Pickering v The Queen

The High Court has allowed an appeal against a decision of the Queensland Court of Appeal on whether part of a general defence of compulsion is available for the crime of manslaughter under Queensland’s criminal code. During a fight with his best friend, Pickering produced a knife and warned the deceased to stay away from him. The deceased charged at him and during the scuffle Pickering’s knife stabbed and killed the deceased. A jury acquitted him of murder, but convicted him of manslaughter. The QCA rejected Pickering’s arguments that the trial judge should have directed the jury on the general defence of reasonably resisting violent threats (known as ‘compulsion’) in s 31(1)(c) of the Criminal Code 1899 (Qld), and not just the narrower defence of self-defence in s 271. Section 31 provides that a person is not criminally responsible for an act or omission when it is reasonably necessary to resist actual and unlawful violence threatened to that person, though the protection does not extend to actions which would constitute murder ‘an offence of which grievous bodily harm to the person of another, or an intention to cause such harm, is an element …’. The QCA held that compulsion could not apply to manslaughter by stabbing because of the general exclusion of crimes involving grievous bodily harm.

The High Court unanimously allowed the appeal, quashed the appellant’s conviction and ordered that a new trial be had. After outlining the QCA’s reasoning (at [14]–[19]) that the exclusion applied to acts rather than the specific requirements of the offences charged (that is, the act of stabbing the deceased would constitute the offence of unlawfully doing grievous bodily harm, and s 31(2) operated despite him being charged with murder and convicted of manslaughter), Kiefel CJ and Nettle J made several criticisms of this approach. First, it extends the focus beyond the physical acts that relate to the offence charged to the consequences of that act: while the phrase ‘grievous bodily harm’ is often used as shorthand for the offence of unlawfully doing grievous bodily harm, it is a consequence, rather than a description or quality, of the act underlying the offence (at [20]). Secondly, other sections in the Code dealing with excusing criminal responsibility focus on acts relating to offences rather than consequences, harms or qualities of those consequences or harms (see [21]–[23]). Finally the QCA’s broadening of the operation beyond murder to other offences went against the construction of the section: the phrase ‘act … which would constitute the crime of murder’ simply means that but for s 31(1) the act would be murder and the accused would be criminally responsible for it: ‘The words “which would constitute” are syntactically unconnected to the other offences identified in s 31(2). The effect of s 31(2) is thus to maintain that criminal responsibility only for murder and the other offences to which it refers, by withdrawing those offences from the operation of s 31(1).’ (at [24]). Turning to the conviction here, Kiefel CJ and Nettle J noted that, critically, grievous bodily harm is not an element of manslaughter in the Code (at [26]), ultimately holding, at [27] that

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.

Finally, their Honours turned to policy questions. Kiefel CJ and Nettle J noted that while s 31(2) may produce some seemingly anomalous results (namely, not applying to manslaughter but applying to grievous bodily harm, which carries a lesser maximum sentence), manslaughter can be committed in a wide variety of circumstances, ranging from conduct tantamount to murder to accidental killing due to momentary inattention, and it is not illogical for a legislature to have placed manslaughter within the compulsion provision (at [29]), and an accused should not be denied the benefit of that possible defence because the injury inflicted would also amount to grievous bodily harm (at [30]).

Gageler, Gordon and Edelman JJ also allowed the appeal and agreed with Kiefel CJ and Nettle J’s orders on quashing the conviction and ordering a new trial. Their Honour held that the proper construction of s 31(2) was that it applied to an act only if the accused had been charged in relation to that act with an offence of the kinds described in s 31(2), and s 31(1) may be available in relation to any other offence charged or available as an alternative verdict (at [36]). The joint judges emphasised the conditional wording of s 31(2). It is directed at acts which ‘would constitute’ an offence described (not ‘does constitute’) (at [41]), and where an accused seeks to invoke the protection in s 31(1) so that his or her act does not constitute an offence, the question becomes ‘would that act constitute one of the offences described in s 3192) but for the operation of s 31(1)?’: at [42]. Contrary to the conclusions of the QCA, s 31(2) is ‘not directed to, or concerned with, whether the evidence discloses that the accused committed one of the described offences regardless of the charge’, and where a single act is alleged to constitute multiple offences (or statutory alternative verdicts are available), s 31(2) applies only to that act in relation to the offences described in it: here, it precludes s 31(1) operating in relation to the murder charge, but not the alternative of manslaughter: at [43]–[44]. Despite the QCA noting that this would be a ‘surprising’ result, their Honours noted that the force of this concern is reduced by recognising that first, many other offences not described in s 31(2) attract a higher penalty than the maximum for unlawfully doing grievous bodily harm, and secondly the frequent observation that manslaughter attracts the widest range of sentences, making it possible for a person charged with manslaughter with very low culpability to be absolved of responsibility under s 31(1): at [46]–[47]. The joint judges then turned to reject the Crown’s alternative construction — ‘that the relevant act would constitute one of the described offences if such an offence had been charged’ (at [48], emphasis in original) — because this reading was not supported by the text, context or purpose of s 31(2) (at [49]ff) and would create substantial practical difficulties in criminal trials if adopted (at [52]ff).

High Court Judgment [2017] HCA 17 3 May 2017
Result Appeal allowed
High Court Documents Pickering
Full Court Hearing [2017] HCATrans 50 9 March 2017
Special Leave Hearing [2016] HCATrans 280 16 November 2016
Appeal from QCA [2016] QCA 124 6 May 2016
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About Martin Clark

Martin Clark is a PhD Candidate and Judge Dame Rosalyn Higgins Scholar at the London School of Economics and Political Science and Research Fellow at Melbourne Law School. He holds honours degrees in law, history and philosophy from the University of Melbourne, and an MPhil in Law from MLS. While at MLS, he worked as a researcher for several senior faculty members, was a 2012 Editor of the Melbourne Journal of International Law, tutor at MLS and various colleges, a Jessie Legatt Scholar, and attended the Center for Transnational Legal Studies Program.

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