R v Lacey; ex parte Attorney-General

SUPREME COURT OF QUEENSLAND

CITATION: R v Lacey; ex parte A-G (Qld) [2009] QCA 274

PARTIES: R v LACEY, Dionne Matthew (applicant/appellant) / R v LACEY, Dionne Matthew (respondent) EX PARTE ATTORNEY-GENERAL OF QUEENSLAND (appellant)

FILE NO/S: CA No 114 of 2009 CA No 148 of 2009 SC No 920 of 2008

DIVISION: Court of Appeal

PROCEEDING: Appeal against Conviction & Sentence Sentence Appeal by A-G (Qld)

ORIGINATING COURT: Supreme Court at Brisbane

DELIVERED ON: 11 September 2009

DELIVERED AT: Brisbane

HEARING DATE: 15 July 2009; 16 July 2009

JUDGES: Chief Justice, McMurdo P, Keane, Muir and Chesterman JJA Joint reasons for judgment of Chief Justice and Keane, Muir and Chesterman JJA; separate reasons of McMurdo P, dissenting in part

ORDERS: In Appeal No 114 of 2009: / In Appeal No 148 of 2009:

CATCHWORDS: CRIMINAL LAW – APPEAL AND NEW TRIAL – PARTICULAR GROUNDS OF APPEAL – MISDIRECTION OR NON-DIRECTION – EFFECT OF MISDIRECTION OR NON-DIRECTION – where appellant, after trial, was found not guilty of murder but guilty of manslaughter – where appellant sought to rely upon s 25 and ss 271, 272 and 273 Criminal Code 1899 (Qld) (the Code) – where facts relied on to invoke ss 271, 272 and 273 were the same as those relied on for the purposes of s 25 – whether primary judge erred in failing to direct the jury upon the operation of s 25 of the Code / CRIMINAL LAW – APPEAL AND NEW TRIAL – PARTICULAR GROUNDS OF APPEAL – MISDIRECTION OR NON-DIRECTION – CONSIDERATION OF SUMMING UP AS A WHOLE – where appellant was tried with Jade Lacey, his brother and co-accused – where primary judge summed up the case against Jade Lacey before moving to the case against the appellant – whether primary judge adequately directed the jury as to the application of ss 24, 271, 272 and 273 of the Code to the appellant’s case – whether primary judge failed to instruct upon the definition of provocation and its application to the appellant’s case – whether primary judge failed to put the appellant’s case to the jury, identify the real issues applicable to his case or relate those issues to the relevant law and facts / CRIMINAL LAW – APPEAL AND NEW TRIAL – PARTICULAR GROUNDS OF APPEAL – IRREGULARITIES IN RELATION TO JURY – PARTIALITY – where a person claiming to be a juror telephoned the appellant's solicitors and informed them that another juror’s brother had been shot and that that juror "had a great deal of control and influence over the jury" – where juror was advised to contact primary judge’s associate and did so – where associate directed juror to s 70 Jury Act 1995 (Qld) – where there was no evidence that the person who approached the appellant's solicitors took any action under s 70(8) of the Act – whether jury’s verdict was impugned with bias occasioning a miscarriage of justice / CRIMINAL LAW – APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE – GROUNDS FOR INTERFERENCE – SENTENCE MANIFESTLY EXCESSIVE OR INADEQUATE – where appellant was sentenced to 10 years imprisonment for manslaughter – where primary judge reduced notional head sentence to take into account non-declarable pre-sentence custody – whether primary judge wrongly characterised the nature of the appellant’s conduct and his culpability in the commission of the offence – whether sentence imposed was manifestly excessive / CRIMINAL LAW – APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE – APPEALS BY CROWN – PRINCIPLES APPLIED BY APPELLATE COURT TO CROWN APPEALS – where s 669A of the Code confers "unfettered discretion" on Court of Appeal upon appeal against sentence by Crown – where respondent argued Crown must demonstrate error by sentencing judge to enliven appellate discretion – where respondent argued that appellant discretion, once enlivened, must be exercised by imposing a sentence towards the bottom end of the available range – whether appellate discretion conferred by s 669A fettered by those propositions / Corrective Services Act 2006 (Qld), s 182 Criminal Code 1899 (Qld), s 23, s 24, s 25, s 271, s 272, s 273, s 668D(1)(c), s 668E(3), s 669A(1), s 669A(1A) Jury Act 1995 (Qld), s 53(7)(a), s 70(7), s 70(8) Penalties and Sentences Act 1992 (Qld), s 159A, Part 9A / Aon Risk Services Australia Limited v Australian National University (2009) 258 ALR 14; [2009] HCA 27, cited Bryan v The Queen; Lewis v Attorney-General of Queensland [2004] HCA Trans 246 (23 June 2004), considered C & J Clark Ltd v Inland Revenue Commissioners [1973] 1 WLR 905, cited Callaghan v The Queen (1952) 87 CLR 115; [1952] HCA 55, cited Carroll v The Queen (2009) 254 CLR 379; [2009] HCA 13, cited Dinsdale v The Queen (2000) 202 CLR 321; [2000] HCA 54, considered Domican v The Queen (1992) 173 CLR 555, [1992] HCA 13, cited Elford v FAI General Insurance Company Limited [1994] 1 Qd R 258; [1992] QCA 41, cited Evans v Davies [1991] 2 Qd R 498; [1990] FC 62, cited Everett v The Queen (1994) 181 CLR 295; [1994] HCA 49, cited Gamser v The Nominal Defendant (1977) 136 CLR 145; [1977] HCA 7, cited GAS v The Queen (2004) 217 CLR 198; [2004] HCA 22, cited Griffiths v The Queen (1977) 137 CLR 293; [1977] HCA 44, considered Harding v Coburn [1976] 2 NZLR 577, cited House v The King (1936) 55 CLR 499; [1936] HCA 40, cited Imbree v McNeilly (2008) 236 CLR 510; [2008] HCA 40, cited John v Federal Commissioner of Taxation (1989) 166 CLR 417; [1989] HCA 5, considered Lacey v DPP (Qld); Lacey v DPP [2007] QCA 413, cited Lowe v The Queen (1984) 154 CLR 606; [1984] HCA 46, cited Markarian v The Queen (2005) 228 CLR 357; [2005] HCA 25, cited Miller v Jennings (1954) 92 CLR 190; [1954] HCA 65, cited Nanan v The State [1986] AC 860, cited Neal v The Queen (1982) 149 CLR 305; [1982] HCA 55, cited Nguyen v Nguyen (1990) 169 CLR 245; [1990] HCA 9, cited R v Adams (1980) 2 A Crim R 207, considered R v Ainsworth [2000] QCA 163, cited R v Alibasic and Salajdjiza; ex parte Cth DPP [2005] QCA 108, cited R v AS; ex parte A-G (Qld) [2004] QCA 259, cited R v Assurson (2007) 174 A Crim R 78; [2007] QCA 273, cited R v Beevers [1942] St R Qd 230, considered R v CAK & CAL; ex parte Cth DPP [2009] QCA 23, cited R v Challinger [1989] 2 Qd R 352; [1989] CCA 59, cited R v Dillon; ex parte A-G (Qld) [2006] QCA 521, cited R v Dullroy & Yates; ex parte A-G (Qld) [2005] QCA 219, cited R v Fairbrother; ex parte A-G (Qld) [2005] QCA 105, cited R v Ferguson; ex parte A-G (Qld) [2008] QCA 227, distinguished R v Gordon; ex parte Cth DPP [2009] QCA 209, cited R v Griffin & Dunkerton [1999] QCA 71, considered R v GV [2006] QCA 394, cited R v Hodgetts and Jackson [1990] 1 Qd R 456; [1989] CCA 220, cited R v Hood [2005] 2 Qd R 54; [2005] QCA 159, cited R v Jones (1995) 38 NSWLR 652, distinguished R v JS (2007) 175 A Crim R 108; [2007] NSWCCA 272, cited R v Katia; ex parte A-G (Qld) [2006] QCA 300, cited R v Kimmins [2006] QCA 438, cited R v Kirby; ex parte A-G (Qld) [2009] QCA 35, cited R v Kitson [2008] QCA 86, cited R v Lester [2004] QCA 34, cited R v Liekefett; ex parte Attorney-General [1973] Qd R 355, overruled R v McKeown [1940] St R Qd 202, considered R v Melano; ex parte Attorney-General [1995] 2 Qd R 186; [1994] QCA 523, overruled R v Mladenovic; ex parte A-G (Qld) [2006] QCA 176, cited R v Mogg (2000) 112 A Crim R 417; [2000] QCA 244, cited R v Mrsic; ex parte A-G (Qld) [2005] QCA 349, cited R v O'Grady; ex parte A-G (Qld) (2003) 138 A Crim R 273; [2003] QCA 137, cited R v Osmond; ex parte Attorney-General (Qld) [1987] 1 Qd R 429; [1986] CCA 196, considered R v Peterson [1984] WAR 329, cited R v Poynter, Norman & Parker; ex parte A-G (Qld) [2006] QCA 517, cited R v Quick; ex parte A-G (Qld) (2006) 166 A Crim R 588; [2006] QCA 477, cited R v Secretary of State for the Home Department; ex parte Simms [2000] 2 AC 115, cited R v Sittczenko; ex parte Cth DPP [2005] QCA 461, cited R v Smith [2005] 2 Qd R 69; [2005] QCA 1, considered R v Swayn; ex parte A-G (Qld) [2009] QCA 81, cited R v TR & FV; ex parte A-G (Qld) (2008) 186 A Crim R 420; [2008] QCA 221, cited R v Tupou; ex parte A-G (Qld) [2005] QCA 179, cited R v Whelan CA No 144 of 1990, New South Wales Court of Appeal, unreported, 5 October 1990, cited R v Wilkins; ex parte A-G (Qld) [2008] QCA 272, cited Re Bolton; Ex parte Beane (1987) 162 CLR 514; [1987] HCA 12, cited Skinner v The King (1913) 16 CLR 336; [1913] HCA 32, considered The Commonwealth v Hospital Contribution Fund (1982) 150 CLR 49, [1982] HCA 13, considered The Queen v Wilton (1981) 28 SASR 362, cited Ward v Williams (1955) 92 CLR 496; [1955] HCA 4, cited Weiss v The Queen (2005) 224 CLR 300; [2005] HCA 81, cited Whittaker v The King (1928) 41 CLR 230; [1928] HCA 28, considered York v The Queen (2005) 225 CLR 466; [2005] HCA 60, considered

COUNSEL: B W Walker SC, with P Morreau, for the applicant/appellant in Appeal No 114 of 2009 and the respondent in Appeal No 148 of 2009 W Sofronoff QC SG, with M R Byrne, for the respondent in Appeal No 114 of 2009 and, with E S Wilson, for the appellant in Appeal No 148 of 2009

SOLICITORS: Boe Lawyers for the applicant/appellant in Appeal No 114 of 2009 and the respondent in Appeal No 148 of 2009 Director of Public Prosecutions (Queensland) for the respondent in Appeal No 114 of 2009 and the appellant in Appeal No 148 of 2009

CHIEF JUSTICE, KEANE, MUIR AND CHESTERMAN JJA:

Appeal against conviction – introduction

On the evening of 6 May 2007 in a home unit in Nerang, the appellant, Dionne Lacey, shot and killed another young man, Kevin Palmer. Seconds before the killing, the appellant's elder brother, Jade Lacey, used the gun he was carrying to shoot Mr Palmer in the thigh. The victim was within two or three metres of Jade Lacey when he fired and was within a few metres of the appellant when the fatal shot was fired.

After a 14 day trial, the appellant was found not guilty of murder but guilty of manslaughter and sentenced to 10 years imprisonment. In determining the sentence, the primary judge reduced the 12 year term which he regarded as appropriate, by taking into account 733 days served by the appellant in pre-sentence custody in respect of another offence.

Jade Lacey, who was tried with the appellant, was convicted of wounding the deceased with intent to maim and sentenced to five years imprisonment. In his case the primary judge adjusted the seven year term of imprisonment he regarded as appropriate to take into account 733 days of pre-sentence custody served in respect of another offence.

The appellant and Jade Lacey each appealed against his conviction and sentence. The Attorney-General appealed against the appellant's sentence and the appeals were heard together.

The uncontroversial evidence

Brenden Staker and Sami Sengul rented and resided in Unit 22 in a townhouse complex in Nerang. Aytac Kusdemir slept on a couch in the unit a "couple of nights a week". On the evening of 6 May 2007, a group of friends and acquaintances congregated in the unit with a view to travelling to Brisbane to attend a party. Those present were Damir Ajkunic; Sami Sengul; Mahir El-Kholed; Salih Gaziler; Wen Chia Chang; Aytac Kusdemir, Samir Haydar and the deceased. Brenden Staker was visiting an adjoining unit.

At about 9.30pm that evening, the appellants entered the unit at about the same time as Samir Haydar and Damir Ajkunic (who were returning after a brief absence).

The appellant had on his person a concealed .25 calibre pistol. Jade Lacey was carrying a concealed .38 calibre revolver.

On arrival in the unit, the appellants, or at least Jade Lacey, shook hands with the deceased. Shortly afterwards, Aytac Kusdemir left the unitwith Jade Lacey. Dionne Lacey spoke angrily to Mahir El-Kholed, taking exception to the way in which he perceived Mr El-Kholed was looking at him. He said words to the effect, "If you want something to look at, come outside." Mr El-Kholed, and possibly others, responded in a conciliatory manner. Dionne Lacey went into the hallway and may have gone out of the front door briefly.

Jade Lacey came to the entry of the hallway into the living room and spoke to those present. In response, the deceased rose from his chair and moved threateningly towards Jade Lacey, who was standing in or near the junction of the hallway and the living area. Jade Lacey backed into the hallway.

All the persons in the room who gave evidence swore that the deceased stopped moving forward before the shooting and was heard to say words variously described as, "If you're going to shoot, shoot"; "If you're a man, shoot me. Come on"; "Oh, you want to shoot me"; and "Are you going to fucking shoot me?" One neighbour heard a person say words including "shoot me" immediately before hearing two shots. Jade Lacey fired. The deceased was heard to swear and was seen to move backwards, grab a chair and throw it. The appellant fired his pistol and the men in the room scattered, seeking cover. The deceased collapsed.

Mr Staker, who was in an adjoining unit, heard two shots. Immediately before that he heard raised voices which "sounded like an argument".

Eight residents or visitors to nearby units gave evidence of hearing two shots. Two other such residents or visitors could recall only one shot. Two of the men in the unit when the shots were fired, who did not give evidence at the trial, swore on oath to Crime and Misconduct Commission officers that there were two shots. Messrs Sengul and Gaziler swore to hearing two shots. Mr Haydar swore to hearing two shots but had previously sworn to hearing three. Mr Ajkunic recalled three shots but surmised that the third sound may have been an echo of the second.

The bullets fired by the appellants were found in the deceased's body and investigators found no physical evidence of a third shot. It was suggested to a police forensic expert in cross-examination that a mark on a wall of the unit may have been caused by a bullet. His evidence was to the effect that although this was possible it was unlikely. Jade Lacey's evidence was that he heard two shots but couldn't exclude the possibility of a third.

The evidence thus supported the conclusion that only two shots were fired.

The bullet fired by Jade Lacey entered the side of the deceased's left thigh 16 centimetres from the top of the hip, 81 centimetres above the base of the heel, exited from the inside of the left thigh 78 centimetres above the heel, before entering the right thigh 78 centimetres above the right heel. The bullet fired by the appellant travelled through the deceased's heart and lung before lodging in rib tissue. In the opinion of Dr Urankar, the forensic pathologist who conducted a post mortem examination of the deceased, death would have occurred between two and thirty seconds "at the most". She said, "There is a period of survival … but we are talking a couple of beats of the heart or so." In her opinion, the deceased would have been standing with his legs close together when the first bullet entered his thigh at a 45 degree angle.

Jade Lacey's evidence

The appellant did not give evidence. Jade Lacey's evidence was to this effect. After he and his brother went into the unit he shook hands with Aytac Kusdemir and the deceased and went outside to discuss the purchase of cocaine for use that evening. When outside he heard an altercation. The appellant came out and Jade Lacey asked Aytac Kusdemir, "What's their problem?" Aytac Kusdemir gave an explanation about an incident at Palm Meadows in which a colleague of theirs had been shot and said that the group was "ready" should the perpetrators seek revenge on account of the disclosure of their identity to the authorities.

Jade Lacey had seen a gun on the table when he first went into the unit and wasn't sure whether there were other guns in the unit. He heard loud voices coming from inside. Aytac Kusdemir told him not to worry about it but he said, "I'll just go inside and calm them down".

He went inside and said words to the effect, "What's your problem with my brother?" and "Why don't you all just calm down. That way, nobody gets hurt." In response to this, the deceased "just jumped up and exploded, just went berserk". He "jumped straight up at" Jade Lacey, yelling. Jade Lacey backed into the hallway, afraid. Mahir El-Kholed came towards him as well, carrying a bottle by the neck. The deceased walked past Mahir El-Kholed, gesturing down to his "bumbag", yelling, "You gonna fucking shoot me … You gonna fucking shoot me". Jade Lacey thought there was a gun in the bumbag, as the gun he had seen on the table was no longer there. He pulled out his gun and pointed it at the waistlines of the deceased and Mahir El-Kholed, while continuing to back down the hallway, hoping that they would back off.

The deceased, when "just in the hallway", stopped momentarily, put his hand into his bumbag and pulled out a pistol after saying, "I'll show you who the fuck I am." The deceased was then about two metres away from Jade Lacey and he rushed forward. At one point in his cross-examination Jade Lacey said that the deceased came at him at a "bit of an angle". Elsewhere he accepted that the deceased was "coming straight at" him when he fired.

As soon as Jade Lacey saw the gun, at which he had "a real good look", he pointed his "gun downwards and fired a shot at the floor in front of [the deceased's] feet." He was afraid. He thought the deceased was going to kill him and he "just wanted to make a big bang so hopefully [he] could get out of there … quick". He banged into the appellant and heard another gunshot. By then he was close to the front door. He "turned to get away [and was] pacing towards the gate." He then saw his brother, who enquired, "Where did you get hit?" He heard two shots but couldn't say if there was a third because of the "big bang" caused by the first shot.

He habitually carried a gun as part of his image. He didn't know his brother was carrying a gun that evening. In cross-examination he denied taking his gun out before "what you say is him pulling a gun." He swore he "didn't pull a gun … Till later."

The deceased was found by police investigators who arrived shortly after the shooting, lying on his back "at the end of the hallway between the kitchen, lounge [and] dining areas with his left arm resting on an overturned chair." The chair had been damaged and it had on it patches of a white substance with the appearance of plaster.

Blood stains caused by free falling droplets of blood were located close to the deceased's body. Blood from "[c]ontact staining … when a bloodstained object comes into contact with another unstained object and causes a transfer of blood" was observed "across the region of the front of the kitchen bench". No blood was seen in the hallway.

The unit was very small and the short, narrow hallway opened into a room which contained a kitchen on the left (looking down the hallway from the front door). The rest of the space was occupied by lounge room furniture, a kitchen or dining table and three chairs. In his address to the jury, counsel for Jade Lacey described the unit as "tiny" and "claustrophobic". Counsel for the appellant in his address reminded the jury that on their inspection they "saw how small it was."

The ambit and nature of the other evidence

The witnesses other than Jade Lacey, the four other persons present in the unit and Brenden Staker, were:

Nine residents of or visitors to the unit complex. The evidence of most of these witnesses was quite brief and directed mainly to what they had heard and, in some cases, to what they had seen in the dark;

The forensic pathologist;

An officer from the police ballistics unit who was cross-examined with relative brevity;

A police photographer;

Four police officers who attended the crime scene and who were cross-examined briefly;

A police officer who gave evidence of the whereabouts of Messrs Kusdemir, Chang and El-Kholed; and

The deceased's mother.

There was a limited amount of identification evidence given by two or three of the resident/visitor witnesses, including evidence of the sighting, in poor light, of a man, after the gun shots, with a gun, or something that looked as if it could have been a gun. Having regard to the reasonably clear evidence of what took place at critical times, this evidence was of only modest relevance.

Ground 1 – failure to direct the jury on the operation of s 25 of the Criminal Code 1899 (Qld)

The appellant's counsel made the following submissions.

The primary judge erred in not directing the jury as to the possible application of s 25 of the Code. The section provides:

"Extraordinary emergencies

Subject to the express provisions of this Code relating to acts done upon compulsion or provocation or in 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."

In R v Smith,¹ it was held that the opening words of s 25 excluded the section's operation where the provisions of the Code relating to acts done upon compulsion were brought into operation. Smith was wrongly decided as an erroneous meaning was given to the words "Subject to". Particular reliance was placed on C & J Clark Ltd v Inland Revenue Commissioners² and Harding v Coburn.³ In the former, Megarry J said:⁴

"Where there is no clash, the phrase does nothing: if there is a collision, the phrase shows what is to prevail. The phrase provides no warranty of universal collision."

In the latter case, it was said by the New Zealand Court of Appeal, "The qualification, 'subject to' is a standard way of making clear which provision is to govern in the event of conflict. It throws no light, however, on whether there would in truth be a conflict without it." Similar statements have been made in Australia.⁵

Counsel for the appellant also sought to distinguish Smith, or to contend that it ought not be followed, on the basis that the approach in Smith "drew directly upon cases dealing with an interplay between ss 23 (accident) and 289 (criminal negligence)". Reference was made to the observations of Thomas J in R v Hodgetts and Jackson⁶ where his Honour observed:

"It is clear that in cases falling under s.289 (which embraces most but not all conceivable cases depending upon proof of criminal negligence), a separate set of sections and considerations apply, virtually in a different stream from those which apply to other cases involving death or harm through personal violence."

Senior counsel for the appellant contended, in effect, that these observations were inapplicable to defences under ss 271, 272 and 273 as, "It would be repugnant to the intention of s 289 to provide a defence of unwilled act (s 23) to the charge [of criminal negligence]. Thus, in relation to criminal negligence, the words 'subject to' exclude the operation of emergency, not because of the presence of the words themselves, but because of the 'collision' between the two provisions and the factual matrix at play when these conditions arise. The same cannot be said in respect of emergency and self-defence."

Consideration

It was said in the judgment of the Court in Callaghan v The Queen⁷ in respect of sections 23 and 266 of the Criminal Code 1913 – 1945 (WA):

"But s. 23 provides that subject to the express provisions of the Code relating to negligent acts and omissions, a person is not criminally responsible for an act or omission which occurs independently of the exercise of his will, or for an event which occurs by accident. The reference to the express provisions of the Code relating to negligent acts and omissions covers s. 266, which occurs in Chapter XXVII headed 'Duties relating to the Preservation of Human Life.'…It will be noticed that s. 266 is expressed in terms of duty, so to speak, in gross. It is not connected with criminal liability in itself. But, because s. 23 is qualified by being made subject to the provisions relating to negligent acts and omissions and s. 266 is such a provision, it must be taken that the fact that an event causing death occurs independently of the accused's will or by accident can afford no excuse within s. 268 if it falls within s. 266."

Section 23 of the Western Australian Code was identical in terms to s 23 of the Code and the above approach is of obvious relevance to the present question of construction.

The introductory words of ss 23 and 25 of the Code are identical. In the former section they relate to "negligent acts or omissions" and, in the latter, to "acts done upon compulsion or provocation or in self-defence". Section 268 defines "provocation" and s 269 provides for the circumstances in which provocation may provide a defence to an assault on another. Sections 271, 272 and 273 detail the circumstances in which self-defence may provide a defence to a charge arising out of acts which would otherwise constitute a crime of violence. Section 271(1) is concerned with a person's response to an unlawful and unprovoked assault. Section 271 permits the use of force which may cause death or grievous bodily harm in circumstances in which the person using force by way of self-defence believes "on reasonable grounds, that the person can not otherwise preserve the person defended from death or grievous bodily harm." Section 272 is concerned with self-defence against provoked assault. Not surprisingly, the defence is excluded (by subsection (2)) where the person "using force which causes death or grievous bodily harm first began the assault with intent to kill or to do grievous bodily harm to some person" and also where "the person using force which causes death or grievous bodily harm endeavoured to kill or to do grievous bodily harm to some person before the necessity of so preserving himself or herself arose." In either case the defence does not apply either unless "before such necessity arose, the person using such force declined further conflict, and quitted it or retreated from it as far as was practicable." Section 273 is concerned with aiding the defence of another.

Plainly, ss 271, 272 and 273 are intended, where self-defence is invoked, to define comprehensively the circumstances in which the defence can operate. They provide a code of sorts within the Code. Consequently, orthodox principles of construction would suggest that the introductory words of s 25 should be construed as excluding the application of that section where the evidence gives rise to the possibility that an accused is not criminally responsible for his conduct by reason of the operation of s 271, s 272, or s 273. At least as a general proposition, where the specific provisions of the Code concerning self-defence arise for the jury's consideration, there is no scope, on the same facts, for the operation of s 25.

This conclusion is consistent with the following opinions expressed by Professor O'Regan in New Essays on the Australian Criminal Codes:⁸

"The opening words of s. 25 greatly diminish the possible scope of the general defence which is then set out. The specific defences of compulsion, provocation or self-defence may apply to many of the common circumstances in which the necessity or at least the stress of the situation may cause a person to do an act which is prima facie criminal. Moreover the Code elsewhere provides a defence akin to necessity upon a charge of unlawful abortion, a context in which the common law has admitted such a defence." … Thus the criminal responsibility for acts or omissions done or made in the circumstances of sudden or extraordinary emergency often falls to be determined by reference to other provisions of the Code. No doubt this is one reason why s. 25 has generated so little case law either in Queensland or in Western Australia or Papua New Guinea where the Griffith Code was adopted."

Immediately prior to this passage, Professor O'Regan observed:

"Sir Samuel Griffith chose to make the statement of justification or excuse in his code comprehensive by including s. 25 as a residual defence to protect the 'morally innocent' where other defences did not apply."

Section 25, as Professor O'Regan states, provides a "residual defence". It is not an overarching provision to which resort may be had irrespective of the possible application of the Code's more specific provisions in respect of compulsion, provocation and self-defence. It would be remarkable if, on the proper construction of the subject provisions of the Code, a defence under the specific and detailed provisions of ss 271, 272 and 273, the possible operation of which was engaged by the evidence, could be rejected but that a defence could nevertheless arise on the same facts under s 25.

In this case, as the facts relied on to invoke self-defence were the same as those relied on for the purposes of a defence of "extraordinary emergency", there was no scope for the application of the latter.

Even if the primary judge had been required to direct on the possible application of s 25, it is difficult to see how the appellant could have succeeded under that section once the jury rejected self-defence. The extraordinary emergency relied on was that created by the circumstance, alleged to exist by the appellant, that the deceased produced a gun. The verdict makes plain that the jury rejected that version of the facts and with it the basis of any claim for the existence of an extraordinary emergency.

The appellant was near his brother in the narrow hallway when the first shot was fired and it may be inferred that the appellant was aware that his brother was armed. Jade Lacey's evidence is that he bumped into his brother after he fired and then heard another "bang sound". That was obviously the second gunshot. There is no sound reason for accepting that the appellant had reason to believe that the first shot was fired by anyone other than his brother. Jade Lacey's evidence that the appellant asked him "Where did you get hit?" outside the unit, if accepted, would provide some evidence to the contrary but, as explained in the reasons in Appeal No 123 of 2009 there was good reason for rejecting Jade Lacey's evidence unless corroborated.

Ground 2 – Inadequate directions on ss 24, 271, 272 and 273 of the Code and failure to put the appellant's case to the jury

The appellant complained that the summing up was inadequate in two respects. The first was that the directions given ("while they had technical fidelity to the Code and the ... Benchbook") were disorganised and too confusing for proper consideration by a jury. The second was that they did not sufficiently assist the jury as to the real issues raised on the evidence because the trial judge failed to put the appellant's case to the jury, identify the real issues applicable to his case or relate those issues to the relevant law and facts.

The appellant submitted that the trial judge's directions on law were "confusing and unwieldy and complicated by the fact that the same directions were expressed in joint terms in respect of both accused, [but] the sum of what was said ... remained inadequate. ... [The trial judge] did not ... appreciate the need to distinguish between the two trials. ... [There was a] need ... to have separately articulated the appellant's defences ... and explain that they could rationally reject [Jade Lacey's] defences but still embrace the appellant's separate basis for acquittal ...".

The appellant made a specific complaint about the summing up in relation to self-defence as it might apply to the alternative verdict of manslaughter. It was said that the directions:

"were confusing as to the application of self-defence in respect of the charge of manslaughter ... [which] was not even discussed ... in relation to self-defence ... . Section 271(1) does not apply to the charge of murder, however it could apply to manslaughter. [The trial judge] made no reference to this distinction. ... [The trial judge] did not relate the issue of the appellant's belief relevant to self-defence to ... manslaughter. Rather, his Honour ... related the belief ... to ... murder only, and ... intent was the only issue that decided whether the appellant was guilty of manslaughter or murder. "

The submissions referred to, and relied upon, R v Jones (1995) 38 NSWLR 652 at 661.

The submissions continued:

"The trial judge made ... limited and inadequate reference to how the law applied to the facts ... . In particular he failed to refer to the pertinent facts as outlined by the appellant's counsel in ... address and how the appellant's case was put for consideration by the jury. ... The defence arguments were not obvious and required a careful grasp of fact and the law as it applied to those facts. ... His Honour did not ... make a distinction between the very different defences being proposed between the two accused."

There was, it was said:

"... a difficult factual matrix for the jury to understand the nature of the appellant's defences and [therefore] ... the trial judge was required to put the appellant's case fully ... ".

It is convenient to quote the following statements of principle from counsel's outline of submissions:

"29.The obligation of the trial judge to fairly present to the jury the case put by the accused is well established: e.g. Domican v The Queen (1992) 173 CLR 555⁹ the High Court observed at 561:

'…the requirement of fairness means that ordinarily the respective cases for the prosecution and the accused must be accurately and fairly put to the jury.'

In RPS v The Queen (2000) 199 CLR 620 at [41] – [42]¹⁰:

'The fundamental task of a trial judge is, of course, to ensure a fair trial of the accused. That will require the judge to instruct the jury about so much of the law as they need to know in order to dispose of the issues in the case. No doubt that will require instructions about the elements of the offence, the burden and standard of proof and the respective functions of judge and jury. Subject to any applicable statutory provisions it will require the judge to identify the issues in the case and to relate the law to those issues.¹¹ It will require the judge to put fairly before the jury the case which the accused makes.

…

Often, perhaps much more often than not, the safer course for a trial judge will be to make no comment on the facts beyond reminding the jury, in the course of identifying the issues before them, of the arguments of counsel.'

And in HML v R (2008) 235 CLR 334 at [121] – [122] per Hayne J:

'[121] The fundamental propositions stated by the Court in Alford v Magee, which have since been referred to many times must remain the guiding principles. First, the trial judge must decide what are the real issues in the particular case and tell the jury, in the light of the law, what those issues are. Secondly, the trial judge must explain to the jury so much of the law as they need to know to decide the case and how it applies to the facts of the particular case.

[122] Neither purpose is adequately served by the bare recitation of forms of model directions. Not only are the real issues not identified for the jury, no sufficient explanation is given to the jury of how the relevant law applies to the facts of the particular case.' (footnotes deleted)

This Court, in Mogg v The Queen¹² referred to these principles and observed the need for the cases of the prosecution and the accused to be accurately and fairly put to the jury. Per McMurdo P at [50] – [54]¹³:

'[50] Section 405AA of the Crimes Act 1900 (NSW), of which there is no Queensland equivalent, provides that a judge need not summarise at the end of a criminal jury trial the evidence given in the trial if the judge is of the opinion that in all the circumstances the summary is not necessary. In Domican v R (1992) 173 CLR 554 the High Court considered that section and noted:

'Nevertheless, the requirement of fairness means that ordinarily the respective cases for the prosecution and the accused must be accurately and fairly put to the jury.'

[51] In R v RNS¹⁴ the New South Wales Court of Appeal observed that the trial judge dispensed with summarising the evidence and noted:

'Provision is made in s 405AA Crimes Act for a trial judge to dispense with a summary of the evidence. That provision does not permit the trial judge to give the jury no guidance as to the way the evidence relates to the directions of law given. It does not relieve the trial judge of the obligation to sum up the respective cases made by the Crown and the accused; R v Condon (1995) 83 ACrimR 335 at 347; Reg v Zorad (1990) 19 NSWLR 91.'¹⁵

Her Honour then cited the passage from RPS noted above and continued:

'[54]The onerous duties of a trial judge will ordinarily include identifying the issues, relating the issues to the relevant law and the facts of the case and outlining the main arguments of counsel. This should have been done in this case but was not; this too may have deprived the appellant of the chance of an acquittal and in itself also warrants a retrial.'

And per Wilson J at [83]:

'The form of a summing up can be expected to vary according to the nature of the case and the style of the particular judge. However, it will not assist the jury unless it identifies clearly and succinctly the issues of fact which the jury must decide in order to reach a verdict. It ought to contain a sufficient presentation of the defence case to enable the jury to comprehend and understand, from the terms of the summing up itself, what the defence case is: R v Veverka (1978) 1 NSWLR 478 at 481-2 per Street CJ. The trial judge's summing up in this case failed to meet these essential requirements.'" (citations as in original submissions)

Consideration

It is useful to commence discussion of these grounds with a brief analysis of the evidence and issues before the jury. The argument just summarised presents the case as factually and conceptually complex. The contrary is the case. Of those present in the unit during the incident, five, including Jade Lacey, gave oral evidence. Evidence of another two was admitted with the consent of the parties.

Although there were differences in the detail and extent of the observations of these witnesses, other than Jade Lacey, the differences were explicable by reference to their respective locations in the room as events unfolded, their respective perceptions, powers of observation and powers of recall. Having regard to the nature of the incident and its brief duration, there would have been significantly more cause to doubt the evidence of these witnesses if their recollections had more closely coincided. Their evidence, however, was consistent in important respects. None of them saw the deceased with a gun or attempting to do something which might reasonably be construed as reaching for a gun. None of them saw the guns used by the appellant and Jade Lacey but they all gave evidence of words used by the deceased immediately before he was first shot from which it may be inferred that the deceased was aware that Jade Lacey was threatening him with a gun.

Jade Lacey's conviction necessarily means that the jury rejected his evidence that he saw the deceased pull a gun from his bag as he confronted Jade Lacey. Jade Lacey shot and wounded the deceased in both thighs and if he moved in any direction after being wounded, it was backwards to a chair, which he picked up and threw. That conduct strongly suggests that the deceased did not have a gun. So too does the evidence given by the other witnesses who were present at the time, of the deceased's ceasing his movement towards Jade Lacey and, in effect, challenging Jade Lacey to shoot. That evidence and the evidence of the pathologist that the deceased was standing wholly or partly side on to the line of Jade Lacey's bullet with his legs close together refutes Jade Lacey's account that he shot only when the armed deceased lunged directly at him.¹⁶ After the chair was thrown the appellant, standing in the hallway, then shot the deceased, who was standing in the well lit living room near the entrance to the short hallway. The shooting was at close range and it is unlikely that the appellant was unable to form an accurate appreciation of what was happening around him. Nor is it likely that the appellant was not looking at the deceased when he fired. The evidence thus provides little support for the view that the appellant fired in defence of himself or Jade Lacey.

Not surprisingly, the jury rejected the proposition that the appellant and Jade Lacey had fired in self-defence, and the contention that the appellant had acted in defence of his brother.

The address of the appellant's senior counsel on the trial was lucid and persuasive. It centred on a development of "ten discrete topics" and four questions in relation to the issues of self-defence and mistake. The ten topics were:

(1)The greeting between the deceased and appellant;

(2)The "staring match" between Mahir El-Kholed and the appellant;

(3)The departure of the appellant from the unit;

(4)&(5)The sounds emanating from the hallway and the sights visible in the hallway when Jade Lacey returned down the hallway to the living area;

(6)The gunshots, two or three, or the perception of three;

(7)Reaction to the shots;

(8)Jade Lacey's movements as they must have been seen looking down the hallway from the appellant's perspective;

(9)The relative positions of the deceased, the appellant and Jade Lacey; and

(10)Jade Lacey's evidence that outside the unit the appellant asked him, "Where did you get hit?"

On analysis the 10 points reduce to three considerations:

The appellant and the deceased greeted each other in a friendly fashion indicative of a cordial relationship which implied a lack of motive in the appellant to kill or harm the deceased.

When confronted by indications of hostility or aggression from El-Kholed the appellant retreated, avoided confrontation and did not react aggressively, thereby indicating some placidity in his conduct.

When considering the appellant's conduct, it is necessary to consider what his perceptions may have been having regard to his location, the configuration of the unit, what he heard, saw and couldn't see and in particular: the noise of the dispute with Jade Lacey, the sound of the shot in a confined space; his possible belief in two shots and Jade Lacey's backing and stumbling in the hallway.

The appellant's trial counsel used these considerations to argue that the jury could not find beyond reasonable doubt that the appellant intended to kill or cause the deceased grievous bodily harm. Although it is now said that the 10 points were part of the appellant's case relevant to self-defence it appears from the address of trial counsel that they were advanced primarily in support of the submission that the jury could not be satisfied that the appellant intended to kill or cause the deceased grievous bodily harm. This emerged from the transcript of the address (R754-756). Considerations (i) and (ii), as we have identified them, are not relevant to self-defence which presupposes that an accused endeavours to disable, or even kill, an assailant.

Having discussed "the 10 points" and argued from them that the jury could not find the requisite intent counsel moved to the topic of self-defence and identified four questions relevant to that topic and to mistake.

The four questions were:

(1)Whether the appellant might honestly and reasonably have believed that there was a shot or shots directed towards himself or his brother?;

(2)Is it reasonably possible that the shot or shots or the appellant's belief in those shots was of such a nature as to create a concern about "either him or his brother suffering death or grievous bodily harm?"

(3)What are the reasonable possibilities as to what the appellant's belief may have been in "those circumstances … which were bombarding his senses?"

(4)Was it reasonably possible that the appellant did what he did because he thought he had to do it for the protection of his brother and/or himself?

In the development of those points, counsel focussed on: the friendship between the deceased and the appellant; the point that events in question occurred in the context of a gun culture and the evidence that at least one other gun was present in the unit; the general state of confusion after the first shot; the narrowness of the hallway which restricted the appellant's vision and the evidence of a belief by the appellant that his brother had been shot.

The primary judge summed up the case against Jade Lacey before moving to the case against the appellant. Most, if not all, of the factual matters addressed in the summing up in respect of Jade Lacey were relevant to the case against the appellant. The primary judge commenced his summing up of the case against the appellant on the morning of the 12th day of the trial. He discussed, amongst other things, the issue of whether there were two shots or three and moved to the question of intent. He discussed at some length the location of the appellant and his brother at relevant times, as well as the location of the deceased and the appellant's visibility. He reminded the jury that the appellant's counsel had spoken about whether a shot could have been fired at him or his brother. He noted that the appellant's counsel had mentioned the noise of the first shot, the fact that Jade Lacey was moving backwards and the appellant's question of his brother outside the unit. He reminded the jury of Jade Lacey's evidence of the "big flash". He also referred to "the shouting, the threats, the noise, the discharge of Jade's revolver, Jade's movements, [and] the position of various people".

We would reject the complaint that the summing up was disorganised and confusing. On the contrary it followed a logical path and was appropriately structured to present the issues which the jury had to consider. As we have mentioned, the facts directly relevant to the offences were uncomplicated and readily comprehensible. There was a conflict between Jade Lacey's testimony and that of the other witnesses in the room but the conflict did not make the facts elaborate or difficult to understand.

Relevantly for present purposes the trial judge told the jury:

"I'll tell you ... generally that in the Criminal Code there are three sections dealing with self-defence: 271, 272, 273. So far as Jade Lacey is concerned, the sections to which you should pay attention are 271 and 272. So far as Dionne Lacey is concerned you will need to pay attention to all three ... . A lot of what I'm going to say ... about 271 and 272 in general ... what they mean, will also apply to Dionne Lacey. I won't be repeating them exactly. I'll be reminding you of what I said but I'm not going to repeat exactly what I say with respect to Jade Lacey when I deal with Dionne Lacey."

There followed a lucid and comprehensive account of the meaning and operation of sections, 271, 272 and 273 together with reference to the evidence, germane to the case against Jade Lacey, which the jury should have considered with respect to the operation of those sections. The appellant made no complaint about the accuracy or the sufficiency of the directions as they explained the law of self-defence. The complaint is rather that they were "confusing and unwieldy" and, further, "complicated" by being expressed "in respect of both accused."

We would reject the contention that the directions are confusing or unwieldy. They are long and, indeed, complicated but those attributes are a consequence of the intricacy of the legal requirements of self-defence, all of which must be explained to a jury. Necessarily a summing up which deals with them will be lengthy and complicated. There may have been grounds for criticism if the directions had not been full and explicit.

Having concluded the summing up with respect to Jade Lacey the trial judge gave directions concerning the case against the appellant. It must be remembered that the evidence established that the deceased was unarmed and had not threatened the appellant in any way. If one disregards the testimony of Jade Lacey (though the jury had to consider it) the facts also incontrovertibly showed that the deceased was not advancing towards Jade Lacey when the latter shot him. In these circumstances s 271 and/or s 272 and/or s 273 could not operate to exonerate the appellant from criminal responsibility for his shooting the deceased unless the appellant had an honest and reasonable, though mistaken, belief as to facts, which, if true, would give the sections scope to operate.

The trial judge gave this direction on the point:

"As I told you yesterday, an honest belief is one which is genuinely held by the defendant. A reasonable belief is one that in the circumstances in which the defendant found himself a reasonable person could also have held.

If Dionne Lacey killed Kevin Palmer under an honest and reasonable but mistaken belief that a shot had been directed towards him or Jade Lacey or both of them, then he is not criminally responsible to any greater extent than if the real state of things had been such as he believed to exist. If he had an honest reasonable but mistaken belief about the state of things, then the law says you proceed on the basis that that was the state of things. A mere mistake is not enough. The mistaken belief must have been both honest and reasonable and I've told you what they mean, and I have to emphasise ... there's no burden on the defendant to prove that he made a mistake of fact. It's the prosecution who must satisfy you beyond reasonable doubt that he did not do so."

The jury had also been given the notes which included the text of s 24 of the Code, an exposition in the same terms as those given orally with respect to the meaning of "honest" and "reasonable". The notes had this further explanation:

"If the prosecution satisfies you beyond reasonable doubt that:

Dionne Lacey did not honestly hold a mistaken belief that a shot had been directed towards him and/or Jade Lacey, or

that the belief was not reasonable in the circumstances then this section does not apply.

If it has not satisfied you beyond reasonable doubt of those things, then you must consider the issue of self-defence on the basis that an assault occurred. You must take into account this section and the matters referred to when considering, for the purposes of sections 271, 272 and 273 whether there were grounds for any belief which might be relevant to the operation of those sections. "

The trial judge then turned to self-defence, noted that he "went into this in some detail yesterday" and indicated he would "revisit it, but not in the same ... detail". His Honour went on:

"... you must consider these defences with respect to Dionne. Any conclusion you might reach on Dionne Lacey must be reached after consideration of all the circumstances relevant to him. You should not, and I direct you not to, simply apply any finding you make with Jade to Dionne because self-defence is a question that, in these circumstances, applies to the individuals. What Jade'[s] ... situation might have been, does not apply to Dionne. You look at all the evidence again and make up your mind by considering him alone. "

This is a sufficient answer to the appellant's criticism that the "same directions" were expressed with respect to the two accused indiscriminately. The law as to self-defence was explained fully and clearly to the jury in the course of summing up in the case against Jade Lacey. A briefer but accurate exposition of the sections was given in the summing up with respect to the case against the appellant. But the jury was told that the exposition of the law was relevant to the case against both accused, as it was. The direction we have just quoted showed that the jury was expressly instructed to apply the law distinctly and separately to the appellant when considering the charges against him.

The complaint that the trial judge did not relate the facts of the case to the law, or explain how self-defence applied with reference to the particular facts of the case against the appellant are also without substance. As we have said, the facts were relatively straightforward and comprehensible. They had been the subject of lengthy addresses and analysis by the prosecutor and both defence counsel. The events surrounding the shooting of the deceased, the testimony and the arguments respecting the evidence had been rehearsed by the trial judge when summing up the case against Jade Lacey. His Honour did not attempt a complete recitation of the evidence when summing up the case concerning the appellant but did refer to the salient points, those singled out for mention in the addresses. Much of that evidence relevant to Jade Lacey was also was relevant to the case against the appellant. What was of particular relevance to his case, at least with respect to self-defence was limited to three considerations. One was the agitation, animosity, and confrontation which occurred when Jade Lacey returned to the unit and met or generated hostility. The second was the first shot. The third was Jade Lacey's evidence that the appellant asked him, when they had both left the unit, "Where did you get hit?"

Before dealing with the meaning and operation of s 24, and of the self-defence sections, the trial judge reminded the jury of the facts. His Honour said:

"you will recall the evidence about Kevin Palmer's actions that night. He had an encounter of some kind with a person or persons in the unit. That's for you to determine. You remember the evidence of the death stare ... . That was followed by Jade Lacey entering the room and Dionne Lacey moving up the hallway. The events leading up to the discharge of the gun held by Dionne Lacey would have been considered by you when dealing with Jade Lacey's charge. So, I won't go back to all the things that were said and done.

You may want to consider again the evidence of Dr Urankar about the entry wound of the bullet in the chest. ... You may want to use that in deciding how Kevin Palmer was standing when he was shot.

You will also recall the evidence of witnesses about Kevin Palmer throwing or attempting to throw a chair. You will recall evidence of the damage to the plaster near the hallway together with residue or remnants of plaster on the chair ... What position was his body in when that happened, if you find it happened? Where was he standing? Where was Dionne Lacey when the pistol discharged? Jade Lacey says he was nearly at the doorway when he was moving back, bumped into Dionne, looked over his shoulder, saw him and heard a shot. You have to consider where these people were.

It was put to you by [the prosecutor] that Dionne Lacey could not have been at the doorway if Kevin Palmer was standing ... close to the dining table ... . Mr Callaghan¹⁷ points to the evidence of one witness which had Kevin Palmer further over towards the hallway ... So those are matters that you will want to take into consideration when you're determining what occurred.

Could Dionne Lacey have been further down the hallway? If Kevin Palmer was picking up or throwing a chair where was he doing it from? ... Was there a straight line between the two?

... Let me take you to questions about what Dionne Lacey's view of the situation might have been. Given the circumstances, could a shot have been fired at him or at his brother or both of them? You heard Mr Callaghan talk about this. Jade Lacey said that there was a big flash at about the time he discharged his firearm; a very loud noise. Mr Callaghan said you should consider the noise, the fact that Jade Lacey was moving back and the question that Dionne Lacey asked him when they got outside ... "Where did you get hit?" These are things that relate to the belief, a matter I'm going to go to shortly, that Dionne Lacey had or might have ...

Has the prosecution, in the light of all the contributing factors: the shouting, the threats, the noise, the discharge of Jade's revolver, Jade's movements, the position of various people, satisfied you beyond reasonable doubt of the matters I'm going to come to shortly? I raise them now because these are the things that you might want to take into consideration when you're thinking about this."

In the context of the trial this was, in our opinion, a sufficient reminder to the jury of the facts relevant to self-defence with respect to the appellant. The facts which, we repeat, were straightforward, had been rehearsed three times in address and once in summing up the case against the co-accused. It should not be presumed that the jury had forgotten them.

The question for the jury was whether the appellant might have had an honest and reasonable belief that the shot he heard had been fired by the deceased at him or at his brother. That question is to be answered by reference to what the appellant saw and heard before and at the time of the first shot. What he saw and heard was affected by where he was, where the deceased was and where Jade Lacey was at that time. It also depended upon what there was to see: relevantly what the deceased and Jade Lacey were doing at the time.

The trial judge's charge which we set out was a sufficient reminder to the jury of the relevant factors and served to attract their attention to the circumstances in which a combination of s 24 and ss 271, 272 and 273 might absolve the appellant from criminal responsibility for the shooting. The charge was adequate in the circumstances.

Having delivered that charge, and then directed the jury with respect to s 24, the trial judge repeated, in abbreviated form, his explanation of the self-defence sections in terms which are not criticised. The jury was also given, as part of the notes, the terms of the sections and the questions they should ask themselves when they came to apply the sections to the facts. There is no criticism of the written directions. In the course of this part of the summing up the trial judge said:

"... yesterday I took you through 271 and 272. You are aware of the facts and the evidence, and I discussed yesterday the sequence of events, or the circumstances leading up to the discharge of Dionne Lacey's pistol. I won't go over those again. They're matters that you have to consider afresh in the light of Dionne Lacey's charge. "

The trial judge had told the jury that if the Crown could not satisfy it beyond reasonable doubt that the killing had not occurred in self-defence that was "the end of the case", and the appellant's "use of force would [have been] lawful." We have set that passage out. This part of the summing up concluded with this summary:

"When you're thinking about this, bear in mind the question raised about the shot coming in the direction of both Jade and Dionne Lacey. That's what you're being asked to consider. The prosecution must satisfy you beyond reasonable doubt that Dionne Lacey did not hold an honest and reasonable mistaken belief that the shot did come. Concentrate on belief, not about whether there was a shot. Concentrate on Dionne Lacey's belief, because that is the essence of it. ... bearing that in mind ask yourself: 'Does section 273 apply?' When you do it, you must look back at sections 271 and 272 ... afresh in the light of 273 ... ".

Consequently the jury was asked to consider the relevant question having had the relevant law explained appropriately and having been reminded of the facts about which we think it unlikely they needed much reminding.

As the summing up progressed, the primary judge referred from time to time to a document of 15 pages described as "jury notes", a copy of which had been given to each jury member. It set out the relevant provisions of the Code in relation to murder, honest and reasonable but mistaken belief, self-defence, criminal negligence and manslaughter. The document stated what had to be established to the jury's satisfaction beyond reasonable doubt in order for the prosecution to exclude each such defence. It was considered by counsel and was the subject of lengthy discussion between counsel and the primary judge. No complaint was made on the trial or on appeal about its content. In the context of s 273 of the Code, aiding in self-defence, his Honour invited the jury to concentrate on the appellant's belief, not as to whether there was a shot actually fired in the direction of his brother and himself. After summing up in relation to self-defence, the primary judge moved to the alternative offence of manslaughter, directing:

"…if you find the defendant not guilty of murder but you find that the prosecution has excluded beyond a reasonable doubt the defences I have spoken about, then it remains for you to decide whether or not he is guilty of manslaughter."

He had earlier directed the jury in relation to the case against Jade Lacey in similar terms and when discussing self-defence in respect of the appellant, he had directed:

"if they [the prosecution] cannot satisfy you beyond reasonable doubt that the killing [did not occur] in self-defence, then that is the end of the case. Dionne Lacey's use of force would be lawful and you should find him not guilty in those circumstances."

There is either an error in transcription in the above passage or there was a slip in how the onus of proof was expressed. However, what the primary judge meant is clear from the words which precede the quoted passage and no one in the trial or on appeal suggested that these words were capable of giving rise to a misunderstanding.

The primary judge thus made it quite plain that his self-defence directions were applicable to the manslaughter count. The notes given to the jury contained a section headed "Possible alternative verdicts". The section listed seven questions and indicated the legal consequences of affirmative and negative answers to each. Question 6 was:

"Has the prosecution established beyond reasonable doubt that none of the three types of self-defence apply?

(a)If 'no' to question 6 then Dionne Lacey is not guilty of any offence.

(b)If 'yes' ... go to question 7."

The direction is explicit. Unless self-defence was excluded the appellant was not guilty "of any offence": neither murder nor manslaughter.

The case of Jones does not assist the appellant. In that case the trial judge had told the jury that it "must come to a view upon that question that I posed for you as to the issue of self-defence." The only question posed on the issue of self-defence related to the crime of murder. According to Hunt CJ at CL ((1995) 38 NSWLR 652 at 661):

"The only belief which the judge ever identified was 'that it was necessary in self defence to inflict the fatal wound with the intention of ... causing really serious bodily harm ...'. At no stage did the judge relate the issue of belief relevant to self defence to the crime of manslaughter."

The trial judge here made no such mistake. His charge made it clear that unless the prosecution excluded self-defence, in any of its forms, the appellant was to be acquitted.

The appellant's complaint that the trial judge failed to direct the jury on the applicability of s 271(1) to a charge of manslaughter should be rejected. That subsection could have no application in the circumstances of this case. The subsection authorises the use of force in response to an unprovoked assault "if the force used is not intended, and is not such as is likely, to cause death or grievous bodily harm". A gun shot fired at close range does not fit that description. The jury found the shot was not intended to cause death or grievous bodily harm but it was certainly "such as was likely to cause it", as it did. The trial judge was right to ignore s 271(1) in the summing up.

There is thus no substance in the criticism that the jury were not directed appropriately in respect of the application of self-defence to the offence of manslaughter.

It is not suggested that the summing up was in any way unbalanced and, as has been made apparent in the above discussion, the jury were directed in such a way as to obviate any risk that they would not understand the need to give separate consideration to the respective cases against and defences of the co-accused.

As for the alleged failure by the primary judge to put the appellant's arguments to the jury, it is the case that the primary judge did not summarise the prosecution's or the appellant's arguments in any discrete way in his summing up. At the conclusion of the summing up, counsel for the appellant submitted that it was necessary for the primary judge to "summarise the rival contentions of the parties and to put the defence case of Mr Dionne Lacey to the jury or to summarise it for them and contrast it with the limited nature of the Crown submissions". The primary judge declined to do so, observing, "Mr Callaghan gave a lucid and detailed exposition of his case yesterday. I do not think that in presenting a brief summary of the arguments which have been presented by counsel that I presented an imbalanced view of the cases. Rather, I regard it as having been a reasonable summary of the points that were raised."

The authorities on which the appellant's counsel relies establish that the orthodox, and normally appropriate, course is for the primary judge to summarise the Crown and defence cases.

Although the evidence in the trial was led over two weeks and there were 24 witnesses, as was explained earlier, the facts were relatively straightforward and the evidence and issues far from complex. The primary judge clearly and logically explained the elements of the subject offences and identified the issues in the case in relation to the facts. The appellant's counsel's address immediately preceded the summing up and was thus fresh in the jury's mind when the directions were given. It is arguable that a précis or summary of the submissions of defence counsel, particularly when coupled with the summary of the Crown case which would have accompanied it, would have detracted from the force of the appellant's counsel's submissions. In the circumstances, the jury were left in no doubt as to the issues before them and as to the respective Crown and defence cases: there was no procedural unfairness.

Accordingly, these grounds are not made out.

Ground 3 – the primary judge failed to explain the meaning of "provocation" to the jury

It was submitted on behalf of the appellant that as "provocation is not a word that falls within ordinary discourse" and as the Code provides a definition of "provocation", the primary judge was required to explain the concept of "provocation" in his summing up. In this regard, it was pointed out that "the content of any provocation … depends on the severity of the assault and the acts which are said to have provoked (sic)".

There is no substance in this ground. The primary judge in summing up the case against Jade Lacey explained that "in this case" it means: "Any wrongful act or insult of such a nature as to be likely, when done to an ordinary person, to deprive that person of the power of self-control and to induce that person to assault the other by whom the act or insult was done or offered." His Honour earlier explained much of what he was proposing to say about matters such as self-defence would apply to the appellant and that he wouldn't be repeating his explanations "exactly".

The "jury notes" to which the primary judge spoke in his summing up, as well as raising "provocation" in the context of ss 271(1) and 272(1) of the Code, addressed self-defence under s 273 of the Code in the context of a possible belief on the part of the appellant that a shot may have come "in the direction of both Jade" and himself. There was no request for a redirection in relation to "provocation" and there is no reason to suppose that the jury acted under any erroneous belief about the concept. There is the additional difficulty for the appellant that it is extremely difficult to see how the jury could have concluded that the appellant was relevantly provoked.

In this case provocation was irrelevant. Section 272 allows someone to use force that may cause death or grievous bodily harm if it is used in response to an assault that is in itself sufficiently serious to give rise to reasonable apprehension that it will cause death or grievous bodily harm. The person resisting such an assault may himself use what the Solicitor General called "lethal force" whether or not he initially provoked the assault against which he has to defend himself. Self-defence to a provoked assault has limitations but they would not have applied had the deceased sought first to shoot the appellant or his brother.

The point is that whether or not the appellant, or Jade Lacey, provoked the deceased who responded by an assault upon either of them, the appellant shooting the deceased was excused if it was in response to use of lethal force against the appellant or his brother. The only question for the jury was whether the appellant was responding to an assault by the deceased of such a nature (or of such violence) as to cause reasonable apprehension of death or grievous bodily harm.

Ground 4 – the possibility that the verdict was tainted with bias

A person claiming to be a juror telephoned the appellant's solicitors on 13 May 2009. A solicitor in their employ who telephoned the person back was told that she wanted to tell a principal of the firm "that there was a juror who had her brother shot by a Lebanese man and she had a great deal of control and influence over the jury." A principal of the firm telephoned the woman on 14 May 2009 and advised her to contact the primary judge through his associate. He gave her the associate's telephone number.

On 15 May, the appellant's solicitors emailed a letter to the primary judge's associate with copies to the office of the Director of Public Prosecutions and the solicitors for Jade Lacey setting out, in substance, what has been stated above.

The letter contained the following:

"I refer to section 70 of the Jury Act 1995. The limited information provided by the juror, … suggests that there are grounds for suspicion that the juror mentioned by [X] (the suspect), may have been guilty of bias and that an investigation be conducted, pursuant to s 70(7) of the Act.

I ask that you bring this correspondence and affidavit to His Honour's attention and let us know us (sic) if His Honour wishes to convene the court or whether he would like to receive submissions as to how the matter should be dealt with.

Upon reflection I omitted to direct [X] to the terms of s 70(8) of the Act, which may be a matter which his Honour might wish to do.

I will provide a copy of this correspondence and affidavit to the Prosecutor Mr Byrne and to Mr Nyst, legal representative for Jade Lacey."

There was no response to this letter from the Director of Public Prosecutions or the Attorney-General. A person identifying herself as a juror contacted the primary judge's associate. Consequent upon that contact, the associate sent the person a copy of section 70 of the Jury Act 1995 (Qld) and referred her to sub-section (8). The primary judge did not institute an enquiry pursuant to s 70(7) of the Act.

On 22 July 2009 after the appeal had been heard the solicitors for the appellant sent an email to the primary judge's associate asking:

"1.Whether you were able to verify that [X] was in fact a juror

on this trial; and

2.The detail of the disclosures made by her."

On 23 July, the associate replied:

"I refer to your letter of 22 July 2009. I decline to answer the questions you pose because I am concerned that if I answered them I might contravene parts of s 70 of the Jury Act 1995."

The primary judge at the request of this Court, gave a report dated 29 July 2009 pursuant to the Code in which he stated:

"1.On 15 May 2009, a person who identified herself as [X] contacted my Associate and said that she had been a juror in the Lacey and Lacey trial. She then, and again shortly afterward, asserted certain things which, if it were the case that she had been a juror, would come within the definition of 'Jury Information' in section 70 of the Jury Act 1995.

I did not speak to that person or otherwise communicate with her, but I considered what she told my Associate in the light of the Act and, in particular, section 70 of that Act.

I considered that section 70(6) did not apply as the trial had concluded and the jury had been discharged.

I then considered the provisions of subsections (7) and (8) of section 70. I formed the view that subsection (7) was intended to be used where the court becomes aware of relevant information by means other than from a juror. A circumstance such as that which arose in R v Martin & King [1999] QCA 366 was, I thought, such an example.

I also formed the view that subsection (8) was a provision which was specifically intended to deal with claims made by a juror.

Although I could not reach any conclusion about the veracity of the material, I thought it appropriate to have my Associate send [X] a copy of section 70 of the Act. She also sent her a copy of the 'Juror Support Program' brochure.

Shortly after that was done, [X] made this inquiry of my Associate:

'I was wondering if giving information to the Law Reform Society (sic) was legal under the terms of the Jury Act or any other legislation?'

My Associate replied to that question in these terms:

'I regret that I am not in a position to provide legal advice regarding the application of the Jury Act. You may gain assistance from consideration of s 70(8) of that Act.'

There has been no further communication from the person using the name [X]."

Counsel for the appellant submitted in writing after this exchange of correspondence that it is implicit in the associate's letter "that the juror raised issues which might precipitate a suspicion of bias, thus resulting in the associate's reference to s 70(8)". It was further submitted that "the absence of an investigation … leaves the jury verdict attended with unacceptable doubt such as to cause a miscarriage of justice" and that the conviction should be set aside or the trial court should be directed to "authorise an investigation".

After receipt of a copy of the primary judge's report, counsel for both appellants submitted as follows:

The primary judge's construction of s 70(7) was incorrect. There is no restriction on the Court's power in that subsection turning on how information is placed before the Court. Once relevant information was brought to the Court's attention, the Court was required to exercise its discretion under it;

The appellant's argument as to the miscarriage of justice occasioned by the substance of the juror's contact is fortified by this error of law;

The woman in question is now known to be a juror and to have made contact with the primary judge;

It is not open to the appellants or their lawyers to have sought or to now seek to gather more evidence. Section 70 places the statutory cloak of confidentiality over the jury's deliberations, not just for the duration of the trial;

Section 70(8) contemplates that the Attorney-General and the Director of Public Prosecutions, both of whom are parties to this appeal and aware of the information on this issue, are both lawfully able to receive jury information. Neither has thought it appropriate to obtain this information in order to facilitate the course of justice;

This Court now has evidence that a woman who was a juror raised concerns with the primary judge that prima facie suggests the possibility of bias despite the detail of those concerns remaining unknown. The primary judge made no attempt to determine the veracity of the information and to give advice to the juror as to how she might further her concerns in a lawful fashion. He then compounded the difficulties by not advising the parties of what had occurred or his reasons for declining to authorise an investigation. The procedure undertaken by the trial judge in R v Martin & King¹⁸ should have been followed but was not;

In the result there has been a miscarriage of a kind for which s 668A(1) of the Code provides a basis for this Court to interfere by setting aside the verdict.

Counsel for the respondent challenged the admissibility of the affidavit on which the appellant's arguments of bias were principally based. It was submitted that as well as being inadmissible on the grounds of irrelevance, it infringed the principle that the "court does not admit evidence of a juryman as to what took place in the jury room, either by way of explanation of the grounds upon which the verdict was given, or by way of statement as to what he believed its effect to be."¹⁹

Reference was also made to R v Challinger²⁰ and Evans v Davies.²¹ In the latter case Macrossan CJ said:²²

"It is the jurors' formal answers on which they have reached agreement and which they unanimously agree shall be brought in as their answers which, on being announced, are paramount. When their verdict or their answers are accepted and they are discharged their authority and function end. They are not later to be cajoled into making a retraction or permitted to be questioned by the parties in an attempt to introduce some variation, disharmony or disagreement into the previous picture of unanimity. Policy forbids it and what the jury members later think about their verdict is irrelevant since they are functus officio."

It was further submitted that there was no evidence that the person who made contact with the solicitors was in fact a juror. The final point made was that even if the communication could be taken at face value, it did not demonstrate bias. In that regard Senior Counsel for the respondent submitted, "The issue is not whether any juror had a life experience that may potentially affect his or her deliberations. The issue is whether, despite that life experience, he or she could remain impartial."

Consideration

The jury received the normal warning about impartiality prior to the appellants being put in their charge. The reference to the "Lebanese man" would not appear to have much significance. There is no suggestion that the appellants were of Lebanese extraction or of Middle Eastern appearance, although some of the other men in the unit at the time of the incident, judging by their names, may have been Middle Eastern or of Middle Eastern descent. That a particular juror is more influential or controlling than others is not a matter of concern unless a consequence of such "influence" or "control" is the overbearing of the free exercise of the will of one or more jurors. It is the general human experience that some people tend to be more active and forceful, and even domineering, in discussion than others. It is also the case that a jury speaker performing his or her role effectively may be seen to be exerting a degree of "control and influence over the jury."

Before their deliberations the jurors were given a booklet, "Guide to Jury Deliberations". It sets out sections 69A and 70 of the Jury Act 1995 (Qld). Subsections (7) and (8) of s 70 provide:

"(7)If there are grounds to suspect that a person may have been guilty of bias, fraud or an offence related to the person's membership of a jury or the performance of functions as a member of a jury, the court before which the trial was conducted may authorise –

(a)an investigation of the suspected bias, fraud, or offence; and

(b)the seeking and disclosure of jury information for the purposes of the investigation.

(8)If a member of the jury suspects another member (the suspect) of bias, fraud or an offence related to the suspect's membership of the jury or the performance of the suspect's functions as a member of the jury, the member may disclose the suspicion and the grounds on which it is held to the Attorney-General or the director of public prosecutions."

The primary judge, appropriately, had his associate send [X] a copy of s 70 of the Act and a copy of the "Juror Support Program" brochure. Subsequently, when the juror enquired about the legality of giving information to the Law Reform Society (sic), the associate referred her to s 70(8) of the Jury Act. It may be inferred, safely, that had there been a material communication by the juror with the Attorney-General or the Director of Public Prosecutions, the communication would have been brought to the attention of the Court. The appropriate inference to draw in the circumstances is that the juror decided not to take the matter further despite having had her attention drawn to s 70(8).

The primary judge's view that subsection (8) of s 70 was a provision "… specifically intended to deal with claims made by a juror" was correct, at least where such claims arose out of a suspicion on the part of a juror concerning one or more of the matters referred to in the subsection. In the circumstances, assuming that the nature of the information provided by [X] to the primary judge's associate was similar to that provided by her to the appellant's solicitors, a decision that if the matter was to be taken further it should be pursuant to s 70(8), was reasonable.

It may be accepted that the primary judge's view of the application of s 70(7) was unduly restrictive, but it does not follow that the primary judge should have taken action under s 70(7) or that any miscarriage of justice has occurred as a result of the failure to take such action.

If, in the circumstances outlined above, the appellant wished to impugn the verdict on the ground of bias, it was incumbent on him to attempt to have information provided to the Attorney-General or Director of Public Prosecutions under s 70(8). It would have been lawful and proper for the solicitors to suggest to [X] that if she had a concern about a matter which came within s 70(8) that she state "her suspicion and … grounds" to the Attorney-General and Director of Public Prosecutions. An alternative course may have been to make an application to the Court, on notice to the respondent, with a view to persuading the Court to order an investigation pursuant to s 70(7). That was not done either.

On the evidence before this Court it is possible to do no more than speculate as to the possible, but we rather think unlikely, existence of a material irregularity affecting the jury's deliberations. Those deliberations, for strong reasons of policy, have been regarded traditionally as unexaminable. There is a public interest in finality in litigation, and in the protection of jurors from inducement or pressure.²³ The mere fact that a juror may experience doubts about the jury's decision or its deliberations should not, of itself, occasion surprise or concern nor would it, in the absence of adequate additional grounds, justify an investigation under s 70(7). Many, if not most, jurors are not used to making decisions which may have grave consequences for others. And it is hardly abnormal for a decision maker, particularly if he or she has an irresolute or wavering disposition, to later question the process by which a decision was made and even its correctness.

There is nothing in the 23 July correspondence which provides the faintest evidence of bias. The associate merely indicated that to answer the questions "might" contravene s 70 Jury Act 1995 (Qld). "Jury information" is very broadly defined in s 70 and even includes "Information identifying or likely to identify a person as, or as having been, a juror…". Nor is there anything in the primary judge's report which suggests that a more proactive course should have been taken by the primary judge.

Finally the appellant provided the Court with another affidavit sworn by the employed solicitor. In it she deposed that a woman, with the Christian name used by [X] in her communications, had been the jury's speaker when it returned their verdict in respect of Jade Michael Lacey. When it later returned their verdict in respect of the appellant she was not the speaker. The appellant did not by separate submissions argue that any significance attached to the change in speaker. The fact in itself is unremarkable and is not suggestive of any impropriety by any juror in the discharge of his or her duty. There is nothing in the information provided by the appellant to this Court which supports the conclusion that there has been a miscarriage of justice.

Accordingly, this ground cannot succeed.

Conclusion

For the above reasons the appeal against conviction must be dismissed.

The Attorney-General's appeal against sentence

The nature of the right of appeal conferred on the Attorney-General by s 669A of the Code

Section 669A(1) of the Code provides relevantly as follows:

"The Attorney-General may appeal to the Court against any sentence pronounced … and the Court may in its unfettered discretion vary the sentence and impose such sentence as to the Court seems proper."

Notwithstanding the discretion conferred on this Court to vary the sentence pronounced below to impose "such sentence as to the Court seems proper" is said by s 669A(1) to be an "unfettered discretion", it has been said to be fettered in two respects. The first of these involves the proposition that in order to enliven the discretion conferred by s 669A, it is necessary for the Attorney-General to demonstrate error on the part of the sentencing court.²⁴ The second respect in which the discretion conferred by s 669A has been said to be fettered involves the proposition that, in exercising the discretion thereby conferred, this Court must impose a sentence towards the bottom end of the available range.²⁵

It is submitted on behalf of the Attorney-General that these propositions are inconsistent with the intention of the legislature enacted in s 669A(1) of the Code and that this Court should make it clear that these propositions no longer state the law in Queensland. We shall consider these issues in turn.

Is demonstrable error necessary?

In 1995 in R v Melano; ex parte Attorney-General,²⁶ this Court held that it would not allow an appeal against sentence by the Attorney-General under s 669A of the Code unless the sentence were first shown to be affected by error on the part of the sentencing judge in the sense explained in House v The King²⁷ save "perhaps, in exceptional circumstances".

It is submitted on behalf of the Attorney-General that the decision in Melano does not give effect to the intention of the legislature and should no longer be followed. As will be seen, there is force in this submission. Nevertheless, it is a serious thing to depart from a decision of this Court,²⁸ especially one the correctness of which has been assumed for many years. In R v Katia; ex parte A-G (Qld),²⁹ this Court, while noting that continued adherence to Melano had aroused some disquiet, did not regard that case as affording a suitable occasion to reconsider the foundations of the decision in Melano. The Court in Katia was constituted by three judges. This Court is constituted by five judges, and the question has been fully and ably argued on both sides. It is appropriate that this Court should accept the invitation to reconsider the basis of the decision in Melano.

It is not disputed that this Court may depart from its earlier decisions. In Nguyen v Nguyen,³⁰ Dawson, Toohey and McHugh JJ recognised that because intermediate courts of appeal in Australia are:

"in many instances courts of last resort for all practical purposes … it would seem inappropriate that the appeal courts of the Supreme Courts … should regard themselves as strictly bound by their own previous decisions."

This Court should depart from its earlier decision "cautiously and only when compelled to the conclusion that the earlier decision is wrong."³¹ In John v Federal Commissioner of Taxation,³² 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 at pp 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 The Commonwealth v Hospital Contribution Fund.³³ 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:³⁴

"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 The Commonwealth ((1977) 139 CLR 585)."

As to the first of these considerations, the view taken in Melano "did not rest upon a principle carefully worked out in a significant succession of cases".³⁵ The interpretation of s 669A propounded in Melano harked back to the view expressed in R v Liekefett; ex parte Attorney-General.³⁶ But in harking back to Liekefett, the Court in Melano did not attempt to come to grips with the legislative history leading up to and including the deliberate choice of the legislature following the decision in Liekefett, to describe the discretion conferred by s 669A as "unfettered".

When Liekefett was decided, s 669A of the Code was cast in materially the same terms as it is at present, save for the absence of the word "unfettered". The Court in Liekefett referred to the absence of any words "to limit the exercise of the discretion" and went on to say:³⁷

"Yet the Courts themselves in appeals by individuals against sentence have imposed limitations on the exercise of the discretion to review. These limitations are of the same general nature as those which operate in other appeals from the exercise of judicial discretion. It has often been said that, in an appeal by the Attorney-General, the Court of Criminal Appeal has an unfettered judicial discretion to alter sentences and Whittaker v. The King (1928) 41 C.L.R. 230 is cited as an authority for this statement. See, for instance, R. v. Beevers (1942) St.R.Qd. 230, per Webb C.J. at p.232 and per Mansfield J. at p.236. We do not consider that Whittaker v. The King (supra) is any authority for the statement.

It is necessary to bear in mind the distinction between a discretion, which is unfettered by statute, and one that is unfettered by judicial discretion. This distinction is the key to understanding the cases. We consider it desirable to give some detailed consideration to the authorities which have a bearing on appeals by the Attorney-General."

The reason for the decision in Liekefett was explicitly stated in the last paragraph of the passage from the reasons of the Court cited in the preceding paragraph. The Court took the view that, while the Code did not fetter the discretion of the Court, the Court's discretion was fettered by judicial discretion, that is to say by the acknowledgment that a discretionary power does not arise for exercise on appeal while the decision in which the discretion has been exercised still stands. Only where the earlier exercise of discretion is set aside for error does the sentencing discretion arise to be exercised afresh by the appellate court.

That this understanding of the kernel of the decision in Liekefett is correct is confirmed by the following passage from the reasons of the Court in Liekefett:³⁸

"In Skinner v. The King (1913) 16 C.L.R. 336, Barton A.C.J. who gave the leading judgment said, with the concurrence of Isaacs, Gavan Duffy, Powers and Rich JJ., at pp.339, 340, after referring to the appellant's second point that the sentence was excessive:

'As to the second of those two points, of course the sentence is arrived at by the Judge at the trial under circumstances, many of which cannot be reproduced before the tribunal of appeal. He hears the witnesses giving their evidence, and also observes them while it is being given, and tested by cross-examination. He sees every change in their demeanour and conduct, and there are often circumstances of that kind that cannot very well appear in any mere report of the evidence. It follows that a Court of Criminal Appeal is not prone to interfere with the Judge's exercise of his discretion in apportioning the sentence, and will not interfere unless it is seen that the sentence is manifestly excessive or manifestly inadequate. If the sentence is not merely arguably insufficient or excessive, but obviously so because, for instance, the Judge has acted on a wrong principle, or has clearly overlooked, or undervalued, or overestimated, or misunderstood, some salient feature of the evidence, the Court of Criminal Appeal will review the sentence; but, short of such reasons, I think it will not.'

In R. v. Withers (1925) 25 S.R. (N.S.W.) 282, the Court of Criminal Appeal, at p.394, referred to R. v. King (1925) S.R. (N.S.W.) 218 and then said:

'We said there that the principles to be followed in such cases were those enunciated by the Court of Criminal Appeal in England in Sidlow's Case (1 C.A.R. 28) and to the High Court of Australia in Skinner's Case (16 C.L.R 236) and to that we still adhere. Tested in this way then, was the sentence now under consideration not merely inadequate but manifestly so, because the learned judge in imposing it either proceeded upon wrong principles or undervalued or overestimated some of the material features of the evidence.'

The Court of Criminal Appeal in New South Wales again gave consideration to the section in R. v. Whittaker (1928) S.R. (N.S.W.) 411. It was held that applying the principles of R. v. Sidlow (supra) and R. v. King (supra) the Court should ask itself the question – Did the learned judge proceed upon any wrong principle? It was only upon an affirmative answer to this question being given that the sentence of one year's imprisonment imposed by trial judge was set aside and a sentence of five years substituted for it.

Special leave to appeal from the Court of Criminal Appeal in New South Wales was sought from the High Court (1928) 41 C.L.R. 230. It is of interest to note, as appears from the judgment of Higgins J. at pp.252-3, that the Solicitor-General, who argued against the grant of leave to appeal on behalf of the Crown, disclaimed any suggestion that the words 'in its discretion' conferred upon the Court of Criminal Appeal an absolute discretionary right to impose such a sentence as seemed fit to the Court, irrespective of a mistake in principle on the part of the trial judge.

The actual decision in that case was that special leave to appeal should be refused. In their joint judgment, Knox C.J. and Powers J. said that whether the principles referred to in R. v. King (supra) were correct, or whether the Court of Appeal had an unlimited judicial discretion that Court had exercised its discretion. They did however say obiter that they thought the view that the Court had an unlimited judicial discretion was the correct one.

Gavan Duffy and Starke JJ., in their joint judgment pointed out that there was nothing in the words of s.5D to limit the exercise of discretion. As pointed out above there is nothing in the words of any of the provisions which we have set out which limit discretion. The [reason] given for refusing special leave was that 'The Court of Criminal Appeal in imposing the sentence complained of, did not proceed in opposition to any principle of law but in accordance with their own view of the facts.' This sentence could mean either that the Court of Criminal Appeal was correct in the view it took of s.5D, or that on either view the decision was correct on the view the Court of Criminal Appeal had taken on the facts. The judgment is no warrant whatsoever for the statements in R v Beevers (supra) that the Court of Criminal Appeal has an unfettered discretion to alter sentences."

Two years after the decision in Liekefett, the Queensland Parliament amended the section by adding the term "unfettered" in front of the term "discretion". In the Second Reading Speech for the Bill introducing the amendment, the Minister said:³⁹

"The Bill is being amended to make it clear that the Court of Criminal Appeal has an unfettered discretion to determine the proper sentence to impose when the Attorney-General has appealed against the inadequacy of the sentence. The private legal profession is opposed to this amendment. I do not propose to alter this amendment because it only makes clear what was always intended, and was in fact acted upon by the Court of Criminal Appeal for 30 years until 1973, when a court decision effectively changed the law to what was not intended."

According to the argument advanced on behalf of the respondent, the 1975 amendment to s 669A achieved precisely nothing. In our respectful opinion, there cannot be any real doubt that the intention of the legislature in amending s 669A to insert the word "unfettered" was to remove the "judicial fetter" upon the exercise of the discretion identified in Liekefett. That "judicial fetter" existed by virtue of an earlier exercise of the discretion which was not susceptible of being set aside as erroneous.

In 1980 in R v Adams⁴⁰ and in 1986 in R v Osmond; ex parte Attorney-General,⁴¹ the Court of Criminal Appeal discussed the nature of the right of appeal conferred by s 669A(1) in light of the 1975 amendment. Ironically, given the issue now being addressed, a salient feature of the reasons of the Court in Melano is the scant regard given to the exegesis of s 669A in Adams and Osmond. In the latter case, Andrews CJ summarised the view of the earlier Court in Adams:⁴²

"I think it appropriate to touch upon what I understand of the jurisdiction of this Court in appeals such as this. It is commonly said that in order to interfere with a sentence appealed against by the Attorney-General the Court should be in 'substantial disagreement' with the order appealed from. It seems to me that this is suggested to mean more than a reference to the case in which it was first used would indicate. I refer to R. v. Adams (1980) 2 A.Crim.R. 207 at 208 which contains the following statement as to jurisdiction under s. 669A of The Criminal Code:

'Section 669A now provides that the Court may in its unfettered discretion vary a sentence and impose such sentence as to the court seems proper. In my view, an unfettered discretion is a discretion to vary a sentence imposed if the court is in substantial disagreement with it. There can be no question that the power is to vary a sentence, not to disregard it. This involves a comparison of the view of this Court with that of the court of first instance. It was in Beevers [1942] Q.S.R. 230 at 232 that it was held that the appellate court in the exercise of an unfettered discretion to vary should do so where it was in substantial disagreement with the sentence under consideration. In this context, in my view, that can only be a discretion based upon matters of substance as distinct from trivialities. There can be no doubt that the legislative intent was to impose a standard of comparison less stringent than that involved in a consideration whether a sentence was manifestly inadequate. We have an unfettered discretion.'

This statement formed part of the unanimous decision of the Court."

In Osmond, Andrews CJ went on to explain his view of the operation of s 669A in a way consistent with the statement of the Court in Adams. His Honour said in a passage which, though lengthy, deserves citation in full:⁴³

"It is perhaps as well to consider the history of s. 669A of the Code which prior to the enactment of the Criminal Code and Justice Act Amendment Act 1975, substituting a new s. 669A, provided as follows:

'The Attorney-General may appeal to the Court against any sentence pronounced by the Court of trial and the Court may in its discretion vary the sentence and impose such sentence as to the said Court may seem proper'.

In R. v. Beevers [1942] St.R.Qd. 230 the Court, in purported reliance on statements in Whittaker v. The King (1928) 41 C.L.R. 230 held that the discretion of the Court of Criminal Appeal was 'unfettered' (per Webb C.J. and Mansfield J.) or 'unlimited' (per Macrossan S.P.J.). In R. v. Liekefett; ex parte Attorney-General [1973] Qd.R. 355, having considered a number of cases including Whittaker v. The King (supra), the Court came to the decision that upon the hearing of an appeal by the Attorney-General against any sentence pronounced, the discretion to interfere was not unfettered and being an appeal against the exercise of a judicial discretion should be determined by established principles; that the principles to be applied in deciding whether a sentence was inadequate are the same as those applicable when the question arose on whether it was excessive. (See e.g. House v. The King (1936) 55 C.L.R. 449 at 504–5).

Until R. v. Liekefett the Court of Criminal Appeal had been proceeding on the basis that in appeals by the Attorney-General against sentence the discretion was unfettered.S 669A of the Criminal Code now provides as follows:

'(1) The Attorney-General may appeal to the Court against any sentence pronounced by —

(a) the court of trial … and the Court may in its unfettered discretion vary the sentence and impose such sentence as to the Court seems proper.'

It is interesting that in Griffiths v. The Queen (1977) 137 C.L.R. 293, Barwick C.J. and Jacobs J. touched upon this point in relation to s. 5D of the Criminal Appeal Act 1912 (N.S.W.) which was in similar terms to s. 669A of the Queensland Criminal Code prior to the 1975 amendment. At 308 Barwick C.J. commented upon submissions that the High Court in Whittaker v. The King had decided that the Supreme Court sitting as a Court of Criminal Appeal on appeal by the Attorney-General was not restrained as appeal courts usually are to the remedy of error in what has been done in the court below but that it had complete and unfettered discretion to substitute what it thought was the proper sentence for that which the trial judge had imposed without considering whether in truth he had erred in a matter of principle or had acted unreasonably or in disregard of relevant evidence or whether in some other way he had exceeded or misused his sentencing discretion. The learned Chief Justice went on to say that in his opinion the Court had decided no such thing in Whittaker v. The King. I refer to this statement as comparing the ordinary discretion of an appellate court with the unfettered discretion which is now bestowed upon this court by s. 669A of the Queensland Code.

Barwick C.J. further said at 309 on s. 5D (supra) that it did not bear the construction contended for and that the section's reference to discretion does no more than ensure that where a proper occasion arises for the allowance of an appeal, the Court itself may substitute the sentence which it considers appropriate for that imposed by the trial Judge. At 327 Jacobs J. said:

'The trial Judge is given a wide discretion from the circumstance that a Court on appeal will not lightly conclude that another sentence should have been passed. The incorrectness of the sentence must be manifest. See House v. The King (1936) 55 C.L.R. 499, at p. 505. But if it does so conclude it must interfere in the case of a defendant's appeal; it may in its discretion interfere in the case of an appeal under s. 5D. Any different interpretation of Whittaker v. The King (1928) 41 C.L.R. 230 is in my opinion wrong.'

In my view, the application of s. 669A of the Code pursuant to the intention of the legislature is plain. On the history of the matter it is clear that the legislature intended in the 1975 amending Act to restore the position which had prevailed, albeit on a wrong interpretation of this Court in R. v. Beevers, of what had been said in Whittaker v. The King that the Court is to have an unfettered discretion. It was consequent upon the ruling in this Court in R. v. Liekefett that the amendment was enacted."

Andrews CJ then summarised his view of the function of the Court under s 669A(1) in the following terms:⁴⁴

"The Court is required to have regard to the sentence appealed from in order to decide whether to vary it. The discretion to vary it rests upon disagreement as a matter of judgment for reasons of substance reflected in a variation which is not merely trivial or arbitrary."

It is desirable now to refer to the reasons given by the Court in Melano for harking back to Liekefett. In Melano, the Court said:⁴⁵

"The operation of 669A(1) of the Code was considered by the Court of Criminal Appeal on a number of occasions, with some differences of opinion apparent: see R. v. Osmond, ex parte Attorney-General [1987] 1 Qd.R. 429, 433–434, 435–436. To some extent, these differences are affected by the history of the legislation, including the insertion of the word 'unfettered' in 1975; prior to that, it had been decided in R. v. Liekefett, ex parte Attorney-General [1973] Qd.R. 355 that the discretion under 669A(1) was not 'unfettered'. While the present power of the Court on an appeal by the Attorney-General is very widely expressed, it must be borne in mind that an 'unfettered discretion [to] vary' is an unfettered discretion either to do so or to decline to do so.

Further, like every statutory power or discretion, the Court's discretion under s. 669A(1) of the Code is subject to inherent limitations; it cannot be exercised for a purpose other than that for which it is given, or by reference to extraneous considerations, and material considerations must be taken into account. And, of course, sentencing principles must be applied: for example, those derived from the Penalties and Sentences Act 1992, or established by judicial decision as, for example, in Lowe v. The Queen (1984) 154 C.L.R. 606, and R. v. Tricklebank [1994] 1 Qd.R. 330, 338; see also Everett at 878.

Additionally, the subsection itself expressly qualifies the discretion to 'vary'; variation is permissible only to impose another sentence which 'to the Court seems proper'. Implicitly, the discretion does not ordinarily extend to varying a sentence which itself 'to the Court seems proper', i.e., in accordance with sentencing principles, policies and practices, statutory and other.

The particular importance of that qualification lies in the circumstance that a sentencing judge also has an extremely wide discretion to be exercised within the limits of the principles which are applicable: 'As the ascertainment and imposition of an appropriate sentence involve the exercise of judicial discretion based on an assessment of various factors it is not possible to say that a sentence of a particular duration is the only correct or appropriate penalty to the exclusion of any other penalty' – Lowe, at 612 per Mason J. Unless the sentencing judge has erred in principle, either because an error is discernible or demonstrated by a manifest inadequacy or excessiveness, the sentence he or she has imposed will be 'proper': cf. Griffiths v. The Queen (1977) 137 C.L.R. 293, 310, 327, 329–330; Everett, per Brennan, Deane, Dawson and Gaudron JJ. at 878. Variation by this Court will not be justified in such circumstances, unless, perhaps, in exceptional circumstances; for example, to establish or alter a matter of principle or the sentencing range which is appropriate: cf. Everett per McHugh J. at 881.

The operation thus accorded to s. 669A(1) of the Code is generally consistent with the established principles relating to appeals against discretion. House v. The King (1936) 55 C.L.R. 499, which is commonly referred to for the statement of those principles contained in the joint judgment of Dixon, Evatt and McTiernan JJ. at 504–505, was itself a case involving an appeal against a sentence; although there was a 'full' appeal to the High Court 'on law and fact', it was held that the 'manner in which an appeal against an exercise of discretion should be determined is governed by established principles' (504) which were then stated. Read as a whole, including both the 'unfettered discretion (to) vary' and the requirement that the sentence imposed be 'proper', s. 669A(1) of the Code does not provide for a different course, unless, perhaps, in exceptional circumstances.

Support for the view that, ordinarily, this Court should not allow an appeal under s. 669A(1) unless the sentence is outside the sound exercise of the sentencing judge's discretion is to be found in factors that are material to the exercise of the Court's discretion. For example, an appeal against sentence by the Attorney-General 'has long been accepted in this country as cutting across the time-honoured concepts of criminal administration by putting in jeopardy for the second time the freedom beyond the sentence imposed': Everett at 877. Cf. Bropho v. Western Australia (1990) 171 C.L.R. 1, 17–18; Wentworth v. N.S.W. Bar Association (1992) 176 C.L.R. 239, 252; Coco v. The Queen (1994) 179 C.L.R. 427, 436–437, 446. And a sentencing judge, who has seen the accused and perhaps witnesses and heard oral evidence, 'is uniquely well placed … to exercise a discretion': cf. R. v. Holder [1983] 3 N.S.W.L.R. 245, 254. The latter, but not the former, consideration also applies to applications for leave to appeal, and appeals, against sentence by convicted persons: Code ss 668D and 668E(3). The language used in these provisions differs from s. 669A(1), but the practical effect of this difference is not great. There are again limits upon an appellate court's intervention because of the discretionary considerations involved in sentencing. But, in proceedings by a convicted person, especially if liberty is at stake, the Court is sometimes less reluctant to alter the sentence imposed."

It is noteworthy that the reasons in Melano made only cursory reference to the legislative history of s 669A(1) and to the exegesis of Andrews CJ in Osmond. Other aspects of the reasoning in Melano also give cause for concern. First, an important part of that reasoning was the observation that s 669A confers an unfettered discretion "either to [vary a sentence] or to decline to do so". If this observation were to be understood as reflecting an assumption that it is open to this Court to choose whether or not to exercise the jurisdiction conferred upon it by s 669A(1), it would sit uncomfortably with the fundamental principle that where a court is vested with jurisdiction it is obliged to exercise it. In Ward v Williams,⁴⁶ Dixon CJ, Webb, Fullagar, Kitto and Taylor JJ said:

"Jurisdiction and powers are conferred on judicial bodies, usually for the enforcement of rights and the protection of interests, and permissive language will often in such a case be used not because it is intended to give the tribunal a discretion to grant or refuse the remedy, but because, although it is intended or contemplated that persons interested will be entitled to the remedy the tribunal is empowered to give, it is also intended, or at all events taken for granted, that the existence of the interest and the validity of the claim to the remedy of a person seeking it will be for the tribunal to determine. It is no more than an instinctive recognition of the truth of Ulpian's dictum–nemo qui condemnare potest, absolvere non potest (Dig. 50: 17: 37)."

There can be no doubt that this Court is duty-bound to exercise the jurisdiction conferred upon it in consequence of the invocation of s 669A by the Attorney-General. This Court may decide to decline to vary a sentence where that sentence is not "such sentence as seems proper to the Court" only where that decision is consistent with the proper exercise of the jurisdiction conferred on the Court. In our view, the terms of s 669A leave no room for this Court to decline to exercise the discretion conferred on it simply because it has not been demonstrated that the decision below should be set aside as erroneous in the House v The King sense.

The second observation to be made here about the reasoning in Melano is that to say, as the Court said in Melano, that "a sentencing judge … has an extremely wide discretion" is merely to recognise that there may be a range of sentences any one of which might be imposed by the primary judge on the basis that it "seems proper" to the judge who imposed it. But the discretion conferred on the Court by s 669A is, in terms, a discretion to vary the sentence to impose such sentence as seems proper to this Court.

Thirdly, the reasoning in Melano accepts that "in exceptional circumstances" s 669A might require this Court to impose a sentence which, though "proper" in the general sense of being within the range properly available to the judge at first instance does not seem "proper" to this Court. Whatever s 669A means, there is certainly no scope in its language for the introduction of such a gloss. Whatever else s 669A means, it is clearly not meant to empower this Court to vary a "proper" sentence only in "exceptional cases". Its plain terms show that the power to vary a sentence the subject of an appeal is to be exercised whenever variation is necessary to impose "such sentence as to the Court seems proper".

In summary to this point, we consider that, the first consideration referred to by Gibbs CJ in Commonwealth v Hospital Contribution Fund favours departing from Melano.

The second and third considerations referred to by Gibbs CJ in Commonwealth v Hospital Contribution Fund do not appear to arise in this case. As to the fourth of these considerations, Melano has been acted upon only in the general sense that later decisions have assumed its correctness and the legislature has not intervened again to seek to alter the position established by that decision.

A further consideration which we think favours departing from Melano is that doubt has been cast upon its correctness by members of the High Court in York v The Queen.⁴⁷ In that case, counsel for the respondent did not seek to challenge the authority of Melano. Nevertheless, McHugh J said:⁴⁸

"The Attorney-General's appeal was brought under s 669A(1) of the Code. That section provides that the Attorney-General may appeal to the Court of Appeal against any sentence pronounced by the court of trial or a court of summary jurisdiction in a case where an indictable offence is dealt with summarily by that court. Section 669A(1) declares that 'the Court may in its unfettered discretion vary the sentence and impose such sentence as to the Court seems proper'. The section's declaration that the Court of Appeal has an unfettered discretion to vary the sentence indicates that the Court may allow an appeal for any reason that the Court thinks proper. In particular, it indicates that the Court of Appeal is not required to find error on the part of the trial court or the court of summary jurisdiction or that the sentence is 'manifestly inadequate' before it interferes with a sentence imposed by those courts. This construction appears plain on the face of the section. But the history of s 669A(1) puts it beyond doubt.

Section 669A(1) was inserted in the Code in 1939. At that time it did not contain the term 'unfettered'. That was added in 1975 as the result of the decision of the Court of Criminal Appeal of Queensland in R v Liekefett; Ex parte Attorney-General (Qld) ([1973] Qd R 355). In Liekefett, the Court of Criminal Appeal held ([1973] Qd R 355 at 366) that an appeal by the Attorney-General under s 669A(1) was an appeal against a discretionary judgment and should be dealt with in accordance with the principles referred to in House v The King ((1936) 55 CLR 499). …

… [His Honour then set out the text of the Second Reading Speech set out above.]

In the light of the decision in Liekefett ([1973] Qd R 355), the Second Reading Speech on the amending Bill and the words 'unfettered discretion', I find it impossible to conclude that, in an appeal under s 669A(1), the Attorney-General must demonstrate error on the part of the trial court or the court of summary jurisdiction that satisfies the requirements laid down in House v The King. Yet in R v Melano; Ex parte Attorney-General (Qld) ([1995] 2 Qd R 186 at 189-190), the Court of Appeal held that except 'perhaps, in exceptional circumstances', the Attorney had to demonstrate error, in accordance with the principles laid down in House v The King, before an appeal under s 669A(1) could succeed. With great respect, this cannot be correct. It was because the Court of Criminal Appeal in Liekefett had held that the House v The King principles applied to s 669A(1) that the Legislature intervened to declare that the Court's discretion was not shackled by those principles.

The words 'may ... vary the sentence' indicate that the Attorney-General's appeal is not by way of rehearing. But the term 'unfettered' must mean that, subject to any statutory direction, the Court can interfere with the sentence for any reason that it thinks is sufficient, so long as the reason is not an arbitrary one. The discretion is to be exercised by a court and must be exercised judicially in accordance with the broad principles laid down by Lord Halsbury LC in Sharp v Wakefield ([1891] AC 173 at 179). This seems to have been the view of Macrossan J in R v Osmond; Ex parte Attorney-General (Qld) ([1987] 1 Qd R 429 at 437) who thought that, 'in the absence of good reason, to interfere with the decision below', the Court would not uphold an appeal under the section."

In York v The Queen, Callinan and Heydon JJ also indicated a degree of disquiet in relation to Melano. Their Honours said:⁴⁹

"We would have been inclined to give 'unfettered' in s 669A(1) of the Code its ordinary meaning, that is, fully unrestricted. Such a reading is, we think, consistent with the Second Reading Speech for the Bill introducing this section into the Code …

The decision referred to in the speech was R v Liekefett; Ex parte Attorney-General (Qld) ([1973] Qd R 355) in which the Court of Criminal Appeal of Queensland (Hart, Matthews and Kneipp JJ) said ([1973] Qd R 355 at 366):

'In the result we have concluded that there is no decision which binds us to any particular view as to the circumstances in which the discretion reposed in this Court by s 669A should be exercised. We think that the most satisfactory approach in an appeal by the Attorney-General is that which the High Court said should be adopted in an appeal by a convicted person in the passage we have cited from House v The King ((1936) 55 CLR 499). So to hold, is in accordance with the views expressed by Isaacs J in Whittaker v The King ((1928) 41 CLR 230 at 250), and by the Court of Criminal Appeal of New South Wales in R v Cuthbert ([1967] 2 NSWR 329). Both appeals are from the exercise of a discretion and there is no reason why the same principle should not apply.'

Despite the ample, explicitly unfettered discretion that the Code appears to confer, this appeal falls to be resolved upon the basis that error in the exercise of the sentencing judge's discretion must be demonstrated before an appellate court can intervene to alter the sentence imposed at first instance, for these reasons. First, Dinsdale so holds. The holding that was made there was made under legislation relevantly indistinguishable, and was that error of the kind referred to in House v The King ((1936) 55 CLR 599) must still be shown to justify appellate intervention. Queensland appellate authority (R v Osmond; Ex parte Attorney-General (Qld) [1987] 1 Qd R 429) directly on point is to a similar effect. The respondent in this appeal offers no argument to the contrary. Indeed the respondent expressly accepted in the Court of Appeal, and on this appeal, that such an onus lay upon it. The appellant has not therefore ever had to conduct her case and this appeal upon any other basis. It would be unjust for her to be required to deal with them upon any different basis now. These reasons are compelling, and relieve us of any necessity to consider the other submissions of the parties (For example, the effect of the constraints imposed by the Penalties and Sentences Act 1992 (Qld) s 9; the principle that courts should impose sentences at the lower end of the scale in appeals by the prosecution; and error on the part of the prosecution is ordinarily not to be used or held against an accused in a prosecution appeal.)."

The last paragraph of the passage cited in the preceding paragraph must be understood on the basis that counsel for the respondent in York did not seek to suggest that the use of the word "unfettered" in s 669A did create a material distinction between s 669A and the legislation considered in Dinsdale v The Queen.⁵⁰ In fact, the legislation considered in Dinsdale did not refer to an "unfettered" discretion.

We turn now to consider the arguments advanced by Mr Walker SC, who appeared with Ms Morreau of counsel for the respondent in the Attorney's appeal. Mr Walker urged that it is contrary to the fundamental principle of equality before the law that the Attorney-General should be accorded more ample rights of appeal against sentence than are enjoyed by a convicted person. Accordingly, so it was argued, s 669A should be scrutinised strictly so as to minimise any disparity.⁵¹ There are a number of things to be said in relation to this argument. First, it must be kept steadily in mind that the question is ultimately one of statutory construction the objective of which is to give effect to the intention of the legislature. It is evident that the legislature intended that the Attorney-General should have more ample rights of appeal against sentence than a convicted person. In this regard, s 669A permits an appeal as of right, whereas s 668D(1)(c) and s 668E(3) of the Code confer no right of appeal against sentence on a convicted person: such an appeal is made available to a convicted person only upon a grant of leave.

Secondly, there are good reasons for this evident disparity, not the least of which is that the right of appeal conferred on the Attorney-General is an important means of ensuring equality before the law by ensuring that like offences and like offenders are punished alike. The Attorney-General's appeal is an important tool in the maintenance of equality before the law of all convicted persons. The rationale for the conferral of the right of appeal on the Attorney-General is so radically, and obviously, different from that which informs the conferral of an entitlement on a convicted person to seek leave to appeal against sentence, that the attempt to urge strict scrutiny of s 669A(1) in the name of the principle of legality is distinctly unpersuasive. As we have mentioned, on the "strict scrutiny" approach urged by Mr Walker, the amendment of s 669A(1) by the addition of the word "unfettered" had no legal effect. Scrutiny of this degree of strictness seems so "strict" as to have degenerated into pettifogging hair-splitting of the kind that is apt to suggest a wilful insistence on a judicial prerogative to make policy choices which are properly the province of the legislature.⁵²

An associated argument advanced by Mr Walker SC was that the use of the terminology of "appeal" in s 669A was a sufficient indication that the right conferred was a right to seek the correction of error (rather than a review of the level of sentence) to warrant the conclusion that the legislature has not made clear its intention to obviate the need for demonstrated error as a pre-condition for the exercise of the sentencing discretion conferred on this Court. But to say this is simply to rehash the arguments which were upheld in Liekefett and which the legislature clearly intended to obviate by the 1975 amendments. It is also to be noted that the statutory context in which the "appeal" is located specifically explains the special nature of the appeal as one in which the Court may vary the sentence to impose the sentence which the Court considers should be imposed. Variation may occur without the need to set aside the decision below in order to re-sentence the offender.

It was also argued in written submissions on the respondent's behalf that "the terms of the Attorney's appeal rights under s 669A(1) are exactly the same as those which were considered by this Court in R v Ferguson:⁵³

"It may be accepted, as the respondent contends, that this appeal, like all appeals, is the creature of statute; but it does not follow from acceptance of that contention that the legislature's conferral of a right of appeal on the Attorney-General is meaningless. Rather, the right of appeal created, without elaboration by s 669A(1A), must be understood as an appeal in the strict sense. Such an appeal is not in the nature of a rehearing, and the Court has no power to receive further evidence. Such an appeal is available only to correct demonstrated errors in the decision below. The orders which the Court may make do not extend to exercising the discretion afresh based on its own view of the facts." (emphasis in the respondent's submission)

Reference to the text of s 669A(1A), which was the provision involved in R v Ferguson; ex parte A-G (Qld)⁵⁴ shows that this submission is without foundation. Section 669A(1A) allows the Attorney-General to appeal to this Court against an order "staying proceedings or further proceedings on indictment". That is all it says: it does not go on to explain the nature of the right of appeal so conferred by a statement of the function of the Court on such an appeal of the kind which appears in s 669A(1) of the Code.

In the upshot, we have come to the conclusion that the approach taken in Melano is "opposed to the undoubted intention of the Parliament as enacted" in s 669A in its current form.⁵⁵ In these circumstances, this Court should not adhere to that erroneous approach but must apply the law as enacted by Parliament. Accordingly, Melano should no longer be followed.

This Court should return to the approach explained by Andrews CJ in R v Osmond; ex parte Attorney-General (Qld) set out above. This Court in exercising its discretion must have regard to the sentence imposed below, but come to its own view as to the proper sentence to be imposed. In doing so, it must act in conformity with the principles relevant to the exercise of judicial power.

It may be that the view to which the Court comes will not be so substantially different from the sentence imposed below that, in the exercise of the Court's discretion in all the circumstances, no variation is warranted. It is obviously undesirable to seek to set out a comprehensive list of relevant discretionary considerations. As the Solicitor-General acknowledged in the course of argument, the right of appeal conferred by s 669A should be exercised sparingly by the Attorney-General and not merely for the purpose of having a "second bite at the cherry". In this regard, the discretionary considerations discussed by the High Court in GAS v The Queen⁵⁶ remain relevant. That having been said, there may be cases where these considerations will be outweighed by the need for condign punishment.

Re-sentencing at the lower end of the range

We turn to consider the second "fetter" on the sentencing discretion conferred by s 669A(1). In R v AS; ex parte A-G (Qld),⁵⁷ this Court considered a submission that the discretion conferred by s 669A(1) required the imposition of a sentence at the lower end of the appropriate range. Williams JA, with whom the Chief Justice and Mullins J agreed, rejected that submission. His Honour said:

"In his submissions counsel for the respondent emphasised that this was an appeal by the Attorney-General from a sentence imposed on a young offender. He referred generally to the approach taken by appellate courts to such matters, and referred in particular to passages in the reasoning of the High Court in Everett v The Queen (1994) 181 CLR 295. However, it is important to remember that s 669A of the Criminal Code confers a right of appeal on the Attorney-General and the court has an 'unfettered discretion' to vary the sentence under appeal. In Bryan v The Queen; Lewis v Attorney-General of Queensland [2004] HC Trans 246 (23 June 2004) in refusing to grant special leave Gummow J (with the concurrence of Kirby and Hayne JJ) after referring to the wording of the section observed that s 669A 'is a provision which appears to be unique to Queensland and differs significantly from the provisions governing the disposition of prosecution appeals against sentence elsewhere in Australia.' The term 'unfettered' was inserted by amendment in 1975 to overcome the decision of the Court of Criminal Appeal in R v Liekefett; ex parte Attorney-General [1973] Qd R 355. In my view this court is not constrained upon the hearing of this appeal in the way suggested by counsel for the respondent in his submissions."

In any given case, there may be reasons informing the exercise of the sentencing discretion conferred on this Court by s 669A which would lead to the imposition of a proper sentence at the lower end of an available range. Without seeking to be exhaustive in this regard, considerations of delay, or changes in the circumstances of the respondent between sentence and the hearing of the appeal, or the conduct of the prosecution at sentence might be relevant here. That having been said, there are compelling reasons to reject the proposition that a sentence varied under s 669A should presumptively be fixed at the lower end of the appropriate range.

At the level of practicalities in terms of the due administration of criminal justice, this Court's decisions afford guidance for the community and sentencing judges as to the appropriate range of punishment for the diverse categories of offences and offenders who come before the courts in Queensland. It is inconsistent with the due performance of this Court's role in the administration of justice that the range of sentences within the sound exercise of the sentencing discretion should be skewed downwards because of adherence by this Court to a practice of imposing sentences at the lower end of the available range.

In terms of principle, it must be borne in mind that the fundamental value of equality before the law requires that like offences and offenders should receive like punishment. This fundamental principle of the rule of law will be compromised if the sentences imposed by this Court under s 669A are fixed at a level lower than those fixed by lower courts for like offences involving like offenders.

It may be accepted that the long-standing judicial aversion to putting the subject in jeopardy of criminal punishment for a second time⁵⁸ is a consideration relevant to the exercise of the discretion conferred on this Court by s 669A(1). What may not be accepted is that there is an overarching rule which operates to require this Court to impose a sentence at the lower end of the available range.

Conclusion

It will be apparent from what we have said in relation to the sentence imposed on the respondent in respect of his application for leave to appeal against sentence that we consider that the sentence which was imposed on him was inadequate. In our view, the available range of sentence for this crime and this offender, suggested by the decisions we discussed there, could well have extended to a sentence of 13 years imprisonment, so as to make an effective total period of imprisonment of 15 years.

We note that the upper end of the range of sentence sought by the prosecution was an effective total period of imprisonment of 13 years, that is, a sentence of 11 years. It is well-settled in point of principle that "[G]enerally speaking, if [a] submission [as to sentence] is not made to the sentencing judge the prosecution should not be able to advance that contention successfully on an appeal by the Attorney-General".⁵⁹

Taking into account the stance adopted by the prosecution before the learned sentencing judge, and bearing in mind the importance of the consideration that appeals under s 669A must not be seen as a means for the prosecution to change its mind as to the level of sentence it is disposed to seek – ie to have a "second bite of the cherry" – as well as the respondent's youth and relatively minor previous criminal record, we consider that the respondent should be sentenced to 11 years imprisonment: that is, an effective total period of imprisonment of 13 years. Apart from that variation, we would not disturb the sentence imposed by the learned sentencing judge on the respondent.

The appellant's application for leave to appeal against sentence

The appellant seeks leave to appeal against the sentence of 10 years imprisonment imposed after his conviction for manslaughter on grounds that:

The primary judge wrongly characterised the nature of his conduct and the appellant's culpability in the commission of the offence;

The sentence imposed was manifestly excessive.

The submissions of counsel for the appellant

The substance of the submissions made on the appellant's behalf was as follows.

The primary judge made the following findings about the circumstances of the appellant's shooting of the deceased:

"10.1The weight of the evidence placed the deceased closer to the table in the dining room than the hallway, when shot by the Appellant.

10.2The Appellant was more likely to be closer to the lounge room than the front door when he fired.

10.3The Appellant must have heard and recognised the deceased's voice in the lead up to Jade Lacey taking the first shot, saying "shoot me".

10.4The Appellant had a direct line of sight to the deceased when he fired at him;

10.5Although accepting that it was a 'chaotic situation' after the first shot; his Honour did not accept the Appellant's submission that the taking of the shot was 'a spontaneous act'.

10.6That 'the most likely resolution of this' (the jury's verdict dismissing an accidental discharge) was that the Appellant intentionally shot the deceased with an intention to 'do something other than kill or cause grievous bodily harm' but without an intention to kill or do grievous bodily harm." (footnotes deleted)

The above findings, which were used to aggravate the appellant's culpability, were "not a true reflection of the evidence". In making the findings, the judge's discretion was "bound by the manner in which the jury, by verdict, expressly or by necessary implication decided that issue".⁶⁰ The only factual finding necessarily implied by the verdict is that there was no intention to cause death or grievous bodily harm. Although a sentencing judge's findings of fact are to be made on the balance of probabilities,⁶¹ the standard of proof "varies according to the consequences, adverse to the person being sentenced, of finding" an allegation of fact to be true.⁶²

There was no proper basis upon which the primary judge could have found that the appellant's shot was "not a spontaneous act", given the evidence as to the timing of the shots and the throwing of the chair and the bottle, and the chaos that ensued. The evidence does not support this finding, having regard to the standard of proof.

The appellant's culpability arises due to his belief (self-defence) being unreasonable or his actions being criminally negligent. The evidence which supports this contention is:

The circumstances were chaotic and happened very quickly;

The appellant was outside the unit or at least at the end of the hallway to start with;

The lack of clear sight from in the hallway whilst a person (Jade) was standing in the hallway;

The noise level included the activation of a smoke alarm;

The people in the unit were yelling and items were being thrown in the direction of the appellant and his brother; i.e. a chair and a bottle;

Jade Lacey was retreating backwards;

The uncontested evidence that the appellant said to Jade, "Where did you get hit?" once they had exited the unit and were in the driveway.

It is impossible to find an intent to harm short of an intent to cause grievous bodily harm in the absence of the taking of a special verdict, particularly as there was a shot to the chest at close range where there was (as the primary judge found) "a direct line of sight". The "direct line of sight" is inconsistent with the jury's acquittal on the murder charge. If the appellant saw the deceased and shot him directly in his chest, he could not have acted without intent to kill or cause grievous bodily harm.

The following matters were relevant to the appellant's sentence. Although the primary judge purported to take into account the 733 days spent in custody by the appellant whilst on remand for other offences, he did so by reducing the notional head term of 12 years by two years. This still resulted in the actual time to be served by the appellant, including the time he had already served, being in the order of 10 years. Although no "precise arithmetical calculation" is called for, it is consistent with authority to in effect double the time served if one is reducing the head term to reflect the time actually served: R v Wishart and Jenkins;⁶³ followed in R v Alexander;⁶⁴ and accepted in R v Godbee.⁶⁵

The appellant was 20 at the time of the offence. He had been a professional skateboarder until an injury in 2005 ended that career prospect. He worked at various other jobs and commenced some small business ventures. This history shows a willingness to work "in what might be seen as menial positions". He has only one prior conviction, possession of an unloaded firearm in 2005 in respect of which no conviction was recorded and he was ordered to perform 80 hours of community service.

The appellant cooperated with the administration of justice in that he made extensive admissions at trial resulting in the reduction of the length of the trial. No aspersions were cast upon the deceased in the running of the appellant's trial and there was no cross-examination of his mother at trial or on committal.

The primary judge, in determining the sentence, "pointedly relied upon" the sentences in R v Griffin & Dunkerton.⁶⁶ Those men had gone away after the initial confrontation and deliberately armed themselves for the purpose of a further confrontation. Dunkerton was twice the appellant's age with a "extensive criminal history" and had previously been held criminally responsible for another's death. The Court noted that the sentence imposed "was at the top end of the range".

Having regard to the matters referred to above, including "prospects of rehabilitation", a sentence at the lower end of a range of eight to eleven and a half years was appropriate. From a term of about 11 years, between two and a half and four years should have been deducted to reflect time served. No serious violent offence declaration was warranted. One was not made in respect of Jade Lacey, where the jury found a specific intention to maim.

The sentence contended for is supported by R v Moors,⁶⁷ in which the applicant was sentenced to 11 years imprisonment after a plea of guilty. At the time there was no provision for an automatic serious violent offence order. In Moors, the 35 year old applicant, with two prior convictions for possession of a dangerous drug, was growing a marijuana crop. He saw persons in a vehicle whom he suspected of intending to steal marijuana plants. He armed himself with an assault rifle equipped with a telescopic sight, fired shots at the tyres of the vehicle and then 12 more shots at the vehicle itself, one of which pierced metal on the vehicle and killed one of its occupants.

The 10 year sentences imposed in R v Matthews⁶⁸ and R v Sebo; ex parte A-G⁶⁹ also support a lower sentence than that imposed. In Matthews, reference was made to R v De Salvo,⁷⁰ where the Courts referred to a range, for deliberate acts leading to death, of between 10-12 years. In Sebo the respondent had no prior convictions or episodes of violence and had offered to plead guilty to manslaughter. He had also made admissions in the course of the trial. Although the appeal was unsuccessful, the Court confirmed that a range of 9 – 12 years was applicable.

The respondent's submissions

Counsel for the respondent relied on the following submissions made on the Attorney-General's appeal against sentence. The sentence imposed does not reflect the gravity of the appellant's criminality. The primary judge referred to R v Griffin & Dunkerton,⁷¹ observing that although in that case it was said that 12 years was the top of the range, "That does not prevent an appropriate sentence being of that order especially when taking into account the elements of deterrence and community denunciation which the crime calls for." Griffin & Dunkerton does not represent a sentence at the top of the range for an offence in these circumstances.

In R v Bates; R v Baker,⁷² it was established that, in the most serious cases of manslaughter, the appropriate sentencing range, even when the offender has pleaded guilty, is 15 to 18 years. Reliance was placed also on R v Corry.⁷³ This case must be regarded as a most serious case of manslaughter, as the appellant was found guilty after a trial and:

The appellant brought a loaded gun to a residence;

There was an obvious intent to fire the pistol at the victim;

The victim was a friend who had not fired at, not been aggressive towards the appellant;

It was found there was no evidence of the appellant acting in a spontaneous way;

The appellant's shot had been fired after the victim had been previously shot in the leg; and

After shooting the victim, the appellant left the victim and did not tend to him or render any assistance.

There is demonstrable error as the sentence imposed was manifestly inadequate. The error occurred because the primary judge erroneously relied on Griffin & Dunkerton and understood that he was imposing a sentence at the top of the appropriate range.

Despite the Crown Prosecutor submitting that the appropriate sentence was 13 years (before deducting the two years of imprisonment that the appellant had already served), the appropriate range is 15 – 18 years imprisonment. This case is more serious than Dunkerton, as the appellant brought a loaded weapon to a residence for no apparent reason. In Dunkerton, the accused reacted to being shot at by getting a gun and firing back. Here, the appellant shot the victim in the chest after the victim had already been shot in the legs. The victim faced two armed men. One shot and disabled him. The other shot and killed him.

The proper sentence was in the range of 13 – 16 years imprisonment.

Particular reliance was placed on R v Bayliss;⁷⁴ R v Bates; R v Baker⁷⁵ and R v Corry.⁷⁶

Consideration

For the reasons explained by Hayne J in AB v The Queen,⁷⁷ in a passage quoted in the reasons in Appeal No. 123 of 2009, there is normally little to be gained by subjecting the offending conduct in each case to exhaustive analysis in an attempt to establish an exact relationship or proportionality between the sentence imposed in one case and the sentence imposed in another.

Williams JA in his reasons in R v Bates; R v Baker,⁷⁸ after observing that "Sentencing for manslaughter is always difficult", explained:

"It has often been said that the offence of manslaughter covers a wide variety of circumstances in which a person has been unlawfully killed. Because of that it is difficult to speak of a range of punishment applicable to the offence, and it explains why it is sometimes difficult to reconcile one sentence of manslaughter with another. Many crimes of manslaughter involve what could be described as a one on one situation. In many such instances there are complicating features such as provocation, excessive self-defence and a single blow (with or without a weapon) delivered in a highly emotional situation. Such cases can readily be distinguished from a planned gang attack on a relatively defenceless person in a remote locality. There is an even greater abhorrence generally in society when such an attack is carried out with retribution as its main object".

In Bates, the 20 year old Bates was sentenced to life imprisonment for the manslaughter of his 21 year old victim. His co-accused, Baker, a female who was 16 years and 8 months at the time of the offence, but who was sentenced as an adult, was sentenced to 12 years imprisonment with a serious violent offence declaration. Both applicants had made late pleas of guilty.

Baker encouraged Bates to attack the victim because of a perceived slighting and criticism of her by the victim. The two offenders broke into the house in which the victim and others were residing and subjected him to a savage beating. Bates delivered what the sentencing judge described as a "vicious battering", to which the victim offered no resistance. Baker gave verbal encouragement. She then joined in by stomping upon or kicking the deceased's head while he lay on the floor. Previously, Bates had knocked the victim to the floor and had kicked and punched him as he lay there. The victim died from head injuries.

In his reasons, de Jersey CJ said:

"The case falls within the worst category of manslaughter, by reason of this aggregation of circumstances: the triviality of the matters which formed its genesis, the gross viciousness of the conduct which caused the death, the satisfaction one infers was derived by the offenders through their commission of the offence, and the callousness of their subsequent conduct. The need to protect the community emerges from the events themselves, and as we know, Bates had previously relevantly offended.

It fell within the limits of his Honour's sound sentencing discretion to imprison Bates for life. Fine comparison between the circumstances of this case and others is not helpful in a situation like this."

The Court dismissed Baker's application for leave to appeal and reduced Bates' life sentence to a sentence of 18 years with a declaration that he was convicted of a serious violent offence.

In R v Griffin & Dunkerton, the applicant, Griffin, who had a "significant criminal history", although never having been sentenced to a term of imprisonment, was sentenced to nine years imprisonment for manslaughter. The 40 year old Dunkerton, who had an extensive criminal history, including sentences for terms of imprisonment, received a 12 year sentence. By operation of Part 9A of the Penalties & Sentences Act 1992 (Qld), Dunkerton was subjected to the consequences of being a serious violent offender.

Dunkerton and Griffin, who shared a house with others, heard a car doing burnouts near their residence in the evening. They investigated the occurrence on foot and met up with Griffin's brother. Their investigations led them to a shed in which the deceased, a male friend, a female friend and the female's very young child, were present. They heard Griffin's brother's car "revving" in the driveway. The deceased took a gun outside, fired a shot in the air and returned to the interior of the shed. He reloaded the gun and went back outside. After the first shot, Griffin told Dunkerton to get a gun, which he did. The deceased fired two more shots into the air. Dunkerton stepped out from behind some bushes, swung the rifle around and fired, hitting the deceased in the chest and killing him. Immediately before he was hit by projectiles from Dunkerton's gun, the deceased was seen to lower his gun and fire in the direction of Griffin and his brother.

McMurdo P and Wilson J, in their joint reasons, observed of the applicants' behaviour:⁷⁹

"In our view, such behaviour, if permitted to occur undeterred, would lead to the breakdown of law, order and civilised society. For that reason, a deterrent sentence was required in this case in respect of both applicants."

The sentences were not disturbed and it was said in the joint reasons that Dunkerton's 12 year sentence was "at the top end of the range". It was stated also that Griffin's sentence of eleven years and eight months, which was accompanied by a recommendation for eligibility for parole after approximately five years, was not lenient but within the exercise of a sound sentencing discretion. Griffin, of course, was not the principal offender and had not participated in the shooting other than by counselling Dunkerton to obtain a gun and by his presence.

The 18 year old applicant in R v Bayliss⁸⁰ was convicted of manslaughter after a trial and sentenced to 15 years imprisonment with hard labour. On the evening of the killing, the applicant had consumed alcohol and a number of Serepax tablets. He went into a caravan in which he resided, obtained a rifle, loaded it, struck his mother with it, and fired the rifle "in what can only be described as an indiscriminate way, and in the course of so doing struck the victim, who was the caretaker of the caravan park, and killed him." The trial judge, in his sentencing remarks, observed that the applicant was intoxicated at the time and that he embarked upon a course of conduct "spraying bullets in a place which was obviously populated", which made it "inevitable that some life would be at risk". Kelly J, with whose reasons the other members of the Court agreed, concluded that whilst the sentence was severe, it could not be said to be manifestly excessive.

In Corry, in which a sentence of 17.5 years was not disturbed, Keane JA observed in his reasons that R v Bates; R v Baker "established that, in the most serious cases of manslaughter, the appropriate sentencing range, even where the offender has pleaded guilty, is 15 to 18 years imprisonment". It is, of course, necessary to recognise that the maximum penalty, life imprisonment, was set by Parliament and that a sentencing "range", while important in terms of consistency in sentencing, does not establish an inflexible minimum and maximum into which all relevant offences must fit.

It is now desirable to say something of the decisions relied on by the appellant. In R v Moors,⁸¹ the 35 year old applicant with a minor prior criminal history was sentenced to 11 years imprisonment for manslaughter after an allowance of 12 months on account of pre-sentence custody. The facts of the case are briefly stated above. The Court refused the application for leave to appeal against sentence on the grounds that it was not manifestly excessive. The Court was not required to determine an appropriate sentence.

Matthews was an unusual case. The applicant, who was 31 at the time of the offence and 36 when sentenced and had a lengthy criminal history, was sentenced to 10 years imprisonment for the manslaughter of a 27 year old woman. Pre-sentence custody of 366 days was declared. The applicant, who was travelling with the deceased, discovered that she had been involved in a burglary at his home which had indirectly led to his wife's miscarriage. Intoxicated and in a blind rage, the applicant choked his victim and her "drug toxicity" was a significant factor in her death. He demonstrated remorse, pleaded guilty to an ex officio indictment, confessed and otherwise co-operated extensively with police. A sentence of nine years was substituted for the sentence imposed at first instance.

The 28 year old respondent to an Attorney's appeal in Sebo, with no criminal history, was sentenced to 10 years imprisonment for the manslaughter of his 16 year old girlfriend. She told him that she had slept with a number of other men and he struck her a number of times with a steering wheel lock before taking her to hospital. He offered a timely plea of guilty to the offence of manslaughter and was acquitted of murder. The Attorney's appeal was dismissed. Holmes JA in her reasons, with whom the other members of the Court agreed, concluded that the sentence might "properly have fallen between 9 and 12 years."

When regard is had to the pleas of guilty in the decisions just discussed, the nature of the appeals and the issues actually determined in relation to sentence, the decisions provide little support for the appellant's contentions.

It is not proposed to discuss in detail the four other sentences summarised in an attachment to the appellant's counsel's submissions. They are of limited relevance.

In R v Whelan & Attorney-General of Queensland,⁸² the applicant, fearing an attack on himself by men in relation to criminal activities, mistakenly shot and killed a pizza delivery man who came to his door. His 10 year sentence, taking into account pre-sentence custody which could not be declared, equated to a sentence of 11 years and 8 months.

The eight year sentence imposed in R v Sydes⁸³ was described on appeal as "curiously lenient". The Court of Appeal in R v Mrsic⁸⁴ merely dismissed an appeal based on the alleged existence of fresh evidence. In R v Schuurs,⁸⁵ the applicant's appeal against a 10 year sentence for manslaughter was dismissed. The Court was not required to decide whether some other sentence would have been more appropriate.

The primary judge was entitled to reject the submission that the firing of his gun by the appellant was "a spontaneous act". The submissions made on behalf of the appellant overstate the consequences of noise and chaos and fail to give due regard to the size and layout of premises in which the shots were fired. The unit, as has already been observed, was very small. The deceased and his friends and acquaintances were located in a very cramped living area containing kitchen/dining and lounge furniture, leaving little empty space within which people could move freely. The hallway between the front door and the corridor was necessarily short because of the size of the unit.

The appellant was obviously in close proximity to his brother when the first shot was fired, as his brother, moving towards the front door, bumped into the appellant. That was before the second shot was fired: perhaps only a couple of seconds before. There is no evidence that the appellant rushed or even hurried into or down the hallway after hearing the first shot.

The "chaos" which was reported after the first shot was no more than the deceased's reeling backwards, picking up a chair and throwing it; another throwing what appears to be a 330 ml bottle; and the other men in the room running for cover. The appellant did not give evidence. Self-defence was rejected by the jury. There is no reason to suppose that the appellant could not hear the deceased challenging or questioning Jade Lacey immediately before the first shot. No-one else in the unit had any difficulty in hearing these utterances. The deceased, when he spoke these words, was facing towards the hallway and a resident of a neighbouring unit heard the words, although she was unable to make out most of them.

The primary judge's conclusion that the appellant had a direct line of sight to the deceased when he fired at him seems, with respect, obvious enough. The evidence was that the corridor wasn't wide enough for two people. Jade Lacey, according to himself, bumped into the appellant, who fired from the hallway, hitting the deceased in the heart. Plainly, there was a straight line between the barrel of the gun and the point at which the bullet struck. It would be unlikely that the appellant reached around his brother to fire. He had just been bumped by him, on Jade Lacey's account and Jade Lacey was moving backwards towards the door. It would have been surprising if the appellant had not looked into the illuminated living room to see where he was firing. Additionally, on the account of Jade Lacey, the sound of his shot was much louder and had a greater impact on him than the second shot. That suggests that the second shot was not fired by a gun beside or very close to his body.

The jury did not find, beyond reasonable doubt, an intention to kill or cause grievous bodily harm. Nevertheless, there are features of the appellant's conduct which make his offence particularly reprehensible. The offence was committed with a concealed, loaded pistol which the appellant took with him to the unit. The appellant deliberately fired into a small room which he knew to be occupied by at least six people. There was thus a high risk that the shot would kill or injure one of the men in the room. It is reasonable to conclude that the appellant was aware that there was an even greater risk that a bullet fired from the gun would strike the deceased, with whom he was friendly. He was aware, it may be inferred from the matters previously discussed, that the deceased, moments before, had been engaged in a confrontation with Jade Lacey who was, at the time, in the hallway. Even if, which may be doubted, the appellant did not see the deceased before he fired, he was aware that he was in or close to the line of fire. Consequently, the appellant's deliberate firing of his gun was singularly culpable.

Counsel for the appellant and counsel for Jade Lacey made the point, supported by the evidence, that there was something of a culture in the circles in which the two Laceys moved, of carrying handguns. The evidence, it would seem, was led with a view to ensuring that it would not be inferred from the fact that the appellant was armed, that he went to the unit intending to use his weapon. It may be accepted that he did not, but the fact that he customarily went armed with a loaded weapon out of bravado or to burnish a more than dubious "tough guy" image, adds to, rather than detracts from, the seriousness of his conduct. The combination of habitual gun carrying and the accompanying mindset created a substantial risk that the gun would be produced and used should the appellant find himself in circumstances in which he was under stress, felt threatened, or even in which the brandishing of his gun was perceived by him as a deterrent to others or as promoting his interests.

It should be clearly understood that the unlawful possession and use of handguns is not tolerated by society and that offences committed with them will result in exemplary punishment. The sentence imposed on the appellant was required to be one which made it clear "that the community, acting through the court, denounces…conduct" of the sort "in which the offender was involved"⁸⁶ and which acted as a deterrent to others.⁸⁷ The sentence, as the primary judge rightly recognised, was also required to reflect the need for personal deterrence.

The appellant's sentence was significantly lower than the sentence imposed in Bayliss, but the appellant's culpability was greater, and the applicant in Bayliss did not use a handgun. Even after making due allowance for the appellant's limited criminal history and youth, it cannot be said that the primary judge's selection of 12 years as the starting point for his sentence was excessive, let alone manifestly so. A substantially higher head sentence would have been within the proper exercise of the sentencing discretion and was in fact required if the purposes of denunciation and general deterrence were to be adequately served. The sentence of 10 years, after allowing for time spent which was not able to be declared time served, was, in consequence, far from excessive.

Accordingly the application for leave to appeal against sentence must be dismissed.

McMURDO P: I agree with the majority that Dionne Lacey's appeal against his conviction for manslaughter should be dismissed. The comprehensive discussion of the relevant facts and issues in those reasons allows me to state my reasons on this aspect of the appeal more briefly than otherwise.

Should s 25 have been left for the jury's consideration?

The first ground of appeal against conviction is that the judge erred in failing to direct the jury on the operation of s 25 Criminal Code 1899 (Qld) which provides:

"Subject to the express provisions of this Code relating to acts done upon compulsion or provocation or in 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." (my emphasis)

In R v Smith,⁸⁸ Davies JA (Fryberg and Mullins JJ agreeing) considered whether s 25 could be relied upon where compulsion was raised, concluding:

"I would construe the opening words of s.25 as excluding its operation where the provisions of the Code relating to acts done upon compulsion are brought into operation; that is, where the act and what is said to be the compulsion require the application of s 31(1)(c) or s 31(1)(d)."

Before counsel at Dionne Lacey's trial began their final jury addresses, they discussed with the trial judge the relevant law arising from the evidence. Dionne Lacey's counsel contended that s 24 Criminal Code (mistake of fact) and the provisions of the Criminal Code relating to self-defence, relevantly, s 271, s 272, s 273; and, in the alternative to the self-defence provisions, s 25, were all raised.⁸⁹ The prosecutor, citing R v Smith, submitted that, if self-defence was to be relied upon, s 25 had no application. Dionne Lacey's counsel contended that the judge should direct the jury to only "consider section 25 if they came to the view that the self defence provisions had no application" adding: "I put it in out of an abundance of caution because I don't intend myself to be giving the jury any lengthy submission on 25."⁹⁰ The prosecutor stated that he would not complain about such a direction. But the next day, returning to R v Smith, he submitted that, where self‑defence is raised as a possible defence, s 25 could not be relied upon because of its opening words.⁹¹ Later, the judge told counsel that he had looked at Smith, which bound him, and its effect was that s 25 could not be raised if self-defence was raised.⁹² Dionne Lacey's counsel agreed, noting: "Yes, I hope I made it clear I wasn't really seeking this morning to persuade your Honour to the contrary".⁹³ It is clear from this exchange that Dionne Lacey's trial counsel all but abandoned his contention that s 25 should be left to the jury in this case.

This ground of appeal raises an interesting question as to the construction of s 25. I am not persuaded that the use of the same ten introductory words in s 23(1) Criminal Code⁹⁴ and in s 25 necessarily makes observations about the construction of those words in s 23(1) apposite to the construction of those words in s 25. It is self-evident that the introductory words in s 23(1) concern "negligent acts and omissions" whilst in s 25 they concern "acts done upon compulsion or provocation or in self-defence". As Thomas J noted in R v Hodgetts and Jackson:⁹⁵

"It is clear that in cases falling under s.289 (which embraces most but not all conceivable cases depending upon proof of criminal negligence), a separate set of sections and considerations apply, virtually in a different stream from those which apply to other cases involving death or harm through personal violence."

Dionne Lacey's counsel in this appeal, in arguing that s 25 was open at trial, places emphasis on the ordinary meaning of the words used in s 25. These seem only to exclude the operation of extraordinary emergency under s 25 where its operation is inconsistent with that of compulsion, provocation or, relevantly here, self-defence. They argue that this contention is consistent with Sir Samuel Griffiths' notes to what is now s 25 in his draft Criminal Code:

"This section 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."⁹⁶

I consider there is some force in that argument. I note that in R v Kimmins,⁹⁷ although the point was not argued and Smith was not discussed, both s 25 and self‑defence were left to the jury. But the effective abandonment of s 25 by Dionne Lacey's trial counsel was for good reason. Even accepting for present purposes that the primary judge erred in not leaving s 25 for the jury's consideration if they found s 271, s 272 and s 273 in combination with s 24 were negatived by the prosecution beyond reasonable doubt, that is still of no assistance to Dionne Lacey.

It is common ground that the evidence which Dionne Lacey's appellate counsel contend raised extraordinary emergency under s 25 was the same evidence which they contend raised self-defence under s 271, s 272 and s 273, whether or not in combination with s 24.⁹⁸ That evidence centrally concerned whether Dionne Lacey may have honestly and reasonably believed that the deceased was armed with a gun, and whether Dionne Lacey may have pulled the trigger of his own gun, causing a bullet to fatally enter the deceased's heart and lung.

I am not presently persuaded that there could never be a case where a jury could take a view of the facts that caused them to reject compulsion, provocation or self-defence, but which raised s 25. If so, the fact that one possible view of the evidence raised compulsion, provocation or self-defence would not remove from the trial judge the obligation to address the jury on the potential application of s 25. But that was not the position in this trial. The jury's conviction of Dionne Lacey on the offence of manslaughter means that they were satisfied beyond reasonable doubt that s 271, s 272 and s 273 in combination with s 24 were disproved by the prosecution. This means the jury rejected the possibility that Dionne Lacey honestly and reasonable believed that the deceased was moving towards him armed with a gun when Dionne Lacey discharged his own gun. It follows that, even if the judge should have directed the jury on s 25, Dionne Lacey has not lost a real chance of an acquittal as he would inevitably have been convicted on the evidence at trial which demonstrated his guilt beyond reasonable doubt: Weiss v The Queen.⁹⁹ There has been no substantial miscarriage of justice as a result of that omission: s 668E(1A) Criminal Code. The appeal cannot succeed on this ground.

Were the judge's directions on s 24, s 271, s 272 and s 273 Criminal Code confusing and did they fairly explain Dionne Lacey's case as argued by his counsel?

I agree with the majority that, viewed as a whole, the trial judge's oral directions coupled with the written "jury notes" as to the application of s 24, s 271, s 272 and s 273 to Dionne Lacey's case were comprehensive, lucid, balanced and adequately explained his case as conducted at trial.

The transcribed direction set out in the reasons of the majority at [77] was confusing. But in the context of the preceding and subsequent oral directions and the written "jury notes" provided to the jury, they could have been in no doubt that the onus of proof was on the prosecution to negative s 271, s 272, s 273 and the application of s 24 beyond reasonable doubt.

The prosecutor addressed the jury from 12.45 pm until 1.00 pm and from 2.30 pm to 4.30 pm on Tuesday, 28 April 2009. Dionne Lacey's counsel addressed the jury on Wednesday, 29 April 2009, from 10.47 am until 12.56 pm. The trial judge commenced his final jury directions at 2.30 pm on that day. The jury retired at 2.59 pm. The judge's directions resumed the next day, Thursday, 30 April 2009, from 3.19 pm to 4.24 pm. They continued on Friday, 1 May 2009 from 10.59 am until 11.50 am, when the jury retired to consider their verdict. At 3.12 pm the judge briefly re-directed the jury in response to a question they raised. They retired again at 3.15 pm. The judge allowed the jury to separate under s 53(7)(a) Jury Act 1995 (Qld) at 4.00 pm for the May Day long weekend. The jury re-commenced their deliberations on the morning of Tuesday, 5 May 2009. They were allowed to separate again that evening. They continued their deliberations on Wednesday, 6 May 2009. They returned their verdict in Jade Lacey's case at 10.32 am and in Dionne Lacey's case at 2.59 pm.

Ordinarily, it is prudent for trial judges, when giving final directions to juries in criminal trials, to identify the issues; to relate the issues to the relevant law and evidence; and then to outline the main arguments of counsel: Domican v The Queen;¹⁰⁰ R v Mogg.¹⁰¹ The trial judge in this case did not discretely outline the main arguments of counsel as is the usual practice in Queensland. That practice should be discouraged. When the jury retired to consider their verdict in this case, it was a little less than two days since they had heard directly the contentions of the prosecutor and Dionne Lacey's counsel. In those circumstances, a summary of the competing submissions of counsel would have been a helpful reminder. But the trial judge conscientiously simplified and clarified for the jury the relevant law and issues, which I consider a jury would have otherwise found dauntingly complex. The relevant law and issues in Dionne Lacey's case were whether the prosecution proved he intended to kill or do grievous bodily harm to the deceased, and whether self-defence, either by way of s 271, s 272 or s 273, may have applied in the context of s 24. In the course of the judge's thoughtful and clear explanation of these matters to the jury, he highlighted many of the competing contentions of Dionne Lacey's counsel on the one hand, and of the prosecutor on the other.

In these circumstances, the judge's refusal to accede to the application made by Dionne Lacey's counsel to more comprehensively put Dionne Lacey's case before the jury did not amount to "a wrong decision of any question of law" and nor did it amount to "a miscarriage of justice" within s 668E(1) Criminal Code. This ground of appeal also fails.

Did the primary judge fail to explain the meaning of provocation to the jury?

I agree with the majority that the judge's explanation as to the meaning of provocation in the context of s 271(1) in Jade Lacey's case was, in the present circumstances, also adequate to explain to the jury the term "provoked" in s 271 and s 272 in Dionne Lacey's case. Dionne Lacey's case did not turn on whether Jade or Dionne Lacey had provoked an assault on either of them by the deceased. The issue at trial, squarely put before the jury by the primary judge, was whether the prosecution proved beyond reasonable doubt that Dionne Lacey did not honestly and reasonably believe that the deceased was armed with a gun and might shoot either Dionne or his brother, Jade. No doubt that is why the experienced senior counsel appearing for Dionne Lacey at trial did not ask for any re-direction in this respect. This ground of appeal fails.

May the guilty verdict be tainted with bias?

The facts pertinent to this ground of appeal are set out in the reasons of the majority at [92]-[97].

I am prepared to accept that the woman who contacted Dionne Lacey's solicitors and later the judge's associate was probably a juror on the trial. But neither Dionne nor Jade Lacey's counsel have provided any evidence to allow this Court to go behind or question the validity and legitimacy of the jury verdict.

When the jury returned with their verdict in Dionne Lacey's case, the transcript records the following:

"ASSOCIATE: Members of the jury, are you all agreed upon a verdict?

JURY: Yes.

ASSOCIATE: Do you find the accused, Dionne Matthew Lacey, guilty or not guilty of murder?

SPEAKER: Not guilty.

ASSOCIATE: Do you find the accused, Dionne Matthew Lacey, guilty or not guilty of manslaughter?

SPEAKER: Guilty."

It is usual when verdicts are taken in Queensland criminal trials for the judge's associate at this point to question whether the verdict is unanimous with words like, "So says your speaker, so say you all?" Indeed, when the verdict was taken in respect of the co-offender, Jade Lacey, the transcript records that after the speaker pronounced the guilty verdict, the associate asked, "So say your speaker, so say you all?" and the jury responded, "So say us all." My associate has checked the original recording of proceedings. The transcript of the taking of the verdict in Dionne Lacey's case is correct. Despite the absence of the usual additional words confirming the unanimity of the verdict, it may be inferred from what was said and recorded that the jury verdict was unanimous. Counsel for Dionne Lacey does not contend otherwise. See also Nanan v The State.¹⁰²

At the commencement of the trial after the jury was empanelled, the judge had the prosecutor call out the names of potential witnesses in the trial. A few of these names appear to have been of Turkish or Middle Eastern origin. The judge's instructions to the jury included the following:

"Now, ladies and gentlemen, it is essential that every member of the jury be and by all fair-minded people be seen to be completely impartial as between the prosecution and the defendants. Sometimes a juror knows a witness or about a witness … and because of that, the juror may feel that he or she cannot be and be seen to be completely impartial.

There may be reasons personal to any one of you which may cause you to wonder whether you can be completely impartial in this case.

…

If there's any reason whatever that any one of you feels that you cannot be and by all fair-minded people be seen to be completely impartial, would you raise your hand now."

The transcript does not record that any juror raised a hand. It can be inferred that they did not.

In the ordinary course, each juror would have been given the booklet, Guide to Jury Deliberations, which contained information for jurors as to how to proceed if concerned about the improper conduct of another juror. The booklet referred to relevant provisions of the Jury Act 1995 (Qld), including s 70(8).¹⁰³

During the summing-up the judge told the jury to:

"Ensure that no external influence plays a part in your deliberations."

When the juror contacted the judge's associate after the trial, at the suggestion of Dionne Lacey's lawyers, the associate again referred the juror to s 70(8). In this case, the Court should infer that the concerned juror, having been informed twice of the terms of s 70(8), did not make any complaint to the Attorney-General or the Director of Public Prosecutions that she "suspects another member (the suspect) of bias, fraud or an offence related to the suspect's membership of the jury or the performance of the suspect's functions as a member of the jury".

The correctness of the judge's construction of s 70 Jury Act has no direct relevance to this appeal. The end result is that there is simply no evidence relating to this ground of appeal that there has been a miscarriage of justice warranting the setting aside of the jury's unanimous verdict. This ground of appeal also fails.

It follows that Dionne Lacey's appeal against conviction must be dismissed.

Application for leave to appeal against sentence

I agree with the majority that the sentence imposed on Dionne Lacey for manslaughter of 10 years imprisonment was not manifestly excessive. I consider, however, that the judge erred in fixing a 10 year sentence when he considered that, but for the pre-sentence custody which could not be declared under s 159A Penalties and Sentences Act 1992 (Qld), a sentence of 12 years imprisonment was appropriate. I would grant the application for leave to appeal and allow the appeal against sentence.

The judge found that, consistent with the jury's verdict, Dionne Lacey was holding the hand gun at the time of its discharge; its safety mechanism was off; Dionne Lacey had his finger on or very near the trigger; he intentionally fired at the deceased, but without an intent to kill or cause grievous bodily harm, in a chaotic situation but not with spontaneity.

There were mitigating factors. Dionne Lacey cooperated with the authorities by making admissions and this shortened the length of the trial. He was only 20 years old at the time he committed this dreadful offence. I accept that he has prospects of rehabilitation. His prior criminal history was short and did not involve actual violence.

On the other hand, his criminal history was relevant. On 29 November 2005, he was ordered to perform 80 hours community service for possessing dangerous drugs and dangerous conduct with a weapon. His dangerous handling of the loaded hand gun he was carrying on this occasion resulted in him killing the deceased. Dionne Lacey's lifestyle, apparently shared with his brother, Jade, involved the routine carrying of loaded hand guns. Such conduct is rightly eschewed in Australian society and must be vigorously discouraged. Dionne Lacey not only carried a loaded hand gun; he produced it in a crowded small apartment in the midst of an aggressive situation. He intentionally discharged his gun with tragic consequences. The offence has caused immeasurable, life-changing grief to the deceased's parents, family and friends. It demanded a significant deterrent penalty both in Dionne Lacey's case personally, and generally.

The appropriate sentence in this case was at least an effective sentence of 10 years imprisonment. It follows that, under Pt 9A Penalties and Sentences Act, the offence was one which would automatically attract a serious violent offence declaration so that Dionne Lacey would not be eligible to apply for parole until serving 80 per cent of his sentence.¹⁰⁴ His two years of pre-sentence custody which could not be declared as time served under the Penalties and Sentences Act means that the 10 year sentence imposed was effectively one of 12.4 years. He will have to serve 9.92 years before parole eligibility. A 12.4 year term of imprisonment appropriately balanced the competing considerations and was within the established sentencing range for offences of manslaughter of this type, even for a 20 year old offender with little criminal history. While no other case to which this Court was referred closely matches the present case's unique features, and differences can always be found when comparing one case with another, the effective sentence of 12.4 years is supported in a general way by R v Whelan¹⁰⁵ and R v Griffin & Dunkerton.¹⁰⁶ That, however, does not dispose of Dionne Lacey's appeal against sentence.

The judge stated that, had Dionne Lacey not served any time in pre-sentence custody, he would have sentenced him to 12 years imprisonment. He took into account the two years of pre-sentence custody in determining to impose a 10 year sentence. The judge was cognisant that:

"a 12 year term would ordinarily mean that parole eligibility would not arise until 9.6 years had been served. That will change as a result of the sentence I impose. Nevertheless your crime deserved condign punishment and your sentence will result in an increase in the length of time before eligibility for parole arises."

The judge was right to take into account at the first opportunity Dionne Lacey's pre-sentence custody which could not be declared under the Penalties and Sentences Act: R v Ainsworth.¹⁰⁷ In doing so, it is not necessary to achieve mathematical precision: R v Lester.¹⁰⁸ Nonetheless, it is desirable where possible to give full effect to pre-sentence custody which is unable to be declared under the Penalties and Sentences Act. It is often a relevant consideration in the refusal of bail applications where the prosecution case is reasonably strong, that, if ultimately convicted, the applicant will be given full credit for time spent in custody. That seems to have happened in this case: Lacey v DPP (Qld); Lacey v DPP.¹⁰⁹ The sentencing judge did not give appropriate weight to Dionne Lacey's pre-sentence custody. Nor does the judge seem to have considered the established principle in Queensland that parole eligibility is not usually postponed past the statutory half way mark unless there is a good reason: R v Assurson¹¹⁰ and R v Kitson.¹¹¹ The judge gave no reason for postponing the parole release date other than the generally serious nature of the offence. Dionne Lacey's youth and his prospects of rehabilitation after serving a substantial period in custody were strong reasons for not delaying his eligibility for release on parole. The judge erred in imposing a sentence which effectively delayed Dionne Lacey's parole eligibility. This error was central to the judge's calculation of the 10 year sentence he imposed.

It means that the application for leave to appeal should be granted, the appeal allowed and the sentence imposed at first instance set aside. In re-exercising the sentencing discretion, like the trial judge I consider that an effective sentence of 12 years imprisonment appropriately balances the exacerbating and mitigating features. After taking into account, and giving full effect to, the two years pre-sentence custody, I would impose a sentence of nine years and eight months imprisonment. This sentence is not one which automatically attracts a Pt 9A declaration. It is, however, effectively a sentence of 12 years imprisonment which would automatically attract such a declaration. Primarily, for that reason, but also because of the serious aspects of this offence, Dionne Lacey must be declared to be convicted of a serious violent offence.

The Attorney-General's appeal against sentence

This appeal turns on the correct construction of s 669A(1) Criminal Code, which relevantly provides:

"Appeal by Attorney-General

(1) The Attorney-General may appeal to the Court against any sentence pronounced by –

(a) the court of trial;

…

and the Court may in its unfettered discretion vary the sentence and impose such sentence as to the Court seems proper."

The history of s 669A(1) and its construction

Until s 669A(1) was inserted into the Criminal Code by the Criminal Code Amendment Act 1939 (Qld), the Attorney-General had no right of appeal against sentence. The then Premier, the Hon W Forgan Smith, in the first and second reading speeches for the 1939 Amendment Act, stated:

"The clause in the Bill is exactly the same as the section contained in the New South Wales Act … It is not likely to be used very often, but where circumstances warrant it, the Crown should have the right of appeal just the same as the offender. It is the duty of the Crown to vindicate the law …"¹¹²

"The provision we propose to insert allowing an appeal against sentence is identical with that enacted by New South Wales in 1924 … I repeat what I previously said: that the ends of justice can be served only to the extent to which we protect the public interest … a Bill of this kind is necessary in order … to give the Crown the right of appeal where it is in the public interest … In this Bill we are merely … giving the Crown a similar right to appeal against decisions to that of the defendant."¹¹³

Broadly comparable provisions to s 669A(1) as enacted in Queensland in 1939 (that is, without the word "unfettered") exist in other states and territories.¹¹⁴ In 1912, New South Wales was the first state to introduce such a provision with s 5D Criminal Appeal Act 1912 (NSW). In Skinner v The King,¹¹⁵ the High Court in considering s 5D made clear that a court of appeal will not interfere with a sentencing judge's exercise of discretion and review the sentence unless there is demonstrated manifest excessiveness or inadequacy; or the judge acted on a wrong principle or has clearly overlooked, undervalued, overestimated or misunderstood some salient feature of the evidence.¹¹⁶

In 1928, the High Court again considered s 5D in refusing to grant special leave to appeal in Whittaker v The King.¹¹⁷ In a brief joint judgment, Knox CJ and Powers J refused special leave to appeal. They referred to Skinner, noting that if it correctly stated the test under s 5D, the Court of Criminal Appeal had correctly exercised its discretion and added:

"If, on the other hand, the true view of sec. 5D be, as we think it is, that unlimited judicial discretion is thereby conferred on the Court of Criminal Appeal, that Court has exercised its discretion. In either event there is, in our opinion, nothing in this case to justify this Court in granting special leave to appeal."¹¹⁸

Isaacs J, in lengthy considered reasons, emphasised that:

"the jurisdiction of the Court of Criminal Appeal under sec. 5D, though discretionary, is an appellate power to control an order that is itself discretionary. That is the pivot on which one great question in this case turns, and as to the true nature of appellate discretionary power and its distinction from original discretionary power a superficial consideration is apt to mislead."¹¹⁹

After a thorough review of the relevant English decisions, Isaacs J observed:

"And it is beyond question a departure from sound practice for an appellate Court to proceed to apply its own discretion to the case, unless it examines the grounds on which the Court appealed from has made its discretionary order. If that order has been made in the proper exercise of judicial discretion, the Court of Appeal, for patent reasons, abstains from altering it – that is, as a rule. If, on the contrary, some defect, variously described in different judgments but amounting to a vitiating circumstance, the Court of appeal does not hesitate to do justice in the matter according to its own opinion as far as it can weigh the circumstances."¹²⁰

Isaacs J concluded that Skinner represented the "settled law" of curial discretion,¹²¹ later adding in refusing leave to appeal:

"I cannot think the New South Wales Parliament as a British legislature can, in the absence of distinctly coercive words, be taken to have intended to give the Court at the request of the Crown a greater opportunity of increasing the sentence of a convicted person than of reducing it on his own application. The mere use of the words 'discretion' and 'seem proper' is, as shown, not apt to effect that object."¹²²

Higgins J determined that special leave should be granted so that careful consideration could be given to determine whether the legislature in enacting s 5D meant to substitute the discretion of judges who have not seen or heard the accused and the witnesses for the discretion of a judge who has.¹²³

Gavan Duffy and Starke JJ, in another brief joint judgment, considered there was nothing in the words of s 5D to limit the exercise of the discretion it conferred: in imposing the sentence complained of, the Court of Criminal Appeal "did not proceed in opposition to any principle of law but in accordance with its own considered view of the facts."¹²⁴

This review of the court's reasons in Whittaker for refusing special leave to appeal does not convince me that Whittaker is clear and persuasive authority as to the correct construction of s 5D.

Section 669A(1) seems to have been first construed in 1940 in R v McKeown¹²⁵ shortly after its introduction into the Criminal Code. Although the court did not discuss at length the nature of an Attorney-General's appeal under s 669A(1), it seems to have acted on the assumption that it could re-sentence the respondent prisoner under s 669A(1) without the need for the Attorney-General to establish error on the part of the sentencing judge.¹²⁶

Shortly afterwards, in R v Beevers,¹²⁷ Webb CJ, Macrossan SPJ and Mansfield J clearly construed s 669A(1) as giving the Attorney-General a right of appeal against sentence which did not require the Attorney-General to first establish error on the part of the sentencing judge.¹²⁸

The construction of s 669A(1) took a different turn in R v Liekefett; ex parte Attorney-General¹²⁹ in 1973. In an Attorney-General's appeal against Liekefett's sentence under s 669A(1) in its original form (that is, without the word "unfettered"), the Court of Criminal Appeal, in a joint judgment,¹³⁰ reviewed the Australian authorities and concluded:

"… there is no decision which binds us to any particular view as to the circumstances in which the discretion reposed in this Court by s.669A should be exercised. We think that the most satisfactory approach in an appeal by the Attorney-General is that which the High Court said should be adopted in an appeal by a convicted person in the passage we have cited from House v. The King [(1936) 55 CLR 449 at 504-505]. So to hold, is in accordance with the views expressed by Isaacs J. in Whittaker v. The King [(1928) 41 CLR 230 at 250] and by the Court of Criminal Appeal of New South Wales in Reg. v. Cuthbert [(1967) 86 WN(Pt 1)(NSW) 272 at 273-4]. Both appeals are from the exercise of a discretion and there is no reason why the same principle should not apply."¹³¹

In 1975, clearly in response to Liekefett, the Hon W E Knox, Minister for Justice, introduced to parliament an Act¹³² to amend s 669A(1) by adding the adjective "unfettered" to qualify the word "discretion"¹³³ noting:

"The Bill is being amended to make it clear that the Court of Criminal Appeal has an unfettered discretion to determine the proper sentence to impose when the Attorney-General has appealed against the inadequacy of the sentence. The private legal profession is opposed to this amendment. I do not propose to alter this amendment because it only makes clear what was always intended, and was in fact acted upon by the Court of Criminal Appeal for 30 years until 1973, when a court decision effectively changed the law to what was not intended."¹³⁴

The Queensland Court of Criminal Appeal in R v Adams¹³⁵ then construed the amended s 669A(1) containing the words "unfettered discretion" as requiring that the section be interpreted as it was in Beevers.

The debate as to the correct construction of s 669A(1) continued some years later in R v Osmond.¹³⁶ Andrews CJ, who wrote the principal judgment in Adams, stated:

"In my view, the application of s.669A of the Code pursuant to the intention of the legislature is plain. On the history of the matter it is clear that the legislature intended in the 1975 amending Act to restore the position which had prevailed, albeit on a wrong interpretation of this Court in R. v. Beevers, of what had been said in Whittaker v. The King that the Court is to have an unfettered discretion. It was consequent upon the ruling in this Court in R. v. Liekefett that the amendment was enacted.

The Court is required to have regard to the sentence appealed from in order to decide whether to vary it. The discretion to vary it rests upon disagreement as a matter of judgment for reasons of substance reflected in a variation which is not merely trivial or arbitrary."¹³⁷

Macrossan J (as he then was) noted that, unlike s 668E(3) which deals with the court's power on a prisoner's appeal against sentence, s 669A(1) did not state the grounds for the operation of the unfettered discretion under s 669A(1). His Honour questioned whether the addition of the word "unfettered" added anything to the width of the discretion which otherwise applied before the 1975 amendment. Macrossan J concluded:

"… there is no statutory restriction whatsoever imposed upon the Court's discretion in the case of Attorneys' appeals against sentence but, nevertheless, certain considerations are inevitably involved in the feature that the Court is exercising a discretionary power to interfere and is considering in the appeal the way in which another fully discretionary power has been exercised below. The Court is left as the sole Judge of whether to interfere and nothing compels it to do so, but in the absence of a manifest misapplication of principle below, it will be disposed not to interfere unless the quantum of sentence already imposed calls, in an obvious way, for correction. I would not exclude the possibility that apart from these instances there exists, as part of the unfettered discretion, a reserve power to interfere in other cases in which the Court, in the exercise of its supervisory appellate function for the whole of the State, thinks it appropriate."¹³⁸

Carter J found it unnecessary to determine the manner of the exercise of the statutory power to vary a sentence on an Attorney's appeal against sentence and dismissed the appeal on the basis that he was not in substantial disagreement with the sentence imposed.¹³⁹

This Court extensively revised its view of the constitution of s 669A(1) in 1995 in R v Melano; ex parte Attorney-General.¹⁴⁰ In a joint judgment,¹⁴¹ the Court held that ordinarily an appeal by the Attorney-General under s 669A(1) against sentence should not be allowed unless the sentencing judge had erred in principle, either because an error was discernible or because the sentence was demonstrably manifestly inadequate or excessive. Their Honours reasoned that the unfettered discretion under s 669A(1) was an unfettered discretion either to use the power conferred on the court by s 669A(1) or to decline to do so.¹⁴² The unfettered discretion was subject to inherent limitations requiring the consideration of relevant matters and established sentencing principles.¹⁴³ The discretion did not arise unless it was proper to exercise the discretion and to re-sentence, that is, where there had been error by the sentencing judge. Section 669A(1) was dependent on error first being established on the part of the sentencing judge in accordance with House v The King.¹⁴⁴ The Melano approach to s 669A(1) was long followed in Queensland without dissent¹⁴⁵ and for many years its construction was largely uncontroversial.

That changed in 2004 during argument in the High Court before Gummow, Kirby and Hayne JJ in Bryan v The Queen; Lewis v Attorney-General of Queensland.¹⁴⁶ In refusing to grant special leave, Gummow J noted that s 669A(1) "appears to be unique to Queensland and differs significantly from the provisions governing the disposition of prosecution appeals against sentence elsewhere in Australia." The following month, this Court in R v AS; ex parte A-G (Qld)¹⁴⁷ referred to the transcript of argument in Bryan and considered that this Court was not constrained upon the hearing of an Attorney-General's appeal under s 669A(1) in the way discussed in Everett v The Queen¹⁴⁸ because of the term "unfettered".¹⁴⁹

The debate as to the construction of s 669A(1) was further fuelled the following year by McHugh J's strongly expressed obiter comments in York v The Queen.¹⁵⁰ McHugh J noted that, on an appeal under s 669A(1), the appellate court could interfere with the sentence for any reason that it thinks is sufficient providing the reason is not an arbitrary one and as long as the discretion was exercised judicially.¹⁵¹ Gleeson CJ¹⁵² and Hayne J¹⁵³ expressed no opinion as to the construction of s 669A(1). Callinan and Heydon JJ in a joint judgment recorded their inclination to give "unfettered" in s 669A(1) its ordinary meaning;¹⁵⁴ but they did not give unqualified support to McHugh J's observations and determined York on the basis that error in the exercise of the sentencing judge's discretion must be demonstrated before an appellate court can intervene.¹⁵⁵

This prolonged, continuing controversy and apparent renewed disquiet as to the nature of an Attorney-General's appeal against sentence in Queensland is why this Court accepted the Attorney-General's invitation to sit a panel of five judges in this case to construe s 669A(1).

The correct construction of s 669A(1)

The construction of s 699A(1) has become a vexed question. The many judicial pronouncements on it and other provisions in other states allowing Attorneys-General to appeal against sentence are not of one voice and can be used to rationally support competing constructions. In my view, its correct interpretation lies in an understanding of basic appellate procedure and statutory construction.

At common law, there was no right of appeal, whether in criminal nor civil matters. An appeal is "a creature of statute".¹⁵⁶ When the Criminal Code was first enacted, its Ch LXVII headed "Appeal: Pardon" made no provision for any appeal or application for leave to appeal against sentence, either by an offender or by the Attorney-General.¹⁵⁷ Section 668D(1)(c) and s 668E(3), which allowed an offender to apply for leave to appeal against sentence, were enacted in 1913¹⁵⁸ in these terms:

"668D Right of appeal

(1) A person convicted on indictment … may appeal to the Court—

…;

(c) with the leave of the Court, against the sentence passed on the person's conviction."

"668E Determination of appeal in ordinary cases

… .

(3) On an appeal against a sentence, the Court, if it is of opinion that some other sentence, whether more or less severe, is warranted in law and should have been passed, shall quash the sentence and pass such other sentence in substitution therefor, and in any other case shall dismiss the appeal."

The Attorney-General had no right of appeal against sentence until s 669A(1)¹⁵⁹ was introduced to the Criminal Code in 1939. As I have explained, in 1975, the word "unfettered" was added.¹⁶⁰

The most obvious distinction between an offender's appeal against sentence and the Attorney-General's appeal against sentence in Queensland is that offenders can appeal against sentence only with leave of the court, whereas the Attorney-General has a right of appeal against sentence.¹⁶¹ The requirement that offenders need leave to appeal against sentence is a highly significant distinction. This Court could, for example, grant an offender leave to appeal against sentence but refuse the appeal. Even where an appeal as of right might be allowed, a court may, for proper reason, refuse leave to appeal (for example, where the Court in re-sentencing would impose the same sentence). If this Court intended to increase an offender's sentence under the broad discretion given to the Court under s 668E(3), then it first must grant the offender leave to appeal so that the offender may decide whether to abandon the appeal: Neal v The Queen.¹⁶²

It is almost trite to observe that, unless and until an appeal against sentence is allowed and the sentence is varied or set aside and a different sentence imposed, the sentence pronounced at first instance is the final order of the court. But this, together with understanding the nature of an appeal against a discretionary exercise like sentencing, is a relevant consideration when determining the meaning of "unfettered discretion" in s 669A(1).

The difficult task of sentencing offenders, like awarding costs or general damages in civil cases, involves the judicial exercise of discretion. An appeal against a judicial exercise of discretion can only succeed where there has been some error in the primary court's exercise of that discretion. The leading case in respect of appeals from such a discretionary exercise is House v The King,¹⁶³ perhaps the most cited case in appellate courts. The long established principles it set out in 1936 were re-affirmed by the High Court as recently as this year in Carroll v The Queen.¹⁶⁴ House v The King mandates that appeals against an exercise of judicial discretion like sentencing can only succeed where there has been some error in the primary court's exercise of that discretion. Similarly, appeals in civil cases from an exercise of judicial discretion, such as an assessment of an award of general damages, will not succeed unless the primary judge acted on a wrong principle of law or misapprehended the facts or has for these or other reasons made a wholly erroneous estimate of the damage suffered: Miller v Jennings;¹⁶⁵ Gamser v The Nominal Defendant;¹⁶⁶ Elford v FAI General Insurance Company Limited.¹⁶⁷

It is my view that this entrenched principle of law as to the nature of an appeal from an exercise of judicial discretion requires a two step approach in allowing appeals against sentence, whether under s 668E(3) after leave to appeal is granted or under s 669A(1) where the appeal is of right. The Court must first determine whether the appeal from an exercise of judicial discretion should be allowed in accordance with long established legal principle. If the Court allows an offender's appeal against sentence under s 668E(3), it must then determine "if it is of opinion that some other sentence, whether more or less severe, is warranted in law and should have been passed." If the Court allows an Attorney-General's appeal against sentence under s 669A(1), it may then in its "unfettered discretion vary the sentence and impose such sentence as to the Court seems proper." Neither s 668E(3) nor s 669A(1) empowers this Court to sentence offenders afresh in the absence, first, of error in the House v The King sense on the part of the original sentencing court.

My view that an Attorney-General's appeal against sentence under s 669A(1) involves a two step approach is consistent with Barwick CJ's construction of s 5D of the New South Wales Act¹⁶⁸ in Griffiths v The Queen:¹⁶⁹

"It has been said that this Court in Whittaker v*. The King* [(1928) 41 CLR 230] decided that the Supreme Court sitting as a court of criminal appeal on an appeal by the Attorney-General was not restrained as appellate courts usually are to the remedy of error in what has been done in the court below, but that that court has complete and, as it is said, unfettered discretion to substitute what it thinks is the proper sentence for that which the trial judge has imposed without considering whether in truth the trial judge has erred in a matter of principle or whether he has acted unreasonably or in disregard of relevant evidence or whether in some other way he has exceeded or misused the discretion which is committed to him in the sentencing of convicted persons.

In my opinion, this Court decided no such thing in Whittaker v*. The King*. It is quite true that what was said by the Chief Justice and Powers J. in their joint judgment could support that view, but clearly nothing in what was said by Isaacs J. or Higgins J. would do so. The other two Justices, Gavan Duffy J. and Starke J., in refusing special leave, said that the Court of Criminal Appeal 'in imposing the sentence complained of, did not proceed in opposition to any principle of law but in accordance with its own considered view of the facts' [(1928) 41 CLR, at 253]. This might be thought an ambiguous statement but it means, in my opinion, when related to the circumstances which obtained in that case, that their Honours were not disagreeing with what the Court of Criminal Appeal had said. The principle upon which the Court acted was, in their opinion, the correct principle.

Having referred to the principles laid down in R. v*. King* [(1925) 25 SR (NSW) 218] the Chief Justice of New South Wales in R. v*. Whittaker* [(1928) 28 SR (NSW) 411, at 418] posed for himself the question whether the trial judge had proceeded upon a wrong principle. On examination of what the trial judge had done, he concluded that he had erred in principle. James J. and Campbell J. concurred in this judgment. Having decided that error was present in what the trial judge had done, the Court then was in a position to impose such sentence as it thought proper. Thus, in my opinion, the joint judgment of Gavan Duffy and Starke JJ., in supporting the judgment of the Supreme Court, denies the view of the function of the Court of Criminal Appeal which has been suggested.

The authority of the Court of Criminal Appeal to hear and determine an appeal by the Attorney-General against the sentence imposed at the trial is, as I have said, derived exclusively from s. 5D of the Criminal Appeal Act. The authority was thus given to an appellate court whose powers, derived from other sections of that Act, were exclusively appellate. Sections 6 and 8 of the Act quite clearly limit the court to an appellate function. It would indeed be strange to construe s. 5D as giving to the court more than a truly appellate function. What it is claimed that Whittaker v. The King [(1928) 41 CLR 230] decided would give to the court a function more akin to original jurisdiction exercisable without reference to what has already been done and in the exercise of which the court was not constrained by those principles of appellate courts which concede to the presiding judge a discretion the exercise of which is not to be disturbed except for error.

In my opinion, s. 5D does not bear such a construction. It does no more, in my opinion, than give to the Court of Criminal Appeal authority to hear and determine an appeal by the Attorney-General against the sentence erroneously imposed by a trial judge. Its reference to discretion, in my opinion, does no more than ensure that where a proper occasion arises for the allowance of an appeal, the court itself may substitute the sentence which it considers appropriate for that imposed by the trial judge. …" (my emphasis)

Barwick CJ's view found favour with Macrossan J (as he then was) in Osmond.¹⁷⁰ This two step approach is consistent with Isaacs J's thoughtful and thorough discussion of s 5D in Whittaker and with the approach taken by this Court in Liekefett and Melano and the many cases which followed it.

A point argued against this construction of s 669A(1) is that the Attorney-General representing the community has an important institutional role in the criminal justice system in ensuring consistency of sentences. But this contention fails to apprehend the very nature of the exercise of the sentencing discretion. There is almost never just one correct sentence open in any case: Lowe v The Queen.¹⁷¹ And no two cases are precisely the same when the facts of the offending and the relevant mitigating and exacerbating factors are considered. There is inevitably a range within which a sentence can lawfully be imposed: Markarian v The Queen.¹⁷² The Attorney-General's obligation to ensure reasonable consistency of sentencing within the criminal justice system extends only to ensuring that the sentence imposed is within the appropriate range. As Barwick CJ said in Griffiths v The Queen:¹⁷³

"… an appeal by the Attorney-General should be a rarity, brought only to establish some matter of principle and to afford an opportunity for the Court of Criminal Appeal to perform its proper function in this respect, namely, to lay down principles for the governance and guidance of courts having the duty of sentencing convicted persons."

If a sentencing judge imposes a sentence outside the proper range or has erred on a matter of legal principle, the judge will have erred in the House v The King sense and the appeal must be allowed. The Court can then in its unfettered discretion vary the sentence and impose such sentence as to the Court seems proper. The Attorney-General's significant institutional role in the criminal justice system provides neither a reason nor a need to construe s 669A(1) in a way contrary to the established law. It does not justify allowing this Court to re-sentence in the absence of error at first instance. The proposed two step construction of s 669A(1) is entirely consistent with the Attorney-General's important role in the criminal justice system.

Another argument against the construction of s 669A(1) for which I favour is that there seems little doubt from reading the words of the Minister who introduced the 1975 amendment to s 669A(1) adding the word "unfettered", that the legislature intended the section to be construed in the manner now contended for by the Attorney-General. The construction I prefer, it is argued, makes the word "unfettered" meaningless. Of course, courts should adopt a purposive approach to construing legislation¹⁷⁴ and attempt to give meaning to all words used. But courts cannot use that approach to statutory interpretation to change long established legal principle where the legislation simply does not have that effect. This Court's role is to give effect to the will of the legislature, but as expressed in the law: Re Bolton; Ex parte Beane.¹⁷⁵ The Minister for Justice in amending s 669A(1) in 1975 failed to understand that McKeown and Beevers were wrongly decided and did not state the law. This Court's discretion under s 669A(1) before the 1975 amendment was only activated once error in the sentencing judge's exercise of discretion was demonstrated in the House v The King sense and the appeal against sentence was allowed. Only then did this Court have a "discretion [to] vary the sentence and impose such sentence as to the court seems proper". That discretion was broad and unfettered except by legal principle. The addition of the word "unfettered" to s 669A(1) in 1975 added nothing to the breadth of that discretion. Though now specifically described as "unfettered", the discretion must be, as it always had to be, exercised judicially and in accordance with legal principle and only after error on the part of the sentencing judge was demonstrated as justifying the allowing of the appeal. The word "unfettered" added nothing more than emphasis to s 669A(1).

The requirement that offenders wishing to appeal against sentence be granted leave to appeal while the Attorney-General does not can be justified on the basis that the Attorney can be expected to exercise circumspection in determining when to appeal. But the construction of s 669A(1) which the Attorney-General supports would have the effect that offenders who seek to appeal from sentences imposed upon them are required to demonstrate error on the part of the sentencing court, whereas the Attorney-General, with the unlimited resources of the state, could appeal from any sentence imposed upon any offender without demonstrating error on the part of the sentencing judge, contrary to long established legal principle. The filing of an appeal against sentence by the Attorney-General would render the final order of the sentencing court interlocutory. In my mind, this is manifestly offensive to the concept that all litigants, including the Crown, are subject to the same laws equally applied. It is especially offensive in criminal matters involving the liberty of the subject.¹⁷⁶ A court would only construe a provision as having this extraordinary effect if that legislative intent was clearly and unequivocally expressed in the law enacted. In my view, the terms of s 669A(1) do not have that effect.

Counsel for the Attorney-General agreed in argument that the unfettered nature of the discretion under s 669A(1) means that this Court could, when re-sentencing on a successful Attorney-General's appeal, impose a lesser sentence than that at first instance if such sentence seemed proper to the Court. Similarly, this Court can impose a heavier sentence in an offender's appeal against sentence under s 668E(3) where error in the House v The King sense is first demonstrated, although in practical terms this is unlikely: see Neal v The Queen.¹⁷⁷

If in an Attorney-General's appeal against sentence under s 669A(1), this Court is satisfied that the sentencing judge erred in the House v The King sense and the appeal is allowed, I agree with the majority that the unfettered nature of the Court's discretion does not necessarily require the Court to fix a sentence at the lower end of the appropriate range. In re-sentencing, whether under s 668E(3) or s 669A(1), the Court has power to receive further evidence¹⁷⁸ but it cannot increase the sentence by reason of or in consideration of any evidence that was not given at trial.¹⁷⁹ Respondents to an Attorney-General's appeal against sentence may have suffered a heavy emotional burden, sometimes for an extended period through being subject to the jeopardy of criminal punishment for a second time. If so, this is a relevant factor for an appellate court to take into account in exercising the unfettered discretion in s 669A(1): Everett v The Queen;¹⁸⁰ Dinsdale v The Queen.¹⁸¹ Whether an offender is re-sentenced on a successful appeal under s 669A(1) at the lower end, in the middle, or at the upper end of the appropriate range will depend on the relevant facts and circumstances pertaining in each case.

In Dionne Lacey's application for leave to appeal against sentence, I determined that the sentence imposed by the primary judge was within the appropriate sentencing range but that the primary judge erred in the way in which he dealt with the pre-sentence custody. That error required the granting of Dionne Lacey's application for leave to appeal against sentence and the allowing of the appeal. It also requires the granting of the Attorney-General's appeal against sentence, although the successful ground was not one relied on by the Attorney-General. This Court must then re-exercise its unfettered discretion and re-sentence Dionne Lacey under s 669A(1). For the reasons I gave in Dionne Lacey's appeal against sentence, I would set aside the sentence imposed at first instance and instead impose a sentence of nine years and eight months imprisonment with a declaration that Dionne Lacey is convicted of a serious violent offence.

Conclusion

I would dismiss Dionne Lacey's appeal against conviction but grant his application for leave to appeal against sentence and allow his appeal against sentence. I would also grant the Attorney-General's appeal against sentence. I would set aside the sentence of 10 years imposed at first instance and instead impose a sentence of nine years and eight months imprisonment with a declaration that Dionne Lacey is convicted of a serious violent offence.

Footnotes

1. [2005] 2 Qd R 69. ↩

2. [1973] 1 WLR 905. ↩

3. [1976] 2 NZLR 577 at 582. ↩

4. [1973] 1 WLR 905 at 911. ↩

5. Davis v Grocon Ltd [1992] 2 VR 661 at 667 per Hayne J; and Zunter v John Fairfax Publications Pty Ltd (2005) 62 NSWLR 594 at 600. ↩

6. [1990] 1 Qd R 456 at 460. ↩

7. (1952) 87 CLR 115 at 119. ↩

8. R S O'Regan, New Essays on the Australian Criminal Codes: Chapter 4 'Sudden or extraordinary emergency', Law Book, Sydney, 1988. ↩

9. See also BRS v The Queen (1997) 191 CLR 275 per McHugh J at 306 and his Honour's obiter comments in Fingleton v The Queen [2005] HCA 34 embracing the comments of McMurdo P in Mogg at [77] – [78]. These principles have also more recently been applied in WA v Pollock [2009] WASCA 96 at [146]. ↩

10. Per Gaudron A-CJ, Gummow, Kirby and Hayne JJ. ↩

11. Ibid at 466. ↩

12. [2000] QCA 244 per McMurdo P at [50] - [54]. ↩