Koani v The Queen [2017] HCA 42

HIGH COURT OF AUSTRALIA

KIEFEL CJ, BELL, GAGELER, NETTLE AND GORDON JJ

CHRISTOPHER CHARLES KOANI APPELLANT

AND

THE QUEEN RESPONDENT

Koani v The Queen [2017] HCA 42 Date of Order: 17 August 2017 Date of Publication of Reasons: 18 October 2017 B20/2017

ORDER

1. Appeal allowed.

2. Set aside the order of the Supreme Court of Queensland (Court of Appeal) dated 11 November 2016 and in lieu thereof order that:

(i) the appellant's appeal to that Court be allowed;

(ii) the appellant's conviction be quashed and a new trial be had.

On appeal from the Supreme Court of Queensland

Representation

S C Holt QC with B J Power for the appellant (instructed by Legal Aid Queensland)

V A Loury QC with M J Hynes for the respondent (instructed by Office of the Director of Public Prosecutions (Qld))

Notice: This copy of the Court's Reasons for Judgment is subject to formal revision prior to publication in the Commonwealth Law Reports.

CATCHWORDS

Koani v The Queen

Criminal law – Murder and manslaughter – Act causing death – Where appellant convicted of murder – Where death occasioned by discharge of shotgun held by appellant – Where alternative prosecution case for murder put to jury on basis that shotgun may have discharged as result of unwilled act – Whether unwilled, criminally negligent act or omission can result in conviction for murder where jury satisfied accused possessed intention to kill or inflict grievous bodily harm – Whether breach of duty to use reasonable care and to take reasonable precautions in use and management of dangerous thing can found conviction of murder.

Words and phrases – "act causing death", "breach of duty", "criminally negligent", "intention", "intentional offence", "manslaughter", "murder", "omission", "reasonable care", "unwilled act".

Criminal Code (Q), ss 289, 302(1)(a).

KIEFEL CJ, BELL, GAGELER, NETTLE AND GORDON JJ. On 17 August 2017, at the conclusion of the hearing, the Court made orders allowing the appeal and setting aside the order of the Court of Appeal of the Supreme Court of Queensland dated 11 November 2016. The appellant's conviction was quashed and a new trial was ordered. These are the reasons for making those orders. The question raised by the appeal is whether an unwilled, criminally negligent act can found a conviction for murder under s 302(1)(a) of the Criminal Code (Q) ("the Code") in a case in which the jury is satisfied that the accused possessed the intention to kill or to do some grievous bodily harm. As will appear, the answer is that criminal responsibility for murder under the Code, as under the common law, cannot be founded upon an unwilled act. As will also appear, and contrary to the way the matter was left below, identification of the act that gives rise to criminal responsibility for murder under the Code is not determined on a more confined basis than under the common law. Procedural history and the evidence On 28 October 2015, the appellant was arraigned in the Supreme Court of Queensland (Dalton J) on an indictment that charged him with the murder of his de facto partner, Natalie Leaney, at Rochedale South on 10 March 2013. The appellant pleaded that he was not guilty of murder but guilty of manslaughter. It was common ground that the death of the deceased was occasioned by a single gunshot wound to the head fired from a shotgun, which the appellant was holding. The appellant's plea acknowledged that his failure to use reasonable care and to take reasonable precautions in his use or management of the gun was a gross breach of the duty imposed by s 289 of the Code. That section provides: "It is the duty of every person who has in the person's charge or under the person's control anything … of such a nature that, in the absence of care or precaution in its use or management, the life, safety, or health, of any person may be endangered, to use reasonable care and take reasonable precautions to avoid such danger, and the person is held to have caused any consequences which result to the life or health of any person by reason of any omission to perform that duty." The prosecution declined to accept the appellant's plea in discharge of the indictment and a jury was empanelled and the trial proceeded. On 4 November 2015 the jury returned a verdict of guilty of murder. On 19 November 2015, the appellant was sentenced to life imprisonment for this offence. The evidence at the trial was of a deterioration in the relationship between the appellant and the deceased in the days leading up to her death. The deceased had told a friend that the relationship was over and that the appellant had told her to pack her things. She said she wanted to leave but she was concerned that the appellant would take her property. For his part, the appellant had complained to an acquaintance that he had "found out about [the deceased] screwing around". On Saturday 9 March, the deceased told a work colleague that she and the appellant had had a "huge fight" on the previous day. The next day she sent a message to the same colleague saying that she would not be at work on Monday. On that day the deceased also sent a text message to a friend complaining that the appellant had locked her in their unit. The friend, the friend's partner and the appellant were together at a hotel when the message was received. Following this, the appellant and the deceased exchanged mutually abusive and angry text messages in which the deceased asserted that the lease of the unit was in her name and that she had paid the bond. The appellant returned to the unit, where he was heard arguing with the deceased. An associate, Shea Fenton, arrived, and on entering the unit saw a broken vase on the floor. Fenton heard the appellant say that he would rather "go back to jail or something, I'll shoot you". He saw the appellant pick up a sawn‑off shotgun and cartridges from some shelving, open the barrel and load the gun. The appellant and the deceased continued arguing and Fenton heard the appellant say, "I don't give a fuck, I'll kill you … I'll go back to jail". The appellant walked towards the deceased and out of Fenton's sight. Fenton heard a gunshot. He jumped up, entered the loungeroom and saw that the deceased had been shot. In the immediate aftermath of the discharge of the weapon the appellant showed evident signs of distress. He rang the Triple 0 emergency number but was too distraught to complete the call. He was still hysterical when the police arrived. He told the police that he did not know who had shot the deceased but that it was "over drugs". He said that he had accidentally locked the deceased in the unit when he went out. He denied that they had been fighting. He gave an elaborate, false, account of two men who had come to the unit to rob him of drugs and money. He said that one was armed with a shotgun which had discharged when he, the appellant, endeavoured to take hold of it. The police found a knife on the floor near a discharged cartridge. They found two other discharged cartridges on the other side of the neighbouring fence. It was the prosecution case that the appellant had placed the knife on the floor and thrown the two shotgun cartridges over the fence to bolster his false account of the robbery. Expert evidence established that the spur of the hammer of the gun had been shortened. This alteration reduced the grip on the hammer and made it more difficult to control when cocking the gun. The gun failed the "hammer slip test": it was prone to discharge when the hammer was released before being fully cocked. To fully cock the gun it was necessary to pull the hammer back 16.8 millimetres. The modifications to this gun, however, meant that it would discharge when the hammer was drawn back as little as 10 millimetres. The rebound safety, which prevents the hammer from falling unless the trigger is simultaneously depressed, was also compromised. The gun could be deliberately fired when cocked by pulling the trigger or it could be deliberately fired by releasing the hammer when it was pulled back by at least 10 millimetres. The shortened hammer spur presented the risk that the shooter's finger might slip off it when cocking the gun, thereby releasing the hammer. The firing pin impression on the discharged, fatal cartridge established that the cartridge had been fired from the gun when the gun was in the fully, or almost fully, cocked position. The gun was between 15 centimetres and 1.25 metres from the deceased, most likely between 45 and 75 centimetres, at the time of discharge. The appellant did not give or call evidence. The way the prosecution case was put at trial The prosecution's principal case at trial was that the appellant discharged the gun deliberately in a fit of rage intending to kill the deceased. The evidence of the capacity of the gun to discharge when not fully cocked as the result of the shooter's finger slipping off the hammer spur led the prosecution to particularise a novel, alternative case: in the event the jury was not satisfied that the discharge of the gun was occasioned by the appellant's willed act, but was satisfied that the deceased's death was caused by the appellant's failure to use reasonable care and to take reasonable precautions in his use or management of the gun, and at the time he intended to kill or to do some grievous bodily harm to the deceased, his guilt of murder would be proved. Defence counsel objected to the prosecution's alternative case, submitting that it was not open to "prove the causation by means of a negligent or reckless act and, at the same time, couple that with an intention to cause a specific result". The trial judge considered that there was a real possibility that the jury might find that the appellant intended to kill the deceased and, to this end, he had loaded and presented the gun at her, and commenced cocking it, but that because of the peculiarities of this gun it may have discharged without him deliberately pulling the trigger or releasing the hammer. Consistently with the way the prosecution case had been particularised, her Honour concluded that under the Code the act for which an accused bears criminal responsibility in a prosecution for murder based on the discharge of a firearm is limited to the pulling of the trigger or another act that deliberately causes the weapon to discharge. Despite her initial reluctance to accept the analysis of the alternative case, her Honour concluded that "it is legitimate for the Crown ... to use section 289 as a component of its murder case essentially to plug the gap left by a reasonable doubt about a willed act". Her Honour was fortified in this conclusion by the 1904 decision of the Full Court in R v Macdonald and Macdonald. The directions The trial judge distributed a flowchart to the jury encapsulating, relevantly, the two ways in which it was open to reason to the appellant's guilt of murder: