Pickering v The Queen [2017] HCA 17

In Pickering v The Queen,¹ the primary issue on appeal to the High Court was whether the trial judge erred by failing to leave the possible application of the s 31(1) defence (known as ‘compulsion’) in s 31(1)(c) of the Criminal Code Act 1899 (Qld) to the jury, thereby causing a miscarriage of justice. Pickering is a significant High Court decision on the operation of s 31, particularly the excuse of resisting unlawful violence under s 31(1)(c) and the scope of the exclusions in s 31(2).

COURT: High Court of Australia (Kiefel CJ, Gageler, Nettle, Gordon and Edelman JJ).

PARTIES: Pickering (Appellant); The Queen (Respondent).

PROCEDURAL HISTORY: On appeal from the Queensland Court of Appeal.

• In the Supreme Court of Queensland, Pickering was tried for murder under s 302 of the Criminal Code Act 1899 (Qld) (‘Criminal Code‘).² He was acquitted of murder but convicted of manslaughter.³
• The Queensland Court of Appeal dismissed Pickering’s appeal against conviction on the sole ground that a miscarriage of justice had occurred as s 31(c) was not left to the jury.⁴ The Court ruled s 31(1)(c) defence unavailable due to s 31(2)’s exclusion for GBH offences, irrespective of whether such an offence had actually been charged.⁵ Special leave was granted by the High Court.

FACTS:

1. The appellant, and the deceased (best friends), argued while drinking at a hotel.⁶
2. After returning home, the appellant took a fishing knife and searched for his missing son.⁷
3. The appellant entered a yard where the deceased approached him aggressively alongside another man.⁸ He claimed the deceased charged at him, resulting in a struggle during which the deceased ended up on top of him and was subsequently stabbed in the chest.⁹ The fatal wound required only moderate force due to the knife’s sharpness.¹⁰
4. The appellant maintained that he acted in order to resist actual and unlawful violence.¹¹

GROUNDS FOR APPEAL:

Failure to leave s 31(1)(c) to the jury:

The appellant argued that a miscarriage of justice had occurred because the defence in s 31(1)(c) of the Criminal Code had not been left for the jury’s consideration.¹² Section 31(1)(c) provides that a person is not criminally responsible for an act that is reasonably necessary to resist actual and unlawful violence threatened to the person:¹³

(1) A person is not criminally responsible for an act or omission, if the person does or omits to do the act under any of the following circumstances …
(c) when the act is reasonably necessary in order to resist actual and unlawful violence threatened to the person …¹⁴

The appellant submitted that the evidence, including the alleged charge by the deceased and the ensuing struggle, was capable of raising this excuse and therefore required a jury direction.

Misinterpretation of s 31(2):

The appellant also argued that the Court of Appeal erred in concluding that s 31(2) of the Criminal Code was not confined to the offence charged and any alternative offence established by the evidence.¹⁵ Section 31(2) excludes the protection where the act would constitute murder or an offence involving grievous bodily harm or an intention to cause such harm is an element:¹⁶

(2) However, this protection does not extend to an act or omission which would constitute the crime of murder, or an offence of which grievous bodily harm to the person of another, or an intention to cause such harm, is an element …¹⁷

The appellant contended that the Court of Appeal wrongly applied s 31(2) to exclude reliance on s 31(1)(c) even though the Crown case and the evidence did not establish an intention to cause GBH.

ISSUES:

1. Whether the trial judge erred by failing to leave the possible application of s 31(1)(c) to the jury, resulted in a miscarriage of justice?
2. Whether s 31(2) excluded reliance on s 31(1)(c) in the circumstances where the fatal act was committed in the course of attempting to avoid or escape the deceased’s unlawful violence?

COURT’S REASONING:

Kiefel CJ and Nettle J:

Chief Justice Kiefel and Justice Nettle in joint judgment explained ss 31(1) and 31(2) (at [7]):

The purpose of s 31(1) and (2) is clear. Section 31(1) provides exculpation to a person who would otherwise be criminally responsible under the Code for an act or omission in the circumstances there specified. Section 31(2) excepts from s 31(1) certain offences. If the offence for which a person would be criminally responsible is one to which s 31(2) applies, that provision maintains the person’s criminal responsibility.¹⁸

Kiefel CJ and Nettle J noted that it was not disputed before the Court of Appeal¹⁹ that s 31(1)(c) was fairly raised on the evidence at trial unless it was excluded by s 31(2), and that no direction was given by the trial judge on either provision.²⁰ Their Honours summarised the construction adopted by the Court of Appeal, as it applied to the appellant’s case (at [19]):

The relevant “act” in s 31(1)(c), for which the appellant sought protection in relation to the offence of manslaughter, was the appellant’s act of stabbing the deceased in the way he did. Grievous bodily harm was an element of the offence of unlawfully doing grievous bodily harm. There was no doubt, on the medical evidence, that the injuries inflicted by the appellant amounted to grievous bodily harm. It followed, in the terms of s 31(2), that the appellant’s act of stabbing the deceased was an act that would constitute the offence of unlawfully doing grievous bodily harm. Therefore s 31(2) operated to exclude the protection under s 31(1)(c). It did not matter that the deceased died of his injuries and the appellant was charged with murder and convicted of manslaughter.²¹

Kiefel CJ and Nettle J reinforced the distinction between the physical ‘act’ (in this case, the act of stabbing rather than the physical harm) and its consequences (relying on Kaporonovski v The Queen,²² rejecting the Court of Appeal’s broader view that would exclude the excuse based on hypothetical uncharged offences (at [22]–[23]).²³ Kiefel CJ and Nettle J stated at [23]:

Section 31(2) relevantly excepts from the exculpatory provisions of s 31(1) murder and those offences of which grievous bodily harm is an element. The only reference to “an act” is that which constitutes the offence of murder. In terms, s 31(2) is not concerned with an act having a particular “quality” which is to be discerned from its consequences. The inquiry is directed to whether the offence in question is either murder or an offence of which grievous bodily harm is an element. Manslaughter is not one of those offences.²⁴

On a proper construction of s 31(2), Kiefel CJ and Nettle J noted (at [25]) that ‘[t]he definition of an offence determines its elements’, citing Kaporonovski v The Queen,²⁵ where McTiernan ACJ and Menzies J held (at 217):

Prima facie an offence of which an assault is an element means an offence which is not committed unless there be an assault, for it is the definition of an offence which determines its ‘elements’.²⁶

Kiefel CJ and Nettle J further noted (at [26]) that ‘[m]anslaughter is defined by s 303 as “unlawfully kill[ing] another under such circumstances as not to constitute murder”. Unlawful killing refers to causing death without authorisation, justification or excuse. Critically, grievous bodily harm is not an element of manslaughter’.²⁷ Kiefel CJ and Nettle J ultimately held (at [27]):

Because s 31(1) and s 31(2) are concerned with an act for which a person may be criminally responsible, the offence to which those provisions refer is that with which an accused is charged or a lesser included offence of which the accused may be convicted. Properly construed, therefore, s 31(2) relevantly provides that if, but for s 31(1), the offence charged or a lesser included offence of which the accused is liable to be convicted is murder or one of which grievous bodily harm is an element, the accused cannot be excused under s 31(1)(c) from the act constituting the offence.²⁸

Gageler, Gordon and Edelman JJ:

According to Gageler, Gordon and Edelman JJ (at [36]) the correct construction of s 31(2) is that it applies to an act only where the accused has been charged, in relation to that act, with an offence of the kind described in s 31(2) and seeks to invoke s 31(1) to deny criminal responsibility for that charge.²⁹ Their Honours observed (at [47]):

Moreover, “[f]or more than a hundred years, judges in all Australian jurisdictions, and in England, have observed that, of all serious offences, manslaughter attracts the widest range of possible sentences”.³⁰ That observation reflects the fact that the culpability of persons convicted of manslaughter varies widely depending on the circumstances. The proper construction of s 31 allows for the possibility that a person charged with manslaughter, whose culpability was very low, could be absolved of criminal responsibility under s 31(1).³¹

Their Honours held that the appeal should be allowed, concluding that the protection in s 31(1)(c) was available to the appellant in relation to manslaughter, being a statutory alternative to the offence charged (at [55]).³² Their Honours agreed with the orders proposed by Kiefel CJ and Nettle J.³³

RATIO:

The ratio decidendi is that s 31(2) of the Criminal Code limits s 31(1) only in relation to the offence charged or a statutory alternative verdict available on the indictment, and not based on whether the act could constitute a separate, uncharged offence such as unlawfully doing grievous bodily harm.³⁴ As manslaughter (defined under s 303 as unlawfully kills another under in such circumstances as not to constitute murder)³⁵ does not have grievous bodily harm as an element, s 31(1)(c) remains available if raised by the evidence.³⁶

DECISION AND ORDER:

The High Court unanimously allowed the appeal (Kiefel CJ, Gageler, Nettle, Gordon and Edelman JJ). It held that a miscarriage of justice had occurred because the trial judge failed to direct the jury on s 31(1)(c),³⁷ as the evidence was capable of raising that excuse. The Court of Appeal misconstrued s 31(2) by applying it too broadly. The High Court quashed the conviction, set aside the decision of the Queensland Court of Appeal, and ordered a new trial.³⁸

SIGNIFICANCE:

Pickering v The Queen [2017] HCA 17clarifies when a trial judge must leave s 31(1)(c) to the jury and how s 31(2) interacts with the offences disclosed by the evidence. The decision reinforces the principle that a jury must be permitted to consider any defence or excuse that is fairly raised on the evidence. This decision is now the leading authority on the operation of s 31 of the Criminal Code in Queensland.

FOOTNOTES:

1. Pickering v The Queen [2017] HCA 17 (‘Pickering‘). ↩︎
2. Ibid [1]. ↩︎
3. Ibid; R v Pickering [2016] QCA 124 (‘R v Pickering‘). ↩︎
4. Pickering (n 1) [34]. ↩︎
5. R v Pickering (n 3); High Court of Australia, Rodney Peter Pickering v The Queen [2017] HCA 17 (Judgment Summary, 3 May 2017) <https://www.hcourt.gov.au/> (‘Pickering Summary‘). ↩︎
6. Pickering (n 1) [4]. ↩︎
7. Ibid. ↩︎
8. Ibid [5]. ↩︎
9. Ibid. ↩︎
10. Ibid [6]. ↩︎
11. Ibid. ↩︎
12. Ibid [28]. ↩︎
13. Criminal Code Act 1899 (Qld) s 31(1)(c) (‘Criminal Code‘). ↩︎
14. Ibid. ↩︎
15. Pickering (n 1) [30]; Pickering Summary (n 5). ↩︎
16. Criminal Code (n 13) s 31(2). ↩︎
17. Ibid s 31(1)(c). ↩︎
18. Pickering (n 1) [7] (Kiefel CJ and Nettle J). ↩︎
19. R v Pickering (n 3) [9] (Court of Appeal). ↩︎
20. Pickering (n 1) [8], [35]. ↩︎
21. Ibid [19]. ↩︎
22. Kaporonovski v The Queen (1973) 133 CLR 209, 231, 241 (‘Kaporonovski‘). ↩︎
23. Pickering (n 1) [22]–[23]. ↩︎
24. Ibid [23]. ↩︎
25. See Kaporonovski (n 22). ↩︎
26. Kaporonovski (n 22) 217. ↩︎
27. Pickering (n 1) [26]; Criminal Code (n 13) ss 291, 293. ↩︎
28. Ibid [27]. ↩︎
29. Ibid [36]. ↩︎
30. R v Lavender (2005) 222 CLR 67, 77 [22]. ↩︎
31. Pickering (n 1) [47]. ↩︎
32. Ibid [55]. ↩︎
33. Ibid [56]. ↩︎
34. Ibid [1], [4] (Kiefel CJ and Nettle J); Criminal Code (n 13) s 320. Under s 320(1) of the Criminal Code: ‘Any person who unlawfully does grievous bodily harm to another is guilty of a crime, and is liable to imprisonment for 14 years’. ↩︎
35. Criminal Code (n 13) s 303. ↩︎
36. Pickering (n 1) [1], [4] (Kiefel CJ and Nettle J). ↩︎
37. Ibid [55]. ↩︎
38. See Pickering (n 1). ↩︎

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