R v Tracey[2024] QCA 19

SUPREME COURT OF QUEENSLAND

1. [1]
   MULLINS P:  I agree with Morrison JA that the appeal must be dismissed.  I agree with Morrison JA that s 304B of the Criminal Code (Qld) is capable of application to a person in the position of this appellant who did not do the act that caused the death of the deceased but is liable for the offence of murder pursuant to s 7(1)(b) or (c) of the Code for another person’s act that killed the deceased.
2. [2]
   I also agree with Morrison JA that the defence under s 304B was not raised by the evidence adduced in the trial of the appellant and there was therefore no error on the part of the learned primary judge in not directing himself on that defence.
3. [3]
   If that conclusion were found to be in error, I also agree with Morrison JA that on a consideration of all the relevant evidence, including the texts on which the appellant relies on this appeal, there was no miscarriage of justice.  That is confirmed by the findings of fact made by the primary judge that were inconsistent with the defence under s 304B.
4. [4]
   To the extent that Morrison JA also reached the conclusion there was no miscarriage of justice by having regard to the disavowal by the appellant of reliance on a defence under s 304B, I consider that it is unnecessary to have regard to the position that the appellant took through her counsel at the trial in relation to that defence in order to conclude on the evidence adduced at the trial that there was no miscarriage of justice in the primary judge’s not directing himself on s 304B.
5. [5]
   MORRISON JA:  The appellant and one Paul Moore were charged with murder:

“That on or about sixth day of February, 2018 at Wynnum West in the State of Queensland, Paul Mathew Moore and Emily Jane Tracey murdered James Andrew Switez-Glowacz.”

6. [6]
   On 23 March 2022, after a judge alone trial, the appellant was convicted of murder.  The offence was declared to be a domestic violence offence pursuant to s 564(3A) of the Criminal Code (Qld).
7. [7]
   The appellant challenges her conviction on the sole ground that:

“A miscarriage of justice occurred by a failure of the learned trial judge to direct himself in relation to the partial defence available under s 304B of the Code, relating to killing a person for preservation in an abusive domestic relationship.”

8. [8]
   On 6 February 2018 the appellant and Moore arrived at the deceased’s unit unannounced at 8 pm.  The deceased was killed in a fight with Moore.
9. [9]
   The cause of the deceased’s death was haemorrhage due to, or as a consequence of, multiple stab and incised wounds caused by a knife.
10. [10]
    The appellant and Moore admitted, pursuant to s 644(1) of the Code that:

“On 6 February 2018 … Moore stabbed the deceased … with a knife which caused the incised wound and eight stab wounds identified at autopsy.”

11. [11]
    The appellant was not the one who wielded the knife against the deceased.  Rather, the prosecution case against her relied on the party provisions of the Code, namely s 7(1)(b) and (c) and s 8.  The Crown particularised its case against her as follows:^[1]

3. “[The appellant] is liable for the murder (s 302(1)(a)) of [the deceased] because she either:

3. 1.
   enabled, aided or encouraged … Moore to cause the death of [the deceased], knowing that … Moore intended to cause either death or grievous bodily harm (s 7(1)(b) and/or 7(1)(c)) by doing any one, or all, or any combination of the following acts:

3. (a)
   encouraging … Moore by words;

3. (b)
   driving and/or directing and/or travelling with … Moore to [the deceased’s] unit;

3. (c)
   persuading or causing [the deceased] to open the door of his unit;

3. (d)
   being deliberately present at [the deceased’s] unit; or

3. 2.
   formed a common intention with … Moore to prosecute an unlawful purpose together to seriously assault [the deceased], and that in the course of carrying out that purpose [the deceased] was murdered, which was a probable consequence of carrying out that purpose (s 8).”

12. [12]
    In his opening statement trial Counsel for the appellant identified the issue as to the application of the party provisions:^[2]

“The issue in this trial will not be whether or not [the appellant] was present when [the deceased] died. The issue will be the purpose of her presence and whether she was present with the requisite intent, that is whether she was present aiding … Moore with the actual knowledge that … Moore had a specific intent to cause grievous bodily harm or death, or whether the death was a probable consequence of a common intention to seriously assault [the deceased].”

13. [13]
    In relation to the case against the appellant based on s 7(1)(b) and (c) the trial judge directed himself in the following terms:^[3]

“I may find [the appellant] guilty of the offence of murder only if I am satisfied beyond reasonable doubt of four matters. The first is that Moore murdered the deceased. The second is that [the appellant] either in some way assisted Moore to murder the deceased or did an act with the purpose of assisting or enabling Moore to murder the deceased, even if that act did not in fact assist. The third is that [the appellant] assisted or did the act with the intention of helping Moore to murder the deceased. The fourth is that when [the appellant] assisted Moore or did the act with that purpose, she knew that Moore intended to kill or do grievous bodily harm to the deceased.”

14. [14]
    His Honour found that each of those matters was proven,^[4] and the appellant was convicted of murder.^[5]  It was unnecessary for the trial judge to consider s 8 of the Code.

The case on appeal

15. [15]
    The case advanced on the appeal was that certain text messages exchanged between the appellant and the deceased, and the appellant and Moore, were sufficient to raise the defence under s 304B:^[6]

“The messages discharge the evidentiary onus to raise the partial defence at s 304B because they are capable of supporting an inference the appellant reasonably believed it was necessary for her preservation from death or grievous bodily harm to do the act or make the omission that caused the death. Following the abuse and threat of the deceased on 4 February 2018, the appellant was concerned for the safety of herself and her children, felt the deceased would ‘never stop’, that he would be ‘watching’, her life was ‘fucked’, and she was ‘on edge’ because of him. The messages raise the inference, in the context of the abusive domestic relationship that had existed between the appellant and the deceased, that the appellant considered it necessary for her to attend upon the residence of the deceased with Moore, in order that Moore might ‘teach him a very big lesson’ or to engage in such other conduct towards the deceased as can be inferred from those messages.”

16. [16]
    That contention was advanced on the basis that it was sufficient evidence to raise the defence even though the appellant “disavowed any knowledge that when she attended the deceased’s unit with Moore, the deceased was going to get hurt”.^[7]  That was a reference to the appellant’s evidence in chief:^[8]

“When … you went to that unit … did you think [the deceased] was going to get hurt?---No.

Would you have … gone [with Moore] to the unit if you thought … [the deceased] was going to get hurt?---No, we wouldn’t have went.

You said you were going to talk to him. What [Moore] say he was going to do?---He would have intervened if [the deceased] was going to be aggressive towards me, and … if [Moore] had to say, ‘Hey, settle down. Just listen to her,’ that’s what he would have done.

Yeah. The role for [Moore] was to talk also?---Yes.

Maybe, if necessary, to defend you?---That’s right, yes.

To intervene. You said to the police that you did not know that [the deceased] would be hurt?---That’s right, yes.

Was that the truth?---Yes, it was.”

17. [17]
    Counsel for Moore cross-examined on that issue:^[9]

“Ms Tracey, I just want to take you through a few areas, but let’s start off, if we might, to what occurred at … [the deceased’s] unit on the 6^th of February 2018, okay?---Mmm.

Now, you’ve said that, obviously, [Moore] was with you?---Yes.

Correct?---He was.

The idea was that both you and [Moore] were going to speak to [the deceased]?---Yes.

Essentially say, ‘Look, hold up. Stop what you’re doing. You’ve got to stop what you’re doing’, correct?---Yes.

And [Moore’s] there also just in case he’s needed?---Yes.”

18. [18]
    The Crown also cross-examined on that issue:^[10]

“But what occurred at the house, as you’ve told us, was a complete shock to you?---Yes, it was.

Complete surprise?---Yes.

That they were there supposedly to talk, and then suddenly [the deceased] and [Moore] are in a wrestle, and [the deceased] is quite seriously injured?---That’s correct.

…

Now, I’d just like … for you to clarify, when was it precisely that you and [Moore] decided to drive to go see [the deceased] that night?---It was some time in the evening. Probably late afternoon.

Was there anything in particular that triggered that?---[The deceased’s] behaviour towards me. I wanted to go to [the deceased’s] place and speak to him, more so … by myself, but … [Moore] came with me to keep me safe. There wasn’t anything to trigger that then and there. I was waiting for the perfect moment, like, when he stopped abusing me. So he … wasn’t on alcohol that I thought.

… so was this pre-arranged with [the deceased] that you’d come around and have a chat with him?---No.

And, in fact, you sent a text to him which would suggest quite the opposite?---That’s correct.

Was that done deliberately, was it?---That was to avoid another argument with him.

So what precisely was the plan between you and [Moore] as to what was going to happen?---Go to [the deceased’s]  place, and I would speak to him and explain to him how he’s making us feel, like, as in us, myself and [CWX], in general. And [Moore] was coming with me to be there to support me and make sure that I’m safe.

Well, was there discussion about making sure that you’re safe?---Just to – basically, there was only a discussion about, well, if [the deceased]  does try and lunge at me, he’ll intervene.

Did he say how?---No.

See, when you were - - -?---I assumed a punch in the head.

So at least when you were going there, you contemplated that there might well be some violence; is that right?---I contemplated there might be a punch in the head, but I didn’t actually think it was going to happen.

I think in your evidence, you said that the worst that could happen was maybe [Moore] punching [the deceased] in the face; is that right?---Yeah. Face, head.

If he lunged at you?---That’s right, yes.

So you thought of that before going there?---Yes.

All right. And so that was discussed before you left with [Moore]?---Yes.”

19. [19]
    In cross-examination the appellant agreed she had told police in an interview that: “I didn’t know [Moore] would hurt him”, and “And if I had known if [Moore] was going to hurt [the deceased] I would never have taken him”.^[11]
20. [20]
    The appellant reiterated that she wanted Moore to go with her “to keep me safe so I could speak to [the deceased] about how he was making myself feel and [CWX] feel”.^[12]
21. [21]
    In re-examination the appellant was asked about answers she had given in a police interview:^[13]

“At page 8 on the 28^th, line 25, you said:

I didn’t know he would hurt him.

Constable Starkey said:

Yeah. Yep.

You said:

If I’d know – if I had have known if [Moore] was going to hurt [the deceased], I would never have taken him. [Moore] said, ‘I’ll talk to him.’

Are either of those statements false?---No. That’s true.

…

And you were taken to the point – by the prosecutor – where you said:

I did not know that James would get hurt.

?---That’s correct.

Was that true when you knocked on the door?---Yes.

Is it true today?---Yes.”

22. [22]
    Finally, in re-examination this exchange occurred:^[14]

“Did you expect [the deceased] to get physical … that night?---I wasn’t expecting it, but, just in case, I wanted to feel safe.

And was [Moore] there for that purpose?---Yes.

And the purpose you explained earlier, which was to step in if he lunged at you?---Yes.”

The appellant and the knife

23. [23]
    The appellant’s evidence was that she saw no knife and did not know that Moore had one with him:^[15]

“All right. Now, … on the 6^th of February 2018, whether it be at [Moore’s] house, this is before you went to [the deceased’s], whether it be in the car trip on the way over to [the deceased’s], or whether you were at the front door, you don’t see [Moore] with a knife, do you?---No. I did not.

…

But one thing’s for sure, you never saw [Moore] with a knife back at … at his house, that is before you went there?---That’s correct. I didn’t see him - - -

You never saw him get a knife?---No.

There was no discussion about taking a knife?---No.

He didn’t produce the knife in the car?---No.

And he didn’t produce the knife at the front door?---No.”

Background

24. [24]
    The essential background facts were not in dispute on the appeal.  They are drawn from the decision of the learned trial judge.^[16]
25. [25]
    The appellant was the ex-partner of the deceased.  Together they had a child, whom I shall refer to as CWX.
26. [26]
    She and Moore were well known to each other, having been in a relationship from 2011/2012 until mid-2017.  They shared twin girls who were born in early 2013.
27. [27]
    It was accepted before this Court that the nature of the relationship between the appellant and the deceased was accurately summarised in the appellant’s and respondent’s outlines.^[17]
28. [28]
    The appellant and the deceased had previously been in a relationship; they were married in November 2011 and had CWX in February 2012.
29. [29]
    They were divorced in late 2012 or early 2013 but resumed a relationship in around June or July of 2017, and the deceased moved back in with the appellant.
30. [30]
    The appellant gave evidence of domestic violence over the course of her relationship with the deceased.  However, she also described him as “an awesome father” to CWX.
31. [31]
    She said that when he was not taking alcohol or drugs, “he was great”, but he became aggressive when he was using those substances.
32. [32]
    The appellant and the deceased would share custody of CWX  without the necessity of a formal agreement.  The appellant had primary custody, however, the deceased’s father said the deceased had CWX “nearly every weekend”.  Thus, the appellant was comfortable with the deceased having sole temporary custody of her child and facilitating the contact.  She needed to do so because the deceased did not have a car or license.  He would sometimes rely on his father to pick up CWX.  It was necessary for the appellant to transport him and CWX when required.
33. [33]
    The appellant resided on Russell Island.  The deceased was in a unit at Wynnum West.  She described how it might take “hours” for him to travel to her to collect CWX.  He would need to catch “trains, buses, ferries”.
34. [34]
    The relationship between the appellant and the deceased ceased in January 2018.  After she left the deceased, the appellant spoke to Moore about the abuse.  A text message exchanged between Moore and the appellant in January 2018 confirms Moore knew the deceased had been beating and controlling the appellant.
35. [35]
    In her first statement on 13 February 2018, the appellant had been to the deceased’s unit “over 100 times”.  She would take her six children to see him.  The appellant made no complaint of physical abuse by the deceased towards her on any of these visits, or indeed at the unit.

Evidence concerning the period of the text messages

36. [36]
    The respondent summarised the evidence as to the period when the text messages were sent.^[18]  No criticism of that summary was made by the appellant so that it may be accepted for the purposes of the appeal.
37. [37]
    Following a swimming carnival on 1 February 2018 and delivering CWX on 2 February 2018, the next time the appellant saw the deceased was on 4 February 2018 when she collected CWX.  She confirmed there was no arguing or fighting with the deceased.  They spoke about when he was going to come to Russell Island and sleep over.  They spoke about attending the doctors to get a prescription for his medication (so that he would remain healthy).  He hugged her and she left.  She did not report fear.
38. [38]
    The deceased’s father had heard the deceased, several weeks before his death, tell the appellant that he was seeking sole custody of CWX.  On the day of the killing, the appellant had told Hailey Moore that the deceased was threatening to take CWX off her.  He was going to run away and that the appellant would not see her daughter again.  In her interview with police, she lied and said that he had never made such a threat.  She conceded it was a lie and she could not proffer an excuse as to why she lied.  The text messages relevant to CWX being a “weapon” was her response to the deceased making threats to take CWX and his suggestion that CWX was “better off with him”.
39. [39]
    The appellant planned to take CWX and run away.  She would do so even in the circumstances where her father was terminally ill, and she would forfeit care of her other children.  This would remedy her exposure to the deceased’s abusiveness.

Evidence of domestic violence

40. [40]
    The following summary is taken from the appellant’s outline.^[19]  It was not the subject of criticism by the respondent.  For the purposes of this appeal it may be accepted as an accurate summary of the appellant’s evidence on this point.
41. [41]
    The first time the appellant had experienced aggression by the deceased was in around 2011, when he was verbally aggressive, which she linked to his drinking or drug use.  The appellant described having rung the police on a number of occasions.  Sometimes the police arrested the deceased and took him away, but he would be released a few hours later and be back at her house, knocking on the door, with aggression.  After the appellant and the deceased had resumed their relationship in 2017, the appellant described that the relationship “was great”, but in around September or October 2017, the appellant became aggressive.
42. [42]
    The appellant described a number of acts of physical violence against her by the deceased in the ensuing period.  There was an occasion where the appellant was sitting on the lounge chair watching TV and the deceased had come up and put a pillow over her face.  The appellant also described a number of occasions, inferentially in the latter half of 2017, where she had been choked by the deceased.  On the first occasion, the deceased, whilst intoxicated, had pinned her down on the ground and sat on her chest and started choking her.  On another occasion the appellant was choked and bashed by the deceased, again after he had been drinking, in October of 2017.  As a result, she suffered two black eyes, her nose was sensitive to the touch, and she had various bruises on her chest, neck and shoulders.  The appellant did not report the abuse to police or seek medical treatment because she did not want the deceased to go to jail.
43. [43]
    The appellant described that before her relationship with the deceased ended the acts of aggression or violence were occurring almost every second day.  She described being pushed into the wall and having been held up against the wall by her throat, and other times where he would push her to the ground and start choking her.  The appellant also described an occasion when the deceased had been sitting at the kitchen bench, playing with a knife, and banging it in between his fingers, and he said, “Last time you left me, I thought about killing you”.

The appeal

44. [44]
    Counsel for the appellant^[20] acknowledges that no direction on this matter was sought by either prosecution or defence counsel at trial.^[21]  However, the appellant contends—and the respondent concedes—that this failure did not obviate the need for a direction on this matter if it fairly arose on the evidence.^[22]  The dispute on appeal was thus confined to whether the partial defence under s 304B of the Code arose on the evidence.^[23]

Supplementary point

45. [45]
    At the hearing of the appeal, the Court raised an issue with Counsel for both parties.  The crux of that issue is whether s 304B applies in these circumstances.  That is to say, whether the appellant can rely on s 304B as a partial defence where she was not “the person” who engaged in the actual act of killing.  Counsel were afforded the opportunity to make supplementary written submissions on this point, and did so.  Whether the defence fairly arose on the evidence at trial is an issue that can only be addressed if the defence under s 304B is applicable in circumstances where the appellant was convicted under the inchoate provisions of s 7(1)(b) and (c) of the Code.

Applicable legislation

46. [46]
    The relevant statutory provisions are set out below:

3. “7
   Principal offenders

3. (1)
   When an offence is committed, each of the following persons is deemed to have taken part in committing the offence and to be guilty of the offence, and may be charged with actually committing it, that is to say–

3. (a)
   every person who actually does the act or makes the omission which constitutes the offence;

3. (b)
   every person who does or omits to do any act for the purpose of enabling or aiding another person to commit the offence;

3. (c)
   every person who aids another person in committing the offence;

3. (d)
   any person who counsels or procures any other person to commit the offence.

3. …

3. 302
   Definition of murder

3. (1)
   Except as hereinafter set forth, a person who unlawfully kills another under any of the following circumstances, that is to say—

3. (a)
   if the offender intends to cause the death of the person killed or that of some other person or if the offender intends to do to the person killed or to some other person some grievous bodily harm;

3. …

3. 304B
   Killing for preservation in an abusive domestic relationship

3. (1)
   A person who unlawfully kills another (the deceased) under circumstances that, but for the provisions of this section, would constitute murder, is guilty of manslaughter only, if—

3. (a)
   the deceased has committed acts of serious domestic violence against the person in the course of an abusive domestic relationship; and

3. (b)
   the person believes that it is necessary for the person’s preservation from death or grievous bodily harm to do the act or make the omission that causes the death; and

3. (c)
   the person has reasonable grounds for the belief having regard to the abusive domestic relationship and all the circumstances of the case.

3. (2)
   An abusive domestic relationship is a domestic relationship existing between 2 persons in which there is a history of acts of serious domestic violence committed by either person against the other. …”

The appellant’s submissions

47. [47]
    The appellant frames the issue as follows:

“The question invites consideration of what is meant by the term ‘A person who unlawfully kills another (the deceased) under circumstances that, but for the provisions of this section, would constitute murder’ as it is used at s 304B(1) of the Code, and whether ... ‘a person who unlawfully kills another’ as it is used ... can be a person whose liability for the offence attaches pursuant to s 7(1)(b) or (c) of the Code.”

48. [48]
    In reliance on R v Barlow,^[24] the appellant submits that the reference to “offence” in s 7 of the Code is a reference to “an act done or an omission made”:

“In the light of these provisions, ‘offence’ in s 8 must be understood to refer to an act done or omission made. So interpreting the section, it deems a person falling within its terms to have done the act or to have made the omission which the principal offender has done or made.”^[25]

49. [49]
    The appellant referred to Pickett v Western Australia,^[26] where the majority said:

3. “2
   The provisions of ss 7(b), (c) and 8 of the [Western Australian Criminal] Code operate to attribute to an accused person who is [accused under the inchoate sections] the acts of another person who actually killed the deceased. But they do not attribute to another participant circumstances personal to the actor that, under Ch V of the Code, relieve the actor of criminal responsibility for his or her acts.”^[27]

50. [50]
    The appellant contends that ss 7(1)(b) and (c) of the Code “operate to attribute to the appellant the acts of Moore in killing the deceased”.^[28]  The appellant submits that, in this way, the appellant has been deemed to be “a person who unlawfully kills another” for the purposes of s 302(1)(a).^[29]  Therefore, by virtue of the appellant having been deemed to be a “person who unlawfully kill[ed]” the deceased under s 302(1)(a) of the Code, the appellant must also fall within the identical definition used at s 304B(1)(a) of the Code.
51. [51]
    The appellant’s final contention is that this construction finds support when one considers ss 304 and 304A of the Code, which also provide partial defences to “a person who unlawfully kills another”.^[30]  The appellant cites no authority for the (scantly made) proposition that these sections apply in circumstances such as the present.

The respondent’s submissions

52. [52]
    The respondent emphasises its contention that s 304B applies only to the person that actually commits the act which constitutes the offending.  Pointing out that the “task of statutory construction must begin with a consideration of the text itself”,^[31] the respondent contended that:^[32]

“As a starting proposition, the plain reading of the text of section 304B is that it is to apply to the person who has been subject to the patterned history of serious domestic violence and has founded a reasonable belief that they must unlawfully kill in order to preserve themselves from further violence capable of death or grievous bodily harm. The section enquires of the state of mind of the person who has been the subject of (probably) lengthy and serious domestic violence.”

53. [53]
    The respondent stressed that the liability of the “person” emphasised in the quoted section at paragraph [52] above is pursuant to s 7(1)(a) of the Code as the person that “actually did the act”.^[33]  Relying on O'Dea v State of Western Australia,^[34] the respondent submitted that s 7 distributes liability as between the person who “actually does the act” (s 7(1)(a)), and persons charged under the remaining subsections,^[35] whose liability depends on the person referred to in s 7(1)(a) having actually committed the act which constitutes the offence.

Consideration

54. [54]
    In construing s 7 one must first read the definition of “offence” into s 7(1):

3. 7
   Principal offenders

3. (1)
   When an act or omission which renders the person doing the act or making the omission liable to punishment is committed, each of the following persons is deemed to have taken part in committing the act or omission which renders the person doing the act or making the omission liable to punishment and to be guilty of the offence, and may be charged with actually committing it, that is to say—

3. (a)
   every person who actually does the act or makes the omission which constitutes the act or omission which renders the person doing the act or making the omission liable to punishment;

3. (b)
   every person who does or omits to do any act for the purpose of enabling or aiding another person to commit the act or omission which renders the person doing the act or making the omission liable to punishment;

3. (c)
   every person who aids another person in committing the act or omission which renders the person doing the act or making the omission liable to punishment; …

55. [55]
    Section 304B has been set out at paragraph [46] above.  What follows in paragraphs [56]-[59] below is the literal construction of s 304B before account is taken of s 7(1)(b) and (c).
56. [56]
    Where s 304B(1) uses the phrase  “unlawfully kills”, it is speaking of the act itself, not the offence.  Thus the “person who unlawfully kills” is the person who actually does the act.  That is the person referred to in s 7(1)(a).^[36]
57. [57]
    Section 304B is only engaged where “the deceased has committed acts of serious domestic violence against the person in the course of an abusive domestic relationship”.^[37]  The person referred to in s 304(1)(a) is the person who “unlawfully kills”; i.e. actually does the act of killing.  In this situation, that is Moore.  If serious domestic violence has not been inflicted on that person, s 304B is not engaged.
58. [58]
    Further, s 304B only applies where a state of belief is held by “the person”,^[38] which is again a reference to the person who actually did the unlawful killing.  That person must believe that it is necessary for their preservation from death or grievous bodily harm to do the act; i.e. the act of unlawfully killing.
59. [59]
    The person whose preservation is mentioned is the same person as that in the first line of s 304B(1) and s 304B(1)(b).  That is, the person who does the act of unlawfully killing must be the same one who holds the belief, and the same person whose preservation is at issue.
60. [60]
    However, that does not address whether the effect of s 7(1)(b) or (c) is that the person coming within those sections is taken to be the person who has committed the unlawful killing even if they did not physically do so.
61. [61]
    The resolution of that question lies, in my view, in the decision of the High Court in Pickett v Western Australia.^[39]  The provisions in Western Australia are the same as in Queensland.
62. [62]
    In Pickett the High Court dealt with a case where a person was killed by a group of men, one of whom used a screwdriver to stab him in the chest.  One of the participants was under 14 years and therefore he could not be criminally responsible under s 29 of the Criminal Code (WA) unless the Crown proved that he had the capacity to know that he ought not to have done the act.  That was not proved.
63. [63]
    The Court explored the construction of s 7 and s 8, and in particular whether they attribute to an enabler or aider, or a person party to an unlawful common purpose, the personal circumstances of another participant that might relieve that person of criminal responsibility.
64. [64]
    In Pickett the High Court summarised their conclusion:^[40]

3. “2
   The provisions of ss 7(b), (c) and 8 of the Code operate to attribute to an accused person who is respectively an enabler or an aider, or a party to an unlawful common purpose the prosecution of which had, as a probable consequence, the killing or causing of grievous bodily harm to another, the acts of another person who actually killed the deceased. But they do not attribute to another participant circumstances personal to the actor that, under Ch V of the Code, relieve the actor of criminal responsibility for his or her acts.

3. 3
   In the present case, the circumstance that the person who actually killed the deceased may not have been criminally responsible for his act by reason of s 29 of the Code is immaterial to the guilt of each of the appellants under s 7(b), s 7(c) or s 8 of the Code. The liability of each of the appellants to punishment for the murder of the deceased did not depend on proof beyond reasonable doubt that the child who may have fatally wounded the deceased had the capacity to know that he ought not strike that blow.”

65. [65]
    The Court adopted the approach taken in Barlow, in particular the necessity to construe the Code by its text, rather than by first resort to the common law.^[41]  Referring to Barlow the Court said:^[42]

“As will be seen, the majority in Barlow explained that the definition of ‘offence’ refers, not to the concatenation of elements and circumstances that establish liability to punishment, but to the conduct element of an offence (being an act or omission), which, if combined with other circumstances, renders the offender liable to punishment.”

66. [66]
    Turning to s 7 and s 8, the Court explained:^[43]

3. “40
   Even without the instruction afforded by this Court's exposition of ss 7 and 8 in Barlow, it can be seen that the appellants’ argument departs from the terms of the Code in its suggestion that ss 7 and 8 have no operation unless liability to punishment of a ‘principal offender’ is established. Neither s 7 nor s 8, by its terms, distinguishes between principal and secondary offenders. Rather, each section makes each of the persons within its scope a principal offender. Section 7 is explicit in this regard; and there is no reason to regard s 8 as operating upon a different basis. While it is, no doubt, convenient to speak of a person who actually does an act or makes an omission which constitutes an offence as ‘the principal offender’, the use of that short-hand for the purposes of discussion should not be allowed to obscure the point that s 7 expressly attributes to the persons mentioned in s 7 the acts or omissions that constitute the offence. In this regard, it proceeds from the assumption that an ‘offence is committed’.

3. 41
   The appellants’ argument also departs from the Code by suggesting that, by the operation of ss 7 and 8, it is the criminal responsibility of the ‘principal offender’, rather than his or her acts or omissions, that is imputed to other participants. It is to be noted that s 7(a) refers expressly to ‘the act or ... omission which constitutes the offence’. It is hardly to be supposed that the word ‘offence’ in the introductory words of s 7, ‘[w]hen an offence is committed’, bears a meaning different from that spelt out in terms in s 7(a). And it is noteworthy that neither s 7 nor s 8 speaks of ‘criminal responsibility’ or ‘liability to punishment’ in relation to that which is attributed to the other participants.”

67. [67]
    Then the Court referred to the phrase when “an offence is committed”, saying:^[44]

3. “50
   In ss 7 and 8, the expression when ‘an offence is committed’ is not to be taken as suggesting that the actor’s liability to punishment for that offence is a condition precedent to the operation of the provisions. That this is so is apparent in s 7 itself because s 7(a) expressly deems ‘[e]very person who actually does the act or makes the omission which constitutes the offence’ to be guilty of the offence. That deeming would be otiose, and indeed would make little sense, if proof of the commission of the offence by that person was a pre-condition to the operation of s 7 at all.”

68. [68]
    The Court adopted a passage from Barlow and went on:^[45]

3. “53
   It is necessary to pay close attention to what their Honours said:

‘‘Offence’ is a term that is used sometimes to denote what the law proscribes under penalty and sometimes to describe the facts the existence of which render an actual offender liable to punishment. When the term is used to denote what the law proscribes, it may be used to describe that concatenation of elements which constitute a particular offence (as when it is said that the Code defines the offence of murder) or it may be used to describe the element of conduct (an act or omission) which attracts criminal liability if it be accompanied by prescribed circumstances or if it causes a prescribed result or if it be engaged in with a prescribed state of mind (as when it is said that a person who strikes another a blow is guilty of the offence of murder if the blow was unjustified or was not excused, if death results and if the blow is struck with the intention of causing death). Correspondingly, when the term ‘offence’ is used to denote the facts the existence of which renders an actual offender liable to punishment, the term denotes either the concatenation of facts which create such a liability (as when it is said that Barlow’s co-accused committed the offence of murder) or the conduct of the offender (an act or omission) which, with other facts of the case, create such a liability (as when it is said that the co-accused who struck Vosmaer the blow which caused his death and who did so with the intention of killing him or doing him grievous bodily harm is guilty of the offence of murder).’

3. 54
   Their Honours resolved the competing possibilities as to the meaning of ‘offence’ in ss 7 and 8 in favour of the view that it means the ‘element of conduct (an act or omission) which attracts criminal liability if it be accompanied by prescribed circumstances or if it causes a prescribed result or if it be engaged in with a prescribed state of mind’.”

69. [69]
    The Court considered the interplay between the provisions in Ch V and s 7 and s 8, by reference to what had been said in Barlow:^[46]

3. “58
   The observations of Brennan CJ, Dawson and Toohey JJ acknowledge that the provisions of Ch V of the Code apply where an act has been committed for which the offender would be liable to punishment, depending on the circumstances. Consistently with that view, an offence within the meaning of ss 7 and 8 may be committed even though the person who did the act or made the omission that constituted the offence is not criminally responsible for the offence by reason of the application of Ch V of the Code. True it is that in Barlow, there was no suggestion that the equivalent of the provisions of Ch V of the Code were in play. But the guidance afforded by their Honours’ acknowledgement of the significance of Ch V to the proper understanding of ss 7 and 8 is important.

3. 59
   The personal circumstances referred to in the provisions of Ch V adverted to by their Honours are immaterial to whether an act has been done, and so to whether an offence has been ‘committed’ for the purposes of ss 7 and 8. Rather, as their Honours recognised, these provisions operate upon the hypothesis that liability to punishment as for an offence would otherwise be established under the provisions of the Code or other statutes. It would be inconsistent with their Honours’ reasoning to treat the possible application of the provisions of Ch V to one participant in the doing of an act that constitutes an offence as an obstacle to the operation of s 7 or s 8 of the Code in relation to others. The overarching application of Ch V of the Code means that while the commission of an offence is a necessary condition of criminal responsibility, the commission of an offence is not always sufficient of itself to establish liability for punishment.

3. 60
   One may illustrate this aspect of the operation of the Code by reference to ss 24 and 27, which, like s 29, are to be found in Ch V of the Code. First, it is to be noted that ss 24 and 27(2) speak in terms of a person being criminally responsible for an act or omission to an ‘extent’. The notion that a person may be criminally responsible for an act or omission only to the extent contemplated by ss 24 and 27(2) confirms that an offence may be committed that incurs only limited criminal responsibility on the part of the offender. That is because, as explained in Barlow, the determination of a person’s criminal responsibility is a question distinct from whether the act that constitutes an offence has been committed.

3. 61
   Secondly, on the approach urged by the appellants, a person who aids an insane person intentionally to strike and thereby kill another person could not be held criminally responsible for murder. But the understanding of the meaning of ‘offence’ in ss 7 and 8 explained in Barlow means that the Code does not have that result. On that understanding, a person who enables or aids a person of unsound mind to strike a blow that kills another is not relieved of criminal responsibility for what is an unlawful killing by the circumstance that the person who intentionally struck the killing blow is not criminally responsible by reason of insanity. Similarly, a person who enables the doing of the act or the making of the omission by another, and is thereby deemed by s 7(b) to have taken part in the act or omission, will not be criminally responsible for the offence constituted by it if the enabler has acted under a mistake of fact within the meaning of s 24 of the Code. On the other hand, if the person who actually does the act or makes the omission that constitutes the offence does so under a mistake of fact within the meaning of s 24, but the enabler has not been under any such mistake, the enabler will be criminally responsible for the offence even though the actor is not. And so, in the present case, a person who enables or aids a person of immature age to murder another person is not relieved of criminal responsibility for his participation in the murder.”

70. [70]
    The Court expressed its conclusion in a way that ensures clarity:^[47]

3. “66
   On the authoritative exposition of the Code in Barlow, s 7, in referring to ‘an offence’, refers to the act or omission which constitutes the offence. In its operation, s 7 deems each category of person referred to in paras (a) to (d) to be a person who may be charged with the offence constituted by the act or omission. Similarly, s 8 of the Code deems each of two or more persons to have done the act, the doing of which was a probable consequence of the prosecution of an unlawful purpose. It is the doing of the act or the making of the omission by the actor that is attributed to another person or other persons, not the criminal responsibility of the actor. Sections 7 and 8 of the Code render a person other than the actor liable to criminal punishment for those acts or omissions, subject to the personal circumstances of that other person having regard to the other provisions of the Code. The circumstance that one of those persons may have an immunity from criminal responsibility by reason of his or her personal circumstances addressed in Ch V of the Code does not prevent the operation of ss 7 and 8 against the other persons.

3. 67
   Accordingly, paras (b) and (c) of s 7 apply to an enabler or aider of another person to do an act or make an omission that is the element of conduct of an offence under the Code, whether or not that other person is criminally responsible for the act or omission. And s 8 of the Code applies to a person who, with one or more other persons, forms a common intention to prosecute an unlawful purpose with another, where in the prosecution of that purpose an ‘offence’ is committed of such a nature that its commission was a probable consequence of the prosecution of the purpose; and that is so, whether or not those other persons or some of them are criminally responsible for the act or omission.”

71. [71]
    The principles to be drawn from Pickett are:

    1. ss 7(b), (c) and 8 of the Code operate to attribute to an accused person (who is an enabler or an aider under s 7, or a party to an unlawful common purpose under s 8), the acts of another person who actually killed the deceased; it is the doing of the act or the making of the omission by the actor that is attributed to another person or other persons, not the criminal responsibility of the actor;
    2. but they do not attribute to another participant circumstances personal to the actor that, under Ch V of the Code,^[48] relieve the actor of criminal responsibility for his or her acts;
    3. that the person who actually killed the deceased may not have been criminally responsible is immaterial to the guilt of the others under s 7 or s 8;
    4. the definition of “offence” refers not to the concatenation of elements and circumstances that establish liability to punishment, but to the conduct element of an offence (being an act or omission);
    5. s 7 and s 8, by their terms, makes each of the persons within its scope a principal offender;
    6. s 7 expressly attributes to the persons mentioned in s 7 the acts or omissions that constitute the offence;
    7. the meaning of “offence” in ss 7 and 8 means the “element of conduct (an act or omission) which attracts criminal liability if it be accompanied by prescribed circumstances or if it causes a prescribed result or if it be engaged in with a prescribed state of mind”;
    8. a person who enables or aids a person of unsound mind to strike a blow that kills another is not relieved of criminal responsibility for what is an unlawful killing by the circumstance that the person who intentionally struck the killing blow is not criminally responsible by reason of insanity;
    9. similarly, a person who enables the doing of the act or the making of the omission by another, and is thereby deemed by s 7(b) to have taken part in the act or omission, will not be criminally responsible for the offence constituted by it if the enabler has acted under a mistake of fact within the meaning of s 24 of the Code; and
    10. on the other hand, if the person who actually does the act or makes the omission that constitutes the offence does so under a mistake of fact within the meaning of s 24, but the enabler has not been under any such mistake, the enabler will be criminally responsible for the offence even though the actor is not.
72. [72]
    The High Court has thus held that where s 7(1)(b) and (c) are concerned, what is attributed to those persons is the doing of the act or the making of the omission by the primary actor, who comes within s 7(1)(a).  That means that a party under s 7(1)(b) or (c) is deemed to be the actor who committed the killing.
73. [73]
    For that reason a person under s 7(1)(b) or (c) is taken to be the person who “unlawfully kills”, i.e. actually does the act of killing, within s 304B(1) of the Code.  The defence is therefore open to such a party.

Miscarriage of justice by failure to direct on s 304B

74. [74]
    I turn to the ground advanced by the appellant.
75. [75]
    It is axiomatic that the question whether a miscarriage of justice arose by reason of a failure to direct on s 304B, could only be answered affirmatively if the trial judge should have directed on s 304B.  Unless the defence was raised on the evidence, there was no requirement to direct upon it.

76. [76]
    As will become apparent the foundation for this ground is the communication between Moore and the appellant in the days leading up to when the deceased was killed.  It is contended by the appellant that the messages, if considered in isolation from the appellant’s sworn testimony, “are cogent evidence of the appellant’s state of mind in the lead up to 6 February 2018”.^[49]
77. [77]
    In my view that contention must be rejected.
78. [78]
    First, in my view, on the evidence most favourable to the appellant, the defence did not arise.  That conclusion, developed below, is sufficient to dispose of the appeal.
79. [79]
    Secondly, in the course of the trial judge’s analysis of relevant facts, his Honour had regard to the texts upon which the appellant relies and made findings inconsistent with that defence.  In those circumstances, if contrary to the conclusion above, the trial judge should have directed himself on the s 304B defence, there was no miscarriage of justice.
80. [80]
    Thirdly, the appellant herself disavowed reliance upon such a defence, and the trial judge was told that was a deliberate position taken on instructions from the appellant.
81. [81]
    I will develop each of those areas below.

Did the defence arise on the evidence?

82. [82]
    The test for whether a defence should be left to the jury was stated in R v Rae^[50] there, citing R v Buttigieg,^[51] and Stingel v The Queen,^[52] Fryberg J said:^[53]

“Notwithstanding the onus which lies upon the Crown to disprove the defence under s 304 (or any section upon which it carries the onus), the section falls for consideration by the jury only if the defence has been raised by the evidence. Only then should the trial judge refer to it in instructions to the jury. Whether the defence has been raised is a question for the judge. That question

‘can be summarized as being whether, on the version of events most favourable to the accused which is suggested by material in the evidence, a jury acting reasonably might fail to be satisfied beyond reasonable doubt that the killing was unprovoked in the relevant sense.’”

83. [83]
    Fryberg J continued:^[54]

“Where the onus is on the prosecution to exclude a defence, and to do so beyond reasonable doubt, the question whether on material in the evidence a jury acting reasonably might fail to be satisfied beyond reasonable doubt must also be answered in the affirmative in relation to every element of the defence if the defence is to go forward. If it cannot be so answered, the defence should not be left to the jury. … Similarly, if on appeal it is contended that a trial judge wrongly withheld such a defence from the jury, the question for the appeal court is whether there was at least one element of the defence not raised on the material in the evidence.”

84. [84]
    The question for this court is whether, on the version of events most favourable to the accused, an element of s 304B(1) was not raised.
85. [85]
    The version of events most favourable to the appellant was:

    1. she had been subjected to serious domestic violence in the recent past;
    2. she went to see the deceased, merely to talk to him about his behaviour;
    3. she went with Moore;
    4. the deceased did not know they were coming, or why;
    5. she did not know that Moore intended to do harm to the deceased;
    6. inferentially, she did not know that Moore took a weapon;
    7. she did not intend to do harm to the deceased; and
    8. the only prospect of violence was that Moore might punch the deceased if he lunged at the appellant; even in this respect the thought that Moore might punch the deceased was merely an assumption by her.
86. [86]
    The relevant appellant’s evidence is set out in paragraphs [16] to [22] above.  Two passages of her evidence are important.
87. [87]
    The first is in her evidence in chief:^[55]

“Now, was there a decision reached between you and [Moore] to go and see [the deceased]?---Yes.

What did you and [Moore] decide to do?---That we were going to go and talk to [the deceased].

All right. And what were you going to do?---I wanted to express to [the deceased] how he was making myself feel as well as [CWX] and my other children, and I was going to beg him to stop his drinking.

And why did you agree for [Moore] to go?---So I’d feel safe.

Now, what did you tell [Moore] his role would be?---To stand there and just support me.

Now, you know that [the deceased] has been aggressive in the past?---Yes.

And towards you?---Yes.

You had [Moore] there. He was an ex-partner of yours?---Yes.

And a friend of yours for decades?---Yes.

What did you expect was the worst that was going to happen?---The worst?

The worst that was going to happen with the plan you made?---The worst I expected to happen [Moore] would intervene and maybe punch [the deceased] in the face if [the deceased] went to lunge at me.”

88. [88]
    The second is her answer in re-examination:^[56]

“Did you expect [the deceased] to get physical … that night?---I wasn’t expecting it, but, just in case, I wanted to feel safe.

And was [Moore] there for that purpose?---Yes.

And the purpose you explained earlier, which was to step in if he lunged at you?---Yes.”

89. [89]
    On that version of events no question of a defence under s 304B(1) arose.  Specifically, s 304B(1)(b) could not have been satisfied.  The appellant did not believe that the acts that caused the deceased’s death were necessary for her preservation from death or grievous bodily harm.
90. [90]
    On that basis also, no question arose as the reasonable grounds for a belief which she did not hold: s 304(B)(1)(c).
91. [91]
    Therefore, on that version of events the defence under s 304(B)(1) was excluded.
92. [92]
    Further, reliance on the text messages confronts considerable difficulties.
93. [93]
    The text messages reveal Moore making comments that could be viewed as threats towards the deceased.  Those were texts between Moore and the appellant.
94. [94]
    Further, the appellant’s texts in response reveal arguments between the deceased and the appellant, and complaints by the appellant to Moore as to:

    1. that she could be kept safe by Moore “only … for so long”;
    2. the deceased would never stop;
    3. she had to keep herself and her children safe; and
    4. the deceased “needs to go – NOW”.
95. [95]
    However, it was clear that the appellant had a relationship with Moore and knew him very well.  The appellant’s evidence was that, notwithstanding what was said in the texts, her state of mind on the day that the deceased was killed by Moore, was that she did not believe that Moore was going to cause any harm to the deceased, beyond punching him if the deceased lunged at the appellant.  Her evidence was that she did not anticipate any need that day to preserve herself from death or grievous bodily harm.
96. [96]
    Before this court the appellant seeks to rely upon the content of the text messages because “they are capable of supporting an inference the appellant reasonably believed it was necessary for her preservation from death or grievous bodily harm to do the act or make the omission that caused the death.”^[57]
97. [97]
    However, that is only the case if the text messages are taken in isolation from the appellant’s evidence otherwise.  To take that course is to select one piece of evidence and ignore the others.  There is no warrant to do so.  The evidence as to the appellant’s state of mind goes beyond the text messages.  Her oral evidence was that, even after all that was said in the texts, she did not believe that the deceased would be, or might be, subjected to harm beyond (possibly) being punched in the event that he lunged at her.
98. [98]
    One can easily postulate a case where the person in the appellant’s position says in oral evidence, “I did not believe what he said in those texts”, or “I did not mean what I said in those texts”.  The proposition that that evidence could be excised from the texts when considering the material in evidence is demonstrably wrong.  The present case is to the same effect.  Having texted and received texts in the way that the appellant’s Counsel now seeks to highlight, the appellant said in oral evidence, “Nonetheless I did not believe that Moore intended to do harm to the deceased”, and (inferentially) “I did not intend that any harm come to him”.
99. [99]
    Nothing in R v Ngakyunkwokka^[58] warrants an approach in which only part of the relevant evidence is considered.
100. [100]
     In particular, when an appeal court considers whether, on the version of events most favourable to the accused suggested by the evidence, a defence might be raised,^[59] the court does not abandon part of that evidence.  It is necessary to make the assessment on the whole of the relevant evidence.  To do otherwise is to distort the body of evidence relevant to the task.

Findings by the trial judge

101. [101]
     If contrary to the conclusion above, the trial judge should have directed himself on the s 304B defence, the learned trial judge made a number of findings that are inconsistent with that defence and compel the conclusion that there was no miscarriage of justice.
102. [102]
     In the course of discussing self-defence in relation to Moore:^[60]

“While it may be accepted, according to evidence of Ms Lyne, that the deceased was drinking heavily and acting strangely on the night of 4 February 2018, on that same afternoon he had acted normally when [the appellant] came to collected CWX. [The appellant’s] evidence was that they spoke for approximately half an hour, including speaking about the deceased’s mental health issues. The deceased was abusive both to [the appellant] and his own father on the night of 4 February 2018. However, the text exchanges with [the appellant] on 5 and 6 February support a finding that he had calmed down.”

103. [103]
     As to the appellant’s state of mind in the day or so before the deceased was killed:^[61]

104. [104]
     When discussing the contact between the appellant and the deceased in the days up to 6 February:^[62]

105. [105]
     In the context of discussing motive on the part of the appellant, the learned trial judge made findings as to the appellant’s dominant concern:^[63]

‘Was that truthful?--- Yes. When he was drunk and when we were arguing he would make threats, but never follow through with it and I never had any concerns.

Okay. But the point is you were asked – and if you want to qualify it by what you say later – but you were asked whether he had threatened to take [CWX] from you. And---?--- And I said no, so that would be a lie.

So why did you tell that lie?--- I don’t know. I can’t answer that question.

So you can’t think of a reason?--- No.

Could it be that perhaps that might be another possible motive for your part for the death of [the deceased]?--- It’s possible, but I can’t exactly answer that truthfully.

Do you accept that it’s possible that you could have lied – told that lie, because it would appear that you might have a motive?--- It’s possible, yes.

So, in that sense, if that happened, it would be lying to protect yourself?--- Yes.’

[The appellant] was close to CWX. [The appellant’s] evidence was that when she contemplated running away, the only child she was taking with her was CWX. I accept that the deceased’s threats to take CWX away from [the appellant] when considered in the context of the whole of the evidence constituted a motive for [the appellant] to assist Moore to murder the deceased.”

106. [106]
     Those findings show that the learned trial judge did not consider that the appellant had an active fear of harm from the deceased, let alone of death or grievous bodily harm, when she went to his unit on 6 February 2018.  The findings are inconsistent with a conclusion that the evidence supported a finding that when she went to the deceased’s house she believed that the attack on the deceased was necessary to preserve her from death or grievous bodily harm.  Nor did it support the finding that there were reasonable grounds for that belief.  Her dominant concern was that the deceased might take CWX away from her.
107. [107]
     Those findings were made with the benefit of a full analysis of the text messages which are now relied upon by the appellant.
108. [108]
     The text messages relied upon by the appellant were tendered in evidence as part of Exhibit 38.  The learned trial judge had regard to the texts in Exhibit 38, discussing their contents and what they signified, and the fact that many had been deleted from the phones of the appellant and Moore.^[64]
109. [109]
     In the course of that exercise the trial judge had specific regard to almost all of the texts in Exhibit 38 that the appellant now relies upon, and Exhibit 38 more generally.^[65]  Whilst the trial judge did not deal with every text message relied upon, the following summary shows that his Honour considered the important ones, i.e. those that revealed something about the appellant’s state of mind potentially relevant to a s 304B defence.  In that summary I have separated the texts into two categories.  Category A are those that do signify something potentially relevant.  In category A the texts have been taken into account by the trial judge; in each case I have included the quote from those texts that is said to be significant.  Category B are the other texts relied upon but which do not contain something potentially significant as to the appellant’s state of mind.  In each case I have noted why.  The summary is:

     1. B; 4 February, items 508, 510, 514, 517-519; these texts reveal arguing between the appellant and the deceased but nothing touching a state of mind as to potential harm;
     2. A; 4 February, item 527;^[66] from the deceased: “All you had to do was put an effort into our relationship.  Now reap the whirlwind”;
     3. A; 4 February, item 529;^[67] to the deceased: “Don’t threaten me [deceased] … you can’t make someone be in a relationship … /nand our little girl doesn’t need is fighting.  And she isn’t a weapon to hurt”;
     4. B; 4 February, item 540; in this the deceased wishes the appellant could turn her hate into love;
     5. A; 5 February, items 551–557;^[68] to Moore: “I’m ready NOW …”;
     6. A; 5 February, items 609;^[69] to Moore: “I told you … if you call him it will make it worse … pls listen”;
     7. A; 5 February, item 580;^[70] to Moore: “You can only keep me safe for so long sweetheart”;
     8. A; 5 February, items 58-94;^[71] to Moore: “I have to keep my kids safe and me safe … he will never stop …”;
     9. A; 5 February, items 600–633;^[72] to Moore: “This will never stop… he will never stop…”; “he needs to go...NOW”; “But if anyone calls him or contacts him in anyway it will make so much WORSE for me and the kids… I can’t live like this any longer…”; and
     10. B; 5 February, item 628; to Moore: these contained references such as, “He isn’t going to learn from a lesson... he will continue to do what he is doing... and he will then take my daughter…”; that goes no further than the earlier texts; otherwise the texts referred to are from Moore, not the appellant.
110. [110]
     Further, the significance of the text messages was the subject of submissions by the appellant’s Counsel, albeit in relation to her liability under s 7(1)(a) of the Code.^[73]
111. [111]
     The trial judge considered the substance of the texts and concluded that what they revealed about the appellant’s state of mind was that she was not concerned that she would be harmed on 6 February, but that the real risk was that the deceased might take CWX.  There was no reasonable possibility that if the texts had been considered in the context of a possible s 304B defence, that they would have resulted in a finding that at the time the appellant went to the deceased’s unit on 6 February she had a belief that causing the deceased’s death was necessary to preserve her from death or grievous bodily harm.  Nor was there a reasonable possibility that they would have resulted in a finding that there were reasonable grounds for such a belief.  One must recall that the relevant belief for the purposes of s 304B must be held at the time the act or omission is done that causes the unlawful death.
112. [112]
     Here, the evidence of the text messages and the oral evidence of the appellant (as to the texts and other matters) was left to the trial judge, being the arbiter of fact in the trial as it was a judge alone trial.  On the version of facts most favourable to the appellant, that defence did not arise.  The findings made are inconsistent with the defence.  The appellant has therefore not shown any error in the lack of consideration by the trial judge of the defence under s 304B and therefore no question of a miscarriage of justice arises.

Disavowal of the defence

113. [113]
     The learned trial judge raised the question whether a s 304B defence was to be run.  That was done in advance of the trial at a review.  In a letter authorised by the appellant, then trial Counsel for the appellant told the trial judge that: “[The appellant] has instructed that a defence under section 304B of the Code will not be raised by her.”^[74]
114. [114]
     Those instructions were confirmed at a review on 30 November 2021:^[75]

“HIS HONOUR: Thank you. Now, the third point, Mr Hoare, you’re not proceeding with a defence under 304B.

MR HOARE: That’s so. I have those instructions and I put that on the record today.”

115. [115]
     Trial Counsel was quite specific in telling the judge that his response, that the defence was not being relied upon, was on the appellant’s instructions.
116. [116]
     In Hofer v The Queen^[76] the High Court referred to the test to be applied as to whether a miscarriage of justice has occurred:

3. “41
   A miscarriage of justice to which s 6(1) of the Criminal Appeal Act refers includes any departure from a trial according to law to the prejudice of the accused. This accords with the long tradition of criminal law that a person is entitled to a trial where rules of procedure and evidence are strictly followed.”

117. [117]
     More recently the High Court restated the test in HCF v The Queen.^[77]  There the majority said;^[78]

3. “[2]
   Beech-Jones CJ at CL recently provided a convenient summary concerning those errors or irregularities that will amount to a miscarriage of justice in observing that, if the error or irregularity ‘is properly characterised as a ‘failure to observe the requirements of the criminal process in a fundamental respect’ then it would follow that the conviction would not stand regardless of any assessment of its potential effect on the trial’, but otherwise there is no miscarriage unless the error or irregularity is ‘prejudicial in the sense that there was a ‘real chance’ that it affected the jury’s verdict ... or ‘realistically [could] have affected the verdict of guilt’ ... or ‘had the capacity for practical injustice’ or was ‘capable of affecting the result of the trial’.’”^[79]

118. [118]
     Of course, it is well established that just because the defence (or prosecutor) does not ask for directions on s 304B, that does not mean that on appeal the absence of an appropriate direction cannot be challenged.^[80]  In Dhanhoa the test was expressed by McHugh and Gummow JJ:^[81]

3. “38
   When no re-direction concerning evidence is sought at a criminal trial, the appellant can only rely on a failure to direct the jury on the evidence if he or she establishes that that failure constituted a miscarriage of justice.  No miscarriage of justice will have occurred in such a case unless the appellant demonstrates that the direction should have been given and it is ‘reasonably possible’ that the failure to direct the jury ‘may have affected the verdict’.  In the present case, the judge was not required to give one of the directions that the appellant now claims should have been given – a direction as to identification evidence.  And although we think that it would have been better for the judge to give a direction concerning the other matter – a direction as to lies – the appellant has failed to establish that there is a reasonable possibility that such a direction would have affected the verdict.  Accordingly, no miscarriage of justice has occurred.”

119. [119]
     However, the fact that the defence was disavowed expressly on the appellant’s instructions must, in my view, weigh on the question whether a miscarriage of justice arose by the failure of the trial judge to direct himself upon the evidence on the s 304B issue, and the suggested texts.  The appellant’s oral evidence is set out at paragraphs [16] to [22] above.  I will deal with the question of the texts below.
120. [120]
     There is no suggestion that the instructions from the appellant on that issue were not fully informed, and consciously and deliberately given, nor is it said that the appellant’s Counsel was negligent in the advice given on that issue.
121. [121]
     One can easily see the forensic tactic behind the stance taken at trial.  The appellant was to give, and did give, evidence that she had no idea that the deceased would be harmed, let alone killed.  To raise a s 304B defence would be directly contrary to that evidence, and at the least invite doubt on that evidence.
122. [122]
     Further, the objective evidence posed obstacles to that defence:

     1. the deceased had not gone to where the appellant (or Moore) was; to the contrary, the appellant and Moore had deliberately gone to the deceased’s house unannounced; plainly the appellant and Moore knew the deceased was at his house, and therefore nowhere near the appellant’s house;
     2. the appellant lived some considerable distance from the deceased; she was on Russell Island; it would take “hours” for the deceased, who had to use public transport, to get to the appellant’s house;^[82]
     3. in the lead up to the attendance at the deceased’s house, the appellant had been at Moore’s house for about seven hours; there was no suggestion that the deceased knew that; she could have had no belief of imminent attack;
     4. the evident plan was that the appellant should go to the deceased’s house, as the deceased was likely to open his front door to her, whereas he would likely not open it to Moore; under that plan the appellant plainly did not believe that there might be an attack on her, let alone an attack that warranted her preservation from death or grievous bodily harm; and
     5. the evidence supported the conclusion that the real concern for the appellant was that the deceased might take their daughter, CWX.
123. [123]
     The conclusions reached above support the approach to the issues taken by the appellant’s Counsel at trial, with the benefit of instructions from the appellant.  Those circumstances are set out at paragraphs [113] to [122] above.  The circumstances both at trial and before this Court mean that the following findings may be made about the appellant’s instructions and the conduct of the trial on this issue:

     1. the instructions were almost certainly the result of legal advice as to the availability of the defence, based on the evidence that the appellant intended to give as to her state of mind on 6 February 2018;
     2. the advice was not the product of negligence or incompetence on the part of the appellant’s lawyers;
     3. the instructions were fully informed and deliberate;
     4. the advice and the resultant instructions were rational based on the evidence that the appellant intended to give as to her state of mind;
     5. the appellant gave that evidence, and reiterated it under cross-examination; there was thus no occasion to review that stance after her evidence; and
     6. no instructions were given to alter that position.
124. [124]
     There is well settled authority that Counsel cannot, by failing to ask for a direction or re-direction on an issue, deprive the court of the obligation to direct on that issue if there is evidence to support it.  As it has been put, Counsel cannot concede a matter of law disadvantageous to the accused and trial judges have no authority to dispense with directions that the law requires them to give in criminal trials, even if defence Counsel are content that they not be given.^[83]
125. [125]
     The oft-cited decision of Hunt J in R v Stokes^[84] demonstrates the point.  Stokes was a murder case concerning the failure of the trial judge to adequately leave the issue of intoxication to the jury.  The failure to do so was based on an agreement between Counsel.  The court said:

“It is reasonably obvious why counsel then appearing for the appellants wished to avoid the usual direction concerning the relationship of intoxication to the formation of a specific intention: as to which, see Coleman (1990) 19 NSWLR 467 at 486-488; 47 A Crim R 306 at 323-326. Whatever benefit that direction could possibly have given Stokes upon the issue of his specific intention, it would no doubt also have considerably weakened his denials that he had kicked Partlic and speared him headfirst onto the concrete floor if the jury had been warned that, in many cases, intoxication does no more than remove inhibitions or self-restraints and induce a sense of self-confidence and (sometimes) of aggressiveness: see Coleman at 486; 323. The judge did, quite properly, suggest that intoxication may be an explanation for what had happened, but that suggestion would not have caused the damage to Stokes’s denials which the full warning would have caused.

The disavowal by counsel then appearing for the appellants that intoxication was being raised as an issue, though no doubt made for tactical reasons which were bona fide thought to be in the best interests of their clients, did not relieve the judge of the duty to give directions in relation to that issue in this case: Pemble (1971) 124 CLR 107 at 117-118, 130. Counsel cannot concede a matter of law to the disadvantage of the accused: Pemble at 133; Galambos (1980) 2 A Crim R 388 at 395, 396-397. The judge must comply with his duty to put to the jury any issue sufficiently raised by the evidence even if that issue gives an air of unreality to the case sought to be made by the accused in relation to some other issue: Lawson and Forsythe [1986] VR 515 at 548; (1986) 18 A Crim R 360 at 394-395; Marshall (unreported, Court of Criminal Appeal, NSW, Gleeson CJ, Priestley, Sharpe JJ, 17 July 1990) at pp 1-2.

An error of law has therefore been established by Stokes, in that the judge erred in acceding to the request of his own counsel, made for tactical reasons to benefit the appellant’s own case, not to put intoxication to the jury as being relevant to an issue which the Crown had to establish. The irony of such a conclusion — that the judge erred by doing precisely what the appellant had asked him to do — is even greater because, had the direction been given which Stokes now says should have been given, it would have been likely to weaken his case.”

126. [126]
     Most of the cases referred to involve Counsel not asking for a direction (or redirection) for forensic reasons, or through inadvertence.
127. [127]
     In none of those cases was the step taken similar to that involved in the present case.  Here the trial judge raised the specific question whether a s 304B defence was to be raised.  The appellant answered that question in a letter authorised by her:^[85]

“Mr Hoare, counsel for [the appellant], is to advise whether they will be relying on the partial defence under section 304B: killing for preservation in an abusive domestic relationship (T 1-7 to 1-8, Note the transcript incorrectly attributes that to Mr Fraser). [The appellant] has instructed that a defence under section 304B of the Code will not be raised by her.”

128. [128]
     Then, at the next hearing those instructions were expressly conveyed to the trial judge, as being instructions held by the appellant’s Counsel and which were to be “put … on the record today”.
129. [129]
     Though there were, no doubt, forensic reasons for that stance, nonetheless this was a case where the party herself (via her Counsel) told the judge that the defence would not be relied upon.  In my view, that is the same as saying to the jury (here the judge as it was a judge-alone trial): “I will not be giving evidence that I had the belief required under s 304B(1)(b)”, or “I did not hold the belief required under s 304B(1)(b)”.
130. [130]
     Whilst Counsel cannot concede a matter of law to the disadvantage of the accused, there is, in my view, no reason why the accused cannot make a disadvantageous concession, as long as the act of doing so is fully informed, voluntary and on advice.  That was the case here.
131. [131]
     In such a case, it is the fairness of the process which is in question, not the wisdom of the step taken.^[86]  The deliberate step taken by the appellant did not render the trial unfair.  Further, for the reasons developed on the other considerations, in paragraphs [82] to [112] above, the trial process was fair.

Conclusion

132. [132]
     In my view, it cannot be demonstrated that there was a miscarriage of justice by the learned trial judge’s failure to direct on a s 304B defence.  The primary reason for that conclusion is that the defence did not arise on the evidence adduced.  Even if that conclusion was in error, I am unable to conclude that, in the circumstances dealt with above, the failure to direct was “prejudicial in the sense that there was a ‘real chance’ that it affected the [judge’s] verdict ... or ‘realistically [could] have affected the verdict of guilt’ ... or ‘had the capacity for practical injustice’ or was ‘capable of affecting the result of the trial’”.^[87]
133. [133]
     I would therefore order:

1. The appeal is dismissed.

134. [134]
     CALLAGHAN J:  I agree with Morrison JA that the appeal must be dismissed.  My reasons differ.  I do not believe that s 304B of the Criminal Code applies to a defendant who is not “the person” who commits the act of killing.
135. [135]
     Section 304B furnishes a tight trilogy of ss 304, 304A and 304B that operate to identical effect.  They reduce criminal liability for an act that would otherwise be condemned in terms as serious as is allowed by our law and be met with mandatory imprisonment for life.
136. [136]
     Each section addresses a different situation, but s 304 and s 304B have something in common.  They offer this “partial defence” when there is a link between a “passion” or a “belief” and the performance of a fatal act.  They offer it on the basis that, in extreme circumstances, any person may be driven to extreme conduct.  They acknowledge human emotions that, depending upon the offence given, indignity endured or pain anticipated, may accumulate until a breaking point is reached.  They reflect the principle^[88] that, for the purposes of the criminal law, no one is expected to be wiser or better than all humanity.
137. [137]
     Such quintessentially human concerns demand an examination of an individual’s state of mind.^[89]
138. [138]
     The words of the section indicate that it should operate only in favour of the individual whose mind is being examined.  The section applies:

     1. to “a person”;
     2. specifically, to a person who “kills”;
     3. its application is predicated on a belief held by that person;
     4. the belief must be sourced to grounds that arise out of a relationship^[90] to which that person was a party; and
     5. it is that belief which makes it necessary for that person to do the act which causes death – the need for a link between the “belief” (which can be held by only one person) and the “doing” is inescapable.
139. [139]
     As written, only one person is ever within the contemplation of the section and that person is someone with unique characteristics.  One of those is the fact that they formed a belief based upon their participation in a relationship.  That is the belief that has pushed that person to perform a catastrophic act, but the defining characteristic of this catastrophe is that it would not otherwise have happened.  That is, unless the “actor” themself reaches the contemplated breaking point, then no relevant “act” occurs, and there is no cause for the section even to be considered.
140. [140]
     This plain reading of the text requires the act that kills to be the act of the “person” holding the requisite belief.
141. [141]
     The appellant submits, however, that the meaning of the word “person” should be ascertained by reference to another part of the statute.  As a general proposition, and particularly in the case of a Code, no issue can be taken with that approach.  The result of the exercise is, as Morrison JA demonstrates, to suggest that the meaning of the word “person” may be extended to include a “person” who is deemed by a legal fiction^[91] to have done the act of killing, but who did not perform that act.
142. [142]
     There are reasons to refrain from adopting this approach.
143. [143]
     Accepting that a word in a statute might be defined by reference to a broader context, it is apparent that in this case the relevant context is the trilogy, and not the entire statute.  The contiguous sections which offer (partial) relief from criminal liability, all make sense if unity of meaning is given to the word “person”.  They are less coherent if interpreted by reference to distant sections (such as s 7) that operate to impose criminal liability.  It is difficult, for example, to see how the “person” to which s 304A applies could ever be other than the one whose mind was in a state of abnormality.
144. [144]
     Nor is the purpose of these sections (as explained at [3], above) served by enlarging their scope.  By definition, a process of aiding, enabling or procuring will involve some sort of intervention that breaks the immediate and direct connection between the behaviour of the deceased and the response of the defendant.  No one is expected to be “wiser or better”, but they might reasonably be expected to refrain from certain behaviour, such as that to which Mr Crane alluded when he queried whether the protection offered by s 304B ought to be extended to a person who secured the services of a professional hitman to resolve their issues with the deceased.  The contract killer might well be liable for murder, but for so long as the instigator satisfies the requirements of the section, so the argument might run, they will be guilty of only manslaughter, no matter how calculated and premeditated the procurement of their assassin.  That could be the result unless the benefit of the section is withheld from defendants whose liability derives from the fatal acts committed by another.  That benefit will be withheld if the section is interpreted as it reads.
145. [145]
     In the result, the context, purpose and plain reading of s 304B compel the view that it had no application to the appellant.  It follows that the appeal must be dismissed, and I join in the order proposed.