Horne v The Queen

[2022] HCATrans 232

[2022] HCATrans 232

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Brisbane  No B24 of 2022

B e t w e e n -

CAMERON DAVID HORNE

Applicant

and

THE QUEEN

Respondent

Application for special leave to appeal

GAGELER J
STEWARD J
GLEESON J

TRANSCRIPT OF PROCEEDINGS

AT CANBERRA BY VIDEO CONNECTION

ON FRIDAY, 16 DECEMBER 2022, AT 12.31 PM

Copyright in the High Court of Australia

GAGELER J:   In accordance with the protocol for remote hearings, I will announce the appearances for the parties.

MR S.C. HOLT, KC appears with MS Z.G. BRERETON for the applicant.  (instructed by McGinness and Associates)

MS C.N. MARCO appears for the respondent.  (instructed by Office of Director of Public Prosecutions (Qld))

GAGELER J:   Mr Holt.

MR HOLT:   May it please the Court.  This Court has never dealt with the interplay between intoxication, insanity and unwilled acts in the various criminal codes.  As a result, in our respectful submission, this application raises foundational issues of criminal liability.  As the Court will know, the concept of mens rea as embedded into the common law through He Kaw Teh has no part to play in the various criminal codes in the Code States, and that means, in our respectful submission, that section 23 of the Queensland Code and its analogues in other codes have a particularly and critically important part to play. 

Might I ask the Court to take up the application book at page 68, which are the relevant legislative provisions from the Queensland Code, and I will just use those for present purposes.  In the absence of the concept of mens rea, unless criminal offences in the various Code States have specific intentions attached to them – some do, but not those in this case – really, the only place in which a subjective intention occurs or emerges in terms of section 23, intention or motive.  It follows that without section 23 – or where its operation is excluded, as the law as accepted to have applied up until now in Queensland says in this case – excluded, the Code creates, in effect, a form of strict liability, and so the notion of willed or voluntary acts, in our respectful submission, is foundational.

Back to ancient times, there can be no crime without a willed or voluntary act, and nothing in the way in which the Code States have interpreted or construed their own codes has undone that proposition.  When one looks at section 23, one sees that foundational notion in paragraph 1(a) – subsection 1(a) – that:

an act or omission that occurs independently of the exercise of the person’s will –

is something which a person is not criminally responsible for.  The only facial limitation on that provision is that it is subject to express provisions of the Code relating to negligent acts and omissions.  That is not this case.  The question here is whether the law as we acknowledge immediately has stood in the Code States for 40 years – since the majority decision of the Queensland Court of Appeal in Kusu – is correct and ought still be followed in circumstances where that implies the exclusion of section 23.

That is, the defence that an act is not willed in circumstances where there is intoxication – for reasons I will explain – either to any degree, or alone, or in combination, and in particular, where in addition, if that intoxication is to any extent voluntary, then nor does section 27 insanity apply; that is, in the circumstances of any level of voluntary intoxication contributing even in part to a level of what is called in the common law “sane automatism”, the present construction of the Code in the Code States following Kusu means that a defendant has no capacity to defend that charge, even where the act is unwilled, and so as a matter of ancient doctrine there would be no crime at all.

GAGELER J:   When you say “the Code States”, Western Australia has followed Queensland and similarly Tasmania.  Is that so?

MR HOLT:   Yes, that is so, your Honour.

GAGELER J:   Yes, thank you.

MR HOLT:   So, it applies well beyond Queensland, of course.

GAGELER J:   What was the position before Kusu?  Was it the other way or has it just never arisen squarely?

MR HOLT:   It had never arisen.  I am bound to accept that the assumption was that the law as it was stated in Kusu was the law as it had previously existed, but there was no appellate authority to that effect.  It was taken as being so, though – I think it fair to say, as a matter of practice – that that was the position.

GAGELER J:   In the other Code States before Kusu and following Kusu, was the position any different?

MR HOLT:   No.  So, no different prior to Kusu, and following Kusu those other States followed Kusu and did so expressly.  We have cited in the special leave application a statement I think by Justice Campbell, from memory, indicating that Kusu was of long standing and so the majority would be followed, but he found much in Justice Macrossan’s dissent in Kusu persuasive.  But it is unquestionably the case that the law as stated in Kusu has been assumed to be the law for a very long time and we accept that as being a foundational position.

Falconer, of course – a case that was referred to by the Court of Appeal here and also relied heavily upon by our learned friends – was a decision now some 32 years ago and it dealt with another associated critically important question, which had then not been decided, about the relationship between insanity and willed acts under the various Code States.  It did not – and Chief Justice Mason and Justices Brennan and McHugh made explicit at 51 that it did not – deal with cases of automatism caused by intoxication, noting that they do not fall for present consideration; that is this case, automatism caused by intoxication.  So, our submission is that all of the obiter comments in Falconer and other cases which, understandably, assume the correctness of the position in Kusu proceed, effectively, without analysis of the statutory regime itself.

I distracted myself from the provisions because, of course, that is the start and end point.  When one looks at section 28, which is at the foot of page 68 in the book, it is subsection (1) which holds that:

The provisions of section 27 –

that is, the insanity provision:

apply to the case of a person whose mind is disordered by intoxication or stupefaction caused without intention on his or her part by drugs or intoxicating liquor or by any other means.

The provisions of section 27 set out there above, of course, are about:

a state of mental disease or natural mental infirmity as to deprive the person –

of the three well‑known capacities stated in section 27.  So, section 28 on its face puts some category of cases into section 27, but only when intoxication was caused without intention.  Then, subsection (2):

They do not apply to . . . a person who has, to any extent intentionally caused himself or herself to become intoxicated –

so there is a disapplication provision there, and can I ask the Court to notice:

whether his or her mind is disordered by the intoxication alone or in combination with some other agent.

So, the net result of the Kusu position – which is to say that section 28 covers the field for cases involving intoxication – means that any intoxication, if that intoxication was done to any extent intentionally, even if that is only a small part of the constellation of events that gives rise to a claim of sane automatism, results in neither an ability to say that the act was unwilled, nor an ability to rely on the insanity provisions.  Our respectful submission is that not a position sound in legal policy, and not one compelled in any sense by the words of the provision, particularly when one notices ‑ ‑ ‑

STEWARD J:   Mr Holt, I am sorry to interrupt you.  Does your approach have the effect of defeating or undoing section 28(1) and (2)?  That is; by allowing someone who has become intoxicated voluntarily by their own choice to nonetheless raise a defence under section 23 as it were.  I am just trying to work what room is left for section 28 on your approach.

MR HOLT:   Our respectful submission is that there is significant room left for section 28 and a reason for that is found compellingly in Justice Macrossan’s dissent in Kusu, where his Honour identified that he was dealing there with – 145 of the report – section 28, in his Honour’s view, was directed to a form of state of mind equivalent of insanity caused by drink or drugs – and that is ultimately that to which it should be limited.

Here, of course, we are dealing with not an equivalent to insanity; that is, not a mind that is ultimately then insane, but a sane mind which is affected by an external event.  The net result of that approach, in our respectful submission, is to leave open the question of a willed act while avoiding what would otherwise be the absurd public policy outcome where a transient state of affairs would result – or could result, if it was involuntary – in a qualified acquittal under section 27 resulting in detention at the Governor’s pleasure – a policy outcome which has been identified consequently in the case as being an obviously inappropriate one.

Having said that, can I make a concession in respect of what your Honour Justice Steward has just asked me, also.  There is no doubt that the construction that we favour would result in substantially less work being done by section 28 and a substantial degree of overlap.  The capacity for – though unlikely to emerge in a large number of cases, probably ones as unique as this – but which were acknowledged by members of this Court in Falconer itself, where it was acknowledged that there would be circumstances even as between section 27 and “sanity”, and section 23 “unwilled acts”, where one would see an overlap – a potential need to direct the jury on both provisions depending on the circumstances of the case.

I suppose, ultimately, my submission in response to what your Honour Justice Steward says – and I am bound to say on the basis of the way in which the Court of Appeal in Queensland determined this – that appears to have been a significant factor and understandably so – is, when one is dealing with the question of competing constructions in this contest, one which leaves open the capacity to still rely on the foundational requirement for a willed act as a precondition for the very existence of a criminal offence at all is one that ought be preferred; that is, it is the lesser the two mischiefs in that sense.

In Falconer, that identification of the capacity for there to be overlapping defences, even as between 27 and 23 which, on the face of it, might seem remarkable – that was from Justice Toohey and then from Justices Deane and Dawson.  While our friend cites Justice Gaudron who, on the face of it, said that her Honour then later also did seem to contemplate cases, unusual though they might be, in which both insanity and unwilled acts might be led.

Can I notice something about this case and that is, of course, this is the not the case which the quintessential public policy, or legal policy, debate that occurred in Majewski in the House of Lords, and then in O’Connor, and played out a little in this context also, is as central as it might otherwise be.  This is not a, I was so drunk I could not inform an intent case.  This was a case where there was, effectively, an agreement from the Crown psychiatrist that Mr Horne’s state of mind in this case was hard to attribute to alcohol alone – hard to reconcile with just intoxication because he had drunk a moderate amount on the evidence and there was evidence of his high level of tolerance to alcohol.

There were two other factors here.  One, the physiological effect on the body of a combination of alcohol and the antibiotic, Metronidazole, still in the system, together with an allergic reaction which it was known that Mr Horne suffered from as a condition to a particular form of crustacean – to mud crab – in this case.  So, this is a case which really highlights the problems of Kusu in a way that many factual scenarios will not because intoxication was really only a very small part of – unknown, the precise part that it played, but a relatively small part of the factual matrix here.  There was no suggestion, for example, by the defence or by the prosecution, that alcohol alone had created that state of altered consciousness amounting to delirium which was the defence case on the evidence.  There was a clear agreement that Mr Horne was otherwise sane; that is, there was no suggestion of any underlying disease of the mind or infirmity of the mind in that context.

So, as is the joy of the common law, when one sees this particular – or of the common law method, given we are dealing with a Code – when one sees this particular factual scenario, it highlights the extent to which the reasoning in Kusu would really cut the heart out of something foundational to criminal liability in a case where it genuinely should not and one ought not, in our respectful submission – if special leave were granted, we would be arguing – one would not lightly imply into section 23 an exclusion from the foundational requirement for an unwilled act, and does not otherwise exist.

Part of that will flow from reasoning about whether or not section 28 covers the field in fact – that is, by an actual comparison between the insanity states of mind or capacities in section 27, and the nature of an unwilled act in section 23 – because under pending the majority decision of W.B. Campbell J – reasons given by W.B. Campbell J, and, in our submission, the Court of Appeal here is the idea that section 28 does, in fact, cover the field.  Justice Macrossan convincingly, in our respectful submission, points out that a willed act has, really, two components to it, which the jury was directed on here; that is, an act that either occurs independently of a person’s control or happened when the person was not aware of doing the act.

In Falconer, it was put by Chief Justice Mason and Justices Brennan and McHugh as the notion of will imports consciousness of the actor and a choice to do the act – and they are really the same things in two different ways.  The point, ultimately, in our submission, that Justice Macrossan was making and one which, in our submission, is important and the Court ought take up, is the question of whether or not those states of mind in terms of unwilled acts overlap entirely, or, as Justice Macrossan found, not entirely, with the capacities in section 27 – to understand what a person is doing to control their actions or to know that they ought not do the act.  As Justice Macrossan pointed out, the notion of awareness in an unwilled act is not obviously covered by any of those three capacities.  So, the underlying intellectual position that drove the majority in Kusu, in our submission, does not apply here.

In our respectful submission, the question of construction is live, notwithstanding that it appears to have been otherwise settled in intermediate appellate courts.  All of those decisions, as we have sought to show in a special leave application, flow back, effectively, to the correctness of Kusu; that is, there has not been a revisiting of the reasoning in Kusu since then, either in intermediate appellate courts or, indeed, in this Court, where the various judgments that our learned friends have pointed to, and the President pointed to in the Court of Appeal below, all assume the operation of section 28 in accordance with Kusu and were not required to consider it in the context of an actual scenario of this kind or with an analysis of the legal position.

GLEESON J:   Mr Holt, am I right to understand that those interpretations also flow back to the way that Sir Samuel Griffith articulated the position to a jury in 1906?

MR HOLT:   That is absolutely right.  Sir Samuel Griffith, obviously, as the author of the Criminal Code pronouncements on it are given great weight, but they plainly cannot substitute for the words.  That is a trite

submission.  Justice Macrossan in Kusu also explains convincingly that, whilst that passage which is often cited from Sir Samuel Griffith in that direction to a jury on its face is sort of Majewski‑plus, it is a very clear admonition that it can never be as defence.

In truth, in that case what Sir Samuel Griffith made clear to the jury is that intoxication could nonetheless have a relevance to the question of whether or not the particular act there was unwilled, and it was that aspect of it in particular which compelled, in our submission, Justice Macrossan to come to the conclusion that his Honour did.  So, we would respectfully submit that Sir Samuel Griffith, that portion of his Honour’s direction in that case, cannot command support if the statute permits otherwise.

Unless we can assist the Court, those are our submissions.

GAGELER J:   Thank you, Mr Holt.  At this stage, the Court will adjourn to consider the course it will take.

AT 12.49 PM SHORT ADJOURNMENT

UPON RESUMING AT 12.52 PM:

GAGELER J:   The position stated by the majority in R v Kusu [1981] Qd R 136 has been repeatedly accepted and acted upon in Queensland, in Western Australia and in Tasmania. In our view, the position is too well established now to be reconsidered by this Court. Special leave to appeal is refused.

The Court will now adjourn until 1.30 pm.

AT 12.53 PM THE MATTER WAS CONCLUDED