Pickering v The Queen

[2016] HCATrans 280

[2016] HCATrans 280

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Brisbane  No B34 of 2016

B e t w e e n -

RODNEY PETER PICKERING

Applicant

and

THE QUEEN

Respondent

Application for special leave to appeal

GAGELER J
NETTLE J

TRANSCRIPT OF PROCEEDINGS

FROM SYDNEY BY VIDEO LINK TO BRISBANE

ON WEDNESDAY, 16 NOVEMBER 2016, AT 12.29 PM

Copyright in the High Court of Australia

MR M.J. COPLEY, QC:   If the Court pleases, I appear on behalf of the applicant.  (instructed by Anderson Telford Lawyers)

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

GAGELER J:   Yes, Mr Copley.

MR COPLEY:   Your Honours, this case raises the question of the correct construction of section 31(2) of the Criminal Code.  Section 31(2) of the Code is a provision which would confine the ambit or the extent of the excuses provided for criminal responsibility in the various subparagraphs of section 31(1) of the Code.

The case comes before your Honours in these two circumstances.  First of all, the evidence in the prosecution case was held to be sufficient to raise the exculpatory provision provided for by section 31(1)(c), according to Justice Fraser and, secondly, because that provision had not been left for the jury to consider, Justice Fraser held that a miscarriage of justice would have occurred if section 31(2) had not excluded the application of section 31(1)(c).

Your Honours can see the provision section 31(2) on page 172 of the application book between lines 40 and 50 and above that your Honours can see section 31(1)(c), which was the provision that his Honour Justice Fraser held was raised in the case.

GAGELER J:   Yes.

MR COPLEY:   So in this case where the jury found the appellant not guilty of murder, they then had to consider whether or not he was guilty of manslaughter and he would be not guilty of manslaughter if his act of stabbing was reasonably necessary in order to resist actual and unlawful violence threatened to him if that provision could be left.

Now, the error the subject of ground 1 in the application for special leave to appeal is to be found at page 153 of the application book in paragraph [45] of Justice Fraser’s judgment.  In that place his Honour held that the phrase used in section 31(2), namely:

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 . . . is an element –

was not to be confined to the offence the accused was actually being tried for or any available statutory alternative.  What his Honour found, or the corollary of his Honour’s erroneous conclusion at paragraph [45] was, as he went on to say in that paragraph, irrespective of the offence actually charged, if the act for which an accused sought protection constituted one of the offences set out in section 31(2), then the accused was to be denied the protection given by section 31(1)(c) in relation to the offence the subject of the trial.

Now, that conclusion is wrong because the proper construction of the phrase is that if, but for section 31(1)(c), the Act the subject of the indictment would otherwise constitute an offence, relevantly for our purposes, of which grievous bodily harm is an element, then the accused is not to be excused from criminal responsibility by section 31(1)(c) for the grievous bodily harm offence he is actually being tried for.

GAGELER J:   Any offence or the offence charged, or an offence charged?

MR COPLEY:   An offence charged or an available statutory alternative.  So what is involved - the correct construction of the provision is that the court - if there is evidence fit to raise section 31(1)(c), the court looks to see whether or not the accused has been indicted for or is susceptible of being convicted of any of the offences mentioned in section 31(2).

If the answer to that is yes then he may not have the jury consider section 31(1)(c).  For example, if the accused in this case had been charged with intentionally causing grievous bodily harm or simply unlawfully doing grievous bodily harm, then grievous bodily harm being an element of those offences he would not, pursuant to section 31(2), have available to him section 31(1)(c). 

But having disposed of murder, which required proof of intent to do grievous bodily harm, the jury having acquitted him of that, they were then left with the available statutory alternative simply of an unlawful killing and in Queensland the elements of an unlawful killing are simply the causing of death in circumstances where the death is not excused or justified or authorised by law.

GAGELER J:   So the consequence of your submission is that 31(1)(c) is available in answer to the alternative verdict of manslaughter but not available in answer to the primary charge of murder?

MR COPLEY:   Correct.

GAGELER J:   Yes.

NETTLE J:   Mr Copley, could I just ask you, would it follow from your submission that even if Justice Fraser were correct in saying that it need not be an offence which is the subject of indictment, nonetheless here still 31(2) would not apply because it was not an element of the offence of presumably the unlawful and dangerous act, killing by stabbing with which he was charged?

MR COPLEY:   Yes, to this extent, your Honour, that what you have just said is unexceptionable.  The only thing I would say to your Honour is that in Queensland, under the Criminal Code, they do not speak of an unlawful and dangerous act killing. 

NETTLE J:   No.

MR COPLEY:   It is simply if a person causes death in circumstances that are not - does an act or performs an omission which is a substantial or significant cause of death, that unless there can be some authorisation, which I cannot think of any for, or more particularly some justification or excuse for it, the killing is deemed to be unlawful and is called manslaughter.

NETTLE J:   But, nonetheless, it would remain plain that it was not an element of that offence to cause grievous bodily harm?

MR COPLEY:   That is correct and if any proposition be needed for that, I have referred your Honours to a paragraph from Patel v The Queen where his Honour Justice Heydon set out the elements of manslaughter in Queensland.  Your Honours, his Honour Justice Fraser expressed his conclusion about this provision with a degree of diffidence it is submitted, because you will see in paragraph [45], about halfway through the paragraph, that his Honour said:

It may be the better construction of -

the provision, it may be the better construction of section 31(2) and he said at the end of the paragraph that the construction he preferred did not produce what he described as “the very surprising results” that the appellant’s construction would have involved.

If I could just pause there for a moment, what his Honour was alluding to there was that it would be a surprising result if an offence which carried a greater maximum penalty and which resulted in a death, namely manslaughter, might have available to it an exculpatory provision which an offence which carries a lesser maximum penalty, such as unlawfully doing grievous bodily harm, would not have available to it.  That was the surprising result he was referring to and the appellant’s response to that is that is simply the operation of the section, 31(2), as properly understood.

His Honour went on at paragraph [46] to say that surprising results – his Honour accepted in the first and second lines of paragraph [46] that the appellant’s contention that surprising results might remain inevitable on the construction Justice Fraser preferred might be so.  Your Honours will see that in that paragraph that - what he was alluding to there was that there might be some cases where the act which causes death and hence is an unlawful killing did not involve, in the period between its infliction and death, the suffering of grievous bodily harm. 

His Honour could contemplate or imagine such cases and on his Honour’s construction 31(2) would be available to that offender, yet for this offender who stabbed his friend and his friend did not pass away immediately, the provision, 31(1)(c), is not available on Justice Fraser’s construction because some grievous bodily harm was actually apparently in fact occasioned.

GAGELER J:   So your point is that there can be harsh results or surprising results both ways?

MR COPLEY:   One way or the other, yes, and his Honour, in my submission – and this is no criticism of him – found this matter a difficult matter to resolve.

GAGELER J:   Given it is a difficult matter to resolve and given that it is a uniquely Queensland problem, why should we not leave this with the Queensland Court of Appeal?

MR COPLEY:   You should not leave it with the Queensland Court of Appeal because hitherto offences involving manslaughter have in appropriate cases seen section 31(1)(c) left for the jury’s consideration.  I have referred to or cited three cases in recent years where the provision was left.  Now, my learned friend makes the point against me well, we do not know whether or not those people were separately the beneficiaries of favourable exercises of judicial discretion.

Nevertheless, the point is, your Honours, that if I can find in recent years three cases where the provision has been left, it might be regarded as a matter which has hitherto been a widespread practice.  The other reason that your Honours should consider giving special leave is this, that on his Honour Justice Fraser’s construction, if we change the circumstances a little and imagine that the appellant had been indicted for unlawfully assaulting another and thereby doing him bodily harm, in Queensland bodily harm is simply an injury which interferes with health or comfort. 

If the appellant had said, “I am not guilty because my act was reasonably necessary to resist actual and unlawful violence”, on his Honour Justice Fraser’s construction, that question would then become bound up in an inquiry as to whether or not the injury actually inflicted amounted to grievous bodily harm.

It is quite a common practice in Queensland for injuries that might, on one view of the facts, constitute a grievous bodily harm to be actually pleaded or indicted as a bodily harm because sometimes the medical practitioner from whom the Crown has obtained a statement is perhaps not as firm as the Crown might like on the question of whether the injury would cause a permanent injury to health, for example.  A collapsed lung is one that often arises where doctors have different opinions about whether a collapsed lung constitutes grievous bodily harm in the State.

But on his Honour Justice Fraser’s construction, a jury and a judge ‑ a judge in the first instance and then having to leave it to the jury ‑ would be diverted off into considering whether or not the act that the offender had done in the case of an assault occasioning bodily harm actually constituted grievous bodily harm in fact only if satisfied that if it did not would they then be able to go back to consider whether or not section 31(1)(c) was engaged.

One of the points that I make to your Honours in the written submission is that section 31(2) does not say, for example, this protection does not extend to an act which would constitute murder or grievous bodily harm and that what it says is this protection does not extend to an act which would constitute the crime of murder or an offence of which grievous bodily harm is an element.

The omission of the word “offence” before grievous bodily harm is very significant, your Honours, to the applicant’s argument.  Can I take you to look at the statutory provisions that my learned friend has included.  If you turn to page 182 of the application book, you will see there, for example, under section 274, the provision justifying using:

such force as is reasonably necessary in order to resist the taking of such property by a trespasser –

that the offender may use such force as is reasonably necessary provided the person – that is, the offender – does not do grievous bodily harm to the trespasser.  So in that particular example we can see that all that would be engaged for the jury, if this exculpatory provision is pointed to, would be a question of fact:  did the force that the person used to resist the trespass constitute an injury that would be likely to interfere with, cause a permanent injury to health, whereas when we go back to section 31(2) what, on Justice Fraser’s interpretation, the jury would be required to do would be to actually investigate on a charge of assault occasioning bodily harm whether the injury not only caused grievous bodily harm but amounted to the offence of grievous bodily harm because if it did then 31(1)(c) would not be available to the offender.

So the proper construction of the provision is simply this.  The provision is available whenever it is raised on the evidence for an offence of violence unless the offence charged is the crime of murder or an offence of which grievous bodily harm is an element, in which case the provision is not available.  That, in my submission, is how the matter has been perhaps assumed to be the case prior to this decision in Pickering.

In this case as well, your Honours, his Honour Justice Fraser came to the conclusion that he did in a situation where the respondent Crown did not argue against the interpretation that the appellant was putting on the matter.  So if nothing else, the matter deserves the attention of the Court because Justice Fraser said that if he was wrong then there was a miscarriage of justice in this case because an exculpatory provision was fairly raised and was not left.

GAGELER J:   Thank you, Mr Copley.

MR COPLEY:   That is probably as far as I can take ground 1.  Everything that I have said so far proceeds on the assumption that section 31(2) is actually capable of application to 31(1)(c) – I have proceeded on that assumption.  But you will see from ground 2 that that ground seeks to argue a broader proposition which it is not necessary for the applicant to succeed on to get a new trial whereas for ground 1 it is necessary to succeed on to get a new trial.  Nevertheless, the point raised is this, that section 31(2) properly construed only applies to section 31(1)(d) of the Code, which is the provision which is known as “duress” in Queensland. 

I have to acknowledge straight away that about 20 years ago this point was brought before a special leave court and the Court declined leave.  They said that the decision of the Court of Appeal in Fietkau was not attended with sufficient doubt.  If that point had been the only point to be considered in the case, your Honours might not at all be persuaded to give it leave but my submission is that if your Honours think that ground 1 warrants a grant of special leave, it would be a convenient occasion to clear up this issue one way or the other.  The contention is this, that section 31(1) accommodates or provides for four different excuses which relieve from criminal responsibility unless satisfied beyond reasonable doubt.  May I proceed just another minute or two?

GAGELER J:   Yes, one or two minutes.

MR COPLEY:   Okay, thank you.  To some extent the excuses overlap, but section 31(2) commences with “this protection does not extend to” rather than the phrase “these protections do not extend to”.  The other point to be made is that the reference in section 31(2) to such threats more comfortably accords with the reference to the threat which appears in subsection (1)(d)(i) and (ii) than to the phrase “violence threatened” in section 31(1)(c).  Thank you, your Honours.

GAGELER J:   Thank you.  Yes, Mr Byrne.

MR BYRNE:   If it please the Court.  The asserted errors are not accepted by the respondent.  At paragraph [42] in application book page 152, his Honour Justice Fraser noted that:

the question in this case turns upon the meaning of ordinary words in s 31(2) considered in their context. 

At paragraph [45], his Honour then turned to focus on the words “would constitute”.  He, in effect, held that they required attention to the outcome of the Act or omission to assess if it achieved a particular level of criminality or to use his actual words whether there was the “specified quality of the act or omission”.  If that threshold was met regardless of the offence with which the defendant was charged, then the defendant was denied the comfort of the justification and excuse as it is said in the heading to the section of “compulsion” under section 31.

Whilst it is not universally the case, it is quite common under the Queensland Code for defences – and by that I am using a generic term, perhaps more correctly referring to exculpatory provisions regardless of where the onus lies – but it is quite common for defences to apply generally rather than to a specific offence.

Similarly, although not universally the case, it is also common for provisions which exclude the operation of a defence to be expressed generally and to operate once a particular outcome or once a particular evidential threshold is demonstrated.  My learned friend has already taken your Honours to pages 182 and 183 of the record book.  Could I ask you to again turn there and your Honours will see a number of provisions, all of which fall within the justification provisions of the Code having what I will call exclusionary provisions at a threshold of the causation of death or grievous bodily harm.  Again, I pause to note section 31 is said to be a combination of both justification and excuse.

The point is made against us orally today that the interpretation of Justice Fraser would require in effect an inquiry by the jury of proof of an offence.  Our response to that is quite simply that that means that the restriction imposed by section 31(2) is in itself not as wide ranging as other provisions.  Nonetheless, it is the same threshold breached, that of grievous bodily harm.

NETTLE J:   Mr Byrne, accepting for the sake of argument that you are correct that section 31(1)(c) is directed to the act of which the accused is found to be guilty as opposed to the offence charged on the indictment, is it correct to say in this case, he having been found not guilty of murder but guilty of manslaughter, that it was an element of the offence which would have been constituted of the act which he is found to have committed, an element of that offence was grievous bodily harm?

MR BYRNE:   The act resulting in the offence which he would have been found to have committed is grievous bodily harm and henceforth within 31(2). 

NETTLE J:   But does one read it that way or does one read it as saying the act would have constituted an offence of which an element is grievous bodily harm?

MR BYRNE:   I am not sure that there is a difference between the two, your Honour.

NETTLE J:   Well, let us say that the jury found him to have killed the victim and to have done so without any intent to inflict grievous bodily harm or actual bodily harm for that matter, simply by reason of what in other circumstances might be called an unlawful and dangerous act.  Could one say of that offence that what would be that offence had it been charged, that it was an element - grievous bodily harm was an element?

MR BYRNE:   Yes.  In order to prove grievous bodily harm in Queensland, one needs to prove the causation of the state of injury to health which is grievous bodily harm and that which is not authorised, justified or excused by law.  Justice Fraser addressed that at paragraph [47] at about eight lines down.  His Honour said:

there could be no doubt that the injuries sustained . . . as a result of the “act” amounted to grievous bodily harm.

That was not in issue:

The guilty verdict was inconsistent with that act having been done in self‑defence, accidentally, or under an operative mistake of fact.

Hence, no authorisation, justification or excuse.  Accordingly, his Honour went on to find it was an act which would constitute the offence of unlawfully doing grievous bodily harm and so forth.  Does that answer your Honour’s question?

NETTLE J:   Yes, thank you.

MR BYRNE:   The approach that his Honour has adopted has the additional benefit of certainty.  Once a threshold is reached, the provision – that is section 31(1)(c) ‑ does not operate through the operation of the exclusionary provision.  It is not dependent upon a charge which is brought and not dependent upon any alternative charges which may be brought either expressly on the face of the indictment or naturally arising under the relevant provisions of the Criminal Code.

Returning to this concept that Justice Fraser talked about of the case turning on the ordinary meaning of the words, could I invite attention now to the words “would constitute” in section 31(2)?  We submit that on their plain reading they invite a consideration of a wider group of offences than that specifically charged and/or naturally arising from those specifically charged.  It is a prospective inquiry – “would constitute” not “does constitute or is charged”.

The applicant in the written material has taken the Court to the previous decision of this Court – Kaporonovski in 1973.  The difference there is instructive.  The Court, or at least the majority being Acting Chief Justice McTiernan together with Justices Menzies and Walsh, effectively held that an offence of which an assault is an element limited the application of the provocation defence to murder to those offences – limited the application of the provocation defence at section 268 and 269 to those offences of which an assault was an actual element rather than merely being an incident of the evidence.  The provision that was under consideration is far more specific than section 31(2) and we submit that in that sense the decision is not inconsistent with the decision of this Court in Kaporonovski. 

Your Honours, there are policy reasons noted by Justice Fraser at paragraph [43] that support the construction that was accepted by the whole of the Court with his Honour having written the lead judgment.  It is submitted that his Honour was correct to in effect note that manslaughter is considered objectively to be a more serious offence than unlawfully doing grievous bodily harm.  It involves the loss of life.  It carries and has always in the history of the Criminal Code carried a greater maximum penalty.

That is not to say that there will not be occasions where a sentence imposed for grievous bodily harm is higher than a sentence imposed for manslaughter.  That is the process of the discretionary sentencing or the outcome of the discretionary sentencing process, but we submit it would be very curious and indeed just plain odd if section 31(2) operated to deny a defendant a defence to grievous bodily harm but not to manslaughter and that is the consequence of the applicant’s argument or one of them.

Can I also turn to the contention made in the written material but I did not notice advanced orally today that it is suggested that the applicant’s construction would better align with the common law on duress.  Rhetorically and without intending to insult, our answer to that is why?  This is a Criminal Code.  As Justice Fraser at paragraph [41] on page 152 of the application book noted, there was considerable doubt about the state of common law concerning duress at the time of the enactment of the Code in 1899.

Secondly, the marginal notes to the relevant clause, which are found in his Honour’s judgment and are at 145 of the application book suggest that there is some doubt as to the application.  Opposite, at paragraph (4) of clause 33 we see the words “Probably Common Law Bill of 1880, s. 24”.  Above that, one can see that it appears that Sir Samuel Griffith was influenced by the German Civil Code of 1896, not the common law in respect of subsection (3), which is the focus of the application today.

GAGELER J:   Mr Byrne, I suspect that this point was not put orally because it is recognised not to be a particularly good point.

MR BYRNE:   Very well; I shall move on.  The argument was however put today that there could be an occasion where a defendant was charged with an offence of unlawfully assaulting and causing bodily harm and on the construction of Justice Fraser, if his actions in fact would constitute an offence of unlawfully doing grievous bodily harm he would be denied the opportunity of a defence under section 31(1)(c).

We accept that that is probably an outcome of the construction provided by his Honour but we do go on to note that, of course depending on the factual circumstances there is at least potentially open defences of self‑defence and provocation.  It is not as though this would deny that man some form of defence recognised under the law. 

Your Honours, putting aside any of the issues relating to the common law, there are no contrary decisions of any intermediate Court of Appeal in Queensland at any time, nor of any other Code State put before this Court so as to doubt the correctness of the decision.

GAGELER J:   What about the three cases that were mentioned – paragraph 3.6, page 167?

MR BYRNE:   We take issue with the suggestion that they may suggest a widespread practice of leaving section 31 in a manslaughter case.  We accept that there were occasions at first instance where it has occurred.  We take issue with the concept of it being widespread, but each of them is before the decision of the Court of Appeal.  The trial courts, we submit, now have an authoritative answer on the occasions when section 31(1)(c) can be left. 

Further, as we say in writing, the fact that they were left say nothing as to the circumstances as to why they were indeed so left.  We contend and submit that the decision of the Court of Appeal is one which is supported in logic, reason and policy and that the occasion for the intervention of this Court does not arise.

May I turn to ground 2?  Again, the present construction is consistent with the only other reported authority - one from a single judge of the Supreme Court in the Trial Division, then Acting Justice Kelly, and the other, the case of Fietkau referred to by my learned friend from the Court of Appeal, I think it is, or Criminal Appeal, of Queensland in a court constituted by Justices Davies, Moynihan and White. 

Although Fietkau did not adopt all of the reasoning of Justice Kelly in Silk and although Justice Fraser found specifically at paragraph [36] at application book 150 that he would affirm the decision, there was not a complete acceptance of all arguments.  It is not totally consistent except as to the outcome.  We accept that, but nonetheless, the outcome is clear that section 31(2) applies to all of the earlier provisions in section 31(1). 

I do not wish to take the Court, unless it will assist, chapter and verse through his Honour’s reasoning – that is Justice Fraser’s reasoning.  We note that he disposed of the hangman argument at paragraph [31], application book 149 in a manner which we submit was persuasive.  We also submit that the punctuation issue which Justice Kelly did not find to be of much assistance but the Court of Appeal in Fietkau did, we submit that the court in Fietkau was correct. 

Mr Copley referred to section 31(2) referring to this protection in his material and today referred to there being four different protections in section 31(1).  Our submission is that 31(1) provides four different classes or subsets of the one justification and excuse which is called by the Criminal Code “compulsion”.  The reference in 31(2) to this protection is a reference to that one overall justification and excuse.  They are our submissions.

GAGELER J:   Thank you very much.  Mr Copley.

MR COPLEY:   Yes, your Honours.  Just in relation to the first ground, my learned friend said that the consequence of Justice Fraser’s conclusion is that there is the benefit of certainty.  I submit to your Honours the consequence is the opposite because, in those cases of manslaughter, one is now going to have to look at the nature of the injury inflicted to see whether or not had the victim not died it would have constituted grievous bodily harm.  If it did not, then the offender will have the benefit of 31(1)(c).  If it did constitute grievous bodily harm, he will not.

Now, prior to this decision, this provision was simply available to a person charged with manslaughter.  Similarly, your Honours, another example could be the offence of attempted murder.  Some attempts at murder might result in an injury which constitutes grievous bodily harm.  Other attempts at murder might not result in any injury, or a scratch.  On this interpretation, the man charged with attempted murder who scratches his victim might have 31(1)(c) available but the man who cuts the throat of his victim who does not die would not have 31(1)(c) available.  That is the consequence.  Thank you, your Honours.

GAGELER J:   There will be a grant of special leave to appeal in this matter which will be limited to proposed ground 1 of the appeal.  The parties should be contacted by the Registry with a proposed timetable for submissions.

The Court will now adjourn to 9.30 am on Friday, 18 November in Melbourne.

AT 1.05 PM THE MATTER WAS CONCLUDED