Pickering v The Queen

Case [2017] HCA 17

HIGH COURT OF AUSTRALIA

KIEFEL CJ,
GAGELER, NETTLE, GORDON AND EDELMAN JJ

RODNEY 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.

  1. 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].

  2. 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

  3. 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

  4. 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…

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AGLC
Pickering v The Queen [2017] HCA 17
Case
[2017] HCA 17
Decision Date

CaseChat Overview and Summary

The High Court of Australia considered an appeal by the appellant against his conviction for manslaughter in the Supreme Court of Queensland. The appellant had been acquitted of murder but convicted of manslaughter after stabbing the deceased. The central dispute concerned the application of section 31 of the *Criminal Code* (Qld), which provides a defence of reasonable necessity to resist actual and unlawful violence, but excludes acts that would constitute murder or an offence involving grievous bodily harm.

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

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 drinking with a group of people in a hotel. The appellant and the deceased argued and the deceased challenged the appellant to a fight, but it did not take place. When the appellant went home he noticed that his 22 year old son was not there and decided to look for him. He took a fishing knife with him because he was concerned that he might come across the deceased in his search. He thought that he might need to produce a knife to keep the deceased at bay. The appellant went to a house where he knew some people would be gathered. He entered the yard and was standing near a vehicle when the deceased and another man approached him. The deceased became very angry and aggressive towards the appellant, despite the attempts of the appellant and others to placate him. The appellant pulled out his knife and told the deceased to stay away. He repeated this a number of times. The appellant reminded the deceased about another "good mate" who had "killed himself over a woman". The deceased reacted angrily to this and came towards the appellant. The appellant was pressed up against the vehicle and turned to see the man who was accompanying the deceased raise a steel bar above his head. The appellant said that he was scared and begged the deceased to stay away from him. He had never seen the deceased so angry before. He said that the deceased was going to "steam-roll me ... he was going to wipe me out". Suddenly, he said, the deceased was on top of him and his knife was in the deceased. The deceased died due to an injury inflicted by the appellant when he stabbed the deceased in the left upper part of his chest under the collarbone. The blade of the knife severed a major artery and a major vein. Only moderate force was necessary to inflict the injury given the sharpness of the knife used by the appellant.The purpose of s 31(1) and (2) The purpose of s 31(1) and (2) is clear. Section 31(1) provides exculpation to a person who would otherwise be criminally responsible under the Code for an act or omission in the circumstances there specified. Section 31(2) excepts from s 31(1) certain offences. If the offence for which a person would be criminally responsible is one to which s 31(2) applies, that provision maintains the person's criminal responsibility.Proceedings in the Court of Appeal

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

KIEFEL CJ NETTLE J GAGELER, GORDON AND EDELMAN JJ
During the course of argument on this appeal a question was raised as to whether the Court of Appeal's construction would create difficulties, in particular for the defence, with respect to the evidence to be led, given that s 31(2) could apply to offences not the subject of charges. The appellant did not suggest that these difficulties were insurmountable, although there are perhaps further reasons for concluding that s 31(2) does not have the effect for which the Crown contended. It is not necessary to consider the question in any detail. The terms of s 31(2) are clear.Conclusion The appeal should be allowed, the appellant's conviction quashed and a new trial ordered. The appellant was tried in the Supreme Court of Queensland before a judge and jury on a count of murder. The Crown alleged that the appellant had stabbed the deceased. The appellant was acquitted of murder but convicted of manslaughter pursuant to s 576(1) of the Criminal Code (Q) ("the Code"). The appellant appealed against his conviction to the Court of Appeal of the Supreme Court of Queensland on the sole ground that a miscarriage of justice had occurred because s 31(1)(c) of the Code was not left to the jury. Under s 31(1)(c), a person is not criminally responsible for an act if the act is reasonably necessary in order to resist actual and unlawful violence threatened to the person. But under s 31(2), that protection does not extend, among other things, "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". It was not in dispute that s 31(1)(c) was fairly raised on the evidence at trial unless it was excluded by s 31(2)[31]. The Court of Appeal (Fraser JA, Holmes CJ and Gotterson JA agreeing) held that s 31(2) applied if, on the evidence, the act for which an accused seeks to avoid criminal responsibility would constitute an offence of the kinds described in s 31(2), irrespective of whether such an offence had actually been charged[32]. It was not suggested that grievous bodily harm or an intention to cause such harm was an "element" of the offence of manslaughter in Queensland[33]. However, the Court of Appeal held s 31(1)(c) did not avail the appellant, because his act of stabbing the deceased in the way he did was an act that "would constitute" the offence of unlawfully doing grievous bodily harm to another[34], an offence described in s 31(2)[35]. The appellant's appeal was therefore dismissed.[31]R v Pickering [2016] QCA 124 at [4], [9].[32]Pickering [2016] QCA 124 at [45].[33]See s 303 of the Code.[34]Pickering [2016] QCA 124 at [47].[35]See s 320 of the Code. The issue on appeal to this Court is narrow. Does s 31(2) of the Code apply to an act only if the accused has been charged in relation to that act with an offence of the kinds described in s 31(2) and seeks to invoke s 31(1) to deny criminal responsibility on that charge? Or does s 31(2) apply wherever the evidence discloses that the act done by the accused constitutes one of the described offences regardless of the charge? The former, not the latter, is the correct construction of s 31(2). Section 31(1) is not available to deny criminal responsibility on a charge of any of the offences described in s 31(2). Section 31(1) may, if it is open on the evidence, be available in relation to any other offence that is charged or that is available as an alternative verdict.

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.