HIGH COURT OF AUSTRALIA
KIEFEL CJ,
GAGELER, NETTLE, GORDON AND EDELMAN JJRODNEY PETER PICKERING APPELLANT
AND
THE QUEEN RESPONDENT
Pickering v The Queen
[2017] HCA 17
3 May 2017
B68/2016
ORDER
1.Appeal allowed.
2.Set aside the order of the Court of Appeal of the Supreme Court of Queensland made on 6 May 2016, and in its place order that:
(a) the appeal be allowed;
(b) the appellant's conviction be quashed; and
(c) a new trial be had.
On appeal from the Supreme Court of Queensland
Representation
M J Copley QC with C J Grant for the appellant (instructed by Anderson Telford Lawyers)
M R Byrne QC with G J Cummings for the respondent (instructed by the Director of Public Prosecutions (Qld))
Notice: This copy of the Court's Reasons for Judgment is subject to formal revision prior to publication in the Commonwealth Law Reports.
CATCHWORDS
Pickering v The Queen
Criminal law – Justification and excuse – Resisting actual and unlawful violence threatened to person – Where appellant stabbed deceased – Where appellant acquitted of murder but convicted of manslaughter – Where s 31(1) of Criminal Code (Q) not left to jury – Whether appellant able to rely on s 31(1) to deny criminal responsibility in relation to offence of manslaughter – Whether s 31(2) renders s 31(1) unavailable wherever evidence discloses that act of accused constitutes offence described in s 31(2) regardless of charge.
Words and phrases – "act", "criminally responsible", "liable to punishment", "offence".
Criminal Code (Q), s 31.
KIEFEL CJ AND NETTLE J. The appellant was tried in the Supreme Court of Queensland for the murder of Ivan John Owens ("the deceased"). He was acquitted of murder but convicted of manslaughter. The appellant's appeal to the Court of Appeal from that conviction was dismissed[1].
The question on this appeal is whether a miscarriage of justice occurred by reason of the failure of the trial judge to leave to the jury the possible application of s 31(1)(c) of the Criminal Code (Q) ("the Code"). For the reasons which follow, that question should be answered affirmatively and the appeal should be allowed.
Relevant statutory provisions
So far as is relevant, s 31 of the Code provides:
"(1)A person is not criminally responsible for an act or omission, if the person does or omits to do the act under any of the following circumstances, that is to say –
…
(c)when the act is reasonably necessary in order to resist actual and unlawful violence threatened to the person …
(2)However, this protection does not extend to an act or omission which would constitute the crime of murder, or an offence of which grievous bodily harm to the person of another, or an intention to cause such harm, is an element …"
The facts
The appellant's evidence concerning the events in question may be stated shortly. The appellant and the deceased were best friends. On the night in question they had been…
Continue reading Pickering v The Queen
Sign in free to access the full text
- AGLC
- Pickering v The Queen [2017] HCA 17
- Case
- [2017] HCA 17
- Decision Date
CaseChat Overview and Summary
The legal issues before the High Court were whether section 31(1) of the *Criminal Code* could be relied upon by the appellant to deny criminal responsibility for manslaughter, and whether section 31(2) rendered section 31(1) unavailable whenever the evidence disclosed that the appellant's act constituted an offence described in section 31(2), irrespective of the charge laid. The Court of Appeal had held that section 31(2) applied if the act would constitute a specified offence, even if that offence was not charged, thereby preventing the appellant from relying on section 31(1) in relation to the manslaughter conviction.
The High Court reasoned that the definitions of "criminally responsible" and "offence" in the *Criminal Code* indicated that an act done in circumstances specified in section 31(1) does not constitute an offence. Section 31(2) qualifies section 31(1) by stating that the protection does not extend to an act which "would constitute" certain offences. The Court held that the conditional "would constitute" in section 31(2) refers to the hypothetical effect of the act but for the operation of section 31(1). Therefore, section 31(2) only applies if the accused has been charged with one of the described offences and seeks to invoke section 31(1) to deny responsibility for that specific charge. It does not apply simply because the evidence might disclose that the act committed constitutes such an offence, regardless of the charge. Consequently, section 31(1) could still be available in relation to an alternative verdict, such as manslaughter, even if it was excluded for a primary charge like murder.
The High Court allowed the appeal, quashed the appellant's conviction for manslaughter, and ordered a new trial.
Orders
Orders of the court
1. Appeal allowed.
2. Set aside the order of the Court of Appeal of the Supreme Court of Queensland made on 6 May 2016, and in its place order that:
(a) the appeal be allowed;
(b) the appellant's conviction be quashed; and
(c) a new trial be had.
Background
Background to the litigation
Evidence
Evidence Before The Court
Full text does not contain this section.
Decision
Reasons for decision
Ratio Decidendi
Legal Principle Established
Established by: KIEFEL CJ, NETTLE J, GAGELER, GORDON AND EDELMAN JJ
"[C]riminally responsible" is defined as "liable to punishment as for an offence"[36] (emphasis added). "[O]ffence", in turn, is defined as "[a]n act or omission which renders the person doing the act or making the omission liable to punishment"[37]. The "act" constituting an offence refers to some "physical action, apart from its consequences"[38]. [36]s 1 of the Code. [37]s 2 of the Code. [38]Kaporonovski v The Queen (1973) 133 CLR 209 at 231; see also at 241; [1973] HCA 35.Operation of s 31 Section 31(1) relevantly provides that a person is "not criminally responsible" for an act if the person does that act in one of the specified circumstances. That is, in relation to that act, they are not "liable to punishment as for an offence"[39] (emphasis added). "[O]ffence" is relevantly defined as an act which renders the person doing the act liable to punishment[40]. It necessarily follows that an act done in one of the circumstances specified in s 31(1) is not an offence; the act does not constitute an offence.[39]See the definition of "criminally responsible" in s 1 of the Code.[40]s 2 of the Code. Section 31(2), in its terms, qualifies the scope of s 31(1). Section 31(2) relevantly provides that the protection in s 31(1) does not extend to an act which "would constitute the crime of murder, or an offence of which grievous bodily harm to the person of another, or an intention to cause such harm, is an element" (emphasis added). It applies where the act "would constitute", not "constitutes", one of the described offences. It is conditional. Accordingly, it is necessary to identify the condition which enlivens s 31(2). Put another way, the question is: "would constitute" if, or but for, what? Sub‑sections (1) and (2) of s 31 apply in sequence. Section 31(2) can be enlivened only where an accused seeks to invoke s 31(1) in relation to a particular charge. Therefore, the conditional or hypothetical "would" logically directs attention to the effect of s 31(1). It logically raises the question: in circumstances where the accused seeks to invoke s 31(1) (so that the relevant act, done in one of the specified circumstances, does not constitute an offence), would that act constitute one of the offences described in s 31(2) but for the operation of s 31(1)? That understanding of s 31(2) has the following consequences. First, s 31(2) only applies to an act if the accused has, in relation to that act, been charged with one of the described offences (or such an offence is available as a statutory alternative to the offence charged[41]) and the accused seeks to invoke s 31(1) to exculpate himself or herself in relation to the described offence. Contrary to the conclusion of the Court of Appeal, s 31(2) is not directed to, or concerned with, whether the evidence discloses that the accused committed one of the described offences regardless of the charge.[41]See Ch 61 ("Effect of indictment") of the Code. Second, where a single act is alleged to constitute multiple offences (or where there is provision for a statutory alternative verdict), s 31(2) applies to that act only in relation to the offences which are described in s 31(2). That may be illustrated by reference to the circumstances of this case, where the appellant was charged with murder and a verdict of manslaughter was available as a statutory alternative. In such circumstances, s 31(2) prevents an accused from relying on s 31(1) in relation to the primary charge of murder, but it does not render s 31(1) unavailable in relation to the alternative verdict of manslaughter.