Lacey v The Queen; Lacey v The Queen; Lacey v The Attorney-General of Queensland

[2010] HCATrans 162

[2010] HCATrans 162

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Brisbane  No B37 of 2009

B e t w e e n -

JADE MICHAEL LACEY

Applicant

and

THE QUEEN

Respondent

Office of the Registry
  Brisbane  No B38 of 2009

B e t w e e n -

DIONNE MATTHEW LACEY

Applicant

and

THE QUEEN

Respondent

Office of the Registry
  Brisbane  No B39 of 2009

B e t w e e n -

DIONNE MATTHEW LACEY

Applicant

and

THE ATTORNEY-GENERAL OF QUEENSLAND

Respondent

Applications for special leave to appeal

FRENCH CJ
KIEFEL J

TRANSCRIPT OF PROCEEDINGS

AT BRISBANE ON THURSDAY, 24 JUNE 2010, AT 10.00 AM

Copyright in the High Court of Australia

__________________

MR B.W. WALKER, SC:   May it please the Court, I appear with my learned friend, MR P. KULEVSKI, for the applicants in all three matters.  (instructed by Nyst Lawyers)

MR W. SOFRONOFF, QC, Solicitor‑General of the State of Queensland:   May it please the Court, I appear with my learned friend, MR M.R. BYRNE, in matter B37 and matter B38, and with my learned friend, MS E.S. WILSON, in matter B39.  (instructed by Director of Public Prosecutions (Qld))

FRENCH CJ:   Thank you.  Mr Walker, are you content to address these together on the basis that you will not be confined to the 20 minutes?

MR WALKER:   Even if I were so confined, I am content, your Honour.

FRENCH CJ:   Yes, all right, thank you.

MR WALKER:   May I start with B38?

FRENCH CJ:   Yes.

MR WALKER:   That is Dionne Lacey.

FRENCH CJ:   This is the emergency and the summing‑up issues?

MR WALKER:   It is.  Now, in relation to section 25 which provides for extraordinary emergencies, in our submission, the importance in construing these Code provisions of understanding the availability where facts throw up different possibilities, alternative in legal character, can scarcely be overstated.  This, after all, circumscribes the manner in which, on behalf of an accused, arguments may be put to the jury which would spare the accused conviction.  This is a case which provides a good vehicle, particularly given the factual setting. 

The epithet “chaotic” was chosen and used throughout the proceedings at first instance where others may have been used, no doubt, but it accurately captures the split second, confused sequence of events about which different evidence was given, of course, and about which the jury was asked which version they preferred and to what degree of satisfaction.  Because of that chaotic state of affairs, because there was a case clearly advanced of self‑defence and because that case of self‑defence involved the necessity to grapple with a mistaken view of a threat, the provisions of sections 271, 272, 273 of the Code were well and truly engaged. 

If one may use a circus metaphor, there were hoops to be jumped through which, it is accepted, for that success on the part of the accused, had to be jumped through; objective tests specifically calibrated and expressed with respect to the threat, the response and the mistake elements of self‑defence based upon a perception, though mistaken, of a threat ‑ ‑ ‑

KIEFEL J:   The essential point put against you, however, is regardless of how chaotic the facts are, they are the same facts that the defence of self‑defence relied upon and the question is, what work is there left for the so‑called residual defence to operate on?

MR WALKER:   Exactly, your Honour.  That is why this case, in our submission, provides an ideal vehicle to examine the obviously important question with great practical consequence as well as consequence in terms of criminal jeopardy and how one runs a trial, great practical consequence for an accused faced with what might be called in other circumstances malaise or chaos.  Because the same facts are available, in particular, the application provides an ideal vehicle to test the proposition which divides the parties and upon which we failed below, namely, can one be deprived of an alternative case where it is said, if these facts do not make out self‑defence, for example, because the threat is not seen by the jury as having been sufficiently reasonably perceived, particularly if mistake is thrown in, if these facts do not produce self‑defence, may they not still present an occasion which is described as circumstances of such sudden or extraordinary emergency that an ordinary person possessing ordinary power of self‑control could not reasonable be expected to act otherwise? 

Now, as a matter of English or an understanding of human affairs, the answer to that would have to be resoundingly, yes, of course.  If the same facts do not produce an answer, if I may call it that, of self‑defence, of course, as a matter of English or an understanding of how people might respond in sudden circumstances of danger or apparent danger, of course, section 25’s words might apply.

In our submission, it is of the first importance, as recognised by Sir Samuel Griffith, that section 25 be understood as not a vestige or rump and, in particular, not vestigial, that is, scarcely likely ever to operate.  It is intended to provided that where specific provisions do not otherwise regulate the expectation that one not be held criminally liable for certain circumstances where, for example, self‑defence or provocation or the like is in question, that there is always a catch‑all, a safety valve, that there will not be conviction in a situation where, as Sir Samuel puts it, every instinct in relation to criminal law protests at the notion of guilt.

FRENCH CJ:   Do you accept the proposition in paragraph [41], I think, at page 105, just so I understand the factual base upon which we are proceeding, that:

The extraordinary emergency relied on was that created by the circumstance, alleged to exist by the appellant, that the deceased produced a gun.

MR WALKER:   Unquestionably.

FRENCH CJ:   That is it that is the totality of it?

MR WALKER:   Yes.  As Justice Kiefel pointed out, it can then be found in the immediately preceding paragraph, paragraph [39], the foot of page 104, top of page 105, your Honours should proceed – I do not invite any qualification to this proposition – they are the same facts.  We were not putting an alternative view of what had happened.  We are putting that there are alternatives depending upon the way in which the jury is persuaded or not as to the conclusions to be drawn from the evidence.  Now, that will particularly be so in relation to apprehension of threat, reasonable response, et cetera, and the reasonableness test in relation to mistake.

So we are not saying if X happened, then self‑defence, but if X did not happen, then section 25.  We were saying, this is the narrative of events.  You the jury may be satisfied that the whole narrative of events, which include but do not comprise only the production of a gun, the whole narrative of events, the speech, the confrontation, et cetera, either you are satisfied that provides an answer of self‑defence or if you are not satisfied of the elements which govern self‑defence, that is the role of the words at the beginning of section 25, then nonetheless there is the general case provided for under section 25.

Unless it is possible to put as an alternative that which is expressed in the general or global sense of an answer, an allegation of criminal responsibility, unless it is possible to put it as we have just described, some particularly odd, not to say invidious propositions arise when a case on its facts presents different ways of providing an answer for the accused.  First, is this is a case, though not articulated as such in the Court of Appeal, where something in the nature of a binding forensic election is presented, where an accused with advice has to ask of the facts of the case – and, of course, they will not necessarily be clearly apparent as to what they are going to be at the beginning – does the accused have to elect whether or not he or she will rely upon an answer of self‑defence or an answer of emergency?

There is nothing in the nature of emergency and self‑defence that suggests that they are mutually exclusive categories.  What the opening words of section 25 rather does is to say there is not an election presented where you must abandon all possible recourse to section 25 once you have invoked sections 271 and following, but rather, that if you invoke section 271, that is, if you invoke self‑defence, if your explanation for your response has to do with a perceived threat, then you must jump through the hoops required by those provisions.  That is a ‑ ‑ ‑

FRENCH CJ:   I suppose the question is whether as a matter of concept, in the kind of circumstances we are dealing with here, emergency really collapses into self‑defence, because we are looking at what an ordinary person possessing ordinary power of self‑control would do; somebody produces a gun, you shoot them. 

MR WALKER:   Some people might, your Honour.

FRENCH CJ:   Yes.  This is the 25 scenario and the 271 scenario is somebody produces a gun, or I think somebody produces a gun, and so I shoot them on the basis that that is reasonably necessary to make effectual defence against an apprehended assault?

MR WALKER:   That is right, and then one throws in the mistake case when the self‑defence involves mistake.

FRENCH CJ:   We are operating in a virtual world created by section 24, I appreciate that.

MR WALKER:   Yes.  Now, your Honours, it may be that, as a practical matter, if you fail at an answer of self‑defence for some reason that has to do with a failure for the jury to be satisfied with the relevant placement of an onus on the Crown, to be satisfied with respect to the objective test for self‑defence or for mistake as a component of it, but it may well be that there will be swept along with that, in the jury’s view of the facts, a conclusion equally adverse to the accused with respect to section 25’s test of an ordinary person possessing ordinary power of self‑control, et cetera.  But that, with respect, only highlights the utility and appropriateness of having section 25 as a matter which calls for direction by the trial judge, unless not raised by the case in relation to the particular accused – it was, in our submission, called for in this case – and it is as a matter of law on facts that do present that stark choice that it has been held that we were not entitled to have section 25 considered by the jury. 

There has been, as your Honours have seen, in the exchange in writing between the parties by way of argument, reliance on this Court’s decision in Callaghan, from the Western Australian Code, which contains very passing comment but clearly to the effect of section 23 which has a similar opening phrase in relation to, in particular, the possibility of accident or acts or omissions occurring independently of exercise of will and the relation of that answer, that description, where there is not criminal responsibility, to specific offences involving criminal liability for negligence. 

Now, the first answer of course is contained precisely on the page that is relied upon against us, which is 87 CLR 119, which contains the two very brief comments about section 23 in that case. Your Honours will appreciate that there was not an argument in that case that involved contentions between the parties about the effect of section 23 in relation to the other provisions. It was in the course of construing the provisions in a long historical explanation of their provenance that these passing references are made to section 23. They are not made in any way at all to cast any light upon the similar phrase in section 25 for this reason.

Section 23 may be supposed, as we have paraphrased it, to spare people responsibility for their negligence if it may be said that the outcome in question occurred independently of their will, which will often be the case with negligence, or by accident, which will very often be the case in negligence.  It is obvious that such provisions cannot possibly be ever deployed as an answer to a case based on negligence where the offence is one that renders the negligence culpable.

For those reasons the textual setting of section 23 in the authority of Callaghan say nothing whatever by way of bolstering the Court of Appeal’s conclusion in this case.  Rather, section 25 has the global important and socially significant effect that Sir Samuel ascribed to it, attributed to it, that we have quoted, and for those very reasons this Court, in our submission, ought to consider whether, in fact, in effect, one is forced to elect between section 25 and sections 271 and following when there is a case that may raise self‑defence. 

So that is the section 25 point.  In our submission, it is a discrete, important point which goes to the heart of the way in which the case for the accused should have been left.  It was a case upon which the jury, as Sir Samuel puts it, upon which the jury might have a view and they should have been invited to form it.  In B38 there is a second utterly separate point which concerns what might be called a Domican point or application of the well‑established principle that in charges to the jury the cases for the parties ought to be put in an appropriate fashion.

KIEFEL J:   How much does the question of the summing‑up, though, depend upon the way in which counsel’s address had already been put to the jury?

MR WALKER:   That is what has been held against us.

KIEFEL J:   Yes.

MR WALKER:   That is what has been held against us.  My next argument is in danger of sounding facetious but it is the very reverse, with respect.  How could it be out of the ordinary, that is, not an ordinary case, for counsel to have put a lucid and persuasive version of the answer for the accused?

KIEFEL J:   Well, I do not know.  It is raised quite a lot in special leave applications.

MR WALKER:   Nonetheless, your Honour, it would be in itself ‑ ‑ ‑

KIEFEL J:   But in the end what one is concerned with, from the perspective of the jury, is what information they have received and a trial judge assesses how much is required by way of summing‑up after hearing and observing the jury’s response to counsel.

MR WALKER:   Unquestionably, I cannot possibly ‑ ‑ ‑

KIEFEL J:   So that is how you assess the summing‑up, I think, as a whole.

MR WALKER:   But this Court has said repeatedly, and it is not challenged either below or against us here, that in the ordinary case, ordinarily what is called for is the judicial imprimatur, the neutral director of proceedings, the judge, not merely adversarial counsel putting the cases.

KIEFEL J:   It depends upon the issues, obviously.

MR WALKER:   It will depend upon the issues particularly if the facts boil down to one critical element, if the law is very straightforward, then it may indeed be trespassing on the jury’s patience, for example.  That was certainly not this case.

KIEFEL J:   Well, what were the critical elements here that the summing‑up – that the judicial imprimatur was required?

MR WALKER:   Very much the matters that one sees picked up in paragraphs [52] and [53] at pages 109 and 110 of the application book.  This is a very clear case in terms of a vehicle for special leave to be granted in the sense that after what is described and, with great respect, accurately as a lucid and persuasive address by senior counsel appearing for my client and some time had elapsed, counsel asked – counsel asked – that the ordinary step be followed of the judge summarising for the jury the way in which the parties’ cases were put.  Now, at pages 116 and 117, paragraphs [83] to [85] involve the following reasoning. 

In paragraph [83] it is true, their Honours accept, that there is not what is ordinarily required; it did not happen, and at that point we say, well, what was extraordinary about this case?  It was not that the facts fell out particularly simply, it was not that the law was particularly straightforward, it was not that the trial had been up and over in a day, all of which would be cases that might call for restraint to the point of absence of the usual summing‑up, and it could not have been, surely, that it was out of the ordinary because the address had been lucid and persuasive.

KIEFEL J:   But if it was persuasive – I mean, you assume that the trial judge summing‑up will carry particular weight with the jury.  The trial judge may have assessed that it would detract from a very lucid and persuasive address to the jury to go over the same facts in probably a more neutral way that trial judges are required to do.

MR WALKER:   Well, for a start, it can never be a bad thing for matters to be put by a judge neutrally.

KIEFEL J:   They do not have the same forensic opportunities of persuasion.

MR WALKER:   Your Honour, it might be bad from the point of view of somebody standing on one side or other of the Bar table.  I mean, from the point of view of the administration of justice, it is never going to be a bad thing.  Next, it is of great significance that it was ‑ ‑ ‑

KIEFEL J:   But we are talking about a trial judge assessing what is a fair opportunity.

MR WALKER:   Yes.  It is of great significance that it is counsel who have done the lucid and persuasive address, who asked to have what is ordinarily done.  It is a hard line surely for us to be told that, although you wanted this, you are better off without it, and that is really what the reasoning in [85] speculates; cannot find, but it speculates.  One sees that in at line 10 on that page, “It is arguable that” et cetera.  Well, it may be “arguable that”, but very experienced counsel who had already presented something that correctly received the accolades that are repeated about it, opined and formed the forensic judgment that what ordinarily should happen ought to happen.

In our submission, this is not an ordinary course repeatedly pronounced by this Court as expected from trial judges which ought to be applied or dis‑applied by reference to something as difficult and invidious as saying, “Well, counsel has done well, I will not muck up his or her case by putting the summary that he or she has sought.”

KIEFEL J:   The other factor is how close counsels’ addresses were to the point in time when the judge comes to sum up.  These were not long addresses.  I mean, the gap between the addresses and the judge’s summing‑up was not great.  I think that is reflected in paragraph [85] of the Court of Appeal’s decision that the addresses by counsel for the defence would have been fresh in the mind of the jury and it is not factually complicated.  I mean, the judge’s summing‑up is usually required to further clarify matters after counsel’s address, but the facts in this case were not complex.

MR WALKER:   Your Honour says that they were not complex, but there was a narrative to be put together which in the nature of things could never be put together perfectly.  If there was a fracas, it happened very quickly and, how shall I say, not everybody who could have given evidence came forward to assist the authorities and so there were incomplete versions.

KIEFEL J:   But the essential issues were pretty simple.

MR WALKER:   There was about a two‑day period between the close of addresses and the retirement of the jury.  In our submission, these are all the hallmarks of something relatively ordinary, not out of the ordinary.  It is not a matter of prompting the jury’s memory, it is a matter of collecting it by the neutral judicial officer.  That, in our submission, is something which this Court has repeatedly said is what one ordinarily looks for.  So that means in this case one would say, well, what is out of the ordinary?  Nothing appears from which it emerges there is a point of general principle here.  What does it mean to say something should ordinarily be done but it is okay if in an ordinary case it is not done?  That, in our submission, is an unsatisfactory way for the law to be concerning how counsel and trial judges should proceed.  Your Honours, that is all I wanted to say on B38.  Could I move now to B39?

FRENCH CJ:   We might hear, not immediately, but from Mr Sofronoff first on B39 before we hear you in reply on that.  It might help us if you go straight to B37, I think, Mr Walker.

MR WALKER:   Thank you.  Now, your Honours, this is again a completely discrete point.  It has no connection with any of the arguments I have earlier put.  This is for my other client, of course.  It falls out this way and I should volunteer immediately that my learned friend has discussed with me drawing to the Court’s attention some matters that have occurred with respect to my client since the special leave application was filed. 

FRENCH CJ:   At the present time he was due for release on parole in November, was it, or a little later?

MR WALKER:   I think so, yes, but since then there has been a conviction.  I have been shown an affidavit, but I am absolutely content for my friend to tell you about it from the Bar table and so I should volunteer that at the outset.  I think my learned friend is going to say, why does release on parole matter?  He is about to be sentenced on another offence.  Perhaps, can I come to that immediately, because this Court should never anticipate the outcome and what effect it might have on somebody’s liberty.  There has not been a sentencing. 

Now, I am sorry, it appears from the facts that you will be told by the Solicitor‑General that there has not been a sentencing because the outcome of these applications is being awaited.  That does not mean there is a perpetual spiral, I hope.  We would seek to break it this way.  It could never be right if there be any merit in our special leave application to refuse it in case there is an event that has not yet occurred that might render ‑ ‑ ‑

FRENCH CJ:   Perhaps you can take us straight to the merits of your application.  We will hear from Mr Sofronoff in due course.

MR WALKER:   The merits are simply this. 

FRENCH CJ:   I mean, on the face of it, the sentencing judge does not appear to have adverted to the effect of the backdating on what might ordinarily have been the default parole eligibility position.

MR WALKER:   That is right, and our argument, as you have seen from the writing, is that it is of great importance in the administration of criminal justice that reasons for the imposition of sentence, including subsidiary or ancillary aspects such as parole release dates, be explained.  The reasons for that are multiple, but they are well established and they cry out ‑ ‑ ‑

FRENCH CJ:   Accepting the correctness of that proposition, is this a case, having regard to the practical outcome, which would warrant the grant of special leave?

MR WALKER:   Yes, it is, because first of all it is a very confined question in terms of what the effect of the sentencing judge’s imposition was, the effect of the statute and the absence of any explanation.  In the Court of Appeal the absence of explanation is rather turned into an availability of other possibilities, but, with respect, it has to be for the sentencing judge not someone else to supply his reasons for the outcome.  Now, the outcome in this case operates because of the custody before the beginning of the sentence itself, before the sentence pronounced following conviction, not counting towards time on that sentence. 

The contradiction or the inconsistency which is, we submit, troubling is that, of course and very correctly, his Honour took into account that very long time, over 700 days, that very long time in order to select the appropriate head sentence and so, in that sense, benefit was obtained.  Not only do we have no complaint about that, with great respect, it was the proper course to follow, but bearing in mind that the regime of parole after 50 per cent – or, more to the point, no parole before 50 per cent – of time served, bearing in mind that that would automatically operate so as in this case to require the very considerable excess because the time before

conviction could not count for the purpose of that 50 per cent, in our submission, the ‑ ‑ ‑

FRENCH CJ:   So we get an extra year?

MR WALKER:   Exactly.  There needed to be consideration and reasons given for failing to direct something which would have the effect of 50 per cent.

KIEFEL J:   Do you say we should proceed upon the assumption that the sentencing judge overlooked this question?

MR WALKER:   Yes.  The way that one collects what a judge does is from a judge’s reasons, Middle Harbour Yacht Club, Justice Hayne.

KIEFEL J:   This is a pretty fundamental issue, though, one that you would normally assume that a sentencing judge is quite aware of.

MR WALKER:   It cannot surely, given its effect on the liberty of a person – and I know it is conditional liberty, but it is still liberty – it cannot surely be said as something that goes without saying or silently supplies the answer for the effective decision not to have the 50 per cent.  So, in our submission, that is the describing element, which in the interests of justice in the particular case, plus also put more generally in relation to reasoning towards a sentencing outcome, makes this an appropriate case for a grant of special leave.

FRENCH CJ:   But you really cannot pitch this much higher than the meaning for that purpose.  You cannot pitch this any higher than a visitation case, can you?

MR WALKER:   I have just tried, your Honour.

FRENCH CJ:   I know you have tried.  Yes, all right.  Yes, Mr Solicitor.

MR SOFRONOFF:   Your Honours, could I deal with the parole issue first, because it is brief.  Jade Lacey would have been eligible to apply for parole in November of this year, that is, he does not get an automatic release, he is eligible to apply for parole.  He would have been eligible in November of this year had the judge decided to grant an early parole eligibility date, given the sentence of five years that he had imposed.

FRENCH CJ:   In other words, had the judge decided to apply the, as it were, 50 per cent default rule to the effective total sentence.

MR SOFRONOFF:   He would have been eligible in November of this year.  Instead it will be November of next year.  The utility of the appeal is doubtful, assuming there is any point in it, because in March of this year the applicant was convicted of offences of assault occasioning bodily harm whilst armed, threatening violence, extortion, unlawful wounding with intent and torture and they arose because he and his brother kidnapped a person, probably in relation to a drug debt, assaulted him, held him captive for a period, took him to an island on the Gold Coast ‑ ‑ ‑

FRENCH CJ:   Well, I do not know that we need to go into all the facts of it.

MR SOFRONOFF:   The reason I am going into the facts, your Honour, is only to demonstrate that when he is sentenced, it would be unreasonable to suppose that he would be sentenced for a period of less than a year.

FRENCH CJ:   When is sentencing due?

MR SOFRONOFF:   After the determination of these applications and subject to any appeal being relevant to the question of sentencing and, of course, having regard to what has happened in relation to his parole period, that is something that would be taken into account by a judge sentencing him in respect of the new offences.  That would be a submission that could be made in his favour in respect of the new offences.  Otherwise, in our respectful submission, the trial judge was conscious that in fact the parole period would be two and a half years into the actual sentence and for the reasons the Court of Appeal gave, at pages 105 to 106 ‑ ‑ ‑

FRENCH CJ:   Well, they are justifying the head sentence there, are they not, [46] and [47]?

MR SOFRONOFF:   Yes.

FRENCH CJ:   What are the circumstances to which they are referring when they say, at [48] that:

there was ample justification for the primary judge’s approach to parole eligibility.

First of all, what was his approach and, secondly, what were the circumstances?

MR SOFRONOFF:   Excuse me, your Honours.

FRENCH CJ:   Because, as I have read his sentencing remarks, he was simply telling the applicant what the default position was.

MR SOFRONOFF:   If your Honours go to page 85 of the application book, the sentencing judge set out the factors that he considered important at page 85, both aggravating and mitigating, and concluded at the foot that his “conduct was not at the most serious level” but it was “a serious and reprehensible use of violence against an unarmed man”.  Then over the page, at page 86 at about line 30, he refers to seven years having been the appropriate sentence but for the two years he has already spent on remand:

Ordinarily, you would become eligible to apply for parole after serving 50 per cent of your sentence. 

So he is conscious that it is 50 per cent of the five years, which is an effective postponement in practical terms because of the seven years.  But the Court of Appeal then, at page 105, paragraph [46], the range is “six to nine years”, their Honours said.  They then made comments about the nature of the offence and that it justified a sentence towards the higher end.  Over the page –

The primary judge declined to declare the appellant to be convicted of a serious violent offence –

which would have had consequences for him to his disadvantage –

His discretion would not have miscarried had he made the declaration.

At paragraph [48] –

In the circumstances, there was ample justification for the primary judge’s approach to parole eligibility.

That is to say, the trial judge would have been justified in expressly postponing parole eligibility and, in our respectful submission, that is correct.  At page 86, Mr Byrne reminds me, at line 20:

There is, though, an important element of deterrence and condemnation which your conduct attracts and while not justifying a declaration –

a declaration that he is a serious violent offender, which would have had a postponing effect upon parole eligibility –

warrants a substantial penalty.

So the judge is conscious of parole eligibility, the precise time at which parole eligibility will arise given the sentence that he has imposed and the circumstances that warrant it and the Court of Appeal then it its consideration concluded rightly, we submit, with respect, that the postponement was justified and, having regard to the sentence which the applicant is likely to face in the near future, in any event, parole eligibility will be a purely theoretical matter for some time.

Could I deal, then, your Honours, with the section 25 point.  Section 25 says that it is subject to the express provisions of the Code relating to compulsion, provocation and self‑defence.  Situations which call for self‑defence, situations of compulsion and situations in which the defences relating to provocation arise will all be situations of emergency.  The Code makes special provision for such emergencies and we can see most clearly from section 272 – could I ask your Honours to go to that – 272 provides for defence against a provoked assault. 

If your Honours would look at section 272(2) and consider this case.  You threaten somebody with a loaded pistol thinking him to be unarmed and intending to shoot him in the knee.  He responds by bringing out his pistol and aiming at your heart.  You then decide that you had better kill him before he kills you and you do so.  You have no defence of self‑defence because 272(2) excludes a defence where you have initiated the violence with intention to kill or to maim.  Section 25 can have no application logically because section 272(2) provides a special regime in respect to that situation of emergency and on a construction of section 25, it has no application because of the opening words of the section. 

The applicant’s argument would have it that section 25 nevertheless applies in its general terms.  In our respectful submission, situations calling for self‑defence, that is to say, emergencies which give rise to a need in a person to defend himself or herself, situations in which a person finds himself or herself under compulsion and situations where provocation is in issue are all special occasions of emergency which are dealt with by special provisions of the Code dealing with them and that is why the opening words of section 25 are as they are.

It is the same reason for the use of those words in section 23.  Accident and involuntariness cannot be an answer where criminal negligence is in issue.  Section 25 nevertheless has a great deal of work to do because, apart from situations where an attack by the accused is in issue, there will be occasions where an accused might be charged with, say, unlawful wounding carried out in a situation of extraordinary emergency; an aeroplane crash or something of that kind which calls for a requirement to wound somebody in order to save that person’s life.  A case of arson, where destruction of property is called for by the emergency, section 25 will give a defence to a charge of wilful damage. 

Similarly, if I, being threatened by B, shoot at B intending to kill him, I must come within section 271 or 272.  If I then shoot at him twice, once killing him, I have to fall within the self‑defence provisions or nothing.  But if my second shot went astray and killed somebody else, then I would be looking at 25 to excuse my conduct in shooting the bystander.  So section 25, in our respectful submission, has a great deal of work to do but it has no work to do when the question at issue is governed by the provisions expressly referred to in that section; self‑defence, compulsion and provocation.

FRENCH CJ:   Does it reduce to this proposition in principle that where the section is sought to be invoked on a fact situation capable of attracting the section 271 or 272, then the section is not applicable, as a matter of ‑ ‑ ‑

MR SOFRONOFF:   Correct, as a matter of law, it is not a question of election.  In this case, in any event ‑ ‑ ‑

FRENCH CJ:   I suppose you can imagine a situation – that does not mean that one cannot run self‑defence and emergency at the same time because you may fail to establish certain facts which are necessary for the purposes of self‑defence but which would leave open the question of emergency.

MR SOFRONOFF:   No, your Honour, one could not run 25 at all, because if the Crown excludes self‑defence, the offence will have been proved.  The Crown would not have to go on to exclude 25 as well.  That is the effect of the opening words.  It is self‑defence or nothing. assuming it is on the same facts.  Here, could I remind your Honours of what ‑ ‑ ‑

FRENCH CJ:   Really, I suppose, that is what I am putting to you.  There might be alternative factual scenarios or characterisations of conduct arising out of evidence before a jury; one characterisation or scenario which would support self‑defence, another which might support emergency.

MR SOFRONOFF:   Yes, I accept that, your Honour.  That is so.  The other aspect of it, your Honour, is the hypothetical nature of this appeal if leave were to be granted and that emerges from the observations of the majority at page 105 in paragraph [41] that I think your Honour adverted to earlier and the President at paragraph [213] at page 150.  Could I invite your Honours to read that?

FRENCH CJ:   Yes.

MR SOFRONOFF:   Those are my submissions in relation to section 25.  As to the summing‑up, in our respectful submission, his Honour’s summing‑up did not in any respect prejudice the applicant.  Could I invite your Honours to look at page 111, paragraph [61].  The trial judge, their Honours say, they gave:

a lucid and comprehensive account of the meaning and operation of sections, 271, 272 and 273 together with reference to the evidence, germane to the case against Jade Lacey . . . The appellant made no complaint about the accuracy or the sufficiency of the directions –

about the law.  There was another complaint made at paragraph [62].  That contention is rejected.  The reasons are complicated but their attributes, because of “the intricacy of the legal requirements of self‑defence”.  At paragraph [63]:

Having concluded the summing up with respect to Jade Lacey –

he then turned to Dionne –

It must be remembered that the evidence established that the deceased was unarmed and had not threatened the appellant in any way.

Jade Lacey had given evidence and he must have been disbelieved –

In these circumstances s 271 and/or s 272 and/or s 273 could not operate to exonerate the appellant from criminal responsibility for his shooting the deceased unless the appellant had an honest and reasonable, though mistaken, belief as to facts –

Then over the page, at paragraph [66], his Honour then dealt with Dionne and summarised the position, and at paragraph [67] their Honours concluded that the direction quoted in [66] answers that contention of the applicants and at the top of page 113, their Honours said:

As we have said, the facts were relatively straightforward and comprehensible.  They had been the subject of lengthy addresses and analysis by the prosecutor and both defence counsel.

In the materials, your Honours, that we caused to be delivered, there is an extract from the transcript, at the last tab, I am told, in the book that your Honours have.  Mr Callaghan for the applicant asked for some redirections and if your Honours go to the third sheet, Mr Callaghan at line 10:

MR CALLAGHAN:   Your Honour didn’t put the arguments that I made in support of the proposition that the defences were made out.

HIS HONOUR:   Your 10 points? –

Could I just interpolate that Mr Callaghan had said to the jury “there are 10 points I want to put to you” –

MR CALLAGHAN:   Well, not so much those, but those which followed from them.

HIS HONOUR:   And what do you say I put it – for the Crown case?

. . . 

HIS HONOUR:   You see, I didn’t with Mr Richter or Mr Byrne . . . 

HIS HONOUR:   And I didn’t tell the jury I was going to do that.

Then Mr Callaghan pointed out what he did not complain about at line 25 and then said:

MR CALLAGHAN:   It’s the argument which I submit should be put and juxtaposed with the lack of Crown argument on the same issues.

Then on the last sheet at line 30, his Honour dealt with that application for redirection:

I did not attempt, with respect to either the Crown or the defence, to summarise in detail all and every aspect of everything said by both counsel.  Mr Callaghan gave a lucid and detailed exposition of his case yesterday.  I do not think that in presenting a brief summary of the arguments which have been presented by counsel that I presented an imbalanced view of the cases.  Rather, I regard it as having been –

His Honour made that judgment.  The majority of the Court of Appeal accepted that there was no unfairness involved and, in our respectful submission, there is nothing in that to warrant the grant of special leave.  Those are my submissions on those issues, your Honours.

FRENCH CJ:   I think we are going to hear from you now on B39?

MR SOFRONOFF:   I am sorry, your Honour.

FRENCH CJ:   This is the unfettered discretion point.

MR SOFRONOFF:   Yes.  Did your Honours wish to hear from me first on that?

FRENCH CJ:   Yes, I did.

MR SOFRONOFF:   Yes, certainly, your Honour.  Your Honours, as to that, there are two parts to it.  The first is the history of the section and the second is the construction that their Honours gave to that section.  The history begins to be recited at page 126.  Originally, as your Honours know, the provision giving the Attorney‑General a right of appeal – and mark that your Honours, it is a right of appeal against sentence, not, as in the case of an accused person, a right to apply for leave to appeal against sentence.  The provision itself is at page 123, paragraph [114].  The provision was originally enacted without the word “unfettered” and, as Chief Justice Andrews observed, after its enactment in, I think, the 30s, the court approached Attorney Generals appeals against sentence by regarding it as a proceeding in which the court indeed had an unfettered discretion to impose whatever sentence the court thought was proper without being bound by the strictures of House v The King. 

Then came the decision of the Court Criminal Appeal in Liekefett, and at page 126 their Honours deal with that case and how that case became authority for the proposition that Attorney‑Generals appeals are to be subject to the strictures of appeals against discretions, House v The King.  So that is Liekefett.  At paragraph [126] on page 127, as is well known now, the Queensland Parliament amended the provision by adding the word “unfettered” before the word “discretion” and did so, so the Minister said, over at page 128, in order to undo a recent case.

FRENCH CJ:   You would say the term “unfettered discretion” characterises the nature of the appeal?

MR SOFRONOFF:   Characterises the nature of the task of the court, that is right, yes.

FRENCH CJ:   Well, it is the nature of the appeal to the court.

MR SOFRONOFF:   Yes, quite.

FRENCH CJ:   I mean, another view would be that the word “appeal” carries its own content and the “unfettered discretion” refers to the dispositions that are available.

MR SOFRONOFF:   Your Honour, if that were an open construction, it would require two things to be accepted.  One is that the addition of the word “unfettered” was completely ineffective.

FRENCH CJ:   One wonders what difference the word “unfettered” does make to the word “discretion”.

MR SOFRONOFF:   Well, it ought to have made none because, as the Court of Criminal Appeal had acted for 30 years before Liekefett, it had an unfettered discretion, but Parliament made it plain that it is what its meaning was to be.  Secondly, if the principles of House v The King apply, then of course after error is shown, the discretion is unfettered.  So the word actually, as the majority said in the first sentence of [127]:

According to the argument advanced on behalf of the respondent, the 1975 amendment to s 669A achieved precisely nothing.

FRENCH CJ:   Ambrose Bierce once defined an appeal, “in law, another throw of the dice”.  Is that what the Attorney General gets on this construction?  Are there any limiting principles?

MR SOFRONOFF:   Yes, your Honour.  What he gets is summarised in two places.  The first is at page 130, paragraph 130 where Chief Justice Andrews in Osmond said the task of the Court is this:

“The Court is required to have regard to the sentence appealed from in order to decide whether to vary it.  The discretion to vary it rests upon disagreement as a matter of judgment for reasons of substance reflected in a variation which is merely trivial or arbitrary.

FRENCH CJ:   Does that mean giving weight to the primary judge’s decision?

MR SOFRONOFF:   No, it means that the court must form its own view and must think that the sentence is not a proper one, that is, reasonable minds can differ, as we know, about an appropriate sentence and if reasonable minds do differ, it is the view of the Court of Appeal that matters.  So mere tinkering, trivial or arbitrary – certainly not arbitrary – but even trivial or tinkering, would not be open.  If your Honours would go to page 137, paragraph [147], after referring to that dictum of the Chief Justice’s, their Honours said:

This Court in exercising its discretion must have regard to the sentence imposed below, but come to its own view as to the proper sentence to be imposed.  In doing so, it must act in conformity with the principles relevant to the exercise of judicial power.

Your Honour put to me, do they have to give weight to the ‑ ‑ ‑

FRENCH CJ:   They seem to be using the words “have regard to the sentence imposed below” followed by the “but” as though there is some respect to be given to what the primary judge has done.

MR SOFRONOFF:   I was going to say that it is, of course, the opinion of a trial judge at the trial who has the sense of the trial and consequently it is an opinion that has to be taken into account when the Court of Appeal forms its own opinion.  It is not a tabula rasa.

FRENCH CJ:   Then what principle informs departure from that opinion?

MR SOFRONOFF:   A difference of opinion.  Your Honour, one has that even in cases under the – when accused persons appeal, a court might divide 2:1 on the question of sentence and the point is that when the Court of Appeal forms an opinion that is having thought about the judge’s view, which is entitled to respect because it is a decision by a person who has had the sense of the trial and has heard submissions about it, but if it forms a different view ‑ ‑ ‑

FRENCH CJ:   Is it a sort of respect for the advantage of a primary judge of the kind that an appellate court has when reviewing fact findings, for example?

MR SOFRONOFF:   No, it is different in that it is the respect of the court for an opinion expressed by a person whose judgment deserves to be given respect because of the position that that judge occupies.  It is not like an appeal against the credit finding.

FRENCH CJ:   It is a person who has been immersed in the nuance and detail of the trial.

MR SOFRONOFF:   I am sorry, your Honour.

FRENCH CJ:   It is a person who has been immersed in the nuance and – assuming we are not talking about a plea of guilty, of course ‑ ‑ ‑

MR SOFRONOFF:   Yes, quite.  But even then there might be matters of – I call it atmosphere – that the trial judge is aware of and that is the reason why tinkering would not be open because that would not constitute, in our respectful submission, a disagreement.  If you are only disagreeing on the margin, that is hardly disagreeable.

KIEFEL J:   Did the President disagree with the majority on this point?

MR SOFRONOFF:   Yes, she did, your Honour.  It begins at page 155, and her Honour dealt with the history of the matter for a number of pages.

KIEFEL J:   What was the essential point of difference?

MR SOFRONOFF:   It appears at paragraph [263] on page 162.  Her Honour was of the view that there are two steps.  The fourth line:

The Court must first determine whether the appeal from an exercise of judicial discretion should be allowed –

and then applies its own mind to the issue, and she concluded that 669A does not exclude House v The King principles.  It is difficult, with respect, to find the precise reasoning that led her Honour to that view.

KIEFEL J:   The court sat five members on this ‑ ‑ ‑

MR SOFRONOFF:   Yes.  Yes, for that reason.

KIEFEL J:   Is it not a question of importance sufficient to attract special leave?

MR SOFRONOFF:   Your Honours, it is a State statute.  First, it is a State statute where the court sat five members; four decided in one way.  In our respectful submission, unless your Honours were troubled by correctness of that and, in our submission, you ought not be because the history and the actual language used in the section itself dictate the result that the four adopted, in our submission.  So for those two reasons, that it is a State statute where five members of the court sat to hear argument upon the issue and four of them decided in favour of a particular construction and, secondly, that the construction is correct.  Those are our submissions, your Honours.

FRENCH CJ:   Thank you, Mr Solicitor.  Yes, Mr Walker.

MR WALKER:   Your Honours, on the case concerning section 669A, the reasoning of the learned President is reasoning that we rely upon for the proposition that were special leave to be granted, there are good prospects for a different outcome being achieved.

KIEFEL J:   Is their Honours saying that her Honour’s view of the section is overlaid by the nature of an appeal?

MR WALKER:   Yes.  The elements that we would wish to stress are these.  It is an appeal.  The political agenda following Liekefett and Melano is clear.  The political agenda was not accompanied by a legislative will actually to say in an act of the Parliament of Queensland that an appeal may be allowed though no error has been found.  That is the effect for which the majority has held in this Court.  As to it being a State Act, this Court is the highest Court in relation to matters in Queensland, as it is in relation to matter in all States.  There are, in our submission, transcendent matters of statutory interpretation for the administration of criminal justice and the nature of appellate jurisdiction raised by our proposed arguments.  First, what is an appeal? 

The way in which the learned Solicitor‑General has put it, this is a statute which gives, at the behest of the Attorney‑General, without any filter of leave being available to the court, to demand that the court re‑sentence a person and to demand that they do it without any prior step of ascertaining that there has been error.  Error in sentencing, see House v the King and Whittaker, error in sentencing has been, as we submit, as an entrenched part of the common law that is applied to interpret statutes in relation to criminal appeals.  That error requires what House v The King characterises as no mere disagreement.  That is because the very nature of sentencing, as explained by this Court time and time again, involves the unlikelihood of a uniquely correct answer to the question, what is an appropriate sentence?

If no mere disagreement is what is necessary for there to be a successful appeal, then, in our submission, this is simply a question as to whether, in a very important statute, as to whether the device – and we stress, the device – of adding the word “unfettered” appearing, that is, not to be changing the text much, and certainly not saying anything about the nature of the appeal, whether that device is actually carried out to successful completion, according to the statements of the promoters of the Bill, the project of reversing, in effect, what the Queensland judges have twice said ought to be the approach. 

In our submission, that is self‑evidently important.  It is a matter which is, with great respect, well raised in terms of laying out the material in the judgments in the Court of Appeal.  The fact that it was a five person bench, in our submission, bespeaks rather than contradicts its eligibility for a grant of special leave to this Court and, in particular, the notion that the result that has followed is one that provides clarity of approach ought to be rejected.  It can be illustrated by our learned friend’s repeated embrace, protesting too much, we respectfully suggest, that tinkering will not be permitted.  Why not? 

Tinkering is an opprobrious term applied to a difference which is too slight to indicate the kind of House v The King error, and that it comes from House v The King jurisprudence.  Tinkering is condemned because if the change on re‑sentencing is as slight as the outcome suggests, then you could not have been satisfied as an intermediate appellate judge of a House v The King error.  For those reasons, in our submission, there is betrayed a genuine vagueness in the outcome for which the learned Solicitor‑General contends to be left undisturbed by no grant of special leave.

What is meant by the mere tinkering that, although it emerges from a disagreement, is not really a disagreement for the purposes of this section?  The answer, in our submission, is that the epithet “unfettered” does perform a function, does not satisfy the ambitions of the political promoters of the Bill, but it does perform a function because it gets rid of the fetters, as they have been described, the fetters of the double jeopardy considerations that inform the court’s approach, both at the beginning and the end of a Crown appeal on sentence, including going to the lowest, that is, the least disadvantageous outcome on the available range when error has been detected and somebody has been re‑sentenced in an appellate bench. 

The word “unfettered” gets rid of that.  That, in our submission, is of cardinal importance.  It is the words adopted by Parliament that will do the work.  The statute is enacted against a background of the expectation of what an appeal is with the common law notions embedded in that.  In our submission, this is simply a case where, if you like, Parliament has not been brave enough to say what it now says was intended, namely, though it be called an appeal, no error need be shown.  An unexceptionable sentencing by a first instance judge must be disturbed if a majority can be found in the Court of Appeal to merely disagree.  For those reasons, in our submission, it is a matter that should attract a grant of special leave.

On the other applications, in our submission, in relation to section 25, my friend’s answer to the Chief Justice’s question really amounts to the proposition that, yes, there is an election.  The question was framed in terms of a case where the facts are capable of producing an answer of self‑defence.  Capable of producing an answer of self‑defence itself conceals the need to leave open alternatives.  It is an empty promise, surely, in the Criminal Code to allocate criminal responsibility bearing due regard for the kinds of emergencies that might arise.  If one says, well, this is a case capable of having an answer of self‑defence, but it does not, what that really means is the facts are such as, one, there is a viable argument, but if it does not produce self‑defence, it does not produce self‑defence.  Who is to say that?  Does that mean that defence counsel can say, “Well, I might get self‑defence, I might not”? 

The same evidence can be viewed as to the ultimate conclusions called for by the Code provisions in different ways, and cogently so in different ways.  “I would prefer the robust language of section 25.  I will not run self‑defence.  I am just running section 25, your Honour.”  Does the trial judge now say, because of the way in which the Crown puts the argument here, “No, no, no, this is a case capable of self‑defence.  Be bold.  You should not be so pessimistic about self‑defence.  Give it a go.  By the

way, if you give it a go, and more to the point, I am going to direct on the basis of what I say the law is, I am not going to direct on section 25.  I am going to direct the jury they cannot take section 25 into account.”  In our submission, these are doubts, both practical and principal, which make this an apt case for consideration by the Court on special leave. 

As to the question whether the matter be moot for the reasons the learned President raised, to which my learned friend drew attention, in our submission, it is precisely because this is a jury question, as Sir Samuel puts it, how a jury may see the matter in relation to an emergency, that it ought to have been left to a direction.  It is not, in our submission, either directly or by analogy, a case for proviso‑style reasoning.  Certainly, the ruling in the Court of Appeal means that juries will not get the opportunity that Sir Samuel intended they should have. 

As to the sentencing matter, in our submission, when all that is known is the following conviction, there has not been sentence, and one knows nothing about what might fall out with appeals, etcetera, in later proceedings for quite different offences, it would be inappropriate to take that into account against a grant of special leave, were it otherwise justified.  May it please the Court.

FRENCH CJ:   In relation to B37 of 2009, the sentencing judge in this case was well aware that the default parole eligibility date was halfway through the finite sentencing imposed on the applicant.  He did not in terms consider whether an earlier parole eligibility date should have been fixed on account of the two years spent in custody awaiting trial which was taken into account in fixing the sentence.  We are not satisfied, however, in the circumstances of this case that the prospects of success on appeal or the interests of justice warrant the grant of special leave to appeal against the sentencing decision so far as it relates to the fixing of parole eligibility date and special leave will be refused.

In relation to B38 of 2009, the Court of Appeal found in this case the facts relied upon to invoke the defence of self‑defence were the same as those relied upon for the purposes of a defence of extraordinary emergency under section 25.  The court held that there was therefore no scope for the application of the latter defence.  Having regard to that circumstance, we do not consider that the court was in error.  As to the sufficiency of the summing‑up, that was considered in the Court of Appeal.  Although, as it found, the trial judge did not summarise the respective arguments in a discrete way, which would have been preferable, that deficiency does not, in the circumstances of the case, warrant the grant of special leave.  Special leave will be refused.

So far as B39 is concerned, there will be a grant of special leave.  Is that likely to involve more than half a day or a day?  We will say a day?

MR WALKER:   Yes.  We will not take much more than half a day.

FRENCH CJ:   Yes, all right.  Thank you.

AT 11.11 AM THE MATTER WAS CONCLUDED