Pickering v the Queen [2017] HCA 17: Jury Directions

Today (3 May 2017), in the case of Pickering v The Queen [2017] HCA 17, the High Court has unanimously allowed an appeal from the Supreme Court of Queensland. The High Court found that with regards to the trial judge’s direction to the jury, a miscarriage of justice had occurred where the trial judge had failed to give adequate direction regarding s31(2) of the Queensland Criminal Code.

Background - At First Instance

The appellant was charged with murder and appeared before a judge and jury. Ultimately, the appellant was acquitted of murder and instead convicted of manslaughter in relation to the stabbing death of the deceased. The appellant appealed his conviction on the ground that the judge had not left a s31(1)(c) acquittal to the jury with regards to his alleged crime. Section 31(1)(c) of the Code provides that “a person is not criminally responsible for an act if the act is reasonably necessary in order to resist actual and unlawful violence threatened to the person.”

Court of Appeal in Queensland

The Court of Appeal agreed that s31(1)(c) was fairly raised on the evidence. However, the Court ruled that s31(1)(c) was not available to the appellant by operation of s31(2). Section 31(2) provides that the s31(1)(c) protection does not extend to an act which would constitute a 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. The Court ruled that the exception under s31(2) would apply if the offence in which the accused is seeking to avoid criminal responsibility constitutes an offence under s31(2) irrespective of whether or not the accused was charged with that offence. The Court reasoned that because the appellant had stabbed the deceased, this constituted an offence of unlawfully doing grievous bodily harm even though the appellant was not charged with it.

High Court

The High Court unanimously disagreed with the Court of Appeal. The High Court reasoned that s31(2) would only apply where the offence charged upon the appellant is an offence described in s31(2). Consequently, the High Court ruled that s31(1)(c) may be invoked as a defense to any other offences charged that does not fit under s31(2). Because the Queensland Code does not include the element of grievous bodily harm under the alternate verdict of manslaughter, s31(1)(c) was available to the appellant as a defense to the charge. The Court consequently quashed the conviction and ordered a new trial. 

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Pickering v The Queen [2017] HCA 17 and judgment summary