Lynch v Commissioner of Police

This case considered the interpretation of s 25 Criminal Code 1899, which contains the defence of extraordinary emergency. The applicant asked the Court of Appeal to depart from its earlier decision in R v Dimitropoulos [2020] QCA 75; (2020) 282 A Crim R 402 (“Dimitropoulos”) which relevantly held that the defence contains a “temporal element” requiring that an accused demonstrate, inter alia, that an emergency was of “such a scale that it requires immediate action”. Acting Justice Beech (with whom Morrison and Bond JJA agreed) held that whilst the applicant could show that an alternative construction of s 25 Criminal Code 1899 was reasonably open, she could not convince the Court that the interpretation preferred in its earlier decision of Dimitropoulos was: contrary to the undoubted intention of parliament; a patent error of construction; or plainly wrong. Leave to appeal was refused.

Morrison and Bond JJA and Beech AJA

2 September 2022

Background

The applicant was convicted by a magistrate of a number of offences related to the possession and production of cannabis contrary to the Drugs Misuse Act 1986. [3]. The applicant relied on the defence of extraordinary emergency under s 25 Criminal Code 1899. [3]. The applicant appealed against her conviction to the District Court, however, the appeal was dismissed. [4]. The decision of the Court of Appeal in R v Dimitropoulos [2020] QCA 75; (2020) 282 A Crim R 402 (“Dimitropoulos”) was applied both at first and second instance to convict the applicant (and to sustain the conviction on appeal). [5]. One of the grounds on which the applicant sought leave to appeal was that to the extent Dimitropoulos held there was a “temporal element” to a defence of extraordinary emergency under s 25 Criminal Code 1899 – i.e. for the defence to be raised the emergency must be of “such a scale that it requires immediate action” – it was wrongly decided. [39], [49]–[59].

Whether the Court of Appeal should depart from its earlier decision

The applicant argued that the Court of Appeal should depart from its earlier decision in Dimitropoulos on the basis that it was “in direct conflict” with two decisions of the Court of Appeal of the Supreme Court of West Australia which were said to have reached an opposite conclusion: see Nguyen v The Queen [2005] WASCA 22 (“Nguyen”) which relevantly held that to raise the defence of extraordinary emergency under s 25 Criminal Code 1913 (WA) “a delay between becoming aware of the emergency and responding to it was relevant but not determinative” (emphasis added); and Warnakulasuriya v The Queen [2012] WASCA 10; (2012) 261 FLR 260 (“Warnakulasuriya”) which relevantly held that to raise a defence of sudden or extraordinary emergency under s 10.3(1) Criminal Code (Cth) the emergency may extend “beyond circumstances that are urgent or time-imperative”. [47]. Acting Justice Beech (with whom Morrison and Bond JJA agreed) considered that a party who contends that the Court of Appeal should depart from an earlier decision on construction of a statute:

“… faces a high threshold requiring materially more than mere persuasion that the construction advanced by the party is the preferable one… the [party] must persuade the Court to have a strong conviction that the earlier decision is wrong. That has been expressed in various forms of words, including that the earlier decision is ‘opposed to the undoubted intention of Parliament as enacted’, has a ‘patent’ error of construction or is ‘plainly wrong’…” [69].

Acting Justice Beech (with whom Morrison and Bond JJA agreed) also observed that there are often choices made between competing constructions which are “reasonably open on consideration of the text, context and purpose of [a] statute.” [70]. The “mere preference” for a different construction is an insufficient basis for departure from an earlier decision. [70]. Warnakulasuriya (see [73]–[91], [107]–[113]) and Nguyen (see [92]–[93]) were decided in different statutory contexts. [98], [103]. The construction preferred in Dimitropoulos had a firm foundation in the text, context and purpose of s 25 Criminal Code. [114]–[122]. Whilst the applicant could persuade the Court that the construction suggested by Warnakulasuriya and Nguyen was “reasonably open”, it could not be shown that the construction preferred in Dimitropoulos was “plainly wrong” nor could it be shown that the construction was “contrary to the undoubted intention of Parliament”. [120]. It followed that the applicant had not demonstrated a sufficient basis for the Court of Appeal to depart from its earlier decision. [121]–[122].

Disposition

In the result, the application for leave to appeal was refused. [1]–[2], [6], [136].

D Kerr