Kaoni v The Queen [2017] HCA 42

Thursday 19 October 2017 @ 1.27 p.m. | Crime | Judiciary, Legal Profession & Procedure | Legal Research

Yesterday, 18 October 2017, the High Court of Australia published reasons for its judgment made on 17 August 2017 in the case of Koani v The Queen [2017] HCA 42. This case was an appeal of a decision of the Court of Appeal of the Supreme Court of Queensland (“Court of Appeal”) on 11 November 2016, in which Christopher Charles Koani was convicted of murder under s 302(1)(a) of the Criminal Code (Qld) (“the Code”).

Allowing the appeal,  the High Court consisting of Chief Justice Kiefel, and Justices Bell, Gageler, Nettle and Gordon, unanimously held that the judge erred in his directions to the jury which resulted in Koani's conviction of murder. The basis for this decision was that a criminally negligent act or omission does not constitute murder under s 302(1)(a) of the Code. The High Court therefore ordered that the conviction be quashed and a new trial be ordered.

The Facts

The appellant, Koani, and the deceased, his de facto partner, had lived together in a unit for a number of months leading up to the offence. In the days leading up to the offence, there were many witness accounts detailing arguments and fights between the appellant and the deceased. Additionally, there was evidence from friends of the deceased that the relationship had ended and that the deceased was concerned about the safety of her possessions in the unit that they had shared.

On the day of the offence, the appellant and the deceased engaged in a mutually abusive and angry text message argument which led to the appellant returning to the unit where they had lived together. It was here that a witness heard the appellant and the deceased arguing before hearing a gunshot. The deceased suffered one shotgun gunshot to the head which caused immediate death. It was argued, however, that while the appellant had the intention to kill or inflict grievous bodily harm on the deceased, the action of pulling the hammer back on the shotgun was accidental as the hammer had been modified, leading the gun to go off when not fully cocked.

The factual background behind the case is significant because, at trial, the jury relied on evidence of the appellant and the deceased’s deteriorating relationship in the days leading up to the offence. As such, in directing the jury in the trial, the trial judge presented to them the alternative case given by the prosecution: “if the jury was not satisfied that the discharge of the gun was caused by a willed act, but was satisfied that the deceased's death was the result of the appellant's failure to use reasonable care in his management of the gun at a time at which he intended to kill or inflict grievous bodily harm on the deceased, he would be guilty of murder.”

At the trial on the 4th of November 2015, the jury returned a verdict of guilty of murder, and on the 19th of November 2015,the appellant was sentenced to life imprisonment. The appellant appealed to the Court of Appeal and the appeal against his conviction was dismissed. He then appealed to the High Court.

The Law

The question raised in the appeal to the High Court was “whether an unwilled, criminally negligent act can found a conviction for murder under s 302(1)(a)” [para 2] of the Code. This question is particularly important as a conviction for murder under the Code must require both the requisite intention to kill or to do some grievous bodily harm, as well as the conducting of a deliberate, willful act. As such, the question that faced the High Court was whether, although the appellant had a positive intention to kill or do some grievous bodily harm, the absence of a willful act in addition to this, still constituted grounds for a murder conviction.

At trial, the appellant had argued that he was not guilty of murder, but was guilty of manslaughter. In arguing for a conviction of manslaughter at trial, the appellant said that in shooting the deceased, rather than deliberately shooting the deceased, he “failed to use reasonable care and to take reasonable precautions in his use or management of the gun” [para 3], thus breaching his duty under section 289 of the Code. Under s 289 of the Code:

"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."

 At paragraph [14] the High Court made the distinction between murder and manslaughter as per the Code, with particular reference to its application to this case:

“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".” At para [14]

In the reasoning of the High Court, the judges held that, in paragraph 21, “it is axiomatic that criminal responsibility is founded on the offender’s acts or omissions. And it is axiomatic in an offence of specific intent that the act or omission and the intent must coincide.” Their Honours held that the trial judge made an error of law when he directed the jury that all that was necessary for the appellant to be convicted of murder was for the appellant to possess the intention to kill or inflict grievous bodily harm at the time when the gun was discharged. Rather, the deceased’s death was the result of the appellant’s failure to use reasonable care and to take reasonable precautions in his use or management of the gun – a reasoning much more in line with s 289 of the Code.

“Section 302(1)(a) is not the statement of a free-standing mental element of criminal responsibility that can be attached to a negligent act or omission. The elements of the offence of murder for which s 302(1)(a) provides require the prosecution to prove that the unlawful killing was caused by an act or omission of the accused that was done or omitted to be done with the intention thereby of causing death or some grievous bodily harm to some other person. Section 302(1) is not an express provision of the Code relating to negligent acts or omissions for the purposes of s 23(1)(a): the offence of murder is not exempted from the rule that a person is not criminally responsible for an act or omission that occurs independently of the exercise of the person's will.” At para [26]

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Sources:

Koani v The Queen [2017] HCA 42

Criminal Code 1899 (Qld), as published on TimeBase LawOne.

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