Dal Cortivo v The Queen
[2010] ACTCA 14
•9 August 2010
LINCOLN DAL CORTIVO v THE QUEEN
[2010] ACTCA 14 (9 August 2010)
APPEAL – appeal against conviction and sentence – verdict unsafe and unsatisfactory – appeal upheld – conviction and sentence set aside – verdict of acquittal substituted
CRIMINAL LAW – assault occasioning actual bodily harm – self-defence – intoxication – whether directions to jury likely to mislead – belief aspect of self defence – reasonable grounds aspect of self defence – proper test to apply – test in Zecevic v Director of Public Prosecutions(Vict.) (1987) 162 CLR 645 – subject to ss 30-34 of the Criminal Code (ACT) 2002 – assessing existence of reasonable grounds for belief of accused – objective test – perception of those grounds – question of fact – direction to jury concerning interplay of self-defence and intoxication misleading
Criminal Code 2002 (ACT), s 10, s 15, ss 30-34
Zecevic v Director of Public Prosecutions (Vict.) (1987) 162 CLR 645
R v Conlon (1993) 69 A CrimR 92
JA v Goldsmith [2004] ACTSC 79 (2 September 2004)
R v O’Meara [2009] ACTSC 122 (18 September 2009)
ON APPEAL FROM A SINGLE JUDGE OF THE SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
No. ACTCA 18 - 2009
No. SCC 212 of 2008
No. SCC 239 of 2008
Judges: Higgins CJ, Gray P and Ryan J
Court of Appeal of the Australian Capital Territory
Date: 9 August 2010
IN THE SUPREME COURT OF THE ) No. ACTCA 18 - 2009
) No. SCC 212 of 2008
AUSTRALIAN CAPITAL TERRITORY ) No. SCC 239 of 2008
)
COURT OF APPEAL )
ON APPEAL FROM A SINGLE JUDGE OF THE SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
BETWEEN:LINCOLN DAL CORTIVO
Appellant
AND:THE QUEEN
Respondent
ORDER
Judges: Higgins CJ, Gray P and Ryan J
Date: 9 August 2010
Place: Canberra
THE COURT ORDERS THAT:
The conviction and sentence by Penfold J on 29 June 2009 be set aside.
A verdict of acquittal be entered.
IN THE SUPREME COURT OF THE ) No. ACTCA 18 - 2009
) No. SCC 212 of 2008
AUSTRALIAN CAPITAL TERRITORY ) No. SCC 239 of 2008
)
COURT OF APPEAL )
ON APPEAL FROM A SINGLE JUDGE OF THE SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
BETWEEN:LINCOLN DAL CORTIVO
Appellant
AND:THE QUEEN
Respondent
Judges: Higgins CJ, Gray P and Ryan J
Date: 9 August 2010
Place: Canberra
REASONS FOR JUDGMENT
THE COURT:
On 29 June 2009, the appellant was convicted following a jury verdict that he was guilty of assaulting Eugene Haigh and thereby occasioning him actual bodily harm. He was sentenced to enter into an 18 month good behaviour order and pay $2,000 to a named charity.
By notice of appeal dated 24 July 2009 the appellant complained of directions given by the trial judge to the jury:
(a) ... in relation to the belief aspect of self defence were likely to mislead the jury as to the proper test to apply; and
(b) ... as to the interplay of intoxication and self defence were likely to mislead the jury as to the proper test to apply.
The factual allegations related to an event occurring on 6 November 2007, Melbourne Cup Day, at Canberra Racecourse, Randwick Road, Lyneham.
The complainant, Mr Haigh, and two companions were leaving the racecourse. They came across two men, one the accused, the other Mr Menagazzo, apparently arguing and pushing each other aggressively.
As the two groups came close to each other, the complainant said words to the effect of, “Why didn’t you throw a punch?”
The accused, who was heavily intoxicated, took a few steps towards the complainant and struck him once in the face with his closed fist. The complainant suffered a broken jaw as a result.
It was the evidence of the accused that he heard the complainant say, “Why don’t you throw a punch mate? Fucking have a go.”
Believing that the complainant was about to fight him, the accused said that he struck the complainant to avoid being struck himself. However, his recollection was somewhat piecemeal due to his intoxication. He did not recall the punch which apparently he threw. However, he assumed that he was acting in self-defence from the events which he did remember.
Her Honour directed the jury as to recklessly inflicting grievous bodily harm and assault occasioning actual bodily harm. The jury returned a verdict of acquittal on the first matter so it is only her Honour’s directions on the latter count that call for scrutiny.
As to that count her Honour told the jury:
There needs to be a striking, touching or application of force by the accused to (sic) the complainant. That conduct needs to have been intentional or reckless in the sense that the accused realised that the complainant might be subject to immediate and unlawful violence, however slight, as a result of what the accused was about to do, but the accused took the risk that this might happen; again, the conduct has to be without lawful excuse.
And finally in this case the assault has to have occasioned actual bodily harm to the complainant. Bodily harm has its ordinary meaning, that is any hurt or injury likely to interfere with the health and comfort of the victim. The hurt or injury need not be permanent, but it must be more than trifling and transient.
No exception is taken to this formulation of the elements of the offence. The real issue was whether the force used was “without lawful excuse”. That is, whether the force used was “unlawful”. For that reason, it is accepted that the prosecution had the onus of proving that the force applied by the accused was “unlawful”.
As her Honour put it to the jury:
Here, on the evidence given by Mr Dal Cortivo, an issue arises as to whether there was a necessity for him to act in self-defence and that, of course, would be another lawful excuse.
Remember that it is the prosecution that must persuade you beyond reasonable doubt that what the accused did was without lawful excuse. In this case, now that the issue of self-defence has been raised, it is for the prosecution to establish that Mr Dal Cortivo did not act in self-defence. The test for self-defence is whether the accused believed, on reasonable grounds, that it was necessary in self-defence to do what he did. If he had that belief, and there were reasonable grounds for it, then he is entitled to be acquitted.
Her Honour correctly drew attention to the critical issue being “the circumstances as he perceived them to be at the time of that conduct”. That also applied to the existence of “reasonable grounds”. Those perceptions need to be considered, not with the benefit of hindsight, but in the circumstances of a situation precluding calm reflection.
Thus far the direction is consistent with the decision of the High Court in Zecevic v Director of Public Prosecutions (Vict.) (1987) 162 CLR 645.
It may be that her Honour’s formulation could have been taken to define reasonable grounds for a belief in the necessity to act in self-defence as grounds existing only in the flawed perception of the accused. It is clear that the grounds must actually exist or be objectively so perceived as “reasonable” (see Mason CJ (supra), 652-654, Wilson, Dawson and Toohey JJ, at 661).
In the present case it could not be said that the statement by the complainant could not reasonably be interpreted as an indication of an intention to fight with the accused. Nor could it be said that the striking of one blow was a disproportionate response to that apparent threat. The fact that the complainant had, in fact, no such intention is not material. There was thus no real issue as to the objective presence of reasonable grounds for the appellant to perceive a threat that the complainant might strike him.
However, the real issue with the summing up was raised by the next part of it.
Her Honour said:
The position is complicated somewhat by the law in the ACT about the effects of intoxication. The effect of that law in this case is as follows, in considering whether the prosecution has proved that Mr Dal Cortivo did not believe that it was necessary in self-defence to do what he did, you are entitled to take account of the evidence you have heard about the state of his intoxication at the time of the encounter. However, in considering whether the prosecution has proved that in the particular circumstances of this incident, including Mr Dal Cortivo’s particular vulnerabilities, Mr Dal Cortivo had no reasonable grounds for any belief that he needed to act in self-defence. You must have regard to the standard of a reasonable person who is not intoxicated.
It seems clear that Mr Haigh’s ill-advised comment to the appellant was intended to refer to the apparent altercation between the appellant and his companion, though, as he conceded, it could reasonably have been interpreted as an invitation to the appellant to fight him and, hence, that the complainant might forthwith commence hostilities. As her Honour put it, whether or not intoxication was relevant, the appellant appeared to believe that he had reasonable grounds to strike the complainant in self-defence.
After the jury retired a question was asked by the jury. “May we please have a definition of the term state of mind?”
That question her Honour answered as follows:
... it encompasses for a person, as for instance the accused in this case, what he knew, what he believed, what he thought, what he felt. And I guess, anything else that – any other verb that describes things that happen in one’s mind. All right.
There was a second question, addressed as follows:
Now the second question is slightly more complicated. The way you’ve asked it is, “Under the law, if while intoxicated someone believes he is under threat, is that a lawful excuse that may not apply if the person was sober?” Now I’m not sure that I can answer exactly that question, but what counsel and I have worked through is an answer that picks up, if I can put it this way, the relevance of intoxication or not to the only point in this case, well, that it’s relevant to.
You’ve mentioned lawful excuse and there’s only one lawful excuse that’s been raised in this case and that is, of course, self-defence. Now, I gave you some earlier directions about the test for self-defence and how it has to be proved and in particular, that there are two elements to the defence of self-defence, and that if the Crown is to rule out self-defence, it is the Crown’s responsibility to rule it out once it’s been raised, the Crown has to prove one or other of – or disprove, perhaps, one or other of the two elements.
Now, in order to rule out self-defence, and I’m now going to give you some directions that try to bring in the significance of intoxication slightly more directly perhaps than was in my original directions. In order to rule out self-defence, the Crown has to prove one or other of these things beyond reasonable doubt.
They either have to prove that the accused, even in his intoxicated state, and I suppose what that means is recognising that he was in an intoxicated state and that that would have affected potentially his beliefs, did not believe that it was necessary in self-defence to do what he did. Okay, and I’ll repeat that. The Crown would have to prove beyond reasonable doubt that the accused in his intoxicated state did not believe that it was necessary in self-defence to do what he did. So if the Crown proves that beyond reasonable doubt, that he did not believe it, that will negate the self-defence, defence and the lawful excuse. It will identify that there was no lawful excuse.
Alternatively, the Crown needs to prove beyond reasonable doubt that a reasonable person who was not intoxicated but who was otherwise in the same circumstances as the accused, and that includes being in whatever circumstances of vulnerability the accused might have been in, would not reasonably have believed – that’s the reasonable person who was not intoxicated would not reasonably have believed that he needed to act in self-defence.
And I’ll repeat that one again. The Crown needs to prove beyond reasonable doubt that a reasonable person who was not intoxicated but was otherwise in the accused’s circumstances, including his circumstances of vulnerability, would not reasonably have believed that he needed to act in self-defence. And finally, although it’s not raised directly by your question, I mention that a reasonable belief does not necessarily have to be a correct and true belief. It only has to be a reasonable belief. It doesn’t have to be a belief of something that’s actually true. All right. I invite you to retire again and if you have further questions, you know the process now.
About 50 minutes later, the jury asked a further question:
‘Is the objective/subjective test for self-defence an and or an or (sic) test (mutually inclusive), that is, if the jury believes the Crown has proved the objective test but not the subjective test’ – now, again, I’m not going to answer that in terms of objective and subjective tests. I think – I can understand why you might adopt that formulation but there are some subtleties in the self-defence test.
But I understand the basic question of whether who has to prove one or both of the issues. What I’m going to do is to repeat a small part of the original directions and then add another small bit to, I think, emphasise the answer to that question. The test for self-defence is whether the accused believed, on reasonable grounds, that it was necessary in self-defence to do what he did.
If he had that belief and there were reasonable grounds for it, then he is entitled to be acquitted. However, the defence does not have to prove these matters, rather, the prosecution must rule them out. That is, the prosecution must either prove beyond reasonable doubt that the accused did not believe it was necessary in self-defence to do what he did or, prove beyond reasonable doubt that the accused had no reasonable grounds for that belief.
If the prosecution does not establish one or other of those alternatives beyond reasonable doubt the accused is entitled to be acquitted. If the prosecution does establish one of those alternatives then self-defence has been ruled out as a lawful excuse. All right. I think that’s as far as I can take that one. So I will invite you to retire again.
The jury continued deliberations into the next day after an overnight adjournment.
At 11.35 am the next day, the jury, having resumed deliberations, asked a further question:
Please supply in writing the second part of the self-defence test, i.e. reasonable person not intoxicated and possibly provide previous example of how it has been applied.
That direction was supplied in the following terms:
The test for self-defence is whether the accused believed, on reasonable grounds, that it was necessary in self-defence to do what he did. If he had that belief and there was reasonable grounds for it, then he is entitled to be acquitted.
However, the defence does not have to prove these matters, rather, the prosecution must rule them out. That is, the prosecution must either
·Prove beyond reasonable doubt that the accused did not believe it was necessary in self-defence to do what he did, or
·Prove beyond reasonable doubt that the accused had no reasonable grounds for that belief.
If the prosecution does not establish one or other of those alternatives beyond reasonable doubt the accused is entitled to be acquitted.
If the prosecution does establish one of those alternatives then self-defence has been ruled out as a lawful excuse.
The jury, at 3.19 pm returned a verdict of “not guilty” in respect of the first count but “guilty” in respect of the second.
Appellant’s argument
The appellant contends that her Honour did not correctly state the test for self-defence in the context of self-induced intoxication.
Prior to the enactment of the Criminal Code 2002 (ACT) (the ACT Code), the test for self-defence was as affirmed by the High Court in Zecevic v Director of Public Prosecutions (supra). The test, simply put, was whether the prosecution had proved beyond reasonable doubt that the accused did not believe, upon reasonable grounds, that it was necessary in self-defence to do what he did.
At (662-3) it was further added that the test should be placed in its factual setting.
... For example, it will in many cases be appropriate for a jury to be told that, in determining whether the accused believed that his actions were necessary in order to defend himself and whether he held that belief on reasonable grounds, it should consider whether the force used by the accused was proportionate to the threat offered. However, the whole of the circumstances should be considered, of which the degree of force used may be only part. There is no rule which dictates the use which the jury must make of the evidence and the ultimate question is for it alone. The trial judge should also offer such assistance by way of comment as is called for in the particular case. No doubt it will also be desirable to remind the jury that in the context of self-defence it should approach its task in a practical manner and without undue nicety, giving proper weight to the predicament of the accused which may have afforded little, if any, opportunity for calm deliberation or detached reflection.
In R v Conlon (1993) 69 A CrimR 92, Hunt CJ at CL observed, at 96:
The Crown does, of course, have to eliminate any reasonable possibility that the accused’s perception was reduced by reason of his intoxication.
Again at 101:
In my opinion, therefore, I should take into account the voluntarily induced intoxication of the accused in the present case – in so far as it may have affected either his appreciation of the gravity of the threat which he faced or the reasonableness of his response to that danger – in determining whether the Crown has established that there were no reasonable grounds for a belief by him that it was necessary in self-defence to fire the bullet ...
In the present case, the statement the complainant admitted that he made to the accused was such that, in the circumstances, the appellant could reasonably have considered it necessary to strike the complainant as he did. The fact that he could not recall striking the complainant could not negate the hypothesis that he did consider it necessary. It follows that in those circumstances no reasonable jury could have failed to entertain a reasonable doubt as to whether the appellant acted in self defence.
The question is whether this proposition has been modified by the ACT Code so as to require a conformity to the standard of reaction and perception of a sober person. That is, whether the Code requires that the belief of the accused should be assessed by asking whether a sober person would have entertained the belief which it was reasonably possible that the accused in fact entertained.
It may be observed that it was not clear what difference that might make. It was unclear whether the jury’s difficulty related to the assessment of the reasonableness of the grounds for self-defence or whether the assumed belief of the appellant was negated by his intoxication.
The relevant section of the ACT Code is:
33 Intoxication—relevance to defences
(1) If any part of a defence is based on actual knowledge or belief, evidence of intoxication may be considered in deciding whether the knowledge or belief exists.
(2) However, if—
(a) each physical element of an offence has a fault element of basic intent; and
(b)any part of a defence is based on actual knowledge or belief;
evidence of self-induced intoxication cannot be considered in deciding whether the knowledge or belief exists.
(3) If any part of a defence is based on reasonable belief, in deciding whether the reasonable belief exists, regard must be had to the standard of a reasonable person who is not intoxicated.
Section 33 must be considered with s 31:
31 Intoxication—offences involving basic intent
(1) Evidence of self-induced intoxication cannot be considered in deciding whether a fault element of basic intent exists.
Note A fault element of intention in relation to a result or circumstance is not a fault element of basic intent (see s 30 (1), def fault element of basic intent).
(2) This section does not prevent evidence of self-induced intoxication being considered in deciding whether conduct was accidental.
(3) This section does not prevent evidence of self-induced intoxication being considered in deciding whether a person had a mistaken belief about facts if, when carrying out the conduct making up the physical element of the offence, the person considered whether or not the facts existed.
(4) A person may be taken to have considered whether or not facts existed when carrying out conduct if—
(a) the person had considered, on a previous occasion, whether the facts existed in the circumstances surrounding that occasion; and
(b)the person honestly and reasonably believed that the circumstances surrounding the present occasion were the same, or substantially the same, as the circumstances surrounding the previous occasion.
The question is further complicated by the effect of s 10. Section 10(1) immediately applies s 15(5) and ss 30-34 – (relevance of evidence of intoxication). It may be noted that the Code provision concerning self-defence is not to apply until 1 July 2013.
Thus self-defence, subject to ss 30-34, otherwise remains to be considered according to the Zecevic test.
Crispin J in JA v Goldsmith [2004] ACTSC 79 (2 September 2004) noted that if self-defence is raised:
[24] ... the Crown bears the burden of proving beyond reasonable doubt either that the accused did not believe that it was necessary to do what he or she did in self-defence or that there were no reasonable grounds for that belief.
His Honour continued:
[25]It may be noted that s 33(1) of the Criminal Code provides that, if any part of a defence is based on actual knowledge or belief, evidence of intoxication may be considered in deciding whether the knowledge or belief exists. On the other hand, s 33(3) provides that if any part of a defence is based on reasonable belief, then in deciding whether the reasonable belief existed, regard must be had to the standard of the reasonable person who was not intoxicated. ...
Section 33(2)(b) was not addressed by his Honour.
Nevertheless, his Honour did not suggest that the first question is anything other than a question of fact to be determined in all the circumstances including the state of intoxication of the person in question. The fact of intoxication cannot be ignored in determining whether, as a matter of fact, the knowledge or belief existed. Whether it is a reasonable belief may, of course, be adjudged according to the standard of a person not intoxicated.
It was also a case where his Honour accepted that, irrespective of intoxication, there were no reasonable grounds to believe that action in self-defence was necessary. However, his Honour was also satisfied, again, irrespective of intoxication, that the appellant in that case had not entertained a genuine belief that he needed to act as he did in his own self-defence.
In the present case, it was, in our view, necessary to consider the role of “belief” in assessing the existence of reasonable grounds. Whether there are reasonable grounds for a relevant belief is an objective test but how the accused actually perceived those grounds is a question of fact.
In the present case, it seems to us to have been misleading to ask whether by the standards of a sober person there were reasonable grounds for the appellant to consider that it was necessary for him to act in self-defence. Rather, the jury should have been directed that unless they were to reject the evidence both of the complainant and the appellant as to what the complainant said, they could not be satisfied that there were no reasonable grounds for a belief that the appellant needed to act as he did in self-defence. Given that the evidence did not suggest that more than one blow was struck, it could not be said that the response was disproportionate to the perceived danger.
The only remaining question was whether the Crown had proved that the accused had not in fact a belief that it was necessary for him to respond as he did. That was the issue in R v O’Meara [2009] ACTSC 122 (18 September 2009) and also in JA v Goldsmith (supra).
The respondent asserted that the Crown case was that the appellant, for no discernible reason, had punched the complainant in the mouth. The appellant did not recall the punch, due no doubt to his intoxication. Hence, the Crown submitted, he could not rely on self-defence for he could not assert that, at the time he struck the blow he acted in self-defence. He could only presume that to have been his state of mind.
That submission must be rejected. The first part of it is contrary to the undisputed evidence from both sides of the altercation. The second part of it would have significance if the sequence of events was to be ignored. The appellant has merely to point to facts supporting a reasonable hypothesis that he acted in response to the complainant’s apparent, albeit unintended, invitation to fight. Indeed, the prosecutor expressly accepted that analysis merely stating, “But it is not a licence to walk up to somebody and break his jaw”.
It follows that, although intoxication was a factor relevant to determining whether it was reasonable to assume that the statement of the complainant, conceded by the prosecutor to have been “stupid”, had caused the appellant to believe that, unless stopped, the complainant would commence to fight him, it could not reasonably be concluded that he had no such belief.
In truth, had the issue of intoxication not been raised and explained as it was, that issue would have been more starkly exposed to the jury. As it was, it is possible that the jury might have reasoned that, had he not been intoxicated, the appellant would have passed by without taking up the complainant’s apparent challenge to fight or have perceived that it was not indeed a challenge to fight.
It follows, it seems to us, that the verdict is unsafe and unsatisfactory. The jury should have entertained a reasonable doubt as to whether the appellant acted in self-defence.
In any event, even if the complainant’s statement were construed as an invitation to fight rather than notice of intention to attack the appellant, it would not be assault for the appellant to accept that challenge as he might then reasonably have believed that the complainant was consenting to being struck in the course of a fight.
The conviction and sentence will be set aside and a verdict of acquittal entered.
I certify that the preceding fifty-three (53) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Court.
Associate:
Date: 9 August 2010
Counsel for the Appellant: Mr K Archer
Solicitor for the Appellant: Kamy Saeedi Lawyers
Counsel for the Respondent: Mr J White
Solicitor for the Respondent: Director of Public Prosecutions for the ACT
Date of hearing: 10 February 2010
Date of judgment: 9 August 2010
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