R v Tracey

Case [2024] QCA 19

SUPREME COURT OF QUEENSLAND

CITATION:

R v Tracey [2024] QCA 19

PARTIES:

R
v
TRACEY, Emily Jane
(appellant)

FILE NO/S:

CA No 59 of 2022
SC No 1626 of 2019

DIVISION:

Court of Appeal

PROCEEDING:

Appeal against Conviction

ORIGINATING COURT:


Supreme Court at Brisbane – [2022] QSC 35 (Flanagan J)

DELIVERED ON:

20 February 2024

DELIVERED AT:

Brisbane

HEARING DATE:

1 June 2023

JUDGES:

Mullins P and Morrison JA and Callaghan J

ORDER:

The appeal is dismissed.

CATCHWORDS:

CRIMINAL LAW – APPEAL AND NEW TRIAL – MISCARRIAGE OF JUSTICE – PARTICULAR CIRCUMSTANCES AMOUNTING TO MISCARRIAGE – MISDIRECTION OR NON-DIRECTION – NON-DIRECTION – where the appellant and her co-accused were convicted of murder in a judge alone trial – where the appellant was not the one who wielded the knife against the deceased – where the appellant was found to have acted with the purpose of assisting or enabling the co-accused to murder the deceased – where the appellant acted with intention and knew that the co-accused intended to kill or do grievous bodily harm to the deceased – where the appellant submits the learned trial judge failed to direct himself to the partial defence in s 304B of the CriminalCode (Qld), killing for preservation in an abusive domestic relationship – whether the learned trial judge failed to direct himself to the partial defence – whether a miscarriage of justice occurred

Criminal Code (Qld), s 7, s 8, s 302, s 304B

Dhanhoa v The Queen (2003) 217 CLR 1; [2003] HCA 40, considered
Hofer v The Queen (2021) 274 CLR 351; [2021] HCA 36, applied
Pickett v Western Australia (2020) 270 CLR 323; [2020] HCA 20, applied
R v Barlow (1997) 188 CLR 1; [1997] HCA 19, applied
R v Ngakyunkwokka[2023] QCA 85, considered
R v Rae[2006] QCA 207, applied

COUNSEL:

C M O’Connor and K F Drew for the appellant (pro bono)
N W Crane for the respondent

SOLICITORS:

No appearance for the appellant
Director of Public Prosecutions (Queensland) for the respondent

  1. MULLINS P: I agree with Morrison JA that the appeal must be dismissed. I agree with Morrison JA that s 304B of the Criminal Code (Qld) is capable of application to a person in the position of this appellant who did not do the act that caused the death of the deceased but is liable for the offence of murder pursuant to s 7(1)(b) or (c) of the Code for another person’s act that killed the deceased.

  2. I also agree with Morrison JA that the defence under s 304B was not raised by the evidence adduced in the trial of the appellant and there was therefore no error on the part of the learned primary judge in not directing himself on that defence.

  3. If that conclusion were found to be in error, I also agree with Morrison JA that on a consideration of all the relevant evidence, including the texts on which the appellant…

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AGLC
R v Tracey [2024] QCA 19
Case
[2024] QCA 19
Decision Date

CaseChat Overview and Summary

In the case of R v Tracey, the appellant, along with her co-accused, was convicted of murder following a trial before a judge alone. The appellant argued that the learned trial judge failed to direct himself to the partial defence under s 304B of the Criminal Code (Qld), which pertains to killing for preservation in an abusive domestic relationship. The appellant's contention was that the trial judge's failure to consider this defence amounted to a miscarriage of justice.

The legal issues before the court involved determining whether the trial judge's omission to direct himself to the partial defence under s 304B constituted a miscarriage of justice. Specifically, the court had to decide if the partial defence arose on the evidence presented and whether the failure to consider it was prejudicial to the appellant's case.

The court examined the evidence and concluded that the partial defence under s 304B did not arise from the evidence adduced. The court reasoned that s 304B applies only to the person who actually commits the act of killing, which in this case was Moore. The court also noted that the defence is contingent on the belief held by the person who actually kills, and since the appellant was not the one who wielded the knife, the defence did not apply to her. The court found that even if the defence had been applicable, the failure to consider it was not prejudicial enough to constitute a miscarriage of justice. The court held that the trial process was fair and that there was no real chance the omission affected the verdict.

In summary, the appeal was dismissed. The court found that the trial judge's failure to direct himself to the partial defence under s 304B did not amount to a miscarriage of justice, as the defence did not arise from the evidence presented.

Orders

Orders of the court

The appeal is dismissed.

Background

Background to the litigation

The appellant’s evidence was that she saw no knife and did not know that Moore had one with him:[15]“All right. Now, … on the 6th of February 2018, whether it be at [Moore’s] house, this is before you went to [the deceased’s], whether it be in the car trip on the way over to [the deceased’s], or whether you were at the front door, you don’t see [Moore] with a knife, do you?---No. I did not.…But one thing’s for sure, you never saw [Moore] with a knife back at … at his house, that is before you went there?---That’s correct. I didn’t see him - - -You never saw him get a knife?---No.There was no discussion about taking a knife?---No.He didn’t produce the knife in the car?---No.And he didn’t produce the knife at the front door?---No.”[15]AB 644 lines 11-30.Background The essential background facts were not in dispute on the appeal. They are drawn from the decision of the learned trial judge.[16][16]R v Moore; Tracey [2022] QSC 35. The appellant was the ex-partner of the deceased. Together they had a child, whom I shall refer to as CWX. She and Moore were well known to each other, having been in a relationship from 2011/2012 until mid-2017. They shared twin girls who were born in early 2013. It was accepted before this Court that the nature of the relationship between the appellant and the deceased was accurately summarised in the appellant’s and respondent’s outlines.[17][17]Outline paragraphs 7, 11; respondent’s outline paragraphs 15-17, 19. The appellant and the deceased had previously been in a relationship; they were married in November 2011 and had CWX in February 2012. They were divorced in late 2012 or early 2013 but resumed a relationship in around June or July of 2017, and the deceased moved back in with the appellant. The appellant gave evidence of domestic violence over the course of her relationship with the deceased. However, she also described him as “an awesome father” to CWX. She said that when he was not taking alcohol or drugs, “he was great”, but he became aggressive when he was using those substances. The appellant and the deceased would share custody of CWX without the necessity of a formal agreement. The appellant had primary custody, however, the deceased’s father said the deceased had CWX “nearly every weekend”. Thus, the appellant was comfortable with the deceased having sole temporary custody of her child and facilitating the contact. She needed to do so because the deceased did not have a car or license. He would sometimes rely on his father to pick up CWX. It was necessary for the appellant to transport him and CWX when required. The appellant resided on Russell Island. The deceased was in a unit at Wynnum West. She described how it might take “hours” for him to travel to her to collect CWX. He would need to catch “trains, buses, ferries”. The relationship between the appellant and the deceased ceased in January 2018. After she left the deceased, the appellant spoke to Moore about the abuse. A text message exchanged between Moore and the appellant in January 2018 confirms Moore knew the deceased had been beating and controlling the appellant.

Evidence

Evidence Before The Court

The appellant planned to take CWX and run away. She would do so even in the circumstances where her father was terminally ill, and she would forfeit care of her other children. This would remedy her exposure to the deceased’s abusiveness.Evidence of domestic violence The following summary is taken from the appellant’s outline.[19] It was not the subject of criticism by the respondent. For the purposes of this appeal it may be accepted as an accurate summary of the appellant’s evidence on this point.[19]Paragraphs 8-10. The first time the appellant had experienced aggression by the deceased was in around 2011, when he was verbally aggressive, which she linked to his drinking or drug use. The appellant described having rung the police on a number of occasions. Sometimes the police arrested the deceased and took him away, but he would be released a few hours later and be back at her house, knocking on the door, with aggression. After the appellant and the deceased had resumed their relationship in 2017, the appellant described that the relationship “was great”, but in around September or October 2017, the appellant became aggressive. The appellant described a number of acts of physical violence against her by the deceased in the ensuing period. There was an occasion where the appellant was sitting on the lounge chair watching TV and the deceased had come up and put a pillow over her face. The appellant also described a number of occasions, inferentially in the latter half of 2017, where she had been choked by the deceased. On the first occasion, the deceased, whilst intoxicated, had pinned her down on the ground and sat on her chest and started choking her. On another occasion the appellant was choked and bashed by the deceased, again after he had been drinking, in October of 2017. As a result, she suffered two black eyes, her nose was sensitive to the touch, and she had various bruises on her chest, neck and shoulders. The appellant did not report the abuse to police or seek medical treatment because she did not want the deceased to go to jail. The appellant described that before her relationship with the deceased ended the acts of aggression or violence were occurring almost every second day. She described being pushed into the wall and having been held up against the wall by her throat, and other times where he would push her to the ground and start choking her. The appellant also described an occasion when the deceased had been sitting at the kitchen bench, playing with a knife, and banging it in between his fingers, and he said, “Last time you left me, I thought about killing you”.The appeal Counsel for the appellant[20] acknowledges that no direction on this matter was sought by either prosecution or defence counsel at trial.[21] However, the appellant contends—and the respondent concedes—that this failure did not obviate the need for a direction on this matter if it fairly arose on the evidence.[22] The dispute on appeal was thus confined to whether the partial defence under s 304B of the Code arose on the evidence.[23][20]Counsel on the appeal was not the trial Counsel; on the appeal Ms O’Connor and Mr Drew appeared for the appellant pro bono.[21]Appellant’s outline, [3].[22]Appellant’s outline, [3]; Respondent’s outline, [1]. This is plainly true: R v Ngakyunkwokka [2023] QCA 85, [71].[23]Appellant’s outline, [3]; Respondent’s outline, [1].Supplementary point

Decision

Reasons for decision

In such a case, it is the fairness of the process which is in question, not the wisdom of the step taken.[86] The deliberate step taken by the appellant did not render the trial unfair. Further, for the reasons developed on the other considerations, in paragraphs [82] to [112] above, the trial process was fair.[86]Nudd v The Queen [2006] HCA 9, per Gleeson CJ at [8]-[9].Conclusion In my view, it cannot be demonstrated that there was a miscarriage of justice by the learned trial judge’s failure to direct on a s 304B defence. The primary reason for that conclusion is that the defence did not arise on the evidence adduced. Even if that conclusion was in error, I am unable to conclude that, in the circumstances dealt with above, the failure to direct was “prejudicial in the sense that there was a ‘real chance’ that it affected the [judge’s] verdict ... or ‘realistically [could] have affected the verdict of guilt’ ... or ‘had the capacity for practical injustice’ or was ‘capable of affecting the result of the trial’”.[87][87]To adopt what was said in HCF v The Queen [2023] HCA 35 at [2]. I would therefore order:1.The appeal is dismissed. CALLAGHAN J: I agree with Morrison JA that the appeal must be dismissed. My reasons differ. I do not believe that s 304B of the CriminalCode applies to a defendant who is not “the person” who commits the act of killing. Section 304B furnishes a tight trilogy of ss 304, 304A and 304B that operate to identical effect. They reduce criminal liability for an act that would otherwise be condemned in terms as serious as is allowed by our law and be met with mandatory imprisonment for life. Each section addresses a different situation, but s 304 and s 304B have something in common. They offer this “partial defence” when there is a link between a “passion” or a “belief” and the performance of a fatal act. They offer it on the basis that, in extreme circumstances, any person may be driven to extreme conduct. They acknowledge human emotions that, depending upon the offence given, indignity endured or pain anticipated, may accumulate until a breaking point is reached. They reflect the principle[88] that, for the purposes of the criminal law, no one is expected to be wiser or better than all humanity.[88]Endorsed by Sir Samuel Griffith in his note to s 29 of the Draft Criminal Code, (see, now, s 25). Such quintessentially human concerns demand an examination of an individual’s state of mind.[89][89]For s 304 “the heat of passion”; for s 304A, an “abnormality” which is a “particular quality” that will be unique to an individual; for s 304B, a belief. The words of the section indicate that it should operate only in favour of the individual whose mind is being examined. The section applies:(a)to “a person”;(b)specifically, to a person who “kills”;(c)its application is predicated on a belief held by that person;(d)the belief must be sourced to grounds that arise out of a relationship[90] to which that person was a party; and(e)it is that belief which makes it necessary for that person to do the act which causes death – the need for a link between the “belief” (which can be held by only one person) and the “doing” is inescapable.[90]And all the circumstances of the case.

Ratio Decidendi

Legal Principle Established

The respondent stressed that the liability of the “person” emphasised in the quoted section at paragraph [52] above is pursuant to s 7(1)(a) of the Code as the person that “actually did the act”.[33] Relying on O’Dea v State of Western Australia,[34] the respondent submitted that s 7 distributes liability as between the person who “actually does the act” (s 7(1)(a)), and persons charged under the remaining subsections,[35] whose liability depends on the person referred to in s 7(1)(a) having actually committed the act which constitutes the offence.[33]Respondent’s supplementary submissions, [7].[34](2022) 273 CLR 315, 338 (Gordon, Edelman and Steward JJ).[35]Sections 7(1)(b), (c), and (d) the Code.Consideration In construing s 7 one must first read the definition of “offence” into s 7(1):7Principal offenders(1)When an act or omission which renders the person doing the act or making the omission liable to punishment is committed, each of the following persons is deemed to have taken part in committing the act or omission which renders the person doing the act or making the omission liable to punishment and to be guilty of the offence, and may be charged with actually committing it, that is to say—(a) every person who actually does the act or makes the omission which constitutes the act or omission which renders the person doing the act or making the omission liable to punishment;(b) every person who does or omits to do any act for the purpose of enabling or aiding another person to commit the act or omission which renders the person doing the act or making the omission liable to punishment;(c) every person who aids another person in committing the act or omission which renders the person doing the act or making the omission liable to punishment; … Section 304B has been set out at paragraph [46] above. What follows in paragraphs [56]-[59] below is the literal construction of s 304B before account is taken of s 7(1)(b) and (c). Where s 304B(1) uses the phrase “unlawfully kills”, it is speaking of the act itself, not the offence. Thus the “person who unlawfully kills” is the person who actually does the act. That is the person referred to in s 7(1)(a).[36][36]O’Dea v Western Australia (2022) 273 CLR 315; [2022] HCA 24, at [67]–[69], [76]. Section 304B is only engaged where “the deceased has committed acts of serious domestic violence against the person in the course of an abusive domestic relationship”.[37] The person referred to in s 304(1)(a) is the person who “unlawfully kills”; i.e. actually does the act of killing. In this situation, that is Moore. If serious domestic violence has not been inflicted on that person, s 304B is not engaged.[37]Section 304B(1)(a) the Code. Further, s 304B only applies where a state of belief is held by “the person”,[38] which is again a reference to the person who actually did the unlawful killing. That person must believe that it is necessary for their preservation from death or grievous bodily harm to do the act; i.e. the act of unlawfully killing.[38]Section 304B(1)(b) the Code.