Edmunds v The Queen
[2004] WASCA 70
•7 APRIL 2004
EDMUNDS -v- THE QUEEN [2004] WASCA 70
| SUPREME COURT OF WESTERN AUSTRALIA | Citation No: | [2004] WASCA 70 | |
| COURT OF CRIMINAL APPEAL | |||
| Case No: | CCA:163/2002 | 10 DECEMBER 2003 | |
| Coram: | TEMPLEMAN J WHEELER J WALLWORK AJ | 7/04/04 | |
| 9 | Judgment Part: | 1 of 1 | |
| Result: | Appeal allowed | ||
| B | |||
| PDF Version |
| Parties: | HOWARD CHRISTOPHER EDMUNDS THE QUEEN |
Catchwords: | Criminal law and procedure Common assault Application of Criminal Code (WA), s 244 and s 248 Defence against home invasion Provocation Degree of force able to be used by defender |
Legislation: | Criminal Code, s 24, s 244, s 245(2)(b), s 248 |
Case References: | Gray v The Queen (1998) 98 A Crim R 589 James v Sievwright [2002] WASCA 343 Minniti v The Queen (2001) 120 A Crim R 531 R v Bojovic (1999) 113 A Crim R 1 R v Craig [1998] QCA 277 Nil |
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA TITLE OF COURT : COURT OF CRIMINAL APPEAL CITATION : EDMUNDS -v- THE QUEEN [2004] WASCA 70 CORAM : TEMPLEMAN J
- WHEELER J
WALLWORK AJ
- Applicant
AND
THE QUEEN
Respondent
ON APPEAL FROM:
Jurisdiction : DISTRICT COURT OF WESTERN AUSTRALIA
Coram : L A JACKSON DCJ
File Number : IND 1488 of 2001
Catchwords:
Criminal law and procedure - Common assault - Application of Criminal Code (WA), s 244 and s 248 - Defence against home invasion - Provocation - Degree of force able to be used by defender
(Page 2)
Legislation:
Criminal Code, s 24, s 244, s 245(2)(b), s 248
Result:
Appeal allowed
Category: B
Representation:
Counsel:
Applicant : Mr L M Levy
Respondent : Mr R E Cock QC & Ms S J Yeo
Solicitors:
Applicant : Laurie Levy & Associates
Respondent : State Director of Public Prosecutions
Case(s) referred to in judgment(s):
Gray v The Queen (1998) 98 A Crim R 589
James v Sievwright [2002] WASCA 343
Minniti v The Queen (2001) 120 A Crim R 531
R v Bojovic (1999) 113 A Crim R 1
R v Craig [1998] QCA 277
Case(s) also cited:
Nil
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1 TEMPLEMAN J: I have had the advantage of reading in draft the reasons to be published by Wheeler J. I agree, for the reasons given by Wheeler J that the appeal should be allowed, the conviction quashed and a re-trial ordered.
2 WHEELER J: The appellant was charged that "… on 15 January 2001 at Maida Vale [he] unlawfully assaulted Karl Thomas Vanderslys, a public officer who was then performing a function of his office". He was convicted of common assault and appeals that conviction.
The Offence
3 The appellant had been telephoned by a police officer a short time beforehand and asked where he was, as the police were looking for him in order to investigate an offence. A number of police officers attended at his home, telephoned on a mobile phone and asked him where he was. He said that he was in Bayswater but, by ringing both the appellant's mobile phone and landline at approximately the same time, and hearing one telephone ringing in the background as he answered another, police established that he was in fact in his house. They went to the back of the house, removed a flyscreen, opened a window and got into the house. One then went to the front door and opened it for Senior Constable Vanderslys to come in. The Senior Constable came in, wearing his uniform and carrying his baton, went to the door of the room in which the appellant was standing, and told the appellant to put his weapons down. The appellant at the time had a machete in one hand and a baseball bat in the other. The evidence was to the effect that the Senior Constable and the appellant were shouting at each other with the appellant saying "Get out of my house" or words to that effect, and the police officer telling him to put his weapons down. The police officer then hit the appellant's hand which was holding the machete until the machete dropped, and also hit him on the leg. It was then that the appellant hit the Senior Constable on the head with the baseball bat.
The Appellant's Evidence
4 The appellant's evidence at trial was that he did not hear the complainant or other police officers identifying themselves as police officers prior to or on entering his house. He said that he was in his room, heard noises and was scared. He armed himself with the baseball bat and machete because he thought the intruders were bikies and that they were coming to "bash" him, as had occurred previously. His evidence was that he thought he would be seriously injured or killed, that he did not know that the complainant was a police officer when the complainant struck him
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- with the baton, or when he struck the complainant with the baseball bat. He said that he was hitting the complainant in order to protect himself and to stop the complainant from attacking him.
The Appeal Grounds
5 The learned trial Judge directed the jury in terms of the first limb of s 248 of the Criminal Code and, in that context, in terms of s 24 of the Criminal Code. It is now contended that the learned trial Judge erred by failing to direct the jury in relation to s 244(1) of the Criminal Code, and in terms of the second limb of s 248 of the Criminal Code. There is also a complaint that his Honour erred in failing to direct the jury in relation to s 254(2)(b) of the Criminal Code.
Section 254(2)(b)
6 This is a provision dealing with defence of property against trespassers. As to that matter, it seems to me that the whole of the appellant's evidence was directed to the proposition that he was protecting himself, rather than that he was protecting, or asserting any right in respect of, property. Indeed, at the conclusion of his evidence, the learned trial Judge said to counsel, in the absence of the jury "It's apparent the eggs are in the basket of self-defence, that 'I was being attacked and I defended myself', rather than provocation or rather than defence of property". That assessment was not disputed by counsel for the appellant and appears to me to be plainly correct. Section 254(2)(b) had no application as this was not a case in which the appellant contended that he was defending his property against trespassers. It was unnecessary, and would have been confusing, for the learned trial Judge to have put this matter to the jury.
Section 244
7 So far as s 244 and the second limb of s 248 are concerned, it is conceded that neither of those matters was put to the jury by his Honour. So far as s 244 is concerned, it seems simply to have been overlooked by all parties. The expression "a home invasion" was used by counsel for the appellant and his Honour repeated it in his direction to the jury, but no attention was given at the trial to the provisions of s 244, which is concerned with defence against home invasion. It relevantly provides that it is lawful for a person who is in peaceable possession of a dwelling to use "any force" or to do anything else that the occupant believes, "on reasonable grounds", to be necessary, inter alia to make effectual defence against violence used or threatened in relation to a person by a home
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- invader. A person is a home invader for the purposes of the section if the occupant believes on reasonable grounds that the person intends to commit an offence or is committing an offence in the dwelling. It is clear in my view that the appellant's belief, if it existed, that the complainant was a bikie coming to "bash" him would have attracted s 244.
8 There are two significant differences between the first limb of s 248 and s 244. The former provides that when a person is unlawfully assaulted and has not provoked the assault, it is lawful for him to use such force as is "reasonably necessary" to make effectual defence against the assault, provided that the force used is not intended or likely to cause death or grievous bodily harm. Assuming for the moment that the force used in this case was not intended or likely to cause death or grievous bodily harm, the relevant differences are in relation to the question of provocation for the assault, and the degree of force able to be used by the defender.
9 So far as provocation for the assault is concerned, his Honour expressly directed the jury in the following terms:
"Had the accused man provoked the assault? To provoke for this purpose is to initiate, to do something, to stimulate action, to stir someone up, to enrage someone; those sorts of concepts; to provoke someone to assault you. When the complainant opened the door, he says the accused was 'Standing there with the machete and the baseball bat above his head'. The complainant says that despite the command to put them down, the accused advanced. If the accused did that, then although its up to you, you may well be satisfied that he has provoked the assault by the complainant by his actions."
10 There are two matters to be noted about this. Although it is not specifically a ground of appeal, there is a difficulty with the direction about provocation in the way in which it was made. The trial Judge had already noted that there was no evidence that the complainant had any lawful authority to be in the house. That was a matter which had arisen and which his Honour had determined in relation to the question of whether the Constable had at the time been performing a function of his office. Having no lawful authority to be in the house, it is not entirely clear how it could have been thought that the complainant had authority to command the appellant to put down his weapons. That matter does not need to be further considered however, since for present purposes it is enough to focus upon his Honour's direction that the jury could well be
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- satisfied that the appellant had provoked the assault. If that were so, he would have been taken outside the scope of the first limb of s 248. However, absence of "provocation" on the part of a person defending against home invasion forms no part of s 244. It would appear for the purposes of that section that it would not matter whether the person occupying the home had "provoked" the home invader in some way. For this reason, in my view, the trial miscarried and the appeal must be allowed.
11 So far as the degree of force is concerned, there is a difference between s 244 and the first limb of s 248. As McKechnie J noted in James v Sievwright [2002] WASCA 343 at [27-29], s 244 has expanded the rights of householders in peaceable possession of their dwellings to use force. In particular, it is not necessary for the purposes of s 244 for the force used to be "reasonably necessary" to defend against the various matters set out in s 244(1). It is enough that the occupant has a belief that the force is necessary, whether on an objective view it is reasonably necessary or not. The belief must be based upon reasonable grounds but, once the belief is formed in that way, the force used as a result of the belief need not be only that force which is reasonably necessary. In relation to that issue, his Honour directed the jury only in the way which is standard in relation to the first limb of s 248, drawing attention to the element of objectivity imported by the words "reasonably necessary" in that section.
12 Although there is a difference in principle between the concept of a belief based upon reasonable grounds that a particular application of force is necessary, and the question of whether the force is objectively "reasonably necessary", in the majority of cases there is unlikely to be any practical difference so far as a jury's consideration is concerned. This is particularly so, when one considers the application of s 24 of the Criminal Code and its interaction with the first limb of s 248. In assessing whether force is "reasonably necessary" a jury will, where appropriate, be directed to consider the belief of the accused about the circumstances in which the application of force arises.
13 To take the example of the present case, the jury was quite properly directed by his Honour to consider whether the Crown had negatived the possibility that the appellant held an honest and reasonable but mistaken belief that the police officers were indeed bikies coming to attack him. It was against the background of the possibility of such a belief that the jury was required to consider whether, objectively, the force was "reasonably necessary". Had the jury been considering s 244(1), they would have
(Page 7)
- been directed to consider whether the Crown had excluded the possibility that the appellant believed on reasonable grounds that the force he used was necessary to make effectual defence against violence threatened by a home invader. The reasonable grounds for the belief would presumably be the appellant's belief that the police officer was a bikie who was about to attack him. There was in this case, as there is in the majority of cases, an inseparable connection between the alleged offender's belief about the circumstances in which he found himself, the reasonableness of that belief, and the degree of force actually used.
Section 248 (second limb)
14 A similar difference in principle exists between the first and second limbs of s 248, although a similar connection in practice arises between the issues to be considered by a jury in respect of each of them. In a passage approved by this Court in Minniti v The Queen (2001) 120 A Crim R 531 (per Murray J at [58], Malcolm CJ agreeing) the Court of Appeal of Queensland expressed the difference in the following terms in dealing with subsections (1) and (2) of s 271 of the Queensland Code, which correspond to the first and second limbs of s 248. In Gray v The Queen (1998) 98 A Crim R 589, McPherson JA (Davies JA and Fryberg J agreeing) said at 593 that:
" … there is plainly a difference between the mental condition predicated of a defender under s 271(1) and under s 271(2). In the case of s 271(1), the degree of force used must be 'reasonably necessary' to make 'effectual defence' against the assault. The criterion in that instance is objective and does not concern itself with the defender's actual state of mind. In that case of s 271(2), it is, at least in part, subjective. The defender must believe that what he is doing is the only way he can save himself or someone else from the assault. He must hold that belief 'on reasonable grounds'; but it is the existence of an actual belief to that effect that is the critical or decisive factor. There is no additional requirement that the force used to save himself or someone else must also be, objectively speaking, 'necessary' for the defence."
15 I accept those observations as an accurate statement of the law. In relation to the practical issue which I have raised, I would, however, observe that it would seem to me that where a jury, having found that in the circumstances as the offender believed them to be, the force used by him was objectively unnecessary for defence, would be unlikely to
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- consider it possible that the offender believed on reasonable grounds that the application of that force was the only way in which he could save himself or someone else from the assault.
16 The convergence in a practical sense of the various factors which a reasonable jury would be likely to consider in dealing with the question of whether the relevant defence had been excluded, is no doubt the reason why the Court of Appeal of Queensland has observed on more than one occasion that the difficulties associated with multiple alternative defences of self-defence may, more often than not, obscure the more viable or arguably meritorious of the alternatives, and that it is most desirable that counsel indicate which line or lines of defence is or are considered to be appropriate (R v Bojovic (1999) 113 A Crim R 1, R v Craig [1998] QCA 277).
17 It is clear that this is a case in which a defence pursuant to s 244 was available to the appellant. Because of the fact that a number of blows were apparently struck by the Constable, with a weapon, in circumstances where the appellant maintained that his assailant was a "bikie", it seems to me that this was a case in which the second limb of s 248 was open, the circumstances arguably being such as to cause a reasonable apprehension of grievous bodily harm on the part of the appellant. Notwithstanding the fact that these available defences were not the subject of directions to the jury (neither apparently having been flagged or pressed by counsel for the appellant at trial) I would have considered, in the absence of the provocation issue, that there was for the reasons which I have outlined, considerable force in the respondent's submission that no miscarriage of justice had been occasioned by the failure to leave those matters to the jury. That is because his Honour's direction in effect appeared to assume that a belief on the part of the appellant that the officer was a bikie coming to bash him would have justified the force used by him.
Conclusion
18 However, as I have already noted, the direction in relation to provocation would have left the jury with the impression that they could well find that the appellant had provoked the assault by the Constable and that if that had been the case self-defence would not have been open to him. It is therefore my view that the appeal must be allowed, the conviction quashed, and a re-trial ordered.
19 WALLWORK AJ: I agree with the reasons for judgment and the conclusions of Wheeler J.
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20 There is nothing I wish to add.
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