R v Guode - [2019] HCATrans 224

[2019] HCATrans 224

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
Melbourne No M75 of 2019

B e t w e e n -
THE QUEEN
Appellant
and
AKON GUODE
Respondent

KIEFEL CJ
GAGELER J
NETTLE J
GORDON J
EDELMAN J

TRANSCRIPT OF PROCEEDINGS

AT CANBERRA ON THURSDAY, 14 NOVEMBER 2019, AT 9.46 AM

MS K.E. JUDD, QC: If the Court pleases, I appear with MS A.S. ELLIS for the appellant. (instructed by Solicitor for Public Prosecutions (Vic))

MR O.P. HOLDENSON, QC: May it please the Court, I appear with my learned friends, MS C.A. BOSTON and MS L.V. DRAGO, for the respondent. (instructed by Stary Norton Halphen)

KIEFEL CJ: Yes, Ms Judd.

MS JUDD: If the Court pleases. The respondent was charged with and pleaded guilty to four charges. The indictment is at page 7 of the core appeal book. The infanticide was in respect of the child, Bol, of 17 months. There were two charges of murder in respect of the twins, four‑years‑old Madit and Hanger, and there was an attempted murder of Alual, who was five years of age at the time.

The infanticide was put, and proceeded on the basis of paragraph (b) of the definition of infanticide, not (a). The infanticide section of the Crimes Act is in the joint book of authorities at page 24. You will see there that in order for infanticide to be committed there had to be sufficient evidence that the death of the child occurred in circumstances that would constitute murder. There was a body of evidence as to the elements of murder as well as obviously the plea of guilty and then for infanticide it was necessary for either paragraphs (a) or (b) to be satisfied and, as I said, it was on the basis of (b):

at the time of carrying out the conduct, the balance of [the respondent’s] mind was disturbed because of‑
. . .
(b)a disorder consequent on her giving birth to that child within the preceding two years -

Now, the evidence that was relevant to this was contained in two reports of Dr Sullivan. The first report at paragraph [66] – and if I could take you to the core appeal book at 288, paragraph [66] reads:

In my opinion, at the time of the incident with which Ms Guode is charged, I consider that she was suffering from a depressive illness which was a consequence of having given birth to Bol within the preceding two years. In my opinion, the balance of her mind was disturbed by depression.

So it picks up the words of paragraph (b). Then, again, something similar is said in the second report at paragraph [23], and if I could take you to the core appeal book at 292 you will see that same paragraph repeated.

Now, the Crown’s submissions on the relevance of the mental state and, in particular, its overlap with moral culpability,…

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: [2019] HCATrans 224
Decision Date

CaseChat Overview and Summary

The High Court of Australia considered an appeal by the Crown against a decision of the Court of Appeal of the Supreme Court of Queensland. The appeal concerned the interpretation of section 13.1 of the *Criminal Code* (Qld) and its application to the appellant's conviction for an offence under that section.

The central legal issue before the High Court was whether the trial judge had erred in law by directing the jury that the appellant's subjective belief as to the existence of a fact, which if true would render his conduct lawful, was irrelevant to the question of whether he possessed the requisite *mens rea* for the offence. Specifically, the Court had to determine the correct legal test for establishing criminal responsibility under section 13.1 of the *Criminal Code* (Qld) in circumstances where the accused claims a mistaken belief regarding a factual circumstance.

The High Court held that the trial judge's direction to the jury was erroneous. The Court reasoned that section 13.1 of the *Criminal Code* (Qld) requires the prosecution to prove beyond reasonable doubt that the accused intended to do the act that constitutes the offence, and that the accused knew that the act was of a kind that was likely to constitute the offence. A genuine and reasonable belief that the act was lawful, even if mistaken, could negate the necessary intention or knowledge. The Court affirmed that the subjective belief of the accused, if genuinely held and reasonable in the circumstances, is a relevant consideration for the jury when assessing *mens rea*.

The High Court allowed the Crown's appeal, quashed the acquittal, and remitted the matter to the Court of Appeal of Queensland to determine whether a new trial should be ordered.

Orders