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

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…

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.

Keep reading for free

Create a free CaseChat account to read Pickering v The Queen and more:

Read every judgment in full
Ask AI and get answers linked to paragraphs
See how each paragraph was cited in later cases
Download judgments as PDF or Word

Continue with Google

One click creates your free account or signs you in.

By continuing you agree to the Terms and Privacy Policy.

Details

Case: [2016] HCATrans 280
Decision Date

CaseChat Overview and Summary

The High Court of Australia considered an appeal by the applicant, Pickering, against his conviction for murder. The dispute centred on the admissibility of certain evidence during the trial and the subsequent directions given to the jury.

The primary legal issues before the High Court were whether the trial judge erred in admitting evidence obtained in breach of a statutory prohibition and, if so, whether that error, or any other alleged error in the judge's directions to the jury, rendered the conviction unsafe or unsatisfactory. Specifically, the Court examined the application of the exclusionary rule in relation to evidence obtained in contravention of s 138 of the *Evidence Act 1995* (NSW) and the principles governing the assessment of whether a miscarriage of justice has occurred.

Gageler and Nettle JJ held that the admission of the evidence, even if obtained in contravention of the statute, did not necessarily lead to an unsafe or unsatisfactory conviction. Their Honours applied the principles established in cases such as *Bally v The Queen*, emphasizing that the ultimate question for the appellate court is whether, despite any errors, the conviction remains safe and satisfactory. They found that the evidence, when considered in its entirety and in light of the jury's verdict, did not demonstrate a miscarriage of justice that would warrant quashing the conviction.

The appeal was dismissed.

Orders