2.Set aside Order 2 of the orders of the Court of Appeal of the Supreme Court of Queensland made on 6 April 2004 and, in place thereof, order that the conviction be quashed and that there be a new trial.
On appeal from the Supreme Court of Queensland
Representation:
B W Walker SC with N J Macgroarty for the appellant (instructed by Robertson O'Gorman)
L J Clare for the respondent (instructed by Director of Public Prosecutions (Queensland))
Notice: This copy of the Court's Reasons for Judgment is subject to formal revision prior to publication in the Commonwealth Law Reports.
CATCHWORDS
Stevens v The Queen
Criminal law – Unlawful killing – Murder – Accident – Counsel for defence requested direction on defence of accident at trial – Whether trial judge erred in declining to direct jury on defence of accident – Whether defence of accident open on the evidence – Whether jury should have been instructed that appellant could not be convicted unless prosecution had satisfied jury beyond reasonable doubt that the operation of s 23 of the Criminal Code (Q) had been excluded – Relationship between defence of accident and murder – Whether defence of accident inconsistent with conviction of murder – Relationship between defence of accident and manslaughter.
Criminal law – Unlawful killing – Manslaughter – Case left to jury on basis that only available verdicts were guilty or not guilty of murder – Whether manslaughter should have been left to the jury – Whether manslaughter was open on the evidence.
Criminal law – Conviction – Whether substantial miscarriage of justice occurred as a result of trial judge's failure to give directions on accident.
Statutes – Statutory construction – Criminal Code (Q).
Words and phrases – "accident", "event".
Criminal Code (Q), ss 23, 24, 25, 289 and 668E(1A).
GLEESON CJ AND HEYDON J. The question for decision in this appeal is whether the trial judge (Helman J) sufficiently explained to the jury the issues which they had to resolve in deciding whether the appellant was guilty of the murder of Murray Brockhurst ("the deceased"). Those, of course, were issues of fact. The identification of those issues involved a consideration by the judge of the relevant legal principles. Those principles were to be found in the Criminal Code Act 1899 (Q) ("the Code"), but it is not suggested that the judge should have read parts of the Code to the jury. Indeed, he did not mention that statute by name. He simply referred, from time to time, to "the law", in the course of explaining the issues that arose from the charge against the appellant, the plea of not guilty, the evidence, and the competing arguments at trial. The appellant maintains that the explanation was deficient. The deficiency is said to arise from a consideration of…
Grounds of appeal
[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.
[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.
[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.
Consideration
[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.
[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.
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AGLC
Stevens v The Queen [2005] HCA 65
Case
[2005] HCA 65
Decision Date
CaseChat Overview and Summary
The High Court of Australia heard an appeal by Laurie Stevens against his conviction for the murder of his business partner, Murray Brockhurst. The deceased died from a gunshot wound to the head during an incident at their shared business premises. The appeal concerned the trial judge's refusal to direct the jury on the defence of accident under section 23 of the *Criminal Code* (Qld) and the availability of a manslaughter verdict.
The central legal issues before the High Court were whether the trial judge erred in declining to instruct the jury on the defence of accident, and whether this defence was open on the evidence presented. Relatedly, the court considered whether the jury should have been instructed that a conviction for murder required the prosecution to exclude the operation of section 23 of the *Criminal Code*. The court also had to determine if a verdict of manslaughter should have been left to the jury, and if the failure to provide these directions constituted a substantial miscarriage of justice.
The High Court allowed the appeal, finding that the defence of accident was indeed open on the evidence. The court reasoned that the appellant's own statements and the expert evidence regarding the firearm's propensity to discharge upon impact supported the possibility that the gun discharged independently of the appellant's will. This meant that the jury should have been given the opportunity to consider this defence. Furthermore, the court determined that the circumstances could have supported a verdict of manslaughter, particularly if the jury found the discharge of the weapon was not intentional but resulted from negligence. The court concluded that the failure to direct the jury on these matters resulted in a substantial miscarriage of justice.
Consequently, the High Court ordered that the appeal be allowed, the conviction be quashed, and that there be a new trial.
Orders
Orders of the court
1. Appeal allowed.
2. Set aside Order 2 of the orders of the Court of Appeal of the Supreme Court of Queensland made on 6 April 2004 and, in place thereof, order that the conviction be quashed and that there be a new trial.
Background
Background to the litigation
The ground of appeal argued before this Court is established. The appeal must be allowed and a new trial ordered.The facts Relationships of those involved:The facts relevant to this appeal were not contested[24]. On 28 April 2003, Mr Laurie Stevens (the "appellant") was convicted at a second trial[25] of the murder of Mr Murray Brockhurst (the "deceased"). The deceased was a business partner of the appellant. His death occurred on 22 June 2000 as a result of a gunshot wound to his head. The shooting occurred at the premises of a company trading as Australian Carbide Saws ("ACS") in Newmarket, Brisbane. That company was run by the appellant and the deceased. The business relationship between the appellant and the deceased was complex, and the precise details were not altogether clear. However, evidence was adduced at trial that the appellant and the deceased were in the process of negotiating a restructuring of their relationship, with the proposed outcome being an effective separation. Furthermore, immediately before his death, and without giving the appellant prior notice, the deceased had purchased an interest in another business, Stotts Saws. That purchase was settled an hour or so before the deceased died. Stotts Saws was in a position to compete with ACS[26]. [24]Facts further to those contained in my reasons appear in the reasons of Callinan J at [96]-[136]. [25]The jury in the first trial were unable to agree on their verdict: R v Stevens [2004] QCA 99 at [3].[26]Reasons of Callinan J at [102]. The appellant was aged 46 and the deceased 32 at the time of the deceased's death. According to the evidence, they enjoyed a cordial relationship, socialising away from work and sometimes fishing, diving and holidaying together. Six weeks before his death, the deceased had been the master of ceremonies at the wedding of one of the appellant's daughters[27]. However, the evidence showed that between 1995 and 1996, the deceased had engaged in an intimate affair with another of the appellant's adult daughters. The affair was briefly resumed in 1998. The evidence suggested that the deceased had wanted to continue the relationship but without avail[28]. He had resumed living with his wife whilst declaring his love for the appellant's daughter[29]. The attitude of the appellant to this relationship was not disclosed. [27][2004] QCA 99 at [21].[28][2004] QCA 99 at [48].[29][2004] QCA 99 at [49]. Circumstances of the death: Late on the afternoon of his death, the deceased had a meeting in his office at the business premises with two friends. He was described as being in a happy mood[30]. His widow confirmed that impression stating that, in a telephone conversation during the afternoon, the deceased had reported the settlement of the purchase of the new business declaring "this is the best day of my life"[31]. Nevertheless, the widow agreed that the deceased was preoccupied about informing the appellant that he had decided to go his separate way.[30][2004] QCA 99 at [25].[31][2004] QCA 99 at [23].
Evidence
Evidence Before The Court
Davies JA was of a different opinion from the President. His Honour said that no occasion had arisen for a direction that manslaughter was available as an alternative verdict under s 289 of the Criminal Code. His Honour said[114]:[114]R v Stevens [2004] QCA 99 at [76]-[83]."On the appellant's evidence and statements the defence of accident was clearly open; that the gun discharged independently of the exercise of his will. On the prosecution circumstantial evidence a verdict of murder was open. On neither, in my opinion, was manslaughter open. When asked what kind of a grip he got of the gun, the appellant answered:'Certainly not enough to hold on to the gun, because as Murray went over he's pulled the gun over with him, but I lunged out – I was very quick – I mean, I was I lunged out and I would have whacked into the gun and tried to grab it.'He made similar statements in his record of interview and in an unsigned statement.In view of the learned President's conclusion, on the basis of the point which her Honour raised in argument, that the learned trial judge should have directed on manslaughter by reason of s 289 of the Criminal Code, it should be noted that there was no possible basis on the appellant's evidence or statements to police for a contention that the appellant was at any relevant time in charge of or in control of the gun within the meaning of s 289. That section provides:'It is the duty of every person who has in the person's charge or under the person's control anything ... of such a nature that, in the absence of care or precaution in its use or management, the life, safety, or health, of any person may be endangered, to use reasonable care and take reasonable precautions to avoid such danger, and the person is held to have caused any consequences which result to the life or health of any person by reason of any omission to perform that duty.'In my opinion that section can have application only where, on the evidence, there is a possible basis for saying that immediately before the gun discharged it was in the appellant's charge or under his control and that it discharged, killing the deceased because of the appellant's negligence. I have already pointed out, that on the appellant's case, there was no evidence on which the first of such inferences could be drawn.It was possible to infer from the circumstantial evidence that the appellant entered the deceased's office in charge of and in control of the gun. But there was no evidence from which it could have been inferred that, whilst in his charge and control, the gun was operated negligently. To use Dr Vallati's evidence, that the gun could discharge if hit, to reach such a conclusion is no more than speculation. There was no evidence, direct or circumstantial from which negligent operation of the gun by the appellant could have been inferred.This case may be distinguished from a case such as Griffiths v The Queen[115]. In that case the defence of accident was raised in the evidence. It was in one of the appellant's confessional statements upon which the prosecution relied to prove that the appellant shot the deceased. Moreover Griffiths was not merely a case of failing to direct on a possible defence but of effectively withdrawing from the jury an issue arising under s 23 of the Criminal Code[116]. Nor do I think that this was a case in which, on some basis other than s 289, a direction should have been given that manslaughter was a possible verdict. On the appellant's case based on his evidence and statements, he did not, except by an act independently of his will, cause the gun to discharge. On the prosecution's circumstantial case he caused the gun to discharge with the intention of killing the deceased. There was no evidence upon which, on any rational basis, it could have been concluded that the appellant intentionally discharged the gun but not with the intention of killing the deceased or causing him grievous bodily harm.For those reasons I disagree with her Honour's conclusion that, because of the learned trial judge's failure to direct the jury on a possible verdict of manslaughter, the trial miscarried. I would, accordingly, dismiss the appeal." (Original emphasis)[115]Griffiths v The Queen (1994) 69 ALJR 77 at 79, 81; 125 ALR 545 at 547-548, 550.[116]Griffiths v The Queen (1994) 69 ALJR 77 at 79; 125 ALR 545 at 547-548.
Decision
Reasons for decision
GLEESON CJ
HEYDON J
HUGH J
KIRBY J
(dissent)
The trial judge declined to give such a direction. His reasons, expressed in an exchange with counsel, are not entirely clear[46]. In part, it seems that they turned on his interpretation of the facts and the legal categories of the Code apt to his classification of the facts. In part, it seems that they followed from his understandable desire to pose for the jury, in as clear a way as possible, the choice they had between the interpretation of events respectively urged by the prosecution and the appellant. In part, it was because he considered that s 23(1)(b) of the Code "is more directed to an intentional act with an accidental event". In the end, he did not give the requested direction. [46]The relevant passages of transcript appear in the reasons of Callinan J at [137]. The decision of the Court of Appeal Appellate issues and dissent:Following the jury's verdict of guilty and the conviction and sentencing of the appellant, Mr Stevens appealed to the Court of Appeal. One of his three grounds of appeal, as filed, was that the trial judge had erred in ruling that s 23(1)(b) of the Code was not available and in declining to direct the jury on its application. However, as already stated, when the appeal was argued before the Court of Appeal, that ground was not pressed in oral submissions. It seems to have arisen in the reasoning of the Court of Appeal because of a concern of McMurdo P that the jury should have been directed on an alternative verdict of manslaughter, based on s 289 of the Code. That section is addressed to the duty of a person having charge or control of anything "of such a nature that, in the absence of care or precaution in its use or management, the life, safety, or health, of any person may be endangered". In such a case, s 289 imposes a duty "to use reasonable care and take reasonable precautions to avoid such danger". It renders the person responsible for having "caused any consequences which result to the life or health of any person by reason of any omission to perform that duty". Where applicable, it provides a basis for a verdict of guilty of manslaughter[47].[47]See the Code, ss 291, 293, and 303. In the Court of Appeal, McMurdo P saw the issue of directions on s 23(1)(b) as interrelated with what she perceived as the qualification presented by s 289[48]. She considered that there was "slight but sufficient evidence to raise the defence of accident"[49]. She noted that such a direction had been sought at trial. She considered that it was specifically supported by the evidence of Dr Vallati, as to the tendency of the rifle to discharge with "a mere hit with the hand."[50] She concluded that an intermediate position was available "that during the course of an argument over their business arrangements, the appellant had hold of his loaded gun, which may well have been prone to unsafe discharge when hit with the hand, and it discharged, without intention on his part, killing the deceased."[51] Such an interpretation of events would support a verdict of manslaughter through criminal negligence.[48][2004] QCA 99 at [70].[49][2004] QCA 99 at [68]. See reasons of Callinan J at [145].[50][2004] QCA 99 at [68].[51][2004] QCA 99 at [69].