Helmhout, John Michael v The Queen

[1980] FCA 138

Re: JOHN MICHAEL HELMHOUT
And: THE QUEEN (1980) 49 FLR 1
No. 6 of 1980
Criminal Law - Practice

COURT

IN THE FEDERAL COURT OF AUSTRALIA

AUSTRALIAN CAPITAL TERRITORY REGISTRY
GENERAL DIVISION
Smithers(1), Brennan(1) and Deane(1) JJ.

CATCHWORDS

Criminal Law - Felonious wounding with intent to murder - Malicious wounding with intent to do grievous bodily harm - Self defence - Reasonable belief in danger from unlawful attack - Proper direction to jury - Intoxication - Special intent - Provocation.

Criminal Law - Malicious wounding with intent to do grievous bodily harm - Self-defence - Belief of accused of danger from unlawful attack - Belief accused might reasonably have held - Proportionality of force used by accused - Proper direction to jury - Intoxication - Provocation.

Practice - Order for new trial - Power of appeal court over accused pending retrial.

HEADNOTE

The appellant was acquitted before the Supreme Court of the Australian Capital Territory on a count of maliciously wounding with intent to murder and convicted of a count of maliciously wounding with intent to do grievous bodily harm. He appealed against his conviction and sentence.

On appeal,

Held: Per curiam - (1) The trial judge had failed to direct the jury that as to the issue of self-defence it was relevant for them to consider whether the force which the appellant used was reasonably proportionate to the danger which he believed he faced or which he might reasonably have believed himself to face.

Viro v. The Queen (1978), 141 CLR 88, applied.

(2) Although counsel for the appellant at the trial had not raised the matter at the conclusion of the trial judge's directions, as those directions were liable to cause the jury to ignore an important aspect of the issue of self-defence the verdict should be set aside.

R. v. Lavery (No. 2) (1979), 20 SASR 430, referred to.

(3) The court possessed power to place the appellant into his former custody or admit him to bail pending retrial.

(4) Appeal allowed.

HEARING

Canberra, 1980, September 29-30; October 20. #DATE 20:10:1980

APPEAL.

The appellant appealed from the verdict and judgment of the Supreme Court of the Australian Capital Territory.

Certain rulings during the course of the trial are reported in R. v. Helmhout (1980), 42 F.L.R. 53.

D. H. Hodgson Q.C. and F. Gordon, for the appellant.

T. R. H. Cole Q.C. and J. R. Pritchard, for the Crown.

Cur. adv. vult.

Solicitor for the appellant: R. A. O. Martin.

Solicitor for the Crown: B. J. O'Donovan, Commonwealth Crown Solicitor.

T. J. GINNANE

ORDER

1. That the appeal be allowed.

2. That the verdict and judgment of the Supreme Court of the Australian Capital Territory whereby the appellant was convicted of the crime of maliciously wounding David Peter Helmhout with intent to do grievous bodily harm be set aside.

3. That the sentence imposed upon the appellant consequent upon that conviction be set aside.

4. That the appellant be retried upon the count of maliciously wounding Peter David Helmhout with intent to do grievous bodily harm at a time to be fixed by the Supreme Court of the Australian Capital Territory.

5. That the appellant be remanded in his present custody pending his retrial or the earlier completion of the proceedings upon the indictment upon which he was convicted as aforesaid, subject to such order as the Supreme Court of the Australian Capital Territory may make with respect to bailing the appellant.

Appeal allowed.

JUDGE1

The appellant was charged on indictment before the Supreme Court of the Australian Capital Territory on a count of feloniously wounding David Peter Helmhout with intent to murder and in the alternative on a count of maliciously wounding David Peter Helmhout with intent thereby to do grievous bodily harm. After a trial before Blackburn C.J. and a jury he was acquitted on the first count and convicted on the second. He was sentenced to imprisonment for three years with a non-parole period of 18 months. He appeals to this Court against his conviction and sentence.

The circumstances out of which the charges arose showed that the appellant and his brother, the David Peter Helmhout mentioned in the indictment, were drinking in the company of others during the afternoon and evening of 3 November 1978. David was a bigger man than the appellant and is alleged to have exhibited some aggression against his smaller and younger brother. Sometime after midnight, the appellant, his brother and one Patterson, with whom they had been drinking, were walking towards Civic Centre when the appellant and his brother commenced arguing and David hit the appellant on the side of the head. Patterson's evidence as to what ensued was that the appellant was backing off, David continued to punch at him, the appellant produced a knife, David then started kicking at him, and the appellant ran away and was chased by David who taunted and insulted him. There was evidence that both brothers were at least partly intoxicated at the time. The appellant stabbed David with the knife and one of the wounds which he made was deep and dangerous, though fortunately David survived.

The appellant made an unsworn statement which the learned trial judge repeated in his charge to the jury. In that statement the appellant said, inter alia, that David was calling him obscene names and that he told David to cut it out or he would use the knife. He said that David kept on punching, kicking and obscenely abusing him. His statement then proceeded as follows:

"He kept on kicking me and I was back-pedalling. He dared me to hit him and I was still back-pedalling, then I jabbed at him with the knife. I did not really mean to hurt him, I just wanted him to stop. I did not realise I had hurt him.

It was only after I found out how bad he was that I realised what I had done. It was only after the police told me how many times he had been cut that I realised how many times he had been cut. I was really too drunk to know what I was doing . . ."

The issues open for the jury's consideration included self defence and the effect of intoxication upon the formation of one or other of the special intents which is an element in the respective offences charged in the indictment. These are issues to which the judgments in the High Court in Viro v. The Queen (1978) 141 C.L.R. 88 were directed.

In Viro's case, Mason J., speaking for himself, Stephen J. and Aickin J., stated the matters which a jury must consider when determining an issue of self defence in a trial for murder where threat of death or grievous bodily harm to an accused is in question. His Honour said (at pp.146-147):

"1.(a) It is for the jury first to consider whether when the accused killed the deceased the accused reasonably believed that an unlawful attack which threatened him with death or serious bodily harm was being or was about to be made upon him.

(b) By the expression 'reasonably believed' is meant, not what a reasonable man would have believed but what the accused himself might reasonably believe in all the circumstances in which he found himself.

2. If the jury is satisfied beyond reasonable doubt that there was no reasonable belief by the accused of such an attack no question of self-defence arises.

3. If the jury is not satisfied beyond reasonable doubt that there was no such reasonable belief by the accused, it must then consider whether the force in fact used by the accused was reasonably proportionate to the danger which he believed he faced.

4. If the jury is not satisfied beyond reasonable doubt that more force was used than was reasonably proportionate it should acquit.

5. If the jury is satisfied beyond reasonable doubt that more force was used, then its verdict should be either manslaughter or murder, that depending upon the answer to the final question for the jury - did the accused believe that the force which he used was reasonably proportionate to the danger which he believed he faced?

6. If the jury is satisfied beyond reasonable doubt that the accused did not have such a belief the verdict will be murder. If it is not satisfied beyond reasonable doubt that the accused did not have that belief the verdict will be manslaughter."

Gibbs J. said (ibid. at p.128) that this statement should be accepted as correct (see, also, per Jacobs J. and per Murphy J., ibid. at p.158 and p.171).

The statement is, of course, directed to the task of a jury in a trial for murder where the force used by an accused in self defence was disproportionate to the actual danger which he faced. It is not directed to the task of a jury where the force used in self defence was no more than proportionate to the actual danger faced by the accused. It is apparent from the statement that the fact that the force used by an accused was disproportionate to the danger which he actually faced did not, in itself, dispose of the defence of self defence, if the accused might have believed that he faced a graver danger than he actually did.

The present case is one where it was open to the jury to conclude that the appellant might have entertained an exaggerated belief as to the danger which he faced by reason of his brother's unlawful attack upon him. That being so, it was necessary that the jury be directed to consider whether the force used by the appellant may have been proportionate to the danger which he believed he faced. In that regard, Mason J's statement of the appropriate direction in a murder trial needs to be adapted for use where the relevant charge is not homicide.

Paragraphs 5 and 6 of the statement are concerned with a verdict of manslaughter on an indictment charging murder. Paragraphs 1 to 4 relate to the justification of self defence in a case where an accused has killed the person attacking or threatening him. As self defence may justify the use of force which does not cause death, the principles expressed in paragraphs 1 to 4 apply, mutatis mutandis, to cases other than homicide. In such a case, where a defence of self defence is an issue, paragraph 1(a) would be expressed to read:

"It is for the jury first to consider whether when the accused applied force to the person of another the accused reasonably believed that an unlawful attack was being or was about to be made upon him."

The test of whether an accused's belief was reasonable is not whether an unlawful attack was being made or was about to be made upon him, nor even whether the hypothetical reasonable man in the accused's position would have believed that an unlawful attack was being made or was about to be made on him. The test is whether the accused himself might reasonably have believed in all the circumstances in which he found himself that an unlawful attack was being or was about to be made upon him. Unless the jury is satisfied beyond reasonable doubt that the accused did not reasonably believe that an unlawful attack was being or was about to be made upon him, the question of the proportionality of the force actually used will arise for consideration.

Paragraph 3 requires that the question whether the force actually used by the accused was reasonably proportionate be determined by reference to the danger which the accused believed he faced. However, in our view, paragraph 3 does not require a positive finding by the jury as to the precise belief of the accused in that regard. Where the jury is not satisfied beyond reasonable doubt as to that precise belief of the accused, it would seem that the relevant question is whether the force actually used was reasonably proportionate to the gravest danger in which, as a matter of reasonable doubt, the jury considers the accused might have believed he was placed. Or, putting the question in other words, whether the jury is satisfied beyond reasonable doubt that the force actually used was disproportionate to the danger in which the accused might have believed himself to be placed.

The summing up of the learned trial judge drew the jury's attention to the evidence of the actual circumstances surrounding the stabbing. His Honour told the jury that there was no doubt that there was both actual and threatened application of force to the appellant. As there was little room for doubting that the appellant believed that an unlawful attack was being made upon him, the vital part of his Honour's summing up on the issue of self defence was plainly that which directed the jury to consider whether the force in fact used by the appellant was justified. His Honour did not, in terms, direct the jury that it was relevant for them to consider whether the force which the appellant used was reasonably proportionate to the danger which he believed he faced or which he might reasonably have believed himself to face.

Careful reading of the relevant sections of his Honour's summing up leads us to the conclusion that the overall effect was to invite the jury to say whether they were satisfied that the appellant had applied more force than was reasonably necessary in the actual circumstances of the case in order to prevent the actual or immediately threatened application of force to himself. It was implicit in the summing up that if the jury were satisfied beyond reasonable doubt that that was so, the defence of self defence failed. In this regard, his Honour's charge to the jury stopped short of the direction which, we think, the views expressed by the majority of the High Court in Viro's case (supra) required.

In the result, it would seem probable that the members of the jury did not address their minds to assessing the proportionality of the force used by reference to the danger in which the accused might reasonably have believed himself to be placed but confined themselves to the objective question enunciated by his Honour. That may well have resulted, in the particular circumstances, in a view of the case less favourable to the accused. In these circumstances, we can feel "no reasonable assurance that the blemish of the trial could not reasonably be supposed to have influenced the result" (Duff v. R. (1979) 28 ALR 663 at p.678). Subject to the effect of the failure of counsel for the accused to raise the matter at the end of the summing up, the non-direction requires that the verdict of wounding with intent thereby to do grievous bodily harm be set aside and would have required the setting aside of a verdict of guilty of malicious wounding had the jury reached that alternative verdict which was open to them on the indictment.

Counsel who appeared at the trial made no suggestion, at the conclusion of his Honour's summing up, that his Honour's directions on the issue of self defence were in any way deficient. A failure by defence counsel may, in some cases, have an important bearing on the question whether a miscarriage of justice has occurred so as to entitle the accused to a new trial (The Queen v. Lavery (No.2) (1979) 20 S.A.S.R.430 at p.431). The object of the administration of criminal law is, however, to secure as far as possible that justice be done according to the law. In the present case, as his Honour's directions to the jury were liable to cause them to ignore an important aspect of the issue of self defence, the failure to raise the matter at the end of the summing up does not provide sufficient reason for refusing to set aside the verdict of guilty of wounding with intent thereby to cause grievous bodily harm.

Notwithstanding the submissions of counsel for the appellant, there is no basis upon which an appellate court could properly substitute for that verdict a verdict of guilty on the lesser alternative charge of malicious wounding. This Court should order a new trial on the count of malicious wounding with intent thereby to do grievous bodily harm.

It is unnecessary for the disposal of this appeal to deal with the two other substantive grounds of appeal which were argued. In view of the order for retrial, however, it would seem desirable that we make some brief comment on the questions involved in those further grounds.

The evidence of intoxication in this case was relevant both to the appellant's capacity to form the relevant intent and to the question whether in fact he formed it. If the evidence on any retrial is to the same effect as on the trial, the jury should be directed in the manner defined in Viro's case (supra); that is to say, that the Crown must prove beyond reasonable doubt that the appellant actually formed the intent to do grievous bodily harm and that the appellant's state of intoxication is relevant to that issue generally. It is insufficient and perhaps misleading to direct the jury in terms which are restricted to the capacity to form the relevant intent. We note that, in the argument before us, it was unnecessary to develop the relationship between what Gibbs J. said in Viro's case (supra, at p.111) and the judgment of the High Court in O'Connor v. The Queen (1980) 29 ALR 449.

Insofar as provocation is concerned, we agree with his Honour's ruling that the defence of provocation for which s.23 of the Crimes Ordinance provides has no application to the offence of maliciously wounding with intent to do grievous bodily harm. We should, however, wish to guard against the acceptance of reasoning which is founded upon the Victorian cases of Newman v. The Queen (1948) V.L.R.61 and Spartels v. The Queen (1953) V.L.R.194. Though it is unnecessary finally to decide the question, the judgment of Pape J. in Falla v. The Queen (1964) V.R.78, refusing to follow the earlier rulings in Victoria, appears consistent with principles which require the existence of the special intent in murder before allowing for the operation of provocation to reduce murder to manslaughter (see Johnson v. Reg. (1976) 51 A.L.J.R.57). But on any view, provocation is inapplicable to the offence contained in the count upon which the appellant may be retried.

The verdict and conviction appealed against should be set aside and a new trial should be ordered. Clearly enough, if the conviction be set aside, the sentence must also fall, and the setting aside of the sentence would entitle the appellant to be discharged from his former custody. Yet if there is to be a retrial the appellant must be remanded to stand trial before the Supreme Court and his presence before that Court must be secured. In other jurisdictions, a power is expressly conferred upon the Court of Criminal Appeal to place an appellant into his former custody or to admit him to bail pending his retrial, but there is no similar power expressly conferred upon this Court when ordering a retrial before a Supreme Court of a Territory. It is a power which must nevertheless be implied as necessary to the exercise of, and incidental to, the power to order a retrial.

In this case, the most convenient manner of exercising the power is to remand the appellant in his present custody to appear before the Supreme Court upon his retrial unless the proceedings upon the indictment are earlier terminated. Under such an order the appellant retains his status as a prisoner under the Removal of Prisoners (Australian Capital Territory) Act 1968 and, if the retrial should result in a conviction, the time spent in custody should be taken into account in determining the appropriate sentence. Conversely, the possibility of acquittal requires that an application for bail pending retrial should be disposed of as quickly as possible. It is nevertheless an application which, we think, ought to be left to the decision of the Supreme Court of the Australian Capital Territory. That is the Court before which any retrial must take place and before which the appellant must be remanded to appear.