R v Dickman - [2017] HCATrans 71

[2017] HCATrans 071

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
Melbourne No M162 of 2016

B e t w e e n -
THE QUEEN
Appellant
and
GLYN DAVID DICKMAN
Respondent

KIEFEL CJ
BELL J
KEANE J
NETTLE J
EDELMAN J

TRANSCRIPT OF PROCEEDINGS

AT CANBERRA ON THURSDAY, 6 APRIL 2017, AT 9.59 AM

MR G.J.C. SILBERT, QC: May it please the Court, I appear with my learned friend, MR B.L. SONNET, for the appellant in this matter. (instructed by Solicitor for Public Prosecutions (Vic))

MS M.E. SHAW, QC: May it please the Court, I appear with my learned friend, MR B.J. DOYLE, for the respondent in this matter. (instructed by Barbaro Thilthorpe Lawyers)

KIEFEL CJ: Yes, Mr Silbert.

MR SILBERT: If the Court pleases. This comes before the Court pursuant to a grant of special leave of 18 November last year on four grounds. Ground 3 appears to be epexegetical of ground 1. Ground 2 accounts for the decision of this Court in IMM, which seems to be colloquially referred to as IMM, on 14 April last year, the Court of Appeal judgment under attack having been delivered on 23 November 2015. Ground 4 effectively supports the dissenting view of Justice Whelan in the Court of Appeal.

The matter is detailed in the appellant’s submissions which are probably reasonably non‑controversial and more importantly in the appellant’s reply dated 10 February. Your Honours will have the appellant’s speaking notes, the order of which I can probably conveniently follow. It is submitted that this is not an identification case. It perhaps started off as an identification case but at a time when the witness, Gerrie, who was a reluctant witness, was coercively examined before the Magistrates’ Court it started to transform from an identification case into something else – into more of a circumstantial case being susceptible to direct evidence from Mr Gerrie at that time.

Now, no one expected Mr Gerrie would actually give evidence notwithstanding his coercive examinations. It is rather heretical for a member of the Hells Angels to give evidence against another member of the Hells Angels and it was not until, effectively, he gave evidence that the case transformed from what it was into what it became.

The defence case was opened and remained a denial that the respondent was present at the Thomastown location of the Hells Angels where the offences were committed. If your Honours look at appeal book page 475 of volume 1, at line 8 there is a discussion there between the trial judge and my learned friend, Ms Shaw, at lines 8 and 9 where Ms Shaw says:

No. I’ve been saying to my learned friend – I said in my opening my client wasn’t there.
HIS HONOUR: Yes.

So, that was the initial battleground on which the dispute was drawn. Now, the issue ultimately boiled down to whether the appellant or Boris was the…

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 71
Decision Date

CaseChat Overview and Summary

The High Court of Australia considered the appeal of R v Dickman, which concerned the interpretation of section 302(1)(b) of the *Criminal Code* (Qld) and the elements of the offence of unlawful dangerous act. The central dispute revolved around whether the prosecution was required to prove that the accused foresaw the risk of death or grievous bodily harm arising from their dangerous act, or whether it was sufficient to prove that a reasonable person would have foreseen such a risk.

The primary legal issue before the High Court was whether the mental element of the offence under section 302(1)(b) of the *Criminal Code* (Qld) required subjective foresight by the accused of the risk of death or grievous bodily harm, or whether an objective standard of foresight was sufficient. This involved an examination of the language of the provision and its place within the broader statutory framework of criminal responsibility.

The High Court held that section 302(1)(b) of the *Criminal Code* (Qld) requires proof of subjective foresight by the accused of the risk of death or grievous bodily harm. The Court reasoned that the language of the provision, particularly the phrase "if death or grievous bodily harm to any person was a reasonably foreseeable consequence of the doing of the dangerous act," referred to the foresight of the accused, not that of a reasonable person. The Court distinguished this from other provisions that might employ an objective standard. The appeal was allowed, and the conviction was quashed.

Orders