John Quail v The Queen

SUPREME COURT OF VICTORIA

COURT OF APPEAL

S APCR 2013 0223

JOHN QUAIL	Appellant
v
THE QUEEN	Respondent

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JUDGES:	REDLICH, TATE and PRIEST JJA
WHERE HELD:	Melbourne
DATE OF HEARING:	2 September 2014
DATE OF JUDGMENT:	18 December 2014
MEDIUM NEUTRAL CITATION:	[2014] VSCA 336
JUDGMENT APPEALED FROM:	R v Quail [2013] VSC 190 (Coghlan J)

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CRIMINAL LAW – Appeal – Conviction – Attempted murder – Whether failure to leave self-defence or accident – Appellant and victim gave contradictory accounts – Whether trial judge erred in withdrawing issues of self-defence and accident from jury – Whether actus reus of offence was sufficiently described – Appeal dismissed.

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APPEARANCES:	Counsel	Solicitors
For the Appellant	Ms C A Boston	Haines & Polites
For the Crown	Mr R A Elston QC	Mr C Hyland, Solicitor for Public Prosecutions

REDLICH JA

TATE JA:

The appellant, having been convicted of attempted murder following a trial in the Supreme Court, now appeals against his conviction.

The issue raised by the appeal is whether the trial judge erred in failing to leave to the jury the question whether the prosecution had established beyond reasonable doubt that the appellant had not acted in self-defence or that the shooting was not by accident.

We have had the considerable advantage of reading in draft the reasons of Priest JA, in which he has conveniently summarised the Crown case concerning the circumstances in which Mr Ridis came to be shot by the appellant and the appellant’s subsequent driving of his car at Mr Ridis.

The defence case was that the victim, Mr Ridis, had brought the pistol with silencer to the scene of the shooting and that during the appellant’s struggle for the pistol Mr Ridis had been injured when the gun discharged. After the shots were fired and the fight over the pistol concluded, the appellant drove his motor vehicle at Mr Ridis in order to prevent Mr Ridis shooting him.

After directing the jury correctly as to the elements of attempted murder, the judge in his charge said:

The accused man is charged with the attempted murder of [Mr Ridis] and in the alternative with intentionally causing him serious injury. The crime of attempted murder is committed if a person does an act or acts towards another with intention to kill that person. Nothing short of intent to kill will be sufficient.
The acts must be more than preparatory, but if the facts in this case are otherwise accepted, that is not an issue. You see, sometimes, you might have some conduct leading up to something happening and it just will not be enough to constitute an attempt, but if you accepted, beyond reasonable doubt, here that the accused man went armed and he shot Mr Ridis, the acts would be more than preparatory, it has gone beyond preparatory in that sense.
It would also be a basis of it that there be no lawful justification or excuse, such as self-defence. Now, self-defence does not arise in this case because what will emerge is that unless you are satisfied, beyond reasonable doubt, that the accused man was the aggressor, that he took the gun and he was the aggressor, you cannot convict him of anything. So it does not come up that what is being said was, he shot someone in self-defence.
He says that in a sense, but he says that based on what is the conflicting version of the way that cases are put. The prosecution case is that the accused did bring the pistol and that he was the aggressor. The defence case is that it was Ridis who had the pistol. The defence do not need to prove that, but in putting the case in that way, it is to establish a reasonable doubt about the assertion that the accused brought the pistol and was the aggressor.
Although, as a matter of law, cases are not resolved by one piece of evidence, in this case, unless you are satisfied, beyond reasonable doubt, that the accused came to Tarmac Drive armed with the pistol, he could not be convicted of either offence. That has been the prosecution case from the beginning to the end of it and it has never been resiled from.[1]

[1]Emphasis added.

The trial judge took the view, with the concurrence of experienced defence counsel, that it was appropriate to withdraw the issue of self-defence from the jury and instead instruct the jury that they could not convict the appellant unless they were satisfied beyond reasonable doubt that it was the appellant who brought the gun to the scene of the shooting and was the aggressor. In adopting this course the judge sought to simplify the jury’s task to a narrow factual issue.[2] That was consistent with the judge’s duty at common law as explained in Alford v Magee,[3] now reflected in the Jury Directions Act,[4] that the judge should identify the issues and instruct the jury only as to such matters of law as are necessary to resolve the real matters in issue. It is for the judge to decide what are the real issues in the case and then tell the jury what those issues are.[5]
[2]The course followed is now contemplated by s 19 of the Jury DirectionsAct 2013.
[3](1952) 85 CLR 437, 466.
[4]Sections 17 and 18.
[5]Nicholls v The Queen (2005) 219 CLR 196, 321–2 (Hayne and Heydon JJ).

In Zhu v The Queen[6] this Court dealt with a very similar contention to that raised in the present appeal:
[6][2013] VSCA 102.

[T]he fact that defence counsel does not stress an alternative case before the jury (which he or she may well feel it difficult to do without prejudicing the main defence) does not relieve the judge from the duty of directing the jury to consider the alternative, if there is material before the jury which would justify a direction that they should consider it. As Barwick CJ in Pemble v R [(1971) 124 CLR 107, 117] said:
Whatever course counsel may see fit to take, no doubt bona fide but for tactical reasons in what he considers the best interests of his client, the trial judge must be astute to secure for the accused a fair trial according to law. This involves, in my opinion, an adequate direction both as to the law and the possible use of the relevant facts upon any matter upon which the jury could in the circumstances of the case upon the material before them find or base a verdict in whole or in part.

A concomitant obligation is to confine such directions of law to those facts the jury need to know in order to resolve the issues in dispute. The ambit of these duties in a particular case will be determined by the evidence and not by the issues which the parties choose to pursue. Notwithstanding a forensic decision not to rely on a defence, a trial judge must put to the jury any matter or defence on which a reasonable jury, upon the evidence, could find for the accused. While no narrow view of the evidence should be taken, the matter or defence must, as Redlich JA observed in R v Tran [[2007] VSCA 19, [42]], ‘be a “real issue” plainly arising from the evidence as distinct from a remote or artificial possibility.’
On appeal, the Crown argued that the rule in Pemble and [R v Kear [1997] 2 VR 555] should be re-considered in light of recent decisions of this Court, such that a higher hurdle should be imposed on parties seeking to argue that a trial judge was bound to put a matter to the jury even if it had been disavowed by counsel. The Court may in the future need to consider to what extent the rule in Pemble will have application as a result of the Jury Directions Act 2013 (Vic). That said, the rule in Pemble has been applied by this Court in numerous cases and there is no reason to qualify its application in present case.[7]

[7]Ibid [21]–[24] (Redlich JA and Kaye AJA, Whelan JA agreeing) (remaining citations omitted).

Before the trial judge charged the jury he had discussed the proposal with counsel that he simplify the issues for the jury in this way. Defence counsel, who was very experienced, agreed with the course proposed. In summarising the way the parties put their cases, the trial judge gave effect to the agreed course.

As to the way the Crown put its case, the trial judge said of 14 propositions relied upon by the prosecutor:

[W]hat they boil down to in the narrative is this, that the Crown case is that the accused attempted to murder Ridis on the night of 7 July and he did so by shooting him as he approached the VN Commodore, he thinking [sic] that it was somebody who needed some assistance …

In summarising the defence argument, his Honour said:

[T]he Crown cannot prove beyond reasonable doubt that the accused went to Tarmac Drive armed with a pistol and as the aggressor, deliberately to shoot the complainant, Mr Ridis.

In directing the jury about the alternative charge the learned trial judge said:

The alternative charge is the charge of causing serious injury to Mr Ridis intentionally, and it arises only in the following circumstances.
If you are satisfied beyond reasonable doubt that the accused did bring the gun and attack Ridis, you would have to look at what is the next question, the next element in the offence. That is did he go there and make that attack and continue that attack, intending to kill Ridis? To kill him. No other intent suffices for the crime of attempted murder. It has to be intending to kill him.
If you are not satisfied — and remember this is all predicated on the proposition that you are satisfied that the accused brought the gun and attacked Ridis, that he was the aggressor — if you are not satisfied of intent to kill you would then have to consider whether or not you are satisfied that he intended to cause serious injury.
There is no question in this case that the injuries suffered by Ridis are serious injuries. The question is while acting as the aggressor, if you are not satisfied about attempted murder, did the accused man intentionally cause those injuries? So is that clear enough? That is the way in which that alternative arises, and it has not been taken up by the parties because the Crown emphatically puts its case on the basis of attempted murder and [defence counsel] emphatically puts his case on the basis of nothing.

Of course the parties’ agreement did not relieve the trial judge of the obligation to give such directions in law as were necessary as to possible uses of the relevant facts on any matter on which the jury could in the circumstances of the case base a verdict in whole or part.[8] It was the evidence, not the issues which the parties chose to pursue, which was determinative of the scope of the directions required. Defence counsel did not make a forensic decision to abandon self-defence or accident, but recognised that the defence of self-defence or accident which arose on the appellant’s version of the events was subsumed within the factual issue which the jury would be asked to resolve. As there was no alternative view of the evidence that gave rise to self-defence or accident, no direction as to those issues was required. The trial judge would only have been obliged to direct the jury as to such matters of law if a ‘real’ issue had arisen on the evidence, as distinct from remote or artificial possibilities.[9]
[8]R v Tran [2007] VSCA 19, [8] (Nettle JA).
[9]Ibid [39]–[42] (Redlich JA).

For the reasons that follow, we reject the contention that the trial judge erred in instructing the jury that if the prosecution failed to prove to their satisfaction that the appellant brought the gun to the shooting and was the aggressor, it was unnecessary to consider the question of self-defence or accident as the jury would be bound to acquit the appellant.

They had before them the competing testimony of the appellant and Mr Ridis. On Mr Ridis’ account, the appellant brought the gun and silencer and first discharged it whilst he was still seated in his motor vehicle as Mr Ridis was trying to run away. Mr Ridis was wounded. The appellant exited his car and approached Mr Ridis who had fallen to the ground. Further shots were fired and there was a struggle. During the struggle Mr Ridis bit the appellant’s finger and was able to wrestle the gun from the appellant and strike the appellant to the head. The jury’s verdict reflects the fact that the circumstantial evidence supporting Mr Ridis’ account that the appellant brought the pistol and was the aggressor was overwhelming.

The appellant’s account was diametrically opposed to the account of Mr Ridis. He said that Mr Ridis brought the gun to the scene and threatened him and that he struggled with Mr Ridis over the pistol. During that struggle the pistol was discharged a number of times.

If the appellant brought the gun to the scene and discharged the firearm in the manner described by Mr Ridis, no question of self-defence or accident could arise. Conversely, if the jury concluded that the prosecution had not disproved that Mr Ridis brought the gun to the scene and that it had been discharged in the manner described by the appellant, there was no need to instruct the jury as to self-defence or accident because the jury were instructed to acquit the appellant. Either the appellant or Mr Ridis brought the gun and was the aggressor. Directions as to self-defence or accident were not required.

Defence counsel synthesised the matter in final address as follows:

Make no doubt, if the Crown had not proven beyond reasonable doubt that [the appellant] had the pistol that night, that [the appellant] was the aggressor, my client’s entitled to be acquitted. Just on one view it’s as simple as that. Obviously you’ll be looking at all the evidence to determine this question but if you come to the view the Crown have not proven that beyond reasonable doubt; in other words, there’s a reasonable possibility that Ridis had the pistol, that’s the end. That is the end of the attempted murder charge. That’s the end of it.

Defence counsel later clarified the issue in accordance with what had been discussed with the trial judge:

The nature of this dispute where the act is what’s in dispute, that is, the act of the shooting, who the shooter is, you don’t often get that ‑ such a ‑ sort of graphic issue in dispute in these trials.

On appeal, the appellant argued that there was evidence of another possible sequence of events for which directions were required, in which the appellant brought the gun and silencer, was attacked by Mr Ridis and in the course of a struggle for the gun, either in self-defence or by accident, the appellant discharged the firearm a number of times. Contrary to that submission, a jury could not have found on the evidence that there was a reasonable possibility of this factual scenario, now raised on appeal.

As Wilson, Dawson and Toohey JJ stated in Zecevic v Director of Public Prosecutions (Vic):[10]

Where an accused person raising a plea of self-defence was the original aggressor and induced or provoked the assault against which he claims the right to defend himself, it will be for the jury to consider whether the original aggression has ceased so as to have enabled the accused to form a belief, upon reasonable grounds that his actions were necessary in self-defence. For this purpose, it will be relevant to consider the extent to which the accused declined further conflict and quit the use of force or retreated from it, these being matters which bear upon the nature of the occasion and the use which the accused made of it. …
It is, however, only in an unusual situation that an attack which is not unlawful will provide reasonable grounds for resort to violence in self-defence. The whole of the surrounding circumstances are to be taken into account and where an accused person has created the situation in which force might lawfully be applied to apprehend him or cause him to desist ‑ where, eg, he is engaged in criminal behaviour of a violent kind ‑ then the only reasonable view of his resistance to that force will be that he is acting, not in self-defence, but as an aggressor in pursuit of his original design. A person may not create a continuing situation of emergency and provoke a lawful attack upon himself and yet claim upon reasonable grounds the right to defend himself against that attack.[11]

[10](1987) 162 CLR 645.

[11]Ibid 663–4.

The appellant did not seek to make such a case in his own testimony nor was any such case suggested to any prosecution witness. The context in which the appellant now seeks to raise the plea of self-defence is on the hypothesis that, contrary to his testimony, he brought the pistol to the scene and whilst he was in possession of the pistol circumstances arose in which it was necessary to discharge the firearm in order to defend himself, or that in a struggle for the pistol it was accidentally discharged. There was no evidence that could reasonably support such a hypothesis so as to make it a real issue in the case.

The trial judge would have been obliged to leave the defence of self-defence or accident if there was weak evidence to support it, provided that it was evidence on which a reasonable jury could decide the issue favourably to the appellant.[12] As the respondent submits, however, the appellant never alleged at any time that he deliberately inflicted a gunshot wound in self-defence. For that reason alone the decision of R v Kear,[13] upon which the appellant relies, is distinguishable.
[12]Ibid 665, quoting with approval R v Muratovic [1967] Qd R 15, 20 (Gibbs J).
[13][1997] 2 VR 555.

A psychiatrist, Dr Walton, had interviewed the appellant for the purpose of his bail application. The appellant had told Dr Walton that he took a pistol to the scene of the shooting, that he had pulled the trigger in order to escape and that he was responsible for Mr Ridis’ injuries. He also said to Dr Walton that at some stage during the shooting Mr Ridis had run at him and had threatened to kill him. The implications of that statement must be considered in the context that the appellant denied in his testimony that he had told Dr Walton that he had taken a pistol to the scene of the shooting and that when he had told Dr Walton he was armed, he meant only that he had taken a piece of steel in case Mr Ridis was aggressive.

From amongst the pieces of evidence identified by the appellant on appeal, his statement to Dr Walton that Mr Ridis had run at him and threatened him was the only piece of evidence that could have remotely supported, and then only in part, a hypothesis, advanced for the first time on appeal, that there were facts which made it necessary to leave self-defence to the jury.

We reject the contention that, if the jury, applying the instructions they were given in the charge, arrived at a state of satisfaction that the appellant had brought the gun to the scene and was the original aggressor, the evidence left open that he may have acted in self-defence or that the shooting of Mr Ridis was accidental. The appellant’s testimony that he and Mr Ridis struggled and that he was defending himself when the gun went off a number of times during the struggle, was all premised upon his testimony that it was Mr Ridis who had brought the gun and that he was attempting to stop Mr Ridis shooting him. The assertions in his evidence that he needed to resist Mr Ridis and defend himself rested upon his claim that it was Mr Ridis who was threatening him with the pistol. That defence was completely addressed by the instruction to the jury that they should acquit if Mr Ridis may have brought the pistol to the scene. But there was no evidence at all that the appellant, whilst in possession of the pistol, believed it was necessary that he should discharge it in order to defend himself or that the appellant having brought the weapon, it only accidentally discharged when Mr Ridis attacked him and was trying to wrest the pistol from him.

The jury was clearly instructed that they could only find the appellant guilty of attempted murder if they were satisfied beyond reasonable doubt that he brought the pistol to the shooting and was the aggressor and that, at the time the gun was discharged, he intended to kill Mr Ridis. Immediately before the jury retired, the jury were reminded of the need to make such findings including the requisite intent if they were to convict the appellant of attempted murder.

The evidence did not give rise to the necessity to instruct the jury as to self-defence or accident. There was no direct or circumstantial evidence that gave rise to or could have reasonably founded a claim to self-defence or accident. In the event that the jury were satisfied that the appellant had brought the pistol to the scene of the shooting, there was no evidence which would have warranted such an issue being left to the jury.

This disposes of the issue raised by the appellant on the appeal. Priest JA has however identified the appellant’s evidence as to why he drove at Mr Ridis as he did as a separate reason why a direction as to self-defence was required. We turn then to this issue.

It was agreed by the parties prior to the judge’s charge that the appellant’s driving of his vehicle at Mr Ridis should not be treated as part of the actus reus of the attempted murder charge. The Crown relied upon the driving in two ways. First, to establish that the appellant’s state of mind was to kill Mr Ridis and that he had that state of mind at the time of the shooting. Second, it made it more likely that it was the appellant who had brought the gun to the scene of the shooting.

The Crown opened its case in the trial by telling the jury that it relied upon both the shooting and the driving incident to demonstrate the appellant’s guilt. During the trial it may not have been clear whether the Crown relied upon the driving as part of the actus reus of the offence of attempted murder but at the conclusion of the evidence the Crown made clear in the absence of the jury that the actus reus of the offence was the shooting of Mr Ridis. It said that the driving provided evidence from which it could be inferred that the appellant had the requisite intent to kill and that he had brought the gun to the scene. The parties proceeded upon the basis that the driving could not be relied upon as providing an independent basis for the charge of attempted murder.

The prosecutor then explained the relevance of the driving incident in his closing address to the jury as follows:

[Proposition] [t]hirteen; the laps by the accused after he has got back in the car. My submission to you [is] that also is very powerful evidence against him. … The laps are of obvious importance in this case for two reasons and there’s an overlap between the two, I admit that, but; 1) they show the accused’s intent. The Crown have to prove in an attempted murder case an intent to kill. Not an intent to injure or to seriously [injure], but an intent to kill.
We say that after shooting Ridis and the accused realising that he hadn’t done the job that he set out to do; that is, kill him, he then tried to drive over him or at him with the vehicle. So we say the laps that he does, not up and down before the encounter but after the event, they show 1) his intent in respect of attempted murder and; 2) we say this, in making two deliberate attempts to go out of his way to run [Mr Ridis] down or run him over following the shooting you can safely draw the inference that the accused was the aggressor who brought the pistol to the scene. That shows you that he wasn’t there innocently, he was there to kill Ridis, and when he failed he tried to make sure of it.

A little later the prosecutor said:

So finally, this man [Mr Ridis] nearly 70 years of age, 69 or thereabouts at the time, was leaving work and carefully locking the gates. No doubt to prevent a crime on the premises where he worked. It’s just a little piece of irony, locking the [gates]. He saw a car pull up and thinking it was someone lost or seeking directions he approached. He heard the threat, ‘Now you will die, you bastard’, he was shot by the accused as he turned to run away, who, when he failed to kill him with the gun, tried to run over him not once but twice, and when he didn’t succeed the first time did another lap and we say he ran over him. Why he did another lap the accused could not explain when he gave his evidence.

The Crown in this argument presented the driving incident as evidence from which the appellant’s intent could be inferred, though it was not submitted in unequivocal terms that the driving was not relied upon as part of the acts constituting the attempt to murder. Defence counsel, however, appreciated that the Crown did not rely upon the driving as part of the actus reus. In closing, the defence submitted that the appellant’s behaviour during the driving incident was consistent with the appellant’s account that Mr Ridis had brought the gun so that the inferences suggested by the Crown could not safely be drawn. Counsel said:

Assume then for the present purposes that the car did not collide with Ridis because ultimately on one view of it the issue as to whether it actually did or it didn’t is perhaps less relevant in terms of — clearly there’s a — the manner in which the car has been driven would be reflective of the driver’s state of mind arguably. Whether he actually hit the man or not he’s clearly driving at or about this pedestrian twice. That at a superficial level could be seen as damning evidence of his state of mind, and why I say superficial I mean again, to use the same word, it’s all about context, things, events happen in a context.
So what is the significance ‑ what does the driving behaviour tell you? In other words, what is the significance of [the appellant] driving the car clearly in such ‑ it’s obviously a reckless fashion at least, so close to Ridis and perhaps even clipping him. So what do I say? First, if [the appellant’s] intention — and this is the Crown’s case — was to kill, as [the appellant] sees Ridis standing there in or about the middle of the road knowing, because the man is standing there, he hasn’t killed him by shooting him, why hasn’t he just ran him down in such a fashion that would clearly cause far more dramatic injuries of broken bones and limbs and things of that nature, just straight head on as he’s standing there in or about the middle of the road.
Because on this version he’s had two goes at it and [the appellant] has failed both times to cause him fatal injuries from the driving, from driving into him. Both times in that sense to get meaningful contact to kill him. You can’t shy away from the issue. The issue is the allegation is he’s trying to kill him. Surely can it just be coincidence that he misses him twice in that sort of fatal sense where you clearly cause very significant motor vehicle/pedestrian injuries with such a murderous intent? It’s just coincidence? Surely not. So the driving of the car in this fashion must be seen in the context of the events that have occurred because if you don’t it otherwise looks like an extremely dangerous piece of driving if you don’t give it the context.
What’s the proper context? Firstly, the shooting and the fight incident is over, that’s completed, but it’s occurred; 2) [the appellant] has significant injuries to his head having been struck by Ridis with the pistol to the head a number of times. I think [the appellant’s] given evidence about 30, 35 stitches he received to his lacerations on his scalp.
…
In that setting, given all of that context, [the appellant], undeniably, would be significantly dazed from having been beaten about the head as he commences to drive the car and, likely, for a good deal of time thereafter, given the severity of his injuries, you might think. In that setting, what is [the appellant] faced with? On his first driving, in the direction of leaving the court, he’d see Ridis on the roadway immediately in front of him or else very adjacent to him, pistol in hand, he told you, in his sworn evidence, waving it around, he doesn’t say at him but waving it.
To avoid the risk of being — because it’s [the appellant’s] state of mind, at this stage, we’re talking about, to avoid the risk in [the appellant] — of [the appellant] with his state of mind, if he’s thought he could be shot at again, there’d be no point swinging to the right or there’d be no point just driving straight through, you remove your target. You’d likely do something which would cause the person holding the pistol to be deflected from the possibility that he might use the pistol again, so you drive at or about him to cause him, perhaps, to step back or get out of the way. See, that’s the context.
Of course, then he’s got to complete the circle and he’s then faced again with the situation of Ridis, at this stage, is perhaps neither the road in the gutter to the left hand side, whether he’s squatting, kneeling, fallen over, he’s there, still got the pistol, so there’s still opportunity when you’re looking at [the appellant’s] state of mind, I could be shot at again, I’m still a moving target, so you make the manoeuvre again.
You need to scare him away, to scare him off from ‑ if he was minded to have shot. This narrative especially holds force, members of the jury, I submit, if the defence case is right, as to what actually happened, in relation to who was the aggressor and who actually came to this event with the gun, because if it’s correct that it was Ridis who was the aggressor that night and it was ‑ who had the pistol and attempted to shoot [the appellant], then you could well understand, has the — as [the appellant] is trying to get out of this whole situation, after the event is over, there he is, faced again, twice, with this man still holding the pistol.
Further, particular [care] should be exercised in evaluating the driving collision evidence, because if you use it to work backwards, the reasoning almost becomes a bootstraps type argument. Oh, he drove the car at Ridis, therefore, it was [the appellant] who was the aggressor that night and it was [the appellant] who came with the pistol, whereas if you’re determined — if you find that — if you first find that the Crown hasn’t proven its case, that [the appellant] had the pistol that night, then the driving evidence is of far less importance and would probably be seen as consistent with a man attempting to get out of Tarmac Drive successfully and without being further shot at.[14]

[14]Emphasis added.

The evidence concerning the appellant’s driving at Mr Ridis was summarised by the trial judge, including the appellant’s explanation:

What the accused man says about it is this. From the point where he says, Ridis walked off with the gun. He got up and thought, ‘Shit, I've got to get out of here’. At this stage his right leg was quite painful and he had blurred vision. He got in the car. Ridis was standing in the middle of the court, waving the gun around. So he swerved to avoid him and did a lap of the court.

After dealing at some length with the evidence of the driving, his Honour said:

Now, go back, if we go back to the proposition who was it that brought the gun, who was the original aggressor? If [you] are satisfied, beyond reasonable doubt, that it was the accused man who was the original aggressor, it would seem that the driving fitted into that pattern, but you need to understand this, if you are not satisfied that he was the original aggressor with the gun, that is not put as part of the case, that the driving of the motor car cannot, itself, separately constitute an attempt to commit murder or constitute any other offence. It simply forms part of the totality of the circumstances that are put by the Crown.
The Crown is saying in the argument that they put about it, it is totally consistent with a person coming there intending to kill Mr Ridis in the first place, having not been successful with the gun and attempting to do so with the motorcar. The defence put the proposition that ‑ again, remember, their primary proposition is not there with the gun, but at least you should have a reasonable doubt about that, that he is dazed, having been hit on the head, having had a number of stitches put into his head and just in the [daze] and in the fear and concern about a man being there present with a gun, he drove the car in the way that he did, but that will be one of the issues that you have got to consider in the way that the two cases are put.[15]

[15]Emphasis added.

After summarising the evidence bearing upon the issues in dispute, his Honour said:

That is the contested evidence between the parties on that issue, but I say to you at the end of the day it is what conclusions you come to about what intent you think has been proved by the Crown was in the mind of the accused man at the time he drove the car in the two circles. It is important, not really, whether Mr Ridis was run over or not run over at the end of the day, but you can work your way through that.

Earlier the trial judge, referring to the movements of the appellant’s vehicle after the shooting, had said:

The question that really arises about it at the end of the day, it seems to me ‑ the question becomes from the point of view of how you consider your deliberations. Has the Crown satisfied you that the accused man deliberately drove his motorcar, hitting or intending to hit Mr Ridis the first time, and on the second occasion driving his car, running him over or intending to run him over?

In the charge the jury was instructed that it was the Crown case that the appellant committed the offence of attempted murder by shooting Mr Ridis in the initial confrontation. The jury was further instructed that the Crown relied upon the evidence of the driving incident as evidence from which the appellant’s earlier intent could be inferred; that the appellant’s attempt to run over Mr Ridis supported an inference that, at the earlier time of the shooting, the appellant had had the intention to kill Mr Ridis.

The judge thus explained to the jury that the driving of the vehicle was not an act constituting the attempt to commit murder or the lesser offence of intentionally causing serious injury. They could not convict the appellant on the basis of that driving. This instruction was in accordance with the parties’ agreed position that the jury could not convict the appellant unless they were satisfied he had brought the gun to the scene.

We are unable to agree, with respect, with the conclusion reached by Priest JA that the driving of the car may have been a ‘foundation of the attempted murder charge’[16] and which therefore necessitated a direction concerning self-defence.
[16]See [93] below.

As the driving was not part of the actus reus, self-defence as such would not arise. It must be assumed that the jury, in conformity with their instructions, were satisfied that the appellant had brought the gun to the scene and was the initial aggressor. The final instruction they received, set out above, emphasised that if they were so satisfied, then before they could convict, they had to be further satisfied that the Crown had established that the appellant had the necessary intent. Save to the extent that the inferences the Crown invited the jury to draw from the driving may have been taken into account, the jury verdict rested upon their finding that the appellant brought the pistol to the scene, and that, with the necessary intent, he shot Mr Ridis.

In dealing with the evidence of the appellant’s driving, the sharp focus of the parties’ submissions and the charge was on the inference to be drawn as to the appellant’s state of mind. Whether the circumstances were to be explained as further reinforcing the appellant’s intent to kill Mr Ridis and as increasing the likelihood that it was he who brought the pistol to the scene, or whether it was conduct intended only to scare Mr Ridis because Mr Ridis had the pistol, the relevance of the issue had been forcefully clarified for the jury.

If, contrary to our view, the driving was part of the actus reus or may have been so understood by the jury, the introduction of self-defence in relation to the driving remained an unnecessary direction of law having regard to the issues. It would have added nothing to the resolution of the issue which the jury was instructed was indispensible to a finding of guilt, namely whether the Crown had established that the appellant brought the gun and was the aggressor. It is not always necessary to put before a jury matters such as self-defence or accident, or even those that are elemental, if they are not raised as an issue by the evidence.[17] Furthermore, the jury was already seised of the defence argument as to the inference it said should be drawn from the driving — that the appellant acted out of self-defence because Mr Ridis had already been threatened with the pistol and still had it at the time of the driving.
[17]R v Getachew (2012) 248 CLR 22, 27 [10], 32–3 [25].

Finally, had the trial judge fallen into error in not giving the directions complained of in relation to the shooting or the driving, it is not, in our opinion, an error that would have been productive of a substantial miscarriage of justice.

There was an overwhelming body of evidence, direct and circumstantial, that the appellant brought the gun to the scene and was the aggressor. The jury reached that conclusion after a half a day’s deliberation. The circumstantial evidence led irresistibly to the conclusion that the appellant brought the pistol and discharged it in order to kill Mr Ridis. The appellant had been caught up in a custody and property dispute between Mr Ridis and his wife, with whom the appellant was now living. He had exhibited an animus towards Mr Ridis. There was evidence that some considerable time before the shooting, Mr Ridis’s daughter had overheard the appellant say to Mr Ridis, ‘You’re dead and buried you cunt’.

The appellant’s account that he arranged a meeting on this evening at Mr Ridis’ place of employment was implausible. The appellant admitted that the motor vehicle which he drove to the scene had been purchased under a false name and address some weeks before the shooting. He had also given a false explanation for its acquisition. The appellant admitted that he deliberately chose a car that Mr Ridis would not recognise. He drove that vehicle to Tarmac Drive on the evening of the shooting. Following the shooting he drove it to the long-term car park at Tullamarine where he collected his own car which he had left there. The vehicle driven by the appellant was the subject of CCTV footage and could be observed driving around the area for some three quarters of an hour before the shooting. The appellant parked for some time in the unlit car park across the road from where Mr Ridis worked.

When Mr Ridis left work he was wearing a high visibility jacket. He left the premises with a fellow employee. He was aware that there were CCTV cameras in the car park. When Mr Ridis exited his employer’s premises and drove his vehicle to the front gate, to lock it, the appellant drove his vehicle up to Mr Ridis’ vehicle with his lights on and parked at an angle in front of Mr Ridis’ vehicle. Mr Ridis, not knowing who was in the vehicle, went to the window of the appellant’s car. He thought the driver was wearing a wig. Mr Ridis was not challenged as to this allegation. A hood was found on the ground at the scene of the shooting similar to a hood that Faye Ridis, with whom the appellant was then living, had bought for her son. Mr Ridis testified that as he approached the open window of the appellant’s vehicle, he heard the threat uttered by the appellant and immediately turned away to escape. It was then that he was shot in the left side and fell to the ground. The CCTV footage, referred to by the prosecutor in closing, apparently reflects the accuracy of that account. There was a struggle and further shots were fired. One bullet ricocheted in to the appellant’s leg. The victim heard a click and believed the gun was near his head. He bit the appellant’s finger and the weapon was dropped. Mr Ridis picked up the weapon and struck the appellant to the head.

It was not in issue that the pistol belonged to the appellant. The appellant was a member of a pistol club. The appellant’s former wife testified as to the circumstances in which he had obtained it and explained where it had been kept in the former matrimonial home. The appellant claimed that he had left it behind and that his former wife must have contacted Mr Ridis and given him the pistol. Both Mrs Quail and Mr Ridis denied that they had ever met and had any such contact with each other.

The appellant admitted to Dr Walton that he brought the pistol, that he remembered pulling the trigger and that he was responsible for Mr Ridis’ injuries. The appellant maintained in evidence that he only told Dr Walton that he went there armed. He testified that he took a strap of iron with him to the meeting which he picked up from the car park when he left. An expended shell was found inside the motor vehicle consistent with Mr Ridis’s account that the first shot had been discharged whilst the appellant was seated in his car. There was bullet damage to the jacket of Mr Ridis indicative of him having been wounded whilst he was standing. At the time that the appellant and Mr Ridis were struggling for the pistol

the witness, Mr Crespin, heard one of the men yelling out, ‘Help me, help me, he’s trying to kill me’. The defence did not dispute the man yelling out was Mr Ridis.

Following the struggle, the appellant then drove his vehicle at Mr Ridis after the initial confrontation. After the appellant departed the scene, Mr Ridis, who was lying wounded, asked witnesses to call the police. The appellant admitted himself to hospital some two hours after the shooting. He feigned amnesia and could not remember how he had come to be injured.

The verdict of the jury was inevitable, even had a direction as to self-defence or accident been given. On the evidence, viewed as a whole, it would not have been open for the jury to infer as a reasonable possibility that, had the appellant brought the weapon, the appellant had acted in self-defence or the shooting was by accident.

We would dismiss the appeal.

PRIEST JA:

Introduction

On 30 November 2012, the appellant was found guilty by a jury of attempted murder.

Pursuant to leave granted by a judge of this Court on 27 May 2014, he has appealed against his conviction on a single ground as follows:

The learned trial judge erred in failing to direct the jury that they must acquit the [appellant] if the prosecution had not established beyond reasonable doubt that he had not acted in self-defence or that the shooting was by accident.[18]

[18]During the hearing of the appeal leave was granted to amend the ground by adding the underlined words.

In my opinion, for the reasons that follow, the appeal should be allowed, the conviction quashed and a new trial ordered.

Background

The attempted murder charge arose from events which occurred in Tarmac Drive, Tullamarine, during the evening of 7 July 2011.

Stavros Ridis, the victim, worked at Hudson Pacific in Tarmac Drive. The victim gave evidence that, in the course of leaving his work premises, he got out of his car to lock the gate. At that point the appellant ‑ who, the prosecution alleged, had been lying in wait — manoeuvred his car so as to block the exit of the victim’s car.

Mister Ridis approached the appellant’s car. The appellant — who was armed with a Ruger .22 semi-automatic pistol fitted with a silencer ‑ said, ‘Now you die, you bastard’, and fired the pistol at him. A number of shots were fired, and the victim was wounded in the upper left quadrant of the abdomen.

The appellant got out of his car. Mister Ridis retreated behind his car and fell to the ground. There was a struggle. A further shot was fired from the Ruger. Part of that bullet ricocheted into the appellant’s leg. At one point, when the pistol was near his head, the victim heard a click. It also appears that the victim bit the appellant’s finger, although he had no memory of doing so. When the appellant lost possession of the pistol, and it was on the ground next to the victim, Mr Ridis picked it up and hit the appellant to the head with it.

The victim was badly injured, but managed to stagger along Tarmac Drive. The appellant got into his car and drove it towards the victim. He either struck or barely missed the victim, then turned the car and drove towards where the victim had fallen.

There was evidence of mutual antipathy between Mr Ridis and the appellant. In 2009, the appellant had commenced an extra-marital affair with the victim’s wife, Faye Ridis. The appellant ultimately moved into the Ridis’ former matrimonial home.

It seems that the Ruger pistol had been purchased through a friend of the appellant’s when he was in the United States in 1992. The appellant gave evidence that his ex-wife, Renee Quail, had arranged for it to be sent to Australia, and that she had later given it to him. He had possessed it from 1992 onwards. His evidence was, however, that he had left it behind when their marriage broke up.

The appellant gave evidence. He said that he had arranged to meet Mr Ridis at his work after they had argued on the telephone. The appellant claimed that it was Mr Ridis who produced the pistol and threatened him with it. There was a fight during which Mr Ridis got shot. The appellant denied trying to hit the victim with his car.

Renee Quail, the appellant’s estranged wife, gave evidence. During cross-examination, counsel for the appellant put to her that she had conspired with the victim to murder the appellant, and that she had given the pistol to the victim so that he could kill the appellant.

Brief mention should be made of some of the other evidence in the trial. There were two witnesses who were in Tarmac Drive during parts of the relevant incidents. Stephen Crespin said that he heard a ‘yelping noise’ at about 7:45 or 8:00pm. He left his office and went outside, where he saw two vehicles, one with the headlights on. Two men looked to be fighting. One was wearing dark coloured clothing, and was on top of the other, who was wearing a ‘fluoro jumper’. He heard one man yelling, ‘Help me, help me, he’s trying to kill me’. The man in dark clothing looked to have control of the fight ‑ he had the other man pinned down — and he was ‘striking out’ at or ‘clubbing’ the other man. Mr Crespin then went inside to ask someone to call ‘000’, before going back outside. The two men separated. Mr Crespin saw the man in dark clothing stagger to a car while the other man walked in the opposite direction. He noticed the car driving towards the man in the fluorescent top, as if it were being driven deliberately at him. The man then appeared to have been hit by the car and knocked down. Mr Crespin said that the car then appeared to turn as if to leave, but then turned a second time and appeared to again drive at the man on the ground. This time the car drove over the top of the man where he was lying partially on the road.

Craig Piscopo worked with Mr Crespin. He did not see the fighting, although he heard a voice yelling out, ‘help me, help me, why won’t you help me?’. When he went outside, he saw a man in a fluorescent jacket walking away, dragging his right foot and supporting his right arm, looking distressed and injured. Mr Piscopo noticed a car with its headlights on, engine revving, begin to reverse. The car completed reversing then made an anti-clockwise turn. Mr Piscopo saw the car make a ‘beeline’ for the man in the fluorescent jacket, who was hit from behind. The man went over the bonnet of the car, landing on the kerb. The car drove around the court again, before heading straight for the man, who was lying on the road. The car drove over him.

A psychiatrist, Dr Lester Walton, was called by the prosecution to give evidence. Following his arrest by police, the applicant desired to seek bail. For the purposes of a bail application, his solicitors engaged Dr Walton, to report on his psychiatric condition. When Dr Walton interviewed the appellant, the appellant told him that he met the victim at his workplace, and that he went there armed with a pistol. The appellant also told Dr Walton that Mr Ridis had run at him and threatened to kill him, following which the appellant pulled the trigger to ‘escape’.

Two experts in accident reconstruction gave evidence, one in the prosecution case, and the other in the defence case. Detective Sergeant Peter Bellion, of the Victoria Police Major Collision Investigation Unit, gave evidence for the prosecution that, although he could not say whether or not the first collision occurred, he was of the opinion that Mr Ridis was run over or driven over at some stage, with the possibility that his body was dragged to its resting place by the vehicle rather than flying off the car. Dr Shane Richardson gave evidence in the defence case that, in his opinion, it was likely that if Mr Ridis had been driven over in the second collision as described, the injuries sustained would have been more significant. The injuries Mr Ridis suffered are more consistent with being struck or knocked to the ground rather than being driven over.

Medical evidence was also called in both the prosecution and defence cases. Ian Paul Hayes, the head of the Department of Specialist General Surgery at the Royal Melbourne Hospital, gave evidence that Mr Ridis had been shot in the lower left chest and upper left quadrant of the abdomen, but that abrasions, rib fractures, and contusions on both lungs, suggested other trauma apart from the track of the bullet. When cross-examined he said that he would have expected to see greater trauma if the wheels of a car had driven over the face or chest or curled up body of a man. A forensic pathologist, Dr Richard Byron Collins, gave evidence in the defence case. He said that the lung contusions that Mr Ridis suffered could be the result of a shockwave from the passage of a bullet, rather than another form of trauma. The remainder of the injuries were consistent with blunt force trauma, either from an object striking the body, or the body striking a firm object. Observed soft tissue injuries could also be consistent with a struggle or fight. Dr Collins could not exclude the possibility that Mr Ridis received a glancing blow from a car.

The cases for the prosecution and defence

The prosecution’s case of attempted murder was based not only upon the firing of the gun, but also on the appellant’s driving of his car into and over Mr Ridis. In his opening, the prosecutor made so much clear:[19]

The [appellant] was brandishing a Ruger .22 pistol with a silencer and he shot five times, hitting Mr Ridis once in the upper torso with the bullet, the projectile, travelling internally and actually finishing up lodged in his spine, where it still remains today. It has not been removed. Ridis took shelter behind his vehicle. [The appellant] followed him and tried to place the pistol to his head. A further shot was fired around this location but that did not hit Ridis.
Ridis begged for his life and there was a tussle between the two men in which Ridis managed to grab the gun and bite [the appellant’s] finger to the bone, wrestling the gun from him. Ridis used the gun to club [the appellant] around the head and then managed to stand up and stagger away. He then begged for witnesses to help him, that he was going to be killed, as he staggered slowly across the court away from Hudson Pacific.
[The appellant] returned to the Holden sedan. He accelerated at Ridis, knocking him over. As Ridis lay in the gutter area on the roadway, [the appellant] did a lap of the court, lined Ridis up and ran over him, dragging him for a short distance …
…
So our case, ladies and gentlemen, is that the [appellant], in a calculated and premeditated manner, sought to murder the victim, Steve Ridis, by ambushing him outside his workplace and shooting him, and when that failed, he twice ran at him with his car, hitting him and then running him over, causing serious injuries.

[19]Emphasis added.

From these passages, it may be gleaned that the prosecution’s case was that:

· the appellant fired the pistol five times, one shot striking the victim in the upper torso;

· the appellant tried to place the pistol to the victim’s head, and another shot was fired;

· there was a struggle for the gun, during which the victim bit the appellant’s finger and clubbed him around the head with the gun;

· the appellant drove at the victim, and knocked the victim over with his car; and

· the appellant then drove over the victim.

Based on the opening, therefore, the attempt to kill the victim might have been constituted by the shot into the upper torso; the shot fired at or near the time that the appellant tried to put the gun to the victim’s head; the driving of the car so as to knock the victim down; the driving of the car over the victim; or a combination of one or other (or all) of these acts.

In his response to the prosecution opening, defence counsel made it plain that it was disputed that his client came to the scene with the pistol. The defence case was that Mr Ridis ‘was the one in possession of that pistol equipped with silencer’ (sic), and that he had threatened the appellant with it when the appellant got out of his car at what the appellant claimed was a pre-arranged meeting. Counsel told the jury:[20]
[20]Emphasis added.

So what is in issue in this trial? Perhaps to assist in that task, I might say some of the things that are not in issue. Look, Mr Ridis clearly sustained serious injury from the shooting. I’m sure my friend understands the defence position is — and if he doesn’t, he now will, the defence position is the serious injuries that Mr Ridis has, which we don't dispute, are from the shooting incident.
It is in dispute if it’s being suggested, and clearly the Crown is suggesting this, that he sustained serious injuries as well, or in combination with, from the motor vehicle collisions. Two of them. That’s in dispute. What’s in dispute, and that is, there was no impact, at all. Not once, and certainly not twice. No impact at all. No collision. So that’s in issue between the parties. But there’s no issue the serious injuries Mr Ridis clearly has came [sic] from, from the defence viewpoint, came from the shooting.
…
It is in dispute that [the appellant] had the pistol that night. It is the defence case that it was Ridis who was the aggressor, as he had previously been in their dealings at various courts, et cetera, and on this particular night, he was the one in possession of that pistol equipped with silencer. He was the one who threatened [the appellant], raised the pistol up at [the appellant] when [the appellant] got out of his car, and in the course of a struggle between the two of them over the pistol, Ridis is shot and the weapon is discharged a number of times. At all times, [the appellant], seeking to do no more than he was lawfully entitled to do, defends himself. So you can see there is a clear serious factual issue in this trial as to who had the gun, and it's raised by the defence.
Also in issue, and I’ve mentioned this briefly in another context, but it’s another important issue. [The appellant] did not deliberately or accidentally or in any way, shape, form or manner, drive over, run down Steve Ridis.
Not twice, as has been alleged by the Crown. Not once. There will be no factual dispute he drove around the two laps — that's the only verb I can think of at the moment — of the court in his dazed state, and you’ll hear evidence as to the head trauma my client was observed to have when he admitted himself to, I think it’s the Northern Hospital, on the defence case, as Ridis is walking across the court after their altercation, pistol in hand.
So that’s in issue. We say there was no impact. The car clearly got very close, no doubt about that, but no impact between the vehicle and Mr Ridis …

Hence the defence case as opened was that:

· Mr Ridis brought the gun to the scene and threatened the appellant with it;

· there was a struggle ‘over the pistol’, during which Mr Ridis was shot and the pistol was discharged a number of times;

· at all times the appellant was seeking to do no more than to lawfully defend himself;

· although his car came close to Mr Ridis, there was no impact.

In his final address, when summarising the prosecution’s case, the prosecutor made it plain that it was both the shooting of the victim, and the appellant’s driving of the car ‘over’ him, that constituted the case of attempted murder:[21]

So finally, this man Stavros Ridis nearly 70 years of age, 69 or thereabouts at the time, was leaving work and carefully locking the gates. … He saw a car pull up and thinking it was someone lost or seeking directions he approached. He heard the threat, ‘Now you will die, you bastard’, he was shot by the [appellant] as he turned to run away, who, when he failed to kill him with the gun, tried to run over him not once but twice, and when he didn’t succeed the first time did another lap and we say he ran over him. Why he did another lap the accused could not explain when he gave his evidence.
This was a thoroughly botched job by someone rather inept; the [appellant] in trying to carry out what he had intended. …

[21]Emphasis added.

Defence counsel, in his final address, submitted that Mr Ridis was the one who had come armed to a meeting with the appellant and had been the aggressor. Counsel told the jury that the appellant accepted that ‘during the course of the struggle he either did or could have pressed the trigger’ of the pistol, but that Mr Ridis retained possession of the gun. He argued:[22]
[22]Emphasis added.

What’s most likely, members of the jury, is the car didn’t hit [Mr Ridis] at all on that first impact. It’s possible he was clipped. Possibly he was clipped by the car but there’s no damage on that side of the car consistent with such a clipping. …
The second impact is clearly not supported by Dr Richardson, the injuries are far less consistent with such a dramatic major impact, driving over someone arguably pushing him along for ten metres. The injuries are far less consistent, in my submission, with a dramatic impact such as that between vehicle and pedestrian. …
…
So what is the significance — what does the driving behaviour tell you? In other words, what is the significance of [the appellant] driving the car clearly in such — it’s obviously a reckless fashion at least, so close to Ridis and perhaps even clipping him. So what do I say? First, if [the appellant’s] intention — and this is the Crown’s case — was to kill, as [the appellant] sees Ridis standing there in or about the middle of the road knowing, because the man is standing there, he hasn’t killed him by shooting him, why hasn’t he just ran him down in such a fashion that would clearly cause far more dramatic injuries of broken bones and limbs and things of that nature, just straight head on as he's standing there in or about the middle of the road.
Because on this version he’s had two goes at it and [the appellant] has failed both times to cause him fatal injuries from the driving, from driving into him. Both times in that sense to get meaningful contact to kill him. You can’t shy away from the issue. The issue is the allegation is he’s trying to kill him. Surely can it just be coincidence that he misses him twice in that sort of fatal sense where you clearly cause very significant motor vehicle/pedestrian injuries with such a murderous intent? It’s just coincidence? Surely not. So the driving of the car in this fashion must be seen in the context of the events that have occurred because if you don’t it otherwise looks like an extremely dangerous piece of driving if you don’t give it the context.
What’s the proper context? Firstly, the shooting and the fight incident is over, that’s completed, but it’s occurred; [two, the appellant] has significant injuries to his head having been struck by Ridis with the pistol to the head a number of times. I think [the appellant has] given evidence about 30, 35 stitches he received to his lacerations on his scalp. …

…
To avoid the risk of being — because it’s [the appellant’s] state of mind, at this stage, we’re talking about, to avoid the risk in [the appellant] — of [the appellant] with his state of mind, if he’s thought he could be shot at again, there’d be no point swinging to the right or there’d be no point just driving straight through, you remove your target. You’d likely do something which would cause the person holding the pistol to be deflected from the possibility that he might use the pistol again, so you drive at or about him to cause him, perhaps, to step back or get out of the way. See, that’s the context.
Of course, then he’s got to complete the circle and he's then faced again with the situation of Ridis, at this stage, is perhaps neither the road in the gutter to the left hand side, whether he’s squatting, kneeling, fallen over, he’s there, still got the pistol, so there’s still opportunity when you're looking at [the appellant’s] state of mind, I could be shot at again, I’m still a moving target, so you make the manoeuvre again.
You need to scare him away, to scare him off from — if he was minded to have shot. This narrative especially holds force, members of the jury, I submit, if the defence case is right, as to what actually happened, in relation to who was the aggressor and who actually came to this event with the gun, because if it’s correct that it was Ridis who was the aggressor that night and it was — who had the pistol and attempted to shoot [the appellant], then you could well understand, has the — as [the appellant] is trying to get out of this whole situation, after the event is over, there he is, faced again, twice, with this man still holding the pistol.

Discussion

In opening the defence case, counsel had told the jury that Mr Ridis was shot in ‘the course of a struggle … over the pistol’, during which ‘the weapon [was] discharged a number of times’. Counsel said that his client at ‘all times’ was seeking to do ‘no more than he was lawfully entitled to do, defend himself’.

Moreover, in his final address, defence counsel made it plain that Mr Ridis might have been shot in the course of a struggle over the gun, but that thereafter the appellant’s manner of driving was motivated by the fact that Mr Ridis had retained the pistol. The defence case was that the appellant was afraid he might be shot. He drove ‘at or about’ Mr Ridis to prevent him from using the pistol, ‘to scare him off … if he was minded to have a shot’.

Defence counsel might not explicitly have used the terms ‘self-defence’ or ‘accident’, but it was plain that the appellant’s case was that the injuries to Mr Ridis that were caused by gunshot occurred in the course of a struggle in which the appellant was trying to defend himself from the threat posed by the pistol, and in circumstances where the firing of the gun was not the product of a conscious, voluntary and deliberate act on his part. Further, so far as the appellant’s driving was concerned, it was undertaken with the intention of deterring Mr Ridis from shooting him. Thus, with respect to the shooting, the appellant’s case relied both on self-defence and accident; and with respect to driving at, near, into or over Mr Ridis — it being denied that any contact was made — the appellant’s case principally was one of self-defence.

The prosecution did not seek specifically to separate the various acts of the appellant so as to found alternate bases of liability for attempted murder. In effect, the prosecution’s case was that all of the appellant’s acts were part of a single continuous transaction, where the appellant shot Mr Ridis; and, ‘when he failed to kill him with the gun, tried to run over him not once but twice, and when he didn’t succeed the first time did another lap and … he ran over him’.

It is plain that the trial judge explicitly and unequivocally directed the jury that self-defence did not arise. And, apart from some preliminary directions before evidence was called — not repeated in his Charge — that to found the charge of attempted murder (or, alternatively, intentionally causing serious injury) the appellant’s acts needed to be conscious, voluntary and deliberate, the judge did not direct on accident. No exception was taken. It is now submitted, however, that the trial miscarried as a result of the trial judge’s failure to leave self-defence or accident to the jury.

On the hearing of the appeal, counsel for the appellant pointed to several aspects of the evidence which, she submitted, raised self-defence. First, the appellant had asserted in his evidence that he acted in self-defence. Hence, on at least two occasions in the course of his cross-examination by the prosecutor, the appellant asserted that he had defended himself after Mr Ridis pointed the firearm at him. Secondly, the appellant relied on the evidence of Dr Walton, whom he had told that — although he had taken the firearm to the meeting for protection — Mr Ridis had run at him and threatened to kill him, after which the appellant pulled the trigger to ‘escape’. Thirdly, Mr Ridis’ DNA was found on the trigger of the firearm. Fourthly, the evidence showed that Mr Ridis had hit the appellant over the head with the gun. Medical evidence showed that the appellant had injuries to his scalp consistent with being hit over the head with the pistol (and that he also had a bite injury to the finger, including avulsion of the fingernail). Fifthly, witnesses — particularly Mr Crespin — had described seeing a ‘struggle’. Sixthly, since the firearm was silenced, it was not possible to say empirically at what stage the shots were fired, so that the appellant’s claim that the gun was fired in the course of a struggle could not be contradicted.

It may readily be accepted that in his Charge the judge set out to narrow the real issues in the case for the jury’s determination. So much is not only commendable, but indeed reflects the true duty of a trial judge in a common law trial by jury.[23] Simplification of the issues is desirable and should be aspired to, so long as in striving to meet that aspiration the essential issues are properly exposed for the jury’s determination, and are not sacrificed on the altar of expedience. Unhappily, I have come to the conclusion that the judge’s attempts in this case to crystallise the central issues instead unacceptably obscured them.
[23]Alford v Magee (1952) 85 CLR 437, 466; R v AJS (2005) 12 VR 563, 577 [55]–[56].

It is necessary to set out the crucial portions of the Charge. So far as the charge of attempted murder is concerned, the judge said:[24]
[24]Emphasis added.

The accused man is charged with the attempted murder of Stavros Ridis and in the alternative with intentionally causing him serious injury. The crime of attempted murder is committed if a person does an act or acts towards another with intention to kill that person. Nothing short of intent to kill will be sufficient.
The acts must be more than preparatory, but if the facts in this case are otherwise accepted, that is not an issue. You see, sometimes, you might have some conduct leading up to something happening and it just will not be enough to constitute an attempt, but if you accepted, beyond reasonable doubt, here that the accused man went armed and he shot Mr Ridis, the acts would be more than preparatory, it has gone beyond preparatory in that sense.
It would also be a basis of it that there be no lawful justification or excuse, such as self-defence. Now, self-defence does not arise in this case because what will emerge is that unless you are satisfied, beyond reasonable doubt, that the accused man was the aggressor, that he took the gun and he was the aggressor, you cannot convict him of anything. So it does not come up that what is being said was, he shot someone in self-defence.
He says that in a sense, but he says that based on what is the conflicting version of the way the cases are put. The prosecution case is that the accused did bring the pistol and that he was the aggressor. The defence case is that it was Ridis who had the pistol. The defence do not need to prove that, but in putting the case in that way, it is to establish a reasonable doubt about the assertion that the accused brought the pistol and was the aggressor.
Although, as a matter of law, cases are not resolved by one piece of evidence, in this case, unless you are satisfied, beyond reasonable doubt, that the accused came to Tarmac Drive armed with the pistol, he could not be convicted of either offence. That has been the prosecution case from the beginning to the end of it and it has never been resiled from.

In my opinion, there are several vices lurking in the above passages. First, the jury may well have understood the directions to mean that if the appellant went armed, and he shot Mr Ridis, then that was sufficient to establish an attempt for the purposes of attempted murder.[25] Secondly, the judge unequivocally directed the jury that self-defence ‘does not arise’. If the jury were satisfied that the appellant ‘took the gun and was the aggressor’, then that was enough to decide the case adversely to him. Thirdly, although there is, perhaps, a subtle qualification — he ‘says that in a sense’ (that is, that ‘he shot someone in self-defence’) — the appellant only says that he shot someone in self-defence ‘based on the conflicting version of the way the cases are put’. In other words, the appellant may only rely on self-defence if the jury found that Mr Ridis brought the gun (or, at least, if the prosecution satisfied the jury beyond reasonable doubt that he did not).

[25]For attempted murder, the intention must be to kill: Knight v The Queen (1992) 175 CLR 495; Cutter v The Queen (1997) 143 ALR 498; 71 ALJR 638.

At common law, a trial judge has an obligation to give any direction necessary in the circumstances of the particular case to avoid a perceptible risk of a miscarriage of justice, no matter the forensic decisions of counsel.[26] As part of that obligation, a trial judge must leave to the jury any defence which is fairly raised on the evidence.[27] There have been many cases where justice has been found to have miscarried due to the failure to leave a viable defence, despite the stance taken by counsel.[28] It has been recognised that any defence open on the evidence must be left even if there is an express disavowal by defence counsel.[29] Significantly, miscarriages of justice have been found where a defence open on the evidence was not left, even though the defence was inconsistent with the defence case advanced at trial.[30]
[26]Longman v The Queen (1989) 168 CLR 79, 86 (Brennan, Dawson and Toohey JJ). See Bromley v The Queen (1986) 161 CLR 315, 324–5; Carr v The Queen (1988) 165 CLR 314, 330 (Brennan J), 339 (Deane J). See also s 15 of the Jury Directions Act 2013, compare s 16.
[27]Pemble v The Queen (1971) 124 CLR 107, 117–8.
[28]See for example Van den Hoek v The Queen (1986) 161 CLR 158.
[29]R v Koutsouridis (1982) 7 A Crim R 237; R v Shea (1988) 33 A Crim R 394; R v Thorpe [1999] 1 VR 326.
[30]R v Kear [1997] 2 VR 555 (‘Kear’).

Kear[31] involved a failure to leave self-defence. A miscarriage of justice was found to have occurred where self-defence was not left to the jury, notwithstanding that the defence would have been inconsistent with the applicant’s case.[32]
[31]Ibid.
[32]Ormiston JA and Phillips JA in separate judgments; Tadgell JA dissenting.

The facts of Kear were that the applicant tried to trespass into a flat that a Mrs McKenzie occupied. Mr Depke, who was in the flat, tried to prevent the applicant’s entry. He claimed that the applicant struck him with a fist to the face, causing him injury. The applicant denied striking Depke. He contended that Depke suffered the injury when a flowerpot hurled by Mrs McKenzie hit him in the face. The applicant had ‘ducked’ the flowerpot aimed at him, and it hit Depke instead. Thus the flowerpot caused Depke’s injury, not the applicant striking him. Defence counsel did not raise self-defence — it would have been inconsistent with the applicant’s case. Neither party asked the judge to direct on self-defence, and the judge did not leave it to the jury.

Ormiston JA observed:[33]

Counsel for the applicant at the trial (who is not the counsel who appeared on this application) did not seek to raise self-defence, for what might be thought to be good tactical reasons, the striking of any blow by the applicant being inconsistent with his case. So it was counsel for the Crown who raised it with the judge shortly before addresses began. At first counsel for the applicant contended that the judge should direct the jury on the issue of self-defence but after some discussion, in which the learned trial judge asserted that Depke would have been entitled to remove an unlawful trespasser from Mrs. McKenzie's flat, counsel appeared to agree that the issue could not fairly be raised. There was no formal ruling but, whether at trial or upon appeal, the court is not absolved from requiring an issue of self-defence or any other issue to be put to the jury notwithstanding counsel's refusal or failure to raise the issue: cf. Pemble v R (1971) 124 CLR 107.

[33][1997] 2 VR 555, 560 (emphasis added).

Later he said:[34]

In my opinion, whether one looks to the applicant's case or to the case presented by the prosecution, there was sufficient evidence to require the judge to charge the jury on the issue of self-defence. I have already observed that it is of no consequence that self-defence did not form part of the applicant's case at trial, especially where, as here, there would have been good tactical reason for the applicant's counsel not to have wished to make direct submissions to the jury on the issue. Of course, he may have done so if the judge had required the issue to be addressed but unfortunately he chose to fall in with the judge's analysis which depended upon the applicant's alleged trespass. Again I would not hold the applicant to such a concession by his counsel where, as here, there were facts which could, if accepted, have led the jury to conclude (or to be left in a state of reasonable doubt) that the applicant reasonably believed that it was necessary for him to do what he did in order to defend himself.

[34]Ibid 565 (emphasis added).

Ormiston JA went on to say:[35]

Now it may be suggested that what the applicant now asks the court to consider, and would have asked the jury likewise to consider, was a version based essentially on speculation since not only did the applicant deny that he had struck the blow but necessarily also expressed no belief as to whether what he had done was necessary in order to defend himself from Depke's attacks. Although such logic may appear attractive and would undoubtedly simplify criminal trials, it does not appear to be consistent with accepted principles as to the need to charge juries on facts and circumstances which might lead a jury to have reasonable doubt as to an accused's guilt. It is clear, particularly from a reported authority dealing with the possible defence of provocation, that it is not necessary that direct evidence be given of the accused's belief as to circumstances giving rise to a defence for a conclusion to be reached that the evidence is such as to require the jury to be charged in relation to a defence of that kind: cf. Van den Hoek v R (1986) 161 CLR 158 and Shea v R (1988) 33 A Crim R 394 (Vic. Court of Criminal Appeal). Moreover it seems to be accepted that the need to charge a jury on a particular defence may still exist notwithstanding ‘an express disavowal of a defence’: Shea at 398. This conclusion has been reached on numbers of occasions in relation to provocation, largely because evidence by an accused of loss of self-control might be seen by a jury as inconsistent with a belief as to the need to act in self-defence. The choice will naturally be made by an accused in those cases in favour of a version which supports self-defence, as that provides a complete defence, and so there are many more cases of this kind reported in which there has been an express disavowal of, or lack of direct evidence as to, the defence of provocation which can only result in a verdict for the lesser offence of manslaughter. In fact no cases were cited to the court in which a failure to raise self-defence was made the subject of a successful application on appeal but, as the cases just cited and Pemble‘s case have made clear, an issue may be held to arise if facts may be inferred from which the possible claim to a defence have been made out.

[35]Ibid 566 (emphasis added).

Phillips JA also reached the conclusion that the conviction could not stand, despite the failure of the defence specifically to rely on self-defence.[36]
[36]Ibid 569–70, 573–4.

In the present case there was, in my opinion, a viable case of self-defence, depending upon which act or acts were foundational of the prosecution’s case of attempted murder, and what facts — properly directed — the jury were prepared to find. The case could not be determined adversely to the appellant simply by a finding that he brought the gun and was initially the aggressor. It may well have been, that if the jury were satisfied that the appellant had brought the gun to the scene, they could have determined that he was the original aggressor. But that would not necessarily conclude the charge of attempted murder against him. There was evidence that the two men struggled over the gun, and that the appellant was struck over the head with it and that he suffered other injuries. He gave evidence that he was defending himself from being killed, and that the gun went off in the course of the struggle. Properly directed, the jury might well have been satisfied that he brought the gun to the scene, yet still have had a reasonable doubt about whether he acted in self-defence when the gun was fired. As Wilson, Dawson and Toohey JJ observed in Zecevic:[37]

Where an accused person raising a plea of self-defence was the original aggressor and induced or provoked the assault against which he claims the right to defend himself, it will be for the jury to consider whether the original aggression had ceased so as to have enabled the accused to form a belief, upon reasonable grounds, that his actions were necessary in self-defence. For this purpose, it will be relevant to consider the extent to which the accused declined further conflict and quit the use of force or retreated from it, these being matters which may bear upon the nature of the occasion and the use which the accused made of it.

[37]Zecevic v DPP (Vic) (1987) 162 CLR 645, 663.

The question of self-defence becomes even more vexed if the appellant’s driving of the car was the foundation of the attempted murder charge. Whether the appellant had or had not brought the gun to the scene, and whether he was or was not the original aggressor, there was evidence that by the time he drove the car in the direction of Mr Ridis, the gun was in the possession of Mr Ridis and the appellant drove ‘at or about’ Mr Ridis to prevent him from using the pistol. A properly instructed jury could, in my view, fail to be satisfied that when he drove in the direction of Mr Ridis (who was in possession of a firearm) the appellant was not acting in self-defence.

At the risk of repetition, in my view there was a viable case of self-defence available to the appellant, whether it was the firing of the gun or the driving of the car that was the basis of the prosecution’s case of attempted murder. The appellant said that at ‘all times’ he was defending himself, and there was evidence to support his claim. Self-defence should have been left to the jury, and the judge should have explained how it might (or might not) apply, depending on the facts that they found proven.

As I earlier observed, in his Charge the judge also failed to direct on accident, in the sense that he failed to adequately direct the jury that the act or acts relied upon as constituting the attempt must be the product of a conscious, voluntary and deliberate act.[38]
[38]R v Lilley (1983) 12 A Crim R 335; R v Cascone (Unreported, 4 June 1998, VSCA); R v Fowler [1999] VSCA 135; R v Schaeffer (2005) 13 VR 337; R v Winter [2006] VSCA 144. See also Stevens v The Queen (2005) 227 CLR 319.

The judge had, after the jury were empanelled, and before the openings by counsel, given the jury some preliminary directions. He did, at that early stage of the trial, direct the jury as to the need for the appellant’s act or acts to be conscious, voluntary and deliberate. He did not, however, return to the subject in his Charge. The preliminary directions included the following:[39]

Unless I tell you otherwise, when I say that the prosecution must prove or establish a matter or that you must be satisfied about a matter, I mean beyond reasonable doubt. But the prosecution doesn’t have to prove every fact that they allege to this standard. It’s the essential ingredients, or what are technically called elements of the charges that they must prove to this standard.
In this case, that means that the prosecution must prove beyond reasonable doubt when dealing with the crime of murder [sic] that the accused man, by a conscious, voluntary and deliberate act did an act or acts attempting to murder Stavros Ridis with the intention to kill him. Nothing less than that.
Although the crime of murder itself may have lesser intents, when we deal with attempted murder, and apart from anything else, it’s logical, if you think about it, because it hasn't led to a death. So it can only be an attempted murder of the crime of murder if it's accompanied by the intent of intending to kill.
When you come to consider the alternative crime that’s put, that’s the crime of intentionally causing serious injury, again, by a conscious, voluntary, deliberate act or acts, caused serious injury to Mr Ridis intending to cause him serious injury, and in either case without any lawful justification or excuse, and they’re all matters that would have to be proved to your satisfaction by the prosecution beyond reasonable doubt.
That’s just a little sketch and I'll tell you much more about the elements in detail and relate them to the evidence in the case after you've heard all the evidence. …

[39]Emphasis added.

The appellant’s case with respect to the shooting was that it was accidental, in the sense that it was not the product of any willed act on the part of the appellant. Further, insofar as his driving at or near Mr Ridis was concerned, in my view the appellant’s case left open the possibility that there was some unintended contact between his vehicle and Mr Ridis, which resulted from the appellant’s conscious and voluntary act of driving. Both of those possibilities cried out for a direction on accident.

In my opinion, it was necessary to direct the jury specifically that, so far as the shooting was concerned, the jury could not convict of attempted murder unless the appellant’s act or acts in firing the gun were conscious, voluntary and deliberate. Further, so far as the conviction might have been founded upon the appellant’s driving, the jury needed to be directed that not only must they be satisfied that the act of driving was conscious and voluntary, but that when the vehicle struck Mr Ridis, that was as a result of a deliberate act of the appellant’s.

Although the judge had directed on the need for the appellant’s act or acts to be conscious, voluntary and deliberate as part of his preliminary directions, doubtless the jury would not have retained those directions, or, at least, comprehended their importance to the issues in the case as they stood at the end of the trial.

In my opinion, a miscarriage of justice resulted from the failure to direct on accident in the manner discussed.

Conclusion

It cannot be said, in my view, that the miscarriage of justice in this case is other than substantial. The case would be rare where it could be said that, despite the judge not leaving a viable defence to the jury, nonetheless conviction was inevitable.[40] I cannot conclude that the appellant would inevitably have been convicted if the jury had properly been directed on the possible foundations of the prosecution case, and on the issues of self-defence and accident.
[40]Baini v The Queen (2012) 246 CLR 469; Andelman v The Queen (2013) 38 VR 659; Russell v The Queen [2013] VSCA 155.

There is no denying that defence counsel did not take exception to the failure of the trial judge to direct on self-defence or accident. But there are two ends to the Bar table. The prosecutor, no less than defence counsel, had a duty to ensure that the trial did not miscarry. In Caine,[41] a case where the jury had been misdirected on the defence of provocation, but where no exception was taken, the Court (Crockett, McGarvie and Beach JJ) said:[42]

We turn to consider the relevance of the fact that no exception was taken at the trial to the charge on provocation. We do not think that the learned judge received the assistance from either end of the Bar table to which he was entitled. The duties of counsel in a criminal trial during and after the charge are responsible and important. Counsel for the defence are under a duty to their client to ensure that by taking exceptions to deficiencies in the charge they ensure as far as they can that their client’s case is put to the jury in a way which is as favourable to the client’s interest as the rules of law, including the common law right to a fair trial, require. We consider that counsel for the prosecution has a duty to take exceptions with a view to correcting errors in the charge including errors which make a conviction more likely but depart from the law. It is not in the public interest that any citizen receive other than a fair trial according to law. It is not in the public interest that a trial be followed by use of the resources of the judicial system in the expensive necessity of an appeal and a new trial. We do not suggest that in this case counsel for either party deliberately refrained from taking an exception.

[41]R v Caine (1990) 48 A Crim R 464.

[42]Ibid 475.

For the foregoing reasons, I would allow the appeal, set aside the conviction and order a new trial.

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[2014] VSCA 336

18 December 2014