R v Tracey

The appellant was convicted of murdering her ex-partner, with her liability based on ss 7(1)(b) and (c) of the Criminal Code. The sole ground of appeal argued the trial judge erred by not directing himself that the partial defence under s 304B of the Code was applicable. The critical question on appeal was whether s 304B could apply to the appellant, who did not commit the act of fatally stabbing the deceased. The Court of Appeal dismissed the appeal. The majority (Mullins P and Morrison JA), applying Pickett v Western Australia (2020) 270 CLR 323, held s 304B can apply to a party to an offence, though they did not commit the act. Meanwhile, Callaghan J held s 304B cannot apply in such circumstances, as the defence contemplates a link between the person’s mindset and the performance of a fatal act, such that the defence ought only be open to the person that commits the act.

Mullins P and Morrison JA and Callaghan J

20 February 2024

Background to Appeal

Following a judge alone trial, the appellant and a co-accused were convicted of murdering the appellant’s ex-partner. [5]–[6], [25]. The offence was declared to be a domestic violence offence pursuant to s 564(3A) Criminal Code Act 1899 (“the Code”). [6].

The appellant was found liable as a party pursuant to ss 7(1)(b) and (c) of the Code. [9]–[14].

The appellant challenged her conviction on the ground that the trial judge erred by not directing himself in relation to the partial defence under s 304B of the Code, relating to killing a person for preservation in an abusive domestic relationship. [7]. Section 304B of the Code provides that “A person who unlawfully kills another” in preservation of one’s self from a domestically violent partner will be guilty of manslaughter rather than murder.

A critical question to the ground of appeal was whether the partial defence of s 304B could apply where the appellant was not “the person” who engaged in the act of killing. [45]. This question forms the focus of this note.

Decision of the Court of Appeal

Mullins P and Morrison JA dismissed the appeal. [1], [133]–[134].

First, their Honours noted the plain meaning of “A person who unlawfully kills another” means a person who did the act of killing, rather than committed the offence. [59]. However, this did not explain the effect of ss 7(1)(b) and (c). [60].

Morrison JA (with whom Mullins P agreed) considered Pickett v Western Australia (2020) 270 CLR 323 instructive. [71]. There the question was whether the personal circumstances which may relieve a party of liability could be attributed to another participant under ss 7 and 8 of the Code. [62]–[63]. The High Court held that must be answered in the negative. [64]. That is, an offence within the meaning of ss 7 or 8 may be committed even though the person who did the act that constituted the offence is not criminally responsible due to a defence. [66]–[72]. Those principles applied in the present case, such that s 304B is open as a defence to a party to whom those circumstances apply, even if they did not do the act but are liable under as a party. [73].

However, their Honours found that the defence under s 304B of the Code was not raised by, nor open on, the evidence at trial and the primary judge therefore did not err in not directing himself on that defence. [2]–[3], [78]–[80]. Therefore, even if the primary judge had erred by not directing himself on the s 304B defence, there was no miscarriage of justice caused. [3]–[4]. This aspect of the judgment is not the subject of this note.

Callaghan J, while agreeing the appeal must be dismissed, dissented as to the application of s 304B. [134], [145]. His Honour held s 304B cannot apply to a defendant who is not “the person” who commits the act of killing. [134]. The defences in ss 304, 304A and 304B all offer partial defences “when there is a link between a ‘passion’ or a ‘belief’ and the performance of a fatal act”. [136]. The wording of those sections indicates that only the person who did the act should receive the benefit of those defences. [137]–[139]. As Callaghan J explained it:

“is the belief [described in the circumstances set out in s 304B] 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.” (emphasis in original) [139].

In his Honour’s view, interpretation of s 304B (giving relief from criminal liability) cannot be aided by other provisions such as s 7 (imposing criminal liability). [143]. The purpose of the sections is also consistent with s 304B being withheld from defendants who did not do the fatal act. [144]–[145].

H Edwards of Counsel