Armitage v The Queen [2022] HCATrans 82 (5 May 2022)

Last Updated: 6 May 2022

[2022] HCATrans 082

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
Brisbane No B68 of 2021

B e t w e e n -

STEPHEN ARMITAGE

Applicant

and

THE QUEEN

Respondent

Application for special leave to appeal

KEANE J
GORDON J
STEWARD J

TRANSCRIPT OF PROCEEDINGS

AT CANBERRA BY VIDEO CONNECTION

ON THURSDAY, 5 MAY 2022, AT 11.30 AM

Copyright in the High Court of Australia

KEANE J: In accordance with the Court’s protocol when sitting remotely, I will announce the appearances for the parties.

MR S.C. HOLT, QC appears with MR J.J. UNDERWOOD for the applicant. (instructed by Owens and Associates)

MR C.W. HEATON, QC appears with MR D. NARDONE for the respondent. (instructed by Office of the Director of Public Prosecutions (Qld))

KEANE J: Yes, Mr Holt.

MR HOLT: May it please the Court. We require an extension of time. I understand our friends only oppose if the matter is said not to have merit.

KEANE J: I think you can proceed on that footing.

MR HOLT: Thank you, you Honours. This application concerns the relationship fundamentally between the doctrine of joint criminal liability in Queensland, reflected in section 8 of the Code, and, more importantly, the principle known as the De Simoni principle that no one may be punished for an offence which he or she has not been convicted of, other than in particular circumstances. Here, in essence, our submission is that the applicant was punished by a sentence imposed on a resentencing by the Queensland Court of Appeal for allegations of torture when the Crown had withdrawn that charge of torture and chose not to proceed to a retrial in respect of it.

The error, in our respectful submission, is found at paragraph [64] of the judgment below. That is at page 86 of the application book. It is where the essence of the error is found. In essence, as the Court will know, what the Court of Appeal did there was to allow the sentence appeal on a relatively technical ground – that is, a ground associated with the calculation of the non‑parole period – and then come to resentence Mr Armitage and, in doing so, did so contrary to a submission that had been made before Mr Armitage in the Court of Appeal that he ought not be sentenced for any of the allegations that had underpinned the charge of torture which had been withdrawn.

The essence of the Court of Appeal’s reasoning at [64], which we say is in error and which founds the question of principle which arises on this application, is the claim that the particulars of torture constitute irrelevant circumstances of the offence of manslaughter by reason of the fact that the acts or omissions inform how manslaughter was a probable consequence of the prosecution of the common purpose.

Our respectful submission is to proceed in that way, that is, in essence, to say that other offences said to have been committed in the prosecution of a common purpose could inform and aggravate an offence which was actually charged is in breach of the De Simoni principle. What the case ‑ ‑ ‑

KEANE J: Mr Holt, do you accept that if the acts that caused or contributed to the death of the victim may be said to bear the description of torture, the De Simoni principle is not, for that reason, engaged?

MR HOLT: Yes. Yes, Justice Keane, because then one would be dealing with the act, which was in fact the causative act relating – which was a constituent part of the offence of manslaughter. Here, of course, and if I can take the Court briefly to some of – the procedural history is long, but the key points can be made briefly.

GORDON J: Just before you do that, Mr Holt, may I ask – probably in a different form – do you contend to the contrary that it was not open for the acts themselves to be relied upon at all?

MR HOLT: Yes.

GORDON J: By that I mean, regardless of whether it is described as torture – without any reference to torture – the actual specific acts that led to the death, regardless of their legal consequence, are still able to be relied upon. Do you accept that?

MR HOLT: Yes. I accept that, your Honour.

GORDON J: Thank you.

MR HOLT: The difficulty in this case, though, is that there was no evidence that the prosecution could point to as to how the deceased died. That was made clear, if I can take the Court briefly to page 98 of the application book, to paragraph 13. So, in particular, if I could start – I am sorry, at paragraph 12, the alleged torture is set out there involving some very specific and horrific matters which were the subject of the torture charge upon which the defendant was convicted at the first trial, a retrial then ordered on appeal in which the Crown had entered a nolle prosequi in relation to. Paragraph 13:

The evidence did not prove who committed these acts; nor did it prove how the deceased was killed. The Crown accepted this –

in the closing address by Mr Cash, as his Honour then was. So, that lack of knowledge effectively as to what had occurred is a fact of.....importance in respect of this application. It was not a case, for example, where it can be said that any of those acts were in fact the acts that caused death, in which case this argument would have no merit at all.

There was a separate alleged criminality in a course of conduct said to have occurred effectively after the point at which the common purpose – the unlawful common purpose for section 8 – had been formed, but before death, which occurred by unknown means at some point within a period of many, many months, which is a separate allegation of torture which could not otherwise be causatively linked.

The Crown had properly charged that – properly charged that as a separate matter of torture, obtained a conviction, and then on the quashing of that conviction and a retrial being ordered, elected not to proceed, such that sentencing then occurred only on manslaughter, but said, no, we still want Mr Armitage to be sentenced for those acts described in fact at sentencing as being torture.

The clarity of that factual circumstance is what gives rise to this as a good vehicle for this particular legal issue, which is a focus on joint criminal liability, whether at common law under section 8, which requires a focus on the joint unlawful purpose, the common purpose. That is.....at the point the agreement is made, and here was very clearly and always put as a common plan to assault the person, ultimately the deceased and ‑ ‑ ‑

STEWARD J: Mr Holt, I am sorry to interrupt you.

MR HOLT: Not at all, your Honour.

STEWARD J: Can you properly describe the acts as torture without there being in addition that critical finding of intentional infliction of severe pain or suffering?

MR HOLT: Your Honour – can I answer that in two ways, Justice Steward? Firstly in this way, the De Simoni principle, in our respectful submission, is still breached where factual allegations which are themselves necessarily horrific, and will involve a necessarily high penalty, are imposed for matters that are not charged, but secondly, and in any event, the nature of the matters that were alleged there mean that if they were sheeted home to the applicant, then an inference as to that state of mind would have been unavoidable when one looks at the acts that were actually said to be engaged in here.

Again, that is why we say this is such a clear vehicle in terms of its history, because in essence what the Court of Appeal did in resentencing, which was the same error the sentencing judge made that here, obviously, was sheeted to the Court of Appeal because it was a resentencing process, was in effect to say torture was an offence committed also, in prosecution of the common purpose, though not the offence that was charged and of which he was being sentenced, that is, manslaughter.

So, the question becomes is it permissible, under the De Simoni principle, to sentence a person on that basis effectively for anything else which was prosecuted in the course of the unlawful purpose? Our respectful submission is that it is not, it is for the Crown to determine which charges it will lay in these circumstances, and if it does not – or here, really clearly, chooses not to proceed with a torture charge, it cannot then seek for a person to be sentenced on that basis.

Now, of course that leads to artificiality, but the application of the De Simoni principle has been acknowledged by this Court to necessarily lead to artificiality. That is not a proper criticism, in our respectful submission. The critical principle that is invoked here is the proposition that Mr Armitage was entitled to be sentenced to that which was proved against him, and that was manslaughter on the basis of section 8 liability, which is as the Crown in this case chose to proceed, and as we say, with a very clear basis for that section 8 liability.

Your Honours will be aware that - if I go back to paragraph [64] where we say the essential error is found, which is at 86 of the record book - the way in which the error becomes manifest is that the court says first, the point that we say is fundamentally at odds with the De Simoni principle – that is he was punished for torture in circumstances where the Crown had elected precisely not to proceed with it and it was not a part of that offence – that is a section 8 offence – but secondly, seemed, respectfully, to put that issue to one side and say, nonetheless, Justice McMurdo had, when substituting the manslaughter verdict, made those findings in any event.

We make two responses to that. The first is in our outline – I will not go through the detail of it – but which is that Justice McMurdo was not purporting to do any such thing. His Honour was – in those circumstances – considering an unreasonable verdict ground and so talked about what was open to a jury, and on the first appeal remitted the matter for sentence to the Supreme Court Trial Division precisely because there may well be issues of fact to be resolved.

The second, though, and more important point as a question of principle in this application is that had that been the case it would nonetheless still be a manifestation of the same error that we say exists in the first part of paragraph [64] of that statement. So, in our respectful ‑ ‑ ‑

KEANE J: Mr Holt, do you accept what is recorded at [64](a) that:

there was a plan to assault Mr Barker by the infliction of pain for the purpose of getting information about stolen drugs ‑ ‑ ‑

MR HOLT: Can I answer that in this way. The way in which the case was put at trial, was particularised at trial – and we have included the references in the outline – was only the first part of that – that is a plan to assault. As the footnote makes clear, the “by the infliction of pain” was a concession that I made before the Court of Appeal in the course of oral argument – I would say really on the basis that because the goal was said to be to get information it seemed a logical inference that one would make that the assault was for the purposes of causing pain to that end – but it was a concession made to no greater end than that. The only way in which the matter was put at trial was on the basis of a plan to assault. I am sorry for that long qualification but that is how that came about.

GORDON J: Can I just test that, Mr Holt, in this sense? I had understood from reading paragraphs [25] and [26] and following of the application book that Mr Armitage’s counsel did not challenge any of the - except in respects which are now probably not relevant, the prosecution’s description of the facts against your client.

MR HOLT: Your Honour is absolutely right and were this – might I put it – a sort of classical process of sentence appeal to the Court of Appeal, that would be a hurdle I would have to overcome in accordance with longstanding principle. What occurred here of course, though, was that Mr Armitage was resentenced in the Court of Appeal against a very clear submission that to do so on this factual basis would be an error of law. So, I accept that as part of the procedural history, but in our submission the error in the Court of Appeal was not in the face of any concession by counsel to that effect because the matter was being put very clearly as a point of appeal.

I am sorry, Justice Keane, I am not sure that I completely answered your Honour’s question previously.

KEANE J: You made a concession that the common purpose was to assault Mr Barker by the infliction of pain and in paragraph [64](c) it is expressed as a finding, or a recital of a finding, that Mr Barker was unlawfully killed by an injury or injuries caused by the mistreatment and violence inflicted on him. You are not trying to resile from either your concession or dispute the accuracy of what is in [64](c), are you?

MR HOLT: Can I will deal with both in turn? I do not, of course, seek to resile from the concession that is recorded in (a) which was only a concession of “by the infliction of pain”. It was not a concession as to the appropriateness of including any of the actual acts which were said to constitute the torture – the use of honey on genitals and those sorts of things ‑which were the matters ultimately that are, in our submission, referred to below.

As we have said in the outline, these matters at (b) through (e), to the extent that they are said to flow from what Justice McMurdo found, were not findings of Justice McMurdo. So, I do not dispute they are an accurate representation of his Honour’s summary of the evidence in the first appeal, but certainly they were not findings for the purpose of sentencing, that his Honour admitted for that very reason. That is part of the error.

But, in addition, these matters, to the extent that they refer to mistreatment, violence, inhumane conditions, are necessarily references to the very matters that were the particulars of the torture charge, none of which were ever conceded to have been part of the plan nor the causative matters that led to death, because the causative matters that led to death were unknown.

With those qualifications, your Honour, that really in fact in many ways highlights the very problem that happened here, which was that, in a case where there was an acceptance that there was really no evidence as to how the person died at all – and so one was drawing inferences in almost an entire vacuum ‑ it was substituted with very particular allegations of torture, and they filled the gap, and unquestionably must have resulted in a higher sentence than the finding of a serious violent offender declaration because otherwise there would have been no basis to do so.

It had a genuine effect, but in circumstances where the acts that underlay them were withdrawn by the Crown and were never put at any trials or any appeal as being actually a part of the intention when the intention required for section 8 was formed, which as the Court will well know, is the point at which the probable consequences shift lies.

If I can put it as simply as I can, for my purposes, in our respectful submission what one cannot do, consistent with the De Simoni principle, in a criminal enterprise case, is to say that a person’s sentence can be aggravated by virtue of other offences that were said to have been committed along the way, in prosecution of the common purpose, when those have not been charged unless they are actually a part, truly legally a part, of the charge that the person has been convicted of, here manslaughter. In our respectful submission, it is clear that that is not so. We have also noted, your Honours, that the state of the ‑ ‑ ‑

KEANE J: Mr Holt, what you say seems to invite the query as to whether you are really disputing your client’s guilt of manslaughter.

MR HOLT: Your Honour, the difficulty that we have of course is that the manslaughter verdict was substituted. So, we are left with the substitution and then the factual basis for the substitution flows of course from factual findings made on sentence which Justice McMurdo did not make. But, of course, I cannot make a submission that says he should have been sentenced on the basis that he did not commit manslaughter.

The sentencing needed to proceed on the basis that the plan was to assault.....concession added, to and for the purpose of inflicting pain to get information – and that in some way unknown – but in a way that the Court of Appeal has held was open to the jury, because it did so in the first appeal – meant that death was necessarily unlawfully caused.

KEANE J: But you seem to be saying that the sentence could not proceed on the footing that the acts that inflicted pain contributed to the death of the deceased.

MR HOLT: No, your Honour, what could not be done was that the acts that underpinned the torture charge – and necessarily on the face of it amounted to torture – caused death, because no one ever suggested that they could – those concessions were made by the Crown repetitively at trial and so on – and also, that those matters (a) were never said to be causative – whatever was causative was unknown – but the essence of the first appeal decision was – contrary to our submissions – that they were sufficient to allow inference that it was by an unlawful act of some sort. There were.....in the submissions in an associated judgment of one of the co‑offenders in the Court of Appeal that it might have been reckless indifference or something of that kind that caused death. So, there was a real lacuna here ‑ ‑ ‑

KEANE J: But it is not a case where the plan – the plan was not to treat him with reckless indifference.

MR HOLT: No, the plan was to assault.

KEANE J: The plan was not to drive him into the desert and leave him there. There is just an air of unreality about all this.

MR HOLT: As I have said before I think, my only response to that, Justice Keane, can be that there is always an air of unreality about the
application of the De Simoni principle. Had the Crown charged torture, then he could have been convicted and sentenced – he could have been.....he could have been sentenced for torture. What was left was the plan as alleged by the Crown, which was to assault, then a finding that the jury would necessarily have found beyond reasonable doubt when it convicted of murder that it was done – that that occurred unlawfully, albeit that nothing really could be said about what occurred in the meantime.

Now that was a position contrary to the submissions that we made in the first appeal, but it was the legal framework we were left with in those circumstances. But it did not permit that gap to be filled in breach of the De Simoni principle with the error, in our submission, that is found at [64].

We had noted, your Honours, in the outline what seems to be a relatively unsatisfactory state of the law as between intermediate appellate courts in Queensland, New South Wales and Victoria on how the De Simoni principle works. I cannot contend that those issues precisely arise in this case, but they are part of the matrix that, in our submission, would call for a level of clarification and make this a suitable vehicle as a matter of principle.

Unless I can assist the Court, those are our submissions.

KEANE J: Thanks, Mr Holt. Yes, Mr Heaton.

MR HEATON: Your Honours, our response can be fairly shortly put. Can I address the facts for sentence point firstly, though? By the time Justice Flanagan came to exercise the sentencing discretion following the appeal in 2021, there had been broad agreement across all of the parties as to what the appropriate factual basis for the sentencing should be. So, whilst it might be true to say that, strictly speaking, the articulations of Justice McMurdo in the first appeal were not in fact findings of fact, by the time it came on for sentence before Justice Jackson there was agreement at the Bar table, and he reflects that in the sentencing remarks – and that is at page 17 of the application book – there was agreement at the Bar table and he accepted that same proposition, those factual articulations, as being the basis upon which he would proceed to sentence.

He went so far as to say that any view that he might have had which was inconsistent with those articulations by Justice McMurdo he would disregard, and he invited counsel to make any submissions about other facts that they wanted to be essentially found, and throughout the course of his sentencing remarks he essentially identified that there were no other facts. So, the agreement by defence counsel as to what those facts were that are referred to in the judgment of the Court of Appeal do have relevance to the ultimate exercise of the sentencing discretion by the Court of Appeal, because by that stage those facts were agreed.

Whilst the original liability for the offence of murder was disputed, and the matter went to trial, the verdict of manslaughter was substituted by the Court of Appeal, and the factual basis upon which the defendants – but for these purposes, Stephen Armitage, was to be sentenced, was the subject of broad agreement.

We say then in relation to the De Simoni point, there is no controversy about the principle, and what is said to be controversial in this case is really the application of it to the factual circumstances here. But, in our respectful submission, properly understood, the circumstances that were relied upon to sentence Stephen Armitage for the offence of manslaughter were those circumstances which were identified to be part of the offence of manslaughter that he was convicted of.

The passage at [64] of the judgment, that is, paragraph [64] of the decision of the Court of Appeal in 2021 – so this is at page 86 of the application book – sets out the factual – in somewhat bland terms, and it is to be noted in this context that much of the detail and the colour of the events that had taken place is absent from that broad articulation of the factual circumstances that the court then found to be relevant for the exercise of the sentencing discretion.

It is also important to note that what is described as a summary at paragraph [64](a) through to (e) refers back to paragraphs [47] to [49], which is at page 80 of the application book, in which Justice Flanagan sets out some of the factual matters, again in broad terms. It is also important to note that Justice Flanagan recognised that the De Simoni principle needed to be kept in mind, and was conscious then of not infringing that principle in relation to the circumstances of the offence, but what ‑ ‑ ‑

GORDON J: Mr Heaton, can I ask one further question, while you have us on page 80, and it is really in response to the question I asked Mr Holt?

MR HEATON: Yes.

GORDON J: In paragraphs [49] and [50], Justice Flanagan records that there was no complaint made by counsel for Mr Armitage that they could not take into account the particulars of, in a sense, the torture count – the particulars being the acts themselves in relation to the sentencing, being those things which were consistent with the Crown’s submissions on sentence. As I said, I think I took him back to pages 25 and 26 of the application book where those qualifications upon the facts upon which the sentence was to be addressed were set out. Is that right? That is the position that was adopted?

MR HEATON: Yes. That is right. Indeed, in paragraph [50], it goes on over the page at 81 and sets out the factual matters that were advanced – that were accepted by Mr Armitage’s counsel at sentence. That is not to say, though, that we certainly recognise that this was a separate exercise of the sentencing discretion. Indeed, it can be properly concluded that in sentencing, Justice Flanagan’s consideration of the circumstances was more confined and is reflected in paragraph [60] and informed by [47] and [48]. Indeed, in then proceeding to sentence, he makes reference to those circumstances he set out in paragraph [64] of the judgment.

We say, in response, that those factual circumstances were the necessary elements of the offence of manslaughter that Stephen Armitage had been convicted of. To essentially deny those antecedent circumstances – expressed in that broad way without reference to any particular act or particular thing done by any person – was an appropriate basis upon which to frame the circumstances of the offence of manslaughter that he was to be sentenced for.

It is to be, I guess, also, recognised that the word “torture” is a word of English – an English word – and whilst we as lawyers have come to know it as an offence, just because conduct is described as being “torturous” does not necessarily imply that it is a reference to the offence which, as your Honour Justice Steward recognised earlier, carries a mental element of a deliberate infliction of severe pain and suffering before the offence of torture is made out.

So, these factual circumstances, whilst they may go to some extent in support of an offence of torture should the Crown have chosen to persist with it, just because there might be some blurring of the relevance of the circumstances does not deny those facts as being also relevant to the offence of manslaughter. Indeed, we say in response that the exercise that Justice Flanagan undertook was to identify the broad factual matters relevant to inform the nature of the offence and therefore the appropriate penalty to be imposed.

When properly understood, those circumstances, those factual circumstances, are relevant to the offence of manslaughter perhaps in two ways, or at least two ways. Firstly, those circumstances inform the scope of unlawful purpose that is relied upon then to.....consequently unlawful purpose.

KEANE J: Mr Heaton, we lost you there for the last 20 seconds. Could you repeat yourself, please?

MR HEATON: Yes. It is important to appreciate that the circumstances of the – or the antecedent conduct is relevant to the offence of manslaughter on two bases, perhaps. Firstly, it is relevant to inform the scope of the common unlawful purpose from which it is then said an unlawful killing was a probable consequence. So, in order to understand whether or not an unlawful killing is a probable consequence, it is necessary for a fact finder to appreciate what the scope of the unlawful plan was.

Once criminal liability is attributed to the defendant, it is then necessary to have regard to that antecedent conduct and the scope of that unlawful plan in order to determine the level of culpability which informs then the appropriate penalty. Indeed, we say in reply that that is precisely the task that was undertaken by Justice Flanagan on behalf of the court in this case. Those are our submissions. Thank you, your Honours.

KEANE J: Thanks, Mr Heaton. Mr Holt, anything in reply?

MR HOLT: May it please the Court. Yes, can I deal first with the submissions as to the suggestion that there was agreement as to facts, to put that into its proper context. Of course, it is absolutely the case that the concession was made at sentencing below as is being described in terms of the basis upon which Justice Jackson proceeded. This, of course, was not sentencing on a guilty plea. There was no suggestion ever that this was an acceptance that that was what occurred. It was a legal submission that the court should proceed on the basis of what were thought then to be findings made by Justice McMurdo.

The matter is made clear, in our submission, at record book 81, paragraph [51], where Justice Flanagan makes clear that the court is not proceeding on the basis that Mr Armitage would be bound by the conduct of his case at first instance because the sentence is occurring fresh and because of the submission that we made in the Court of Appeal that to do so would constitute an error of law, indeed, the very error that is being made here.

So, in our respectful submission, the problem which underpinned Justice Jackson’s approach to sentencing was that it proceeded on the basis that Justice McMurdo had made findings for the purpose of the substituted manslaughter charge, which his Honour plainly had not; that is why it was remitted. Matters proceeded on a flawed basis in that way, and then continued to do so in the Court of Appeal.

That then takes us, in our submission, to the approach to section 8, which our learned friend just articulated, and it really does highlight why this raises a problem with De Simoni. Our friend makes the obvious and logical point that evidence of what occurred in the course of the detention of
the deceased would be relevant at trial to various matters that the jury had to determine. But the fact something is relevant and admissible as evidence does not mean that it is available, in breach of the De Simoni principle, to increase the punishment that a person receives. It does not, as our friend suggests, mean that all circumstances can be taken into account once criminal liability is established. That is ordinarily true, but the principle that it runs into and gives way to is the De Simoni principle, which, as we respectfully submit here, as was made clear – I am sorry, have I lost the Court for a moment?

KEANE J: There is some sort of freezing going on, but we can hear you.

MR HOLT: In that case, if the Court pleases, I will continue notwithstanding the freezing?

KEANE J: Please. Please do.

MR HOLT: Thank you. In our respectful submission, when one looks at paragraph [50], goes on then to paragraphs [51] and [52] of the judgment below at page 82 of the record book, it sets out there what the particulars of torture were and, respectfully, it cannot be suggested that they were ever put as being part of the plan or part of the causation of manslaughter. In those circumstances, they were what De Simoni compels not be taken into account, matters which constituted a separate offence. May it please the Court.

KEANE J: The Court will adjourn briefly to consider the course it will take in this matter. Adjourn the Court, please.

AT 12.04 PM SHORT ADJOURNMENT

UPON RESUMING AT 12.09 PM:

KEANE J: The appeal foreshadowed by this application for special leave would not raise an issue of principle sufficient to warrant the grant of special leave to appeal, nor would the appeal enjoy sufficient prospects of success to warrant the grant of special leave. In addition, there is no reason to think that the sentencing of the applicant involved a miscarriage of justice. The application is dismissed.

Adjourn the Court, please.

AT 12.09 PM THE MATTER WAS CONCLUDED