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

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…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2017] HCATrans 50
Decision Date

CaseChat Overview and Summary

The High Court of Australia considered an appeal by Mr Pickering against his conviction for murder. The central dispute concerned the admissibility of certain evidence obtained by police during an investigation.

The High Court was required to determine whether the evidence, which included a confession made by Mr Pickering, had been obtained in contravention of his rights and, if so, whether it should have been excluded from the trial. Specifically, the Court had to consider the application of the exclusionary rule in circumstances where evidence is obtained in breach of a suspect's rights.

The Court reasoned that the admission of the confession, obtained after Mr Pickering had been cautioned but before he was formally charged, was not an abuse of process that warranted its exclusion. The judges applied the principle that while the court has a discretion to exclude evidence obtained improperly, this discretion should not be exercised lightly. They found that the police conduct, while perhaps not ideal, did not reach the threshold of impropriety that would justify excluding the confession, particularly given its relevance to the charge.

The appeal was dismissed, and Mr Pickering's conviction was affirmed.

Orders