R v Hargraves

[2009] QSC 80

SUPREME COURT OF QUEENSLAND

CITATION:

R v Hargraves [2009] QSC 80

PARTIES:

R
v
ADAM JOHN HARGRAVES
(applicant)

FILE NO/S:

Indictment No 384 of 2009

DIVISION:

Trial

PROCEEDING:

Criminal Application

COURT:

Supreme Court at Brisbane

DELIVERED ON:

3 April 2009

DELIVERED AT:

Brisbane

HEARING DATE:

3 April 2009

JUDGE:

Fryberg J

ORDER:

Application dismissed.

CATCHWORDS:

Criminal law – Particular offences – Property offences – Claim of right – Conspiracy to defraud Commonwealth – Whether any need to direct jury on issues of honesty

Criminal Code Act 1995 (Cth) s 9.5

Australian Securities Commission v Marlborough Gold Mines Ltd (1993) 177 CLR 485; [1993] HCA 15, considered
Ridley v The Queen [2008] NSWCCA 324, followed
Stevens v The Queen (2005) 227 CLR 319; [2005] HCA 65, considered

COUNSEL:

M Byrne QC for the applicant
A MacSporran SC with C Toweel for the respondent

SOLICITORS:

Ryan and Bosscher Lawyers for the applicant
Director of Public Prosecutions (Commonwealth) for the respondent

HIS HONONOUR: Mr Byrne, on behalf of the second accused, has submitted that I ought to leave to the jury an issue under s 9.5 of the Criminal Code (Cth) in relation to the second count which is brought under the Code. He concedes that the point is precisely dealt with by the decision of the New South Wales Court of Criminal Appeal in The Queen v Ridley [2008] NSWCCA 324 and that that decision is to the effect that in a case such as the present where a direction is to be given on honesty, no such direction under s 9.5 should be given.

However, Mr Byrne submits that I should be satisfied that the
decision of the New South Wales Court of Criminal Appeal is
plainly wrong within the sense of that expression in para 4 of the decision of the High Court in Australian Securities Commission v Marlborough Gold Mines Ltd (1993)177 CLR 485.

That is a brave submission, particularly to a judge sitting at first instance.  It is one which I would hesitate long and hard before accepting.  I am relieved of that dilemma by the fact that I am not, in any event, in the present case, satisfied that the decision of the New South Wales Court of Criminal Appeal is plainly wrong.

The submission that it is wrong founds on the decision of the High Court of Australia in Stevens v The Queen (2005) 227 CLR 319 where a majority of the Court held that in a case where the charge was murder, a finding of intention to kill did not preclude the necessity for a direction on the defence of accident where that defence was raised on the facts of the case.

The leading judgment of the majority appears to be that of
Callinan J, whose central reasoning appears at paras 154
and following.  There, his Honour held that it was not an
answer to the omission to direct on accident that the defence,
or more accurately, a direction in respect of it, was subsumed
in another direction.

His Honour said:

"Different people may have different perceptions of
     facts.  Certain words or language or expressions of
     concepts may provoke different responses in different
     people.  It may be that some might be more influenced by
     a reference to an accident than to an extraordinary
     emergency.  The fact that accident as used in the
Criminal Code may require judicial explanation does not
     deprive the word of its natural, sometimes graphic
     connotations of an unhappy, unintended and unexpected
     adverse event."

It seems to me that the decision in Stevens should be read as referable to the defence of accident in the context of a charge of murder and that the reasoning is not to be expanded to the extent of the proposition for which it is now sought to be used.  That proposition, in effect, is that where the facts of a particular case raise a Code defence, a direction must be given on that defence, notwithstanding that a direction on another aspect of the case will inevitably result in the whole issue being determined.

I do not think the High Court decision should be broadened to that extent.  Certainly, I do not think that sitting in the course of a trial at first instance, it would be appropriate for me to give it such a wide reading when there is a decision of the Court of Criminal Appeal of New South Wales which is
admittedly precisely in point to the contrary.  I acknowledge
that Stevens was not referred to in the New South Wales
decision, but that does not convince me that the reading of
Stevens which is sought to be relied upon should be adopted.
Quite the opposite.

I therefore propose to follow the New South Wales decision, as I think I am obliged to do, by the decision in Marlborough Gold Mines and not give a direction under s 9.5.

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