Eric Norman Layley v The Queen

[1992] SASC 3481

COURT IN THE SUPREME COURT OF SOUTH AUSTRALIA FULL COURT White A.C.J.(1), Cox(2) and Mohr(3) JJ.

CWDS
Criminal law and procedure - particular offences - offences against the person - assault occasioning actual bodily harm - appeal against conviction - appellant went to his brother-in-law's house - the victim was a boarder there - the victim told the appellant to go away and then began threatening and attacking him - the appellant finally grabbed a knife and thrust it at the victim causing a surface laceration of the skin - at the trial, the victim did not wish to go ahead with any complaint and refused to attend.
Held, per curiam, appeal allowed, conviction quashed, verdict of acquittal entered. Per White A.C.J. (Cox and Mohr JJ. agreeing) - the trial judge did not tell the jury that all the appellant's answers should be accepted without qualification because they were the only evidence -while the trial judge went into the evidence earlier in relation to his intention deliberately to thrust the knife she did not assist the jury in the way in which they might relate all that had gone before, the victim's quite violent threats to kill, knock down, throw out, to drag out and so on to the final action taken by the appellant and whether he was 'stepping over the mark' after he had just been knocked to the ground and hit his head against the stove - a reasonable jury could not be satisfied beyond reasonable doubt that the act of using the knife in that way was not self-defence in the circumstances - verdict not safe and satisfactory.

HRNG ADELAIDE, 17 June 1992 #DATE 17:6:1992
Counsel for appellant:         Mr W.F. Braithwaite
Solicitors:  Legal Services Commission
Counsel for respondent:        Mr S.A. Millsteed
Solicitors:  Attorney-General's Department

ORDER
Appeal allowed, conviction quashed, verdict of acquittal entered.

JUDGE1 WHITE A.C.J. This is an appeal against conviction. The appellant was convicted by a jury at Mt Gambier of the crime of assault occasioning actual bodily harm. The bodily harm was a nick by a knife to the side of the chest, which bled a little. 2. The state of the evidence was most unusual. The victim did not wish to go ahead with any complaint. He simply refused to attend the trial. Virtually the only evidence for the prosecution was a video recording of an interview between a police officer and the appellant. There was a little supplementary evidence about the recording of the video by the officer who did the interrogation; and he added two background facts: first, that the victim was much larger than the appellant; and second, that the victim has been drinking and smelt quite heavily of drink whereas the smaller appellant was sober. The accused did not give evidence. 3. In the course of the summing up, the learned judge referred to the accused's statements in the video as a "confession". That was probably a slip of the tongue. Thereafter she referred to what he said from time to time as his "admissions", whereas a perusal of the transcript of the video interrogation shows that, far from making any significant admissions, he made almost entirely self-exculpatory claims. The picture which he painted for the interrogating officer was that he, the appellant, was the victim of quite extreme and entirely unjustified bullying on the part of the victim until, in the end, because he had no other way of avoiding the ongoing physical attacks of the victim, he picked up a kitchen knife and thrust it towards the side of the chest of the victim, causing a small shallow cut in the skin sufficient to be characterised as bodily harm. His claimed intention was to defend himself. 4. Unexplained, the thrust of the knife could be characterised as an assault. However, the circumstances in which these two men came to this stage in a house at Tarpeena, a small town near Mt Gambier, tended to negative assault. The house was owned by the brother-in-law of the appellant. The only evidence in the case was the appellant's claim that the brother-in-law had asked him to come and visit him at this house. When the appellant arrived at the house, the brother-in-law had not yet arrived. 5. The victim was a boarder in the house who did not like the appellant. As soon as he realised that the appellant was on the premises, he wanted him to go away. 6. There was an outside toilet on or near the porch. The victim was occupying the outside toilet when he heard the appellant come to the back porch. The victim immediately started telling him to leave, to go away, that he had no right to be there and to keep away. The appellant replied that he had been invited there by the owner of the house, his brother-in-law. The boarder told him he had no right to be there, and the appellant kept repeating that he did. The parties exchanged words and apparently became annoyed with one another. On the uncontradicted account of the appellant which I paraphrase from the interview, the appellant said, "I'm waiting for my brother-in-law", and the victim said, "If you don't leave, I'll punch you out". This exchange was repeated several times. I interpolate that the appellant is a simple man of less than average intelligence. 7. The victim eventually emerged from the toilet. By this time, the appellant was so annoyed that he threw a few punches. There is no suggestion that these punches hurt the larger victim in any way. The victim said "If you don't stop this sort of thing and clear off, I'll lay you out for good". The victim then grabbed the appellant and knocked him down a couple of times. The appellant stood up again and started throwing punches. Whereas the victim was able to knock down the appellant a couple of times, there was no suggestion that the victim was hurt by the return punches. 8. The appellant retreated into the interior of the house through the door and locked the door. The victim said "If you don't leave, I'll kill you, I'll lay you out, and drag you away". Those words were repeated in a rather garbled way on the next page of transcript. 9. The victim then "bashed the door down" from the outside and came inside the house. He broke off the lock. The appellant by this time was sitting in an armchair in the lounge. The victim came up to him and said "If you don't leave this house, I'll do the same thing again", that is, knock him to the ground, no doubt, a couple more times. 10. The appellant just sat there, doing nothing. The victim struck the appellant three or four times and knocked his glasses off. The appellant stood up and asked to be left alone. The victim came closer to him so the appellant walked away. He walked around the armchair and sat down again. The victim hit him in the face and knocked off his glasses a second time. 11. The appellant put his glasses on a second time and walked to the kitchen through an archway. He sat on a kitchen chair. The victim knocked the kitchen chair from underneath the appellant who fell to the floor. He fell so violently that he hit his head against the bottom part of the stove. 12. The appellant stood up and asked to be left alone. The victim said "No, this is my house; this is my house, not yours; get out". The appellant was now standing by the archway near the kitchen sink. He was told "If you don't bloody leave, I'll just knock you completely out and drag you away". 13. The only aggressive act done inside the house by the appellant was to throw a bag of dog food at the victim after he hit his head against the stove. 14. After that, according to the appellant, the victim "got really violent" as if he had not been violent before. He said "He was pushing me, shoving me, and punching me until I said 'Right, that's enough'". He saw a kitchen knife nearby. He had been pushed towards the sink where the knife was. He said "That's enough". He picked up the knife and thrust it towards the victim's torso. He felt the knife just touch the victim's side. He did not see any blood. 15. The victim left him alone at that stage and said "I'm going to call the cops, and I'll call my parents". The appellant said "That's not going to worry me". (He gave demonstration of how he just picked up the knife and pushed it towards the victim.) He said that his intention was to "just get away and (make him) leave me alone". 16. The police officer put some leading questions about not intending to kill and so on, which were irrelevant, and out of proportion to what was being described. The appellant replied "I just wanted to wound him, sort of thing; just get away and (make him) leave me alone". 17. The high-water mark of the prosecution case was the appellant's statement "He got me so that I was so aggro and upset I wanted to - all I wanted to do was just, just wanted to wound him and (make him) leave me alone". However, it is understandable that the appellant would want the 10 minutes of bullying inside the house to cease. 18. In her summing up, the learned trial judge gave the classical self- defence summing up. She did not tell the jury that all the appellant's answers should be accepted without qualification because they were the only evidence. The only facts wee that the victim made a one-sided series of attacks for virtually the whole of the time he was at the house. 19. In relation to his statement: "Q. What was your intention? A. Just to wound him sort of thing, just enough to get away and (make him) leave me alone." She then discussed the evidence in a little detail, and concluded: You might consider, if you do come to the conclusion, that some measure of self-defence was called for ... I don't propose to go into the evidence in any detail." 20. While the trial judge went into the evidence in some detail earlier in relation to his intention deliberately to thrust the knife she did not assist the jury in the way in which they might relate all that had gone before, the victim's quite violent threats to kill, to knock down, to throw out, to drag out and so on, to the final action taken by the appellant and whether he was "stepping over the mark" after he had just been knocked to the ground and hit his head against the stove. 21. I do not think that a reasonable jury could be satisfied beyond reasonable doubt that the act of using the knife in that way was not in self-defence in the circumstances. 22. Having read the uncontradicted evidence, I feel uneasy about the verdict of guilty in the circumstances of an extremely one-sided attack by a larger, somewhat intoxicated man upon a smaller sober man who had every right to be at the house and in the house. He was threatened with even more violence towards the end than had occurred at the beginning. The verdict is not, in my assessment, a safe and satisfactory verdict. I feel that the verdict was unreasonable and unsafe and cannot be supported in regard to the totality of the evidence. I would therefore allow the appeal and quash the conviction. The order of the court is appeal allowed, conviction quashed, verdict of acquittal entered.

JUDGE2 COX J. I agree.

JUDGE3 MOHR J. I agree.