Lynch v Commissioner of Police [2022] QCA 166

SUPREME COURT OF QUEENSLAND

CITATION: Lynch v Commissioner of Police [2022] QCA 166

PARTIES: LYNCH, Debra Leigh / (applicant) / v / COMMISIONER OF POLICE / (respondent)

FILE NO/S: CA No 251 of 2021 / DC No 20 of 2020

DIVISION: Court of Appeal

PROCEEDING: Application for Leave s 118 DCA (Criminal)

ORIGINATING COURT: District Court at Beenleigh – [2021] QDC 213 (Chowdhury DCJ)

DELIVERED ON: 2 September 2022

DELIVERED AT: Brisbane

HEARING DATE: 11 August 2022

JUDGES: Morrison and Bond JJA and Beech AJA

ORDER: Application for leave to appeal is refused.

CATCHWORDS: CRIMINAL LAW – DEFENCES – Defence of 'sudden or extraordinary emergency' under s 25 of the Criminal Code (Qld) – Appeal against conviction for six drug-related offences – Where appellant used cannabis for over 30 years to alleviate physical and psychological pain – Where appellant relied solely on defence of 'extraordinary emergency' – Where previous Queensland Court of Appeal decision held that 'extraordinary emergency' has temporal requirement – Whether previous Queensland Court of Appeal decision was wrongly decided insofar as it imposed temporal requirement – Whether previous decision erred in failing to follow decision of Western Australian Court of Appeal concerning the meaning of 'sudden or extraordinary emergency' in s 10.3 of the Criminal Code (Cth) – Whether judge erred in holding that defence of extraordinary emergency did not apply to appellant's circumstances – Where appeal not an appeal by way of rehearing – Whether appellable error of a kind available in the present appeal demonstrated in the making of various factual findings which led to rejection of defence of extraordinary emergency / Criminal Code (Qld), s 25 / District Court of Queensland Act 1967 (Qld), s 118, s 119 / Babaniaris v Lutony Fashions Pty Ltd (1987) 163 CLR 1; [1987] HCA 19, cited / Nguyen v Nguyen (1990) 169 CLR 245; [1990] HCA 9, cited / R v Dimitropoulos (2020) 282 A Crim R 402; [2020] QCA 75, cited / R v Lacey; Ex parte Attorney-General (Qld) (2009) 197 A Crim R 399; [2009] QCA 274, cited / Walker Corporation Pty Ltd v Sydney Harbour Foreshore Authority (2008) 233 CLR 259; [2008] HCA 5, cited / Warnakulasuriya v The Queen (2012) 261 FLR 260; [2012] WASCA 10, cited

COUNSEL: M Horvath and S F Lamb for the applicant / C W Wallis for the respondent

SOLICITORS: Brighton Langley Law for the applicant / Director of Public Prosecutions (Queensland) for the respondent

MORRISON JA: I have had the advantage of reading the reasons for judgment of Beech AJA. I agree with those reasons and with the order proposed by his Honour.
BOND JA: I agree with the reasons for judgment of Beech AJA and with the order proposed by his Honour.
BEECH AJA: The appellant was convicted in the Magistrates Court of six drug‑related offences against the Drugs Misuse Act 1986 (Qld) (DMA), including possession and production of cannabis and possession of associated drug paraphernalia. At trial, she admitted the primary facts and defended the charges on the ground of extraordinary emergency under s 25 of the Criminal Code (Qld) (the Code).
Her appeal to the District Court against her convictions was dismissed.¹ Like the magistrate, the primary judge applied this Court’s decision in R v Dimitropoulos,² in which it was held that there is a temporal element in the statutory conception of emergency – whether sudden or extraordinary.
The appellant now seeks leave to appeal against the District Court decision dismissing her appeal to that court. She advances legal and factual challenges against the primary decision. Her primary ground of appeal contends that, insofar as Dimitropoulos held that there is a temporal element in the statutory conception of emergency, it was wrongly decided. Her other grounds challenge conclusions of fact.
For the reasons that follow, I would refuse leave to appeal and dismiss the appeal. In short, as to the primary ground, the appellant has not met the high hurdle of satisfying this Court to the requisite degree of confidence that the construction of s 25 adopted in Dimitropoulos is erroneous. The appellant’s other grounds, challenging concurrent factual findings made by the magistrate and the primary judge, are not framed consistently with the limited nature of the appeal to this Court. In my opinion, there is insufficient merit in those challenges to justify the grant of leave to appeal.

Background facts

On 19 June 2017, police attended the appellant’s home. After a search, police found four cannabis plants and a quantity of dried cannabis, a quantity of cannabis in ointment and various items associated with the production or possession of the drugs.
The appellant was charged with six offences: one of producing cannabis, two of possessing cannabis and charges relating to the possession of grinders, a heat lamp, a capsule manufacturer, a quilting appliance, vaporisers and pipes.
The only issue at trial was the question of unlawfulness. All other elements were admitted.
Under the DMA, ‘unlawfully’ is defined as ‘without authorisation, justification or excuse by law’.
The appellant gave and adduced evidence in support of a defence of extraordinary emergency under s 25 of the Code or an honest and reasonable belief in the existence of an extraordinary emergency, by the combined application of s 24 and s 25 of the Code.
The primary judge summarised the evidence that was given before the magistrate in considerable detail.³ No issue is taken on appeal with the accuracy or comprehensiveness of that summary. It is not necessary to repeat his Honour’s summary of the evidence.

Statutory provisions

Section 25 of the Code is in the following terms:

“Subject to the express provisions of this Code relating to acts done upon compulsion or provocation or self-defence, a person is not criminally responsible for an act or omission done or made under such circumstances of sudden or extraordinary emergency that an ordinary person possessing ordinary power of self-control could not reasonably be expected to act otherwise.”

Section 25 may, in some cases, operate in tandem with s 24, which concerns mistake of fact.⁴ Section 24 provides:

“(1)A person who does or omits to do an act under an honest and reasonable, but mistaken, belief in the existence of any state of things is not criminally responsible for the act or omission to any greater extent than if the real state of things had been such as the person believed to exist.

(2)The operation of this rule may be excluded by the express or implied provisions of the law relating to the subject.”

Section 129(1)(d) of the DMA makes special provision as to onus of proof:

“(1)In respect of a charge against a person of having committed an offence defined in part 2—

…

(d)the operation of the Criminal Code, section 24 is excluded unless that person shows an honest and reasonable belief in the existence of any state of things material to the charge; …”

The magistrate’s decision

After summarising the evidence at trial and referring to relevant legal principles, the magistrate made the following observations of the appellant:⁵

“Her issues are many, varied and complex, and Ms Lynch gave evidence that without cannabis she would have killed herself as a result of the pain and psychological symptoms she suffered. Ms Lynch said she first used cannabis in a medicinal sense from October 2014, however, she said she had smoked cannabis from 1988. She used it then, she said, to calm anxiety and address social difficulties. At that point she was aged 28 years. She is now 60 years of age and she admitted to using cannabis still. It is clear from her evidence that Ms Lynch has used cannabis then for at least 32 years. Whether the use of the drug is purported to be for medicinal purposes or habitual or recreational purposes Ms Lynch produced cannabis, possessed cannabis, and possessed items associated with those offences.

There is a scheme by which people in Queensland are able to be prescribed medicinal cannabis and thereby lawfully possess products which contain it. That scheme is underpinned by legislation. There is limited evidence before me of the scheme. Ms Lynch said she believed her conditions qualified for such prescription from May 2016, when the law was changed. Dr Lotz spoke of the scheme not being available at the time of the offences, which contradicts this. In any event I can only assume the scheme tightly controls the production of cannabis, the manufacturing of cannabis products, the prescription of it and its distribution. No doubt it is overseen by experts in the field of those areas, including medical specialists and psychiatrists. It does not contemplate an untrained person self-prescribing toxic substances for various medical and/or psychiatric conditions.”

The magistrate identified the critical issue as whether the appellant had a defence of sudden or extraordinary emergency under s 25 of the Code, or an honest and reasonable but mistaken belief of an emergency under s 24. The magistrate referred to [62], [63], [66] and [67] of Dimitropoulos. The magistrate found similarities between the appellant’s situation and that of Mr Dimitropoulos, including that the appellant had other options available to her, apart from using cannabis illegally, such as moving to New South Wales. The magistrate considered that the appellant’s evidence about being denied medical cannabis prescriptions was vague and unsubstantiated, referring to the absence of supporting documents and of detail as to timing. Both the appellant and Mr Dimitropoulos used cannabis for anxiety and to manage mental health issues, as well as for pain relief. Both the appellant and Mr Dimitropoulos mixed cannabis with other medication.
The magistrate noted that there was no evidence that the cannabis cured the appellant’s conditions or was medically lifesaving, although it did control pain and other symptoms. Further, the appellant’s suicidal ideations were longstanding and had existed before her cannabis use. The magistrate concluded that the appellant’s situation was not substantially different to that of Mr Dimitropoulos and that there was not a sudden or extraordinary emergency, or reasonable belief of a sudden or extraordinary emergency.
Consequently, the magistrate convicted the appellant of all offences.

Appeal to the District Court

The appellant appealed against her convictions pursuant to s 222 of the Justices Act 1886 (Qld).
Grounds 1 and 2 challenged a series of factual findings made by the magistrate.
The balance of the appellant’s grounds were in the following terms:

“3.In concluding, her Honour found that:

I do not accept the factual circumstances for Ms Lynch are substantially different to those of Mr Dimitropoulos. The evidence does not raise the possibility of a sudden or extraordinary emergency, or that there are reasonable grounds to believe that the circumstances of an extraordinary emergency existed. Therefore, I find that the element of unlawfulness has been established.

4.In that passage, her Honour erred that:

(a)the evidence did not raise the possibility of sudden or extraordinary emergency;

(b)there were not reasonable grounds to believe that the circumstances of an extraordinary emergency existed; and

(c)the factual circumstances for the appellant were not substantially different to Mr Dimitropoulos.

5.Her Honour ought to have found that the appellant’s circumstances were sufficiently different to Mr Dimitropoulos and that:

(a)the possibility of an extraordinary emergency was raised by the appellant and not negatived by the prosecution beyond a reasonable doubt; or

(b)on balance, the appellant held an honest, reasonable but mistaken belief that there was an extraordinary emergency.

6.The findings and conclusions above are a combination of:

(a)findings contrary to the evidence;

(b)failing to make adequate findings;

(c)misunderstanding of the relevance of the findings made;

(d)failing to provide adequate reasons; and

(e)reaching a verdict that is unreasonable.”

The appellant’s submissions to the primary judge asserted numerous errors on the part of the magistrate. The appellant submitted that, on the evidence, there were six options open to the appellant to deal with her various debilitating symptoms resulting from her significant physical and psychiatric conditions. The appellant made the following submissions as to each of those options:(a)get medical cannabis in Queensland – the appellant tried to do so even though she was ineligible;(b)get medical cannabis in New South Wales – the appellant tried but was rejected because she was not a resident. In theory, she had the option of moving to NSW, but she was on a pension, so couldn’t afford it, and moving would have meant losing her support network;(c)take prescription medication – the appellant tried all variety of prescription medications for her physical and psychiatric conditions, but the medications were either ineffective at treating her extreme pain or increased her anxiety and suicidal feelings;(d)take nothing – neither medication nor cannabis and put up with the symptoms;(e)commit suicide – that cannot be seen as a reasonable option;(f)break the law – and do what the appellant did by producing and possessing cannabis to treat her conditions and symptoms.
The appellant formally submitted to the primary judge that the decision in Dimitropoulos was wrongly decided in that it stated that there was a temporal element to the defence of extraordinary emergency, which was inconsistent with the decision in Warnakulasuriya v The Queen.⁶ The appellant conceded that the District Court could not determine whether Dimitropoulos, a decision of this Court, was wrongly decided.
Ultimately, the appellant submitted that the appellant’s circumstances were sufficiently different from the appellant’s circumstances in Dimitropoulos and that there was an extraordinary emergency.⁷
The respondent submitted that the appellant’s evidence that she had exhausted all her medical options was vague and unsubstantiated, and that the magistrate was not obliged to accept it.⁸ The respondent characterised the appellant’s actions as deliberate choices, rather than urgent and immediate responses. The respondent said that the fundamental flaw in the appellant’s case was that the ‘need’ for cannabis did not arise suddenly, but rather had existed for many years, and that the appellant’s response to the ‘need’ consisted of longstanding offending.

The primary judge’s decision

The primary judge described Dimitropoulos as the leading authority in Queensland on s 25 of the Code, setting out various passages of the judgment of Brown J, including [56]-[58], [60] and [61]-[63]. The primary judge emphasised the following passages from Dimitropoulos:¹⁰

“There is in my view a temporal element imported by the reference to ‘emergency’ in respect of both a ‘sudden emergency’ or ‘extraordinary emergency’, which is supported by the context of the section which also requires that ‘an ordinary person possessing ordinary power of self‑control could not reasonably be expected to act otherwise’. The ordinary meaning of ‘extraordinary’ relevantly refers to ‘of a kind not usually met with; exceptional; unusual; out of control’. The ordinary meaning of ‘emergency’ relevantly means ‘a sudden state of danger, conflict, requiring immediate action’. The reference in s 25 to ‘extraordinary’ does support the fact that the emergency may develop over time for example, rising flood waters, unlike a ‘sudden emergency’. However, there must be an emergency of such a scale that it requires immediate action, commensurate with the consideration of self‑control. As Atkinson J stated, it is a section which is directed to a person reacting to imminent danger.

Whether the emergency is a sudden or an extraordinary one, it must in either case be an emergency, as established by applying an objective test to the facts, or the defendant must honestly and reasonably, albeit mistakenly, have believed that the emergency was real.” (footnotes omitted)

The primary judge distinguished the decision in Warnakulasuriya on the basis that it concerned s 10.3 of the Criminal Code (Cth) (the Commonwealth Code), which, his Honour considered, has significant differences from s 25 of the Code.¹¹
The primary judge accepted that the appellant had a combination of significant physical illness in the years leading up to the commission of the offences and that those illnesses at times manifested in severe symptoms and pain. His Honour also accepted the opinion of Dr Lotz, a psychiatrist called by the appellant, that the appellant suffered a formally‑diagnosed complex post‑traumatic stress disorder with a history of social and general anxiety, obsessive/compulsive disorder and an undiagnosed attention deficit disorder. The appellant reported struggling with anxiety and depression since the age of 17 and described chronic suicidal ideation and intention prior to her cannabis use.¹²
The primary judge observed that there was no evidence that the appellant had acted on any suicidal ideation, nor that she had required hospitalisation as a result of it. The judge observed that the suicidal ideation was chronic and had existed for some time.
The primary judge found that it was open to the magistrate to find the vagueness of the appellant’s evidence about her attempts to get a medicinal cannabis diagnosis troubling.¹³ The judge noted that there was a lack of evidence about whether it was too expensive for the appellant to relocate to NSW.¹⁴ The judge observed that lack of finances is not an excuse to break the law.¹⁵
The primary judge recognised the ‘extraordinary sympathy’ engendered by the appellant’s situation. His Honour found that it was possible that the appellant honestly believed that she had no choice but to break the law, however his Honour found that any such belief was not reasonable.¹⁶
The judge found that there was not ‘an emergency of such a scale that it required immediate action, nor that an ordinary person possessing ordinary power of self-control could not reasonably be expected to do otherwise’. In so finding, his Honour rejected the appellant’s case on each of the two bases his Honour identified. In this Court the appellant did not suggest otherwise.

The appeal to this Court

The appellant seeks leave to appeal under s 118 of the District Court of Queensland Act 1967 (Qld) (DCA). Her grounds of appeal are to the following effect.
Ground 1 contends that to the extent that Dimitropoulos held that there was a temporal element to extraordinary emergency, it was wrongly decided.
Ground 2 asserts that the primary judge erred in holding that the appellant’s circumstances did not amount to an extraordinary emergency, that her belief she was facing an extraordinary emergency was not objectively reasonable and that her circumstances were not distinguishable from Dimitropoulos.
Ground 3 details the errors said to have led to these conclusions. I will outline its substance in dealing with the merits of grounds 2 and 3.
The appellant accepts that she can succeed in her appeal only if she succeeds on all her grounds of appeal. In other words, the appellant accepts that success on ground 1 would not sustain her appeal, given the second basis for the primary judge’s conclusion as set out in [33] above.

The nature of the appeal to this Court

Sections 118 and 119 of the DCA provide as follows:

“118 Appeal to the Court of Appeal in certain cases

(1)This section—

(a)does not apply to an appeal from a judgment of the District Court in the exercise of its criminal jurisdiction under part 4; but

(b)does apply to an appeal from other judgments of the District Court in the exercise of its criminal jurisdiction, including on an appeal brought before the court under the Justices Act 1886, section 222.

(2)A party who is dissatisfied with a final or interlocutory judgment of the District Court in its original jurisdiction may appeal to the Court of Appeal if the judgment—

(a)is given for an amount equal to or more than the Magistrates Courts jurisdictional limit; or

(b)relates to a claim for, or relating to, property that has a value equal to or more than the Magistrates Courts jurisdictional limit.

(3)Subject to sections 118A and 118B, a party who is dissatisfied with any other judgment of the District Court, whether in the court’s original or appellate jurisdiction, may appeal to the Court of Appeal with the leave of that court.

(4)In deciding whether there is a right of appeal under this section, the Court of Appeal may—

(a)inform itself in any way it considers appropriate, including by reference to the appeal record; and

(b)decide the question summarily without hearing evidence.

(5)If it is reasonably arguable that a right of appeal under this section exists, the Court of Appeal may treat that circumstance as a ground for granting leave to appeal.

(6)If the Court of Appeal grants leave under subsection (3), it may grant it on the conditions it considers appropriate.

(7)A single judge of the Court of Appeal may—

(a)grant (with or without condition) or refuse leave mentioned in subsection (3); or

(b)make the decision mentioned in subsection (4)(b).

(8)An appeal from the District Court in its original jurisdiction is by way of rehearing.

(9)In this section—

final judgment, of the District Court, includes a judgment that grants leave to enter a judgment mentioned in subsection (2).

Magistrates Courts jurisdictional limit means the amount of the jurisdictional limit of Magistrates Courts for personal actions stated in the Magistrates Courts Act 1921, section 4(a).

…

119 Jurisdiction of Court of Appeal

(1)On the hearing of an appeal the Court of Appeal shall have power to draw inferences of fact from facts found by the judge or jury, or from admitted facts or facts not disputed provided that where the appeal is not by way of rehearing such inferences shall not be inconsistent with the findings of the judge or jury.

(2)On the hearing of any appeal the Court of Appeal—

(a)may order a new trial on such terms as the court thinks just; and

(b)may order judgment to be entered for any party, or may make any other order, on such terms as the Court of Appeal thinks proper, to ensure the determination on the merits of the real questions in controversy between the parties; and

(c)may make such order with respect to the costs of the appeal as it thinks proper;

and every such order shall be final.” (emphasis added)

The principles applying to appeals to this Court from judgments from the District Court in its appellate jurisdiction were summarised by Bowskill J, as her Honour then was, with whom Fraser and Philippides JJA agreed, in McDonald v Queensland Police Service,²⁴ in the following terms:

“By way of summary, the following are the principles that apply, to appeals to this Court from judgments of a District Court in its appellate jurisdiction:

(a)the nature of the appeal is governed by ss 118 and 119 District Court of Queensland Act 1967;

(b)an appeal from a judgment of the District Court in its appellate jurisdiction lies only with the leave of this Court: s 118(3);

(c)this Court’s discretion to grant or refuse leave to appeal is unfettered, exercisable according to the nature of the case, but leave to appeal will not be given lightly, given that the applicant has already had the benefit of two judicial hearings;

(d)the mere fact that there has been an error, or that an error can be detected in the judgment is not ordinarily, by itself, sufficient to justify the granting of leave to appeal - leave will usually be granted only where an appeal is necessary to correct a substantial injustice to the applicant and there is a reasonable argument that there is an error to be corrected;

(e)if leave is granted, the appeal is an appeal in the strict sense (cf s 118(8)), in respect of which the Court’s sole duty is to determine whether error has been shown on the part of the District Court, on the basis of the material before the District Court. This Court is not engaged in a rehearing; as such, it is not this Court’s task to decide where the truth lay as between the competing versions of the witnesses; and it is not for this Court to substitute its own findings for those of the District Court judge;

(f)a factual finding of a District Court judge, on an appeal to that court (which may be different from, or additional to those made by the Magistrate at first instance, or which may confirm the findings of the Magistrate at first instance, since the appeal to the District Court is by way of rehearing) may only be reviewed on an appeal to this Court if there is no evidence to support it, or it is shown to be unreasonable, in the sense discussed in Hocking v Bell in relation to findings of fact by a jury;

(g)on the hearing of an appeal, this Court has power to draw inferences of fact from facts found by the District Court judge, or from admitted facts or facts not disputed, but, except where there is no evidence on which the judge below might have reached his or her conclusions, or the conclusions are unreasonable, any such inferences shall not be inconsistent with the findings of the District Court judge (s 119(1)); and

(h)the appeal to this Court is not limited to errors of law.” (footnotes omitted, emphasis added)

The appellant’s submissions in support of grounds 2 and 3, which impugn various of the primary judge’s factual findings, are not framed by reference to these principles, specifically the italicised portions of the passage set out in [44] above. I will return to this point when I consider the merits of grounds 2 and 3.
It will be convenient to deal with the question of leave after consideration of the merits of the grounds of appeal.

Ground 1: appellant’s submissions

The appellant’s principal submissions in support of ground 1 are:(a)Dimitropoulos should be reconsidered because, in finding that there was a temporal element to an extraordinary emergency, the Court ‘did not consider a series of interstate appeal cases reaching the opposite conclusion’.²⁵ As it was put in oral submissions, the same phrase – ‘sudden or extraordinary emergency’ – is used in both provisions, but Warnakulasuriya is not referred to in Dimitropoulos.²⁶(b)In the context of the ‘equivalent emergency defence’ under the Commonwealth Code, the Court of Appeal of Western Australia:²⁷held in Nguyen v The Queen²⁸ that a delay between becoming aware of the emergency and responding to it was relevant, but not determinative; andheld in Warnakulasuriya that an extraordinary emergency can arise from existing, imminent or anticipated danger even though that danger did not require immediate action and that an extraordinary emergency extends beyond circumstances that are urgent or time‑imperative.(c)The decision in Dimitropoulos is in ‘direct conflict with’ Nguyen and Warnakulasuriya.²⁹(d)After identifying several approaches to the question of when this Court should reconsider its own previous decision, the appellant submits that on any of those approaches the Court should reconsider Dimitropoulos.³⁰(e)The preferable construction of s 25 is that adopted in the Western Australian cases because:while both the WA and Dimitropoulos interpretations are open, as a penal statute s 25 ought to be interpreted by resolving the doubt in favour of an accused person;the interpretation adopted in the Western Australian cases gives work to the word ‘extraordinary’ in s 25, whereas that word is essentially left without work to do on the approach adopted in Dimitropoulos; andto so interpret s 25 would bring the position in Queensland in line with the position under the common law and the Commonwealth Code.

Dimitropoulos

In Dimitropoulos, the appellant was charged with one count of unlawfully producing cannabis in excess of 500 g. He admitted that he produced and possessed cannabis and that he knew that doing so was illegal. The appellant’s case was that he did so as a last resort to alleviate the pain he suffered as a result of injuries sustained in a car accident. At the trial he sought to raise the defence of emergency, but the trial judge ruled that the defence was not available on the evidence. The trial judge found that there was a temporal element to both sudden and extraordinary emergencies under s 25, inherent in the requirement for an emergency, and found that the facts were not sufficient to establish an extraordinary emergency. On appeal, the appellant challenged that decision, contending that there is no temporal element in an extraordinary emergency under s 25. He also contended that s 25, in conjunction with s 24, should have been left to the jury.
This Court rejected both contentions. The Court’s decision was delivered by Brown J, with whom Fraser JA and Henry J agreed.
Brown J began by observing that s 25 bears similarities to other statutory defences in other jurisdictions, including s 10.3 of the Commonwealth Code and the common law defence of necessity, but that it differs in some significant respects.³²
As can be seen in the passage set out at [27] above, Brown J considered that there is a temporal element imported by the reference to ‘emergency’ in both a ‘sudden emergency’ and an ‘extraordinary emergency’. This, her Honour considered, is supported by the words ‘an ordinary person possessing ordinary powers of self‑control could not reasonably be expected to act otherwise’, a further element of s 25. Brown J referred to the ordinary meaning of ‘emergency’ as, relevantly, involving a ‘sudden state of danger, conflict, requiring immediate action’.³³ Her Honour accepted that s 25 encompasses emergencies that are extraordinary and not sudden. In that regard, her Honour considered that an extraordinary emergency is one that might develop over time, giving an example of rising floodwaters. Nevertheless, in her Honour’s view, there must be an emergency of such a scale that it requires immediate action, commensurate with the consideration of self‑control. In summary, Brown J considered that s 25 is directed to a person reacting to imminent danger.³⁴
Ground 1 challenges the correctness of this reasoning and these conclusions.
Her Honour noted that whether an emergency exists, be it sudden or extraordinary, is to be determined objectively. Sections 24 and 25 would operate together if an accused person honestly and reasonably, albeit mistakenly, believed that the situation presented an emergency.

“The corollary of the notion that the defence of necessity exists to meet cases where the circumstances overwhelmingly impel disobedience to the law is that the law cannot leave people free to choose for themselves which laws they will obey, or to construct and apply their own set of values inconsistent with those implicit in the law.

…

The relevant concept is of necessity, not expediency, or strong preference. If the prisoner, or the jury, were free to consider and reject possible alternatives on the basis of value judgments different from those made by the law itself, then the rationale of the defence, and the condition of its acceptability as part of a coherent legal system, would be undermined.”

Brown J emphasised that the appellant, on his own evidence, knew that he was breaking the law and chose to do so.
Ground 1 in the present case contends that, to the extent that this Court’s decision in Dimitropoulos held that there was a temporal element to the concept of an extraordinary emergency, the case was wrongly decided. Consequently, attention must be given to the principles informing the question of when and in what circumstances this Court should depart from one of its earlier decisions. Those principles provide the framework for this Court’s evaluation of the appellant’s contentions in support of ground 1.

Legal principles concerning when this Court should depart from its earlier decision

As Dawson, Toohey and McHugh JJ observed in Nguyen v Nguyen,⁴² the extent to which an intermediate appellant court regards itself as free to depart from its own previous decisions is a matter of practice for the Court to determine for itself. Nevertheless, valuable assistance is to be derived from what has been said by the High Court in that regard, which is, of course, properly regarded as ‘seriously considered dicta’ from which this Court should not depart.⁴³
Given that appeals to the High Court are by special leave only, this Court and other intermediate appellate courts are, in many situations, for all practical purposes, the Court of last resort. In those circumstances, it is inappropriate that this Court should regard itself as strictly bound by its own previous decision.⁴⁴ Where an intermediate appellate court holds itself free to depart from an earlier decision, it should do so cautiously and only when compelled to the conclusion that the earlier decision is wrong. Dawson, Toohey and McHugh JJ observed, in Nguyen v Nguyen, that the occasions upon which departure from previous authority is warranted are infrequent and exceptional and are those which pose no real threat to the doctrine of precedent and the predictability of the law.
In R v Lacey; Ex parte Attorney-General (Qld),⁴⁵ de Jersey CJ, Keane, Muir and Chesterman JJA adopted what had been said in Nguyen v Nguyen. Their Honours also said as follows:

“This Court should depart from its earlier decision ‘cautiously and only when compelled to the conclusion that the earlier decision is wrong.’ [Nguyen v Nguyen (1990) 169 CLR 245 at 269]. In John v Federal Commissioner of Taxation [(1989) 166 CLR 417 at 451 ‑ 452 (citation footnoted in original)], Brennan J (as his Honour then was) gave compelling reasons for caution on the part of a court invited to hold that an earlier decision of that court does not give effect to a Parliamentary enactment while at the same time emphasising that the fundamental duty of the Court is to give effect to the intention of the legislature. His Honour said:

‘The overruling of a decision is in a sense a diminution of the Court’s authority as well as an acknowledgment of Justices’ past error. An overruling must therefore be an exceptional course to adopt. However, when an overruling is necessary in order that the Court perform and be seen to perform its constitutional function of interpreting and applying the law enacted by the Parliament, that course must be adopted. Precedent is the best evidence of the law as enacted but it is not the enacted law. When the interpretation of a statute is dubious, it is the function of the Court to resolve the doubt and by its decision to declare what the Parliament has enacted. If a subsequent Court prefers another construction of the statute that mere preference is not sufficient to warrant an overruling of the prior decision: see Babaniaris v Lutony Fashions Pty. Ltd ((1987) 163 CLR 1 at 13-15, 22-24, 28-31). But if the later Court is satisfied that the interpretation placed on the statute by the earlier decision was erroneous in the sense that it is opposed to the undoubted intention of the Parliament as enacted in the statute, it cannot adhere to the earlier error and refuse to apply the law as enacted unless the Parliament has itself accepted or adopted the earlier error and enacted a further law on the assumption that the earlier decision was correct. If there are instances where the earlier error is de minimis and where the earlier decision can be allowed to stand without significant failure to apply the enacted law, this is not one of them.’

As to the considerations which should guide this Court in its approach to this case, in John, Mason CJ, Wilson, Dawson, Toohey and Gaudron JJ referred to the statement of Gibbs CJ in Commonwealth v Hospital Contribution Fund [(1982) 150 CLR 49 at 56 ‑ 58]. In that case, his Honour identified four matters which bear upon the question whether a court should depart from an earlier decision. In John, their Honours summarised the matters referred to earlier by Gibbs CJ [(1989) 166 CLR 417 at 438 ‑ 439 (citation footnoted in original)]:

‘The first was that the earlier decisions did not rest upon a principle carefully worked out in a significant succession of cases. The second was a difference between the reasons of the justices constituting the majority in one of the earlier decisions. The third was that the earlier decisions had achieved no useful result but on the contrary had led to considerable inconvenience. The fourth was that the earlier decisions had not been independently acted on in a manner which militated against reconsideration, as had been the case in Queensland v Commonwealth (1977) 139 CLR 585.’” (emphasis added)

In R v Lacey, after noting that the earlier decision in R v Katia; Ex parte Attorney-General (Qld)⁴⁶ had been given by a court constituted by three judges while the Court in R v Lacey was then constituted by five judges, and that the question had been fully argued on both sides, the Court considered it appropriate to accept the invitation to reconsider the basis of the earlier decision.
In R v Lacey, the Court gave attention to the considerations referred to by Gibbs CJ in Commonwealth v Hospital Contribution Fund⁴⁷ but noted that some of them did not arise in that case.⁴⁸ A further consideration favouring departing from the earlier decision was that the Court considered that doubt had been cast upon its correctness by members of the High Court in a subsequent decision.⁴⁹
Applying the test from John set out in [62] above, the majority concluded that the approach taken in the earlier case was ‘opposed to the undoubted intention of the Parliament as enacted’.⁵⁰
In enunciating the test in John, Brennan J cited Babaniaris v Lutony Fashions Pty Ltd.⁵¹ Consideration of the cited passages reinforces the sense of what Brennan J intended to convey by the italicised words quoted in the passage set out at [62] above. For example, in Babaniaris,⁵² Mason J explained that departing from an earlier decision as to the interpretation of a statute is appropriate when ‘the question on analysis is capable of but one answer’. That, his Honour explained, is what is meant by the sometimes criticised expression that the earlier decision is ‘plainly wrong’. However, his Honour considered that there might be a different outcome ‘when the correct interpretation of the statute is highly disputable or finely balanced, involving a difficult choice between strongly competing contentions.” In such cases, his Honour acknowledged that it was important to ensure that a change in the law did not proceed from ‘mere personal choice’. Wilson and Dawson JJ observed that adherence to an earlier decision could not be justified when the meaning of the statute is plain and free of ambiguity.

“(1)A person is not criminally responsible for an offence if he or she carries out the conduct constituting the offence in response to circumstances of sudden or extraordinary emergency.

(2)This section applies if and only if the person carrying out the conduct reasonably believes that:

(a)circumstances of sudden or extraordinary emergency exist; and

(b)committing the offence is the only reasonable way to deal with the emergency; and

(c)the conduct is a reasonable response to the emergency.”

Warnakulasuriya

In Warnakulasuriya, the appellant was charged with organising or facilitating the bringing or coming to Australia of 31 people while reckless as to their lawful right to come to Australia. He argued at trial that he was not criminally responsible for the offence because his conduct had been in response to circumstances of sudden or extraordinary emergency within s 10.3 of the Commonwealth Code. The judge, in response to a question from the jury, directed the jury in relation to that defence.
On appeal, the appellant contended that the judge’s direction had wrongly given the impression that delay was determinative in relation to the availability of the s 10.3 defence. The majority of the Court (Buss JA and Hall J) upheld the appeal. Pullin JA dissented.
Buss JA found that the trial judge had misdirected the jury. His Honour held that the natural and ordinary meaning of ‘extraordinary emergency’ does not necessarily connote circumstances involving an existing, imminent or anticipated danger that requires immediate action. Circumstances involving an existing, imminent or anticipated danger may constitute an extraordinary emergency even though the danger does not require immediate action.⁶⁴
Buss JA further concluded that delay by an accused in responding to alleged circumstances of emergency which he or she allegedly reasonably believed existed, is a relevant factor in deciding whether the Crown has negatived one of the matters specified in s 10.3(2), but that the delay is not, of itself, decisive.⁶⁵
His Honour’s reasons for those conclusions may be summarised as follows.
Buss JA observed that s 25 of the Criminal Code (WA) contained a provision with respect to sudden or extraordinary emergency that was analogous to s 10.3 of the Commonwealth Code.
Buss JA had regard to the secondary materials concerning s 10.3 of the Commonwealth Code. His Honour noted that the report of the Standing Committee of Attorneys General commented that the proposed provision was an amalgam of the principles underlying the common law of necessity and the Griffith Code equivalent.⁶⁶
Citing the earlier decision in Nguyen v The Queen,⁶⁷ to which I will come, Buss JA considered that it is unnecessary for an emergency, for the purpose of s 10.3, to be both sudden and extraordinary; such an emergency may, in accordance with the terms of the provision, be either sudden or extraordinary. His Honour acknowledged that the concepts of a sudden emergency and an extraordinary emergency may in some cases overlap.

“(a)It may be relevant, in deciding whether an emergency is sudden or extraordinary, to have regard to the time which elapsed between the accused becoming aware of the emergency, on the one hand, and his or her acting in response to it, on the other. However, delay is not a ‘determinative factor’.

(b)The Crown cannot negative the defence by proving that no sudden or extraordinary emergency in fact existed. Although the absence of an actual sudden or extraordinary emergency may be a relevant factor, the ultimate question is whether the accused reasonably believed, in terms of s 10.3(2)(a), that circumstances of sudden or extraordinary emergency existed.”

Buss JA concluded that the trial judge’s answer to the jury’s question was a misdirection in that it was likely to have conveyed to the jury the impression that the circumstances on which the appellant relied for the purposes of s 10.3 would not be an emergency unless those circumstances required the taking of some immediate action.⁷¹
Hall J generally agreed with Buss JA’s reasons but added comments of his own concerning the phrase ‘sudden or extraordinary emergency’.
Hall J considered that, given the use of the word ‘or’ in the phrase ‘sudden or extraordinary emergency’, it is an error to suggest that the provision operates only when there is an element of suddenness.
Both Buss JA and Hall J referred to the decision in Smith v The State of Western Australia,⁷² that in the context of s 25 of the Criminal Code (WA) the words ‘sudden or extraordinary emergency’ have their usual and ordinary meaning.
Hall J identified a difficulty with this approach arising from the fact that the ordinary meaning of the word ‘emergency’ includes a time imperative. His Honour referred to dictionary definitions of ‘emergency’ as ‘a situation especially of danger or conflict that arises unexpectedly and requires urgent action’ or something which occurs suddenly or unexpectedly or ‘an unforeseen occurrence; a sudden and urgent occasion for action’. Hall J considered that these definitions reflect how the word ‘emergency’ is commonly used.⁷³
So understood, his Honour considered that there is a tension between the words ‘sudden or extraordinary’ and ‘emergency’. While his Honour acknowledged that a non‑sudden emergency might be considered self‑contradictory, given the need to give meaning to every word of the provision, the apparent tension was to be resolved by ascribing a meaning to ‘emergency’ that extends beyond circumstances that are urgent or time‑imperative.⁷⁴
Hall J considered that it was possible to draw a meaningful distinction between a sudden emergency and an extraordinary emergency, saying as follows:⁷⁵

“It has been said that a sudden emergency is one which comes upon the accused unexpectedly, catching him or her off guard. This type of emergency incorporates a sense of immediate danger, one which will occur almost instantaneously unless the accused takes countervailing action. In this case there may be little opportunity for calm reflection or for the mustering of resolve or fortitude. In contrast, an extraordinary emergency may denote a situation of extreme gravity and abnormal or unusual danger that might well have occurred suddenly but persists over a period of time: See Yeo SMH, ‘Necessity Under the Griffiths Code and the Common Law’ (1991) Criminal Law Journal, pp 15, 17.”

Hall J considered these categorisations to be sensible and to reflect the purpose of s 10.3 of the Commonwealth Code. His Honour considered that, in some circumstances, application of s 10.3 to the facts of the case may require an explanation of the ambit of emergency when used in this context, particularly where the emergency relied upon could not be said to be sudden, but was said to be extraordinary.
Pullin JA, in dissent, considered that an extraordinary emergency may develop over time, but that even an extraordinary emergency will eventually require some degree of immediacy in response to it, as the trial judge had said.⁷⁶ Pullin JA considered that the words ‘sudden’, ‘emergency’ and ‘extraordinary’, have their ordinary meanings and that the trial judge directed the jury accordingly.⁷⁷

Other Western Australian decisions

In Nguyen v The Queen, Templeman J, with whom Murray J agreed and McLure J agreed generally, made the following observations about the defence of emergency:⁷⁸

“(a)The circumstances in which the defence may be raised include a sudden emergency or an extraordinary emergency. It is not necessary for the emergency to be both sudden and extraordinary.

(b)In determining whether an emergency is sudden or extraordinary it may be relevant to have regard to the time which elapsed between the offender becoming aware of the emergency and his or her acting in response to it. However, delay is not a determinative factor.

(c)The prosecution cannot exclude the defence by proving that no sudden or extraordinary emergency actually existed. Although that fact may be relevant, the ultimate question is whether the offender reasonably believed in the existence of the emergency.”

In Western Australia, s 25 of the Criminal Code (WA) has been amended. However, prior to the amendment in 2008, s 25 was in terms materially identical to the Queensland provision.
The following two cases concern the Western Australian provision prior to its amendment when it mirrored the Queensland provision.
In Johnson v The State of Western Australia,⁷⁹ Owen and Miller JJA set out the following general principles about the defence of emergency:⁸⁰

“A ‘sudden emergency’ has been described as ‘one that comes upon the accused unexpectedly, catching her or him off‑guard’: Yeo S, ‘Necessity under the Criminal Code and the Common Law’ (1991) 15 Criminal Law Journal 17, 23. An extraordinary emergency is one which has been said to be ‘unexpected or sudden’, but ‘a situation of "extreme gravity and abnormal or unusual danger"’: Yeo, at 24.”

Buss JA agreed with Owen and Miller JJA, but added the following:⁸¹

“Section 25 refers to circumstances of ‘sudden or extraordinary emergency’. Compare s 33 of the Criminal Code Act 1983 (NT), which requires that the emergency be both sudden and extraordinary. By s 25, however, it is not necessary for the emergency to be both sudden and extraordinary. See Nguyen v The Queen [2005] WASCA 22 [17] (Templeman J, Murray J agreeing & McLure J agreeing generally). It has been suggested that a ‘sudden emergency’ is ‘one which comes upon the accused unexpectedly, catching her or him off‑guard’ whereas an ‘extraordinary emergency’ may also be unexpected or sudden but must be a situation of ‘extreme gravity and abnormal or unusual danger’. See Yeo SMH, ‘Necessity under the Griffith Code and the Common Law’ (1991) 15 Criminal Law Journal 17, 23 ‑ 24.”

In Smith v The State of Western Australia,⁸² the Court of Appeal rejected a complaint that the trial judge had failed to tell the jury that the words of s 25 had their ordinary and everyday meaning and to draw a distinction between the words ‘sudden’ and ‘extraordinary’. The court held that the words have their ordinary, everyday meaning, but the trial judge was not bound to so direct the jury. Nor was the judge bound to draw any distinction between the word ‘sudden’ and the word ‘extraordinary’ or to give examples as to what may constitute a sudden or extraordinary emergency.⁸³

The status of the Western Australian decisions

The appellant’s principal criticism of the reasoning in Dimitropoulos is that there is no reference to the Western Australian decisions, in particular to Warnakulasuriya; see [47](a) and [47](c) above. In evaluating that submission, it is of cardinal importance to recognise that the Western Australian decisions concerned different statutory provisions.
As Fraser JA explained in R v Cain,⁸⁴ an intermediate court of appeal should not depart from a decision of another intermediate court of appeal upon the interpretation of Commonwealth legislation,⁸⁵ the interpretation of uniform national legislation⁸⁶ or upon the common law.⁸⁷ Whether a similar principle applies when an intermediate appellate court is confronted with a decision of an intermediate appellate court of a different State upon the interpretation of indistinguishable legislation of the other State does not appear to have been finally resolved.⁸⁸ That question does not arise in the present case, as the legislative provisions under consideration in the Western Australian decisions are, as I will explain, distinguishable from s 25.
Certainly, judicial decisions on similar or identical legislation in other jurisdictions can be said to be guides to the meaning of legislation in this Court’s jurisdiction.⁸⁹ In Walker Corporation Pty Ltd v Sydney Harbour Foreshore Authority,⁹⁰ Gleeson CJ, Gummow, Hayne, Heydon and Crennan JJ referred with approval to a statement of McHugh J in Marshall v Director-General, Department of Transport⁹¹ concerning the construction of a statutory expression - injuriously affecting - which appeared in legislation in various jurisdictions, but to which differing interpretations had been given. Their Honours in Walker observed:

“The caution required in construing modern Australian legislation by reference to ‘principles’ derived in this way is indicated by McHugh J in Marshall v Director*‑*General, Department of Transport [(2001) 205 CLR 603 at 632-633 [62]]. That case concerned the expression ‘injuriously affecting’ as it appeared in s 20 of the Acquisition of Land Act 1967 (Q); ss 49 and 63 of the 1845 Act had used the same phrase as had the subsequent legislation in various jurisdictions. Differing interpretations had been given to the expression in question. McHugh J noted the similarity in the terms of the legislation and went on [(2001) 205 CLR 603 at 632-633 [62]]:

‘But that does not mean that the courts of Queensland, when construing the legislation of that State, should slavishly follow judicial decisions of the courts of another jurisdiction in respect of similar or even identical legislation. The duty of courts, when construing legislation, is to give effect to the purpose of the legislation. The primary guide to understanding that purpose is the natural and ordinary meaning of the words of the legislation. Judicial decisions on similar or identical legislation in other jurisdictions are guides to, but cannot control, the meaning of legislation in the court’s jurisdiction. Judicial decisions are not substitutes for the text of legislation although, by reason of the doctrine of precedent and the hierarchical nature of our court system, particular courts may be bound to apply the decision of a particular court as to the meaning of legislation.’”

Thus, the Western Australian decisions were by no means binding or controlling for the Court in Dimitropoulos. The appellant’s submission⁹³ that the decision in Dimitropoulos is per incuriam because it did not refer to the Western Australian decisions is, consequently, misplaced. So too, the appellant’s submission that Dimitropoulos is ‘in direct conflict’ with Warnakulasuriya.⁹⁴ The appellant’s submission that the Western Australian decisions are to be treated as earlier decisions which the Court in Dimitropoulos should have followed in accordance with the principles stated in Telstra Corp Ltd v Treloar as summarised in [68] above is equally misplaced.⁹⁵ A decision of a court of another State in construing different legislation does not engage the principle stated in Telstra Corp Ltd v Treloar, or like principles. But those principles apply to and govern the question of whether this Court should depart from the construction of s 25 adopted in Dimitropoulos. I turn to that question.

Ground 1: disposition – should this Court depart from its decision in Dimitropoulos**?**

For the reasons that follow, I am not persuaded that this Court should depart from its earlier decision in Dimitropoulos.
In essence, that is by reason of two matters, taken together. First, Warnakulasuriya is a decision of the court of another State concerning materially different legislation and provides an inadequate basis for departing from this Court’s decision in Dimitropoulos. Secondly, in my respectful view the construction of the phrase ‘sudden or extraordinary emergency’ adopted in Dimitropoulos is well open on consideration of the text, context and purpose of s 25. While the contrary, broader construction propounded by the appellant is also open, a preference for a different choice as between two available competing constructions is an inadequate basis for departure from this Court’s decision in Dimitropoulos.

Secondary materials

Neither party suggested that any secondary materials would assist the process of construction.
Sir Samuel Griffiths’ note that accompanied his draft Criminal Code stated that what became s 25:

“… gives effect to the principle that no man is expected (for the purposes of the Criminal Law, at all events) to be wiser or better than all mankind. It is conceived that it is a rule of the Common Law as it undoubtedly is a rule upon which any jury would desire to act. It may, perhaps, be said that it sums up nearly all the Common Law rules as to excuses for an act which is prima facie criminal.”

While this statement does not bear directly on the question of construction for present purposes, it might be thought to tend in favour of a broad construction of s 25 that would permit the provision to apply to a variety of exigencies.

The significance of the decision in Warnakulasuriya

In substance, the appellant invites this Court to adopt a like construction of s 25 to the construction adopted by Buss JA in Warnakulasuriya. Hall J agreed generally with Buss JA’s reasons, but his additional observations as to the phrase ‘sudden or extraordinary emergency’ concluded, on a somewhat different basis, that the trial judge’s direction was erroneous. The appellant relies on Hall J’s reasoning summarised in [87]-[88] above as providing the textual foundation for the construction she advances.⁹⁶
As can be seen from the summary in [78]-[90] above, the majority in Warnakulasuriya reached their conclusions by somewhat different paths of reasoning.
As already noted, Pullin JA dissented and considered that an extraordinary emergency may develop over time, but that even an extraordinary emergency will eventually require a degree of immediacy of action in response to it.
Bearing in mind Hall J’s reasoning outlined in [87] above, it can be seen that two judges in Warnakulasuriya considered that, in its ordinary meaning, an ‘emergency’ is a situation requiring an immediate response.
The range of approaches in Warnakulasuriya to the construction of the phrase ‘sudden or extraordinary emergency’ tends to diminish the force of the decision as a foundation for this Court to depart from its earlier decision in Dimitropoulos.
Further, and more significantly, the provision under consideration in Warnakulasuriya can fairly be seen as materially different from s 25 of the Code, with which Dimitropoulos was concerned. Section 10.3 of the Commonwealth Code requires that the conduct constituting the offence is carried out in response to the circumstances of sudden or extraordinary emergency. By contrast, s 25 is engaged in relation to an act done under the circumstances of sudden or extraordinary emergency, and those circumstances of sudden or extraordinary emergency must be such that an ordinary person possessing ordinary power of self*‑*control could not reasonably be expected to act otherwise. The language of s 10.3 of the Commonwealth Code has, with respect understandably, been construed as requiring a broad causal connection between the emergency and the conduct constituting the offence. In requiring that a person act under circumstances of emergency, s 25 may be thought to more directly convey a need for immediacy then the broadly expressed phrase ‘in response’ in the Commonwealth Code provision. Further, as Brown J observed in , the requirement that the circumstances be such that an ordinary person with ordinary powers of self‑control could not reasonably be expected to act otherwise also tends to support the construction adopted in . Self-control can naturally be understood to be directed to the regulation of imminent action. The appellant accepted that this is so.

Textual considerations

Moreover, there seems to me, with respect, to be a firm foundation in the text and context of s 25 for the construction adopted in this Court’s earlier decision. I refer to what is said in [112] above. Further, the construction adopted in Dimitropoulous can readily be seen to reflect the ordinary meaning of the text of s 25 and its reference to circumstances of ‘sudden or extraordinary emergency’. Dictionary meanings of the notion of ‘emergency’ refer to a situation that calls for immediate action. For example, the Shorter Oxford English Dictionary relevantly defines ‘emergency’ as a situation that ‘arises unexpectedly and requires urgent action’; the Macquarie Dictionary relevantly defines it as ‘an unforeseen occurrence; a sudden and urgent occasion for action’. To my mind there is force in the view adopted in Dimitropoulous that these definitions reflect common usage and the natural sense of the word. Moreover, as already noted, two judges in Warnakulasuriya considered that, in its ordinary meaning, ‘emergency’ connotes a situation requiring an immediate response.
Indeed, the appellant accepted that the construction adopted in Dimitropoulos reflects the ordinary meaning of the text of s 25 and, in particular, the phrase ‘sudden or extraordinary emergency’.⁹⁹ Of course, the process of construction may result in the attribution of a meaning to the statutory text that differs from its ordinary or grammatical meaning.¹⁰⁰ Nevertheless, in a context where the appellant must meet the high hurdle, as explained in [69] above, of satisfying this Court to a strong conviction that the construction adopted in Dimitropoulos is erroneous, the concession that the challenged construction reflects the ordinary meaning of the statutory text itself creates a substantial obstacle for the appellant’s contention.
In the framework identified in [114] above, the concept of a ‘sudden emergency’ is not necessarily tautologous. In the context of s 25, ‘sudden’ may be taken to refer to the manner in which the emergency arose, rather than speaking to the timing of the required response. As Yeo has said, in observations adopted in both Johnson¹⁰¹ and in Warnakulasuriya,¹⁰² a sudden emergency can be taken to refer to those emergencies that arise, or of which the accused becomes aware, unexpectedly and without prior warning. Such emergencies might give the accused little or no opportunity for reflection before acting in response to the emergency. By contrast, other emergencies need not so arise, but, rather, may, to the accused’s knowledge, develop gradually over a period of time. Some (perhaps many) emergencies of the latter kind - which are not sudden - might fairly be characterised as extraordinary emergencies.

Grounds 2 and 3

Grounds 2 and 3 can be dealt with together. Ground 2 asserts that the primary judge erred in holding that:(a)the appellant’s circumstances did not amount to an extraordinary emergency;¹⁰⁶(b)the appellant’s belief that she was facing an extraordinary emergency was not objectively reasonable;¹⁰⁷ and(c)the appellant’s circumstances were not distinguishable from Dimitropoulos.¹⁰⁸
Ground 3 asserts that the primary judge reached the conclusions by the following reasons:(a)although suicidal, there was no evidence of the appellant acting on her suicidal ideations, any suicide attempts or need for hospitalisation;¹⁰⁹(b)the appellant had a long-standing addiction to cannabis over and above any requirement for pain relief;¹¹⁰(c)the appellant had been placed back on opioids at the time of the offending because the cannabis was not killing the pain;¹¹¹(d)the appellant had the possible options of:accessing medicinal cannabis in Queensland, or at least the appellant had not discharged her onus regarding her attempts to get access to it;¹¹²accessing medicinal cannabis in New South Wales by moving there, or at least there was no evidence of the precise relocation costs and whether she could have obtained government or family assistance to fund the move;¹¹³ andcontinuing to take prescription medication until becoming eligible for medicinal cannabis at a later date.¹¹⁴ It assumed that the appellant’s condition would qualify for medicinal cannabis at some point (and that she could afford to fill the prescriptions once she became eligible).
Ground 3 further asserts that the primary judge ought to have found that:(a)the appellant was not acting on her suicidal ideations because the cannabis was keeping the suicidality under control;(b)there was no addiction. There was no medical evidence of an addiction. The appellant, as per her evidence, only started using cannabis after spinal surgery for pain in 1988 (and not for personal or recreational purposes);(c)the appellant only combined opioids and cannabis on two occasions, when she had gangrene. The opioids were prescribed despite the appellant telling the doctor that they did not work;(d)regarding the appellant’s options:prescription of medicinal cannabis in Queensland was not available because the appellant’s condition did not qualify under the scheme;moving to New South Wales was not an option due to the cost and loss of support network; andcontinuing to take prescription medication, when it was not controlling the pain and was causing side-effects, was not an option.

“It is important to understand what is meant by a factual finding being shown to be “unreasonable”. “Unreasonable” means unreasonable in a particular legal sense, namely the sense discussed in Hocking v Bell (1945) 71 CLR 430 in relation to findings of fact by a jury. As Gibbs J observed in Clark v Trevilyan [1963] QWN 11:¹¹⁹

‘If we are bound, as I think we are, to treat the findings of a District Court judge as though they were those of a jury, we have no right to substitute our own findings for those of the District Court judge. Our function is limited to see first whether there is any evidence in support of the findings, and secondly whether the finding can be set aside as being against the weight of evidence and unreasonable, within the meaning of the authorities discussed by Dixon J … in Hocking v Bell ([1945] 71 CLR 430 at pp 497–499). When these tests are applied, the finding that is now attacked cannot be disturbed. Slight as it was, there was some evidence to support the judge’s finding … There is no such preponderance of evidence against this finding as to make it unreasonable.’

It would not be enough for an applicant for leave to appeal pursuant to s 118 to show that the factual finding was reached by a course of reasoning that this Court might find unsatisfactory, or unpersuasive, or even incorrect in some respects. In order to reach a conclusion that a factual finding of the District Court judge was unreasonable in the relevant sense, this Court would have to be persuaded, as Fraser JA observed in Hendle v Commissioner of Police [2020] QCA 26:

‘… that there is an “overwhelming preponderance” of evidence against [the finding of fact] or “such a preponderance of evidence” as to make [the finding of fact] “unreasonable, and almost perverse”; see Hocking v Bell (1945) 71 CLR 430 at 499 (Dixon J).’”

The appellant’s submissions did not attempt to explain how the points made in the written submissions could lead to a conclusion that the relevant findings were unreasonable in the demanding sense explained in Hocking v Bell.¹²⁰
This fundamental flaw is fatal to acceptance of the appellant’s submissions on grounds 2 and 3. I will illustrate why that is so by considering some of the appellant’s submissions as to particular intermediate findings.
As to the judge’s observation that there was no evidence of the appellant acting on her suicidal ideations nor obtaining hospital treatment for it, the appellant accepts the findings as correct, but submits that the observations appear to overlook the appellant’s evidence that the cannabis was controlling her suicidal thoughts.¹²¹ This submission does not reveal, or tend to suggest, error of a kind within the limited ambit of the present type of appeal to this Court. Rather, it invites a reconsideration of the weight and relative significance of various aspects of the evidence. That is a submission apt for an appeal by way of rehearing.
Similar observations may be made concerning the appellant’s submissions impugning the primary judge’s finding that the appellant was on opioids at the time of the offending. The appellant accepts that that was so but submits that the evidence should be properly seen in the context that she was on “a roundabout” of opioids: when one did not work, she would be prescribed another.¹²²
The appellant complains about the primary judge’s observation that the magistrate’s finding that there was a long-standing addiction to cannabis aside from pain relief was open. She submits that this finding is contrary to the only evidence available, namely her evidence.¹²³ This submission does not assist the appellant. That is because the primary judge did not himself make a finding as to a long-standing addiction. His Honour’s observation that the magistrate’s finding to that effect was open was made more in passing and, when the reasons are read as a whole, cannot properly be seen to have borne significantly on the primary judge’s analysis.
In my view, the appellant’s submissions in support of grounds 2 and 3 fall well short of establishing that the relevant findings were unreasonable in the demanding sense explained above.
In my opinion, there is insufficient merit in grounds 2 and 3 to justify a grant of leave to appeal. I turn to the question of whether leave to appeal should be granted on the basis of ground 1.

Conclusion: Should leave to appeal be granted?

Ground 1 raises a question of broad significance concerning the proper construction of s 25 of the Code. That is a matter that tends in favour of the grant of leave to appeal.¹²⁴ Nevertheless, having regard to the following two matters, I would not grant leave to appeal. First, in my view the arguments advanced to this Court fell appreciably short of establishing a sufficient basis to depart from its previous decision in Dimitropoulos. Secondly, as the respondent accepted, success on ground 1 would not sustain the appeal. In other words, the argument the subject of ground 1 was not one which, in itself, asserted an error that when corrected would justify the appellant’s claim for relief. The appellant needed also to succeed in relation to grounds 2 and 3. For the reasons given, I do not consider those grounds have sufficient merit to sustain the grant of leave to appeal.
For the above reasons, I would refuse leave to appeal and dismiss the appeal.

Footnotes

Lynch v Commissioner of Police [2021] QDC 213 (primary reasons). ↩
R v Dimitropoulos (2020) 282 A Crim R 402; [2020] QCA 75. ↩
Primary reasons at [4]-[61]. ↩
A question arose during the course of argument as to whether a mistaken belief that an emergency existed, in circumstances where on a proper construction of s 25 none did, would engage s 24. At the appellant’s request, the parties filed supplementary submissions. However, it is not necessary to deal with that question in order to resolve the appeal. ↩
Primary reasons at [64]. ↩
(2012) 261 FLR 260; [2012] WASCA 10; Primary reasons at [67]. ↩
Primary reasons at [68]. ↩
Primary reasons at [69]-[70]. ↩
Primary reasons at [71]. ↩
Primary reasons at [80], citing Dimitropoulos at [62], [63]. ↩
Primary reasons at [83]. ↩
Primary reasons at [87]. ↩

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