Johnson v The State of Western Australia - [2009] WASCA 71

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA

TITLE OF COURT : THE COURT OF APPEAL (WA)

CITATION: JOHNSON -v- THE STATE OF WESTERN AUSTRALIA [2009] WASCA 71

CORAM: OWEN JA
BUSS JA
MILLER JA

HEARD: 11 MARCH 2009

DELIVERED : 2 APRIL 2009

FILE NO/S: CACR 178 of 2008

BETWEEN: HERBERT BARRY JOHNSON
Appellant
AND
THE STATE OF WESTERN AUSTRALIA
Respondent

ON APPEAL FROM:
Jurisdiction              :  DISTRICT COURT OF WESTERN AUSTRALIA
Coram  :DEANE DCJ
File No  :IND 890 of 2008

Catchwords:

Criminal law - Sudden or extraordinary emergency - Whether trial judge adequately put defence before jury - Whether defence open - Appellant charged with entering or being in the property of another without consent with intent to commit an offence therein - Appellant contending in his defence that he entered property when he heard that an associate was being attacked with an axe - Scope of defence of sudden or extraordinary emergency - Need for prosecution and trial judge to identify for jury offence the accused intends to commit

Legislation:

Criminal Appeals Act 2004 (WA), s 30(3), s 30(4)
Criminal Code (WA), s 24, s 25, s 31, s 70A, s 400, s 401(1)
Criminal Law Amendment (Homicide) Act 2008 (WA), s 5
Criminal Procedure Act 2004 (WA), s 85, sch 1 div 2 cl 6(9)

Result:

Leave to appeal granted
Appeal allowed
Conviction quashed
Retrial ordered

Category: A

Representation:

Counsel:

Appellant: Mr A E Eyers
Respondent: Mr B Fiannaca SC

Solicitors:

Appellant: Thames Legal
Respondent: Director of Public Prosecutions (WA)

Case(s) referred to in judgment(s):

AK v The State of Western Australia [2008] HCA 8; (2008) 232 CLR 438
Boughey v The Queen (1986) 161 CLR 10
Brennan v The King (1936) 55 CLR 253
Cesan v The Queen [2008] HCA 52; (2008) 83 ALJR 43
CTM v The Queen [2008] HCA 25; (2008) 82 ALJR 978
Darkan v The Queen [2006] HCA 34; (2006) 227 CLR 373
Dudley v Ballantyne (1998) 28 MVR 209
Dunjey v Cross [2002] WASCA 14; (2002) 36 MVR 170
Gassy v The Queen [2008] HCA 18; (2008) 82 ALJR 838
Glennon v The Queen [1994] HCA 7; (1994) 179 CLR 1
Morgentaler v The Queen [1976] 1 SCR 616
Murray v The Queen [2002] HCA 26; (2002) 211 CLR 193
Nguyen v The Queen [2005] WASCA 22
Perka v The Queen [1984] 2 SCR 232
R v Borland (1907) 10 GLR 241
R v GV [2006] QCA 394
R v Loughnan [1981] VR 443
R v O'Meara [1943] NZLR 328
R v Rogers (1996) 86 A Crim R 542
R v Smith [2005] QCA 1; [2005] 2 Qd R 69
R v Webb [1986] 2 Qd R 446
Stevens v The Queen [2005] HCA 65; (2005) 227 CLR 319
Sungravure Pty Ltd v Middle East Airlines Airliban SAL (1975) 134 CLR 1
Vallance v The Queen (1961) 108 CLR 56
Weiss v The Queen [2005] HCA 81; (2005) 224 CLR 300
Wilde v The Queen [1988] HCA 6; (1988) 164 CLR 365

OWEN & MILLER JJA: The appellant was charged on indictment that on 16 February 2008 at Yangebup he and another entered or were in the place of Lynda Marie Keen (Keen) without her consent with intent to commit an offence therein. There were a number of circumstances of aggravation alleged; namely, that the appellant was in company with another, that he did bodily harm to one Darren James Rowland (Rowland), that immediately before the commission of the offence he knew, or ought to have known, that there was another person in the place, and that the place was ordinarily used for human habitation. The offence was alleged to have constituted an offence against s 401(1) of the Criminal Code (WA). That section provides that a person who enters or is in the place of another person, without that other person's consent, with intent to commit an offence in that place, is guilty of a crime. Where there are circumstances of aggravation present (defined in s 400 of the Criminal Code), the penalty is greater than it would otherwise be.
The offence created by s 401(1) of the Criminal Code is a composite offence. Its ingredients are (1) entry into or being in the place of another person, (2) without that person's consent, (3) with intent to commit an offence in that place.
The appellant pleaded not guilty to the offence charged. He was tried before Deane DCJ and a jury in the District Court at Perth, between 21 and 28 October 2008. He was convicted by the jury of the offence charged, but acquitted of one circumstance of aggravation; namely, that he did bodily harm to Rowland.
The appellant seeks leave to appeal against his conviction. The question of leave has been referred to the court for determination with the appeal.
The ground of appeal is a single ground and it relates to the availability of the defence of extraordinary emergency within the meaning of s 25 of the Criminal Code. The ground of appeal is framed in the following terms:
The learned trial Judge erred in law and in fact when she failed to adequately explain to the jury the applicability of a defence available to the Appellant (namely Section 25 of the Criminal Code; Emergency), such that there was a miscarriage of justice.

The facts of the case

The appellant was charged in consequence of events that occurred on 16 February 2008 at an address in Shady Grove, Yangebup. A house at that address was, at the relevant time, occupied by Rowland and his girlfriend Keen and Keen's brother, Guy Arthur Edwards (Edwards).
Rowland has a brother named Michael John Kitson (Kitson). Kitson was alleged to have been threatening Rowland by reason of a disagreement over Rowland's care of his daughter.
On Saturday evening 16 February 2008, Rowland and Keen were in a bedroom at the front of the house watching television. Edwards was also in a bedroom near the front of the house. A vehicle pulled up outside the house and three males got out of it. They were Kitson, Stuart William Houston (Houston) (the appellant's co‑accused) and the appellant. It was alleged that they had walked up the driveway and there had been some discussion through a locked screen door with Edwards and Keen. They refused the three males entry and Keen slammed shut the main door of the house. This was a wooden door. Edwards made a 000 telephone call and asked for police to attend urgently.
The prosecution case was that the three males then started to force their way into the house. It was alleged that Edwards attempted to hold the door shut, but the door was smashed in. It was alleged that the three males then entered the house and kicked and punched Edwards. Rowland, who had heard the commotion, grabbed a hammer (otherwise described as a gimpy) and ran with it towards the group at the front door. He hit Kitson in the back with the hammer. There was then a struggle with Kitson, and Rowland hit Kitson on the head with the hammer, inflicting a head wound. It was alleged that Rowland was then thrown to the floor, held in a headlock by Houston, and Kitson and the appellant kicked him while he was on the floor. The three men were then alleged to have left the house when police sirens were heard.
The case advanced for the appellant was that he had gone to the house in Shady Grove, Yangebup because Kitson wanted to catch up with Rowland. He said that Kitson asked him (the appellant) if he would like to catch up with Rowland and he said that it would be good to do so. Kitson, Houston and the appellant then went to the house. They were driven by Susan Carol Westbrook, who was Houston's partner.
The appellant gave evidence that when they reached the house, the three men got out of the vehicle. He was the last out because he was fumbling around with a six‑pack of beers which had broken apart. The appellant said that Kitson went to an area between a bedroom window and the front door, where he was speaking to somebody. The appellant and Houston were sitting 'on the window sill', having a drink. The appellant said that he was 'waiting for everyone to get together and knock on the front door'. He said that, whilst he was sitting on the ledge drinking, a little bit of shouting happened. This shouting was between Kitson and a female. According to the appellant, Kitson became heated and the appellant said 'We're not here for this' when he saw Kitson grabbing and rattling the screen door. The appellant said that he started to proceed down the driveway and away from the scene. He got about halfway when he heard the sound of boots on the door. Nevertheless, he and Houston were intent on getting away.
The appellant said that he then heard the front door open and heard Kitson say 'This bloke's trying to stab me with scissors', following which Houston had gone to assist Kitson. According to the appellant, Houston went up to grab Kitson before he went inside, telling him to get out.
The appellant said that, very shortly afterwards, he heard a scream and heard the words 'I've been hit in the head with an axe'. The appellant then went to the house. The door was open. He put his six‑pack of beers on the bench at the door, and then saw Houston holding Rowland. He said he saw a gimpy in Rowland's hand and he grabbed it and threw it to the corner of the room. He thought that the gimpy was an axe. He then slapped Rowland on the head and said to him 'Youse are brothers. What are you doing? Let's go', or words to that effect. He then saw scissors on the floor and he threw those in the corner. He could see that Kitson was injured. The appellant ushered him out and the appellant, Kitson and Houston walked down the driveway and onto the roadway. They were then met by police officers.

The offence of burglary (s 401(1) Criminal Code)

As we have already pointed out, the ingredients of the offence of burglary are (1) entry into or being in the place of another, (2) without that other person's consent, (3) with intent to commit an offence in that place.
An important question which arises is whether the prosecution is bound to identify what offence it is that an accused person had an intent to commit in the place.
In this case, the prosecutor contended in opening that there was no need to identify what that offence was. The passage is in the following terms:
The State doesn't have to prove what offence they were going to commit. Only that they intended to commit an offence of some kind. Further, the State does not have to prove that the intention was formed before they arrived at the premises. It could have been formed immediately before the commission of the offence.
Now, the State case is that they may have intended to threaten or assault Mr Rowland or Mr Edwards, the latter whom you will recall was trying to hold the front door shut. Whilst it can never be known what is in a person's mind, the State will point to various circumstances to support the inference that they had an intention to commit an offence.
Firstly, you will note the state of the front door that was almost completely smashed in two and pulled off its hinges. Then there are the telephone calls to police and the noise that you can hear in the background. Finally, there is the actual assault on Edwards and Rowland. There is no surer sign of what a person intends to do than what they actually did.
The trial judge directed the jury about the ingredients of the offence. When discussing the need to prove an intent to commit an offence, her Honour said:
[T]he State must prove that, at the time of entry or being in the house, each of the two accused had an intent to commit an offence therein. Now, the State don't have to prove that their intention was formed before they arrived at the house; it could have been formed as they entered and were in the house, it could have been formed immediately prior to the offence occurring, if that be the case.
The trial judge then gave a standard direction in relation to the question of intention, following which her Honour added:
[T]he State refer to their allegation and evidence that the front wooden door was severely damaged and pulled off its hinges. They refer to the triple zero calls which they say both Mr Edwards and Ms Keen made to the police. They refer to the screaming and yelling that you can hear in the background of those calls. If you were to accept this evidence and you accept the State case that the two accused men were involved in the entry, in the circumstances alleged by the State, the State say you could infer that - or it would assist you to infer - that each of the two accused entered the house without consent and were in the house without consent with intent to commit an offence.
Her Honour added that 'just being in a house or entering a house without permission or consent is not the offence on the indictment. That's not burglary. It's a difference [sic different] offence and we're not dealing with that here'.
The trial judge must here have been referring to the offence of trespass created by s 70A of the Criminal Code. Section 70A(2) makes it an offence for a person to, without lawful excuse, trespass on a place. This is not an alternative to an offence under s 401(1) of the Criminal Code.
The trial judge repeated the prosecutor's statement that it was unnecessary to prove exactly what offence each of the accused intended to commit on entering or being in the house. Her Honour said:
[T]he State don't have to prove in relation to this charge of burglary beyond a reasonable doubt what offence each of the accused intended to commit on entering or being in the house, only that it was an offence of some kind. It may be that the State suggests that each of the accused intended to threaten or assault persons in the house, but they don't have to prove that the specific offence - that was the specific offence the subject of the alleged intention.
Section 85 of the Criminal Procedure Act 2004 (WA) prescribes the formal requirements for an indictment. Section 85(1) provides that sch 1 has effect in relation to indictments and charges in them. Section 85(2) provides, inter alia, that an indictment must (a) be in writing in a prescribed form and (b) comply with sch 1 div 2.
Schedule 1 div 2 of the Criminal Procedure Act 2004 provides, in cl 6(9), that a charge that alleges an offence involving an intention to commit an offence need not specify the actual offence intended (emphasis added).
In R v Borland (1907) 10 GLR 241, Chapman J, in the Supreme Court of New Zealand at Christchurch, held that a similar provision in the Criminal Code Act 1893 (NZ) (s 363) made it sufficient that a count contain, in substance, a statement that the accused has committed some crime therein specified, and that such statement may be in the words of the enactment describing the crime or declaring the matter charged to be a crime (242).
The decision in Borland arose out of an objection to the indictment which alleged the offence of breaking and entering a dwelling‑house by night with intent to commit a crime therein. The indictment gave the name of the occupier of the house and the date, but no further particulars.
Chapman J thought it important that the evidence established the commission of an offence (an assault) by the offender after entry into the house. He said, at 241:
The evidence proved that the accused had unlawfully entered the house by night and had committed a very slight assault upon the owner's daughter in such a way that it would have been open to the jury to have found him guilty either of an indecent assault or a common assault, and upon this the accused was convicted.
The decision in Borland is consistent with the requirement contained within the Criminal Procedure Act 2004 sch 1 div 2 cl 6(9) that, when formulating an indictment for burglary, a charge that alleges an offence involving an intention to commit an offence need not specify the actual offence intended. The decision does not, however, suggest that the prosecution is not required, when leading evidence, to identify an offence which the offender intended to commit.
In R v O'Meara [1943] NZLR 328, the New Zealand Court of Appeal, sitting in Wellington, applied Borland. In that case, the indictment against the accused alleged the offence of breaking and entering a dwelling‑house by day and stealing therefrom a sum of money. In the alternative, there was an allegation of breaking and entering the dwelling‑house by day with intent to commit a crime therein - 'to wit, the crime of theft'. The jury acquitted on the first count and on the second count returned a verdict 'guilty of breaking and entering with intent to commit a crime therein. What crime was intended has not been definitely proved'.
Counsel for the Crown applied to amend the second count by deleting the words 'to wit, the crime of theft' and, upon objection, the trial judge stated a case for the opinion of the Court of Appeal as to whether or not the proposed amendment to the second count should be made and, if so, on what terms.
The Court of Appeal held that a verdict of not guilty should be entered. Myers CJ, Blair, Johnston and Fair JJ held that the result would be the same whether the count was amended or not and that the jury, by their verdict, were not satisfied that the evidence (our emphasis) disclosed an intent to commit the crime of theft. The court further held that there was nothing in the evidence upon which a jury could reasonably find that there was an intent to commit any other crime.
Myers CJ, at 331, said:
Sometimes an indictment under this [s 277 Crimes Act 1908 (NZ)] and other similar sections is framed merely in general words, as in Rex v Borland, without particularizing the specific crime which it is alleged the prisoner intended to commit; but sometimes again, where the depositions seem to point to one, and only one, particular species of crime which the prisoner could have had an intent to commit, the Crown Prosecutor condescends to particularize the crime which the Crown alleges the prisoner had the intent to commit.
Myers CJ added, at 332:
[T]he gist of the offence is the intent to commit a crime. If there is nothing in the evidence to prove that the prisoner had any such intent, he cannot be convicted. The case of R v Wood [(1911) 7 Cr App Rep 56], cited by the Solicitor‑General, does not help. All that that case shows is that where the indictment is in general terms without an allegation of an intent to commit a particular felony, and the evidence shows an intent to commit larceny, that is evidence upon which a jury may find the prisoner guilty. So here, if the second count in the indictment had been in general terms without alleging an intent to commit a specified crime and the jury had found the prisoner guilty, there was evidence - that is to say, evidence of an intent to commit theft - upon which the jury could so find. That is as far as Wood's case goes. If, however, the Crown alleges an intent to commit a particular offence, and that intent is negatived by the jury, a verdict of having broken and entered the premises with intent to commit a crime cannot be supported unless there is evidence from which it would be reasonable and proper for a jury to find that the prisoner had an intent to commit some offence other than that of theft.
Whilst an indictment alleging an offence involving an intention to commit an offence need not specify the actual offence intended (cf Criminal Procedure Act 2004 sch 1 div 2 cl 6(9)), the prosecution must, nevertheless, lead at trial evidence to prove an intention to commit an offence.
Because an intention to commit an offence requires a specific intention on the part of an accused person, the prosecution must lead evidence to support the allegation contained in the indictment. In the present case, the evidence led by the prosecution pointed overwhelmingly to an intention to commit an assault on one or more of the occupants of the premises at Shady Grove, Yangebup. No other offence was contemplated.
The trial judge told the jury that the prosecution did not have to prove what offence each of the accused intended to commit on entering the house. Nevertheless, it was essential that the prosecution identify in the evidence an offence. Were it otherwise, the jury would be left with the task of having to work out for itself what offence or offences the appellant may have intended to commit. The jury could not be expected to be familiar with the provisions of the Criminal Code. It was necessary that they be directed as to what potential offence or offences the appellant may have intended to commit. That direction would depend upon the evidence led by the prosecution.

In the present case, the trial judge appears to have left open the question of what offence it may have been intended to commit, although reference was made to the prosecution's suggestion that each of the accused 'intended to threaten or assault persons in the house'.
This issue is not the subject of any ground of appeal, but needs to be fully ventilated because a retrial of the appellant will be required.
There are two other points that should be noted about the offence of burglary under s 401. First, it does not matter whether an offence is actually committed once the person is in the premises. The focus of attention must be on the intent to commit an offence, not on the question whether that intent was put into effect by the commission of a substantive offence. Secondly, the crime is not limited to an entry into premises. The words used in the section are 'enters or is in'. It is thus possible that the intent to commit an offence (an essential element of the crime of burglary) may not exist at the time of entry but is formed once entry has been gained.
This is an additional reason why the jury should not be left itself to identify the offence or offences that it is said the accused person intended to commit. We note in passing that the indictment in this matter alleges that the appellant and Houston 'entered or were in' the place. We mention this not by way of criticism of the drafting of the indictment but to show that the second issue raised in the preceding paragraph could apply in circumstances such as those raised in this case.

Applicability of s 25 of the Criminal Code

The foundation for the submission that s 25 of the Criminal Code was applicable was the evidence of the appellant. We have referred to this evidence in general terms, but it is necessary to refer to the relevant passages of his evidence.
The appellant said that he was down the driveway when Houston ran back and went into the house. He then said:
Yes---And not even seconds later I heard a scream.
20 seconds later you hear a scream---Yeah, not even seconds later.
DEANE DCJ: Did you say not even seconds later?
SEIF, MS: Sorry, not even seconds later---Yeah, I heard a scream.
Yes---'I've been hit in the head with an axe.'
Right---Very high-pitched. That's when I came up to the door.
Now, you said, 'That's when I came up to the door'---Yeah.
What pace did you get to the door---Quite fast.
Why did you get to the door fast---Well, I heard, 'I've been hit in the head with an axe.'
Okay, then what did you do---I proceeded in. The door was actually standing open.
Yes. When you say 'the door', which door---The wooden front door.
Was standing open---Yeah.
Yes, and you proceeded in---Yeah.
Right---I put my six-pack on the bench that was at the door.
SEIF, MS: The bench at the door, yes---Yeah, and I seen Stuart holding Darren and I seen a gimpy in his hand.
DEANE DCJ: In whose hand---Darren's hand, which I grabbed and threw to the corner of the room.
...
And you've thrown it. Can you remember where you threw it---Yeah, to the corner of the room.
Right---The front door's here, Darren's there and I threw it over to the corner of the room there, behind---
Why did you do that? Why did you throw it to the corner of the room‑‑‑Why? Because it's out of the way.
Why did you want it out of the way---Well, lethal weapon.
Okay---You can kill people with it.
And then what happened---I slapped Darren on the head. I said to him, 'Youse are brothers. What are you doing? Let's go' - not 'Let's go.' I said, 'Youse are brothers. You should be talking,' and anyway, I heard, 'Watch out for the scissors.'
...
Right. And then what happened---Then I turned around. There was scissors on the floor, which I threw in the same corner.
When cross‑examined, the appellant put it this way:
Okay. And what happens next? You said there's a big scream---Yeah and that's when I ran in, ran up. By - by the time I heard it the second time, I was inside.
And what did you hear---'I've been hit in the head with an axe'.
Okay. And what did you do---I seen Darren on the floor with Stuart underneath him. I grabbed the gimpy.
Yeah. Who had the gimpy---Darren had the gimpy, what I thought was an axe, well---
And by gimpy, you mean a large - large hammer---Yes. Large hammer, and threw it away
Okay. What happens next---I turned to see where the scissors were - the man with the scissors.
Yeah, you say someone said something about scissors---Yes.
Who was that---I'd say it was Michael.
When you say you'd say it was Michael, do you remember Michael saying it---No, I had just heard it.
Sorry---I just heard.
And you know who said that---No.
So someone said, 'Watch out for the man with the scissors'---Yeah. Anyway, I seen the scissors on the floor and I threw them in the corner as well.
The evidence of the appellant raised an explanation as to why he had entered the premises. On his testimony, he had only gone into the premises because he heard a scream and the words, 'I've been hit in the head with an axe'. The appellant said that the scream came 'from Michael' (Kitson) and this was the reason he ran up to the house.
On the appellant's testimony, he entered the house in circumstances where he had no consent to do so, but not in circumstances in which he intended to commit an offence in the house. He raised as a defence that he ran to the aid of a friend whose scream he heard coming from within the house and whom he thought had been struck on the head with an axe. On this evidence, he could not have had any intent to commit an offence in the house. If the jury was left with a reasonable doubt on that issue, the appellant could not have been convicted of the offence charged, or of any alternative.
The question which also arises is whether the entry without consent was excused by reason of any of the provisions of the Criminal Code relating to criminal responsibility. In that respect, s 25 of the Criminal Code is the only section which could be applicable.
It might be thought, for example, that s 31 of the Criminal Code could apply. Section 31, like s 25, was amended with effect from 1 August 2008. But, in the form in which it appeared at the time this offence was committed, it read as follows:
A person is not criminally responsible for an act or omission if he does or omits to do the act under any of the following circumstances, that is to say —
...
(3)When the act is reasonably necessary in order to resist actual and unlawful violence threatened to him, or to another person in his presence;
(4)When he does or omits to do the act in order to save himself from immediate death or grievous bodily harm threatened to be inflicted upon him by some person actually present and in a position to execute the threats, and believing himself to be unable otherwise to escape the carrying of the threats into execution;
...
The effect of the opening words of s 25, namely, 'subject to the express provisions of this Code relating to acts done upon compulsion', is to exclude the operation of s 25 where the act or omission and what is said to be the compulsion require the application of s 31(3) or (4): R v Smith [2005] QCA 1; [2005] 2 Qd R 69 [20] ‑ [23]. Section 31 (3) and (4) have been replaced by the new s 32 ('Duress'). Although it is not necessary to express a concluded view, we cannot presently see any good reason why a different position would apply as regards the interaction between s 25 and s 32.
In any event, s 31 could have no application to the facts of this case. On the appellant's case, he was outside the premises when he heard the words that he says prompted him to enter. He could not argue that the apprehended violence was threatened against him (s 31(3) or (4)) and nor was he present when the threat was made to another person (s 31(3)).

The raising of s 25 of the Criminal Code

The closing address of counsel for the appellant has not been transcribed, but it is apparent from the transcript of the proceedings that, during the course of that address, counsel said something about s 25 of the Criminal Code. The trial judge raised the matter at the close of the counsel's address, saying:
Ms Seif, just a couple of things. I'm not intending to address the jury, or charge the jury, in relation to section 25. Your client is charged with entering or being in the place without consent with an intention to commit an offence. He's not charged with being in there without consent per se, so I don't - I'll certainly put to the jury that on his evidence it really was out of a concern for the safety of those inside, or someone inside, when he heard the word 'axe' ... and someone being hit with an axe being mentioned, and that is why he went in, but I don't think it's strictly a defence that's available in these circumstances, and I think it would perhaps just complicate matters. (ts 495)
Counsel for the appellant accepted this, saying 'For sure, your Honour.'
The appellant was not charged with the offence of trespass (Criminal Code s 70A), but with the offence of burglary (Criminal Code s 401(1)). Nevertheless, an ingredient of the offence of burglary was that the appellant entered or was in the place of another person without that other person's consent. This ingredient had to be proven. If the entry into the premises was in circumstances of sudden or extraordinary emergency, or if it could reasonably be contended on the evidence that it was so, the appellant was in a position where he could avail himself of the defence constituted by s 25 of the Criminal Code. His act of entry would arguably have been under circumstances of sudden or extraordinary emergency such that an ordinary person possessing ordinary power of self‑control could not reasonably be expected to act otherwise.

The trial judge's summing up

The trial judge did not advert to s 25 of the Criminal Code whilst addressing the jury. The trial judge summarised the evidence in the case, including that of the appellant. Her Honour referred to the evidence of the appellant about the reason for his entry into the house, saying:
Mr Kitson then appeared to go inside the premises. A short time later, Mr Johnson heard Mr Kitson's voice even more loudly, saying, 'I've been hit in the head with an axe', and that is what caused Mr Johnson, he said, to go inside at a relatively quick pace.
He later explained that he didn't go in at the earlier mention of the scissors because in effect, he regarded an axe as being a more dangerous or threatening item or situation. He said he went in to the house. The front door was still actually standing open, though badly damaged. There was no light in the lounge, but there was in the dining area.
He put the six‑pack, or what - contained what was left of the six‑pack on a bench inside the front door, and he said that the first thing he saw was Mr Kitson crouched down, and Mr Rowland close‑by to Mr Kitson, lying on the floor, face‑up with a gimpy in his hand. Mr Johnson grabbed the gimpy and threw it to the corner of the room, thinking perhaps it was an axe at the time this happened very quickly.
Mr Kitson looked dazed and his hand was over his head. At this stage, Mr Johnson noted that Mr Houston was actually under Mr Rowland. Having disposed of the gimpy, Mr Johnson then slapped Mr Rowland with an open hand on the forehead, saying words to the effect, 'You're brothers. You should be talking.'
Mr Johnson then heard Mr Kitson say something like, 'Watch out for the man with the scissors', causing Mr Johnson to turn, and that's when he saw some scissors on the floor which he picked up and threw into the corner also.
He turned his attention to Mr Kitson, who looked shocked and had a hole in his head from which he was bleeding, so Mr Johnson told Mr Kitson to leave, and in fact, he said he ushered Mr Kitson towards the front door, grabbing the six‑pack of beer as he went out. At this point, he said Mr Houston was in front of Mr Johnson, also leaving.
The group then proceeded down the drive and walked down the street towards the police car. They then had the conversation with the police that you've heard about, and Mr Johnson was taken into custody (ts 539 ‑ 540).
The appellant's case was summarised by the trial judge, but no defence appears to have been identified:
On behalf of Mr Johnson, the defence say, correctly, that you consider the case with respect to each accused separately. They don't dispute that Mr Rowland's injuries aren't bodily harm, but say Mr Johnson had nothing to do with the bodily harm suffered by Mr Rowland. They say just because Mr Johnson might be a big drinker, does not mean that he committed this offence.
…
They say Mr Johnson was down the drive when the security door was pulled open and the front door was kicked in by Mr Kitson. He was leaving and only changed his mind when he said that mention of someone being hit with an axe was made and he felt that he had a duty out of safety concerns to further investigate. They say both Mr Johnson and Mr Houston mentioned that scissors were referred to that evening and Mr Johnson actually says he saw a pair and disposed of them (ts 547 ‑ 548).

Request for a redirection

At the close of the trial judge's directions to the jury, counsel for the appellant raised the issue of s 25 of the Criminal Code. She said:
Your Honour, I still am grappling with section 25, in relation to the sudden or extraordinary emergency. The concern I have, is that on the indictment it says: Entered or in the place or [sic of] Lynda Marie Keen without her consent. So my concern is that the consent of the owner/occupier is an issue for the jury obviously and if he [sic the] consent has not been granted by them entering into the house, the defence have to raise for what reason they have entered into the house. (ts 556)
The trial judge responded by saying that the charge was not one of being in the house without consent, but being in the house without consent with intent to commit an offence. Her Honour said that if the charge was trespass, she could understand the relevance of s 25 of the Criminal Code, but not otherwise. Nevertheless, she said that she would direct the jury on the issue.
The jury was then recalled and the trial judge said:
The charge here is burglary and that means going into someone's house without their consent, with an intention of committing an offence therein. However, in the event that you come to the view that as part of the overall evidence that each of the two accused did go into the house without consent. In effect, they effectively have said that yes they did, but and they both deny having any intent to commit an offence therein anyway, but just as to this business of going in without consent, each of them - which is part of the offence of burglary, not the whole of it. Each of them have in effect said, 'Yes, but it was in circumstances and this is on each of their behalves, that really were what might be described at law as a sudden emergency. Section 25 of our Criminal Code talks about an emergency and it says that: A person is not criminally responsible for an act done in an emergency. An emergency is if the person believes circumstances of sudden or extraordinary emergency exist and the doing of an act by them, is necessary as a response to the emergency and the act is a reasonable response to the emergency.
So this is just dealing with going into the house without consent. And each of the accused, in effect, say in their evidence - and I have reminded you of it - was 'Yes, I did. In effect, the signs were that we weren't welcome.'
But when each of the accused heard mention of an axe and someone being hit by an axe, in all of the circumstances that prevailed, they both believed or felt - for safety reasons, notwithstanding what had happened earlier - that they had to go into the house or should go into the house and assist and see what was going on. So, I just wanted to make that point (ts 557 ‑ 558).
The reference made by the trial judge to s 25 of the Criminal Code was reference to s 25 as it now appears in the Criminal Code. That section is in different terms from the section which was relevant at the time of the proceedings.
The new s 25, which is headed 'Emergency', was introduced into the Criminal Code by s 5 of the Criminal Law Amendment (Homicide) Act 2008 (WA) which repealed the existing s 25 and replaced it with the provision to which her Honour referred. However, that provision applies only to offences committed after 1 August 2008, because of the effect of the transitional provisions contained in sch 1 of the Criminal Code.
It follows that the trial judge was wrong to direct the jury in accordance with the provisions of s 25 of the Criminal Code as they now appear. The proper direction should have been in accordance with s 25 as it stood prior to the 2008 amendment. The section then read:
25.Extraordinary emergencies
Subject to the express provisions of this Code relating to acts done upon compulsion or provocation or in self‑defence, a person is not criminally responsible for an act or omission done or made under such circumstances of sudden or extraordinary emergency that an ordinary person possessing ordinary power of self‑control could not reasonably be expected to act otherwise.
If the defence of extraordinary emergency was available in this case, the trial judge misdirected the jury about it. Further, the direction was plainly inadequate, because it was necessary for the trial judge to have directed the jury as to (1) what a sudden or extraordinary emergency was and (2) what an ordinary person possessing ordinary power of self‑control means.
A 'sudden emergency' has been described as 'one that comes upon the accused unexpectedly, catching her or him off‑guard': Yeo S, 'Necessity under the Criminal Code and the Common Law' (1991) 15 Criminal Law Journal 17, 23. An extraordinary emergency is one which has been said to be 'unexpected or sudden', but 'a situation of "extreme gravity and abnormal or unusual danger"': Yeo, at 24.
Further, the defence of mistake of fact under s 24 of the Criminal Code may be relied on in conjunction with the defence of emergency. An accused person may be excused from criminal responsibility if he or she was acting under an honest and reasonable, but mistaken, belief that a sudden or extraordinary emergency existed: Yeo, at 25. See also Stevens v The Queen [2005] HCA 65; (2005) 227 CLR 319, [49] (Kirby J); R v GV [2006] QCA 394 [28] and see Law Reform Commission of Western Australia, Review of the Law of Homicide, Final Report, Project No 97 (2007) 190 ‑ 191.
In Stevens, the question was whether the trial judge had sufficiently explained to the jury the issues which they had to resolve in deciding whether the appellant was guilty of murder. It was contended that there was a deficiency in the trial judge's direction under s 23(1)(b) of the Criminal Code (Qld)
The facts of the case were summarised by Gleeson CJ and Heydon J, at [2], in the following way:
The deceased was fatally wounded by a gunshot to the head fired from a rifle. When the rifle was fired, the muzzle was in partial contact with the deceased's forehead. The rifle was owned by the appellant, but the deceased could have had access to it. The only persons present at the time of the shooting were the appellant and the deceased. They were business associates. They were together in the deceased's office. Immediately after the shooting, the appellant telephoned the ambulance service, reported that a man had been shot in the head, and, when asked what happened, said he was 'going to call it an accident for the moment'.
The prosecution case was based upon circumstantial evidence. It included evidence of motive. The allegation was that the appellant fired the fatal shot intending to kill the deceased. The prosecution contended that the deceased had no reason to commit suicide. The prosecution asserted that there was no mishap and that the accused person unlawfully killed the deceased intending to do so.

In evidence at the trial, the appellant said that he had entered the deceased's office for a prearranged meeting and found the deceased seated at his desk, holding the barrel of a rifle in front of and very close to his head. The appellant said that he stepped forward and grabbed the gun, which discharged. The deceased fell back. The appellant picked up the gun and put it on the desk, and then attempted to resuscitate the deceased. When his attempts were unsuccessful, he rang the ambulance service.
In Stevens, the question of s 25 of the Criminal Code (Qld) emerged only incidentally. The case was concerned with the applicability of s 23(1)(b) of the Criminal Code (the equivalent of s 23 of the Criminal Code (WA)). Gleeson CJ and Heydon J, at [11], made the following observations about s 25 of the Criminal Code:
It is a requirement of s 25 (and, by extension, s 24 if invoked in aid of s 25), as explained, that the act of the accused for which criminal responsibility would otherwise attach was done under such circumstances of sudden or extraordinary emergency that an ordinary person possessing ordinary power of self-control could not reasonably be expected to act otherwise. If a person, possessing ordinary power of self-control, sees another person about to shoot himself in the head, the proposition that the first person could not reasonably be expected to act otherwise than by attempting to seize the gun is at least open to debate. It is interesting to note, however, that the judge did not raise for the jury's decision any issue about the application of s 25 (which would have required them to consider how an ordinary person would have acted in the situation described); he simply told them that, while it was not possible from the appellant's account to conclude that an act of the appellant caused the rifle to discharge, even if it had been possible so to conclude 'the accused would not be guilty of murder on his account because he acted in a circumstance of sudden or extraordinary emergency'. If that had been a direction of law as to an issue to be determined by the jury, it would have been unduly favourable to the appellant. Rather, it seems to have been put as another reason why they must acquit unless the appellant's account was excluded as a possibility.
Both Kirby and Callinan JJ observed that the trial judge had properly directed the jury in relation to s 25 of the Criminal Code, and Kirby J made reference to the interaction of s 24 and s 25 of the Criminal Code. His Honour said, at [49]:
[T]he trial judge instructed the jury on what he saw as the critical issue in the trial. This was whether the appellant had shot the deceased intending to shoot him or in an unsuccessful effort to rescue him from an apparently intended suicide. He subsumed the latter interpretation of the evidence in directions relating to the excuses of mistake and extraordinary emergency respectively referred to in ss 24 and 25 of the Code. On these issues, I agree with Callinan J that the trial judge's directions to the jury were accurate, brief and admirably lucid [Reasons of Callinan J at [158]]. He told the jury plainly that, if the prosecution had not disproved the appellant's version of events, the appellant was not guilty and was entitled to an acquittal. Correctly, he told the jury that there was no onus upon an accused to prove the identified excuses from criminal responsibility for mistakes of fact and emergencies. The prosecution was bound to exclude their application to the case and to do so beyond reasonable doubt [R v Mullen (1938) 59 CLR 124 at 128 ‑ 130; Griffiths v The Queen (1994) 69 ALJR 77 at 80; 125 ALR 545 at 548 ‑ 549; Murray (2002) 211 CLR 193 at 206 ‑ 207 [40], 218 [78.2]].
Callinan J said, at [154], that, in almost every respect, the trial judge's summing up was favourable to the appellant. That summing up included a direction on the availability of a defence under s 25 of the Criminal Code. Callinan J said:
It is clear that his Honour did intend, and did direct the jury of a possible defence under s 25 of the Criminal Code, even though he made no express reference to the likely reactions of an ordinary person confronted with the situation in which the appellant claims to have found himself, of which that section speaks. This was no doubt because on the facts as recounted by the appellant, it was easily imaginable, indeed rather likely, that an ordinary person would try, as the appellant did, to prevent Mr Brockhurst from discharging the firearm and injuring or killing himself. His Honour was at that stage of his summing up dealing with the appellant's case, and, on the facts of it, and the inferences available from them, a reference to the reaction of a notional ordinary person was not necessary. [154]
At [158], Callinan J added:
What his Honour said of extraordinary emergency was helpful to the appellant. But in the circumstances, I nonetheless think that his Honour should have given a direction of the kind sought by the appellant's counsel at the trial [s 23(1)(b)]. His Honour's willingness to direct on the possibility of the several different defences to which the Chief Justice and Heydon J in this Court refers in their reasons, was orthodox and correct. The fact however that one of those defences might be stronger, indeed significantly so, does not mean that directions on the others may be dispensed with. Nor do I think it is an answer in this case to say that one defence, or a direction in respect of it, subsumed another to the extent that the latter needed not to be mentioned or put to the jury in appropriate terms. Different people may have different perceptions of facts. Certain words, or language, or expressions of concepts, may provoke different responses in different people. [158]

Applicability of s 24 and s 25 in the present case

The interaction of s 24 and s 25 of the Criminal Code was relevant to the present case. The appellant said that he heard a scream from his friend and, for that reason, ran into the house. By implication, he must have believed that there was a sudden or extraordinary emergency. He did not say so and did not lay a specific foundation for the defence of honest and reasonable but mistaken belief (Criminal Code s 24). However, the section interacted with s 25 because Kitson had not in fact been hit in the head with an axe, but had been hit on the head with a gimpy. The appellant was entitled to call in aid s 24 of the Criminal Code which relevantly reads:
A person who does or omits to do an act under an honest and reasonable, but mistaken, belief in the existence of any state of things is not criminally responsible for the act or omission to any greater extent than if the real state of things had been as he believed to exist.
No direction was given by the trial judge (nor was any sought) in relation to s 24 of the Criminal Code, but it seems to us that if s 25 of the Criminal Code was open, s 24 had to interact with it.
There is a further and fundamental problem. The trial judge did not advert to the onus of proof when redirecting the jury in relation to s 25 of the Criminal Code. There had earlier been a general reference to the onus of proof when the trial judge (correctly) put the following propositions:
So if in the first place on all of the evidence you are satisfied beyond a reasonable doubt of the guilt of a particular accused relevant to this charge you must of course convict that accused. Secondly, if you believe an accused is telling the truth you must of course acquit that accused. Thirdly, if you are left with a reasonable doubt as to any matter that the State must prove or disprove with respect to an accused person, you must acquit that accused. In other words, relevant to that accused on the evidence if you cannot determine beyond a reasonable doubt where the truth lies, that accused is entitled to the benefit of that doubt.
However, on no view of it was this direction sufficient to excuse the need for a clear direction that there was no onus upon the appellant to prove his excuse from criminal responsibility by reason of any mistake of fact and sudden and extraordinary emergency which may have existed (see Stevens per Kirby J [49] and cases cited, including Murray v The Queen [2002] HCA 26; (2002) 211 CLR 193 per Gummow and Hayne JJ at [40], Kirby J at [78] (2). There was no direction given by the trial judge in relation to where the onus of proof lay in relation to the defence of emergency as she defined it in the redirection.
For the sake of completeness, we should mention that at the time when the trial judge redirected concerning s 25 she also covered an unrelated matter that had been raised by the prosecution, namely the bodily harm said to have been suffered by Rowland. On the State's case, Houston held Rowland in a headlock and he (Rowland) fell and hit his head on a coffee table. The purpose of the redirection was to remind the jury that the coffee table incident was not the full story on bodily harm. Her Honour explained that, on the State's case, Houston held Rowland down on the floor and the appellant and Kitson 'layed into' Rowland and kicked him. Her Honour then said:
And that resulted in all of the injuries, the State say. Now that's what they set out to prove. That's what they must prove for the bodily harm. If you were to come to the view - because Mr Houston has given evidence, not that he has to prove or disprove anything [our emphasis] - but if you were to come to the view 'Well, Mr Houston did, when he came in and saw Mr Kitson the way he was and what Mr Rowland was doing, grab Mr Rowland in a headlock to try and sort of calm him down and in the course of that - if Mr Rowland did fall and hit his head on the coffee table and cut his eye, that alone wouldn't be the bodily harm.'
But this comment relates to the general onus on factual matters. It would not have alerted the jury to the fact that, when a specific defence of extraordinary emergency is raised, the State bears the burden of negativing the defence and proving guilt beyond reasonable doubt.

Was the defence of extraordinary emergency open?

The defence of extraordinary emergency

There have been a number of instances of application of the defence of extraordinary emergency within the meaning of s 25 of the Criminal Code. Most of the cases in which the defence has been raised have been motor vehicle prosecutions. Commonly, the defence has been relied upon in cases where an accused person has driven in a manner contrary to the law in order to avoid harm or to respond to an emergency: see Dudley v Ballantyne (1998) 28 MVR 209 and other cases referred to in the Law Reform Commission of Western Australia, Review of the Law of Homicide, Final Report, at note 105, page 193.
In Dunjey v Cross [2002] WASCA 14; (2002) 36 MVR 170, Miller JA dealt with the defence in the context of driving charges arising out of the failure of the appellant to obey police directions at a roadblock which had been erected near the appellant's property. The property was, at the time, threatened by fire. In that case, Miller JA made reference to the fact that s 25 of the Criminal Code, as it applied to the case, was in the same terms as s 25 of the Criminal Code of Queensland. At [39], reference was made to Sir Samuel Griffith's note to s 25 in the Draft Criminal Code of Queensland:
This section gives effect to the principle that no man is expected (for the purposes of the criminal law, at all events) to be wiser or better than all mankind. It is conceived that it is a rule of the common law, as it undoubtedly is a rule upon which any jury would desire to act. It may, perhaps, be said that it sums up nearly all the common law rules as to excuses for an act which is prima facie criminal. [39]
At [40], Miller JA said:
The provision relating to extraordinary emergencies seems therefore to reflect the common law defence of necessity. It does not include compulsion, which is the subject of s 31 of the Criminal Code. That section which relieves a person of criminal responsibility for an act or omission if he does or omits to do the act under circumstances where he does or omits to do it in order to save himself from immediate death or grievous bodily harm threatened to be inflicted upon him by some person actually present and in a position to execute the threats, and believing himself to be unable otherwise to escape the carrying of the threats into execution. [40]
The Law Reform Commission in its final report, Review of the Law of Homicide, accepted that the common law defence of necessity and the statutory defence of emergency were similar. At 190, there appears the following passage:
Both the common law defence of necessity and the defence of emergency in Western Australia impose an objective test. However, the most significant difference between the two is that under the Code the defence applies to all crimes but at common law the defence of necessity has only been recognised in specific circumstances. In Australia, it has been observed that the defence of necessity at common law has only been recognised in Victoria and New South Wales. Significantly, the defence of necessity has traditionally not been available as a defence to murder, although an English case dealing with the separation of conjoined twins has potentially opened that door. (190) (Footnotes omitted)
It was in consequence of the Law Reform Commission's report that the new defence of emergency was incorporated in the Criminal Code, with effect from August 2008. The Law Reform Commission could not identify any particular problems with the test under the previous s 25, but felt that adoption of the model Criminal Code defence of emergency would achieve consistency and simplicity in the law (Law Reform Commission of Western Australia, Review of the Law of Homicide, Final Report, page 191).

The common law defence of necessity

In R v Loughnan [1981] VR 443, the Full Court of the Supreme Court of Victoria considered the common law defence of necessity. Young CJ and King J, at 448, concluded:
[T]here are three elements involved in the defence of necessity. First, the criminal act or acts must have been done only in order to avoid certain consequences which would have inflicted irreparable evil upon the accused or upon others whom he was bound to protect [our emphasis]. The limits of this element are at present ill defined and where those limits should lie is a matter of debate. But we need not discuss this element further because the irreparable evil relied upon in the present case was a threat of death and if the law recognizes the defence of necessity in any case it must surely do so where the consequence to be avoided was the death of the accused. We prefer to reserve for consideration if it should arise what other consequence might be sufficient to justify the defence: cf People v Lovercamp (1975), 43 California Appeals 3d 823, in which the consequence to be avoided was forcible homosexual activity.
The other two elements involved, which were identified by Menhennitt, J. in R v Davidson, supra, at p 671 can for convenience be given the labels, immediate peril and proportion, although the expression of what is embodied in those two elements will necessarily vary from one type of situation to another.
The element of imminent peril means that the accused must honestly believe on reasonable grounds that he was placed in a situation of imminent peril. As Edmund Davies, LJ (as he then was) pointed out in Southwark LBC v Williams, supra, at p 746, all the cases in which a plea of necessity has succeeded are cases which deal with an urgent situation of imminent peril. Thus if there is an interval of time between the threat and its expected execution it will be very rarely if ever that a defence of necessity can succeed.
The element of proportion simply means that the acts done to avoid the imminent peril must not be out of proportion to the peril to be avoided. Put in another way, the test is: would a reasonable man in the position of the accused have considered that he had any alternative to doing what he did to avoid peril? (448)
If the first element identified by Young CJ and King J properly reflects the common law defence of necessity, it has particular relevance to the present case. According to this formulation, at common law, a criminal act, or acts, must have been done (by the appellant) only in order to avoid certain consequences which would have inflicted irreparable evil upon the accused or upon others whom he was bound to protect.
Even if the common law defence of necessity is one and the same as the defence under s 25 of the Criminal Code, it can be seen immediately that the appellant in the present case could not rely upon the first of the elements identified by Young CJ and King J. He did not do a criminal act in order to avoid consequences which would have inflicted irreparable evil upon another whom he was bound to protect. He was not bound the protect the person to whose aid he went.
However, in R v Rogers (1996) 86 A Crim R 542, Gleeson CJ, at 545 ‑ 546, considered that an instructive analysis of the 'ill‑defined and elusive concept' of necessity was to be found in the judgment of Dickson J in the Supreme Court of Canada, in Perka v The Queen [1984] 2 SCR 232. Nowhere in that judgment is there any suggestion that there is a requirement that the act done must have been done to avoid consequences which would have inflicted irreparable evil upon the accused or upon others whom he was bound to protect.
In Perka, the accused were charged with the importation and possession of narcotics for the purpose of trafficking. They were arrested in Canadian waters in possession of a large quantity of marijuana. They sought to rely on the defence of necessity and adduced evidence that the cargo of marijuana was originally destined for Alaska. En route, the vessel in which they were travelling began to encounter a series of problems, aggravated by deteriorating weather conditions. They made for the Canadian shore to make repairs, but the ship carrying the marijuana ran aground. The captain, fearing that the vessel would capsize, ordered the men to off‑load the cargo, which they did. Police officers arrived a short time later.
The majority of the Supreme Court of Canada (Dickson, Ritchie, Chouinard and Lamer JJ) held that the trial judge had correctly concluded that, on the evidence before him, he could instruct the jury with respect to the defence of necessity. This was because there was evidence from which a jury might conclude that the accused's actions in coming to shore with the cargo were aimed at self‑preservation in response to an overwhelming emergency.
The case did not involve an act done to avoid consequences which would have inflicted irreparable evil upon anyone the accused was protecting (whether bound to protect such a person or not), but Dickson J traced the history and background of the defence of necessity saying, at 242:
In those jurisdictions in which such a general principle has been recognized or codified it is most often referred to by the term 'necessity'. Classic and harrowing instances which have been cited to illustrate the arguments both for and against the principle include the mother who steals food for her starving child, the shipwrecked mariners who resort to cannibalism (R v Dudley and Stephens (1884), 14 QBD 273) or throw passengers overboard to lighten a sinking lifeboat (United States v Holmes 26 Fed Cas 360 (1842)), and the more mundane case of the motorist who exceeds the speed‑limit taking an injured person to the hospital. (242)
In this formulation, there is a clear reference to doing an act to avoid consequences to others.
In dealing with the conceptual foundation of the defence, Dickson J referred to his own categorisation of the defence in Morgentaler v The Queen [1976] 1 SCR 616 as 'an ill‑defined and elusive concept', noting that he had said, at 678:
On the authorities it is manifestly difficult to be categorical and state that there is a law of necessity, paramount over other laws, relieving obedience from the letter of the law. If it does exist it can go no further than to justify non‑compliance in urgent situations of clear and imminent peril when compliance with the law is demonstrably impossible. (678)

Dickson J saw strict limitations upon the defence. He said, at 250 ‑ 252:
If the defence of necessity is to form a valid and consistent part of our criminal law it must, as has been universally recognized, be strictly controlled and scrupulously limited to situations that correspond to its underlying rationale. That rationale, as I have indicated, is the recognition that it is inappropriate to punish actions which are normatively 'involuntary'. The appropriate controls and limitations on the defence of necessity are, therefore, addressed to ensuring that the acts for which the benefit of the excuse of necessity is sought are truly 'involuntary' in the requisite sense.
...
Even if the requirements for urgency and 'no legal way out' are met, there is clearly a further consideration. There must be some way of assuring proportionality. No rational criminal justice system, no matter how humane or liberal, could excuse the infliction of a greater harm to allow the actor to avert a lesser evil. In such circumstances we expect the individual to bear the harm and refrain from acting illegally. If he cannot control himself we will not excuse him. (250 ‑ 252)

Does s 25 of the Criminal Code require resort to the common law defence of necessity?

The defence of sudden or extraordinary emergency created by s 25 of the Criminal Code sits within a code intended to replace the common law. As Dixon and Evatt JJ said in Brennan v The King (1936) 55 CLR 253 at 263:
[The Criminal Code of Western Australia] forms part of a code intended to replace the common law, and its language should be construed according to its natural meaning and without any presumption that it was intended to do no more than restate the existing law. It is not the proper course to begin by finding how the law stood before the Code, and then to see if the Code will bear an interpretation which will leave the law unaltered.
A different approach was taken by Windeyer J in Vallance v The Queen (1961) 108 CLR 56. At 75 ‑ 76, his Honour said:
... The Code is to be read without any preconception that any particular provision has or has not altered the law. It is to be read as an enactment of the Tasmanian Parliament. And, interesting though it is to compare it with other codes, such as that of Queensland from which it is derived, or with projected codes such as Stephen's Code, they cannot govern its interpretation. But it was enacted when it could be said of the criminal law that it was 'governed by established principles of criminal responsibility'. And for that reason we cannot interpret its general provisions concerning such basic principles as if they were written on a tabula rasa, with all that used to be there removed and forgotten. Rather is ch iv of the Code written on a palimpsest, with the old writing still discernible behind.
In Sungravure Pty Ltd v Middle East Airlines Airliban SAL (1975) 134 CLR 1 at 22, Mason J, speaking of the Defamation Act 1958 (NSW), said:
Its meaning therefore is to be ascertained in the first instance from its language and the natural meaning of that language is not to be qualified by considerations deriving from the antecedent law (Bank of England v Vagliano Bros[1891] AC 107 at pp 144-145). An appeal to earlier decisions can only be justified if the language of the statute is itself doubtful or if some other special ground is made out, eg if words used have previously acquired a technical meaning.
Here the ordinary meaning of the words is clear and it is not suggested that they previously acquired a technical meaning. Accordingly, it is not to be presumed that the section was intended to reiterate the antecedent law or to conform as closely as possible to that law.
In Boughey v The Queen (1986) 161 CLR 10, Brennan J, at 30, said:
... The paramount rule in construing a Criminal Code is that its meaning is to be ascertained by interpreting its language without reference to the pre‑existing law, although reference may be made to that law where the Code contains provisions of doubtful import or uses language which has acquired a technical meaning: Robinson v Canadian Pacific Railway Co [[1892] AC 481, at 487]. It is erroneous to approach the Code with the presumption that it was intended to do no more than restate the existing law (Brennan v The King [(1936) 55 CLR 253, at 263]) but when the Code employs words and phrases that are conventionally used to express a general common law principle, it is permissible to interpret the statutory language in the light of decisions expounding the common law (Mamote‑Kulang v The Queen [(1964) 111 CLR 62, at 76]) including decisions subsequent to the Code's enactment: Murray v The Queen [[1962] Tas SR 170, at 172 ‑ 173, 192; ]; Reg v Rau [[1972] Tas SR 59, at 71 ‑ 72]. The meaning of the words and phrases to be found in a Code is controlled by the context in which they are found but when the context does not exclude the common law principles which particular words and phrases impliedly import, reference to those common law principles is both permissible and required.
The subject is treated in detail in Statutory Interpretation in Australia (6th ed) D C Pearce and R S Geddes, at 274 ‑ 277, and it is observed, at 276, that 'There seems no effective way to resolve the difference in approach revealed by the decisions'. The approach to interpretation of codes suggested by Mason J in Sungravure is favoured by the authors, on the basis that it 'seems to accommodate a code to the common law system by recognising it paramountcy while acknowledging that the need may arise to draw on earlier cases to resolve ambiguity in it'.
At least one of the modern English authorities has cast the defence of necessity in a slightly different light. In Re A (children) (conjoined twins): surgical separation) [2000] 4 All ER 961 Brooke LJ said, at 1051:
[T]he existence of an emergency in the normal sense of the word is not an essential prerequisite for the application of the doctrine of necessity. The principle is one of necessity, not emergency.
As authority for that proposition his Lordship cited, among others, Perka, at 273 ‑ 274 of the report cited earlier in these reasons. If that represents the common law defence of necessity as it stood when the Criminal Code was enacted, it does not fit happily with the heading to, and the plain wording of, s 25.
In our opinion, s 25 of the Criminal Code, reflective though it is of the common law defence of necessity, is not constrained by or limited to the precise elements (whatever they may be) of the common law doctrine. There is nothing ambiguous about this section and it is to be construed according to its tenor.
It is clear that, at common law, the defence of necessity is recognised only in specific circumstances. It has traditionally been unavailable as a defence to murder. The defence of sudden or extraordinary emergency contained within s 25 of the Criminal Code applies to all offences in the Criminal Code and in any other written law (Criminal Code s 3).
The decided cases give a broad interpretation to the defence of sudden or extraordinary emergency contained within s 25 of the Criminal Code. The High Court has accepted that the defence is applicable not only where the act done was done in order to avoid 'certain consequences which have inflicted irreparable evil upon the accused' (Loughnan at 448), but also in circumstances where that evil may have been inflicted upon other persons generally and not just those whom the accused person was bound to protect (cf Stevens).

The present case - s 25 of the Criminal Code

The appellant said that he entered the premises at Shady Grove, Yangebup because he heard Kitson say, 'I've been hit in the head with an axe'. He said that he regarded the use of an axe as being dangerous or threatening and he entered the house 'quite fast', through a door which was open. He saw a gimpy in Rowland's hand, took it from him, and threw it to the corner of the room. The appellant thought that the gimpy was an axe. He then slapped Rowland on the head, picked up some scissors which he saw on floor and also threw those into the corner. The appellant then left by walking back out the door.
On the version of the evidence most favourable to the appellant, the defence of sudden or extraordinary emergency under s 25 of the Criminal Code was open. Section 24 of the Criminal Code (mistake) was also relevant. This is because it is implicit from the appellant's evidence that, when he heard the words 'I've been hit on the head with an axe', he did something which was arguably done under an honest and reasonable, but mistaken, belief in the existence of a state of things. Arguably, there was a belief that a friend had been hit on the head with an axe, which was something which was likely to have caused severe, if not life‑threatening, injury. The issue raised by the testimony of the appellant given in his defence was whether, under an arguably honest and reasonable, but mistaken, belief that his friend had been hit in the head with an axe, his entry into the house was in circumstances of sudden or extraordinary emergency such that an ordinary person possessing ordinary power of self‑control could not reasonably be expected to act otherwise.
It was a question for the jury whether (a) there was an honest and reasonable, but mistaken, belief held by the appellant that his friend had been hit in the head with an axe, and (b) whether this created such circumstances of sudden or extraordinary emergency that an ordinary person possessing ordinary power of self‑control could not reasonably be expected to act otherwise than to run into the premises to assist the friend.
In the circumstances of the case, it seems to us that the broad interpretation of s 25 of the Criminal Code, which we favour, meant that the defence was open.
Once the defence was open, it is apparent that the trial judge erred in the manner in which she directed the jury on it. As we have already pointed out, those errors included (a) a failure to address the correct section of the Criminal Code, (b) a failure to direct the jury as to what a sudden emergency was and how s 24 of the Criminal Code may interact with the defence under s 25, (c) a failure to direct the jury what 'an ordinary person possessing ordinary power of self‑control' means, and (d) a failure to direct the jury in relation to where the onus of proof lay once the defence had been raised.

Was there no substantial miscarriage of justice?

Counsel for the respondent argued at the hearing of the appeal that, even if the trial judge erred in the way in which she left s 25 to the jury, there had been no substantial miscarriage of justice.
We are unable to accept this submission. The trial judge made such errors in relation to the directions to the jury on s 25 of the Criminal Code that they amounted to a serious breach of the presuppositions of the trial process. This, therefore, denies the application of s 30(4) of the Criminal Appeals Act 2004 (WA) which provides that, even if a ground of appeal might be decided in favour of the appellant, the Court of Appeal may dismiss the appeal if it considers that no substantial miscarriage of justice has occurred.
The phrase 'serious breach of the presuppositions of the trial process' was used by Gleeson CJ, Gummow, Kirby, Hayne, Callinan and Heydon JJ in Weiss v The Queen [2005] HCA 81; (2005) 224 CLR 300, at [45] ‑ [46]:
[N]o single universally applicable criterion can be formulated which identifies cases in which it would be proper for an appellate court not to dismiss the appeal, even though persuaded that the evidence properly admitted at trial proved, beyond reasonable doubt, the accused’s guilt. What can be said, however, is that there may be cases where it would be proper to allow the appeal and order a new trial, even though the appellate court was persuaded to the requisite degree of the appellant’s guilt. Cases where there has been a significant denial of procedural fairness at trial may provide examples of cases of that kind.
It is unnecessary in this appeal to examine that issue further, or to consider the related question whether some errors or miscarriages of justice occurring in the course of a criminal trial may amount to such a serious breach of the presuppositions of the trial as to deny the application of the common form criminal appeal provision with its proviso [see eg, Wilde v The Queen (1988) 164 CLR 365 at 373; cf Conway (2002) 209 CLR 203 at 241 [103] per Kirby J, referring to R v Hildebrandt (1963) 81 WN (Pt 1) (NSW) 143 at 148 per Herron CJ; R v Henderson [1966] VR 41 at 43 per Winneke CJ; R v Couper (1985) 18 A Crim R 1 at 7 - 8 per Street CJ].
In Wilde v The Queen [1988] HCA 6; (1988) 164 CLR 365, Brennan, Dawson and Toohey JJ said, at 373:
The proviso has no application where an irregularity has occurred which is such a departure from the essential requirements of the law that it goes to the root of the proceedings. If that has occurred, then it can be said, without considering the effect of the irregularity upon the jury's verdict, that the accused has not had a proper trial and that there has been a substantial miscarriage of justice. Errors of that kind may be so radical or fundamental that by their very nature they exclude the application of the proviso: see Reg v Hildebrandt [(1963) 81 WN (Pt 1) (NSW) 143, at p 148]; Reg v Henderson [[1966] VR 41, at p 43]; Reg v Couper [(1985) 18 A Crim R 1, at pp 7 ‑ 8].
The errors made by the trial judge were, in this case, such that the appellant did not have proper trial. They were radical or fundamental errors, which, by their very nature, exclude the application of s 30(4) of the Criminal Appeals Act 2004 (the proviso).
What we have said is, of course, an application of the principles in Weiss and Wilde to the facts of this case. We should not be taken as saying that the mere existence of defects in the way a defence is explained to the jury will, of necessity, attract the operation of those principles. Each case falls to be determined according to its own facts.

Conclusion

We would grant leave to appeal and allow the appeal. We would quash the conviction of the appellant and direct that he be retried in the District Court at Perth on a date to be fixed.
BUSS JA: I have read the proposed reasons for judgment to be published by Owen and Miller JJA. I agree with their Honours that leave to appeal should be granted and the appeal allowed. The appellant's conviction should be quashed and a retrial ordered. My reasons are as follows.

Preliminary

The material facts and the ground of appeal are set out in the reasons of Owen and Miller JJA.
The appellant was charged with and convicted on one count in an indictment which alleged that he and another had entered or were in the place of Lynda Marie Keen, without her consent, with intent to commit an offence therein, in contravention of s 401(1) of the Criminal Code (WA). A number of circumstances of aggravation were alleged, but it is unnecessary to refer to them.
The critical issue in the appeal is whether the learned trial judge, Deane DCJ, erred in law in the direction she gave to the jury in her summing up in relation to the defence of sudden or extraordinary emergency under s 25 of the Criminal Code.

Section 401(1) of the Criminal Code

At all material times, s 401(1) of the Criminal Code has provided, relevantly:
A person who enters or is in the place of another person, without that other person's consent, with intent to commit an offence in that place is guilty of a crime and is liable ‑
(a)if the offence is committed in circumstances of aggravation, to imprisonment for 20 years;
…
The offence created by s 401(1) has three elements. First, the accused must either enter or be in the place of another person. Secondly, the accused must have entered or be in the place in question without that

other person's consent. Thirdly, the accused must have entered or be in the place in question with intent to commit an offence.

I agree with Owen and Miller JJA that, in the present case, it was essential that the State identify at trial an offence or offences, based upon the evidence, for the purposes of the third element of s 401(1). Further, it was essential that the learned trial judge direct the jury as to the particular offence or offences, based upon the evidence, that the appellant may have intended to commit.

Section 25 of the Criminal Code

At the material time, s 25 of the Criminal Code provided:
Subject to the express provisions of this Code relating to acts done upon compulsion or provocation or in self‑defence, a person is not criminally responsible for an act or omission done or made under such circumstances of sudden or extraordinary emergency that an ordinary person possessing ordinary power of self‑control could not reasonably be expected to act otherwise.
The defence recognised in s 25 applies generally to offences against the criminal law of Western Australia. Section 25 is not confined to specific offences or categories of offences.
At the material time, s 31 of the Criminal Code provided, relevantly:
A person is not criminally responsible for an act or omission if he does or omits to do the act under any of the following circumstances, that is to say ‑
…
(3)When the act is reasonably necessary in order to resist actual and unlawful violence threatened to him, or to another person in his presence;
(4)When he does or omits to do the act in order to save himself from immediate death or grievous bodily harm threatened to be inflicted upon him by some person actually present and in a position to execute the threats, and believing himself to be unable otherwise to escape the carrying of the threats into execution;
But this protection does not extend to an act or omission which would constitute an offence punishable with strict security life imprisonment, or an offence of which grievous bodily harm to the person of another, or an intention to cause such harm, is an element, nor to a person who has, by entering into an unlawful association or conspiracy, rendered himself liable to have such threats made to him.
…
The opening words of s 25 (that is, 'Subject to the express provisions of this Code relating to acts done upon compulsion or provocation or in self‑defence') exclude its operation where the provisions of the Code relating to acts done upon compulsion or provocation or in self‑defence require the application of, relevantly, s 31(3) or (4). See R v Smith [2005] QCA 1; [2005] 2 Qd R 69 [20] ‑ [23] (Davies JA, Fryberg & Mullins JJ agreeing).
Section 25 refers to circumstances of 'sudden or extraordinary emergency'. Compare s 33 of the Criminal Code Act 1983 (NT), which requires that the emergency be both sudden and extraordinary. By s 25, however, it is not necessary for the emergency to be both sudden and extraordinary. See Nguyen v The Queen [2005] WASCA 22 [17] (Templeman J, Murray J agreeing & McLure J agreeing generally). It has been suggested that a 'sudden emergency' is 'one which comes upon the accused unexpectedly, catching her or him off‑guard' whereas an 'extraordinary emergency' may also be unexpected or sudden but must be a situation of 'extreme gravity and abnormal or unusual danger'. See Yeo SMH, 'Necessity under the Griffith Code and the Common Law' (1991) 15 Criminal Law Journal 17, 23 ‑ 24.
Section 24 of the Criminal Code provides, relevantly:
A person who does or omits to do an act under an honest and reasonable, but mistaken, belief in the existence of any state of things is not criminally responsible for the act or omission to any greater extent than if the real state of things had been such as he believed to exist.
…
The concept of honest and reasonable belief has subjective and objective elements. Ordinarily, the subjective element is within the peculiar knowledge of the accused. The objective element must be capable of being measured against the evidence by the fact‑finding tribunal.

The defences conferred by s 24 and s 25 may operate in combination. A sudden or extraordinary emergency can be actual or, alternatively, the product of an honest and reasonable, but mistaken, belief on the part of the accused. See R v Webb [1986] 2 Qd R 446, 449 (Williams J, Connolly & Ambrose JJ agreeing); R v GV [2006] QCA 394 [28] (Jerrard JA, Jones & Atkinson JJ).
Section 25 comprises, relevantly, two limbs. First, there must have been an act or omission done or made by the accused under circumstances of 'sudden or extraordinary emergency'. Secondly, the 'sudden or extraordinary emergency' which actually existed (or which the accused honestly and reasonably, but mistakenly, believed existed) must involve such circumstances that 'an ordinary person possessing ordinary power of self‑control could not reasonably be expected to act otherwise'; that is, to act other than as the accused acted. No doubt, questions of reasonableness and proportionality will arise in considering whether, in a particular case, the second limb of s 25 is satisfied. See Dunjey v Cross [2002] WASCA 14; (2002) 36 MVR 170 [42] (Miller J).
Where there is evidence, fit for the jury's consideration, of the defence recognised by s 25 (either alone or in combination with s 24), the burden of negativing the defence rests upon the prosecution. See CTM v The Queen [2008] HCA 25; (2008) 82 ALJR 978 [8], [35] (Gleeson CJ, Gummow, Crennan & Kiefel JJ). The question for the trial judge in determining whether there is such evidence, fit for the jury's consideration, is whether, on the version of events most favourable to the accused that is suggested by material in the evidence, a jury acting reasonably might fail to be satisfied beyond reasonable doubt that:
(a)no sudden or extraordinary emergency actually existed;
(b)(if raised on the evidence), the accused did not have an honest and reasonable, but mistaken, belief that a sudden or extraordinary emergency existed; and
(c)(if the prosecution does not negative par (a) and, if raised on the evidence, does not negative par (b)), an ordinary person, possessing an ordinary power of self‑control, could reasonably be expected to have acted otherwise; that is, other than as the accused acted.
In Nguyen, the Crown accepted a ruling by the trial judge that the defence of necessity under s 10.3(1) of the Criminal Code Act 1995 (Cth) was open even though the accused (or persons for whom he accepted responsibility) created the situation said to constitute the emergency, and the risk of the emergency was reasonably foreseeable. However, McLure J referred to Perka v The Queen [1984] 2 SCR 232 [53], [55] as authority for the proposition that such a situation does (or may) not constitute an emergency within the ordinary meaning of that term. It is unnecessary, in the present case, to consider whether that proposition applies in the context of s 25.

The availability in the present case of the defence under s 25 in combination with s 24

I agree with Owen and Miller JJA, for the reasons they give, that in the present case there was evidence, fit for the jury's consideration, of the defence of sudden or extraordinary emergency under s 25 in combination with s 24.

Did the learned trial judge make an error of law in the direction she gave in relation to s 25?

I agree with Owen and Miller JJA, for the reasons they give, that the learned trial judge made errors of law in the direction she gave to the jury on s 25.

Section 30(3) and (4) of the Criminal Appeals Act 2004 (WA)

Section 30(3) of the Criminal Appeals Act provides that this court must allow an appeal against conviction by an offender if, in its opinion:
(a)the verdict of guilty on which the conviction is based should be set aside because, having regard to the evidence, it is unreasonable or cannot be supported;
(b)the conviction should be aside because of a wrong decision on a question of law by the judge; or
(c)there was a miscarriage of justice.
By s 30(4), despite s 30(3), even if a ground of appeal might be decided in favour of the offender, this court may dismiss the appeal if it considers that no substantial miscarriage of justice has occurred.
In Weiss v The Queen [2005] HCA 81; (2005) 224 CLR 300, the trial judge had erred in permitting the prosecution to adduce inadmissible evidence. The accused was convicted. The Court of Appeal of Victoria held that the trial judge had made an error of law, but applied the proviso and dismissed the appeal. The High Court reversed the Court of Appeal. Gleeson CJ, Gummow, Kirby, Hayne, Callinan and Heydon JJ enunciated three fundamental propositions in relation to the proviso to s 568(1) of the Crimes Act 1958 (Vic) (a provision indistinguishable, in substance, from s 30(4) of the Criminal Appeals Act) which, their Honours said, must not be obscured:
First, the appellate court must itself decide whether a substantial miscarriage of justice has actually occurred. Secondly, the task of the appellate court is an objective task not materially different from other appellate tasks. It is to be performed with whatever are the advantages and disadvantages of deciding an appeal on the record of the trial; it is not an exercise in speculation or prediction. Thirdly, the standard of proof of criminal guilt is beyond reasonable doubt [39].
Later, their Honours summarised the statutory task which must be performed by an appellate court in deciding whether to dismiss an appeal against conviction on the ground that no substantial miscarriage of justice has occurred:
That task is to be undertaken in the same way an appellate court decides whether the verdict of the jury should be set aside on the ground that it is unreasonable, or cannot be supported having regard to the evidence. The appellate court must make its own independent assessment of the evidence (Driscoll v The Queen (1977) 137 CLR 517 at 524 ‑ 525 per Barwick CJ; Storey (1978) 140 CLR 364 at 376 per Barwick CJ. Morris v The Queen (1987) 163 CLR 454; M v The Queen (1994) 181 CLR 487; Festa (2001) 208 CLR 593 at 631 ‑ 633 [121] ‑ [123] per McHugh J) and determine whether, making due allowance for the 'natural limitations' that exist in the case of an appellate court proceeding wholly or substantially on the record (Fox v Percy (2003) 214 CLR 118 at 125 ‑ 126 [23] per Gleeson CJ, Gummow and Kirby JJ), the accused was proved beyond reasonable doubt to be guilty of the offence on which the jury returned its verdict of guilty. There will be cases, perhaps many cases, where those natural limitations require the appellate court to conclude that it cannot reach the necessary degree of satisfaction. In such a case the proviso would not apply, and apart from some exceptional cases, where a verdict of acquittal might be entered, it would be necessary to order a new trial. But recognising that there will be cases where the proviso does not apply does not exonerate the appellate court from examining the record for itself [41].
In Weiss, it was emphasised that it was necessary, in determining whether to apply the proviso or not, to proceed on the basis of the statutory language rather than secondary sources or materials [31] ‑ [33]. The court also emphasised that it is not correct or of assistance to endeavour to articulate absolute rules or singular tests which are to be applied where an appellate court examines the trial record for itself, beyond the three fundamental propositions I have recorded at [133] above. Gleeson CJ, Gummow, Kirby, Hayne, Callinan and Heydon JJ added:
(The appellate court must itself decide whether a substantial miscarriage of justice has actually occurred; the task is an objective task not materially different from other appellate tasks; the standard of proof is the criminal standard.) It is not right to attempt to formulate other rules or tests in so far as they distract attention from the statutory test. It is not useful to attempt that task because to do so would likely fail to take proper account of the very wide diversity of circumstances in which the proviso falls for consideration [42].
Their Honours acknowledged that no single universally applicable description of what constitutes 'no substantial miscarriage of justice' can be given. They said, however, that one negative proposition may safely be offered:
It cannot be said that no substantial miscarriage of justice has actually occurred unless the appellate court is persuaded that the evidence properly admitted at trial proved, beyond reasonable doubt, the accused's guilt of the offence on which the jury returned its verdict of guilty [44].
See also Darkan v The Queen [2006] HCA 34; (2006) 227 CLR 373 [84], [94] ‑ [96] (Gleeson CJ, Gummow, Heydon and Crennan JJ).
In AK v The State of Western Australia [2008] HCA 8; (2008) 232 CLR 438, Gummow and Hayne JJ referred to the passages in Weiss which I have set out at [133] ‑ [134] above, and said that the negative proposition in those passages (about when the proviso cannot be engaged) must not be treated as if it states what suffices to show that no substantial miscarriage has occurred:
To treat the negative proposition in this way would be to commit the very same error which Weiss sought to correct, namely, taking judicial statements about aspects of the operation of statutory provisions as substitutes for the statutory language [53].
In Weiss, the High Court noted that there may be cases where it would be proper to allow an appeal and order a new trial, even though the appellate court is satisfied beyond reasonable doubt of the appellant's guilt. The High Court referred, by way of example, to two categories of case. The first included cases 'where there has been a significant denial of procedural fairness at trial' [45]. The second included cases where the 'errors or miscarriages of justice occurring in the course of a criminal trial may amount to such a serious breach of the presuppositions of the trial as to deny the application of the common form criminal appeal provision with its proviso' [46].
Their Honours then referred to Wilde v The Queen [1988] HCA 6; (1988) 164 CLR 365, 373. Wilde was concerned with an appeal by an offender who had been convicted following a trial before a judge and jury. The Court of Criminal Appeal of New South Wales held that the trial judge had made a serious error of law in the trial in that evidence relating to one count against the appellant was not admissible in proof of some other counts against him, so the first count should have been severed from the indictment and tried separately. Nevertheless, the Court of Criminal Appeal was of the opinion that the evidence in support of the counts upon which the appellant was convicted was so strong, and the defence so weak, that there had been no substantial miscarriage of justice. It dismissed the appeal. The appellant's appeal to the High Court also failed.
In Wilde, Brennan, Dawson and Toohey JJ held that the proviso was not intended to apply 'when the proceedings before the primary court have so far miscarried as hardly to be a trial at all'; and also, that the proviso does not apply 'where an irregularity has occurred which is such a departure from the essential requirements of the law that it goes to the root of the proceedings' so that 'the accused has not had a proper trial and … there has been a substantial miscarriage of justice' (373).
In AK, the High Court heard a criminal appeal from a judge sitting without a jury. The trial judge erred in law by failing to give adequate reasons for his decision to convict the appellant. The trial judge breached the requirement in s 120(2) of the Criminal Procedure Act 2004 (WA) that his reasons articulate the connection identified between the relevant legal principle in AK (proof beyond reasonable doubt) and the relevant findings of fact. The majority of the High Court (Gummow, Hayne and Heydon JJ) held that the trial judge's complete failure to meet the mandatory requirements of s 120(2) of the Criminal Procedure Act, with respect to the central issue in the appellant's trial, constituted a substantial miscarriage of justice. In particular, it was a substantial miscarriage because the Act required that the appellant's trial produce a reasoned decision that met the criteria specified in the statute. Gummow and Hayne JJ said:
When there has been a trial by jury, and an appellate court concludes that the trial judge made a wrong decision on a question of law or that there was some other miscarriage of justice, deciding whether there has been no substantial miscarriage of justice necessarily invites attention to whether the jury's verdict might have been different if the identified error had not occurred. That is why, if the appellate court is not persuaded beyond reasonable doubt of the appellant's guilt it cannot be said that there was no substantial miscarriage of justice. But just as persuasion of the appellate court of the accused's guilt does not in every case conclude the inquiry about the proviso's application in appellate review of a jury trial, inquiring about the weight of the evidence led at a trial by judge alone does not determine whether there was a substantial miscarriage of justice. In a case, like the present, where the Criminal Procedure Act required that the trial yield a reasoned decision, but no reasons were given for the determination of the central issue tried, it cannot be said that there was no substantial miscarriage of justice [59].
In Gassy v The Queen [2008] HCA 18; (2008) 82 ALJR 838, Gummow and Hayne JJ said in relation to the observations in Wilde concerning a serious breach of the presuppositions of a criminal trial:
Identifying a priori some kinds of error as precluding application of the proviso presents difficulties of the same kind as are presented by using judicial statements about the application of the proviso as some substitute for the relevant statutory test. That is, it is neither possible nor useful to seek to apply the proviso according to a taxonomy of errors at trial which describes some as 'fundamental' and others as not. And what was said in Wilde v The Queen ([1988] HCA 6; (1988) 164 CLR 365 at 373 per Brennan, Dawson and Toohey JJ) about 'such a departure from the essential requirements of the law that it goes to the root of the proceedings' is not to be understood as prescribing or defining a class of cases to which the proviso cannot be applied. Rather, what was said in the passage quoted from Wilde is a description, in words other than the statutory words, of one kind of case in which an appellate court could not conclude that there had been no substantial miscarriage of justice. For the reasons given in Weiss, a negative proposition of this kind cannot be taken as a substitute for the statutory language.
Whether the error constituted by giving the impugned instructions is properly described as 'fundamental' or as an error going 'to the root of the proceedings' would depend upon the content that is given to the expressions used. The statutory question is whether the Full Court considers that 'no substantial miscarriage of justice has actually occurred' (Criminal Law Consolidation Act 1935 (SA), s 353(1)). In answering that question it is necessary to consider the nature of the error and in doing that it will be important to consider the possible effect that the error may have had on the outcome of the trial [33] ‑ [34].
The appellant in Gassy was convicted of murder. The High Court, by a majority (Gummow, Hayne and Kirby JJ; Crennan and Kiefel JJ dissenting) quashed the conviction and ordered a new trial. The majority held that certain instructions given by the trial judge to the jury rendered the trial a miscarriage of justice. The impugned instructions were given after the jury had been deliberating on their verdict for some time. The relevant instructions involved her Honour suggesting an approach the jury might take in an attempt 'to move [their] discussions along' [23]. The instructions occasioned a miscarriage of justice because they were unbalanced; in particular, they contained no substantial reference to the competing arguments and considerations relevant to the appellant's case [31].
In AK, Gleeson CJ and Kiefel J accepted, as a matter of principle, that 'some errors are so fundamental or involve such a departure from the essential requirements of a fair trial that they exclude the operation of the proviso, irrespective of the strengths of the prosecution case, or the appellate court's view as to the guilt of the accused' and that 'the proviso cannot be applied where the error at trial denies or substantially frustrates the capacity of an appellate court to decide whether a conviction is just' [23]. Gummow and Hayne JJ held that, although the class is difficult to describe in the abstract, there exists a 'class of … circumstances' in which 'radical' error at trial renders the application of the proviso all but impossible [54].
These observations in AK were referred to by Kirby J in CTM. His Honour said:
The failure on the part of the trial judge to explain to the jury the legal ingredients of an offence, and to assign correctly the burden and standard of proof in respect of them, seem to me to be 'radical' errors, inconsistent with the requirements of the law. It cannot matter that the law in question is common law and not, as in AK (See (2008) 82 ALJR 534 at 545 [55]; 243 ALR 409 at 422 ‑ 423; cf Gassy v The Queen [2008] HCA 18 at [33] ‑ [34]), expressed in a statute. It is still the law [128].
Kirby J continued:
It was also acknowledged in AK that one of the 'two principal safeguards for the accused in a criminal trial' is 'the criminal burden and standard of proof' ((2008) 82 ALJR 534 at 558 [102] per Heydon J; 243 ALR 409 at 440). If this is the case, then surely it must be a grave (or 'radical') error for the trial judge to misdirect the jury on each of these considerations, as occurred in the appellant's trial. If this Court is itself to deny relief to an otherwise successful appellant by its own application of the 'proviso', it must, in my respectful opinion, be consistent in doing so [129].
More recently, in Cesan v The Queen [2008] HCA 52; (2008) 83 ALJR 43, Hayne, Crennan and Kiefel JJ (with whom Gummow J agreed in relation to the application of the proviso and Heydon J agreed generally) said that the disposition of the appeal before them depended on the application of established principles to the particular facts and circumstances of the case. No development or amplification of those principles was necessary [110]. Their Honours noted, consistently with the observations of Gummow and Hayne JJ in Gassy, that what was said in Wilde is not to be taken as if it were a judicially determined exception grafted upon the otherwise general language of the proviso [126].
In Glennon v The Queen [1994] HCA 7; (1994) 179 CLR 1, the High Court considered whether the proviso to s 568(1) of the Crimes Act 1958 (Vic) was capable of application in the context of a misdirection by a trial judge on the right to silence. The appellant had been charged with numerous sexual offences involving several complainants. The appellant, in interviews with the police, refused to answer questions relating to three of the counts, including one which alleged indecent assault on Franco Palmieri. The trial judge, in his summing up, directed the jury that they were not to use the appellant's exercise of his right to silence in a manner adverse to him. He then qualified the direction by informing the jury that they might use the appellant's silence to test the veracity of his defence. The appellant was convicted on the three counts I have mentioned, and was found not guilty on two others. The Court of Criminal Appeal of Victoria held that the trial judge's direction was erroneous, but the court applied the proviso and decided there had been no miscarriage of justice, the convictions should stand, and the appeal should be dismissed. The High Court reversed the decision of the Court of Criminal Appeal.

Mason CJ, Brennan and Toohey JJ, in a joint judgment, referred to the approach of the majority in Wilde. Their Honours then held that, in the circumstances of the case before them, it could not be said that the trial judge's misdirection on the appellant's right to silence was 'so fundamental' that the trial was 'hardly a trial at all' (8). They added:
Although the right to silence is a fundamental right of any accused person, it cannot be said that any misdirection on that subject is a fundamental irregularity of the kind discussed in Wilde. In this case, the trial judge directed the jury that they were not to use the applicant's exercise of his right to silence in a manner adverse to him. This direction was perfectly proper. However, the trial judge then qualified the direction by informing the jury that they might use the applicant's silence to test the veracity of the applicant's defence. This subsequent direction was clearly erroneous. However, in the context in which it appeared and at a trial in which there was other evidence on which the applicant could be convicted and in which there was no other misdirection by the trial judge, the trial judge's misdirection was not a fundamental irregularity. We would reject the applicant's submissions in so far as they are based on this approach to the proviso (8).
Mason CJ, Brennan and Toohey JJ proceeded to consider the appellant's alternative argument, namely, that it could not be said that, in the absence of the misdirection, the jury would inevitably have convicted him. Their Honours held that, in relation to the charge of indecent assault on Palmieri, the appellant's credibility was of central importance to his defence, the trial judge's misdirection related directly to the appellant's credibility and veracity, and it was therefore not possible to say that, in the absence of the trial judge's erroneous direction on the appellant's silence, the jury would inevitably have reached the same verdict. Accordingly, the appellant had lost a chance which was fairly open to him of being acquitted, and his appeal should be allowed, his conviction in relation to the Palmieri allegations quashed, and a retrial ordered (9). On other counts, where there was independent evidence tending to cast doubt on the appellant's defence, the High Court refused special leave (5, 10).
Deane and Gaudron JJ, in a joint judgment, said there was nothing to give any significance to the trial judge's misdirection over and above that which ordinarily attaches to a misdirection as to the use or evaluation of properly admitted evidence. Their Honours concluded:
Accordingly, there is no basis for an argument that, overall, there was not a fair trial according to law and, thus, no scope for the operation of the proviso. The only question is whether, so far as the Palmieri count is concerned, the misdirection resulted in a substantial miscarriage of justice in the sense explained in Mraz (13).
Like Mason CJ, Brennan and Toohey JJ, their Honours decided that the trial judge's misdirection gave rise to a substantial miscarriage of justice in that a finding as to an element of the offence on the Palmieri count necessarily depended on the appellant's credibility (13 ‑ 14).
In Weiss, the High Court referred to a 'significant' denial of procedural fairness at trial as an example of a category of case where it would be proper to allow an appeal and order a new trial, even though the appellate court was satisfied beyond reasonable doubt of the appellant's guilt [45]. The word 'significant' and other formulations by the High Court (for example, a 'serious' breach of the presuppositions of a criminal trial: Weiss [46]; such a departure from the essential requirements of the law that it goes to 'the root' of the proceedings: Wilde (373); errors which are 'so fundamental' or involved 'such a departure' from the essential requirements of a fair trial: AK [23]; a 'radical' error at trial: AK [54]; and a 'grave' error by the trial judge: CTM [129]), indicate that questions of degree are involved in determining whether, in the circumstances of a particular case, an appellate court considers that the nature of the error or miscarriage at trial precludes the court from being satisfied, in terms of the proviso, that no substantial miscarriage of justice has actually occurred, irrespective of the strength of the prosecution case or the appellate court's opinion as to the accused's guilt.

In the present case, should the proviso be applied?

Counsel for the State submitted to this court that even if the learned trial judge had made an error of law in her direction concerning s 25, there had been no substantial miscarriage of justice and the appeal should be dismissed under s 30(4) of the Criminal Appeals Act.
I agree with Owen and Miller JJA that this submission is without merit. However, my reasons for that opinion are different from those of their Honours. In particular, I would not characterise the learned trial judge's error as being 'so fundamental' or involving 'such a departure' from the essential requirements of a fair trial as to preclude this court from being satisfied, in terms of the proviso, that no substantial miscarriage of justice has actually occurred, irrespective of the strength of the State's case or this court's opinion as to the appellant's guilt.
I am unable, however, to conclude, from my examination of the trial record, that the only conclusion reasonably open on the evidence is that the State negatived the defence under s 25 in combination with s 24. The learned trial judge's error of law may have affected the jury's evaluation of the State's case or the appellant's case, and their verdict of guilty. This court cannot decide from the written transcript that the appellant's evidence and explanations are to be rejected. The natural limitations which exist in the case of an appellate court proceeding wholly or substantially on the record preclude my being satisfied on that issue. It requires an assessment of the appellant's credibility and the reaching of a conclusion, beyond reasonable doubt, as to his guilt. I have not seen or heard the appellant give evidence, and I am therefore unable to determine whether the manner in which he gave his evidence affected his credibility. The combined weight of all the evidence that was not genuinely in contest at the trial is not so compelling that it permits (indeed, requires) the rejection of the appellant's account. In the circumstances, I am not persuaded that no substantial miscarriage of justice has occurred. Section 30(4) of the Criminal Appeals Act should not be applied.