Pickering v The Queen

[2017] HCATrans 50

[2017] HCATrans 050

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Brisbane  No B68 of 2016

B e t w e e n -

RODNEY PETER PICKERING

Appellant

and

THE QUEEN

Respondent

KIEFEL CJ
GAGELER J
NETTLE J
GORDON J
EDELMAN J

TRANSCRIPT OF PROCEEDINGS

AT CANBERRA ON THURSDAY, 9 MARCH 2017, AT 10.00 AM

Copyright in the High Court of Australia

MR M.J. COPLEY, QC:   If the Court pleases, I appear with my learned friend, MRS C.J. GRANT, for the appellant.  (instructed by Anderson Telford Lawyers)

MR M.R. BYRNE, QC:   If it please the Court, I appear with my learned friend, MR G.J. CUMMINGS, for the respondent.  (instructed by the Office of the Director of Public Prosecutions)

KIEFEL CJ:   Yes, Mr Copley.

MR COPLEY: Your Honours, in this matter the error in the judgment below is to be found at page 892 of the appeal book in paragraph [45] where in the third last sentence beginning “It may be the better construction” it was held that, irrespective of the offence actually charged against the accused, if the act for which the accused sought exculpation also constituted any one of the offences set forth in section 31(2) then he could not avail himself of the excuse provided by section 31(1)(c) to avoid criminal responsibility.

So, the contention is that the correct understanding of section 31(2) of the Criminal Code, which I will come to in a moment, is that it only operates to deny an accused person the benefit of a 31(1) excuse where he seeks exculpation from a charge of murder or from a charge of an offence of which grievous bodily harm to the person of another or an intention to do such harm is an element.  As your Honours would be aware in this case, the appellant stood trial for murder which, of course, was an offence which carried with it as well a requirement to prove an intention to cause at least grievous bodily harm.

The jury acquitted him of murder and they convicted him of manslaughter and unlawful killing and as the charge for which he then sought exculpation was manslaughter, that did not disqualify him under section 31(2) from lying on the section 31(1)(c) excuse if the evidence was sufficient to raise the provision. His Honour Justice Fraser held at page 881 at paragraph 9 that the evidence was sufficient to raise the exculpatory provision contained in section 31(1)(c).

So, your Honours, just turning to that provision now, and it is reproduced in a number of places but it is at page 3 of the appellant’s annexure to Part VII, your Honours, it is to be found in Chapter 5 of the Criminal Code which is headed “Criminal Responsibility”, and section 31(1) begins with the words “A person is not criminally responsible for an act or omission”.  For the purposes of this appeal we can probably forget about the phrase “or omission” for this exercise because omission is not mentioned in section 31(1)(c).  So a person is not criminally responsible for an act. 

Now, those words “A person is not criminally responsible for an act” are not peculiar to section 31(1) of the Criminal Code. They appear in a number of other provisions in Chapter 5 of the Code concerning criminal responsibility such as sections 22, 24 and 25, and those provisions have been reproduced for your Honours at page 2 of the appellant’s annexure. Although they are not necessarily the commencing phrase in each of those sections, they do nevertheless appear there. So, for example, section 22(2):

But a person is not criminally responsible, as for an offence relating to property, for an act done or omitted to be done by the person with respect to any property ‑

Now, the submission is that those frequently occurring words have defined meanings in some instances or settled meaning in another instance.  As to defined meaning, the expression “criminally responsible” is defined in section 1 of the Code and that is reproduced for your Honours on page 1 of the annexure:

criminally responsible means liable to punishment as for an offence.

And the term “offence” is itself defined in section 2 of the Code which appears on the second page of the annexure.  It means:

An act or omission which renders the person doing the act or making the omission liable to punishment is called an offence.

The word “act” is the word that I was alluding to a little while ago as being the subject of a settled interpretation and the word “act” in the context of sections 22 and 24 and 25, and the argument is it should be for section 31 as well, means the charged act.  And just to illustrate that point, I might just direct your Honours’ attention to one case in particular, the matter of Walden v Hensler (1987) 163 CLR 561.

First of all, in the judgment of Justice Brennan at page 573, in the first full paragraph on page 573, your Honours will see about halfway through the paragraph a sentence beginning:

Section 22 operates directly on the act or omission the doing or making of which would otherwise render a person liable to punishment ‑

and his Honour refers to section 2 of the Code.  And it is said clearly again, for example, at page 603 in the judgment of Justice Toohey in the last paragraph ‑ ‑ ‑

KIEFEL CJ:   I am sorry, what was that page?

MR COPLEY:   Page 603, the second paragraph of section 22, he said:

exempts a person from criminal responsibility in the circumstances there mentioned “for an act . . . done by him”.  The act in question is the keeping of the turkeys -

and that was just to illustrate the point that in that case the offence was keeping some form of native fauna without a licence.  So the act was the keeping of the turkeys.

The same point can be seen in relation to section 24 in Larsen v G.J. Coles & Co Ltd (1984)13 A Crim R 109 in the judgment of Justice Connolly at page 111.  In the second paragraph on that page which begins “Section 24” there is a sentence towards the end of it which says:

It must however be remembered when s. 24 is set up that the act . . . to which it refers is the act . . . charged.

KIEFEL CJ: The respondent seeks to distinguish section 31 from some of the other provisions to which you have referred in Part V, paragraph 26 of the respondent’s written submissions. It is said that it is uncontroversial that sections 22, 24 and 25 direct attention to the charged act. But then it is submitted that section 31(2) performs a different function and focuses on the type of charges.

MR COPLEY:   Yes.

KIEFEL CJ:   What do you say to that?

MR COPLEY: Section 31(2) is a provision which is not found, for example, in sections 24 or 22 and the contention is this really, and this is perhaps moving forward a bit, but the contention is simply this, that when it says in 31(2) this protection does not extend to an act which would constitute the crime of murder or – I am just going to call it an offence involving grievous bodily harm, what it is effectively saying, in my submission, is that if, but for section 31(1), the act would constitute the crime of murder or an offence of which grievous bodily harm is an element then the protection does not apply, or if otherwise than for section 31(1) the protection does not apply - and that is perhaps the endpoint of my argument but to explain how I get to that point I would wish to develop it this way.

If one, I suppose, just notionally pretended for a moment that section 32 was not there and one just looked at section 31(1)(c) and one sees that a person is not criminally responsible for an act when the act is reasonably necessary in order to resist actual and unlawful violence threatened to him, if that is where matters stopped then a person charged with murder or manslaughter or any offence of violence in the Code would possibly be able to bring himself within that provision if he gave evidence about why he did what he did and what was acting on his mind or if, of course, it was based on the Crown case. 

So, pausing there, one can say that the appellant in this case apparently had available to him a matter of exculpation which needed to be negatived.  The difficulty for him was that the ambit of or the width of the protection conferred by section 31(1) was circumscribed or cut down by what appears in subsection (2).  That is clear because it says this protection does not extend to an act that would constitute the crime of murder. 

The contention is that the words “would constitute” mean if, but for section 31(1), would the act constitute murder.  Now, of course, it would not constitute murder if there were any other exculpatory provisions that might operate to alleviate criminal responsibility but assuming for this purpose that the only one that could possibly be engaged is 31(1)(c) the question is – the issue is this that the protection given by 31(1)(c) will not operate to exculpate this appellant from murder because but for 31(1)(c) he would be guilty of murder.

The same contention could be made if the offence he was being prosecuted for was doing grievous bodily harm unlawfully.  Because the offence that he seeks exculpation for is not murder but the statutory alternative which does not involve grievous bodily harm as an element, which I do not understand to be a controversial proposition at the Bar table, the provision remains available to him.  The alternative construction, which is the one that I say is wrong, is that the alternative construction would see the court make a ruling that section 31(1)(c) was raised on the evidence.

EDELMAN J:   Well, but before the court could make that ruling, this would have to be after hearing all of the evidence, would it not, before the jury is charged?

MR COPLEY:   Yes.

EDELMAN J:   So the court would have to effectively conduct almost a separate trial or a voir dire in relation to all of the uncharged potential acts which might invoke 31(2).

MR COPLEY:   Yes.

EDELMAN J:   How would the court do that when the evidence has not been led in relation to those uncharged offences?  Evidence has only been led in relation to the charged offences.  How would the court know, for example, which defences might be available, which excuses might be available in relation to the uncharged acts?  There is no real way that the alternative construction could work, is there?

MR COPLEY:   Well, I am advocating it is wrong ‑ ‑ ‑

EDELMAN J:   Yes, yes.

MR COPLEY:   ‑ ‑ ‑ so my heart is not in what I am about to say, of course, but one would imagine that if the alternative construction stood, what would happen at the end of the evidence would be that the defence counsel would say, your Honour, 31(1)(c) is raised, and his Honour would say, yes, it appears to be but before I can instruct the jury about that we just need to undertake a survey, is my word, of other offences in the Criminal Code to ‑ ‑ ‑

EDELMAN J:   But these would be other offences about which there has been no forensic decision made about what defences are going to be invoked in relation to those uncharged offences, what evidence might be led in relation to any potential defence that might be raised.  How could the trial judge ever make that assessment?  I mean, this is not said in an antagonist way but ‑ ‑ ‑

MR COPLEY:   I was going to say, all I can imagine is that he would make a survey of other possible offences and seek to see whether the evidence in the case possibly engages other offences, or to ask the question – does this man’s conduct, is it capable of constituting any offences of which grievous bodily harm is an element?  Notwithstanding that, of course, that offence is not the charged act.  That would be the nature of the exercise his or her Honour would have to engage in.

EDELMAN J:   And there would then have to be an opportunity presumably given to the accused person to lead any evidence that might be led in relation to any excuse or defence to those uncharged acts.

MR COPLEY:   Well, I have been working on the assumption that this discussion would occur after all the evidence was in in the case.

EDELMAN J:   Yes.

MR COPLEY:   So his opportunity to give or to call evidence would have been over by the time this was being discussed.

EDELMAN J:   But why, if the alternative construction is right, would not the accused person have the opportunity then to lead further evidence to say, well, if I had been charged with this, this is the excuse that I would have raised?

MR COPLEY:   Because the trial judge might say to the counsel, well, look, you are presumed to know the law, you know about this authority from the Court of Appeal, you should have anticipated this issue and when the doctor was called, you should have explored with the doctor whether that injury if left untreated would have constituted a permanent injury to health or likely to endanger life, for example.

KIEFEL CJ:   I suppose the question though that you are being asked is whether or not it is practicable to have matters conducted in this way?

MR COPLEY:   Well, the contention is that it is not.  The contention, to take it a step further to illustrate the complexity, is that after his or her Honour the trial judge made a ruling, for example, that on the evidence this injury could have constituted grievous bodily harm, then, in my submission, the inquiry would not stop there in a criminal trial because whether the injury in fact amounted to grievous bodily harm is a question of fact for a jury and the jury would need directions on the issue of whether or not before you can consider section 31(1)(c) you will have to decide whether the injury amounted to grievous bodily harm. 

But it will not stop there because the caveat on the availability of the excuse is not that the injury did grievous bodily harm but that it would constitute an offence of which grievous bodily harm is an element.  So, therefore, his Honour would presumably have to direct the jury to consider whether or not the grievous bodily harm, if they found it to have been done, was done absent authorisation, justification or excuse.

Now, it could be said against me that when you get to that point, many of the same issues concerning justifications or excuse, could be similar to the unlawful killing ‑ ‑ ‑

KIEFEL CJ:   Well, it is in fact put against you I think, in the respondent’s submissions ‑ ‑ ‑

MR COPLEY:   Yes.

KIEFEL CJ:   ‑ ‑ ‑ that this very situation arises in cases where justification is raised.

MR COPLEY:   It does.

KIEFEL CJ:    What is the answer to that?

MR COPLEY:   Well, the answer to that is that if one, for example, just looks at ‑ and we can take one of these defences at random, say number 275 at page 6 of our annexure:

When a person is in peaceable possession of any moveable property. . . it is lawful for the person . . . to use such force as is reasonably necessary in order to defend the person’s possession of the property . . . provided that he or she does not do grievous bodily harm –

So, in that scenario, the question for a jury is much the simpler.  It is, the accused man hit the other man and caused an injury.  You have heard evidence from the doctor that the injury definitely was grievous bodily harm; could have been, might have been, he could not say, it is a matter for you, ladies and gentlemen of the jury, but if you find that it was grievous bodily harm, then this provision will not operate to exculpate.

So, the difference between section 31(2) and 275 and almost all these others that have been referred to, 270, 271(1), and 274 to 279, is that what the caveat or the restriction that they put on the matter of justification is the level of harm done; whereas, on the interpretation adopted in the Court of Appeal, the judge at first and then the jury secondly would have to work out whether or not the charged act also constituted another offence, apparently in the Criminal Code.  And in this particular matter, your Honours, I say this to your Honours, that if we look at the way this case was conducted, there was no exploration with the doctor about whether or not the injury amounted to grievous bodily harm.  Now ‑ ‑ ‑

KIEFEL CJ:    I do not suppose it was strictly necessary, was it?

MR COPLEY:   Well, it just was not because, for a start, murder required proof of an intention to do such harm.  The doctor could simply say what the nature of the injury was and what force might have been deployed and he said it was moderate so that does not help much on grievous bodily harm as an intention.  But one could imagine a different scenario where the question of whether or not the injury amounted to grievous bodily harm would have been a live and important point.  So, that is just to make the point that on the way this case was conducted, no attention was given to whether the injury itself amounted in law or in fact to grievous bodily harm.

KIEFEL CJ:   A matter which seems to have been particularly influential to the Court of Appeal, reading from paragraph [43] of the reasons is that, on the construction which you propose, it would exclude protection where the offence charged was:

unlawfully doing grievous bodily harm ‑

and yet the law, at least in sentencing, regards manslaughter as a more serious offence than that.

MR COPLEY:   Yes.  Well, there is no getting away from that outcome, on my construction, but the response is – and the response was, as I recall it below – that is simply a feature of the way the section is drafted.

KIEFEL CJ:   It might have been a happier outcome or an easier construction if the section had been drafted to include intention in relation to grievous bodily harm.  Then intention would have been a consistent feature of the offences excluded. 

MR COPLEY:   Yes.

NETTLE J:   Well, it is, is it not?  As it is drafted there is either an element of inflict or intent to inflict.

KIEFEL CJ:   Well, I should say expressly stated.  That might be an inference that is open.

MR COPLEY:   Yes.

KIEFEL CJ:   That is something for you to make submissions upon.

MR COPLEY:   My submission to your Honours is that, yes, if the construction the appellant contends for is correct then he who is charged with manslaughter has an avenue of exculpation, that a person charged with doing grievous bodily harm with intent or unlawfully doing grievous bodily harm does not.

KIEFEL CJ:   But to take up Justice Nettle’s point, is it your submission that subsection (2) is focused upon offences of which intention is an element only or ‑ ‑ ‑

MR COPLEY:   That is certainly the common factor between the crime of murder ‑ ‑ ‑

KIEFEL CJ:   All of them?

MR COPLEY:   ‑ ‑ ‑ and the offence of doing grievous bodily harm with intent, but it cannot be quite confined that way.

KIEFEL CJ:   Yes.

MR COPLEY:   Because it says, your Honours, that it does not extend to an offence of which grievous bodily harm to the person of another is an element.  So, under the Criminal Code (Qld) that would presumably preclude its operation in relation to unlawfully doing grievous bodily harm.

KIEFEL CJ:   Yes.

MR COPLEY:   So there is no intention there.

KIEFEL CJ:   Yes.

MR COPLEY:   So, no, it is not correct to say that you can quarantine it off by simply saying, “I am denying the defence to anything where the intention is to cause a life‑threatening injury.”

KIEFEL CJ:   It would have been simpler if it had. 

MR COPLEY:   It would have been - yes, much simpler.  But of course your Honours can see from the judgment something of the way in which this offence has changed over the years.  At page 884, Sir Samuel Griffith proposed that it should – and you will see this in the last big paragraph, at 884, that it would not extend to:

an offence punishable with death, or an offence of which actual danger to the life or grievous bodily harm to the person of another, or an intention to cause such danger or harm, is an element -

But that was perhaps worded a little more simply when it was enacted.  The provision as it was enacted appears on the next page, 885, under subsection (4).  Dealing with the matter of whether or not it was trying to restrict the exculpatory provision to offences involving intent, I can inform your Honours that when the Code was enacted, treason, wilful murder, murder and piratical acts – piracy – were punishable by death. 

So it embraced quite a range of offences.  I have not undertaken the research to see what the mental element was in treason or what the mental element was in piracy, but dealing with piracy it is probably safe to assume that if there was a mental element it was different from the one for murder.

Then, as those provisions were taken out of the Code over the years the offence was amended accordingly.  I have prepared a short document of about a page and a half long that sets out the history of the legislative amendment.  I do not know if it would be helpful for your Honours to have it.

KIEFEL CJ:   Thank you.  That would be helpful.

MR COPLEY:   There should be nine copies here.  So, just digressing a bit for a moment into that document, your Honours can see that I have reproduced it as it was enacted in paragraph 1 which corresponds with appeal book 885 and then you will see in paragraph 2 that in 1922 the words “an offence punishable with death” were repealed because hanging was abolished in Queensland in that year.  That is when they substituted more specifically “treason, wilful murder or murder” and then the crimes referred to in 81 and 82 were the piracy.  So, then in 1971 “wilful murder” was abolished in Queensland, hence they had to take it out of 31(2). 

Then, in 1997, as I understand it, the view was taken that treason was a matter more appropriately dealt with by the national Parliament.  So, the offences of treason were repealed from the Code, hence the removal of that.  The amendment in 2000 was one that does not appear to be significant.  Then the last amendment in 2008 to this particular provision saw the repeal of the piracy sections because they had been taken out of the Code again.  It is to be assumed that they thought that the national Parliament was better regulating matters on the high seas. 

That is why we end up with the provision in the present form that it is in.  So, on one view of it, it could be that how it has ended up has not been the result of any detailed consideration but it would have been very easy for the legislature to have included as an excluded offence manslaughter or anything else. 

The incongruities with the interpretation that I say is the correct one are not confined simply to the example that Justice Fraser gave.  Another example that one could imagine would be if a person is indicted for wounding with intent to do grievous bodily harm if the jury – the jury would not be able to consider 31(1)(c) in relation to wounding with intent but if they found that the intent was not proven they are then left with the alternative or verdict under the Code of unlawful wounding, they would be then entitled to consider whether that was excused by section 31(1)(c). 

So, that is perhaps another example of an incongruity.  But there are these incongruities.  We do not walk away from them but they are simply, it is said, the result of the way the legislature has chosen to enact the provision.

GAGELER J:   When you use the word “incongruity” do you accept that to be anomalous or strange?  As a matter of policy it does not immediately strike me as being so.

MR COPLEY:   Well, I am assuming, I suppose, that there is force in Justice Fraser’s point, and just on that assumption I assume that, but, strictly speaking, it is not for me to say that what Parliament has done or not done is incongruous.  Without appearing to be flippant to your Honour, the law is the law, the provision is as it is, and it has got to be interpreted accordingly.

But in a nutshell the contention is this, that when the section says it does not extend to an act that would constitute the crime of murder or grievous bodily harm unlawfully doing, it means if ‑ apart from what has gone before ‑ that is to say, if, apart from what we have said in subsection (1), it would constitute grievous bodily harm with intent, then it shall remain the crime that you will be criminally responsible for.

The very idea, in my submission, that a person coming to court to face the charged act, say, of manslaughter, which has to be proven beyond reasonable doubt, is then required to effectively combat criminal responsibility for a variety of uncharged criminal responsibility for the same act arising under a range of uncharged offences, if there is an incongruity here, is the greater incongruity than the one concerning when the defence is available, comparing it with maximum penalties.  It is ‑ ‑ ‑

KIEFEL CJ: The respondent relies upon – says that the construction adopted by the Court of Appeal has no regard to what is actually charged. Their construction of section 31(2) has regard to any offence referred to in section 31(2) regardless of whether it is charged, but the respondent says that that is actually a positive aspect of the construction rather than to detract from it. What do you say?

MR COPLEY:   The opposite, that it does detract from it, for the reason that a person comes to court to face a charge of unlawful killing, he has apparently done something because he would say it was reasonably necessary to resist violence, but before he may rely on that matter of exculpation, he has got to grapple with a series of other offences, the nature of which and the identity of which may not be identified to him until the end of the case.

EDELMAN J:   That is right, that is why I said to you at the start, as a matter of fairness to an accused person, you almost might have to have a complete trial at the end because the accused person will not necessarily know what the uncharged acts were at the start that are going to be relied upon to knock out 31(1).

MR COPLEY:   Well, that would be one way.  The other way to deal with it, I suppose, would be defence counsel reveals his hand a little bit to the Crown at the start of the trial and says, look, ultimately we will be seeking to bring ourselves within 31(1)(c).  I call on you to identify for me now what other possible offences you are saying my client’s conduct has given rise to so that we might have that in mind as we cross‑examine and lead evidence.

If that is to occur, or to occur in a way that would bind the prosecutor, it is presumed to be something he or she the defence counsel would want to raise at the start of the case with the judge and ask, in effect, say, particularise his defence and then, in effect, ask for particulars as to what other acts the Crown would point to to eliminate the defence.

KIEFEL CJ:   I suppose at a substantive level, you would say that the construction for which you contend focuses the criminal liability, which is the subject matter of section 31, criminal liability to the acts charged and no more, whereas the construction favoured by the Court of Appeal makes criminal liability or not dependent upon whether the acts carried out constituted any other offence referred to in 31(2).

MR COPLEY:   Yes, yes, and the interpretation that I contend is the correct interpretation does accord with authority that when these provisions are engaged the focus is on the charged act, because what does it avail an alleged offender that his conduct may or may not constitute offences that have not been charged?  The focus must be on the charged act.  Section 31 in its opening phrase uses the word “act” in connection with criminal responsibility, “act” appears in 31(1)(c). 

It seems we are ad idem at the Bar table that we are talking about the same “act” there, and then when we get to section 31(2) as a matter of logic, we must again be speaking about the same “act”. However, this protection does not extend to the act of unlawful killing if it would constitute the crime of murder. So, on a completely what I say orthodox interpretation of the section, defence counsel in this case if he had adverted to 31(1)(c) would never have asked the learned trial judge to have summed up to the jury on 31(1)(c) in relation to murder for two reasons, both in the section expressly, subsection (2), but would have asked his Honour to direct the jury in terms of section 31(1)(c) for the alternative verdict of unlawful killing.

EDELMAN J:   How would that work?  Would the prosecution at that stage then have to reveal – this is on the alternative construction – then have to reveal which offences that are uncharged would be offences which would lead to 31(2) having the effect that 31(1) is excluded?

MR COPLEY:   Yes.  One would imagine the trial judge would ask the prosecutor for his submission as to what other offences are potentially engaged.

EDELMAN J:   And then the defence would have to go through each of those defences based upon the evidence that has been led and any potential defences in order to make submissions as to whether each of the uncharged offences fall within 31(2).

MR COPLEY:   Yes, your Honour, and if he succeeded in persuading his Honour that some of them did not, that problem would go away for him when it was time to address the jury.  But if he failed, he would presumably then have to make submissions to the jury about why his client’s conduct did not constitute another offence or offences, and if it did because the level of harm got to that level of grievous bodily harm, why it was not unlawful.

So attention is deflected from what should be a really simple trial.  Once this jury acquitted of murder because they could not be satisfied that there was an intention to kill or do grievous bodily harm, the case was a simple trial for them.  Did his act cause or substantially contribute to death?  No trouble there.  Was his action justified?  I leave out “authorisation” because there is no authorisation that I can think of for a killing.  Was his action justified or excused by law - the action of stabbing, and then the jury goes and looks at the exculpatory provisions that are engaged and determines whether they have been negatived or not beyond reasonable doubt. 

It could be said perhaps that it is a little bit odd to see a provision in the nature of self‑defence over here in section 31 of the Code when there are some fairly extensive provisions concerning self‑defence later in the Code between sections 270 and 279 but the Code does, I suppose it could be said, contain a couple of such oddities and if I could just take you to the annexure to legislative provisions, our annexure 7. 

If your Honours were to look at page 10, we have reproduced under the heading “458 Unlawful acts” subsection (4).  The point is that that provision would seem to be something in the nature of allowing for defensive action to be undertaken when one is charged with an offence relating to property.  Another example is to be found in the respondent’s annexure of legislative provisions, so annexure to Part V of their submissions.  If your Honours were to turn to page 8 of that document there is the ‑ what I call, the relatively new offence in Queensland of “Killing for preservation in an abusive domestic relationship” and it says that he or she:

who unlawfully kills . . . under circumstances that, but for the provisions of this section, would constitute murder, is guilty of manslaughter only, if –

and the second requirement is if the killer:

believes that it is necessary for the person’s preservation from death or grievous bodily harm to do the act or make the omission that causes the death –

So that again sounds in the nature of defensive action and so the point that I wanted to make to your Honours was the incongruity of finding something in the nature of self‑defence available in 31 and not in the provisions more directly dealing with it is not the only example that you can find in the Code, there are others.

NETTLE J:   What was that section, the last one you referred to?

MR COPLEY:   Section 304B(1)(b). 

NETTLE J:   Has it ever been suggested or thought possible that a provision like that implicitly excludes the application of the more general provision like 31 in relation to the offence with which it is dealing, or has that been excluded as a matter of authority?

MR COPLEY:   I do not know of any authority that holds that the defensive provision in 304B could not operate with self‑defence, but I understand what your Honour is saying to me.

NETTLE J:   Expressum facit cessare tacitum ‑ ‑ ‑

MR COPLEY:   Yes.  I am not aware of any case that so holds, and I would say to your Honours that section 31 is dealing with an excuse from criminal responsibility.

NETTLE J:   Yes.

MR COPLEY:   The self‑defence provisions are dealing with justifications.  They render lawful what would be unlawful.  Section 31(1)(c) merely excuses someone.  In my written submissions to your Honours I have provided you first of all with an authority for that proposition, which was R v Prow [1990] 1 Qd R 64, where Justice Thomas at page 68 between lines 20 and 35 in the report made the point that when the Code uses expressions such as “it is lawful for”, and he contrasted that with:

is not criminally responsible for . . . The former may be taken to afford justification and the latter excuse –

Perhaps if the Code was being enacted today, the drafts ‑ ‑ ‑

KIEFEL CJ:   Person.

MR COPLEY:   The drafters would not bother with a distinction between justifications and excuse.  They would either be all the one or all the other.  But it was drafted in 1899, which was closer to that time that Justice Windeyer spoke of in Timbu Kolian v The Queen when whether the person’s killing was justified as opposed to merely excused had ramifications in England, it would appear, in the 14th, 15th or 16th centuries in that if the killing was justified his property was not liable to forfeiture to the Crown, whereas if the killing was excused it was.  But even in 1968, Justice Windeyer said in Timbu Kolian that those distinctions have long ceased to be of any practical significance.  So that is perhaps just an interesting historical explanation for why we see justifications and excuses in the Code.

But the more important point to be made is that for a person being charged with manslaughter 31(1)(c) does cover ground or does provide an avenue to exculpation that self‑defence might not avail him of, and I would illustrate that to your Honours by taking you back to my annexure of legislative provisions and asking you just to look at section 271 which is at page 4, and your Honours can see that when one:

is unlawfully assaulted, and has not provoked the assault –

he is justified in using such force to his:

assailant as is reasonably necessary to make effectual defence . . . if the force used is not intended, and is not such as is likely, to cause death or grievous bodily harm.

Now, that provision might not have been available to exculpate this appellant if the medical evidence was that to plunge a knife into a chest and then sever arteries was grievous bodily harm, in my opinion as a doctor ‑ I, as a doctor, say that was a life‑threatening injury.  Then, if the jury accepted that evidence, section 271(1) would be negatived straightaway.  It would fall down.  But, under section 31(1)(c), the appellant would still have open to him the possibility of exculpation for manslaughter because all he has to effectively show there on an evidential level, and what the prosecution must negative beyond reasonable doubt, is that the act he performed was reasonably necessary in order to resist actual and unlawful violence.

So there is an area where they do not overlap, and Justice Fraser recognised that himself in his judgment, and I direct you for that proposition to pages 882 to 883 of the appeal book, in paragraph [16], beginning in the last sentence of page 882 to the end of the paragraph on 883.  The learned prosecutor at the Court of Appeal sought to argue two things:  first, that 271(1) had been left and negatived because the jury convicted.  My response was, no, it had not been left; his Honour held that, if it had been, it did not mean that the jury had necessarily found or commented upon anything to do in their verdict with the level of violence, because they could have negatived or found 271(1) failed because the force was likely to cause grievous bodily harm, his Honour said at the foot of 882.

So that, in my submission, provides an example of where the provisions do not overlap.  In a neat and tidy Code, they might all be found in the one area and they might all be called justifications or all excuses, but that is not the state of the legislation at the moment.

In my written submissions to your Honours I said that the provision could be characterised in the nature of self‑defence and I referred your Honours to, really, one sentence from Justice McClure’s judgment in Smith v Western Australia.  But I also said to your Honours – because obviously it will be a question for your Honours how you characterise it – having regard to its proximity to section 32(1)(d), which is clearly a defence of duress, it is conceivable that your Honours might take the view that this 31(1)(c) excuse is to be regarded as something in the nature of duress, such as, perhaps, a duress of circumstance, to put a label on it, or a duress of necessity. 

If your Honours were inclined to characterise it that way – and I am not saying you should, but if you were ‑ then it is simply interesting to note that the common law contemplates that duress can be a defence to manslaughter.  I have provided your Honours with R v Evans & Gardiner for that proposition which, of course, was a single judge decision from Victoria but never actually been overruled since by anyone.  Although the Code, of course, is not to be interpreted on the assumption it is to do no more than reflect the common law, if it accords with the common law then that is, in my submission, a happy coincidence.

We looked to see whether or not there were other similar provisions in the western world in jurisdictions similar to ours that might have assisted your Honours with an interpretation.  There was in Western Australia once but it was repealed in 2008.  The new provision, which we have reproduced in our annexure at page 10 over to page 11, is really a re‑enactment, it might be said, in more modern terms of section 31(1)(d) of the Queensland Code. 

It does not seem to have, in its terms, any restriction on the availability of the defence of duress in Western Australia at all. 

The Tasmanian provision is different again – that is reproduced below that – and they call it compulsion in Tasmania, duress, and they have a list of excluded defences, your Honours, and it includes some of the ones that were excluded in Queensland for duress - treason, murder, piracy.  But then it includes a lot of others but not, interestingly, an unlawful killing, but it excludes causing grievous bodily harm and arson.  Again, that might be thought to be incongruous.

The Crimes Act 1961 (NZ) also has a provision which we have reproduced to do with duress and it excludes quite a lot of – a very extensive range of offences, murder and attempted murder included and wounding with intent but not unlawful killing.  Then, lastly, the Canadian provision is included and, again, one sees for duress that treason, murder, piracy, attempted murder are excluded offences and so are quite a lot of less serious offences of violence, but for some reason manslaughter or unlawful killing is not included there.

So that was really just to include that to round out the picture so that your Honours can be confident that there was not some learning available that had not been drawn to your Honours’ attention. There is not, it really just comes down to an exercise in the construction of section 31(2) which the appellant submits again cannot be divorced from 31(1) and what goes before. So, unless there are any other matters, they are our submissions.

KIEFEL CJ:   Thank you, Mr Copley.  Yes, Mr Byrne.

MR BYRNE:   Your Honours, unfortunately I must start with a correction to the written submissions in two areas.  Paragraph 27, point 1 was meant to illustrate the point that Justice Fraser made at paragraph 43 of the judgment but we have our tense, if you like, the wrong way around.  It should read that “A defendant would not be afforded for consideration the protection of section 31(1)(c) for unlawfully doing grievous bodily harm to another, but would be offered”.  So the word “not” in the second line should be removed. 

Secondly, in paragraph 36 of the submissions, referring to the Western Australian provision that my learned friend had just touched upon, our understanding, quite frankly, became confused and resulted in a submission which is wrong.  I adopt the submission that my learned friend has just made concerning the Western Australian provision prior to 2008.  It was in substantially similar if not almost identical terms to the current provision in Queensland.

KIEFEL CJ:   But there are no authorities of assistance.

MR BYRNE:   There are no authorities.  That is perhaps the real point to it, but 36 is wrong and I apologise.  Your Honours, we contended that the Court of Appeal is correct where at paragraph [39] of the reasons of Justice Fraser found at page 890 that:

The issue turns upon the meaning of the phrase in s 31(2) –

and his Honour shortens it from a quote from the actual section but his Honour refers to it as an act:

which would constitute . . . an offence . . .  of which grievous bodily harm to the person of another is an element”.

The provision in 31(2) is to be contrasted with 31(1)(c), and 31(1)(c) provides the justification or excuse and I will return to that submission from my learned friend shortly as to which it is, but it provides, if I can use a generic although slightly inaccurate term of defence.

Section 31(1)(2) applies if certain criteria are met to exclude the defence and so we refer to it as an exclusionary provision.  The initial focus in the exclusionary provision is to particular acts or omissions, and again I adopt my learned friend’s submission that for present purposes one only needs to refer to acts because 31(1)(c) is only concerned with an act, not an omission, and it then moves on to separately consider the offence.  That requires consideration, in our submission, of two separate components.

Firstly, what is the act and, secondly, what would constitute, the meaning of “would constitute”, the separate concept of an offence.  We accept that the word “act” should bear the same meaning as it appears three times in the provisions that we are considering for this appeal, that is, in the introduction to section 31(1) where it appears in subsection (1)(c) and where it appears in subsection (2).  The meaning to be given to that word “act” was considered by Justice Fraser, we submit, correctly at paragraph [40] which commences at page 890 and goes to page 891. 

We perhaps further have, in our written submissions, submitted at paragraph 15 that the act is the physical act apart from its consequences and in so doing, I have drawn on the judgment of Justice Gibbs in Kaporonovski v The Queen (1973) 133 CLR 209 at page 231; his Honour Justice Stephen expressly agreeing at 241. We also ‑ ‑ ‑

KIEFEL CJ:   You say that, but would not the effect of the Court of Appeal’s construction in fact have regard to the consequences?  In disapplying section 31(1), the Court of Appeal’s construction would do it by reference to the consequences of the act, would it not?

MR BYRNE:   As to what would constitute an offence?

KIEFEL CJ:   Yes, it would have regard to the consequence of the action which was to cause grievous bodily harm. 

MR BYRNE:   Yes, but my submission is that one needs to look at it in two separate stages, first, the act and then what would constitute, if anything, an offence from that act in the circumstances.

KIEFEL CJ:   But in – nevertheless, the meaning you are giving to an act and that which the Court of Appeal gave to it is necessarily the particular physical act together with its consequences. 

NETTLE J:   So you are saying it is an act which causes grievous bodily harm, the act being stabbing. 

MR BYRNE:   Hence, would constitute grievous bodily harm because it does cause grievous bodily harm, yes.

NETTLE J:   What the Chief Justice says is right, you do include the consequences of the act in your definition of it, do you not?  For that very reason, you cannot get to where you want to unless you put in which causes GBH?

MR BYRNE:   Well, no, my submission is that I get to where I want to through the use of the words “would constitute” later in section 31(2).

KIEFEL CJ:   But, “would constitute” because they cause?

MR BYRNE:   Yes.  I am simply trying to step it out in two separate stages. 

KIEFEL CJ:   I appreciate that.

MR BYRNE:   Yes.  Your Honour the Chief Justice has, in effect, noted the finding that Justice Fraser had made.  It was at paragraph [47], page 893 that the relevant act is:

the appellant’s act of stabbing the deceased in the way that he did. 

That is in the second sentence at paragraph [47].  As part of that stepping out process, we have made the submission to this Court referring to Barlow ‑ the decision of this Court, I beg your pardon, in Barlow v The Queen.  At paragraph 16 – Barlow v The Queen (1997) 188 CLR 1 and we have cited a passage in the judgment of the then Chief Justice Brennan and Justices Dawson and Toohey at page 9 which draws a distinction between act and offence, in our submission, that the “offence” denotes that:

element of conduct (an act or omission) which attracts criminal liability if it be accompanied by prescribed circumstances or if it causes a prescribed result –

I pause, causing grievous bodily harm.  The quote continues:

or if engaged in with a prescribed state of mind, renders a person engaging in the conduct liable to punishment.

That may more fully answer the question that your Honour Justice Nettle was raising with me.

NETTLE J:   Yes, thank you.

MR BYRNE:   An offence is not an interchangeable term for an act.  The act, and I will limit it to act for the purposes of the submissions today given the statutory provision we are dealing with, but the prescribed act accompanied by relevant prescribed circumstances, state of mind or result, does not necessarily give rise to liability for only one offence.  Now, our submission is that this becomes even more clear and on the surface when one takes into account issues of prosecutorial discretion as to charging.

We have cited Magaming v The Queen, if that is the correct pronunciation, (2013) 252 CLR 381 at paragraph 25. That is the judgment of the then Chief Justice French, Justices Hayne, Crennan, your Honour the present Chief Justice and Justice Bell, and we have sought to at paragraph 18 explain how the appellant’s act of stabbing the deceased in this matter – this particular matter, that is, stabbing in the manner that he did – could, depending on other matters, give rise to a range of other offences. We do not suggest it is an exhaustive list.

KIEFEL CJ:   But why is it a positive or a good aspect of your construction that the criminal responsibility depends upon offences whether or not the act constitutes an offence which has not been charged?  Why is that a good thing?

MR BYRNE:   Because the availability of the defence is more apparent and is not affected by vagaries involved in – possible vagaries in prosecutorial discretion decision making.

EDELMAN J:   But it is not more apparent to an accused person, is it?  How does an accused person know what uncharged potential offences should be defended against in the course of conducting a trial?

MR BYRNE:   I find myself repeating some of the things that my learned friend said to your Honour about this and I do not wish to labour them but simply to answer the question that you raise with me now.  There is a presumption that counsel knows of the decision and knows that this is an issue to be dealt with under section 31(1)(c) and 31(2).  It then becomes one of those tactical decisions that counsel must undertake and nobody suggests for a moment that they are easy.  They are complicated.  If there is an unfairness or potential for an unfairness one would presume that counsel would go to the court before the trial.  Just excuse me, if I may refer to some legislation not before the Court as I had not anticipated this. 

Under the Criminal Code (Qld) at section 590AA, there is provision for pre‑trial directions and rulings. The jurisdiction for the provision is invoked upon the presentation of an indictment before a court allowing a party or, on the judge’s own motion, for there to be directions or rulings given – and I am paraphrasing here, your Honours. Without limiting the directions or rulings that can be sought, subsection (2) lists a number of possible matters. At (d), it is said to be for the:

noting of admissions and issues the parties agree are relevant to the trial or sentence –

At paragraph (m):

encouraging the parties to narrow the issues –

Now, your Honour may say to me, well, this is not narrowing the issues but it does continue:

and any other administrative arrangement to assist the speedy disposition of the trial.

The section is used in a practical sense in Queensland to allow for applications such as a stay, if there is to be a relevant unfairness.

EDELMAN J:   But here the way it would work is the accused person or counsel would approach the trial judge and say, well, we potentially may raise an excuse under section 31.  We would like to know what all of the uncharged potential offences that the Crown may rely upon at the end of evidence will be so that we can then defend against all of those uncharged offences.

MR BYRNE:   Yes.

EDELMAN J:   Then the trial judge would then have to direct the jury, say in this case, as to murder and manslaughter but then also, when one comes to section 21, the trial judge would direct the jury that they need to consider, say, unlawfully causing GBH with intent, unlawfully causing GBH, unlawfully wounding with intent to cause GBH, unlawfully wounding causing GBH and potentially other uncharged offences.

MR BYRNE:   Although it is anticipated that the Crown would nail its colours to the mast to a particular offence or select group of offences rather than a complete array.

KIEFEL CJ:   Are there any analogous circumstances in which this kind of problem arises?

MR BYRNE:   We submit yes, there are.

KIEFEL CJ:   Not just in relation – not justification, though.

MR BYRNE:   Yes.  Can I take your Honours to the appellant’s annexure of materials, to page 4, section 271, “Self‑defence against Unprovoked Assault”.  Your Honours will see that where this is raised before a jury – and depending of course on the evidence, and ultimately if I may return briefly to the matter raised by Justice Edelman, the bottom line from the submission on this is it is a matter of evidence at the end of the day as to what is raised or is not raised.

But to come back to 271, where it is raised and if the evidence is such that this particular issue must be considered by the jury, they not only have to consider whether there has been an unlawful assault under section 245 of the Criminal Code (Qld), they must also consider whether the defendant has provoked that assault, provocation having a specific meaning and, fortuitously, the definition is found on the same page of the annexure. That becomes something of a trial within a trial.

Our submission is that it is, although different in content, not particularly different in context to that which would need to occur under the construction adopted by the Court of Appeal.  The same can be said of section 272, where we are dealing with the same concepts:  whether there has been an unlawful assault, whether there has been provocation and so forth.  So the bottom line of my submission becomes:  it is a matter of the evidence. 

We have, your Honours will have seen in our outline, also gone to other provisions which are in the appellant’s annexure of legislative provisions, 274 through to 279, at pages 5 through to 7 inclusive.  If I can take the section that my learned friend did, of 275, just to narrow the references a little bit, your Honours will see that there is a proviso in the last two lines of the provision:

provided that he -

or she:

does not do [grievous] bodily harm to such other person.

That becomes a matter of evidence.  Was there evidence led that the jury can be satisfied that there was grievous bodily harm done?  If not, the Crown cannot rely on that exclusionary provision which is found within those justifications.

As I find myself talking about justifications, can I move to the topic, somewhat out of order, but it is a nice segue now, given the oral submissions – out of the intended order – and that is whether this is a justification or an excuse. 

We accept, of course, the observations of Justice Thomas in R v Prow which my learned friend placed before the Court where his Honour makes the observation that where the words are used as are used in the introduction to 25, “a person is not criminally responsible”, that is normally an excuse.  But I have used the word “normally” and I wish to place emphasis on the word “normally” for a couple of reasons.

First is, one looks at the heading to section 31.  One sees that presumably Sir Samuel Griffith, but the drafters of the Code provided it as justification and excuse compulsion.  There has been, it seems, the two concepts thrown into that one melting pot in section 31.

Secondly, in our material your Honours will have seen reference to the older English decision of R v Dudley and Stephens where Lord Coleridge, I think it was – sorry, I do not have it in front of me immediately – referred to quotes from Hale which indicated that this type of provision seems to have its genesis more in the doctrines of self‑defence than one of the other doctrines of the common law.

Finally, we have referred to the passage particularly at paragraph 10 in the judgment of President McLure in Smith v Western Australia where her Honour makes some observations and concludes that it seems – and these are my words – that it seems to be more akin to self‑defence.  She does that by looking at some of the marginal notes which are found at page 884 of the appeal book in paragraph 22 of the judgment.

GAGELER J:   I am sorry, why are we concerned with the distinction between “justification” and “excuse”?

MR BYRNE:   My submission ultimately is that if there is a point to the concern, it is this, that by adopting the scheme which the Court of Appeal in effect found for on the construction of limiting access to an exculpatory provision by reference to a threshold level, an offence of grievous bodily harm or doing something with the intent for grievous bodily harm, it is in fact consistent with that scheme in 274 through to 279 which are said to be justifications.  Now, that may be a very minor point, but it was touched on by my learned friend and I simply wanted to respond.

NETTLE J:   But you accept his submission that there is no implicit exclusion of 31 by, for example, section 271?

MR BYRNE:   I do.

NETTLE J:   You accept that that is correct; there is none?

MR BYRNE:   Yes.  Now, can I return to my two‑step process submissions?  I have sought to convince this Court that there is the distinction to be drawn between the concept of an act and the concept of an offence, that they are not interchangeable.

That deals with the first component of those introductory words in section 31(2). The next aspect is the words “would constitute”. His Honour Justice Fraser at paragraph 41, which is found at page 891, in the opening sentence said that:

The critical question in this case concerns the content to be given to –

those words – the words “would constitute”.  The mere expression of those words, in our submission, provides the separation justifying the two‑step stage that I am submitting to between an act and an offence.  The very context of the words supports the proposition that we have made in our written submissions that they have a prospective, or we have said perhaps a contingent meaning, and if they stand in contrast to the initial focus on the words “act or omission” which is the act or omission the subject of the charge, something which has happened, whereas the words “would constitute”, we submit, look to the future, look to an understanding of what would be constituted by what happened – by what happened not only by the act but by the prescribed circumstances, results or state of mind as this Court spoke of in Barlow. 

The phrase “would constitute” is found in a number of other provisions of the Criminal Code.  We have set them out in our annexure to Part V it is – when one is the respondent – but our annexure of legislative provisions.  Can I take your Honours to but a couple of them?

For completeness, I will note that they are in total, sections 11(1), 12(2), (3) and (4), section 34, section 210(6), section 216, section 229B(10), sections 304A and 304B and 543 but can I take your Honours to just a few.

GAGELER J:   Just to understand where this is going, you are saying that an act which “would constitute”, is to be read as an act which has ended up constituting?

MR BYRNE:   Yes.  We have suggested in the written submissions that one can add the words “if charged” but we did that really – I beg your pardon ‑ we did that so as to provide a contrast between that which is being considered if charged as opposed to that actually charged.  Now, our submission is that that actually charged is part of what “would constitute” but that it is a broader meaning.  So, in section 11(1), your Honours can see that it is used there in a prospective sense, in the same sense that:

would constitute an offence under the law in force –

That is, would constitute if charged, if you like to use that same analogy.  Sections 12(2), (3) and (4) all deal “would constitute an offence” if the acts occurred in Queensland and so forth.  The wording throughout the Code is consistently the same as having this prospective or contingent meaning, in our submission.  So, my learned friend ‑ ‑ ‑

GAGELER J:   I am sorry, it is not really prospective or contingent in your submission because you are looking to the circumstances and consequences of the act that have actually occurred.  So, it is only contingent between the act and those consequences, but at the time of the trial you are looking back to what has happened.

MR BYRNE:   My hesitation is that ‑ I am sorry, I am looking at it from a wrong perspective – yes, your Honour is quite right.  I beg your pardon.  Now, the submissions made orally today on behalf of the appellant have contended that the words “would constitute” should be understood as meaning would constitute “but for” section 31(1)(c).  The term “otherwise” is used, would “otherwise” constitute the offence, in the written submissions put against us.

That is a submission as to how it should be understood but it is not the actual wording of the legislation itself and the submission is that when one puts in those words “but for” or “otherwise” it tends to create a more stark contrast than is the actual wording of the legislation and we simply raise that and ask that your Honours be alert to that subconscious effect of that submission.  We do not suggest it is an improper submission but there is that subconscious effect to it.

Further, our submission is that were that intended to be the actual case and were the words “would constitute” meant to have a limited and restricted meaning as being, would constitute “otherwise” or “but for” section 31(1)(c), the wording would be different and we draw on that by looking at section 304 of the Code as it was originally enacted.  Can I ask the Court to go to page 13 of our legislative annexure ‑ I beg your pardon, page 14.

Commencing on page 13 are a series of provisions from the Criminal Code as it was enacted in 1899.  Would your Honours go to section 304.  Your Honours will see that, even then, it is worded:

When a person who unlawfully kills another under circumstances which, but for the provisions of this section, would constitute wilful murder or murder –

and so forth. It, in our submission, can be presumed that if the words “would constitute” in section 31(2), as it is currently numbered, were intended to have that narrow meaning, one would assume the same phraseology would be used. That same phrase now appears in sections 304A and 304B. It seems likely that the drafters have simply followed the template, as it were, from 304 in that. So we do not place so much reliance on 304A and 304B but we submit it is telling that, at the time of enactment of the Code, that phrase appeared – that is, at the same time as what is now numbered as 31(2) first appeared.

NETTLE J:   Sorry, Mr Byrne, to be obtuse about this - I apologise, but ‑ ‑ ‑

MR BYRNE:   No, your Honour.

NETTLE J:   One does not, therefore, read into 31(1) the words “but for the provision”?

MR BYRNE: Section 31(2); that is so.

NETTLE J: Section 31(2). What is its effect?

MR BYRNE:   Of 31(2)?

NETTLE J:   Yes.  What is “otherwise” – what does it mean?

MR BYRNE:   It means this wider concept not only of the offence charged but what is raised on the evidence and would constitute an offence.

KIEFEL CJ:   Importantly, from your point of view, is it the case that it gives meaning to the words “an act” – it limits an act to the physical act rather than the act charged.  That is the point you are getting to?

MR BYRNE:   Yes.

GORDON J:   You really run the two aspects together:  “act” read together with “would constitute”?

MR BYRNE:   Well, I have already submitted that “would constitute” ‑ ‑ ‑

GORDON J:   I understand that you have a two‑step process but they sit together on your construction.

MR BYRNE:   They do join together, yes.  Yes, I accept that and I apologise if it seems I am trying to separate them forever – divorce them from each other forever.  I do not do that.  The submission, as it were, intended to separate them out to show the distinction to start with.  We accept that they join up; they come together.

GAGELER J:   So you would say the provision would be clearer if it said “which constitutes”?

MR BYRNE:   Yes.

GAGELER J:   That is effectively what you are saying?

MR BYRNE:   Yes.  There seems little argument at the Bar table that either construction produces – to adopt the terminology of Justice Fraser – “surprising results”.  I again find myself adopting something that my learned friend said to the effect that that is simply the product of the legislation.

Justice Fraser – and we support his reasoning – considered particularly at the first sentence of paragraph [44] on 892, the last sentence at paragraph [45] in the same page, the notion that the construction which allowed a defence to an offence which resulted in the taking of a life but did not allow it to an offence, namely, unlawfully doing grievous bodily harm, which meant that human life was not taken should not be preferred.

EDELMAN J:   But originally the distinction is not one between the taking of life and grievous bodily harm.  It is one between offences punishable by death and grievous bodily harm, and offences punishable by death include treason, piracy and so on.

MR BYRNE:   And murder, yes.

EDELMAN J:   Yes.

MR BYRNE:   Yes, that is so.

GORDON J:   Your complaint is not really about the taking of life.  Your complaint is about the incongruity which arises from the seriousness of the offence.

MR BYRNE:   Yes, yes, and whilst we do not for one moment suggest that the Court is assisted by looking at the common law, that seems to have been at least one of the rationales running through the cases at common law.  But that brings me neatly to the point that I was going to make:  even under the common law the incongruities remain.  We had placed before the Court R v Howe [1987] 1 All ER 772 and in the judgment of Lord Hailsham at page 780 his Honour noted that there were:

A long line of cases . . . carefully researched and closely analysed, establish duress –

this is, of course, at common law:

as an available defence in a wide range of crimes, some at least, like wounding with intent to commit grievous bodily harm, carrying the heaviest penalties commensurate with their gravity.

So even at common law, whilst ultimately duress has been denied to attempted murder, it is still it would seem, based on that judgment from 1987 at that time, permitted for an offence of wounding with intent to commit grievous bodily harm.

KIEFEL CJ:   But it is with intent, it is not unlawful assault, is it?

MR BYRNE:   And the intent is grievous bodily harm, one which would be excluded here.  That plugs in ‑ ‑ ‑

KIEFEL CJ:   But it has got the additional element of intent.

MR BYRNE:   Yes, but the defence is allowed to it.

KIEFEL CJ:   I see.

MR BYRNE:   Yes.

KIEFEL CJ:   But in terms of sentencing, which was the comparator used by the Court of Appeal, assault with intent to cause grievous bodily harm would carry a heavier sentence than an unlawful assault in many cases.

MR BYRNE:   In many cases, yes, and one of the yardsticks that would be used for that is the maximum penalty which is higher for the intentional offence.

KIEFEL CJ:   Yes, of course.

MR BYRNE:   Yes.  We had set out at paragraph 27, and I do not wish to labour them, some other matters which we contend would be surprising results but, as I say, we accepted on either construction there are these surprising results.  Your Honours, given the limited oral submissions that were made in terms of adopting matters from the common law, I have already touched on issues that arose in Howe.

There is, we submit, a very compelling analysis at paragraph [41] at page 891 by Justice Fraser of reasons why the antecedent common law could not help in the matter.  His Honour there really raised four matters.  Firstly, the considerable uncertainty of the relevant content of the antecedent common law; secondly, the fact that that uncertainty continued through and was reflected in the decision of Evans & Gardiner that my learned friend took the Court to briefly.

By reference to the marginal notes to what was then clause 33 of the draft Code there is clear suggestion that the provision was not based on common law, and the letters from Sir Samuel Griffith to the Attorney at the time resulted in a conclusion that the provisions in section 31 may well have been involved or concern the adoption of principles not presently recognised by the law in 1899. 

I find myself having agreed with a lot that my learned friend has put before the Court.  That is because the issues in dispute between the parties are fairly narrow and it really turns upon the issue of the relevance of the use of the word “act” and the meaning of the words “would constitute”.  Unless there is anything specific to be raised, I do not think I can advance our arguments further.

NETTLE J:   Could I just ask you one question?

MR BYRNE:   Yes, your Honour.

NETTLE J:   In a case of manslaughter where there is not an act which could be regarded as one which inflicted grievous bodily harm but, for one reason or another, it emerges that there was an intention to inflict it.  The jury brings in a verdict of manslaughter, possibly it might arise by criminal negligence, let us say, in common law terms.  How, then, would 31(2) work?  Would you say that because the accused had the intention to inflict grievous bodily harm, even though he did not, in fact, do so, that he does not have the defence of 31(1)(c) available to him?

MR BYRNE:   Yes, but there are some background difficulties with that in the Code context, if I may.

NETTLE J:   Certainly.

MR BYRNE:   I understand your Honour is speaking of criminal negligence.  There is a chapter in the Code dealing with it which more regularly deals with an omission rather than a positive act.  Now, there becomes a philosophical divide as to when you deliberately omit to do something, does that become an act?  I recognise that.  But for the main part, they are dealing with omissions and 31(1)(c) is concerned only on the face of the legislation with an act and draws the distinction between an act mentioned in 31(1)(c) and an act or omission in the introductory words to 31.  So, the usual course of criminal negligence omissions would not fall for consideration under 31(1)(c) because they are omissions, not acts.

NETTLE J:   Then, to get closer to this case, let it be assumed although perhaps it is unlikely, the jury is not satisfied that the act was one which inflicted grievous bodily harm but is satisfied that the accused had the intention to inflict it at the time he carried out that act and it resulted in manslaughter – in death and thus, manslaughter, what then?

MR BYRNE:   I pause because I am concerned that if the Act has not caused grievous bodily harm, there must be – as I am thinking of it on my feet, anyway – real issues about the precedent question of causation.

NETTLE J:   So, you cannot foresee circumstances in which the possibility arises unless the act has actually inflicted grievous bodily harm?

MR BYRNE:   Yes.  We find it very difficult, in preparing for today, to have thought of a situation where an unlawful killing has occurred – a killing has occurred.  It is unlawful because of the act, whatever it may be, by the defendant where grievous bodily harm has not been occasioned because if grievous bodily harm has been occasioned, for the most part that evidences the endangering of life, or the likelihood of endangering of life or, indeed, the permanent injury to health, in another sense.

But, the precedent questions are concerned with causation and section 23(1)(b) of the Criminal Code (Qld) dealing with what we traditionally have called “accidents” an unforeseen event. So, if those precedent questions come into play, nobody ever gets to 31(1)(c). If they have been negatived by the prosecution, that would mean that there has been an act of the defendant which, in causing death, must have caused grievous bodily harm.

NETTLE J:   For example, take a pub brawl.  A blow is struck.  It is not grievous bodily harm, it is just actual but, for one reason or another, the victim falls to the ground, strikes his head and dies.  You would say that is inflicting grievous bodily harm?

MR BYRNE:   That must be the outcome of our construction, yes.  I was going to say that we strongly suspect that the outcome of our construction is that 31(1)(c) would never be available to manslaughter – to a jury considering manslaughter.  But, the scenario that your Honour raises ‑ and I have made the assumption in answering, yes, that in doing so the tribunal of fact finds favourably for the defendant on the issue of the unlawfulness of the killing but that, nonetheless, grievous bodily harm was caused because the punch broke a rib and ruptured a lung, or something of that nature.

NETTLE J:   Yes.  Thank you, very much.

MR BYRNE:   May I assist further?

KIEFEL CJ:   Thank you, Mr Byrne.  Anything in reply, Mr Copley?

MR COPLEY:   Yes, just a couple of matters, your Honours.  It is dangerous to speculate that no causing of death that is manslaughter could occur other than through the process of occasioning grievous bodily harm.  I could posit two examples.  If a person interfered with the brakes of a car, for some reason, and the car went down the hill and it went into the lake and the occupant drowned, looking at the definition of “grievous bodily harm”, if his death was caused by drowning, he did not die because he lost a distinct part or organ of his body.  He did not die from serious disfigurement and he did not suffer a bodily injury of such a nature that if left untreated would be likely to endanger his life or likely to cause a permanent injury to health.  He just drowned.  So it is a step too far to invite your Honours to think or to conclude that it is impossible to imagine an unlawful killing that does not involve an injury in the nature of grievous bodily harm first.

KIEFEL CJ:   But on that scenario there had been intention to cause harm.

MR COPLEY:   What if it was just done as a prank because the person thought it was funny?

KIEFEL CJ:   Possible, yes.

MR COPLEY:   Or he wanted to scare somebody. 

KIEFEL CJ:   Yes.

MR COPLEY:   That is probably what he would say.  If a person gave somebody else a really big fright because they entered their house – an old lady’s house – and a couple of days later she just died of a heart attack, there would not necessarily be grievous bodily harm in there but there might be an opinion from a medical practitioner that the very elderly person was effectively – her death was caused by the fright which she received.  Her blood pressure went up.

KIEFEL CJ:   The scenarios that you are talking about, causation is the factor.

MR COPLEY:   Yes.  Now, to get back to another point that my learned friend made, that there are some defences that require a jury to look at other offences - and he gave you the example, your Honour, of section 271(1) - that is true.  If the Crown seeks to negative 271(1) on the basis that the attacker provoked the assault, the jury has to look at the concept of a provocation.  But that comes from the clear words of the way section 271(1) is worded. 

Here, it seems ‑ and if there were not two interpretations open we would not be here ‑ that there are two interpretations open.  One is, what I will say is the simple interpretation is that 31(1)(c) – 31(2) denies 31(1)(c) to anyone tried for murder or anyone tried for an offence of which grievous bodily harm is an element.  The other interpretation, in my submission, is the more complicated interpretation which requires persons to look forward or to treat the protection as contingent.  It divorces – that interpretation does not, in my submission, have regard to the context that 31(2) appears in.  It cannot be divorced from what goes in 31(1) first, the act in 31(2) must be a reference back to the act in 31(1) and that act is a charged act. 

Of course, acts are not synonymous with offences, I accept that, but in the context of Chapter 5 of the Code when it speaks of a person not being criminally responsible for an act, it is, in my submission, clear from this Court and at levels below that it is speaking of the charged act. So, the protection does not extend to an act and in the context of a trial we know what that act is – it is the charged act, if it would constitute murder, et cetera. The jury is determined in this case it did not constitute murder so that can be put to one side.

GORDON J:   It does say “charged act” not “charged offence”.

MR COPLEY:   Well, strictly, it says “act” – it only says “an act” but that has been interpreted as the charged act and the charged act is synonymous with the offence because, I suppose, in the example from the turkey keeping case the charged act was the offence of keeping the turkey without the licence.

NETTLE J:   But there is no disagreement between you.  You are both in heated agreement that the charged act here is the charged act of stabbing.

MR COPLEY:   Yes.

NETTLE J:   Where you would disagree is that you say that that is not an element of the offence of manslaughter of which you were convicted.

MR COPLEY:   That is right.

NETTLE J:   He says it matters not but nonetheless it was an act of grievous bodily harm because it caused it and therefore somehow it finishes up as an element of the offence of which you were convicted.

MR COPLEY:   That seems to be the argument, but that involves an assumption, of course.  There is no evidence from the doctor as to that in terms.

NETTLE J:   You would have to accept he is right though.  It did cause grievous bodily harm.  I mean, it is plain as – beyond peradventure, is it not?

MR COPLEY:   Well, apparently it severed a major artery, so one would imagine that if it was not sewn up he would bleed to death.  But of course not every stabbing into the torso of the person will get something as vital.

NETTLE J:   But at the end of the day is it any more than that was this an offence, that is, the one of which you were convicted, of which grievous bodily harm was an element?  You would say no?

MR COPLEY:   If that is the question, the answer is indisputably clear, no; grievous bodily harm is not an element of manslaughter in Queensland.

NETTLE J:   Yes.

MR COPLEY:   Thank you, your Honours.

KIEFEL CJ:   Thank you.  The Court reserves its decision in this matter and adjourns until 9.30 tomorrow in Brisbane and Sydney.

AT 11.41 AM THE MATTER WAS ADJOURNED