Pickering v The Queen

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

The legal issues before the High Court were whether section 31(1) of the *Criminal Code* could be relied upon by the appellant to deny criminal responsibility for manslaughter, and whether section 31(2) rendered section 31(1) unavailable whenever the evidence disclosed that the appellant's act constituted an offence described in section 31(2), irrespective of the charge laid. The Court of Appeal had held that section 31(2) applied if the act would constitute a specified offence, even if that offence was not charged, thereby preventing the appellant from relying on section 31(1) in relation to the manslaughter conviction.

The High Court reasoned that the definitions of "criminally responsible" and "offence" in the *Criminal Code* indicated that an act done in circumstances specified in section 31(1) does not constitute an offence. Section 31(2) qualifies section 31(1) by stating that the protection does not extend to an act which "would constitute" certain offences. The Court held that the conditional "would constitute" in section 31(2) refers to the hypothetical effect of the act but for the operation of section 31(1). Therefore, section 31(2) only applies if the accused has been charged with one of the described offences and seeks to invoke section 31(1) to deny responsibility for that specific charge. It does not apply simply because the evidence might disclose that the act committed constitutes such an offence, regardless of the charge. Consequently, section 31(1) could still be available in relation to an alternative verdict, such as manslaughter, even if it was excluded for a primary charge like murder.

The High Court allowed the appeal, quashed the appellant's conviction for manslaughter, and ordered a new trial.