Graham v The Queen

[2016] HCATrans 62

[2016] HCATrans 062

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Brisbane  No B48 of 2015

B e t w e e n -

MARK JAMES GRAHAM

Applicant

and

THE QUEEN

Respondent

Application for special leave to appeal

KIEFEL J
NETTLE J

TRANSCRIPT OF PROCEEDINGS

AT BRISBANE ON FRIDAY, 11 MARCH 2016, AT 12.28 PM

Copyright in the High Court of Australia

MR M.J. COPLEY, QC:   If the Court pleases, I appear for the applicant.  (instructed by Grigor Lawyers)

MR T.A. FULLER, QC:   If it please the Court, I appear with my learned friend, MS V.A. LOURY, for the respondent.  (instructed by Director of Public Prosecutions (Qld))

KIEFEL J:   Yes, Mr Copley.

MR COPLEY:   Your Honours, in this matter the principal issue at the trial was whether the Criminal Code provisions concerned with self‑defence had been excluded.  If self‑defence could not be negatived, then the applicant’s conduct in wilfully discharging his weapon on two occasions would not have been unlawful.  The error is to be found in application book 113 in paragraph [37] of the judgment of Justice Atkinson where she said that:

The Crown Prosecutor correctly pointed out that lack of consent was an essential element of the offence of assault.  There was no further need for the issue to be addressed by the trial judge –

That is the sentence that we complain about.  There was a further need.  Whether an accused person has assaulted another person is always a potentially relevant issue where self‑defence is raised or relied upon, and it was rendered one of the real issues in this case by the manner in which the learned Crown Prosecutor addressed the jury in his closing address.

To demonstrate first of all the legal relevance of assault and consent to assault to self‑defence, could I just take your Honours to section 271 of the Code which is reproduced in the application book at page 148 where your Honours will see, for example, with respect to section 271, it provides for two forms of self‑defence; the first in the first subsection, the second in the second. But, irrespective of which subsection one wishes to engage – and both were in this case – each subsection is predicated upon there being an unlawful assault, which assault was not provoked. So, it is therefore necessary to have regard to what an assault is and, of course, that is defined in section 245 of the Criminal Code which appears at application book 148, relevantly:

A person . . . who by any bodily act or gesture attempts or threatens to apply force of any kind to the person of another without the other person’s consent –

So it is then necessary to look at what the learned prosecutor said about this matter, and the most telling submission against the applicant starts at the foot of page 23 of the application book – or, sorry, the second last paragraph on 23 where your Honours will see that the learned prosecutor said in about the third last sentence:

This started as a consensual confrontation.

I will just invite your Honours to read the rest of the paragraph from lines 30 to 35.  Then, your Honours, at about line 43 the prosecutor said:

there are some limiting features to the various forms of self‑defence . . . In each case, there must be an unlawful – and I emphasise – unlawful assault ‑

He then read at line 45 effectively the definition in section 245 of the Code about the threatened application of force being without consent, and at the top of page 24 in the balance of that paragraph he said:

They were both in puffing mode.  But it must be without consent and they were both in it; they were both happy to be doing that.

Then he brings the matter all together, as it were, in the next paragraph between lines 10 and 15, and I would just invite your Honours to read that.  So, unlike in many cases of self‑defence where the Crown might seek to negative section 271 and/or subsection (2) of 271 by arguing, for example, that there was no basis for the offender to have a reasonable apprehension of death or grievous bodily harm or no basis for him to have used the force that he in fact used, the prosecutor did mount those arguments in the paragraphs which follow, but he chose to try to negative or knock out the whole self‑defence scenario by saying to the jury it was a consensual confrontation, they were in it together, they were consenting to it.

Him choosing to put the matter that way then cast an obligation, it is suggested, onto the learned trial judge to deal with that in his directions to the jury.  The basis for the submission that there was an obligation on the trial judge to deal with that comes from the decision in R v Raabe [1985] 1 Qd R 115 and in particular the passage relied upon is at the foot of 121 between lines 40 and 45 in the judgment of Justice Thomas where he said it is wrong to speak in terms of a “consent to fight”, that “The issue, if it arises at all” – and it did not arise here until the learned prosecutor made it an issue – was whether the person had consented “to a particular assault or a particular series of assaults”.

So the prosecutor, having made it an issue, it was then incumbent upon the learned trial judge to direct the jury in the following way.  He needed to, it is submitted, identify for the jury what the relevant assault was, and the relevant assault was the production of the flick knife with the threat implicit in that that the offender might be cut.  It was then necessary to direct the jury that only if the applicant, rather, had consented to that particular form of assault, namely, being menaced with a knife or cut with a knife, would it be necessary for the jury to consider the issue of assault in terms of whether or not there had been one to negative self‑defence.

But finally, and crucially in this case, his Honour would then have gone on to direct the jury that there was simply no evidence in the case that the applicant had consented to being cut with a knife or being threatened with being cut with a knife.  The evidence was silent on the point and therefore his Honour would have said to the jury, “Ignore what the prosecutor said about self‑defence being able to be negatived on the basis that the applicant consented to a fight.  Concentrate instead, if you wish, upon the other limbs of the prosecutor’s argument that self‑defence might be negatived because there was no reasonable apprehension of death or grievous bodily harm and/or might be negatived because a force was used that was excessive”.  That is what was required.  Those directions were not given.  They were not sought, I acknowledge that; that point is made against us.

NETTLE J:   Although the Crown Prosecutor seemed to suggest to the trial judge that he should give such directions.

MR COPLEY:   Well, he did not explicitly say so, but it could perhaps be said that he can be taken to have assumed that his Honour would have been familiar with the principles and in seeking to negative self‑defence this way, he perhaps should have been astute to ensure that at the end of the summing‑up if there were no directions on the matter canvassing it, it needed to have been something his Honour should have dealt with.

But instead what happened in the case was that his Honour reminded the jury of the learned prosecutor’s contention at page 66.  It begins at line 15, but particularly between lines 20 and 30.  Very particularly between lines 20 and 25, he reminded the jury of the submission.  So, in my submission, the problem was compounded or the mistake – not the mistake, but the way in which the prosecutor – one of the ways in which the prosecutor sought to negative self‑defence was a matter the jury received a specific reminder about, but did not get what I say are the necessary directions that they should have received.

To the extent that there were any directions regarding the question about what an assault was, and consent, they are to be found at application book 56 to 57 between lines 40 on page 56 and line 13 on page 57.  Really that was confined to his Honour telling the jury that if Mr Teamo did not assault the applicant, the defence was not open.  His Honour then read to the jury the definition of “assault” in 245 and told the jury, correctly, that a

threat to apply force could constitute an assault just as much as an application of force.

But he did not give the jury the directions which I say Raabe’s Case required.  They would not have been required in this case had the prosecutor not sought to negative self‑defence in the manner in which he did.  But the parties define the issues.  He made it an issue.  He made it a central issue because it was one of three ways in which he could negative the defence and then the obligation fell upon his Honour to direct accordingly and it was not discharged, and the Court of Appeal erred in its conclusion at paragraph [37] where Justice Atkinson said it was not necessary for his Honour to say anything.  Thank you.

KIEFEL J:   Thank you, Mr Copley.  Yes, Mr Fuller.

MR FULLER:   Thank you, your Honours.  Your Honours, the central feature in the trial was when the production of the weapons occurred and your Honours will see that both in the addresses of the Crown Prosecutor and the defence counsel, the focus was on the timing of when the knife was produced as against where the gun was produced.  So, looking at record book page 12 where the prosecutor actually first raises the issue, if I could take your Honours to line 35 where he speaks of the three propositions.  The first is, your Honours will note, that both were:

behaving as badly as each other, that what was occurring was, at least until the gun was pulled out, a consensual fight or consensual confrontation –

That was based upon a deal of video evidence that showed the applicant walking past the store where the complainant was located, recognising him within the store and then coming back and entering the store and as was described as eyeballing or starting at each other.  That then led to a situation where the applicant left the store.  He was followed by the complainant who then called out to him and challenged him.  There is then video evidence of him turning and walking back towards the victim and then there is the disputed area of when the knife is produced as against when the gun was produced.

Your Honours will see that that was recognised by her Honour Justice Atkinson at paragraph [18] of her judgment on page 104 of the record book in encapsulating what the Crown Prosecutor was addressing on.  So her Honour acknowledges the propositions that I have just placed before your Honours that the suggestion was the initial confrontation between the two men was consensual and then it became an issue of when the weapons were produced as to whether a defence of self‑defence was available.

If I could just take your Honours to page 59 of the record book, just in addition to the passages that my learned friend just referred your Honours to with respect to his Honour’s directions, because my friend quite rightly says that the parties set the parameters.  Your Honours will see at line 10 his Honour at this stage is dealing with section 271(1) which is the first provision of self‑defence, focusing clearly on the assault by the complainant upon the applicant.  His Honour then focuses again on the apparent present ability to carry out the assault in the context of him being armed with a knife.  Now, there were competing contentions placed by both ‑ ‑ ‑

KIEFEL J:   His Honour does not deal with the question of consent.

MR FULLER:   He does not, your Honour, because ‑ ‑ ‑

KIEFEL J:   And the view of the Court of Appeal was that it was not necessary because the prosecutor did so but the question is whether or not the prosecutor did so correctly.

MR FULLER:   Yes.  Your Honour, the only time that consent turns up is in the definition of an assault, unlike the decision my learned friend refers to in Raabe where it was a consideration of whether the defence was open to the defendant on the basis that he was engaged in a consensual fight with the complainant.  Here we are actually looking at the other way around.

NETTLE J:   There is no doubt the Crown Prosecutor sought to persuade the jury that the accused consented to all of the activity which preceded the drawing and firing of the weapon.

MR FULLER:   Indeed, to the drawing and firing of the weapon.

NETTLE J:   So what the jury needed to understand was it was critical for them to decide whether he consented to the drawing of the knife if it preceded the firing of the weapon.

MR FULLER:   That was dependent, in my submission, your Honour, upon the factual finding as to when the knife was drawn, as against when the gun was drawn.

NETTLE J:   Of course, but it depends upon what finding the jury made.  If they made that finding, they needed to be told.  The question for them then was whether the accused had consented to the drawing of it, did they not?

MR FULLER:   Well, yes, your Honour, consistent with the concept of consent, it has to be consent to an act; that you cannot consent to something which you do not know.

NETTLE J:   What seems to be put against you is that in the way in which the matter developed, the jury may well have taken the view that it was enough that there was consent at the outset to the eyeballing and so forth to negative self‑defence in relation to the drawing of the knife.

MR FULLER:   And his Honour does not specifically give that direction ‑ ‑ ‑

NETTLE J:   No.

MR FULLER:   ‑ ‑ ‑ and I acknowledge that.  But in the context of which the matter was litigated, it was clear that from the defence they did not seek that direction, that their allegation was that the knife was produced first and caused their client’s reaction and that the Crown could not exclude that beyond reasonable doubt.  What followed on from that was then the other propositions which were put by the Crown that, even if the issue around the production of the knife was non‑consensual at that stage, there were then the arguments about the degree of force which was then used in response to what the nature of the threat was, which is covered by the other provisions in section 271.

If your Honours follow through the remarks actually put by the Crown Prosecutor, my learned friend has already taken you to when he then speaks of a “public . . . and a consensual confrontation” at page 14 of the record.  He then dealt with what he said was an “undeniable inference” at line 15 on page 14 that the weapon was being prepared prior to the initial confrontation between the two men in the shop.  Then that was further developed later by speaking of the occasion where the $10 note was dropped and returned to the applicant, and the point was made that it was returned to his left hand, that the weapon was fired with the right hand, and going through the video after that, that it was clear that his hand did not seem to go anywhere near where the bag was where the weapon was held.

So, the factual proposition from the Crown Prosecutor in those circumstances was that he was armed at least at the time that the flick knife came out, so the propositions that are put against me, factually that was not what the prosecutor was contending and that was not where the point of combat was between the Crown and the defence, which perhaps explains why the further direction was not sought by either the Crown or the defence.

NETTLE J:   There cannot have been any forensic advantage in not seeking it though, can there?

MR FULLER:   Well, the forensic advantage was perhaps the fact that the complainant was painted as the aggressor throughout from the defence point of view, and that all of his acts were acts of aggression and that the applicant was only reacting to those actions, and therefore issues of him being involved consensually, that was not a proposition that was put to the jury by the defence; in fact, it was a confrontation the other way and that the complainant was the one who escalated by producing the flick knife and producing the blade.

So, those were dealt with by the Court of Appeal in their judgment and my learned friend has already taken you to the relevant passages and the finding by her Honour with respect to that that was adopted by the court, so that his Honour had given thorough directions with respect to the provisions which were to be left, that he had on two occasions left the definition of what an assault was and the term “consent” did not require further definition with respect to that.  Thank you, your Honours.

KIEFEL J:   Thank you, Mr Fuller.  We do not need to hear you in reply, Mr Copley.  There will be a grant of leave in this matter.  Will the matter take any more than half a day, the short point?

MR COPLEY:   I would not have thought so, your Honour.

KIEFEL J:   Mr Fuller?

MR FULLER:   No, your Honour.

KIEFEL J:   Half a day then.  Would you please ensure that your instructing solicitors obtain a copy of the directions necessary to be followed from the Deputy Registrar?

MR COPLEY:   Yes, your Honour.

MR FULLER:   Thank you, your Honour.

KIEFEL J:   The Court will now adjourn until 1.45 pm.

AT 12.48 PM THE MATTER WAS CONCLUDED