Koani v The Queen

Case [2017] HCA 42

HIGH COURT OF AUSTRALIA

KIEFEL CJ,
BELL, GAGELER, NETTLE AND GORDON JJ

CHRISTOPHER CHARLES KOANI  APPELLANT

AND

THE QUEEN  RESPONDENT

Koani v The Queen

[2017] HCA 42

Date of Order:  17 August 2017
Date of Publication of Reasons:  18 October 2017

B20/2017

ORDER

1.Appeal allowed.

2.Set aside the order of the Supreme Court of Queensland (Court of Appeal) dated 11 November 2016 and in lieu thereof order that:

(i)the appellant's appeal to that Court be allowed;

(ii)the appellant's conviction be quashed and a new trial be had.

On appeal from the Supreme Court of Queensland

Representation

S C Holt QC with B J Power for the appellant (instructed by Legal Aid Queensland)

V A Loury QC with M J Hynes for the respondent (instructed by Office of the Director of Public Prosecutions (Qld))

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

CATCHWORDS

Koani v The Queen

Criminal law – Murder and manslaughter – Act causing death – Where appellant convicted of murder – Where death occasioned by discharge of shotgun held by appellant – Where alternative prosecution case for murder put to jury on basis that shotgun may have discharged as result of unwilled act – Whether unwilled, criminally negligent act or omission can result in conviction for murder where jury satisfied accused possessed intention to kill or inflict grievous bodily harm – Whether breach of duty to use reasonable care and to take reasonable precautions in use and management of dangerous thing can found conviction of murder.

Words and phrases – "act causing death", "breach of duty", "criminally negligent", "intention", "intentional offence", "manslaughter", "murder", "omission", "reasonable care", "unwilled act".

Criminal Code (Q), ss 289, 302(1)(a).

  1. KIEFEL CJ, BELL, GAGELER, NETTLE AND GORDON JJ.   On 17 August 2017[1], at the conclusion of the hearing, the Court made orders allowing the appeal and setting aside the order of the Court of Appeal of the Supreme Court of Queensland dated 11 November 2016.  The appellant's conviction was quashed and a new trial was ordered.  These are the reasons for making those orders.

    [1]Special leave was granted on 6 April 2017: see [2017] HCATrans 070 per Bell and Nettle JJ.

  2. The question raised by the appeal is whether an unwilled, criminally negligent act can found a conviction for murder under s 302(1)(a) of the Criminal Code (Q) ("the Code") in a case in which the jury is satisfied that the accused possessed the intention to kill or to do some grievous bodily harm. As will appear, the answer is that criminal responsibility for murder under the Code, as under the common law, cannot be founded upon an unwilled act. As will also appear, and contrary to the way the matter was left below, identification of the act that gives rise to criminal responsibility for murder under the Code is not determined on a more confined basis than under the common law.

    Procedural history and the…

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Koani v The Queen [2017] HCA 42
Case
[2017] HCA 42
Decision Date

CaseChat Overview and Summary

The High Court of Australia considered an appeal by the appellant, who had been convicted of murder in the Supreme Court of Queensland. The conviction arose from the death of his de facto partner, which was occasioned by a shotgun discharge while the appellant was holding the weapon. The appellant had pleaded guilty to manslaughter, acknowledging a gross breach of his duty to exercise reasonable care in the use of the dangerous item, as stipulated by s 289 of the *Criminal Code* (Q). However, the prosecution did not accept this plea, and the jury ultimately found the appellant guilty of murder.

The central legal question before the High Court was whether an unwilled, criminally negligent act or omission, which results in death, could form the basis of a murder conviction under s 302(1)(a) of the *Criminal Code* (Q) if the jury was satisfied that the accused possessed the intention to kill or inflict grievous bodily harm. This question also encompassed whether a breach of the duty to use reasonable care and take reasonable precautions with a dangerous item could, in itself, found a conviction for murder.

The High Court reasoned that criminal responsibility for murder, both under the *Criminal Code* and at common law, cannot be established by an unwilled act. The Court clarified that the identification of the act giving rise to criminal responsibility for murder under the *Code* is not confined more narrowly than under the common law. Therefore, an unwilled, criminally negligent act, even if it causes death, cannot sustain a murder conviction if the act itself was not intended to cause death or grievous bodily harm.

The appeal was allowed. The order of the Supreme Court of Queensland (Court of Appeal) was set aside, and in its place, it was ordered that the appellant's appeal to that Court be allowed, his conviction quashed, and a new trial be had.

Orders

Orders of the court

1. Appeal allowed.

2. Set aside the order of the Supreme Court of Queensland (Court of Appeal) dated 11 November 2016 and in lieu thereof order that:

(i) the appellant's appeal to that Court be allowed;

(ii) the appellant's conviction be quashed and a new trial be had.

Background

Background to the litigation

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Evidence

Evidence Before The Court

The question raised by the appeal is whether an unwilled, criminally negligent act can found a conviction for murder under s 302(1)(a) of the Criminal Code (Q) ("the Code") in a case in which the jury is satisfied that the accused possessed the intention to kill or to do some grievous bodily harm. As will appear, the answer is that criminal responsibility for murder under the Code, as under the common law, cannot be founded upon an unwilled act. As will also appear, and contrary to the way the matter was left below, identification of the act that gives rise to criminal responsibility for murder under the Code is not determined on a more confined basis than under the common law. Procedural history and the evidence On 28 October 2015, the appellant was arraigned in the Supreme Court of Queensland (Dalton J) on an indictment that charged him with the murder of his de facto partner, Natalie Leaney, at Rochedale South on 10 March 2013. The appellant pleaded that he was not guilty of murder but guilty of manslaughter. It was common ground that the death of the deceased was occasioned by a single gunshot wound to the head fired from a shotgun, which the appellant was holding. The appellant's plea acknowledged that his failure to use reasonable care and to take reasonable precautions in his use or management of the gun was a gross breach of the duty imposed by s 289 of the Code[2]. That section provides: "It is the duty of every person who has in the person's charge or under the person's control anything … of such a nature that, in the absence of care or precaution in its use or management, the life, safety, or health, of any person may be endangered, to use reasonable care and take reasonable precautions to avoid such danger, and the person is held to have caused any consequences which result to the life or health of any person by reason of any omission to perform that duty."[2]See Callaghan v The Queen (1952) 87 CLR 115 at 124 per Dixon CJ, Webb, Fullagar and Kitto JJ; [1952] HCA 55. The prosecution declined to accept the appellant's plea in discharge of the indictment and a jury was empanelled and the trial proceeded. On 4 November 2015 the jury returned a verdict of guilty of murder. On 19 November 2015, the appellant was sentenced to life imprisonment for this offence. The evidence at the trial was of a deterioration in the relationship between the appellant and the deceased in the days leading up to her death. The deceased had told a friend that the relationship was over and that the appellant had told her to pack her things. She said she wanted to leave but she was concerned that the appellant would take her property. For his part, the appellant had complained to an acquaintance that he had "found out about [the deceased] screwing around". On Saturday 9 March, the deceased told a work colleague that she and the appellant had had a "huge fight" on the previous day. The next day she sent a message to the same colleague saying that she would not be at work on Monday. On that day the deceased also sent a text message to a friend complaining that the appellant had locked her in their unit. The friend, the friend's partner and the appellant were together at a hotel when the message was received. Following this, the appellant and the deceased exchanged mutually abusive and angry text messages in which the deceased asserted that the lease of the unit was in her name and that she had paid the bond.

Decision

Reasons for decision

KIEFEL CJ, BELL, GAGELER, NETTLE AND GORDON JJ (dissent)

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Ratio Decidendi

Legal Principle Established

Established by:

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