Koani v The Queen

[2017] HCATrans 157

[2017] HCATrans 157

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Brisbane  No B20 of 2017

B e t w e e n -

CHRISTOPHER CHARLES KOANI

Appellant

and

THE QUEEN

Respondent

KIEFEL CJ
BELL J
GAGELER J
NETTLE J
GORDON J

TRANSCRIPT OF PROCEEDINGS

AT BRISBANE ON THURSDAY, 17 AUGUST 2017, AT 2.00 PM

Copyright in the High Court of Australia

MR S.C. HOLT, QC:   May it please the Court, I appear with my learned friend, MR B.J. POWER, for the appellant.  (instructed by Legal Aid Queensland)

MS V.A. LOURY, QC:   May it please the Court, I appear with my learned friend, MR M.J. HYNES, for the respondent.  (instructed by Office of the Director of Public Prosecutions (Qld))

KIEFEL CJ:   Yes, Mr Holt.

MR HOLT: May it please the Court. This appeal concerns whether a person can be convicted of murder in the State of Queensland by combining a murderous intent with an unwilled act or at least with what we say is a criminally negligent breach of the duty under section 289 of the Criminal Code (Qld).

The sequence of events in this trial was relatively straightforward and not particularly controversial. There was an underlying agreement that the appellant had unlawfully caused the death of the deceased and that was reflected in the plea of guilty to manslaughter which was based on the section 289 of the Criminal Code liability. 

The jury, though, was given in this trial two pathways by which it was permitted by the learned trial judge to convict of murder.  The first of those pathways was unexceptional and that was an allegation by the Crown that the appellant had in fact deliberately pulled the trigger or otherwise deliberately caused the firearm to discharge and as a result killed the deceased, accompanied, of course, with what was always put in this case as an intention to kill rather than an intention to cause grievous bodily harm. 

It is the second path where the problems that have to some extent bedevilled this case and then seen it come to this Court arise and could I invite the Court to have a look at the appeal book 574 which contains her Honour’s flow chart, if I can put it that way, which helpfully sets out the two ways in which the jury were entitled, in accordance with the directions of law that her Honour gave, to reason to guilt. 

The first which is in, essentially, the first column as her Honour described it at various stages is the unexceptional path which I have already outlined.  The second, though, stems from the first question which was:

Has the Crown satisfied you beyond reasonable doubt that it was by a willed act that the defendant discharged the shot which killed Ms Leaney?

Now, the difficulty arises in terms of this trial, or the difficulty has arisen in terms of this trial as to what then happened if the jury said no, they were not satisfied beyond reasonable doubt that the firearm was discharged by virtue of a willed act and as the Court will have seen, the basis of the suggestion that was left to the jury that the firearm discharged by way of an unwilled act was on the basis that the hammer of the firearm which was found to have been shortened – how it got shortened was not in evidence before the Court - but that it had been shortened such that it could, in fact, go off without what one might describe as the traditional means of causing a firearm to discharge.

So, importantly, in our submission, particularly in the way in which the respondent puts its case in this Court, the second pathway to guilt arose only if the jury was not satisfied that the discharge of the firearm was the product of a willed act by the appellant.  It had then, of course, because of the nature of the burden and the standard of proof when proceeding down the second path, to proceed on the basis that the discharge of the firearm was unwilled, in effect, because of the hammer slip. 

So the second path - the precondition for travelling down the second path in this case was the jury proceeding from that point on the basis that the firearm was discharged by an unwilled act - that is, of course, that he did not – that is that the appellant did not deliberately discharge the gun.

Now, that takes us then immediately to section 23(1)(a) of the Criminal Code, which the Court will have in the legislative materials, because – and this is something which, with respect to my learned friend, the Crown at this stage and at no stage has properly grappled with – is that section 23(1)(a), in effect, applied to the second pathway and that of course is that:

Subject to the express provisions of this Code relating to  negligent acts and omissions, a person is not criminally responsible for –

if I can paraphrase, for the purposes of the second pathway, an unwilled act.  Now, what that effectively means is that for the purposes of proceeding down the second pathway the jury, in our respectful submission, was not entitled to use the unwilled act as foundational conduct for murder unless it was not caught by the phrase “Subject to the express provisions of this Code relating to negligent acts and omissions” and by that I mean liability for murder.

So I can summarise in this way.  There were two problems with the second pathway as it was left to the jury.  The first is that it at least permitted an unwilled act to be used as the conduct base or as the factual basis to convict a person of murder.  Our respectful submission is that it is not possible, as a matter of law, under the Criminal Code (Qld) for an unwilled act to be the conduct which forms the basis for a conviction of murder. Those are, if I can refer to the way that we structured the outline, the first three propositions in effect that are put. In the outline they are intended to make good that submission and I will come to those.

The second problem, though, with the second path is that in any event it permitted murder to be established by combining a murderous intention with a negligent breach of a duty.  In our respectful submission, it is not open as a matter of law under the Criminal Code (Qld) for a person to be convicted of murder by combining a murderous intention with a negligent breach of a duty and, specifically, a negligent breach of a duty found in section 289 of the Criminal Code. 

It is important, in our respectful submission, and, with respect to the respondent here, not entirely clear even in this Court precisely how the Crown puts the conduct that underlies the second path to conviction in this case because it is, in our respectful submission, variously described and was indeed variously described in the course of the proceedings below – if I could invite the Court to go to my learned friend’s outline, it makes the point most clearly.

GORDON J:   Mr Holt, is this the outline or their submissions you are taking us to?

MR HOLT:   It is their submissions; I apologise.  If I can take the Court to paragraph 15 on page 5 of the respondent’s submissions, what is made clear in paragraph 15 helpfully, in the context of the second pathway to murder is that – it is about halfway through the paragraph:

Relevant to that consideration –

that is, the consideration of whether the unlawful killing amounted to murder or manslaughter:

was only the state of mind of the appellant at the time of the act which caused death.  That act was particularised as the discharge of the gun.  The jury were properly directed that in order to return a verdict of murder, they had to be satisfied at the time the gun discharged that the appellant held the necessary intention.

That is precisely how the jury was directed by the learned trial judge in terms of intention.  They were unequivocally directed that the only point in time in terms of the second path to conviction that they were concerned about the intention of the appellant – that is, the question of whether he held an intention to at least cause grievous bodily harm to but, in truth, in the way the case was conducted, to kill the defendant – was at the point of the firearm being discharged.

If I can invite the Court then to go to the appeal book at page 485, it identifies the critical direction that was given in this regard.  Her Honour the learned trial judge, at the top of page 485, is explaining the third question in the second column.  Now, in effect, that is the question of what the timing of the intention unrelated to the act is.  Her Honour says:

So I am certainly not going to go through all that evidence again, but it is the same question really –

that is, as of intention:

except that the question in the second column, the time you have to be satisfied – and this is very important – is the time the gun discharged.  Okay.  So that is the time you are looking at to find an intention.

Then critically, in our submission:

So it might just be split seconds after, but it is after the cocking of the gun.

That is, although put perhaps not with quite the precision it should have been by the learned Crown Prosecutor at trial, that was in essence the prosecution case as well.  In other words, we have an absolutely pinpointed mind of intention that follows the cocking of the gun and can as a matter of logic and fact only relate to the discharge of the firearm, the actual bullet coming out of the gun, or the cartridge coming out of the gun or whatever the technically correct description is.

So the intention at trial was always an ally to that point, and what that tells us, in my respectful submission, is this:  that the conduct upon which the jury were directed for the purposes of the second pathway is only the discharge of the firearm, the actual leaving of the firearm of the cartridge or whatever that may have been. 

Now, that causes, in my respectful submission, a fundamental problem from the way in which the Crown now appears to say that its case was put, because the Crown now appears to say that its case was put and there are some…..trial though not very clear, with respect, on the basis that the breach of duty occurred as a result of what are said to be deliberate acts, and I will come to the conceptual difficulties with that later, which are said to be the deliberate acts that all precede the point at which the learned trial judge told the jury they had to consider the question of an intention to kill or to do grievous bodily harm.

The best example of that, and I will now get the terminology right, is in the outline of oral argument that has been handed up by my learned friend today, and if I can invite the Court to look at paragraph 4 of that document, and in particular from halfway through – in fact the whole paragraph but it is the last parts that are particularly relevant. The Crown identifies deliberate or wilful actions including loading, cocking, advancing upon the deceased and pointing the gun at her at close range and then says “If he pursued those actions with an intention to kill or do some grievous bodily harm it was open for him to be convicted of murder pursuant to section 302(1)(a)”.

NETTLE J:   You do not disagree with that, do you?

MR HOLT:   No.

NETTLE J:   That is not the way it was put.

MR HOLT:   It is not the way the case was put, and in fact it might be worth – I do not know whether it is the elephant in the room or at the heart of the matter but it is this.  Everyone seems to have proceeded in this trial on an assumption that you needed negligence in order to be able to criminalise the act of pointing the firearm at the deceased.  In our respectful submission, that was not necessary at all on a proper construction of the Code.

BELL J:   That proceeded, I think, from a view of Justice Gaudron’s analysis in Murray.

MR HOLT:   It did.

BELL J:   But Justice Gaudron in Murray did not take issue with the concept that the Act causing death is a factual question for the jury.

MR HOLT:   No, and, with respect to your Honour Justice Bell, more than that, endorsed that proposition as did Justice Kirby and, with respect, entirely correctly so.  The point that was made in Murray, as we understand that judgment, was the way in which the Crown had chosen to put its case in Murray, that is the same way in which the Crown chose to put its case here and the jury was directed on, led to the conclusions that her Honour Justice Gaudron reached, not as a rule of law somehow directly applicable to Queensland which, with respect to the trial judge here, appears to be at the heart of where the problems started and her Honour’s ruling in this case traces through that reasoning but the heart of the error, in our respectful submission, is precisely that which your Honour Justice Bell has identified.

I might be able to shortcut a number of the submissions I was going to make in light of that exchange perhaps in this way.  The prosecutor, the trial judge and the majority of the Court of Appeal here seems to be dead set on solving a problem which did not exist, and by doing so have done something which is not available – that is to permit the use of an unwilled act (a), and (b), an admission based on a breach of a duty properly recognisable as criminal negligence as the foundation for murder, whereas the Crown simply did not need to do that. 

All it needed to do under the Criminal Code was to say the Act we say caused death, the simplest way to do it would be to avoid the discharge at all, simply say the act that we say caused death was the pointing of the loaded firearm having cocked it at the deceased.  The consequence of that was that the firearm discharged.  In no sense could that amount to a novus actus interveniens and so long as the Crown could prove what should have been the issue in trial, which was the intention which accompanied that act, then the Crown would have had no difficulty in proving murder on an entirely orthodox basis. 

That is how, in our submission, if we come to the heart of it, and why this particular trial miscarried because the jury were ultimately permitted – indeed, our submission is required – to reason using an unwilled act as the conduct which formed the basis for murder.

I think that as a result of the way in which that exchange has gone, I can shortcut a number of matters and perhaps just turn to those two propositions, if I may.  I should simply say that, in our respectful submission, what the trial judge did as a consequence of that underlying error that we have been discussing this afternoon, what the learned trial judge did in effect was, and in fact when one reads her Honour’s ruling it was plainly her intention to limit the conduct to which the intention was to attach to then the unwilled act, that is, the discharge of the firearm, given that timing, the way in which her Honour put the timing question in terms of the directions as to when intention needed to be heard and the need to be found.

In our submission – and I will not take your Honours specifically to it, but for reference - the Court of Appeal – the reasons of the majority of the Court of Appeal at paragraphs 66 to 68, in our respectful submission, make clear that the Court of Appeal was endorsing an approach which permitted the jury to, having established or having proceeded on the basis that we are dealing with an unwilled discharge of a firearm, nonetheless treat that unwilled discharge of the firearm as itself being the negligent conduct, the breach of section 289, to which the intention to kill or do grievous bodily harm would need to attach.

In our respectful submission, the proposition that an intention to kill, if I can just shorthand it in that way because it was the reality of this case – that an intention to kill cannot attach to an unwilled act, I make these submissions acutely conscious of the fact that my learned friends have not really engaged with them because what they have said in response is it is artificial just to look at the discharge of the firearm; you had to look in this case at the willed deliberate acts that occurred before it.  Our answer to that is the answer that I have already given, which is it just not how this case was run and it is just not how the jury was directed.  The Crown could have run this in a different way but chose not to.

So, in the absence of an opponent on this question, I will rely in large measure on our written outline but just perhaps perch on the key reasons why we say that a specific intention cannot logically attach to an unwilled act.  The first proposition is that it is not sufficient in terms of attaching a specific intention to conduct to simply say that it co‑exists in time, that it happens to exist at the same time.  That, in our respectful submission, is not sufficient. 

If that proposition needs authority, it comes in the form of this Court’s unanimous judgment in Meyers v The Queen, the relevant passage of which we have set out at paragraph 31 of our submissions where the Court was there dealing with an appeal from a non‑Code State.  It was an appeal from the Victorian Court of Appeal at that stage where the court noted:

unless he does the particular act which causes the death with one of the specific intents that is an essential element of the crime of murder. The particular act and the intent with which it is done must be proved . . . beyond reasonable doubt.

The idea is, in my submission – it is a simple concept in some ways but I am bound to say I found it hard to articulate in a simple proposition, but the best we can come up with is this, that the intention must in fact be such that it motivates the conduct.  So the connection between the intention and the conduct must be more than temporal.  It must in fact have an element of motivation about it.  It is not enough to simply say, “I did one thing and happened to have another intention and therefore I did the act with an intention”.  But the intention must motivate the conduct.

The act or omission must be done with the requisite intention and, in our respectful submission, that is an unexceptional proposition and ought on its own be enough to conclude that the pathway which permitted an unwilled act to be attached to an intention in this case was a flawed one. The second reason why we say that an unwilled act cannot form the basis for a murder conviction is because of the prohibition in the section that I have already taken the Court to, section 23(1)(a) of the Criminal Code. 

Now, in terms of dealing with the precision of the language in this provision, the Court will see that it creates a general prohibition, that is, a prohibition on the use of – sorry, it makes people, as a matter of general prohibition, not criminally responsible for, if I can shorthand it, an unwilled act. 

There is but one exception to that proposition – to that general rule and that is that it is subject to the express provisions of the Code relating to negligent acts and omissions.  Of course, with respect to the drafters, that makes perfect sense because if you excluded, particularly given the broad approach that is taken to the question of willed or unwilled acts under the Code as compared to the common law, if you permitted this to act as a total prohibition then it would denude the idea of criminal negligence really of any meaning at all because all you would be able to say is, well, my negligence was unwilled.  One can well see that almost always one’s negligence or very often one’s negligence will be unwilled and it sits very uneasily with the idea of an objective standard for negligence.

So, the question then becomes, well, what of the exception and does it permit what was done here and, in our respectful submission, the answer must be no because an essential precondition to the conviction for murder was the filing of an intention to kill provided for in section 302 of the Criminal Code. 

Section 302 of the Criminal Code is what turns an unlawful killing into murder and if I can put it as simply as I can, on no basis can section 302 be described as a provision of this Code relating to negligent acts and omissions. Indeed, properly understood, it is the antithesis of such a provision in that it provides a specific intention and creates penalties in consequence of that. So, that, in our respectful submission, is the second reason why an unwilled act cannot form the basis as the jury were directed here, of a conviction for murder.

The third, as we have put it in our submissions and in our outline, it is put in the submissions and the outline on the basis that such a conclusion is incompatible with the reasoning of this Court in Murray.  On reflection, in preparation for oral argument, I think we put that argument a little too high.  What I think can properly be said about Murray and the question of whether an unwilled act could ever form the basis for a murder conviction is simply that none of the judges of this Court nor apparently any of the parties conceived of it as being possible but the issue itself was not before the Court and, I think, in fairness, I would be stretching the language of the judgments to say otherwise.  So, I apologise, but I hope that assists in terms of the use of that argument.

So, in our respectful submission, where we have come to so far should be enough to dispose of the appeal, that is, an unwilled act was plainly used as the basis for the conviction for murder, an unwilled act cannot be used as the basis for a conviction for murder under the Code.  As a result, the appellant was convicted of murder down a pathway unknown to the law and the trial was conducted as a result in a way unknown to the law. 

In some ways, the issue of greater general application is the one that we now come to which is whether or not the Criminal Code permits a conviction for murder based on a breach of section 289 at all. So, in other words, even if this was not said to be an unwilled act, is it possible as a matter of law to combine a conclusion that there has been a criminally negligent breach of section 289 of the Criminal Code with a specific intention to kill and, as a result, come to the conclusion that a person is guilty of murder.

At all levels to date, her Honour Justice Dalton, the trial judge, all members of the Court of Appeal and I think accepted as between parties is that what the Crown chose to do here and what the trial judge permitted to be done and what the Court of Appeal endorsed was novel.  It goes against the way in which people had assumed at least that the criminal negligence provision of section 289 of the Code works.

Now, of course, as the majority in the Court of Appeal made clear, just because an argument is novel does not mean that it is wrong and it may not be wrong.  In our respectful submission, it is.  Her Honour President McMurdo, as her Honour then was, at paragraph 39 of the judgment – it is a short passage; I will read it – goes, with respect to her Honour, right to the heart of the problem. 

I find it incongruous that provisions which are expressed in terms of objective reasonableness can be coupled with a specific intent to kill or do grievous bodily harm. 

In our respectful submission, her Honour is to some extent –and I do not mean this disrespectfully – intuitive response to the problem, which is that there is something incongruous about those two things, on proper analysis turned out to be silent as a matter of analysis of the statute.  But before I come to that point, can I just take the Court to the submission that our friends make in response and that is to highlight the existence of the decision of the Court of Criminal Appeal of Queensland in MacDonald and MacDonald [1904] St R Qd 151.

If I can summarise it in this way and take the Court to the later case that discussed it, MacDonald was a case involving a different section of the Criminal Code, section 285, which is the duty to provide the necessaries of life in certain circumstances. What is critically important, in our respectful submission, and was recognised by the Court of Criminal Appeal later in Young, a judgment I will come to, is that section 285 in fact is not in its terms a case that gives rise to criminal negligence. It simply identifies a duty to provide the necessaries of life and a failure to do so of being a breach of the provision. It includes no language of reasonableness; it includes no language of neglect or negligence and, as a result, stands, in our respectful submission, in a different category from section 289.

If I can invite the Court to turn to the judgment of the Court of Criminal Appeal in R v Young [1969] Qd R 373 to make good that submission. We have extracted in effect only the judgments of Justice Lucas, with whom Justice Hoare agreed, Justice Hanger was in the minority but on a slightly different issue, but in any event the judgment of Justice Lucas represents the judgment of the court. If I can invite the Court to turn to page 441 of the report, from just below B, the court there is considering section 285. It notes:

The word “neglects” is used in s. 357. No such words appear in s. 285 or s. 286, nor, for that matter do they appear in s. 288 or s. 289 –

289 of course what we are concerned with here:

although there the words “reasonable care” are used.  Since the two last mentioned sections clearly relate to negligence and to nothing else it is evident that the use of the words “negligent”, “negligence” or “negligently” is not required in order to constitute a provision an express provision relating to negligent acts and omissions.

I highlight there the point that the court makes, the holding that the court makes, that section 289 relates to negligence and only to negligence, which in our submission is correct.  Then at page 442, in his Honour Justice Lucas’ judgment, his Honour then refers to R v MacDonald, the case that my learned friends rely on, but of course insofar as section 285 deals with breaches of the duty which are not negligent breaches, section 23 applies to it:

Non‑negligent breaches of the duty may be further divided into deliberate breaches and what may be called “unavoidable” breaches.

Then the court goes on to note R v MacDonald was an example of a deliberate breach.  The net result of that reasoning is that the conviction that was held to be open by the pathway in R v Young did not rely on the problem which we have identified in this case, that is, it did not rely upon the alignment of a specific intention with a criminally negligent breach of a duty, which is what section 289 relates to. 

If could take the Court to section 289 itself in the hope of looking quite specifically at the language that is deployed in that section because, in our submission, the conclusion that you cannot attach a specific intention to a breach of section 289 flows as it should from the language that the Parliament chose to use, the Court will see that section 289 essentially does two things.  It establishes a duty on a person in charge of a dangerous thing – (a); and (b), it provides for the legal consequences of a breach of the duty and both aspects of the section are important. 

So, in terms of the way in which it describes the duty, the duty is for a person, if I can shortcut, in charge of a dangerous thing, and plainly we are in that situation here so I will not go into the detail of that but the duty is to use reasonable care and to:

take reasonable precautions to avoid such danger –

That of course is the classical language of negligence and as the Court will know, although section 289 is expressed in a way that would not be remarkable to a civil lawyer, in actual fact this Court in Callaghan v The Queen (1952) 87 CLR 115 held that in fact that had to be read as meaning gross or criminal negligence. But as this Court made clear in a number of judgments, but particularly in Lavender, that standard is an objective one. 

So, it is not a question of recklessness or subjective consideration of risk or anything of that kind.  It is a wholly objective standard which a person is obliged to meet if they meet the preconditions for the section.  So then we come to the legal consequences of the breach of the duty and that is where, in our submission, the statute provides us with the answer.  That is the last sentence, in effect, or part of sentence:

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.

So, if we pause there for a moment, the relevant conduct for these purposes, that is, the conduct that is represented by the breach of section 289 is an omission to perform a duty, that omission having been done by objectively falling below a standard of reasonableness.

So, my learned friends recast their case in some ways, or possibly just cast it again in a way that it was at some times at trial as being a series of deliberate acts and then in that way seek to do an end run around this argument, but the words of the provision make clear that what is to be causatively linked is an omission to perform a duty and one which is assessed on the basis only of objective reasonableness and, having made that submission, I then am obliged to make a very short and blunt submission because, bluntly, I can think of no other way of putting it.

It is illogical to describe the falling below of an objective standard as being done with a specific intent or being motivated by a specific intent.  It simply is, as her Honour President McMurdo as her Honour then was, noted, incongruous to attempt to link the idea of an objective falling below a standard which is done without any reference to the subjective position of the person who has fallen below that standard at all to the notion of a specific intent and the abstract nature of that submission, I think, hopefully can be practicalised in this way in this case.

I think, with respect, my learned friends land on the problem, possibly with respect without realising it, and then seek to solve it by recasting the nature of the breach to being a series of deliberate acts or a series of purposeful acts because it is not, of course, and the incongruity is made clear, in our respectful submission, in my learned friend’s submissions at paragraph 23 where, having otherwise described the conduct which is said to amount to the breach as being a series of deliberate and purposeful acts, they then at 23, possibly much closer to the reality of it, describe it as being a:

failure to properly manage the weapon when loading it, cocking it and aiming it at the deceased.

Now, that is, in fact, in our submission, a much more accurate way of describing a breach of the kind in section 289.  The problem then becomes, well, let us take that as being the breach, as representing the breach, how is that done with a specific intent to kill?  In our submission, the answer is no and the reason is that the pathway is simply not available as a matter of law.  If the Court pleases, I think I would be repeating my written submissions if I said anything further.  Those are my submissions.  Thank you.

KIEFEL CJ:   Thank you, Mr Holt.  Yes, Ms Loury.

MS LOURY:   Section 289 contains no reference to a negligent act or an unwilled act.  It speaks, as my learned friend has taken you through, of omitting to perform a duty to use reasonable care or take reasonable precautions when dealing with a dangerous object.  An omission to perform a duty can arise from either wilfulness or deliberateness or it can arise from negligence. 

The breach of duty in this case in the trial was not limited to that point in time when the bullet came out of the end of the gun when the potential for the hammer slip to have occurred.  It included everything that the appellant had done with the loaded shotgun and the jury were told that by the learned trial judge at page 483 commencing at line 40 ‑ ‑ ‑

BELL J:   But all of this is posited if one goes back to the judge’s directions and to the flow chart to a consideration of the way the jury might approach the matter in the event they are not satisfied by the prosecution beyond reasonable doubt that the discharge – that the firing of the weapon was a willed act. 

MS LOURY:   Yes, or – yes, were not satisfied that the prosecution had excluded that possibility, yes, that is right but the discharge of the gun was not limited to just that penultimate moment in time when the hammer might have slipped.  In the context of a breach of duty, the discharge of the gun included all of those things that he did with the loaded gun.

BELL J:   What is the relevance of an intention, be it to kill or to do grievous bodily harm, if the case depends upon a failure to comply with a duty to use reasonable precautions to avoid the danger of handling the weapon?

MS LOURY:   If those precautions that were not undertaken were things that were done deliberately by him or wilfully by him rather than just negligently by him then his state of mind at the time if it was that he breached those duties by doing those things with the gun, if his state of mind was that that was all done for the purpose of killing the deceased, then it was open for him to be convicted, in our submission.  Can I use a ‑ ‑ ‑

BELL J:   Can I just take up with you something, you said that section 289 does not use the word “negligence”.  Are you suggesting the chapeau to section 23 does not pick up 289 as an exception?

MS LOURY:   I do say it picks up 289 as an exception.

BELL J:   It does pick it up?

MS LOURY:   Yes, I do accept that. 

BELL J:   Yes, all right.

MS LOURY:   Can I provide an example unrelated to the case?  If a person owned a property on which there had been set a man trap of some sort, not by the owner of the property but he was responsible for the management and control of the property including whatever his knowledge was of the man trap, if he did not do anything or omitted to do something to ensure that people’s lives or health were not affected by that man trap and if he did that because he wanted perhaps his neighbour to come onto the property and potentially fall into the man trap and die, then whilst he has omitted to perform his duties with respect to a dangerous item on his property but he has done that for the purpose of – he has omitted to do those duties for the purposes of ultimately killing somebody, if that were the circumstance that existed then it would be open, in our submission, for that property owner to be convicted of murder.

NETTLE J:   To intentionally abstain from performing a duty in order to cause the death of someone else, you say, of murder?

MS LOURY:   Yes.

NETTLE J:   How does it apply to this case?

MS LOURY:   Well, I say that the conduct here, the breach of the duty involved his failure to manage the weapon in terms of loading it, cocking it, advancing towards the deceased ‑ ‑ ‑

NETTLE J:   So that he intentionally failed to exercise sufficient care in loading it, cocking it, all in the hope that it would accidentally go off and kill his wife?

MS LOURY:   Well, all in the hope that it would go off and kill her - or with the purpose of it discharging and killing her.

NETTLE J:   He was not pulling it kind of back in order that he could intentionally pull the trigger.  He was failing to exercise sufficient care in pulling it back in the hope that it would go off and accidentally discharge, thus killing her?

MS LOURY:   Well, he was pulling it back, in my submission – he is pulling it back with the intention of firing it ‑ ‑ ‑

NETTLE J:   Yes.

MS LOURY:   But at that very last ‑ ‑ ‑

NETTLE J:   This is the point.  He was pulling the trigger back intentionally so that it would be cocked, ready to fire.

MS LOURY:   Yes.

NETTLE J:   But your alternative case as it is now put is that he intentionally failed to use sufficient care in pulling back the trigger in a way in which it would lock in the hope that it would discharge and kill his wife.

MS LOURY:   Yes.

NETTLE J:   It is unreal.

MS LOURY:   I say that on the facts of this particular case it was open, following a construction of section 289 as it falls in relation to the other provisions of the Code.  It is the breach of the duty which attaches to the specific intent, not just the unwilled act that my learned friend has spoken about, that would need to attach to the specific intent.  It is the actual – all of the breach of the duty which here, in my submission, was all designed and done for the purpose of killing the deceased.

KIEFEL CJ:   Can I be clear about this?  Are you talking about an intention formed before these breaches of duties occur and that the intention persists?

MS LOURY:   Yes.

KIEFEL CJ:   But was that the case run at trial?

MS LOURY:   It was.  Well, the case that was run at trial was that all of these things that he did were done for the purpose of shooting her.

KIEFEL CJ:   But then do not all the breaches of duty – are they not surplus to requirements in relation to the prosecution if - it is simply intention and course of conduct?

MS LOURY:   It probably would be superfluous to requirements, but nonetheless ‑ ‑ ‑

KIEFEL CJ:   It has certainly confused the picture a lot, has it not?

MS LOURY:   It has.  Indeed it has.  I accept that it has not been done before ‑ ‑ ‑

KIEFEL CJ:   It is problematic.

MS LOURY:   Yes, and it is quite novel an idea to have run.  We have referred the Court back to the decision of MacDonald.  Whilst it does not deal with the same provisions and is not determinative of the case it is provided for the purpose of demonstrating that there can be a breach of a duty coupled with an intention to kill.

NETTLE J:   But that was an intention not to feed the child in order that she might starve.  That is illogical.  It is highly different to intentionally, negligently handling the weapon in the hope that it will go off accidentally.

BELL J:   And do you have this further difficulty that if you look at what I will describe as a conventional analysis adopted by the majority in Murray, in circumstances such as these it may have been appropriate to direct the jury to the question of whether there was a slip finally on the hammer pin and in that sense the act was unwilled, but to have directed the jury’s attention to the factual question of how the jury – what the jury regarded as the act causing death – that inquiry was removed by the flow chart and the directions that the jury were given.

MS LOURY:   It certainly was removed.  They were not left with that factual finding to make for themselves.

BELL J:   That was a factual finding which, if favourable to the appellant, would have resulted in his conviction for manslaughter, not murder.

MS LOURY:   Yes, that is quite right.  Indeed, the directions in the summing‑up were that the hammer slip was an unwilled act.  That was the direction that was ultimately given, which is at 462 of the record book.  The jury were told:

that slip would cause the gun to fire, but it would be an unwilled act. 

That is at the bottom of the page, about line 47 onwards.  I have also provided to the Court a copy of section 306(b), which is the provision on attempted murder which I will say reflects a legislative acceptance that a breach of duty can be coupled with an intention to kill.  There is at least a legislative reflection of that in the Criminal Code.

If I can address the submission my learned friend made that it was illogical to call the falling below a reasonable standard with the notion of a specific intent.  In my submission, it is not so illogical dependent upon the circumstances and it is not something that is going to arise terribly often.  But, as an example, it could arise where a doctor in a hospital has a duty to provide a level of medical care for his patient and decides that that person is better off dead so omits to perform those duties, intending for the person to die, and they do die.  So it is not illogical, necessarily, dependent upon the circumstances that exist, and I say it is not illogical here.

BELL J:   But in that example, would not one look at the doctor’s act or omission as one done with the requisite intent?  One is not concerned, as it were, with 289 in that circumstance.  If a doctor deliberately withholds some necessary procedure with a view to killing the patient, does one have to invoke 289?

MS LOURY:   You probably do not have to but you certainly could invoke section 289 or similar sections to say that he had a duty and he deliberately breached that duty.

NETTLE J:   It is a deliberate failure to perform the duty.

MS LOURY:   It is.

NETTLE J:   But your trouble here, again to come back to it, is there was no deliberate failure to use sufficient care in cocking the weapon.  It was just that he intended to shoot the woman and it accidently went off.

MS LOURY:   Yes, he did.  He did intend to shoot her.

NETTLE J:   But not to be negligent in the handling of the weapon.

MS LOURY:   No.  That is quite right.

NETTLE J:   That is your problem.

MS LOURY:   It was not his intention to be negligent, no, but everything that he did was a breach of his duty in handling a loaded gun.

NETTLE J:   Yes, but it was not done intentionally as an intentional breach of duty.

MS LOURY:   I accept that the conduct which causes the death has to be coupled with the intention, which ultimately probably is the big problem, the breach of duty.

NETTLE J:   Yes.

MS LOURY:   It is perhaps not what was coupled with the intention.

GAGELER J:   If it is intentional and it is causative, what does it matter if it is a breach of duty?

MS LOURY:   It would not because it would be captured by the Chapter 28 sections by an act or omission which causes death.  It was an added complication to the trial but, nonetheless at the end of the day, in our

submission it was still on the construction of it open for the jury to convict on that basis.  Unless there is anything in particular I can assist with.

KIEFEL CJ:   Yes, thank you, Ms Loury.  Do you have anything in reply?

MR HOLT:   No, thank you, your Honour.

KIEFEL CJ:   The Court will adjourn for a short period to consider the course it will take.

AT 2.51 PM SHORT ADJOURNMENT

UPON RESUMING AT 2.53 PM:

KIEFEL CJ:   The Court is unanimously of the view that the appeal in this matter should be allowed.  The orders of the Court are:

1.Appeal allowed.

2.Set aside the order of the Court of Appeal of Queensland 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.

Reasons will be published at a later date. 

The Court will now adjourn until 9.30 am tomorrow in Brisbane and Melbourne.

AT 2.54 PM THE MATTER WAS ADJOURNED