Black v The Queen

[1993] HCATrans 240

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IN THE HIGH COURT OF AUSTRALIA

Office of the Registry

Adelaide No A30 of 1992

B e t w e e n -

JOHN RAYMOND BLACK

Applicant

and

THE QUEEN

Respondent

Application for special leave

to appeal

BRENNAN J GAUDRON J McHUGH J

TRANSCRIPT OF PROCEEDINGS

Black.JR 1 25/8/93

FROM ADELAIDE BY VIDEO LINK TO CANBERRA

ON WEDNESDAY, 25 AUGUST 1993, AT 2.01 PM

Copyright in the High Court of Australia

MR D.H. PEEK:  May it please the Court, I appear with my

learned friend, MS C.M. O'CONNOR, for the

applicant. (instructed by J.M. Hartnett, Director,

Legal Services Commission (South Australia))

MR J.J. DOYLE, QC: Solicitor-General for South Australia: I

appear with my learned friend, MS J.M. RUSALEN, for

the respondent. (instructed by P.J.L. Rofe, QC,

Director of Public Prosecutions (South Australia))

MR PEEK:  The matters raising the question of special leave

really start to be referred to, I think, at page 26

of the application book in the applicant's outline

of argument. I understand that the Court would

have read the factual matters and the parts of that

document leading up to that point.

BRENNAN J: Yes.

MR PEEK: At 2.2, at page 26 of the application book, the

more recent authorities in England are referred to

and particularly Beckford in the Privy Council

which was, of course, a decision not available to

this Court when Zecevic was decided. So that

conflict now between the law in England and the law

in Australia is an important matter, particularly

in the light of the fact that in Zecevic it was

thought desirable for there to be uniformity and

that, of course, it was thought that Palmer, to an
extent or, indeed, entirely was being applied so

that the law would be the same as in Palmer.

BRENNAN J:  What is the divergence between Beckford and

Zecevic?

MR PEEK:  The divergence in a sentence, Your Honour, is that

Beckford allows an accused person to put forward a

subjective mistake as to the material facts. One

then assesses the reasonableness of his conduct in

the light of the facts as he honestly believed them

to be. But Zecevic, at least as it has been

interpreted, requires at all stages his belief and

actions to be not only subjectively genuine but

also objectively reasonable. So there is very much

a divergence between Beckford and Zecevic, if it

please the Court.

BRENNAN J:	On the question of whether or not the mistake should be reasonable?
MR PEEK:	On the question of whether it is enough for a man

to assert:  "I had a subjective, honest belief that

I had to act in self-defence". In Zecevic, at

least as it has been interpreted, it is said that

there must not only be that, but there is a second

test, namely, that he must have had that belief on

Black.JR 2 25/8/93

reasonable grounds. Beckford does not require that

second requirement.

BRENNAN J: Well, Zecevic says if he had that belief and

there were reasonable grounds for it, or if the

jury is left in reasonable doubt about the matter,

he is entitled to be acquitted. That is the

definition of the law in Zecevic.

MR PEEK:	Yes.
BRENNAN J:	Why should this Court grant special leave to reconsider that?

MR PEEK: Well, there were a number of strands to the

special leave point. That is the first, namely,

that the law now is in conflict with that in

England, as mentioned in Beckford, and that

additionally what we really say in relation to the

law as it presently stands in Australia under

Zecevic is that the subjective and the objective aspects of self-defence and the directions required in order properly to explain to the jury that

relationship, afford a very real ground of special

leave in this particular case because, in this case

before the Court, it is submitted that really the

way that the case was left to the jury was

tantamount to that appropriate to a civil or a

negligence case. Namely, it was really put to the

jury, not so much as a focal point: what did this

man do, did he do it in self defence, but rather:

did he behave reasonably, did he have reasonable

grounds for doing what he did?

In the course of exploring that, there was a

great deal of cross-examination by the

Crown prosecutor directed to the applicant, who

gave evidence of course, namely, well, could you

not have, for example, pointed the rifle at the man

and required him or told him to ring the police.

Now, my client's response to that - and you

only have a small portion of that cross-examination	before you, but it is typical - was that, "I was in
extreme pain and shock, having just been shot by a
shotgun as the Court knows; I was fearing for my
life and that I was about to be killed, and it
simply did not occur to me to direct him to call
the police. And nor would it occur to just about
anyone in those circumstances, I would suggest. My
client put forward the view that, "I was about to
black out; I had to put these men on an even footing; the only thing I could think to do, in the
circumstances as they were, was to shoot to
disable". And this is what he did.

Black.JR 25/8/93

Now, of course, he was acquitted of two of the

three counts against him, and so it was that the

Court of Appeal appreciated and the Crown concedes

in their affidavit before this Court, that the

matter had to be approached on the basis of the

facts as he had stated them to be, namely that he

was about to go to the police and reveal certain

aspects of criminal conduct by these people. On

this night, the Court will be aware, he was about

to go out spotlighting rabbits and there was a

.22 rifle in the area, that he was then, without

warning, shot from the rear and to the side,

causing significant damage to him, from which
obviously he subsequently recovered, but, in those

circumstances, he considered that he was about to

be killed because of that and the other matters

that had preceded that shooting; that it was in

those circumstances that he fired certain shots and

was acquitted in relation to two of the three.

In relation to the man in relation to which he

was convicted, as I say, the Crown put very

strenuously ex post facto analysis of what the

theoretical reasonable man in that position could

have done. That really does bring one to the heart

of the special leave point, if it please the Court,

and it is that there is a real difference between

the test postulating what would the reasonable man

have done on the one hand and, on the other, did

this man genuinely believe that he had to do

something and were there reasonable grounds for

that belief?

Of course, the reasonable man would of course

think of all these ex post facto things on the

spot, but the genuine man, as it were, might well

make a mistake. In other words, three different

people in the same situation might act in three different ways. Each can point to a reasonable

ground for belief or for doing what he did, and yet

it would not, of course, be held up to the test of

the reasonable man.

BRENNAN J:  Mr Peek, where is the misdirection of which you

complain, if that is your complaint?

MR PEEK: It is in the application book. Perhaps the heart

of it is at 73, but can I say, of course, that this
is against the background of the way that the
applicant was cross-examined and the way that the

Crown put the case to the jury. Against that

background, His Honour at page 73 of the

application book, line 8, said:

In the context of this trial, a

consideration relating to this matter is, was

there something else which the accused could

Black.JR 4 25/8/93

have done if he did genuinely perceive a

threat to his life or safety?

Now, you have heard what Mr Brebner -

and that was, of course, the prosecutor, who put

these ex post facto alternatives and had

cross-examined the applicant on it -

and Mr Algie -

for the accused -

have put to you about that matter and you must have regard to what they have said. Could the accused have walked or driven away? Could he

have done something else other than shoot the

men?

The last matter I mention in the context

of whether the belief of the accused was based

on reasonable grounds -

so that is what is being emphasized there:

is that the force used in the face of the

threat or attack must not be out of all

proportion to the necessity of the occasion.

Now, that last bit of that sentence that I have

just read links in with something that follows on,

because His Honour goes on:

If the response of an accused goes beyond

what he believed to be necessary to defend

himself, or -

and here is the link:

if there was no other reasonable grounds for a

belief on his part that the actual force was

necessary in defence of himself, then the

occasion will not have been one which will

support the notion of self-defence as

permitted by law.

So that you have this matter of proportionality

being linked to the question of reasonable grounds for belief, and very much put apart from or, as it were, divorced from what we say is the central

question, namely, did this man act in self-defence?

Now, in order to, as it were, bring the jury

back to what should have been the focal point of

their considerations, we say that it was necessary
for there to be that bridge, as it is referred to

in the case of Shannon, between the objective

Black.JR 25/8/93

aspect and the subjective aspect of self-defence.

I wonder if I can just simply refer the Court to

two very brief passages in Shannon because - - -

BRENNAN J: Well, you have omitted in your citation, thus

far, the test which His Honour put to the jury at

page 73, lines 2 to 7. I mean, that seems to be

the governing test which His Honour directed the

jury's attention to. Do you find any ground of

complaint in relation to the enunciation of that

test?

MR PEEK:  The complaint is that, in order properly to relate

a governing test to the facts of this case and the

way that the case was fought, it was very necessary

to bring the jury back to the way in which they

should approach their task concerning the

subjective and the objective aspects. In other

words, for example, it was necessary, if you are

going to direct in that way, to direct the jury

along the lines of Palmer, for example, as applied
or adopted in Zecevic, namely that if you do find
that the applicant genuinely believed it was

necessary to do what he did, then that would be

most potent evidence that he had reasonable grounds

for so thinking.

In other words, as in Shannon's case, it

really does form that essential bridge, because the

way that the case was left to the jury in this

case, very much the way it was put by the Crown,

and indeed put by His Honour, is that there are two

rather separate things: first of all, you have to

have the genuine belief by the applicant, and if

you do not have that, then of course you do not

have self-defence; but secondly, and additionally, you have to have reasonable grounds. But, the way that the reasonable grounds was looked at was, as I

say, by way of the mechanism, what other things can

we now postulate that the applicant could have done

that he did not do, and these various things - - -

GAUDRON J:  I do not read it that way, Mr Peek. I read

those questions as going to whether he believed it

was necessary; not to the grounds.

MR PEEK:  Your Honour, I would have thought the jury would

take it in relation to both tests. Certainly I

agree with Your Honour, that it would be taken in

relation to the first test, but given that we do

have those acquittals on the two counts, it

certainly appears that the jury were prepared to

believe the applicant, his story being, of course,

diametrically opposed to that of the complainants

who, Your Honour knows, asserted that in fact they

were shot first.

Black.JR 6 25/8/93

So that, yes, it would have been taken in

relation to that, but the danger is that, having

got over that hurdle, the applicant founders at the

second because the jury look at it from the point

of view of the reasonable test, and certainly they

were strongly invited to do by the Crown.

So that is the danger. One really, in my

submission, has to tell the jury for a balanced

summing up or approach to self-defence that it is

not a question of what the reasonable man would
necessarily have done, but can the Crown eradicate

beyond reasonable doubt the ability of the
applicant to point to a reasonable ground for his

belief. When he wishes to do that, then he should have the assistance of the fact that the jury have found that the man on the spot, subject to the

pressures and the exigencies, the fear and the

panic that he was, genuinely believed it to be

necessary.

It is against that background that you should have, in my respectful submission, the objective

component analysed. That just was not done. The

jury were clearly troubled by this because, of

course, they did ask for redirections but

His Honour simply basically just repeated what he

had already said. His Honour did not put to the

jury that passage from Zecevic which emphasizes

that one should not weigh too nicely the reaction

of a man in difficult circumstances, and the Court

will know the passage I mean. That, too, was

necessary as well as the Palmer-type direction to present the balanced summing up in a case of this

sort.

McHUGH J: 

The Chief Justice's answer to that was that the

incident occurred over a significant period of time
and the applicant was in control of the situation;

therefore, it was not necessary to give the Zecevic

rider.

MR PEEK:  I understand that, Your Honour. We would take

respectful issue with that. It really was not all

that long and for the length of time involved, my

client emphasized the pain and the confusion and

the panic under which he was operating at that
time. Bearing that in mind, it is my respectful

submission that his position should be clearly

contrasted with that of someone who has not just

been shot with a shotgun and is about to faint.	It
was a situation in which he was doing his best to
act reasonably and clearly shot to disable. There
is a clear decision on his part to shoot in the shoulder rather than shoot in a more dangerous area; quite clearly so.

Black.JR 25/8/93

So that what he is saying and what he told the jury was that that was the only course. Given that

he had fired warning shots and that the people

would not get on the floor in response to warning

shots, given that he had tried everything that he

could then think of in the exigencies of the

circumstances, he thought that he needed to do what

he did do.

So, in those circumstances, we take issue with

that passage in His Honour's judgment. At about

that point in His Honour's judgment, at page 111 of

the application book, line 13, we would say that
this is a wrong approach by the Court of Appeal

where His Honour says:

The appellant may have thought that he would

be in danger in attempting to put through a

telephone call without first disabling

Van Roosmalen, but it seems to me, on the

evidence, it was clearly open to the jury to

conclude that any such belief was quite

unreasonable.

And then down the bottom of the page, four lines

from the bottom:

It seems to me that it was quite open to the

jury to take the view that any perception on
the part of the appellant that it was

necessary to shoot Van Roosmalen to avert some

threat to the safety of the appellant was

quite unreasonable in the circumstances of the

case, as described by the appellant in his own

evidence.

Now, in my respectful submission, that really is putting it in a way rather analogous to a tort

test: wWhat would the reasonable man have done?

Rather, we submit, that given the Court says:

The appellant may have thought that he would

be in danger in attempting to put through a

telephone call -

then the only other question on the Zecevic

approach is, may he have a reasonable ground for so

believing? Now, that is to be assessed in the

exigencies of the situation, rather than well after the event in the cold light of a court room, can we

postulate some alternative which he never thought

of at the time, namely, point the gun at

Van Roosmalen and get him to ring the police.

BRENNAN J: In all of this, Mr Peek, you have to come to

terms with the direction that was ultimately given

by the trial judge to the jury. If we turn to

Black.JR 25/8/93

page 73, there is the further direction that was

given at the end of the summing up, pages 95 to 96,

followed by His Honour's question to counsel,
whether they have anything further, counsel answer

in the negative. Where do you find, in the light of that, some ground of complaint with respect to the summing up which justifies the grant of special

leave?

MR PEEK: Well, Your Honour, counsel at the trial was very

concerned about exactly the same matter that I am

presently putting to Your Honour, and that dialogue

begins at page 84 of the application book and goes

for quite some time, and the essential part of that

dialogue is, in fact, reproduced in the applicant's

outline of argument or summary.

BRENNAN J: Well, I understand that, but where is the error

in the summing up, the kind which justifies the

grant of special leave?

MR PEEK:  Your Honour, in many ways it is really, in the

circumstances of this case, non-direction amounting

to a misdirection because, having given this test

in terms of that rather small passage in Zecevic,

but having omitted to give a Palmer-type direction,

which I have already referred to, and having

omitted to give the directions to the heat of the

moment situation, putting those two aside, what

this summing up has done, in the light of the way

that the applicant was cross-examined and the Crown

conducted the case, is to focus imperrnissibly on

the objective aspect and drawing the jury's focus

away from what should be the true question to be

considered.

As I submit, that is really epitomized or

illustrated, for example, in that case of Shannon,

which is on the list and, without reading it, the

approach for which I contend, is referred to at

page 194 of the Criminal Appeal Reports reference,

in which Your Honours will see that counsel for the

appellant there had submitted that the learned

trial judge had overlooked an important sentence in

Palmer, namely, that:

"If a jury thought that in a moment of

unexpected anguish a person attacked had only

done what he honestly and instinctively

thought was necessary, that would be most

potent evidence that only reasonable defensive

action had been taken."

This proposition is, as it were, a bridge

between what is sometimes referred to as "the

objective test," that is what is reasonable

judged from the viewpoint of an outsider

Black.JR 9 25/8/93

looking at a situation quite dispassionately,

and "the subjective test," that is the

viewpoint of the accused himself with the

intellectual capabilities of which he may in

fact be possessed and with all the emotional

strains and stresses to which at the moment he

may be subjected.

The Court goes on to consider that. After

that, if I can take the Court to one other passage

only, later in the judgment at 197, second to last

paragraph there:

But on the issue of self-defence he,

effectively, excluded the state of the
accused's mind. In other words, by leaving

that issue to the jury on the bald basis of

"Did the appellant use more force than was

necessary in the circumstances?," the learned

trial judge may have precluded the jury from

considering the real issue, which, to
paraphrase Lord Morris in Palmer was "Was this
stabbing within the conception of necessary
self-defence judged by the standards of common
sense, bearing in mind the position of the

appellant at the moment of the stabbing, or

was it a case of angry retaliation or pure

aggression on his part."

It is my respectful submission that that really is

the core issue to which the jury needs to be

directed.

BRENNAN J:  But not under Zecevic. Under zecevic there is a

specific criterion of reasonableness that must be

addressed.

MR PEEK:  I do not know that Shannon is necessarily

inconsistent with Zecevic in those passages that I

have put.

BRENNAN J:  I am not suggesting that it necessarily is, what

I am saying is that one cannot postulate the test

for application under Zecevic without reference to

reasonableness.

MR PEEK: Yes, I agree with that, Your Honour, but what I

say is that in considering that reasonableness

aspect one really needs to let the jury know that

there is a very big difference between the

postulated reasonable man who always complies with

a very high standard, even under pressure, on the

one hand, and what is the true Zecevic requirement,

in my submission, namely, that the accused can

point to reasonable grounds for doing what he did.

What I say is that a number of people might behave

differently under a different set of stressors and

Black.JR 10 25/8/93

yet each can point to different reasonable grounds for doing what they did. But if you approach it on

the basis of the perfect reasonable man test, then

you are becoming, if I can put it this way, too

objective. You are stressing the objective too
much, rather at the expense of the subjective. In

the circumstances of this type of case, that

balancing approach was very necessary indeed

because, really, one can only rationalize the

verdicts of the jury on the basis that they have

found against this man on this ex post facto sort

of analysis because, of course, they have acquitted

him in relation to the other two counts for which

he gave, really, the same excuse and the same

reasons for acting in doing as he did.

If I can just go back to the applicant's

summary of argument, and again simply pointing the

Court to the passages, at page 6 of the application

book appears that typical cross-examination which I
have referred to as the ex post facto analysis by

the Crown, and that begins at 1.7 at page 6 and

follows, and of course I do not read that, I simply

point that to the Court, and the applicant's

assertion of the position that it is very difficult

now to talk about what might or might not have been

alternatives divorced from the heat of the moment

and the pain that he was suffering.

That the contention by counsel then appearing,

that in fact His Honour's summing up had not put
the position correctly, because the fear was, as at

the bottom of page 7:

that the jury might be left with the

impression that if there are some things that

he could have done and did not do, whether he

thought of it or not, then unfortunately self-

defence is not open to him.

His Honour was of the view that self-defence was not open to an accused person in a situation where

one can postulate that he could have done something

else and simply did not.

GAUDRON J: That was not the basis on which he left it to

the jury. Whatever His Honour's views were, that

was not the basis on which it went.

MR PEEK:  I understand what Your Honour says, in the sense

that it is difficult for me to point to a specific

passage saying that, but what I am putting to

Your Honour is that the way that it was left, very

much against the background of the way that the

case was conducted, really left that - - -

Black.JR 11 25/8/93

GAUDRON J: Including defence counsel's addresses. The jury

was specifically invited to consider them.

MR PEEK: That is right, Your Honour, but one - - -

GAUDRON J:  In the course of which I assume he said much the

same sort of things as you have been putting in the

course of your argument today.

MR PEEK:  I do not know. I have not got a transcript and I

was not there, but I understand what Your Honour is

saying, but the danger is, of course, that the

Crown, as it were, hammered the applicant in cross-

examination over all of these matters, and that

approach that was being adumbrated by the

prosecution was left as a quite possible approach

consistent with the trial judge's directions. In

those circumstances, it needed to be corrected or

balanced, and that is my submission. And, of

course, as I say, in the absence of those other

directions referred to at 1.12 on page 8 is to:

approach its task in a practical manner and

without undue nicety -

and so forth. The other special leave point is, of

course, the question of whether section 15 of the

Criminal Law Consolidation Act, the amendment

section, should have applied to this trial.

The chronology, of course, is that the events

occurred at a time when South Australia was
governed by the law in Zecevic. Subsequent to

that, section 15 of the Criminal Law Consolidation

Act was enacted, so as to now bring into

South Australia a test much more consonant with

that of the English approach, and in which the pure

subjective honest belief is sufficient.

Now, I can put this submission very shortly

and succinctly and it is this: that in Zecevic the

Court recognized that the law was being changed

certain people waiting trial, indeed, including the	from that which had previously applied and that
appellant in Zecevic would, as a consequence of the change bought about by Zecevic, now face trial under a different regime, if I can put it that way, a different type of defence availability than
hitherto, but the Court considered that that was
not sufficient to dissuade them from taking the
view that they did in Zecevic.
It is my simple submission that if that is the case then so hereto, the law having been changed by
statute rather than by this Court, the accused should have had, as it were in this case, the
benefit of that change in the law. Now - - -

Black.JR 12 25/8/93

MCHUGH J: Is not that the distinction that the cases make,

that cases where statutes have been held to apply

retrospectively, in the criminal area, have been

cases where the provisions of the statute would be

disadvantageous to the affected party, rather than

beneficial to that person?

MR PEEK: Well, of course here, it was - if I can turn it

around - far more beneficial for the accused to be

tried under the regime that was in place at the

time of his trial, namely that - - -

McHUGH J: Well, I appreciate that, but no case has gone so

far, has it, to hold in those circumstances that

merely because it is beneficial one ought to - - -

MR PEEK:  I agree with that; it is very hard indeed to find

a case in point on this particular situation that

we have here, and that is of course partly the

reason I say that it is a special leave point.

BRENNAN J: But in theory, Mr Peek, if there were criminal

liability attaching at the time of the events which
are charged in the indictment, how is it that that

criminal liability disappears on enactment of

section 15?

MR PEEK:  Your Honour, I would simply answer that in this

direct way, that if at the time of the commission

of the shooting by the appellant Zecevic, for
example, an accused had a certain defence -

excessive self-defence or whatever it might be - my

question would be, with respect: why should that

defence, as it were, disappear as a result of the

decision in Zecevic when that person - - -

BRENNAN J: Perhaps the answer is that the judicial process

is declaratory of the law, at least in theory.

MR PEEK:  I understand that, Your Honour, but it just is my

submission that the Court in Zecevic really did

recognize that it was not acting in a declaratory

way but rather really changing for reasons more of	a policy nature, namely the inability of juries to	follow the pattern of directions previously
required. It is my respectful submission that the court really was saying quite plainly that this was
not a declaratory exercise. If I am right on that,
then it seems difficult to distinguish that sort of
approach from the legislative change. If that is
right, then quite clearly this whole trial has
miscarried. That is the problem, and it is my
submission that it is a real and important problem
in this case.

GAUDRON J: What does the legislation say about operative

date, if anything?

Black.JR 13 25/8/93

MR PEEK:  No, it gives us no assistance on that.

McHUGH J: Neither do the parliamentary debates, do they?

MR PEEK: That I do not know, Your Honour.

McHUGH J: They do not appear to.

MR PEEK:  No.

So it really is a question that, I submit, should be considered by this Court.

McHUGH J:  You would also have to consider the effect of

Acts the contrary intention appears in any Act, then

section 16 of the South Australian

enactment does not affect any duty, obligation,

liability or burden, does it?

MR PEEK:  I really wonder whether that applies to the type

of situation we have here, Your Honour, because

here we are assessing whether a man acted in

self-defence or, more particularly, whether the

Crown can prove that he did not. I really wonder

whether that section is directed to this sort of

situation. My submission is that it is not.

McHUGH J: Self-defence is not a defence that arises at the

trial, is it? It is one of the elements of the

offence of murder.	A killing in self-defence is
not murder.

MR PEEK: Quite so, but until the jury pass upon that, you

see one count, for example, at the committal level,
take that into account and adjudicate upon that.

It is the very essence of the jury system that

until the jury passes upon that, on the law and on

the directions that they are given, one cannot

really say. I take Your Honour's point but,

really, it is a question of determining it at the

time of trial, and we say that that being so, the

regime then in force should be the law that is

given to the jury.

Well I think that the matters that I rely on

are set out in the documents that you have and what

I have put are the special leave points upon which

we rely in this application. If it please the

Court.

BRENNAN J:  Thank you, Mr Peek. We need not trouble you,

Mr Solicitor.

MR DOYLE: If the Court pleases.

BRENNAN J:  No ground is shown to warrant a reconsideration

by this Court of its decision in Zecevic v Director

of Public Prosecutions (Viet.) (1987)

Black.JR 14 25/8/93

162 C.L.R 645. The direction to the jury conformed

with the law stated in Zecevic at pages 661 and

662.      The direction sufficiently invited the jury

to consider the exigencies of the situation in

which the appellant found himself.

Accordingly, there is no warrant for the

granting of special leave to appeal on that ground.

Section 15 of the Criminal Law Consolidation

Act 1935 (S.A.) is not an Act with retrospective

effect. On long standing principle, it had no

application to the present case. Accordingly,

special leave will be refused.

AT 2.40 PM THE MATTER WAS ADJOURNED SINE DIE

Black.JR 15 25/8/93