.

  1. GLEESON CJ.   The facts, and the relevant statutory provisions, are set out in the judgment of Callinan J.

  2. The appellant stabbed the deceased repeatedly in the chest and back with a large knife, and killed her. It was admitted at trial that the stabbing was not accidental. The jury were instructed that, if the stabbing was done either with intent to kill the deceased or with intent to cause her grievous harm, then the appellant was guilty of murder. They convicted the appellant of murder. The appellant argues that, by reason of s 31 of the Criminal Code (NT) ("the Code"), the appellant was excused from criminal responsibility for the death of the deceased, (that is to say, was not guilty of either murder or manslaughter), unless her death was foreseen by him as a possible consequence of the stabbing. The jury, it is argued, should have been instructed accordingly. The point was not taken at trial, but the possibility that the appellant lacked such foresight is said to be related to the fact that he had been drinking before he killed the deceased.

  3. I agree with Callinan J, and with the majority in the Court of Criminal Appeal of the Northern Territory that, upon its true construction, the Code does not have the operation for which the appellant contends.

  4. The argument for the appellant is that s 31(1), in its application to a case such as the present, relevantly refers both to an act, (the stabbing), and to the result of the act, which is referred to in the Code as an event, (the death of the deceased), and excuses the appellant from criminal responsibility for the act or for the event respectively unless it was intended or foreseen. The killing referred to in s 162(1)(a) involved both an act (the stabbing) and an event (the death). Whilst the stabbing was admittedly intentional, it may have been that…

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AGLC
Charlie v The Queen [1999] HCA 23
Case
[1999] HCA 23
Decision Date

CaseChat Overview and Summary

The case of Charlie v The Queen involved an appeal to the High Court of Australia concerning a conviction for murder. The appellant, Charlie, had been convicted of murder after stabbing the deceased. The central dispute revolved around the interpretation of the relevant provisions of the Criminal Code, specifically whether the offence of murder required proof that the accused foresaw death as a possible consequence of their conduct, as potentially mandated by a general provision concerning excuses from criminal responsibility.

The legal issue before the High Court was one of statutory construction: whether section 31 of the Code, which establishes general principles for excuses from criminal responsibility, imposed a requirement that an accused must have foreseen death as a possible consequence of their actions to be convicted of murder under section 162(1)(a) of the Code. The appellant argued that this foresight was a necessary element, while the Crown contended it was not. This question arose due to the unique drafting of the Code, which differed from other Australian criminal codes and the common law.

The Court, by majority, held that section 31 of the Code did impose a requirement that the accused must have foreseen death as a possible consequence of their conduct for a murder conviction. The reasoning emphasised the importance of construing the Code in a manner that was rational and just, particularly given the mandatory life sentence for murder and the particular stigma attached to such a conviction. The Court considered that this interpretation aligned with recommendations for modern criminal law statutes. Although the appellant conceded causing the death, the trial judge had failed to instruct the jury on the requirement of foresight of death under section 31. The Court found that this misdirection was fatal to the lawfulness of the conviction, and the proviso provisions of the Code were not applicable to prevent a substantial miscarriage of justice.

Consequently, the High Court ordered that the appeal be allowed, the conviction be quashed, and a retrial be ordered.

Orders

Orders of the court

Appeal dismissed.

Background

Background to the litigation

Upon that problem, the judges constituting the Court of Criminal Appeal divided[2]. Special leave to appeal was granted to permit re-argument of the point of difference. I favour the view expressed by the dissenting judge in the Court below. But I do not pretend that the point is clear or that the conclusion reached is unarguable. As Brennan J observed, when giving this Court's reasons for refusing special leave to appeal in an earlier case involving some similarities to this one[3], the section of the Code (s 31) which gives rise to the problem is a "curious provision which … merits early and detailed consideration by the legislature". The drafting of that provision is said to have occasioned difficulties "for many years"[4]. An amendment of the Code followed Brennan J's observations in the earlier case[5] but not, alas, one removing the problem which must now be addressed.[2]Martin CJ and Kearney J; Angel J dissenting.[3]Breedon v The Queen (1993) 3 NTLR 119. This Court refused special leave on 25 August 1994, (1994) 17 Leg Rep C10. [4]See Kearney J in Charlie v The Queen (1998) 7 NTLR 152 at 168, referring to Pregelj v Manison (1987) 51 NTR 1. See also Jabarula v Poore (1989) 68 NTR 26 at 30.[5]Following Breedon v The Queen (1993) 3 NTLR 119, the Code was amended by the alteration of s 162(4). See [1999] HCA 23 at [61] per Callinan J.The facts, statutory provisions and issues The facts of the case are set out in the reasons of Callinan J. So are the relevant provisions of the Code, the issues for decision and his Honour's conclusions on the two points argued for the appellant. I am in agreement with Callinan J concerning the second point argued[6], upon the assumption that the first[7] is rejected. Accordingly, I can confine these reasons to the first point.[6][1999] HCA 23 at [76-77].[7][1999] HCA 23 at [64-70]. The question is whether, by reason of s 31 of the Code, the offence of murder created by s 162(1)(a) of the Code requires proof that the accused foresaw the death of the person killed as a possible consequence of his or her conduct. The appellant submits that it does. The Crown, with the support of the majority in the Court of Criminal Appeal, contends that it does not. The issue raised is a narrow one of statutory construction. It is addressed to the meaning and proper operation of the Code, which is in material respects (as Brennan J noted) peculiar and different from other codes and legislative provisions operating within Australia as well as different from the common law[8]. [8]See eg R v Cunningham [1982] AC 566; cf R v Crabbe (1985) 156 CLR 464; Boughey v The Queen (1986) 161 CLR 10; Royall v The Queen (1991) 172 CLR 378. The appellant conceded, by formal admission made at the beginning of the trial, that he had caused the death of the person killed, as charged, by stabbing her with a knife. He did not rely upon self-defence, provocation or accident. From the outset, therefore, as recognised by the Crown Prosecutor's opening address to the jury, the central issue of the trial was whether the appellant had the state of mind required for murder under s 162(1)(a) of the Code. The facts are horrible. Nothing in them affords a ray of redeeming light so far as the appellant is concerned unless it be the preponderating evidence showing that the appellant and the deceased were each severely affected by alcohol at the time of the stabbing, and that there was no disclosed motive or reason, other than drunkenness, to explain the appellant's sudden violent attack upon his de facto wife, resulting in her death.Approach to the construction of the Code

Evidence

Evidence Before The Court

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Decision

Reasons for decision

GLEESON CJ HUGH J KIRBY J (dissent) HAYNE J CALLINAN J (dissent)
Sixthly, such a construction of the Code is far from irrational or unreasonable. Conviction of murder in the Northern Territory carries a mandatory sentence of life imprisonment[33]. In the eyes of the community, conviction of murder bears a particular stigma. Murder is now the most serious offence provided by law. Where there is doubt which cannot otherwise be resolved, a construction of the Code providing for the elements of the offence of murder, carrying such condign punishment, should be preferred which upholds the imposition of the requirement laid down by the general terms of s 31 in addition to that laid down by s 162(1)(a). This approach adopts a construction of the Code, the most modern statute of general criminal law enacted in Australia, which conforms to the unanimous recommendations in England of the Law Commission and in Australia of the drafters of the Model Criminal Code. It would apply to the "curious provision" of s 31 a meaning both rational and just. It is therefore the one which I favour.[33]The Code, s 164.Proviso and conclusion The foregoing conclusion means that the trial judge should have instructed the jury in terms of s 31 of the Code that they could not convict the appellant of murder if the Crown had failed to prove beyond reasonable doubt that the appellant foresaw the death of the person killed as a possible consequence of his conduct. No such direction was given. To the contrary, the judge expressly directed the jury to consider "grievous harm" which did not endanger the victim's life and the foreseeability of the victim's death. Although the Crown argued that the "proviso" provisions of the Code[34] applied, to sustain the appellant's conviction of murder notwithstanding any misdirection, that submission must be rejected[35]. [34]The Code, s 411(2). ("The Court may, notwithstanding that it is of the opinion that the point or points raised by the appeal might be decided in favour of the appellant, dismiss the appeal if it considers that no substantial miscarriage of justice has actually occurred").[35]Simpson v The Queen (1998) 72 ALJR 1199 at 1202-1203, 1208-1209; 155 ALR 571 at 576-577, 583-584. No application for the direction now sought was made at the trial. A submission based on the requirement of s 31, if explained to the jury, might well have been rejected by the jury in the facts of this case. However, the appellant was entitled to a trial according to law[36]. In particular, he was entitled to have all of the elements of the offence accurately explained to the jury. Especially as severe intoxication was a major element of the evidence adduced at the trial and the only real issue for the jury's determination was whether the appellant had the state of mind which the Code required for murder, once an error of direction in the ingredients of the offence is found, that is fatal to the lawfulness of the conviction[37]. A second jury, applying robust common sense, might well, properly directed, come to the same conclusion as the first jury did. However, they would do so after a trial in which the judge's explanation of the operation of the Code upon the offence charged was legally correct. Appellate courts are always vigilant about the accuracy of judicial explanations of the elements of the offence charged. They are particularly vigilant where an accused, convicted of murder, is serving the sentence of life imprisonment. There must therefore, in my view, be a retrial.[36]Gipp v The Queen (1998) 72 ALJR 1012 at 1017, 1038; 155 ALR 15 at 22-23, 50‑51; HG v The Queen (1999) 73 ALJR 281 at 293; 160 ALR 554 at 571.[37]The appellant's counsel at the trial made it clear that the defence case was that the appellant's level of intoxication was such that on the balance of probabilities he did not foresee the possibility of the death of the deceased. At the end of the trial and after a retirement of nearly five hours, the jury returned with a question which related to whether or not the accused had formed an intent. After further directions, the jury returned within ten minutes to convict the appellant on a unanimous verdict "finally" arrived at.Orders

Ratio Decidendi

Legal Principle Established

Established by: GLEESON CJ, HUGH J, HAYNE J,

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