SUPREME COURT OF QUEENSLAND
CITATION:
R v Lacey; ex parte A-G (Qld) [2009] QCA 274
PARTIES:
R
v
LACEY, Dionne Matthew
(applicant/appellant)R
v
LACEY, Dionne Matthew
(respondent)
EX PARTE ATTORNEY-GENERAL OF QUEENSLAND
(appellant)FILE NO/S:
CA No 114 of 2009
CA No 148 of 2009
SC No 920 of 2008DIVISION:
Court of Appeal
PROCEEDING:
Appeal against Conviction & Sentence
Sentence Appeal by A-G (Qld)ORIGINATING COURT:
Supreme Court at Brisbane
DELIVERED ON:
11 September 2009
DELIVERED AT:
Brisbane
HEARING DATE:
15 July 2009; 16 July 2009
JUDGES:
Chief Justice, McMurdo P, Keane, Muir and Chesterman JJA
Joint reasons for judgment of Chief Justice and Keane, Muir and Chesterman JJA; separate reasons of McMurdo P, dissenting in partORDERS:
In Appeal No 114 of 2009:
1. Appeal against conviction dismissed.
2. Application for leave to appeal against sentence dismissed.
In Appeal No 148 of 2009:
1. Appeal allowed.
2. Order that the sentence imposed at first instance be varied to the extent that a sentence of 11 years imprisonment be substituted for the original sentence of 10 years imprisonment.
CATCHWORDS:
CRIMINAL LAW – APPEAL AND NEW TRIAL – PARTICULAR GROUNDS OF APPEAL – MISDIRECTION OR NON-DIRECTION – EFFECT OF MISDIRECTION OR NON-DIRECTION – where appellant, after trial, was found not guilty of murder but guilty of manslaughter – where appellant sought to rely upon s 25 and ss 271, 272 and 273 Criminal Code 1899 (Qld) (the Code) – where facts relied on to invoke ss 271, 272 and 273 were the same as those relied on for the purposes of s 25 – whether primary judge erred in failing to direct the jury upon the operation of s25 of the Code
CRIMINAL LAW – APPEAL AND NEW TRIAL – PARTICULAR GROUNDS OF APPEAL – MISDIRECTION OR NON-DIRECTION – CONSIDERATION OF SUMMING UP AS A WHOLE – where appellant was tried with Jade Lacey, his brother and co-accused – where primary judge summed up the case against Jade Lacey before moving to the case against the appellant – whether primary judge adequately directed the jury as to the application of ss 24, 271, 272 and 273 of the Code to the appellant’s case – whether primary judge failed to instruct upon the definition of provocation and its application to the appellant’s case – whether primary judge failed to put the appellant’s case to the jury, identify the real issues applicable to his case or relate those issues to the relevant law and facts
CRIMINAL LAW – APPEAL AND NEW TRIAL – PARTICULAR GROUNDS OF APPEAL – IRREGULARITIES IN RELATION TO JURY – PARTIALITY – where a person claiming to be a juror telephoned the appellant's solicitors and informed them that another juror’s brother had been shot and that that juror "had a great deal of control and influence over the jury" – where juror was advised to contact primary judge’s associate and did so – where associate directed juror to s 70 Jury Act 1995 (Qld) – where there was no evidence that the person who approached the appellant's solicitors took any action under s70(8) of the Act – whether jury’s verdict was impugned with bias occasioning a miscarriage of justice
CRIMINAL LAW – APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE – GROUNDS FOR INTERFERENCE – SENTENCE MANIFESTLY EXCESSIVE OR INADEQUATE – where appellant was sentenced to 10 years imprisonment for manslaughter – where primary judge reduced notional head sentence to take into account non-declarable pre-sentence custody – whether primary judge wrongly characterised the nature of the appellant’s conduct and his culpability in the commission of the offence – whether sentence imposed was manifestly excessive
CRIMINAL LAW – APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE – APPEALS BY CROWN – PRINCIPLES APPLIED BY APPELLATE COURT TO CROWN APPEALS – where s 669A of the Code confers "unfettered discretion" on Court of Appeal upon appeal against sentence by Crown – where respondent argued Crown must demonstrate error by sentencing judge to enliven appellate discretion – where respondent argued that appellant discretion, once enlivened, must be exercised by imposing a sentence towards the bottom end of the available range – whether appellate discretion conferred by s 669A fettered by those propositions
Corrective Services Act 2006 (Qld), s 182
Criminal Code 1899 (Qld), s 23, s 24, s 25, s 271, s 272, s 273, s 668D(1)(c), s 668E(3), s 669A(1), s 669A(1A)
Jury Act 1995 (Qld), s 53(7)(a), s 70(7), s 70(8)
Penalties and Sentences Act 1992 (Qld), s 159A, Part 9AAon Risk Services Australia Limited v Australian National University (2009) 258 ALR 14; [2009] HCA 27, cited
Bryan v The Queen; Lewis v Attorney-General of Queensland [2004] HCA Trans 246 (23 June 2004), considered
C & J Clark Ltd v Inland Revenue Commissioners [1973] 1 WLR 905, cited
Callaghan v The Queen (1952) 87 CLR 115; [1952] HCA 55, cited
Carroll v The Queen (2009) 254 CLR 379; [2009] HCA 13, cited
Dinsdale v The Queen (2000) 202 CLR 321; [2000] HCA 54, considered
Domican v The Queen (1992) 173 CLR 555, [1992] HCA 13, cited
Elford v FAI General Insurance Company Limited [1994] 1 Qd R 258; [1992] QCA 41, cited
Evans v Davies [1991] 2 Qd R 498; [1990] FC 62, cited
Everett v The Queen (1994) 181 CLR 295; [1994] HCA 49, cited
Gamser v The Nominal Defendant (1977) 136 CLR 145; [1977] HCA 7, cited
GAS v The Queen (2004) 217 CLR 198; [2004] HCA 22, cited
Griffiths v The Queen (1977) 137 CLR 293; [1977] HCA 44, considered
Harding v Coburn [1976] 2 NZLR 577, cited
House v The King (1936) 55 CLR 499; [1936] HCA 40, cited
Imbree v McNeilly (2008) 236 CLR 510; [2008] HCA 40, cited
John v Federal Commissioner of Taxation (1989) 166 CLR 417; [1989] HCA 5, considered
Lacey v DPP (Qld); Lacey v DPP [2007] QCA 413, cited
Lowe v The Queen (1984) 154 CLR 606; [1984] HCA 46, cited
Markarian v The Queen (2005) 228 CLR 357; [2005] HCA 25, cited
Miller v Jennings (1954) 92 CLR 190; [1954] HCA 65, cited
Nanan v The State [1986] AC 860, cited
Neal v The Queen (1982) 149 CLR 305; [1982] HCA 55, cited
Nguyen v Nguyen (1990) 169 CLR 245; [1990] HCA 9, cited
R v Adams (1980) 2 A Crim R 207, considered
R v Ainsworth [2000] QCA 163, cited
R v Alibasic and Salajdjiza; ex parte Cth DPP [2005] QCA 108, cited
R v AS; ex parte A-G (Qld)[2004] QCA 259, cited
R v Assurson (2007) 174 A Crim R 78; [2007] QCA 273, cited
R v Beevers [1942] St R Qd 230, considered
R v CAK & CAL; ex parte Cth DPP [2009] QCA 23, cited
R v Challinger [1989] 2 Qd R 352; [1989] CCA 59, cited
R v Dillon; ex parte A-G (Qld) [2006] QCA 521, cited
R v Dullroy & Yates; ex parte A-G (Qld) [2005] QCA 219, cited
R v Fairbrother; ex parte A-G (Qld) [2005] QCA 105, cited
R v Ferguson; ex parte A-G (Qld) [2008] QCA 227, distinguished
R v Gordon; ex parte Cth DPP [2009] QCA 209, cited
R v Griffin & Dunkerton [1999] QCA 71, considered
R v GV [2006] QCA 394, cited
R v Hodgetts and Jackson [1990] 1 Qd R 456; [1989] CCA 220, cited
R v Hood [2005] 2 Qd R 54; [2005] QCA 159, cited
R v Jones (1995) 38 NSWLR 652, distinguished
R v JS (2007) 175 A Crim R 108; [2007] NSWCCA 272, cited
R v Katia; ex parte A-G (Qld)[2006] QCA 300, cited
R v Kimmins [2006] QCA 438, cited
R v Kirby; ex parte A-G (Qld) [2009] QCA 35, cited
R v Kitson [2008] QCA 86, cited
R v Lester [2004] QCA 34, cited
R v Liekefett; ex parte Attorney-General [1973] Qd R 355, overruled
R v McKeown [1940] St R Qd 202, considered
R v Melano; ex parte Attorney-General [1995] 2 Qd R 186; [1994] QCA 523, overruled
R v Mladenovic; ex parte A-G (Qld) [2006] QCA 176, cited
R v Mogg (2000) 112 A Crim R 417; [2000] QCA 244, cited
R v Mrsic; ex parte A-G (Qld) [2005] QCA 349, cited
R v O'Grady; ex parte A-G (Qld) (2003) 138 A Crim R 273; [2003] QCA 137, cited
R v Osmond; ex parte Attorney-General (Qld) [1987] 1 Qd R 429; [1986] CCA 196, considered
R v Peterson [1984] WAR 329, cited
R v Poynter, Norman & Parker; ex parte A-G (Qld) [2006] QCA 517, cited
R v Quick; ex parte A-G (Qld) (2006) 166 A Crim R 588; [2006] QCA 477, cited
R v Secretary of State for the Home Department; ex parte Simms [2000] 2 AC 115, cited
R v Sittczenko; ex parte Cth DPP [2005] QCA 461, cited
R v Smith [2005] 2 Qd R 69; [2005] QCA 1, considered
R v Swayn; ex parte A-G (Qld) [2009] QCA 81, cited
R v TR & FV; ex parte A-G (Qld) (2008) 186 A Crim R 420; [2008] QCA 221, cited
R v Tupou; ex parte A-G (Qld) [2005] QCA 179, cited
R v Whelan CA No 144 of 1990, New South Wales Court of Appeal, unreported, 5 October 1990, cited
R v Wilkins; ex parte A-G (Qld) [2008] QCA 272, cited
Re Bolton; Ex parte Beane (1987) 162 CLR 514; [1987] HCA 12, cited
Skinner v The King (1913) 16 CLR 336; [1913] HCA 32, considered
The Commonwealth v Hospital Contribution Fund (1982) 150 CLR 49, [1982] HCA 13, considered
The Queen v Wilton (1981) 28 SASR 362, cited
Ward v Williams (1955) 92 CLR 496; [1955] HCA 4, cited
Weiss v The Queen (2005) 224 CLR 300; [2005] HCA 81, cited
Whittaker v The King (1928) 41 CLR 230; [1928] HCA 28, considered
York v The Queen (2005) 225 CLR 466; [2005] HCA 60, consideredCOUNSEL:
B W Walker SC, with P Morreau, for the applicant/appellant in Appeal No 114 of 2009 and the respondent in Appeal No 148 of 2009
W Sofronoff QC SG, with M R Byrne, for the respondent in Appeal No 114 of 2009 and, with E S Wilson, for the appellant in Appeal No 148 of 2009SOLICITORS:
Boe Lawyers for the applicant/appellant in Appeal No 114 of 2009 and the respondent in Appeal No 148 of 2009
Director of Public Prosecutions (Queensland) for the respondent in Appeal No 114 of 2009 and the appellant in Appeal No 148 of 2009
CHIEF JUSTICE, KEANE, MUIR AND CHESTERMAN JJA:
Appeal against conviction – introduction
On the evening of 6 May 2007 in a home unit in Nerang, the appellant, Dionne Lacey, shot and killed another young man, Kevin Palmer. Seconds before the killing, the appellant's elder brother, Jade Lacey, used the gun he was carrying to shoot Mr Palmer in the thigh. The victim was within two or three metres of Jade Lacey when he fired and was within a few metres of the appellant when the fatal shot was fired.
After a 14 day trial, the appellant was found not guilty of murder but guilty of manslaughter and sentenced to 10 years imprisonment. In determining the sentence, the primary judge reduced the 12 year term which he regarded as appropriate, by taking into account 733 days served by the appellant in pre-sentence custody in respect of another offence.
Jade Lacey, who was tried with the appellant, was convicted of wounding the deceased with intent to maim and sentenced to five years imprisonment. In his case the primary judge adjusted the seven year term of imprisonment he regarded as appropriate to take into account 733 days of pre-sentence custody served in respect of another offence.
The appellant and Jade Lacey each appealed against his conviction and sentence. The Attorney-General appealed against the appellant's sentence and the appeals were heard together.
The uncontroversial evidence
Brenden Staker and Sami Sengul rented and resided in Unit 22 in a townhouse complex in Nerang. Aytac Kusdemir slept on a couch in the unit a "couple of nights a week". On the evening of 6 May 2007, a group of friends and acquaintances congregated in the unit with a view to travelling to Brisbane to attend a party. Those present were Damir Ajkunic; Sami Sengul; Mahir El-Kholed; Salih Gaziler; Wen Chia Chang; Aytac Kusdemir, Samir Haydar and the deceased. Brenden Staker was visiting an adjoining unit.
At about 9.30pm that evening, the appellants entered the unit at about the same time as Samir Haydar and Damir Ajkunic (who were returning after a brief absence).
The appellant had on his person a concealed .25 calibre pistol. Jade Lacey was carrying a concealed .38 calibre revolver.
On arrival in the unit, the appellants, or at least Jade Lacey, shook hands with the deceased. Shortly afterwards, Aytac Kusdemir left the unit with Jade Lacey. Dionne Lacey spoke angrily to Mahir El-Kholed, taking exception to the way in which he perceived Mr El-Kholed was looking at him. He said words to the effect, "If you want something to look at, come outside." Mr El-Kholed, and possibly others, responded in a conciliatory manner. Dionne Lacey went into the hallway and may have gone out of the front door briefly.
Jade Lacey came to the entry of the hallway into the living room and spoke to those present. In response, the deceased rose from his chair and moved threateningly towards Jade Lacey, who was standing in or near the junction of the hallway and the living area. Jade Lacey backed into the hallway.
All the persons in the room who gave evidence swore that the deceased stopped moving forward before the shooting and was heard to say words variously described as, "If you're going to shoot, shoot"; "If you're a man, shoot me. Come on"; "Oh, you want to shoot me"; and "Are you going to fucking shoot me?" One neighbour heard a person say words including "shoot me" immediately before hearing two shots. Jade Lacey fired. The deceased was heard to swear and was seen to move backwards, grab a chair and throw it. The appellant fired his pistol and the men in the room scattered, seeking cover. The deceased collapsed.
Mr Staker, who was in an adjoining unit, heard two shots. Immediately before that he heard raised voices which "sounded like an argument".
Eight residents or visitors to nearby units gave evidence of hearing two shots. Two other such residents or visitors could recall only one shot. Two of the men in the unit when the shots were fired, who did not give evidence at the trial, swore on oath to Crime and Misconduct Commission officers that there were two shots. Messrs Sengul and Gaziler swore to hearing two shots. Mr Haydar swore to hearing two shots but had previously sworn to hearing three. Mr Ajkunic recalled three shots but surmised that the third sound may have been an echo of the second.
The bullets fired by the appellants were found in the deceased's body and investigators found no physical evidence of a third shot. It was suggested to a police forensic expert in cross-examination that a mark on a wall of the unit may have been caused by a bullet. His evidence was to the effect that although this was possible it was unlikely. Jade Lacey's evidence was that he heard two shots but couldn't exclude the possibility of a third.
The evidence thus supported the conclusion that only two shots were fired.
The bullet fired by Jade Lacey entered the side of the deceased's left thigh 16 centimetres from the top of the hip, 81 centimetres above the base of the heel, exited from the inside of the left thigh 78 centimetres above the heel, before entering the right thigh 78 centimetres above the right heel. The bullet fired by the appellant travelled through the deceased's heart and lung before lodging in rib tissue. In the opinion of Dr Urankar, the forensic pathologist who conducted a post mortem examination of the deceased, death would have occurred between two and thirty seconds "at the most". She said, "There is a period of survival … but we are talking a couple of beats of the heart or so." In her opinion, the deceased would have been standing with his legs close together when the first bullet entered his thigh at a 45 degree angle.
Jade Lacey's evidence
The appellant did not give evidence. Jade Lacey's evidence was to this effect. After he and his brother went into the unit he shook hands with Aytac Kusdemir and the deceased and went outside to discuss the purchase of cocaine for use that evening. When outside he heard an altercation. The appellant came out and Jade Lacey asked Aytac Kusdemir, "What's their problem?" Aytac Kusdemir gave an explanation about an incident at Palm Meadows in which a colleague of theirs had been shot and said that the group was "ready" should the perpetrators seek revenge on account of the disclosure of their identity to the authorities.
Jade Lacey had seen a gun on the table when he first went into the unit and wasn't sure whether there were other guns in the unit. He heard loud voices coming from inside. Aytac Kusdemir told him not to worry about it but he said, "I'll just go inside and calm them down".
He went inside and said words to the effect, "What's your problem with my brother?" and "Why don't you all just calm down. That way, nobody gets hurt." In response to this, the deceased "just jumped up and exploded, just went berserk". He "jumped straight up at" Jade Lacey, yelling. Jade Lacey backed into the hallway, afraid. Mahir El-Kholed came towards him as well, carrying a bottle by the neck. The deceased walked past Mahir El-Kholed, gesturing down to his "bumbag", yelling, "You gonna fucking shoot me … You gonna fucking shoot me". Jade Lacey thought there was a gun in the bumbag, as the gun he had seen on the table was no longer there. He pulled out his gun and pointed it at the waistlines of the deceased and Mahir El-Kholed, while continuing to back down the hallway, hoping that they would back off.
The deceased, when "just in the hallway", stopped momentarily, put his hand into his bumbag and pulled out a pistol after saying, "I'll show you who the fuck I am." The deceased was then about two metres away from Jade Lacey and he rushed forward. At one point in his cross-examination Jade Lacey said that the deceased came at him at a "bit of an angle". Elsewhere he accepted that the deceased was "coming straight at" him when he fired.
As soon as Jade Lacey saw the gun, at which he had "a real good look", he pointed his "gun downwards and fired a shot at the floor in front of [the deceased's] feet." He was afraid. He thought the deceased was going to kill him and he "just wanted to make a big bang so hopefully [he] could get out of there … quick". He banged into the appellant and heard another gunshot. By then he was close to the front door. He "turned to get away [and was] pacing towards the gate." He then saw his brother, who enquired, "Where did you get hit?" He heard two shots but couldn't say if there was a third because of the "big bang" caused by the first shot.
He habitually carried a gun as part of his image. He didn't know his brother was carrying a gun that evening. In cross-examination he denied taking his gun out before "what you say is him pulling a gun." He swore he "didn't pull a gun … Till later."
The deceased was found by police investigators who arrived shortly after the shooting, lying on his back "at the end of the hallway between the kitchen, lounge [and] dining areas with his left arm resting on an overturned chair." The chair had been damaged and it had on it patches of a white substance with the appearance of plaster.
Blood stains caused by free falling droplets of blood were located close to the deceased's body. Blood from "[c]ontact staining … when a bloodstained object comes into contact with another unstained object and causes a transfer of blood" was observed "across the region of the front of the kitchen bench". No blood was seen in the hallway.
The unit was very small and the short, narrow hallway opened into a room which contained a kitchen on the left (looking down the hallway from the front door). The rest of the space was occupied by lounge room furniture, a kitchen or dining table and three chairs. In his address to the jury, counsel for Jade Lacey described the unit as "tiny" and "claustrophobic". Counsel for the appellant in his address reminded the jury that on their inspection they "saw how small it was."
The ambit and nature of the other evidence
The witnesses other than Jade Lacey, the four other persons present in the unit and Brenden Staker, were:
· Nine residents of or visitors to the unit complex. The evidence of most of these witnesses was quite brief and directed mainly to what they had heard and, in some cases, to what they had seen in the dark;
· The forensic pathologist;
· An officer from the police ballistics unit who was cross-examined with relative brevity;
· A police photographer;
· Four police officers who attended the crime scene and who were cross-examined briefly;
· A police officer who gave evidence of the whereabouts of Messrs Kusdemir, Chang and El-Kholed; and
· The deceased's mother.
There was a limited amount of identification evidence given by two or three of the resident/visitor witnesses, including evidence of the sighting, in poor light, of a man, after the gun shots, with a gun, or something that looked as if it could have been a gun. Having regard to the reasonably clear evidence of what took place at critical times, this evidence was of only modest relevance.
Ground 1 – failure to direct the jury on the operation of s 25 of the Criminal Code 1899 (Qld)
The appellant's counsel made the following submissions.
The primary judge erred in not directing the jury as to the possible application of s 25 of the Code. The section provides:
"Extraordinary emergencies
Subject to the express provisions of this Code relating to acts done upon compulsion or provocation or in self-defence, a person is not criminally responsible for an act or omission done or made under such circumstances of sudden or extraordinary emergency that an ordinary person possessing ordinary power of self-control could not reasonably be expected to act otherwise."
In R v Smith,[1] it was held that the opening words of s 25 excluded the section's operation where the provisions of the Code relating to acts done upon compulsion were brought into operation. Smith was wrongly decided as an erroneous meaning was given to the words "Subject to". Particular reliance was placed on C & J Clark Ltd v Inland Revenue Commissioners[2] and Harding v Coburn.[3] In the former, Megarry J said:[4]
"Where there is no clash, the phrase does nothing: if there is a collision, the phrase shows what is to prevail. The phrase provides no warranty of universal collision."
[1][2005] 2 Qd R 69.
[2][1973] 1 WLR 905.
[3][1976] 2 NZLR 577 at 582.
[4][1973] 1 WLR 905 at 911.
In the latter case, it was said by the New Zealand Court of Appeal, "The qualification, 'subject to' is a standard way of making clear which provision is to govern in the event of conflict. It throws no light, however, on whether there would in truth be a conflict without it." Similar statements have been made in Australia.[5]
[5]Davis v Grocon Ltd [1992] 2 VR 661 at 667 per Hayne J; and Zunter v John Fairfax Publications Pty Ltd (2005) 62 NSWLR 594 at 600.
Counsel for the appellant also sought to distinguish Smith, or to contend that it ought not be followed, on the basis that the approach in Smith "drew directly upon cases dealing with an interplay between ss 23 (accident) and 289 (criminal negligence)". Reference was made to the observations of Thomas J in R v Hodgetts and Jackson[6] where his Honour observed:
"It is clear that in cases falling under s.289 (which embraces most but not all conceivable cases depending upon proof of criminal negligence), a separate set of sections and considerations apply, virtually in a different stream from those which apply to other cases involving death or harm through personal violence."
[6][1990] 1 Qd R 456 at 460.
Senior counsel for the appellant contended, in effect, that these observations were inapplicable to defences under ss 271, 272 and 273 as, "It would be repugnant to the intention of s 289 to provide a defence of unwilled act (s 23) to the charge [of criminal negligence]. Thus, in relation to criminal negligence, the words 'subject to' exclude the operation of emergency, not because of the presence of the words themselves, but because of the 'collision' between the two provisions and the factual matrix at play when these conditions arise. The same cannot be said in respect of emergency and self-defence."
Consideration
It was said in the judgment of the Court in Callaghan v The Queen[7] in respect of sections 23 and 266 of the Criminal Code 1913 – 1945 (WA):
"But s. 23 provides that subject to the express provisions of the Code relating to negligent acts and omissions, a person is not criminally responsible for an act or omission which occurs independently of the exercise of his will, or for an event which occurs by accident. The reference to the express provisions of the Code relating to negligent acts and omissions covers s. 266, which occurs in Chapter XXVII headed 'Duties relating to the Preservation of Human Life.'…It will be noticed that s. 266 is expressed in terms of duty, so to speak, in gross. It is not connected with criminal liability in itself. But, because s. 23 is qualified by being made subject to the provisions relating to negligent acts and omissions and s. 266 is such a provision, it must be taken that the fact that an event causing death occurs independently of the accused's will or by accident can afford no excuse within s. 268 if it falls within s. 266."
[7](1952) 87 CLR 115 at 119.
Section 23 of the Western Australian Code was identical in terms to s 23 of the Code and the above approach is of obvious relevance to the present question of construction.
The introductory words of ss 23 and 25 of the Code are identical. In the former section they relate to "negligent acts or omissions" and, in the latter, to "acts done upon compulsion or provocation or in self-defence". Section 268 defines "provocation" and s 269 provides for the circumstances in which provocation may provide a defence to an assault on another. Sections 271, 272 and 273 detail the circumstances in which self-defence may provide a defence to a charge arising out of acts which would otherwise constitute a crime of violence. Section 271(1) is concerned with a person's response to an unlawful and unprovoked assault. Section 271 permits the use of force which may cause death or grievous bodily harm in circumstances in which the person using force by way of self-defence believes "on reasonable grounds, that the person can not otherwise preserve the person defended from death or grievous bodily harm." Section 272 is concerned with self-defence against provoked assault. Not surprisingly, the defence is excluded (by subsection (2)) where the person "using force which causes death or grievous bodily harm first began the assault with intent to kill or to do grievous bodily harm to some person" and also where "the person using force which causes death or grievous bodily harm endeavoured to kill or to do grievous bodily harm to some person before the necessity of so preserving himself or herself arose." In either case the defence does not apply either unless "before such necessity arose, the person using such force declined further conflict, and quitted it or retreated from it as far as was practicable." Section 273 is concerned with aiding the defence of another.
Plainly, ss 271, 272 and 273 are intended, where self-defence is invoked, to define comprehensively the circumstances in which the defence can operate. They provide a code of sorts within the Code. Consequently, orthodox principles of construction would suggest that the introductory words of s 25 should be construed as excluding the application of that section where the evidence gives rise to the possibility that an accused is not criminally responsible for his conduct by reason of the operation of s 271, s 272, or s 273. At least as a general proposition, where the specific provisions of the Code concerning self-defence arise for the jury's consideration, there is no scope, on the same facts, for the operation of s 25.
This conclusion is consistent with the following opinions expressed by Professor O'Regan in New Essays on the Australian Criminal Codes:[8]
"The opening words of s. 25 greatly diminish the possible scope of the general defence which is then set out. The specific defences of compulsion, provocation or self-defence may apply to many of the common circumstances in which the necessity or at least the stress of the situation may cause a person to do an act which is prima facie criminal. Moreover the Code elsewhere provides a defence akin to necessity upon a charge of unlawful abortion, a context in which the common law has admitted such a defence." … Thus the criminal responsibility for acts or omissions done or made in the circumstances of sudden or extraordinary emergency often falls to be determined by reference to other provisions of the Code. No doubt this is one reason why s. 25 has generated so little case law either in Queensland or in Western Australia or Papua New Guinea where the Griffith Code was adopted."
[8]R S O'Regan, New Essays on the Australian Criminal Codes: Chapter 4 'Sudden or extraordinary emergency', Law Book, Sydney, 1988.
Immediately prior to this passage, Professor O'Regan observed:
"Sir Samuel Griffith chose to make the statement of justification or excuse in his code comprehensive by including s. 25 as a residual defence to protect the 'morally innocent' where other defences did not apply."
Section 25, as Professor O'Regan states, provides a "residual defence". It is not an overarching provision to which resort may be had irrespective of the possible application of the Code's more specific provisions in respect of compulsion, provocation and self-defence. It would be remarkable if, on the proper construction of the subject provisions of the Code, a defence under the specific and detailed provisions of ss 271, 272 and 273, the possible operation of which was engaged by the evidence, could be rejected but that a defence could nevertheless arise on the same facts under s 25.
In this case, as the facts relied on to invoke self-defence were the same as those relied on for the purposes of a defence of "extraordinary emergency", there was no scope for the application of the latter.
Even if the primary judge had been required to direct on the possible application of s 25, it is difficult to see how the appellant could have succeeded under that section once the jury rejected self-defence. The extraordinary emergency relied on was that created by the circumstance, alleged to exist by the appellant, that the deceased produced a gun. The verdict makes plain that the jury rejected that version of the facts and with it the basis of any claim for the existence of an extraordinary emergency.
The appellant was near his brother in the narrow hallway when the first shot was fired and it may be inferred that the appellant was aware that his brother was armed. Jade Lacey's evidence is that he bumped into his brother after he fired and then heard another "bang sound". That was obviously the second gunshot. There is no sound reason for accepting that the appellant had reason to believe that the first shot was fired by anyone other than his brother. Jade Lacey's evidence that the appellant asked him "Where did you get hit?" outside the unit, if accepted, would provide some evidence to the contrary but, as explained in the reasons in Appeal No 123 of 2009 there was good reason for rejecting Jade Lacey's evidence unless corroborated.
Ground 2 – Inadequate directions on ss 24, 271, 272 and 273 of the Code and failure to put the appellant's case to the jury
The appellant complained that the summing up was inadequate in two respects. The first was that the directions given ("while they had technical fidelity to the Code and the ... Benchbook") were disorganised and too confusing for proper consideration by a jury. The second was that they did not sufficiently assist the jury as to the real issues raised on the evidence because the trial judge failed to put the appellant's case to the jury, identify the real issues applicable to his case or relate those issues to the relevant law and facts.
The appellant submitted that the trial judge's directions on law were "confusing and unwieldy and complicated by the fact that the same directions were expressed in joint terms in respect of both accused, [but] the sum of what was said ... remained inadequate. ... [The trial judge] did not ... appreciate the need to distinguish between the two trials. ... [There was a] need ... to have separately articulated the appellant's defences ... and explain that they could rationally reject [Jade Lacey's] defences but still embrace the appellant's separate basis for acquittal ...".
The appellant made a specific complaint about the summing up in relation to self-defence as it might apply to the alternative verdict of manslaughter. It was said that the directions:
"were confusing as to the application of self-defence in respect of the charge of manslaughter ... [which] was not even discussed ... in relation to self-defence ... . Section 271(1) does not apply to the charge of murder, however it could apply to manslaughter. [The trial judge] made no reference to this distinction. ... [The trial judge] did not relate the issue of the appellant's belief relevant to self-defence to ... manslaughter. Rather, his Honour ... related the belief ... to ... murder only, and ... intent was the only issue that decided whether the appellant was guilty of manslaughter or murder. "
The submissions referred to, and relied upon, R v Jones (1995) 38 NSWLR 652 at 661.
The submissions continued:
"The trial judge made ... limited and inadequate reference to how the law applied to the facts ... . In particular he failed to refer to the pertinent facts as outlined by the appellant's counsel in ... address and how the appellant's case was put for consideration by the jury. ... The defence arguments were not obvious and required a careful grasp of fact and the law as it applied to those facts. ... His Honour did not ... make a distinction between the very different defences being proposed between the two accused."
There was, it was said:
"... a difficult factual matrix for the jury to understand the nature of the appellant's defences and [therefore] ... the trial judge was required to put the appellant's case fully ... ".
It is convenient to quote the following statements of principle from counsel's outline of submissions:
"29.The obligation of the trial judge to fairly present to the jury the case put by the accused is well established: e.g. Domican v The Queen (1992) 173 CLR 555[9] the High Court observed at 561:
[9]See also BRS v The Queen (1997) 191 CLR 275 per McHugh J at 306 and his Honour's obiter comments in Fingleton v The Queen [2005] HCA 34 embracing the comments of McMurdo P in Mogg at [77] – [78]. These principles have also more recently been applied in WA v Pollock [2009] WASCA 96 at [146].
'…the requirement of fairness means that ordinarily the respective cases for the prosecution and the accused must be accurately and fairly put to the jury.'
30. In RPS v The Queen (2000) 199 CLR 620 at [41] – [42][10]:
[10]Per Gaudron A-CJ, Gummow, Kirby and Hayne JJ.
'The fundamental task of a trial judge is, of course, to ensure a fair trial of the accused. That will require the judge to instruct the jury about so much of the law as they need to know in order to dispose of the issues in the case. No doubt that will require instructions about the elements of the offence, the burden and standard of proof and the respective functions of judge and jury. Subject to any applicable statutory provisions it will require the judge to identify the issues in the case and to relate the law to those issues.[11] It will require the judge to put fairly before the jury the case which the accused makes.
[11]Ibid at 466.
…
Often, perhaps much more often than not, the safer course for a trial judge will be to make no comment on the facts beyond reminding the jury, in the course of identifying the issues before them, of the arguments of counsel.'
31.And in HML v R (2008) 235 CLR 334 at [121] – [122] per Hayne J:
'[121] The fundamental propositions stated by the Court in Alford v Magee, which have since been referred to many times must remain the guiding principles. First, the trial judge must decide what are the real issues in the particular case and tell the jury, in the light of the law, what those issues are. Secondly, the trial judge must explain to the jury so much of the law as they need to know to decide the case and how it applies to the facts of the particular case.
[122] Neither purpose is adequately served by the bare recitation of forms of model directions. Not only are the real issues not identified for the jury, no sufficient explanation is given to the jury of how the relevant law applies to the facts of the particular case.' (footnotes deleted)
32.This Court, in Mogg v The Queen[12] referred to these principles and observed the need for the cases of the prosecution and the accused to be accurately and fairly put to the jury. Per McMurdo P at [50] – [54][13]:
[12][2000] QCA 244 per McMurdo P at [50] - [54].
[13]See also the comments of Thomas JA at [71] – [73] and Wilson J at [83].
'[50] Section 405AA of the Crimes Act 1900 (NSW), of which there is no Queensland equivalent, provides that a judge need not summarise at the end of a criminal jury trial the evidence given in the trial if the judge is of the opinion that in all the circumstances the summary is not necessary. In Domican v R (1992) 173 CLR 554 the High Court considered that section and noted:
'Nevertheless, the requirement of fairness means that ordinarily the respective cases for the prosecution and the accused must be accurately and fairly put to the jury.'
[51] In R v RNS[14] the New South Wales Court of Appeal observed that the trial judge dispensed with summarising the evidence and noted:
'Provision is made in s405AA Crimes Act for a trial judge to dispense with a summary of the evidence. That provision does not permit the trial judge to give the jury no guidance as to the way the evidence relates to the directions of law given. It does not relieve the trial judge of the obligation to sum up the respective cases made by the Crown and the accused; R v Condon (1995) 83 ACrimR 335 at 347; Reg v Zorad (1990) 19 NSWLR 91.'[15]
Her Honour then cited the passage from RPS noted above and continued:
'[54] The onerous duties of a trial judge will ordinarily include identifying the issues, relating the issues to the relevant law and the facts of the case and outlining the main arguments of counsel. This should have been done in this case but was not; this too may have deprived the appellant of the chance of an acquittal and in itself also warrants a retrial.'
And per Wilson J at [83]:
'The form of a summing up can be expected to vary according to the nature of the case and the style of the particular judge. However, it will not assist the jury unless it identifies clearly and succinctly the issues of fact which the jury must decide in order to reach a verdict. It ought to contain a sufficient presentation of the defence case to enable the jury to comprehend and understand, from the terms of the summing up itself, what the defence case is: R v Veverka (1978) 1 NSWLR 478 at 481-2 per Street CJ. The trial judge's summing up in this case failed to meet these essential requirements.'" (citations as in original submissions)
[14][1999] NSWCCA 122.
[15]At [58].
Consideration
It is useful to commence discussion of these grounds with a brief analysis of the evidence and issues before the jury. The argument just summarised presents the case as factually and conceptually complex. The contrary is the case. Of those present in the unit during the incident, five, including Jade Lacey, gave oral evidence. Evidence of another two was admitted with the consent of the parties.
Although there were differences in the detail and extent of the observations of these witnesses, other than Jade Lacey, the differences were explicable by reference to their respective locations in the room as events unfolded, their respective perceptions, powers of observation and powers of recall. Having regard to the nature of the incident and its brief duration, there would have been significantly more cause to doubt the evidence of these witnesses if their recollections had more closely coincided. Their evidence, however, was consistent in important respects. None of them saw the deceased with a gun or attempting to do something which might reasonably be construed as reaching for a gun. None of them saw the guns used by the appellant and Jade Lacey but they all gave evidence of words used by the deceased immediately before he was first shot from which it may be inferred that the deceased was aware that Jade Lacey was threatening him with a gun.
Jade Lacey's conviction necessarily means that the jury rejected his evidence that he saw the deceased pull a gun from his bag as he confronted Jade Lacey. Jade Lacey shot and wounded the deceased in both thighs and if he moved in any direction after being wounded, it was backwards to a chair, which he picked up and threw. That conduct strongly suggests that the deceased did not have a gun. So too does the evidence given by the other witnesses who were present at the time, of the deceased's ceasing his movement towards Jade Lacey and, in effect, challenging Jade Lacey to shoot. That evidence and the evidence of the pathologist that the deceased was standing wholly or partly side on to the line of Jade Lacey's bullet with his legs close together refutes Jade Lacey's account that he shot only when the armed deceased lunged directly at him.[16] After the chair was thrown the appellant, standing in the hallway, then shot the deceased, who was standing in the well lit living room near the entrance to the short hallway. The shooting was at close range and it is unlikely that the appellant was unable to form an accurate appreciation of what was happening around him. Nor is it likely that the appellant was not looking at the deceased when he fired. The evidence thus provides little support for the view that the appellant fired in defence of himself or Jade Lacey.
[16]The shooting by Jade Lacey and the unreliability of his evidence are discussed in the reasons in CA No 123 of 2009.
Not surprisingly, the jury rejected the proposition that the appellant and Jade Lacey had fired in self-defence, and the contention that the appellant had acted in defence of his brother.
The address of the appellant's senior counsel on the trial was lucid and persuasive. It centred on a development of "ten discrete topics" and four questions in relation to the issues of self-defence and mistake. The ten topics were:
(1) The greeting between the deceased and appellant;
(2) The "staring match" between Mahir El-Kholed and the appellant;
(3) The departure of the appellant from the unit;
(4)&(5) The sounds emanating from the hallway and the sights visible in the hallway when Jade Lacey returned down the hallway to the living area;
(6) The gunshots, two or three, or the perception of three;
(7) Reaction to the shots;
(8) Jade Lacey's movements as they must have been seen looking down the hallway from the appellant's perspective;
(9) The relative positions of the deceased, the appellant and Jade Lacey; and
(10) Jade Lacey's evidence that outside the unit the appellant asked him, "Where did you get hit?"
On analysis the 10 points reduce to three considerations:
(i) The appellant and the deceased greeted each other in a friendly fashion indicative of a cordial relationship which implied a lack of motive in the appellant to kill or harm the deceased.
(ii) When confronted by indications of hostility or aggression from El-Kholed the appellant retreated, avoided confrontation and did not react aggressively, thereby indicating some placidity in his conduct.
(iii) When considering the appellant's conduct, it is necessary to consider what his perceptions may have been having regard to his location, the configuration of the unit, what he heard, saw and couldn't see and in particular: the noise of the dispute with Jade Lacey, the sound of the shot in a confined space; his possible belief in two shots and Jade Lacey's backing and stumbling in the hallway.
The appellant's trial counsel used these considerations to argue that the jury could not find beyond reasonable doubt that the appellant intended to kill or cause the deceased grievous bodily harm. Although it is now said that the 10 points were part of the appellant's case relevant to self-defence it appears from the address of trial counsel that they were advanced primarily in support of the submission that the jury could not be satisfied that the appellant intended to kill or cause the deceased grievous bodily harm. This emerged from the transcript of the address (R754-756). Considerations (i) and (ii), as we have identified them, are not relevant to self-defence which presupposes that an accused endeavours to disable, or even kill, an assailant.
Having discussed "the 10 points" and argued from them that the jury could not find the requisite intent counsel moved to the topic of self-defence and identified four questions relevant to that topic and to mistake.
The four questions were:
(1) Whether the appellant might honestly and reasonably have believed that there was a shot or shots directed towards himself or his brother?;
(2) Is it reasonably possible that the shot or shots or the appellant's belief in those shots was of such a nature as to create a concern about "either him or his brother suffering death or grievous bodily harm?"
(3) What are the reasonable possibilities as to what the appellant's belief may have been in "those circumstances … which were bombarding his senses?"
(4) Was it reasonably possible that the appellant did what he did because he thought he had to do it for the protection of his brother and/or himself?
In the development of those points, counsel focussed on: the friendship between the deceased and the appellant; the point that events in question occurred in the context of a gun culture and the evidence that at least one other gun was present in the unit; the general state of confusion after the first shot; the narrowness of the hallway which restricted the appellant's vision and the evidence of a belief by the appellant that his brother had been shot.
The primary judge summed up the case against Jade Lacey before moving to the case against the appellant. Most, if not all, of the factual matters addressed in the summing up in respect of Jade Lacey were relevant to the case against the appellant. The primary judge commenced his summing up of the case against the appellant on the morning of the 12th day of the trial. He discussed, amongst other things, the issue of whether there were two shots or three and moved to the question of intent. He discussed at some length the location of the appellant and his brother at relevant times, as well as the location of the deceased and the appellant's visibility. He reminded the jury that the appellant's counsel had spoken about whether a shot could have been fired at him or his brother. He noted that the appellant's counsel had mentioned the noise of the first shot, the fact that Jade Lacey was moving backwards and the appellant's question of his brother outside the unit. He reminded the jury of Jade Lacey's evidence of the "big flash". He also referred to "the shouting, the threats, the noise, the discharge of Jade's revolver, Jade's movements, [and] the position of various people".
We would reject the complaint that the summing up was disorganised and confusing. On the contrary it followed a logical path and was appropriately structured to present the issues which the jury had to consider. As we have mentioned, the facts directly relevant to the offences were uncomplicated and readily comprehensible. There was a conflict between Jade Lacey's testimony and that of the other witnesses in the room but the conflict did not make the facts elaborate or difficult to understand.
Relevantly for present purposes the trial judge told the jury:
"I'll tell you ... generally that in the Criminal Code there are three sections dealing with self-defence: 271, 272, 273. So far as Jade Lacey is concerned, the sections to which you should pay attention are 271 and 272. So far as Dionne Lacey is concerned you will need to pay attention to all three ... . A lot of what I'm going to say ... about 271 and 272 in general ... what they mean, will also apply to Dionne Lacey. I won't be repeating them exactly. I'll be reminding you of what I said but I'm not going to repeat exactly what I say with respect to Jade Lacey when I deal with Dionne Lacey."
There followed a lucid and comprehensive account of the meaning and operation of sections, 271, 272 and 273 together with reference to the evidence, germane to the case against Jade Lacey, which the jury should have considered with respect to the operation of those sections. The appellant made no complaint about the accuracy or the sufficiency of the directions as they explained the law of self-defence. The complaint is rather that they were "confusing and unwieldy" and, further, "complicated" by being expressed "in respect of both accused."
We would reject the contention that the directions are confusing or unwieldy. They are long and, indeed, complicated but those attributes are a consequence of the intricacy of the legal requirements of self-defence, all of which must be explained to a jury. Necessarily a summing up which deals with them will be lengthy and complicated. There may have been grounds for criticism if the directions had not been full and explicit.
Having concluded the summing up with respect to Jade Lacey the trial judge gave directions concerning the case against the appellant. It must be remembered that the evidence established that the deceased was unarmed and had not threatened the appellant in any way. If one disregards the testimony of Jade Lacey (though the jury had to consider it) the facts also incontrovertibly showed that the deceased was not advancing towards Jade Lacey when the latter shot him. In these circumstances s 271 and/or s 272 and/or s 273 could not operate to exonerate the appellant from criminal responsibility for his shooting the deceased unless the appellant had an honest and reasonable, though mistaken, belief as to facts, which, if true, would give the sections scope to operate.
The trial judge gave this direction on the point:
"As I told you yesterday, an honest belief is one which is genuinely held by the defendant. A reasonable belief is one that in the circumstances in which the defendant found himself a reasonable person could also have held.
If Dionne Lacey killed Kevin Palmer under an honest and reasonable but mistaken belief that a shot had been directed towards him or Jade Lacey or both of them, then he is not criminally responsible to any greater extent than if the real state of things had been such as he believed to exist. If he had an honest reasonable but mistaken belief about the state of things, then the law says you proceed on the basis that that was the state of things. A mere mistake is not enough. The mistaken belief must have been both honest and reasonable and I've told you what they mean, and I have to emphasise ... there's no burden on the defendant to prove that he made a mistake of fact. It's the prosecution who must satisfy you beyond reasonable doubt that he did not do so."
The jury had also been given the notes which included the text of s 24 of the Code, an exposition in the same terms as those given orally with respect to the meaning of "honest" and "reasonable". The notes had this further explanation:
"If the prosecution satisfies you beyond reasonable doubt that:
(i) Dionne Lacey did not honestly hold a mistaken belief that a shot had been directed towards him and/or Jade Lacey, or
(ii) that the belief was not reasonable in the circumstances
then this section does not apply.
If it has not satisfied you beyond reasonable doubt of those things, then you must consider the issue of self-defence on the basis that an assault occurred. You must take into account this section and the matters referred to when considering, for the purposes of sections 271, 272 and 273 whether there were grounds for any belief which might be relevant to the operation of those sections. "
The trial judge then turned to self-defence, noted that he "went into this in some detail yesterday" and indicated he would "revisit it, but not in the same ... detail". His Honour went on:
"... you must consider these defences with respect to Dionne. Any conclusion you might reach on Dionne Lacey must be reached after consideration of all the circumstances relevant to him. You should not, and I direct you not to, simply apply any finding you make with Jade to Dionne because self-defence is a question that, in these circumstances, applies to the individuals. What Jade'[s] ... situation might have been, does not apply to Dionne. You look at all the evidence again and make up your mind by considering him alone. "
This is a sufficient answer to the appellant's criticism that the "same directions" were expressed with respect to the two accused indiscriminately. The law as to self-defence was explained fully and clearly to the jury in the course of summing up in the case against Jade Lacey. A briefer but accurate exposition of the sections was given in the summing up with respect to the case against the appellant. But the jury was told that the exposition of the law was relevant to the case against both accused, as it was. The direction we have just quoted showed that the jury was expressly instructed to apply the law distinctly and separately to the appellant when considering the charges against him.
The complaint that the trial judge did not relate the facts of the case to the law, or explain how self-defence applied with reference to the particular facts of the case against the appellant are also without substance. As we have said, the facts were relatively straightforward and comprehensible. They had been the subject of lengthy addresses and analysis by the prosecutor and both defence counsel. The events surrounding the shooting of the deceased, the testimony and the arguments respecting the evidence had been rehearsed by the trial judge when summing up the case against Jade Lacey. His Honour did not attempt a complete recitation of the evidence when summing up the case concerning the appellant but did refer to the salient points, those singled out for mention in the addresses. Much of that evidence relevant to Jade Lacey was also was relevant to the case against the appellant. What was of particular relevance to his case, at least with respect to self-defence was limited to three considerations. One was the agitation, animosity, and confrontation which occurred when Jade Lacey returned to the unit and met or generated hostility. The second was the first shot. The third was Jade Lacey's evidence that the appellant asked him, when they had both left the unit, "Where did you get hit?"
Before dealing with the meaning and operation of s 24, and of the self-defence sections, the trial judge reminded the jury of the facts. His Honour said:
"you will recall the evidence about Kevin Palmer's actions that night. He had an encounter of some kind with a person or persons in the unit. That's for you to determine. You remember the evidence of the death stare ... . That was followed by Jade Lacey entering the room and Dionne Lacey moving up the hallway. The events leading up to the discharge of the gun held by Dionne Lacey would have been considered by you when dealing with Jade Lacey's charge. So, I won't go back to all the things that were said and done.
You may want to consider again the evidence of Dr Urankar about the entry wound of the bullet in the chest. ... You may want to use that in deciding how Kevin Palmer was standing when he was shot.
You will also recall the evidence of witnesses about Kevin Palmer throwing or attempting to throw a chair. You will recall evidence of the damage to the plaster near the hallway together with residue or remnants of plaster on the chair ... What position was his body in when that happened, if you find it happened? Where was he standing? Where was Dionne Lacey when the pistol discharged? Jade Lacey says he was nearly at the doorway when he was moving back, bumped into Dionne, looked over his shoulder, saw him and heard a shot. You have to consider where these people were.
It was put to you by [the prosecutor] that Dionne Lacey could not have been at the doorway if Kevin Palmer was standing ... close to the dining table ... . Mr Callaghan[17] points to the evidence of one witness which had Kevin Palmer further over towards the hallway ... So those are matters that you will want to take into consideration when you're determining what occurred.
Could Dionne Lacey have been further down the hallway? If Kevin Palmer was picking up or throwing a chair where was he doing it from? ... Was there a straight line between the two?
... Let me take you to questions about what Dionne Lacey's view of the situation might have been. Given the circumstances, could a shot have been fired at him or at his brother or both of them? You heard Mr Callaghan talk about this. Jade Lacey said that there was a big flash at about the time he discharged his firearm; a very loud noise. Mr Callaghan said you should consider the noise, the fact that Jade Lacey was moving back and the question that Dionne Lacey asked him when they got outside ... "Where did you get hit?" These are things that relate to the belief, a matter I'm going to go to shortly, that Dionne Lacey had or might have ...
Has the prosecution, in the light of all the contributing factors: the shouting, the threats, the noise, the discharge of Jade's revolver, Jade's movements, the position of various people, satisfied you beyond reasonable doubt of the matters I'm going to come to shortly? I raise them now because these are the things that you might want to take into consideration when you're thinking about this."
[17]The appellant's senior counsel on the trial.
In the context of the trial this was, in our opinion, a sufficient reminder to the jury of the facts relevant to self-defence with respect to the appellant. The facts which, we repeat, were straightforward, had been rehearsed three times in address and once in summing up the case against the co-accused. It should not be presumed that the jury had forgotten them.
The question for the jury was whether the appellant might have had an honest and reasonable belief that the shot he heard had been fired by the deceased at him or at his brother. That question is to be answered by reference to what the appellant saw and heard before and at the time of the first shot. What he saw and heard was affected by where he was, where the deceased was and where Jade Lacey was at that time. It also depended upon what there was to see: relevantly what the deceased and Jade Lacey were doing at the time.
The trial judge's charge which we set out was a sufficient reminder to the jury of the relevant factors and served to attract their attention to the circumstances in which a combination of s 24 and ss 271, 272 and 273 might absolve the appellant from criminal responsibility for the shooting. The charge was adequate in the circumstances.
Having delivered that charge, and then directed the jury with respect to s 24, the trial judge repeated, in abbreviated form, his explanation of the self-defence sections in terms which are not criticised. The jury was also given, as part of the notes, the terms of the sections and the questions they should ask themselves when they came to apply the sections to the facts. There is no criticism of the written directions. In the course of this part of the summing up the trial judge said:
"... yesterday I took you through 271 and 272. You are aware of the facts and the evidence, and I discussed yesterday the sequence of events, or the circumstances leading up to the discharge of Dionne Lacey's pistol. I won't go over those again. They're matters that you have to consider afresh in the light of Dionne Lacey's charge. "
The trial judge had told the jury that if the Crown could not satisfy it beyond reasonable doubt that the killing had not occurred in self-defence that was "the end of the case", and the appellant's "use of force would [have been] lawful." We have set that passage out. This part of the summing up concluded with this summary:
"When you're thinking about this, bear in mind the question raised about the shot coming in the direction of both Jade and Dionne Lacey. That's what you're being asked to consider. The prosecution must satisfy you beyond reasonable doubt that Dionne Lacey did not hold an honest and reasonable mistaken belief that the shot did come. Concentrate on belief, not about whether there was a shot. Concentrate on Dionne Lacey's belief, because that is the essence of it. ... bearing that in mind ask yourself: 'Does section 273 apply?' When you do it, you must look back at sections 271 and 272 ... afresh in the light of 273 ... ".
Consequently the jury was asked to consider the relevant question having had the relevant law explained appropriately and having been reminded of the facts about which we think it unlikely they needed much reminding.
As the summing up progressed, the primary judge referred from time to time to a document of 15 pages described as "jury notes", a copy of which had been given to each jury member. It set out the relevant provisions of the Code in relation to murder, honest and reasonable but mistaken belief, self-defence, criminal negligence and manslaughter. The document stated what had to be established to the jury's satisfaction beyond reasonable doubt in order for the prosecution to exclude each such defence. It was considered by counsel and was the subject of lengthy discussion between counsel and the primary judge. No complaint was made on the trial or on appeal about its content. In the context of s 273 of the Code, aiding in self-defence, his Honour invited the jury to concentrate on the appellant's belief, not as to whether there was a shot actually fired in the direction of his brother and himself. After summing up in relation to self-defence, the primary judge moved to the alternative offence of manslaughter, directing:
"…if you find the defendant not guilty of murder but you find that the prosecution has excluded beyond a reasonable doubt the defences I have spoken about, then it remains for you to decide whether or not he is guilty of manslaughter."
He had earlier directed the jury in relation to the case against Jade Lacey in similar terms and when discussing self-defence in respect of the appellant, he had directed:
"if they [the prosecution] cannot satisfy you beyond reasonable doubt that the killing [did not occur] in self-defence, then that is the end of the case. Dionne Lacey's use of force would be lawful and you should find him not guilty in those circumstances."
There is either an error in transcription in the above passage or there was a slip in how the onus of proof was expressed. However, what the primary judge meant is clear from the words which precede the quoted passage and no one in the trial or on appeal suggested that these words were capable of giving rise to a misunderstanding.
The primary judge thus made it quite plain that his self-defence directions were applicable to the manslaughter count. The notes given to the jury contained a section headed "Possible alternative verdicts". The section listed seven questions and indicated the legal consequences of affirmative and negative answers to each. Question 6 was:
"Has the prosecution established beyond reasonable doubt that none of the three types of self-defence apply?
(a)If 'no' to question 6 then Dionne Lacey is not guilty of any offence.
(b) If 'yes' ... go to question 7."
The direction is explicit. Unless self-defence was excluded the appellant was not guilty "of any offence": neither murder nor manslaughter.
The case of Jones does not assist the appellant. In that case the trial judge had told the jury that it "must come to a view upon that question that I posed for you as to the issue of self-defence." The only question posed on the issue of self-defence related to the crime of murder. According to Hunt CJ at CL ((1995) 38 NSWLR 652 at 661):
"The only belief which the judge ever identified was 'that it was necessary in self defence to inflict the fatal wound with the intention of ... causing really serious bodily harm ...'. At no stage did the judge relate the issue of belief relevant to self defence to the crime of manslaughter."
The trial judge here made no such mistake. His charge made it clear that unless the prosecution excluded self-defence, in any of its forms, the appellant was to be acquitted.
The appellant's complaint that the trial judge failed to direct the jury on the applicability of s 271(1) to a charge of manslaughter should be rejected. That subsection could have no application in the circumstances of this case. The subsection authorises the use of force in response to an unprovoked assault "if the force used is not intended, and is not such as is likely, to cause death or grievous bodily harm". A gun shot fired at close range does not fit that description. The jury found the shot was not intended to cause death or grievous bodily harm but it was certainly "such as was likely to cause it", as it did. The trial judge was right to ignore s 271(1) in the summing up.
There is thus no substance in the criticism that the jury were not directed appropriately in respect of the application of self-defence to the offence of manslaughter.
It is not suggested that the summing up was in any way unbalanced and, as has been made apparent in the above discussion, the jury were directed in such a way as to obviate any risk that they would not understand the need to give separate consideration to the respective cases against and defences of the co-accused.
As for the alleged failure by the primary judge to put the appellant's arguments to the jury, it is the case that the primary judge did not summarise the prosecution's or the appellant's arguments in any discrete way in his summing up. At the conclusion of the summing up, counsel for the appellant submitted that it was necessary for the primary judge to "summarise the rival contentions of the parties and to put the defence case of Mr Dionne Lacey to the jury or to summarise it for them and contrast it with the limited nature of the Crown submissions". The primary judge declined to do so, observing, "Mr Callaghan gave a lucid and detailed exposition of his case yesterday. I do not think that in presenting a brief summary of the arguments which have been presented by counsel that I presented an imbalanced view of the cases. Rather, I regard it as having been a reasonable summary of the points that were raised."
The authorities on which the appellant's counsel relies establish that the orthodox, and normally appropriate, course is for the primary judge to summarise the Crown and defence cases.
Although the evidence in the trial was led over two weeks and there were 24 witnesses, as was explained earlier, the facts were relatively straightforward and the evidence and issues far from complex. The primary judge clearly and logically explained the elements of the subject offences and identified the issues in the case in relation to the facts. The appellant's counsel's address immediately preceded the summing up and was thus fresh in the jury's mind when the directions were given. It is arguable that a précis or summary of the submissions of defence counsel, particularly when coupled with the summary of the Crown case which would have accompanied it, would have detracted from the force of the appellant's counsel's submissions. In the circumstances, the jury were left in no doubt as to the issues before them and as to the respective Crown and defence cases: there was no procedural unfairness.
Accordingly, these grounds are not made out.
Ground 3 – the primary judge failed to explain the meaning of "provocation" to the jury
It was submitted on behalf of the appellant that as "provocation is not a word that falls within ordinary discourse" and as the Code provides a definition of "provocation", the primary judge was required to explain the concept of "provocation" in his summing up. In this regard, it was pointed out that "the content of any provocation … depends on the severity of the assault and the acts which are said to have provoked (sic)".
There is no substance in this ground. The primary judge in summing up the case against Jade Lacey explained that "in this case" it means: "Any wrongful act or insult of such a nature as to be likely, when done to an ordinary person, to deprive that person of the power of self-control and to induce that person to assault the other by whom the act or insult was done or offered." His Honour earlier explained much of what he was proposing to say about matters such as self-defence would apply to the appellant and that he wouldn't be repeating his explanations "exactly".
The "jury notes" to which the primary judge spoke in his summing up, as well as raising "provocation" in the context of ss 271(1) and 272(1) of the Code, addressed self-defence under s 273 of the Code in the context of a possible belief on the part of the appellant that a shot may have come "in the direction of both Jade" and himself. There was no request for a redirection in relation to "provocation" and there is no reason to suppose that the jury acted under any erroneous belief about the concept. There is the additional difficulty for the appellant that it is extremely difficult to see how the jury could have concluded that the appellant was relevantly provoked.
In this case provocation was irrelevant. Section 272 allows someone to use force that may cause death or grievous bodily harm if it is used in response to an assault that is in itself sufficiently serious to give rise to reasonable apprehension that it will cause death or grievous bodily harm. The person resisting such an assault may himself use what the Solicitor General called "lethal force" whether or not he initially provoked the assault against which he has to defend himself. Self-defence to a provoked assault has limitations but they would not have applied had the deceased sought first to shoot the appellant or his brother.
The point is that whether or not the appellant, or Jade Lacey, provoked the deceased who responded by an assault upon either of them, the appellant shooting the deceased was excused if it was in response to use of lethal force against the appellant or his brother. The only question for the jury was whether the appellant was responding to an assault by the deceased of such a nature (or of such violence) as to cause reasonable apprehension of death or grievous bodily harm.
Ground 4 – the possibility that the verdict was tainted with bias
A person claiming to be a juror telephoned the appellant's solicitors on 13 May 2009. A solicitor in their employ who telephoned the person back was told that she wanted to tell a principal of the firm "that there was a juror who had her brother shot by a Lebanese man and she had a great deal of control and influence over the jury." A principal of the firm telephoned the woman on 14 May 2009 and advised her to contact the primary judge through his associate. He gave her the associate's telephone number.
On 15 May, the appellant's solicitors emailed a letter to the primary judge's associate with copies to the office of the Director of Public Prosecutions and the solicitors for Jade Lacey setting out, in substance, what has been stated above.
The letter contained the following:
"I refer to section 70 of the Jury Act 1995. The limited information provided by the juror, … suggests that there are grounds for suspicion that the juror mentioned by [X] (the suspect), may have been guilty of bias and that an investigation be conducted, pursuant to s 70(7) of the Act.
I ask that you bring this correspondence and affidavit to His Honour's attention and let us know us (sic) if His Honour wishes to convene the court or whether he would like to receive submissions as to how the matter should be dealt with.
Upon reflection I omitted to direct [X] to the terms of s 70(8) of the Act, which may be a matter which his Honour might wish to do.
I will provide a copy of this correspondence and affidavit to the Prosecutor Mr Byrne and to Mr Nyst, legal representative for Jade Lacey."
There was no response to this letter from the Director of Public Prosecutions or the Attorney-General. A person identifying herself as a juror contacted the primary judge's associate. Consequent upon that contact, the associate sent the person a copy of section 70 of the Jury Act 1995 (Qld) and referred her to sub-section (8). The primary judge did not institute an enquiry pursuant to s 70(7) of the Act.
On 22 July 2009 after the appeal had been heard the solicitors for the appellant sent an email to the primary judge's associate asking:
"1. Whether you were able to verify that [X] was in fact a juror
on this trial; and
2. The detail of the disclosures made by her."
On 23 July, the associate replied:
"I refer to your letter of 22 July 2009. I decline to answer the questions you pose because I am concerned that if I answered them I might contravene parts of s70 of the Jury Act 1995."
The primary judge at the request of this Court, gave a report dated 29 July 2009 pursuant to the Code in which he stated:
"1.On 15 May 2009, a person who identified herself as [X] contacted my Associate and said that she had been a juror in the Lacey and Lacey trial. She then, and again shortly afterward, asserted certain things which, if it were the case that she had been a juror, would come within the definition of 'Jury Information' in section 70 of the Jury Act1995.
2.I did not speak to that person or otherwise communicate with her, but I considered what she told my Associate in the light of the Act and, in particular, section 70 of that Act.
3.I considered that section 70(6) did not apply as the trial had concluded and the jury had been discharged.
4.I then considered the provisions of subsections (7) and (8) of section 70. I formed the view that subsection (7) was intended to be used where the court becomes aware of relevant information by means other than from a juror. A circumstance such as that which arose in R v Martin & King [1999] QCA 366 was, I thought, such an example.
5.I also formed the view that subsection (8) was a provision which was specifically intended to deal with claims made by a juror.
6.Although I could not reach any conclusion about the veracity of the material, I thought it appropriate to have my Associate send [X] a copy of section 70 of the Act. She also sent her a copy of the 'Juror Support Program' brochure.
7.Shortly after that was done, [X] made this inquiry of my Associate:
'I was wondering if giving information to the Law Reform Society (sic) was legal under the terms of the Jury Act or any other legislation?'
8. My Associate replied to that question in these terms:
'I regret that I am not in a position to provide legal advice regarding the application of the Jury Act. You may gain assistance from consideration of s 70(8) of that Act.'
9. There has been no further communication from the person using the name [X]."
Counsel for the appellant submitted in writing after this exchange of correspondence that it is implicit in the associate's letter "that the juror raised issues which might precipitate a suspicion of bias, thus resulting in the associate's reference to s70(8)". It was further submitted that "the absence of an investigation … leaves the jury verdict attended with unacceptable doubt such as to cause a miscarriage of justice" and that the conviction should be set aside or the trial court should be directed to "authorise an investigation".
After receipt of a copy of the primary judge's report, counsel for both appellants submitted as follows:
(a) The primary judge's construction of s 70(7) was incorrect. There is no restriction on the Court's power in that subsection turning on how information is placed before the Court. Once relevant information was brought to the Court's attention, the Court was required to exercise its discretion under it;
(b) The appellant's argument as to the miscarriage of justice occasioned by the substance of the juror's contact is fortified by this error of law;
(c) The woman in question is now known to be a juror and to have made contact with the primary judge;
(d) It is not open to the appellants or their lawyers to have sought or to now seek to gather more evidence. Section 70 places the statutory cloak of confidentiality over the jury's deliberations, not just for the duration of the trial;
(e) Section 70(8) contemplates that the Attorney-General and the Director of Public Prosecutions, both of whom are parties to this appeal and aware of the information on this issue, are both lawfully able to receive jury information. Neither has thought it appropriate to obtain this information in order to facilitate the course of justice;
(f) This Court now has evidence that a woman who was a juror raised concerns with the primary judge that prima facie suggests the possibility of bias despite the detail of those concerns remaining unknown. The primary judge made no attempt to determine the veracity of the information and to give advice to the juror as to how she might further her concerns in a lawful fashion. He then compounded the difficulties by not advising the parties of what had occurred or his reasons for declining to authorise an investigation. The procedure undertaken by the trial judge in R v Martin & King[18] should have been followed but was not;
(g) In the result there has been a miscarriage of a kind for which s 668A(1) of the Code provides a basis for this Court to interfere by setting aside the verdict.
[18][1999] QCA 366.
Counsel for the respondent challenged the admissibility of the affidavit on which the appellant's arguments of bias were principally based. It was submitted that as well as being inadmissible on the grounds of irrelevance, it infringed the principle that the "court does not admit evidence of a juryman as to what took place in the jury room, either by way of explanation of the grounds upon which the verdict was given, or by way of statement as to what he believed its effect to be."[19]
[19]Nanan v The State [1986] AC 860 at 870 – 71.
Reference was also made to R v Challinger[20] and Evans v Davies.[21] In the latter case Macrossan CJ said:[22]
"It is the jurors' formal answers on which they have reached agreement and which they unanimously agree shall be brought in as their answers which, on being announced, are paramount. When their verdict or their answers are accepted and they are discharged their authority and function end. They are not later to be cajoled into making a retraction or permitted to be questioned by the parties in an attempt to introduce some variation, disharmony or disagreement into the previous picture of unanimity. Policy forbids it and what the jury members later think about their verdict is irrelevant since they are functus officio."
[20][1989] 2 Qd R 352.
[21][1991] 2 Qd R 498.
[22][1991] 2 Qd R 498 at 501.
It was further submitted that there was no evidence that the person who made contact with the solicitors was in fact a juror. The final point made was that even if the communication could be taken at face value, it did not demonstrate bias. In that regard Senior Counsel for the respondent submitted, "The issue is not whether any juror had a life experience that may potentially affect his or her deliberations. The issue is whether, despite that life experience, he or she could remain impartial."
Consideration
The jury received the normal warning about impartiality prior to the appellants being put in their charge. The reference to the "Lebanese man" would not appear to have much significance. There is no suggestion that the appellants were of Lebanese extraction or of Middle Eastern appearance, although some of the other men in the unit at the time of the incident, judging by their names, may have been Middle Eastern or of Middle Eastern descent. That a particular juror is more influential or controlling than others is not a matter of concern unless a consequence of such "influence" or "control" is the overbearing of the free exercise of the will of one or more jurors. It is the general human experience that some people tend to be more active and forceful, and even domineering, in discussion than others. It is also the case that a jury speaker performing his or her role effectively may be seen to be exerting a degree of "control and influence over the jury."
That changed in 2004 during argument in the High Court before Gummow, Kirby and Hayne JJ in Bryan v The Queen; Lewis v Attorney-General of Queensland.[146] In refusing to grant special leave, Gummow J noted that s 669A(1) "appears to be unique to Queensland and differs significantly from the provisions governing the disposition of prosecution appeals against sentence elsewhere in Australia." The following month, this Court in R v AS; ex parte A-G (Qld)[147] referred to the transcript of argument in Bryan and considered that this Court was not constrained upon the hearing of an Attorney-General's appeal under s 669A(1) in the way discussed in Everett v The Queen[148] because of the term "unfettered".[149]
[146][2004] HC trans 246 (23 June 2004).
[147][2004] QCA 259.
[148](1994) 181 CLR 295. Everett concerned the construction of s 402(1)(c) Criminal Code (Tas) which enabled the Attorney-General to apply for leave to appeal against an offender's sentence. Brennan, Deane, Dawson and Gaudron JJ referred to the rare category of case where such leave should be given (at 299-300).
[149][2004] QCA 259, de Jersey CJ at [21]; Williams JA at [30] and Mullins J at [32].
The debate as to the construction of s 669A(1) was further fuelled the following year by McHugh J's strongly expressed obiter comments in York v The Queen.[150] McHugh J noted that, on an appeal under s 669A(1), the appellate court could interfere with the sentence for any reason that it thinks is sufficient providing the reason is not an arbitrary one and as long as the discretion was exercised judicially.[151] Gleeson CJ[152] and Hayne J[153] expressed no opinion as to the construction of s 669A(1). Callinan and Heydon JJ in a joint judgment recorded their inclination to give "unfettered" in s 669A(1) its ordinary meaning;[154] but they did not give unqualified support to McHugh J's observations and determined York on the basis that error in the exercise of the sentencing judge's discretion must be demonstrated before an appellate court can intervene.[155]
[150](2005) 225 CLR 466 at [24]-[28], [33].
[151](2005) 225 CLR 466 at [27].
[152](2005) 225 CLR 466 at [4].
[153](2005) 225 CLR 466 at [35].
[154](2005) 225 CLR 466 at [61].
[155](2005) 225 CLR 466 at [63].
This prolonged, continuing controversy and apparent renewed disquiet as to the nature of an Attorney-General's appeal against sentence in Queensland is why this Court accepted the Attorney-General's invitation to sit a panel of five judges in this case to construe s 669A(1).
The correct construction of s 669A(1)
The construction of s 699A(1) has become a vexed question. The many judicial pronouncements on it and other provisions in other states allowing Attorneys-General to appeal against sentence are not of one voice and can be used to rationally support competing constructions. In my view, its correct interpretation lies in an understanding of basic appellate procedure and statutory construction.
At common law, there was no right of appeal, whether in criminal nor civil matters. An appeal is "a creature of statute".[156] When the Criminal Code was first enacted, its Ch LXVII headed "Appeal: Pardon" made no provision for any appeal or application for leave to appeal against sentence, either by an offender or by the Attorney-General.[157] Section 668D(1)(c) and s 668E(3), which allowed an offender to apply for leave to appeal against sentence, were enacted in 1913[158] in these terms:
[156]R v Long (No 1) [2001] QCA 318, Williams JA at [33]; Conway v The Queen (2002) 186 ALR 328, Gaudron ACJ, McHugh, Hayne and Callinan JJ at [68]; Gerlach v Clifton Bricks Pty Ltd (2002) 188 ALR 353, Kirby and Callinan JJ at [49]; Fox v Percy (2003) 214 CLR 118 at [20].
[157]Section 675 was headed "Conditional Remission of Sentence by Governor" and provided for the Governor authorised on behalf of Her Majesty to extend the Royal Mercy to an offender under sentence of imprisonment on condition of the offender entering into a recognizance.
[158]Act No 23 of 1913, s 3, s 58, s 59.
"668D Right of appeal
(1) A person convicted on indictment … may appeal to the Court—
…;
(c) with the leave of the Court, against the sentence passed on the person's conviction."
"668E Determination of appeal in ordinary cases
… .
(3) On an appeal against a sentence, the Court, if it is of opinion that some other sentence, whether more or less severe, is warranted in law and should have been passed, shall quash the sentence and pass such other sentence in substitution therefor, and in any other case shall dismiss the appeal."
The Attorney-General had no right of appeal against sentence until s 669A(1)[159] was introduced to the Criminal Code in 1939. As I have explained, in 1975, the word "unfettered" was added.[160]
[159]Set out at [239] of these reasons.
[160]See these reasons at [250].
The most obvious distinction between an offender's appeal against sentence and the Attorney-General's appeal against sentence in Queensland is that offenders can appeal against sentence only with leave of the court, whereas the Attorney-General has a right of appeal against sentence.[161] The requirement that offenders need leave to appeal against sentence is a highly significant distinction. This Court could, for example, grant an offender leave to appeal against sentence but refuse the appeal. Even where an appeal as of right might be allowed, a court may, for proper reason, refuse leave to appeal (for example, where the Court in re-sentencing would impose the same sentence). If this Court intended to increase an offender's sentence under the broad discretion given to the Court under s 668E(3), then it first must grant the offender leave to appeal so that the offender may decide whether to abandon the appeal: Neal v The Queen.[162]
[161]Cf s 402(1)(c) Criminal Code (Tas) discussed in Everett v The Queen (1994) 181 CLR 295.
[162](1982) 149 CLR 305.
It is almost trite to observe that, unless and until an appeal against sentence is allowed and the sentence is varied or set aside and a different sentence imposed, the sentence pronounced at first instance is the final order of the court. But this, together with understanding the nature of an appeal against a discretionary exercise like sentencing, is a relevant consideration when determining the meaning of "unfettered discretion" in s 669A(1).
The difficult task of sentencing offenders, like awarding costs or general damages in civil cases, involves the judicial exercise of discretion. An appeal against a judicial exercise of discretion can only succeed where there has been some error in the primary court's exercise of that discretion. The leading case in respect of appeals from such a discretionary exercise is House v The King,[163] perhaps the most cited case in appellate courts. The long established principles it set out in 1936 were re-affirmed by the High Court as recently as this year in Carroll v The Queen.[164] House v The King mandates that appeals against an exercise of judicial discretion like sentencing can only succeed where there has been some error in the primary court's exercise of that discretion. Similarly, appeals in civil cases from an exercise of judicial discretion, such as an assessment of an award of general damages, will not succeed unless the primary judge acted on a wrong principle of law or misapprehended the facts or has for these or other reasons made a wholly erroneous estimate of the damage suffered: Miller v Jennings;[165] Gamser v The Nominal Defendant;[166] Elford v FAI General Insurance Company Limited.[167]
[163](1936) 55 CLR 499. It is noteworthy that the appellant in House v The King, like the Attorney-General in the present case, had an appeal against sentence as of right. See s 73 Constitution and s 26(2) Bankruptcy Act 1924-1933 (Cth) and House v The King (1936) 55 CLR 499 at 503, 504.
[164](2009) 254 ALR 379, Gummow, Hayne, Crennan, Kiefel and Bell JJ at [6]-[8].
[165](1954) 92 CLR 190, Dixon CJ and Kitto J at 196.
[166](1977) 136 CLR 145 at 148-149.
[167][1994] 1 Qd R 258 at 264.
It is my view that this entrenched principle of law as to the nature of an appeal from an exercise of judicial discretion requires a two step approach in allowing appeals against sentence, whether under s 668E(3) after leave to appeal is granted or under s 669A(1) where the appeal is of right. The Court must first determine whether the appeal from an exercise of judicial discretion should be allowed in accordance with long established legal principle. If the Court allows an offender's appeal against sentence under s 668E(3), it must then determine "if it is of opinion that some other sentence, whether more or less severe, is warranted in law and should have been passed." If the Court allows an Attorney-General's appeal against sentence under s 669A(1), it may then in its "unfettered discretion vary the sentence and impose such sentence as to the Court seems proper." Neither s 668E(3) nor s 669A(1) empowers this Court to sentence offenders afresh in the absence, first, of error in the House v The King sense on the part of the original sentencing court.
My view that an Attorney-General's appeal against sentence under s 669A(1) involves a two step approach is consistent with Barwick CJ's construction of s 5D of the New South Wales Act[168] in Griffiths v The Queen:[169]
"It has been said that this Court in Whittaker v. The King [(1928) 41 CLR 230] decided that the Supreme Court sitting as a court of criminal appeal on an appeal by the Attorney-General was not restrained as appellate courts usually are to the remedy of error in what has been done in the court below, but that that court has complete and, as it is said, unfettered discretion to substitute what it thinks is the proper sentence for that which the trial judge has imposed without considering whether in truth the trial judge has erred in a matter of principle or whether he has acted unreasonably or in disregard of relevant evidence or whether in some other way he has exceeded or misused the discretion which is committed to him in the sentencing of convicted persons.
In my opinion, this Court decided no such thing in Whittaker v. The King. It is quite true that what was said by the Chief Justice and Powers J. in their joint judgment could support that view, but clearly nothing in what was said by Isaacs J. or Higgins J. would do so. The other two Justices, Gavan Duffy J. and Starke J., in refusing special leave, said that the Court of Criminal Appeal 'in imposing the sentence complained of, did not proceed in opposition to any principle of law but in accordance with its own considered view of the facts' [(1928) 41 CLR, at 253]. This might be thought an ambiguous statement but it means, in my opinion, when related to the circumstances which obtained in that case, that their Honours were not disagreeing with what the Court of Criminal Appeal had said. The principle upon which the Court acted was, in their opinion, the correct principle.
Having referred to the principles laid down in R. v. King [(1925) 25 SR (NSW) 218] the Chief Justice of New South Wales in R. v. Whittaker [(1928) 28 SR (NSW) 411, at 418] posed for himself the question whether the trial judge had proceeded upon a wrong principle. On examination of what the trial judge had done, he concluded that he had erred in principle. James J. and Campbell J. concurred in this judgment. Having decided that error was present in what the trial judge had done, the Court then was in a position to impose such sentence as it thought proper. Thus, in my opinion, the joint judgment of Gavan Duffy and Starke JJ., in supporting the judgment of the Supreme Court, denies the view of the function of the Court of Criminal Appeal which has been suggested.
The authority of the Court of Criminal Appeal to hear and determine an appeal by the Attorney-General against the sentence imposed at the trial is, as I have said, derived exclusively from s. 5D of the Criminal Appeal Act. The authority was thus given to an appellate court whose powers, derived from other sections of that Act, were exclusively appellate. Sections 6 and 8 of the Act quite clearly limit the court to an appellate function. It would indeed be strange to construe s. 5D as giving to the court more than a truly appellate function. What it is claimed that Whittaker v. The King [(1928) 41 CLR 230] decided would give to the court a function more akin to original jurisdiction exercisable without reference to what has already been done and in the exercise of which the court was not constrained by those principles of appellate courts which concede to the presiding judge a discretion the exercise of which is not to be disturbed except for error.
In my opinion, s. 5D does not bear such a construction. It does no more, in my opinion, than give to the Court of Criminal Appeal authority to hear and determine an appeal by the Attorney-General against the sentence erroneously imposed by a trial judge. Its reference to discretion, in my opinion, does no more than ensure that where a proper occasion arises for the allowance of an appeal, the court itself may substitute the sentence which it considers appropriate for that imposed by the trial judge. …" (my emphasis)
[168]Section 5D does not contain the word "unfettered".
[169](1977) 137 CLR 293 at 308-309.
Barwick CJ's view found favour with Macrossan J (as he then was) in Osmond.[170] This two step approach is consistent with Isaacs J's thoughtful and thorough discussion of s 5D in Whittaker and with the approach taken by this Court in Liekefett and Melano and the many cases which followed it.
[170][1987] Qd R 429 discussed at [252] of these reasons. See also R v GAE; ex parte A-G (Qld) [2008] QCA 128; Director of Public Prosecutions v Kennedy [2008] VSCA 263 at [38]; R v J & H [2005] NSWCCA 1 at [53].
A point argued against this construction of s 669A(1) is that the Attorney-General representing the community has an important institutional role in the criminal justice system in ensuring consistency of sentences. But this contention fails to apprehend the very nature of the exercise of the sentencing discretion. There is almost never just one correct sentence open in any case: Lowe v The Queen.[171] And no two cases are precisely the same when the facts of the offending and the relevant mitigating and exacerbating factors are considered. There is inevitably a range within which a sentence can lawfully be imposed: Markarian v The Queen.[172] The Attorney-General's obligation to ensure reasonable consistency of sentencing within the criminal justice system extends only to ensuring that the sentence imposed is within the appropriate range. As Barwick CJ said in Griffiths v The Queen:[173]
"… an appeal by the Attorney-General should be a rarity, brought only to establish some matter of principle and to afford an opportunity for the Court of Criminal Appeal to perform its proper function in this respect, namely, to lay down principles for the governance and guidance of courts having the duty of sentencing convicted persons."
If a sentencing judge imposes a sentence outside the proper range or has erred on a matter of legal principle, the judge will have erred in the House v The King sense and the appeal must be allowed. The Court can then in its unfettered discretion vary the sentence and impose such sentence as to the Court seems proper. The Attorney-General's significant institutional role in the criminal justice system provides neither a reason nor a need to construe s 669A(1) in a way contrary to the established law. It does not justify allowing this Court to re-sentence in the absence of error at first instance. The proposed two step construction of s 669A(1) is entirely consistent with the Attorney-General's important role in the criminal justice system.
[171](1984) 154 CLR 606, Mason J at 612.
[172](2005) 228 CLR 357, McHugh J at 379-380 [55].
[173](1977) 137 CLR 293 at 310.
Another argument against the construction of s 669A(1) for which I favour is that there seems little doubt from reading the words of the Minister who introduced the 1975 amendment to s 669A(1) adding the word "unfettered", that the legislature intended the section to be construed in the manner now contended for by the Attorney-General. The construction I prefer, it is argued, makes the word "unfettered" meaningless. Of course, courts should adopt a purposive approach to construing legislation[174] and attempt to give meaning to all words used. But courts cannot use that approach to statutory interpretation to change long established legal principle where the legislation simply does not have that effect. This Court's role is to give effect to the will of the legislature, but as expressed in the law: Re Bolton; Ex parte Beane.[175] The Minister for Justice in amending s 669A(1) in 1975 failed to understand that McKeown and Beevers were wrongly decided and did not state the law. This Court's discretion under s 669A(1) before the 1975 amendment was only activated once error in the sentencing judge's exercise of discretion was demonstrated in the House v The King sense and the appeal against sentence was allowed. Only then did this Court have a "discretion [to] vary the sentence and impose such sentence as to the court seems proper". That discretion was broad and unfettered except by legal principle. The addition of the word "unfettered" to s 669A(1) in 1975 added nothing to the breadth of that discretion. Though now specifically described as "unfettered", the discretion must be, as it always had to be, exercised judicially and in accordance with legal principle and only after error on the part of the sentencing judge was demonstrated as justifying the allowing of the appeal. The word "unfettered" added nothing more than emphasis to s 669A(1).
[174]Project Blue Sky v Australian Broadcasting Authority (1998) 194 CLR 355; Acts Interpretation Act 1954 (Qld), s 14A(1).
[175](1987) 162 CLR 514, Mason CJ, Wilson and Dawson JJ at 518.
The requirement that offenders wishing to appeal against sentence be granted leave to appeal while the Attorney-General does not can be justified on the basis that the Attorney can be expected to exercise circumspection in determining when to appeal. But the construction of s 669A(1) which the Attorney-General supports would have the effect that offenders who seek to appeal from sentences imposed upon them are required to demonstrate error on the part of the sentencing court, whereas the Attorney-General, with the unlimited resources of the state, could appeal from any sentence imposed upon any offender without demonstrating error on the part of the sentencing judge, contrary to long established legal principle. The filing of an appeal against sentence by the Attorney-General would render the final order of the sentencing court interlocutory. In my mind, this is manifestly offensive to the concept that all litigants, including the Crown, are subject to the same laws equally applied. It is especially offensive in criminal matters involving the liberty of the subject.[176] A court would only construe a provision as having this extraordinary effect if that legislative intent was clearly and unequivocally expressed in the law enacted. In my view, the terms of s 669A(1) do not have that effect.
[176]See International Covenant on Civil and Political Rights, Art. 14(1) "All persons shall be equal before the courts and tribunals". This Covenant was ratified by Australia on 13 August 1980.
Counsel for the Attorney-General agreed in argument that the unfettered nature of the discretion under s 669A(1) means that this Court could, when re-sentencing on a successful Attorney-General's appeal, impose a lesser sentence than that at first instance if such sentence seemed proper to the Court. Similarly, this Court can impose a heavier sentence in an offender's appeal against sentence under s 668E(3) where error in the House v The King sense is first demonstrated, although in practical terms this is unlikely: see Neal v The Queen.[177]
[177](1982) 149 CLR 304.
If in an Attorney-General's appeal against sentence under s 669A(1), this Court is satisfied that the sentencing judge erred in the House v The King sense and the appeal is allowed, I agree with the majority that the unfettered nature of the Court's discretion does not necessarily require the Court to fix a sentence at the lower end of the appropriate range. In re-sentencing, whether under s 668E(3) or s 669A(1), the Court has power to receive further evidence[178] but it cannot increase the sentence by reason of or in consideration of any evidence that was not given at trial.[179] Respondents to an Attorney-General's appeal against sentence may have suffered a heavy emotional burden, sometimes for an extended period through being subject to the jeopardy of criminal punishment for a second time. If so, this is a relevant factor for an appellate court to take into account in exercising the unfettered discretion in s 669A(1): Everett v The Queen;[180] Dinsdale v The Queen.[181] Whether an offender is re-sentenced on a successful appeal under s 669A(1) at the lower end, in the middle, or at the upper end of the appropriate range will depend on the relevant facts and circumstances pertaining in each case.
[178]Criminal Code 1899 (Qld), s 671B.
[179]Criminal Code 1899 (Qld), s 671B(2).
[180](1994) 181 CLR 295 at 299.
[181](2000) 202 CLR 321, Kirby J at 340-341 [62]. See also R v O' Grady; ex parte A-G [2003] QCA 137 at [30] ; R v Tupou; ex parte A-G [2005] QCA 179 at 14; R v Mrsic; ex parte A-G (Qld) [2005] QCA 349 at [26]; R v Quick; ex parte A-G (Qld) [2006] QCA 477 at [43]; R v Dillon; ex parte A-G (Qld) [2006] QCA 521 at [17], [52]; R v Wilkins [2008] QCA 272 at [20]; R v Kirby; ex parte A-G (Qld) [2009] QCA 35 at [46]; R v CAK & CAL; ex parte Cth DPP [2009] QCA 23 at [23]; R v Swayn; ex parte A-G (Qld) [2009] QCA 81 at [29].
In Dionne Lacey's application for leave to appeal against sentence, I determined that the sentence imposed by the primary judge was within the appropriate sentencing range but that the primary judge erred in the way in which he dealt with the pre-sentence custody. That error required the granting of Dionne Lacey's application for leave to appeal against sentence and the allowing of the appeal. It also requires the granting of the Attorney-General's appeal against sentence, although the successful ground was not one relied on by the Attorney-General. This Court must then re-exercise its unfettered discretion and re-sentence Dionne Lacey under s 669A(1). For the reasons I gave in Dionne Lacey's appeal against sentence, I would set aside the sentence imposed at first instance and instead impose a sentence of nine years and eight months imprisonment with a declaration that Dionne Lacey is convicted of a serious violent offence.
Conclusion
I would dismiss Dionne Lacey's appeal against conviction but grant his application for leave to appeal against sentence and allow his appeal against sentence. I would also grant the Attorney-General's appeal against sentence. I would set aside the sentence of 10 years imposed at first instance and instead impose a sentence of nine years and eight months imprisonment with a declaration that Dionne Lacey is convicted of a serious violent offence.
R v Quick;
ex parte A-G (Qld) (2006) 166 A Crim R 588 at [43]; R v Dillon; ex parte A-G (Qld) [2006] QCA 521 at [17], [52]; R v Wilkins; ex parte A-G (Qld) [2008] QCA 272 at [20]; R v Kirby; ex parte A-G (Qld) [2009] QCA 35 at [46]; R v CAK & CAL; ex parte Cth DPP [2009] QCA 23 at [23]; R v Swayn; ex parte A-G (Qld) [2009] QCA 81 at [29].
person is not criminally responsible for--
(a) an act or omission that occurs independently of the exercise of the person's will; or
(b) an event that occurs by accident." (my emphasis)
- AGLC
- R v Lacey; ex parte Attorney-General [2009] QCA 274
- Case
- [2009] QCA 274
- Decision Date
CaseChat Overview and Summary
The legal issues before the court included whether the primary judge erred in failing to direct the jury on the operation of section 25 of the Code, whether the summing up adequately covered the application of sections 24, 271, 272, and 273 of the Code to the appellant's case, and whether the jury's verdict was tainted by bias. The court also considered the appellant's argument that the sentence imposed was manifestly excessive and the principles that should guide the Court of Appeal in exercising its discretion under section 669A of the Code.
The court found that the primary judge had not erred in failing to direct the jury on the operation of section 25 of the Code, and that the summing up was adequate. The court also held that there was no evidence of juror bias that would impugn the verdict. Regarding the sentence, the court found that the primary judge had not wrongly characterised the appellant's conduct and culpability, and that the sentence was not manifestly excessive. However, the court found that the sentence was inadequate and varied it from 10 years to 11 years imprisonment.
The orders of the court were that the appeal against conviction be dismissed, the application for leave to appeal against sentence be dismissed, the appeal against sentence be allowed, and the sentence be varied to 11 years imprisonment.
Orders
Orders of the court
In Appeal No 114 of 2009:
1. Appeal against conviction dismissed.
2. Application for leave to appeal against sentence dismissed.
In Appeal No 148 of 2009:
1. Appeal allowed.
2. Order that the sentence imposed at first instance be varied to the extent that a sentence of 11 years imprisonment be substituted for the original sentence of 10 years imprisonment.
Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
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Ratio Decidendi
Legal Principle Established
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