Fietkau v The Queen

[1994] HCATrans 391

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IN THE HIGH COURT OF AUSTRALIA

Office of the Registry

Brisbane No B52 of 1993

B e t w e e n -

,ALEKSANDER FIETKAU

Applicant

and

THE QUEEN

Respondent

Application for special leave

to appeal

BRENNAN J
DAWSON J

McHUGH J

Fietkau 1 29/6/94

TRANSCRIPT OF PROCEEDINGS

AT BRISBANE ON WEDNESDAY, 29 JUNE 1994, AT 4.05 PM

Copyright in the High Court of Australia

MR R.A. MULHOLLAND, OC: If the Court pleases, I appear with

my learned friend, MR G.P. LONG, for the applicant.

(instructed by the Legal Aid Office (Queensland))

MR B.J. BUTLER:  May it please the Court, I appear with my

learned friend, MR P.M. RIDGWAY, for the

respondent. (instructed by D. Field, Solicitor to

the Director of Prosecutions (Queensland))

BRENNAN J: Yes, Mr Mulholland.

MR MULHOLLAND:  Your Honours, there are three special leave

grounds. As to the first, special leave, it is
submitted, is necessary to correct the decision of
the Court of Appeal, the effect of which is that
section 271 of the Code does not apply to the
threatened use of force. Further, to correct the
view of the court that it did not matter that the

applicant here believed, on reasonable grounds,

that he could not otherwise preserve the deceased
than by doing what he did. Essentially, what the

Court of Appeal said -

BRENNAN J: Could not otherwise preserve the deceased?

MR MULHOLLAND:  I am sorry, preserve himself.

BRENNAN J: Preserve himself.

MR MULHOLLAND:  Yes. I beg your pardon, Your Honour.

Essentially, what the Court of Appeal said was that

section 271 did not apply because the applicant was

not the object of an unprovoked assault at the

relevant time and it did not matter that he had a

belief, however reasonable, that he could not
preserve himself from serious injury except by
doing as he did. So, the Court of Appeal did not
consider the applicant's complaint before the court

of the way in which the matter was put to the jury.

BRENNAN J: The jury rejected the second paragraph of 271 so

far as it was applicable to Coch, is that right?

MR MULHOLLAND:	Yes, Your Honour.
BRENNAN J:	If they rejected it so far as the assault on

Coch was concerned, why would there be any reason

to think that they would have a different view with

respect to either the applicant or the women in the

house?

MR MULHOLLAND:  Your Honour, as to that, the way in which it

was put to the jury was that it

was compartmentalized, that is to say, the jury

were really invited to look at the self-defence so

Fietkau 2 29/6/94

far as the applicant acting in defence of Coch and

then it was put to them so far as him acting in

defence of himself and the women. But it was not

put to the jury on the basis that it was a

continuing act of violence towards those in the

house.

BRENNAN J:  But there was one act of violence which had to

be justified and that was the stabbing.

MR MULHOLLAND:  Yes, Your Honour.

BRENNAN J: And the jury found adversely on the relevant

elements of 271 so far as that related to Coch.

MR MULHOLLAND:  Yes.

BRENNAN J: It seems to me artificial, does it not, to raise

a case on the basis of the same paragraph, the same

issues, relevant to himself or the women?

MR MULHOLLAND:  Your Honour, this ground of course is put in

the context of another ground in relation to the

directions on the self-defence concerning Coch.

BRENNAN J: Yes, you want to make a complaint about the way

in which it was put so far as Coch was concerned.

MR MULHOLLAND:  The way it was put, yes, Your Honour.

BRENNAN J: Yes. That is a different question.

MR MULHOLLAND: Yes. It was really a cumulative act of

violence that the applicant was faced with and, of

course, in circumstances where he is in his own

home.

Your Honour, as recognized by the Court in

Zecevic, the test is whether the accused believed

on reasonable grounds that it was necessary in

self-defence to do what he did; a belief, we

submit, by the applicant, on reasonable grounds

that he could not otherwise preserve himself by

death or grievous bodily harm by doing what he did

presupposes that he had a reasonable apprehension

of death or grievous bodily harm.

Now, the Court of Appeal was prepared to

accept the fact that there was that belief but not

to take that further step and we submit that once

there is that belief on reasonable grounds, the

conditions of the second paragraph of section 271

would be satisfied. While the applicant was not

being physically attacked at the very time he

stabbed the deceased, the latter had broken into

his home, violently attacked him a short time

previously and was continuing that attack on the

Fietkau 3 29/6/94

man, Coch. There had been both an assault and a

threatened assault constituted by his actions, that

is to say, accepting the definition of "assault" in

section 245 of the Criminal Code.

If the circumstances of the present case do

not amount to an assault, then it has some

implications. To take one, in the case of battered

women who have suffered assault, a woman who has

suffered an assault over a long period of time at

the hands of her spouse and then a threat is made

but not any attack made upon her at the time, would
not have a defence if the effect of the Court of

Appeal's decision is to be accepted. Neither would

people in their own homes who are - a person whose

home has been broken into, ransacked and the person

is still in the home, have any defence if then some action is taken by the householder against a person

who breaks in and ransacks the house.

BRENNAN J:	Why would there not be a defence of property?
MR MULHOLLAND:	There would be a defence in order to stop the person actually breaking into the house,
Your Honour, but this is the person who has already got in. This was the situation here: the deceased had actually got into the house, broken down the front door and assaulted both the applicant and
Coch.

DAWSON J: Is the situation that it was reasonable for the

accused to believe that the deceased, once he had

completed assaulting Coch, would then assault the

accused and he had a reasonable belief that the
only way that the accused could defend himself

against that was by doing what he did?

MR MULHOLLAND:  Yes, Your Honour. That is to say that the

attack he feared was going to be renewed upon him;

that he feared that - - -

DAWSON J:  But you do strike the difficulty that if that was

not so in relation to Coch, how could it be so in

relation to him, that it was reasonable to do what

he did?

MR MULHOLLAND:  Yes. Your Honour, apart from the point that

I have already made to His Honour the presiding

Judge, that point is of course taken in the context

of the second point which perhaps I should come to

now. The second point is concerned with the

directions on self-defence so far as they relate to

acting in defence of Coch.

On His Honour's approach, the trial judge,

which seemed to accept the hones~y of the

applicant's belief and that there was a reasonable

Fietkau 29/6/94

apprehension of death or grievous bodily harm - as

to which see page 56, lines 10 to 16 and 36 to 44 -
the critical issue in the case was whether the

prosecution had proved beyond reasonable doubt that

there were no reasonable grounds for the

applicant's belief that he could not otherwise

preserve Coch than by stabbing the deceased.

Now, the passage in His Honour's summing up

commences at page 56 and goes through to page 58,

line 30. What we submit occurred at this point was

that His Honour strayed from the real issue by

asking whether it was unreasonable for the accused

to believe; at another point, what was unreasonable

in the circumstances; and even whether it was

unreasonable for him to stab the deceased in the

back in the way that he did. Particularly, we

submit, where the law does not reduce murder to

manslaughter if self-defence only fails because the

force used is held excessive even though the

accused may believe reasonably that it was

reasonably necessary in the circumstances, it was

essential, in our submission, that the jury should

be asked to decide whether the prosecution had
proved beyond reasonable doubt that there were no

reasonable grounds for the belief held by the

applicant. Now, it was never put in that way.

BRENNAN J: What about page 58, line 18?

MR MULHOLLAND: At line 18, Your Honour?

BRENNAN J:	"If you are satisfied beyond reasonable doubt".
MR MULHOLLAND:	Yes, but at that point, Your Honour, it is

unreasonable for him to do that. What His Honour

is not putting is: were the grounds by which he
held that belief - were those reasonable? Had the

prosecution proved beyond reasonable doubt that

there were no reasonable grounds for the belief?

Now, in order to do that, of course, what was vital

was to put it in its evidentiary context. in fact His Honour had done was to, at page 57, But what	really commence the whole direction of self-defence
at this point, to commence by telling the jury, really giving them reasons why they should reject
the defence.

This was a defence which was not a tenuous one

or a weak one and yet the way in which it was put

was really to suggest to the jury that it should be

rejected at the - it was put in a way which

suggested to the jury that it should be rejected at

the outset, because he could have done other

things. "He could have hit him with a chair; he

could have stabbed him not, however, in the way

that he did; perhaps just wound him."

Fietkau 29/6/94

DAWSON J:  But that was a matter of comment. The jury did

not have to accept that, and what was said at the

bottom of page 56 and the top of page 57:

The real issue, you might think, in this case,

is whether the Crown has proved beyond

reasonable doubt that it was unreasonable for

the accused to believe that the only way he

could preserve Malcolm from death or grievous

bodily harm was to plunge the knife into the

deceased's back.

That is accurate enough, is it not?

MR MULHOLLAND:  We submit that it should have been put as to

whether the prosecution had proved beyond

reasonable doubt that there were no reasonable

grounds for the belief. This was a case, as I say,

Your Honour, where His Honour seemed to have

accepted that there was a genuine belief, that

there was a reasonable apprehension of death or

grievous bodily harm, so the only question for the

jury was whether the prosecution had proved beyond

reasonable doubt that there were no reasonable

grounds for the belief, and that is - - -

BRENNAN J: Your argument then is he should have said that

"there were no reasonable grounds for the accused

to believe", instead of saying, "it was

unreasonable for the accused to believe"?

MR MULHOLLAND: 

Putting it whether it was unreasonable for

the accused, really puts it in the abstract rather
than in the concrete by reference to the facts,

Your Honour. What His Honour does not do, apart

from a very brief reference to it, was to put this in its evidentiary context. We submit that it was particularly unfortunate for His Honour to have

referred to "weighing alternative courses of

action" given the circumstances in which the
applicant was facing. That appears at the top of

page 58.  Your Honours, the third point concerns the

operation of section 31 of the Code, section 31(3).
If special leave is not granted on the first two

grounds, it is not submitted that it should be

granted on this ground. If there is a defence

under section 271 in respect of threatened
violence, it cannot be said that the applicant

would obtain any greater protection under

section 31(3). It would become, however, important

if the Court of Appeal was correct in its ruling
that the self-defence was not available so far as
the applicant was acting in defence of himself

because this was only threatened and there was no
actual assault going on at the time.

Fietkau 6 29/6/94

If the Court of Appeal was wrong in its

interpretation of section 31 and it was applicable

to murder, the summing up was deficient because it

did not deal with section 31 in relation to the
applicant acting in defence of himself.

Essentially, the Court of Appeal found no ambiguity

in the section and therefore did not resort to

extrinsic material which, it appeared to accept,

did point away from the interpretation Their

Honours accepted.

Now, so far as ambiguity is concerned, perhaps

the most important factors would be these: the

word "threat" in the proviso is only used elsewhere

in the section in subsection (4), although in

subsection (3) there is reference to the word

"threatened". Secondly, originally the proviso

contained the words "an offence punishable by

death" which were replaced by the words:

the crime of treason or murder, or any of the
crimes defined in the second paragraph of
section eighty-one and in section eighty-two

of this Code -

when capital punishment was abolished in 1922 in

Queensland. In other words, up until that time it may be thought that the proviso was not intended to apply to subsection (1), the position of the

hangman.

The other point, and it perhaps does not carry

the same weight, is the last paragraph of the
section returns to the margin and it is clearly a

reference only to subsection (2).

If reference to extrinsic materials is

referred to, both the margin in

Sir Samuel Griffith's draft code and also by

reference to the English bill of 1880 would support
the contrary interpretation on that reached by the
Court of Appeal, and the Court of Appeal seemed to accept that that was so but found that there was no ambiguity. Those are our submissions, Your Honour.

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

you, Mr Butler.

The Crown was unable to prove that the fatal

force used by the applicant was the blow of the
sledge hammer to the head of the deceased.

Accordingly, the question for determination by the

Court of Criminal Appeal was whether the summing up

properly directed the jury on the issue whether the

stabbing of the deceased in the back with a knife

was justified as force necessary for defence

against an unprovoked assault by the deceased which

Fietkau	29/6/94 caused reasonable apprehension of death or grievous
bodily harm. The use of such force is justified under the second paragraph of section 271 of the
Code if, and only if:

"the person using force by way of defence

believes, on reasonable grounds, that he

cannot otherwise preserve the person defended

from death or grievous bodily harm"

At the time of the stabbing the deceased was

violently attacking Coch and, let it be assumed for
the purposes of argument, might have returned to
the attack on the applicant once the assault on
Coch was complete. If the jury rejected the

argument that the applicant believed on reasonable grounds that he could not preserve Coch from death

or grievous bodily harm otherwise than by stabbing

the deceased, a fortiori, they must have rejected

an argument that the applicant believed on

reasonable grounds that he could not preserve

himself or the women in the house, none of them

being under immediate attack, from death or

grievous bodily harm otherwise than by stabbing the

deceased. Whether or not the circumstances which

gave rise to the apprehension which the applicant

says he entertained for his own safety and the

safety of the women amounted to an "assault" within

the definition of that term in section 245 of the

Code, the view which the jury must have taken of

the facts of the case precludes the possibility

that any miscarriage of justice arose out of the

directions or absence of directions as to

self-defence or defence of the women.

As to the second point, there was no material misdirection to the jury adverse to the applicant

as to the issue for the jury's determination under

the second paragraph of section 271.

Finally, the construction placed by the Court

of Criminal Appeal on section 31 of the Code is not

attended with sufficient doubt to justify a grant

of special leave to consider that section.

Therefore special leave is refused.

AT 4.26 PM THE MATTER WAS ADJOURNED SINE DIE

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