Director of Public Prosecutions Reference No. 1 of 1991 R. v B. in the matter of Section 30A of the Federal Court of Australia Act 1976 and in the matter of a Reference by the Director of Public Prosecutions for..

JUDOMENT No. _.L.fl

"C,/ ,

C A T C H W O R D S

CRIMINAL LAW - issue of self-defence - verdict of acquittal by direction - self-defence as a jury question - absence of discretion to direct acquittal - relevant principles

Federal Court of Australia Act 1976, s.30A

Druqs of Dependence Act 1989

Zecevic v. Director of Public Prosecutions (Vic) (1987)

162 CLR 645

Doney v. The Queen (1990) 171 CLR 207

Towers (1984) 14 A Crim R 12

Jayasema [l9701 Ac 618

Haas (1986) 22 A Crim R 299

IN THE MATTER of Section 30A of the Federal court of

Australia Act 1976

and

IN THE MATTER of A Reference by the Director of Public Prosecutions for the Australian Capital Territory on points of law arising from a trial

ACT G80 of 1991

Coram: Gallop, Davies and Beaumont JJ.

Date: 22 April 1992.

Place: Canberra

COURT

&QF AUSTRALIA

IN THE FEDERAL COURT OF AUSTRALIA )

AUSTRALIAN CAPITAL TERRITORY	1	No. ACT G80 of 1991
DISTRICT REGISTRY	1
GENERAL DIVISION	1

DIRECTOR OF PUBLIC PROSECUTIONS

REFERENCE NO. 1 OF 1991

R v B

IN THE MATTER of Section 30A of the Federal Court Act 1976

and

IN THE MATTER of A Reference by the Director of Public Prosecutions for the Australian Capital Territory on points of law arising from a trial

Coram: Gallop, Davies and Beaumont JJ.

Date : 22 April 1992.

Place: Canberra

MINUTES OF ORDER

THE COURT:

(1) Answers the question "whether the trial judge erred in law in directing a verdict of acquittalw

- Yes.

Note: Settlement and entry of orders is dealt with in

Order 36 of the Federal Court Rules.

IN THE FEDERAL COURT OF AUSTRALIA )

AUSTRALIAN CAPITAL TERRITORY	1	No. ACT G80 of 1991
DISTRICT REGISTRY
GENERAL DIVISION	1

DIRECTOR OF PUBLIC PROSECUTIONS

REFERENCE NO. 1 OF 1991

- -

R V B

IN THE MATTER of Section 30A of the Federal Court Act 1976

and

IN THE MATTER of A Reference by the Director of Public Prosecutions for the Australian Capital Territory on points of law arising from a trial

Coram	: Gallop, Davies and Beaumont *33.*
Date	: 22 April 1992.
Place	: Canberra.

REASONS FOR JUDGMENT

THE COURT:

On 29 October 1991 the accused was arraigned in the Supreme Court of the Australian Capital Territory on an indictment containing one count of attempted murder and one count of attempting to inflict grievous bodily harm upon one and the same person. Upon his arraignment he pleaded not guilty. A jury was empanelled and his trial took place. At the end of the Crown case on 31 October 1991

counsel for the accused submitted that there was no evidence to support the elements of either offence, particularly that the accused intended to kill or inflict grievous bodily harm. On 1 November 1991 the learned trial jQdge directed "that a verdict of acquittal be entered",

although not, it appears, on the ground of insufficiency of

. . .

evidence, but on the ground that the accused must have been acting in self defence and accordingly neither offence had been committed.

Pursuant to s.30A of the Federal Court of Australia Act 1976 the Director of Public Prosecutions has submitted for determination the following questions arising at or in connection with the trial:

"1. Is a prima facie case established by evidence of the' ingredients of the offence charged?

2 , Is 'a trial judge entitled to direct a verdict of

' acquittal on the basis of a belief that the

evidence led in the case for the prosecution:

(a)	Does not exclude the possibility that the accused acted in self defence; or
(b)	leads, in the Judge's view, to the inference that the accused must have been acting in self defence?

3. May police officers lawfully force entry into premises without prior warning in order to execute a search warrant in circumstances where they believe on reasonable grounds that immediate entry is required to ensure the safety of any person or to ensure that the effective execution of the search warrant is not frustrated?

4. Where armed police officers force entry into premises to execute a search warrant and an occupant reacts with violence towards them is the inference that the occupant was acting in self defence the only one available?"

At the commencement of the hearing, the Director of Public Prosecutions adopted a suggestion from the Court that the. only appropriate question for determination was whether the trial judge erred in law in directing a verdict of acquitt-al, and abandoned the other four questions for determination set out above.

The Crown case as given in evidence was that on

17 June 1990 members of the Australian Federal Police

attached to the Special Operations Team, dressed in combat

gear, attended premises at 7 Holden Place, Flynn,

entered the premises with the use of a sledge hammer on the

front door and proceeded to execute a search warrant issued

pursuant to the Drugs of Dependence Act 1989. Constable

Andrew Kevin Brown used the sledge hammer on the front door

and as he did so said in a very loud voice the words

"Police, get down, get down." He and other police went

through the doorway, again saying the same words. Four officers entered the house. The other members of the police force were also using the same words, or "Police, Its the police" in a very loud voice.

Constable Brown moved down the hallway of the premises then turned towards the bathroom. He looked in the bathroom and there was no one located there. He said in a loud voice the word "Clear". He then opened the door

to a bedroom. Constable Rath was behind Constable Brown and just before the door was opened, Constable Rath tapped Constable Brown on the shoulder and said the words

"With you". Constable Brown then opened the bedroom door with his foot. Immediately upon forcing the door open, Constable Brown said again the words "Police, get down, get down" in a very loud voice. As the door commenced to open he saw the accused approximately in the middle of the bedroom. He again said the words "Police, get down, get

down" in a very loud voice.

We set out Constable Brown's evidence as to what

happened next:

"What did the accused do?---At the time I first saw the accused, he was moving in a manner deliberately progressively towards myself; he continued with that movement.

Did you notice anything about him other than he was moving towards you?---Yes, I did. I noticed he was approximately 6 foot tall and of very large build. He had a white shirt on, it was unbuttoned and he had black pants on. I saw that his right arm was extended at this shoulder height and held in his right hand was a knife.

Now, what then happened?---The momentum of opening the door caused me to move approximately a pace, or half a pace into the bedroom. The accused still continued to move towards my location in the doorway area. I again called on him, "Police, get down, get down" again, in a very loud voice and I then discharged a shot into the chest area of the accused."

Constable Brown's estimate of the time lapse between first entering the house and first seeing the accused was ten seconds approximately.

Later in his evidence in chief, Constable Brown

demonstrated how the accused was holding the knife. He

said the accused had his hand forming a fist around the knife. The back of his hand was generally down and his thumb was generally up. The knife was slightly diagonal and down. The blade of the knife was slightly diagonal down, with the pointed end forward most.- His arm was extended to his shoulder. That caused the knife to be pointed at Constable Brown's throat and face area. As the accused advanced he continued to hold it in that manner. He took approximately three steps towards Constable Brown. According to Constable Brown, the accused was not saying anything but "he made an unintelligible growl - a loud growling sound", which was sustained for three to four seconds. He said that he thought the accused was attempting to kill him with the knife. According to the evidence of Constable Brown, after the shot was fired the accused immediately let go of the knife and commenced to fall forward. He fell forward to Constable Brown's right.

In delivering his decision on the submission that there was no evidence of the necessary intent in respect of either count, the trial judge said that, if it appeared from the Crown case at its highest that the alleged acts of the accused could only have been in self-defence, "it cannot be an allegation that a crime has been committed". His Honour went on to say that if that test was satisfied, it did not assert that the conviction would be merely unsafe and unsatisfactory, although, of course, it would be, but that it was not legally open. His Honour then identified some of the salient facts and said that a

resident, particularly one roused from sleep, would consider the house to be under attack and if he knew the attackers were police, he would not be reassured. He said that the Brennan and Gundy cases were illustrative of the panic that these raids can cause, and the tragic -

consequences that can result, and that that is the common

. .

reaction of mankind.

His Honour held that the search warrant did not authorise the conduct of the police. The warrant, which was not in evidence but was included in the Appeal Book for ease of reference, authorised entry of the premises "with such assistance and by such force as is necessary and reasonable". His Honour held that nowhere in the relevant legislation was a raid of this kind authorised. His Honour went on to say:

"This was a commando-style raid, not to free hostages or preserve life and limbs of - the life and limb of members of the public, but objectively it was an act that naturally called for the response which is alleged from the accused. There is no evidence at all otherwise. Self-defence has not been excluded, and indeed, no other rational conclusion can be drawn from

these

facts. 'l

His Honour repeated that the Crown must exclude self-defence, that it could not do so, and that the	1
~
evidence as presented admitted no other rational conclusion	1
1
than that the accused acted lawfully in self defence. He
directed verdicts of acquittal accordingly.	1

It was submitted on behalf of the Crown that his Honour erred in directing verdicts of acquittal and that he should have allowed the case to proceed. It was not for the trial judge to make a finding about whether the accused acted in self-defence or not. Self-defence is always a jury question.

The locus classicus on the law of self-defence and the directions which should be given to a jury where self-defence is raised is Zecevic v. Director of Public Prosecutions (Vic) (1987) 162 CLR 645. That an issue of self-defence is a jury question is starkly stated in the joint judgment of Wilson, Dawson and Toohey JJ at p. 662. After defining. self -defence and the circumstances in which it will provide justification or excuse, their Honours observed that whether self-defence .is

made out is essentially a jury question. Their Honours said that when upon the evidence the question of self-defence arises, the trial judge should, in his charge to the jury, place the question in its factual setting, identifying those considerations which may assist the jury to reach its conclusion. Their Honours make it perfectly clear that whether a plea of self-defence so as to amount to justification or excuse is made out is essentially for the jury to decide.

In Doney v. The Queen (1990) 171 CLR 207,

the High Court has put to rest any notion that the judge in

a criminal trial has any discretion or power to take away

from the jury the resolution of the question of guilt or otherwise of an accused person on the ground that a verdict would be unsafe or unsatisfactory. We need to refer only shortly to the authorities which preceeded Doney v. The Queen.

... .

In Towers (1984) 14 A Crim R 12, a decision of the Court of Criminal Appeal of New South Wales, Glass JA, with whom Cantor and Carruthers JJ agreed, discussed the role of,'a judge in considering an application for a ruling of no case to answer in a criminal trial. He said that in such case the judge does not consider the probative effect of the evidence as a whole. He is to have regard only to the evidence which, if believed and left uncontradicted, could be accepted by the jury as proof (Jayasema [l9701 AC 618 at 624). The question whether

,	the evidence is sufficient to raise a case to answer is to
I	be judged upon a consideration only of that evidence which militated for the Crown. Evidence favouring the accused must be disregarded. See also Haas (1986) 22 A Crim R 299. . The trial judge's approach in Haas was approved by the Court of Criminal Appeal of New South Wales in - R. v.
-R. (1989) 18 NSWLR 74 and his analysis of authority,
particularly the decision of the Court of Criminal Appeal of New South Wales in Towers that in ruling upon whether there is a case to answer the trial judge regards only that evidence which, if believed and left uncontradicted, could be accepted by the jury as proof, was approved. In disposing of the notion that a trial judge should have the

power to avoid the error of an unsafe or unsatisfactory verdict which would ultimately fall to be corrected upon appeal, Gleeson CJ stressed the role of the jury as the tribunal of fact, and said:

"It is one thing to recognise in courts of criminal appeal a power to review a S determination of fact. It is another thing altogether to permit a trial judge to pre-empt such a determination."

We return to the clear statements of principle laid down by the High Court in Doney v. The Queen. The High Court (Deane, Dawson, Toohey, Gaudron and McHugh JJ) said at p.214:

. .. if there is evidence (even if tenuous or inherently weak or vague) which can be taken into account by the jury in its deliberations and that evidence is capable of supporting a verdict of guilty, the matter must be left to the jury for its decision. Or, to put the matter in more usual terms, a verdict of not 'guilty may be directed only if there is a defect in the evidence such that, taken at its highest, it will not sustain a verdict of guilty.

It is necessary only to observe that neither the power of a court of criminal appeal to set aside a verdict that is unsafe or unsatisfactory (as to which see Whitehorn, Chamberlain v. The Queen [No. 2 1 91984) 153 CLR 521 and Morris v. The Queen (1987) 163 CLR 454) nor the inherent power of a court to prevent an abuse of process (as to which see Jaqo v. District Court (N.S.W.) (1989) 168 CLR 23) provides any basis for enlarging the powers of a trial judge at the expense of the traditional jury function. The power of a court of criminal appeal to set aside a verdict on the ground that it is unsafe or unsatisfactory, like other appellate powers, is supervisory in nature. Its application to the fact-finding function of a jury does not involve an interference with the traditional division of functions between judge and jury in a criminal trial. Nor does the existence in a trial judge or a court of powers to stay process or delay proceedings where the circumstances are such that the trial would be an abuse of process."

Applying these principles, we come to the conclusion that his Honour travelled into an area that was the province of the jury. It is true that on the Crown case an issue of self-defence may have been raised. However, it was not the trial judge's function to raise the defence and to uphold it as justification for the alleged ... . offences. As Wilson, Dawson and Toohey JJ. said in Zecevic's case at 661, "The question to be asked in the end is really quite simple. It is whether the accused believed upon reasonable grounds that it was necessary in self-defence to do what he did." Their Honours pointed out at 665 that the question whether the grounds for the belief were reasonable "was a matter for the jury.". Their Honours at 665, and indeed all members of the Court, took the view that "The issue should have been left to the ju.ry.". Deane J. said at 682-3, "self-defence was clearly raised as an issue and his Honour was not entitled to substitute his own decisiori upon it for that of the jury."'

The present case is a similar case. Accordingly, we answer the question submitted for determination, "Yesw.

I certify that this and the preceeding nine pages are a true copy of the Reasons for Judgment herein of the Court.

Dated: 22 April 1992.

Counsel for the Appellant:	Mr K. Crispin QC and MS M. Doogan
Solicitors for the Appellant:	Director of Public Prosecutions (A.C.T.)
Counsel for the Respondent:	Mr Linega
Solicitors for the Appellant:	Messrs Ahern Morris Vincent
Date of Hearing: .	2 April 1992
Date of Judgment:	22 April 1992

[1992] FCA 1095

22 Apr 1992