Mahmood v The State of Western Australia - [2009] WASCA 220

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA

TITLE OF COURT : THE COURT OF APPEAL (WA)

CITATION: MAHMOOD -v- THE STATE OF WESTERN AUSTRALIA [2009] WASCA 220

CORAM: McLURE P
OWEN JA
MILLER JA

HEARD: 13 AUGUST 2009

DELIVERED : 9 DECEMBER 2009

FILE NO/S: CACR 9 of 2009

BETWEEN: KARZAN HAMAD MAHMOOD
Appellant
AND
THE STATE OF WESTERN AUSTRALIA
Respondent

ON APPEAL FROM:
Jurisdiction              :  DISTRICT COURT OF WESTERN AUSTRALIA
Coram  :MACKNAY DCJ
File No  :IND 483 of 2008

Catchwords:

Criminal law and procedure - Appeal against conviction - Whether trial judge adequately directed the jury concerning self defence - Defence not raised by counsel at trial - Whether self defence open on the evidence - Turns on own facts

Legislation:

Nil

Result:

Application for an extension of time within which to appeal refused

Category: B

Representation:

Counsel:

Appellant: Mr S B Watters
Respondent: Mr P D Yovich

Solicitors:

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

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

Bardsley v The Queen [2004] WASCA 251; (2004) 29 WAR 338
Lean v The Queen (1989) 1 WAR 348
Marwey v The Queen (1977) 138 CLR 630
Moylan v The State of Western Australia [2007] WASCA 52
Murray v The Queen (2002) 211 CLR 193
Narkle v The Queen (Unreported, WASC, Library No 6108, 2 December 1985)
Samuels v The State of Western Australia [2005] WASCA 193; (2005) 30 WAR 473
Stanik v The Queen [2001] WASCA 333; (2001) 125 A Crim R 372
Tully v The Queen (2006) 230 CLR 234
Washer v The State of Western Australia [2008] WASCA 135
Zecevic v Director of Public Prosecutions (Vic) (1987) 162 CLR 645
Zoneff v The Queen (2000) 200 CLR 234

McLURE P: I agree with Owen JA.
OWEN JA: In December 2008 the appellant was tried before a jury in the District Court on an indictment alleging six offences (unlawful wounding and unlawful assault) arising out of a fight in a nightclub in Subiaco. In the course of the fight a number of nightclub patrons were stabbed. He was found guilty of three counts of unlawful wounding and acquitted of the remaining three counts.
The appellant seeks leave to appeal (out of time) against the conviction on a single ground; namely that the trial judge erred in failing adequately to direct the jury concerning self defence such that there was a miscarriage of justice. On 12 March 2009 Miller JA ordered that both the application for leave to appeal and the application for an extension of time be heard together with the appeal.
For the sake of completeness, I should add that the appellant was sentenced to a total effective term of 24 months' imprisonment, cumulative on sentences he was already serving for other matters. There is no application for leave to appeal against the sentence.

Background

At the time of the offences the appellant was 25 years of age. In the early hours of 1 July 2007 he was part of a group that attended the nightclub. He and (or) members of his group were involved in a fight with another group of men at the nightclub. The altercation happened in two stages. The first took place when a fight began following an exchange between the appellant and Martin Scoon inside the nightclub. In the course of this fight, Scoon was stabbed a number of times. The appellant was found at the trial to have stabbed Scoon at least once.
Two associates of Scoon, namely Trent Gainey and Kane Greer, were also found to have been stabbed by a member or members of the appellant's group in separate incidents inside the nightclub. It could not be determined whether the appellant stabbed Gainey and Greer but he was found to be a member of a group engaged in a joint criminal enterprise and that he was therefore criminally responsible for the stabbings.
The second stage of the altercation occurred after patrons had been removed from the premises by the nightclub's security staff. The fight between the groups recommenced on the sidewalk in front of the nightclub. The groups involved in this fight separated and very shortly afterwards police and ambulance arrived on the scene. It is important to

emphasise that the events of this second stage of the altercation are not directly relevant to the appeal because the stabbings the subject of the convictions were found to have occurred inside the nightclub during the earlier stage of the fighting.

The appellant declined to make any complaint in relation to the injuries he had sustained when first questioned by police. The police received further information indicating that the appellant may have been involved in the incidents that resulted in the injuries sustained by the complainants. The appellant was taken to hospital to have his injuries treated. He was then photographed and later took part in a recorded interview, during which he agreed that he had been involved in an altercation at the nightclub but provided very little detail about what actually happened.
The appellant was charged on indictment with six offences, all of which were alleged to have taken place at Subiaco on 1 July 2007. Four of them allege unlawful woundings of Scoon, Gainey, Greer and a Troy Hayter respectively, all contrary to Criminal Code s 301(1). The Hayter count resulted in a not guilty finding. The other two counts allege unlawful assaults occasioning bodily harm to a Damien Mule and a William Blair respectively, contrary to Criminal Code s 317(1). The appellant was acquitted of both of those counts.
When arraigned the appellant pleaded not guilty to all counts. The prosecution called a total of 19 witnesses at the trial. The first three were the complainants Scoon, Gainey and Greer. Two of their friends who had been with them at the nightclub and another patron unknown to both sides, but who witnessed the altercation, and four of the nightclub's crowd controllers, also gave evidence. Various police officers and medical personnel also testified. The appellant did not give evidence but called as a single witness, his brother Karwan Mahmood. The appellant's video record of interview with police, which was conducted on the afternoon of 1 July 2007, was tendered during the trial.

Evidence in the prosecution case

It is necessary to differentiate between the various stages at which events occurred. It is also necessary to describe the evidence of some witnesses because their evidence is relevant to the circumstances leading up to the altercation inside the nightclub.
I propose to limit the analysis of the evidence to that which bears on the altercation inside the nightclub premises. A lot of evidence was led as to what happened in the street after the groups had been removed from the nightclub. As I have already said, the prosecution case was that the wounds that are the subject of the three counts on which guilty verdicts were returned were inflicted inside the premises. The only issue in the appeal is the question of self defence. What happened outside the premises after the wounding had occurred has no material relevance to issues canvassed on appeal.
Again, a lot of evidence was led that bore on the identification of the three members of the appellant's group and what they did or were doing at various stages during the altercation. The prosecution case was that the appellant was a principal offender in relation to the wounding of Scoon. As matters unfolded, there was insufficient evidence to determine who inflicted the wound on Gainey. The guilty verdict on that count must have been on the basis that the jury accepted that the appellant was a participant in the joint criminal enterprise. There was evidence on which the jury could have been satisfied either that the appellant was a principal offender or that he was a participant in a joint criminal enterprise in relation to the unlawful wounding of Greer. The grounds of appeal do not allege error that impinges on those matters. Accordingly, it is not necessary to go into those aspects of the evidence.

Evidence of Martin Scoon

Scoon gave evidence that on the morning of 1 July 2007 he arrived at the nightclub having previously attended a number of other venues. The first incident began after Scoon had to step back to avoid a collision with the appellant and his friends as they passed him in the club. The appellant was described as being of Middle Eastern appearance, of chubby build and aged in his mid thirties, wearing white pants, singlet and dress shirt with a white bandana on his head and a small felt hat on top. After being bumped Scoon gave the man a look to imply he was being inconsiderate. The appellant and his friends came back towards him and a man in the group said words to the effect of 'Do you know who he is?' Scoon replied to the effect of 'I don't really care to be honest' and the appellant turned to his friends and said 'Where's my knife?'.
On hearing these words Scoon moved away from the men onto the dance floor and was pursued by the appellant and a number of his friends. He was standing close to the DJ booth on the elevated dance floor with his back to a mirrored wall. His friend Kane Greer was standing next to him. Three men quickly came towards him, the first rolling up his sleeves and the two others close behind. In fear that he was going to be assaulted Scoon threw a punch at the face of the first man, who fell to the floor holding his mouth. Another of the men came around to his right and grabbed his shirt before Scoon punched him. The appellant grabbed hold of him and Scoon punched him in the eye. A further group of men from the appellant's group advanced towards him. He was scared by the earlier mention of a knife and the numbers of men involved. He threw an unbroken glass at one of the men (not the appellant) before he and his opponents were restrained by nightclub security staff. Scoon managed to break free of the restraint and as he did so the man in white (the appellant) got hold of him and he felt a 'cork' to his arms or shoulder areas. The prosecution case was that this was Scoon's description of being stabbed in each shoulder.
The fight continued for some time before Scoon was escorted outside to the club's street frontage by security personnel. It was not until he had walked with his friends to the other side of the road that he realised he had been wounded. Video recordings from the nightclub's security cameras showed Scoon emerging from the nightclub with bloodstains on his shirt. On medical examination Scoon was found to have five wounds to the right shoulder, left chest and right buttock.

Evidence of Trent Gainey

Trent Gainey was one of the men in Scoon's group. He testified that he was talking to a couple of girls and heard a disturbance near the dance floor but was unaware that it involved his friends. He was then asked to give medical assistance to Scoon as he was bleeding and needed his help; he assumed he was asked because he was a clinical nurse. Gainey remembered going outside, seeing Scoon with blood all over his shirt then seeing a number of Lebanese‑looking men coming from the alley yelling at them and a fight ensuing. He recalled being punched in the head and punching out at people in an effort to defend himself. He remembered seeing a man dressed all in white inside the club and the same man fighting outside on the street.
After the fight had ceased Gainey remembered being dragged to the side of the road by a policeman or paramedics and being told he needed medical assistance. This was the first time he noticed he had blood on his shirt and that he had wounds to his back: he had no recollection of being stabbed. The prosecution case was that Gainey was stabbed inside the nightclub because surveillance footage from the club showed him leaving with Scoon with blood on the left side of his back. On medical examination Gainey was found to have three significant wounds on his back (which required sutures) and a superficial wound on his left arm. The blood stains seen on the surveillance footage were in the precise area of the stab wounds to his back. It could therefore be inferred from the footage that he had been stabbed inside the club and did not realise it.

Evidence of Kane Greer

Kane Greer was another of the friends with Scoon's group at the nightclub that morning. He was standing on the dance floor near Scoon when a group of males walked past and bumped into Scoon. One of these men was the appellant. Another man was around 30 years of age of slight build, wearing darker clothing and reading glasses, and was taller than Greer. Greer recalled having seen both these men in an earlier incident in the urinal of the men's toilets where he had witnessed an assault not associated with the matter before this court. He saw one of these men arguing with Scoon followed by an exchange of punches, but did not know who threw the first punch, 'it was a mutual thing'. He observed Scoon moving backwards with the other men following him. Scoon moved back towards Greer and they both ended up on the dance floor with Scoon standing with his back to the DJ box. Punches were thrown with a number of people involved in the fighting.
Greer said that when he initially became involved he had a drink in his hand. He was trying to help out, throwing punches. He got rid of the glass but he could not remember how he got rid of it. It may have been knocked out of his hand but he was not too sure what happened to it. He said that punches and glasses were being thrown. He did not see Scoon throw a glass and nor did he know by whom they were thrown. He did not see anyone hit by a glass.
Greer did not think he received any injuries during this fight. Shortly after the fight commenced some bouncers came in and separated people and Scoon was walked by security down the stairs to the front of the club. Greer started to follow but decided to go back into the club to make sure his other friends were all right. When he got back to the cloakroom area he bumped into two of the men he had previously seen in the toilet and in the dance floor fracas, along with some other men from that group, and another fight ensued.
While some of this altercation is caught on surveillance footage, the moment that Greer received his injuries is not captured. The prosecution suggested that the footage showed Greer being pushed against a wall and being attacked by a number of people, with a bouncer standing in front of him in an effort to protect him. Greer thought he received a punch to his eye and that he was stabbed at this time. The prosecution's case was that it was likely Greer was stabbed during this incident, particularly when his evidence was taken together with that of the security officer Mule who was trying to assist him, and the surveillance footage showing Greer leaving the nightclub with a large bloodied area on the front left hand side of his shirt where he had received the stab wounds. On medical examination Greer was found to have two stab wounds to the left side of the front of his chest.

Evidence of Bradley Edwards

Edwards was the head doorman at the nightclub. The appellant had been a regular at the venue over a period of about two years and he was known to Edwards by the name Carlos. On the night of 1 July 2007 the appellant attended with a group of friends, including one known as Matty.
Edwards gave evidence that he 'caught the tail‑end of an altercation' between this group and an unknown male in the reception area of the nightclub at around 4 am. He did not see anything physical in the altercation, it was a verbal argument and the unknown male exited the premises. Stills of the video footage of this altercation were tendered. No incident arose out of this altercation and after it had stopped, the appellant's group proceeded into the club. Edwards related that after informing security about the incident he entered the club. There he noticed another altercation occurring between the appellant and a tall man with a solid build (whom he later recognised as Scoon). This was a verbal argument that turned into a fight about two or three minutes later. At first the parties were pushing and shoving then they progressed towards the front bar. Members of the appellant's group and a number of bystanders then started getting involved.
Four security personnel assisted to quell the fight and when Edwards got there the two protagonists had been separated. Scoon was restrained by two crowd controllers one of whom was Mule. They were attempting to hold him across the shoulders and the top of the arms. Both Scoon and the appellant broke free and the fight broke out again, escalating into something quite severe. The fight made its way onto the dance floor. Scoon had his back to the mirror behind the dance floor with the appellant in front of him. Edwards saw the appellant swing with his right hand and connect with Scoon's top left shoulder, then noticed that Scoon had a substantial amount of blood on his chest and shoulder. He had not seen the blood before he saw the appellant strike him, but did not see anything in the appellant's hand. There was a lot of pushing and the fight tended in the direction along the dance floor towards reception.
By this stage seven doormen were involved in evacuating patrons towards the back exit. While this was happening the lights were being turned on and Edwards noticed another man in the appellant's group to his left, standing with a knife in his hand. He had an aggressive stance, with his arm raised and the knife in an upwards direction towards people who were coming towards him. Edwards made eye contact with the man and the latter dropped his aggressive stance and Edwards turned his attention back towards the reception.
Edwards was moving off the dance floor when he noticed a lot of screaming and the words 'give me the knife'. One of the men yelling this instruction and who caught his attention was the person known as Matty. Edwards clearly saw the appellant pass Matty a knife. It looked similar to the knife he had earlier seen being held by the other member of the appellant's group. After the knife had been passed to him, Matty made his way towards the front door via reception. Edwards was not sure where the appellant went because his attention was taken by one of the crowd controllers who had been cut on the forearm and required medical attention. Edwards then phoned the police.
In cross-examination, Edwards said he did not see Scoon hurl a glass or hit anybody in the head with a glass, or punch other people. He did not see Scoon punch the appellant on the side of the face.

Evidence of Asher Edwy‑Smith

On 1 July 2007 Edwy-Smith was employed as a crowd controller at the nightclub. Scoon and the man earlier described as Matty were known to her. The appellant and another man were with Matty when they arrived at around 1 am on 1 July 2007.
Everything was 'pretty normal' until about 4 am when Edwy‑Smith heard an 'alpha' call for the dance floor upstairs. This meant that a fight had started. She was downstairs on the front door and stayed there after the alpha call to prepare for people to leave the club. She saw Scoon leave with blood on his right buttock, chest and neck. Another man with Scoon also had blood on him. Scoon and the man who left with him stood on the median strip outside the club.
Edwy‑Smith remembered Matty walking straight past her in the downstairs reception area. She noticed that he had a knife by the handle with the blade running up his arm, behind his back. As soon as Matty was outside the door, she radioed security to alert them to the fact that he had a knife.

Evidence of Damien Mule

Mule was working as a security person at the nightclub on 1 July 2007. He recognised the appellant at the club having seen him there and at another club where he also worked. He saw the appellant with a number of people earlier in the night, but Mule could not identify anyone else.

In the early hours of the morning he was working at the back bar when he got 'an alpha call' to go to the dance floor. He had no vision of this area as the DJ booth was blocking his view, and vision was frequently impaired by the smoke machine the club used. On arriving at the front bar he saw a man whom he knew to be Scoon with his back to the mirror near the DJ booth. Scoon was covered in blood. There were about five Caucasian men who appeared to be standing by his side but they may have been bystanders (which I take to mean people not connected to Scoon). They appeared to be arguing with the appellant and a couple of his friends. Mule got into the middle and separated the groups, and other security staff joined him there. He did not remember restraining anyone at this time, but remembered guiding Scoon to the top of the stairs and someone else taking Scoon down from there. Mule came back into the club.
As he turned back another argument had started between what seemed to be the appellant's friends and one of Scoon's friends (Greer) next to the cloak room. Mule went straight to Greer, faced him and held him with his left hand on the man's chest, because Greer was outnumbered and 'it looked like something was going to happen'.
Mule felt someone trying to kick him. As he turned to see where the kick had come from, someone came around on his right and struck Greer twice. Blood started coming from the spot of contact on the upper left hand side of Greer's chest area. Mule did not notice anything in the hands of the man who had struck Greer. When Mule turned around there was a group of people making their way out of the club. Mule remained with Greer and then started guiding him down the stairs.
In cross-examination Mule said that when he was restraining Greer near the cloakroom he did not see a knife. The appellant had been covered in blood from the earlier incident on the dance floor and he did not observe a knife in the appellant's hand at that time. He did not see Scoon throwing a glass at anyone at that time. He did not see anybody wielding a bottle or a glass during the time he was at the upstairs bar. In relation to the incident near the cloakroom, Mule said that he did not observe any weapons or knives at that stage at all. He said that the area was not particularly well illuminated.

Evidence called by the defence at trial

Karwan Mahmood (who I will call KW) is a younger brother of the appellant and gave evidence in the appellant's defence. He said that he arrived at the nightclub with the appellant and two other men, including Matty, at 1.00 am or 2.00 am on 1 July 2007. They went into the club through the front entrance and joined other friends there. KW did not see anything in the hands of the appellant or Matty when they walked in.
Towards the end of the night he was walking in front of the group towards the front entry. He turned around to see his brother and a man he had never seen before talking. The man pushed his brother. The appellant was facing towards the bar with Matty and another friend about a metre away to his side. When he saw them pushing and shoving he knew it was a confrontation. He did not see who pushed first and he did not see a knife in the appellant's hand. Punches were thrown and security came in between them. The fracas moved onto the dance floor. He did not see the appellant punch anybody but saw the other man throw a punch. He heard no conversation but the other man was swearing and shouting.
KW said he saw four or five men with unbroken glasses in their hands. He saw one glass being thrown over his head but was unsure of where it came from or who had thrown it. He jumped between the parties to try and separate them and pushed the appellant away. At this stage the appellant was bleeding from his eye and his finger was bloody as well. KW thought the eye was probably bleeding from a punch, but had not seen a punch come into contact with that area. When the appellant took off his shirt, KW saw nothing in his hands. They all went outside together through the back exit and walked towards the car to go home, but instead went back down a side alley to the front of the nightclub. The men with whom they had had the altercation were standing on the other side of the street 'like they wanted to fight'.
KW said he had not handled or seen the knife and had not seen the appellant or Matty with the knife.
In cross‑examination he denied knowledge of the earlier incident in the nightclub toilets as he was not with his group the whole time. He denied knowledge of any earlier incident involving his brother in the cloakroom but was aware of a later argument there, though he said he was outside on the balcony at the time.
He had been at the back of the group as they passed through the club, but ended up at the front because the argument had started and he had kept walking without realising what was going on. He could see his brother and the tall man (Scoon) about two or three metres away. The appellant, Matty and two other associates were facing Scoon and there was pushing and shoving. Scoon must have started the pushing because 'my brother would not start'. A few punches were exchanged and security came between them. KW conceded that probably the group moved from one place to the dance floor because Scoon was moving backwards and was being pursued by the appellant, two other men and possibly Matty as well moving forward.
KW denied seeing a man being attacked near the cloakroom area and denied assisting in that attack. He said that nobody in his group had 'anything on them' to stab the man at this time. He denied hearing Matty yelling at the appellant to give him a knife.
While he had made a statement to police, he did not want to make any complaints because he did not want anything to happen and to go home. He told police that he was unaware of any weapons being used during the fight.

The appellant's video record of interview

In the video record of interview with the police held later on 1 July 2007 the appellant denied any use of a knife. He said that 'the big muscled guy' (Scoon) threw the first punch in the nightclub. The appellant only fought 'when necessary' and when he was provoked, particularly when his brother got hit then he would 'lose it'. The whole group did the fighting: 'they were with me if I fight' (interview ts 63). When questioned about the lack of damage to his fists consistent with a fist fight, the appellant said he was hitting Scoon in the body while the bouncer was holding him (interview ts 55).
There are four passages from the video record of interview that I will set out because they were referred to by counsel during the appeal hearing. I will return to these passages later in the reasons.
The first passage appears at interview ts 14. The appellant told police that he had been talking to another man (presumably Scoon) and told him to 'calm down, take it easy‑‑‑enjoy your night'. This exchange then occurred:
Why did you say those words? Why did you have to tell him to calm down and take it easy?---Because he wanted to start on him. The way he was acting like he wanted to fight him.
He wanted to fight ‑ he wanted to fight you?‑‑‑No, not me, ah, my friend's brother.
From the following exchanges it seems the 'brother' may have been a reference to the man described as Matty.
The second passage comes from interview ts 29. The appellant told police that the other man (presumably Scoon) was making 'smart arse comments' and swearing. The appellant told him to calm down and they started punching each other. The exchange continued:
Who started punching each other?‑‑‑He threw a punch.
He threw a punch?---Yeah.
Whereabouts was the punch thrown … [at the cloakroom]?‑‑‑yeah.
Okay. What happened after the punch was thrown?‑‑‑And I started to throw punches and we all jumped in.
You threw some punches?‑‑‑Yeah
And then other people jumped in?‑‑‑Yeah, and his friends jumped in … and he punched me in the eyes ‑ I didn't see - and I sat down and I got blacked out for a couple of minutes and that's when the whole bouncers come and try and stop the fight.
The next passage is at interview ts 30 and it follows on from the exchange I have just set out:
So nothing else happened in the club?‑‑No, no.
So how long did the first fight last for?‑‑‑I have no idea.
The final passage comes from interview ts 46. The appellant told police that members of the group emerged from the toilet and:
‑‑‑I (indistinct) they were talking and he was talking I think one of (indistinct) is talking. 'It's not your business', I don't know, you know, and I just talked to him and I said 'What's the problem, hey?' He said ‑ oh, he said nothing and then from there I say, 'Don't worry about it, have a good night'.
The appellant was given various opportunities during the interview to explain the use of a knife. The following questions or comments were put to him by police officers:
'[T]here may be some reason why you had to use the knife' (interview ts 38);
'[I]f there's a reason why you had to defend yourself with a knife I'd like to know' (interview ts 39);
'[I]f there's a reason that you have done this, tell us now' (interview ts 75);
'[U]nderstand that this is your chance to tell us if it wasn't you who did all the stabbings…because we have a witness that puts the knife in your hand whilst the first knife attack on the arm of the bloke that is being held by the security guards is done' (interview ts 76).
The appellant did not respond to these questions or comments. When police informed him that a knife had been recovered from the area under the car in which he had arrived, and that it was subject to forensic testing, the appellant said that he had held it before and looked at it before (interview ts 79). He said that it was for the investigators to try to prove the allegations that he had stabbed the complainants (interview ts 86).

Grounds of appeal and the statutory context

There is a single ground of appeal:
The trial judge erred in law and in fact when he failed to adequately direct the jury concerning self-defence such that there was a miscarriage of justice.
Particulars:
a)His Honour failed to adequately address self-defence as it applied to the appellant's culpability; and
b)His Honour failed to adequately direct the jury as to aiding in self-defence as it applied to the appellant's culpability regarding those offences said to have been committed as part of a common purpose.
In challenging the verdicts the appellant relies on s 248 and s 250 of the Criminal Code. The relevant portions of those sections are as follows:
When a person is unlawfully assaulted, and has not provoked the assault, it is lawful for him to use such force to the assailant as is reasonably necessary to make effectual defence against the assault, provided that the force used is not intended, and is not such as is likely, to cause death or grievous bodily harm. [s 248, first paragraph]
In any case in which it is lawful for any person to use force of any degree for the purpose of defending himself against an assault, it is lawful for any other person acting in good faith in his aid to use a like degree of force for the purpose of defending such first-mentioned person. [s 250]

Self defence: the trial context and the judge's directions

At trial defence counsel did not squarely raise the issue of self defence. This may have been for sound forensic reasons as the appellant's case was that he had not seen, had or wielded a knife and a plea of using such a weapon in self defence could have been regarded as inconsistent with that stance. Taking it at its highest for the appellant, the evidence might have caused the jury to find that Scoon threw the first punch in the altercation. But it was not suggested by defence counsel that the throwing of a punch would have justified the appellant then using a knife to defend himself.
The issue, to the extent it was raised at trial, seems to have emerged in an exchange between the trial judge and counsel as to whether there was, in the context of a joint criminal enterprise, evidence fit to go to the jury in relation to the offences alleged against Greer and Mule. Attention was given to the passage (interview ts 29) in the appellant's video record of interview in which the appellant referred to the incident near the cloakroom. The appellant alleged that a member of the other group (apparently Scoon) threw a punch 'and I started to throw punches and we all jumped in'. This led to the following exchange between the trial judge and defence counsel:
MOEN, MR: Your Honour touched upon quite an important point, and that's that the first punch being thrown by obviously Mr Scoon, precipitating this call, and then it was all in, according to a number of witnesses. … Their party as well inflicting, as your Honour quite rightly pointed out, but that issue of him laying the first blow is somewhat important when one looks at the issue of a joint criminal enterprise and what flowed from that. It then flows as to what was the knowledge of particular persons at the time or whether the parties were acting in the protection or otherwise of one of the parties to that joint enterprise or at least the group. That's important. That's obviously an issue that the defence is going to raise.
MACKNAY DCJ: Well, I'm not sure that your client really describes an incident consistent with self-defence though, does he? … That passage that I referred to, there was a bunch and we all jumped in. … It was a fight, wasn't it really?
MOEN, MR: He talks about going to the assistance of his brother at one stage and that being obviously an issue which we'll raising. That's fairly and squarely raised on the interview. Also, obviously the fact that he ‑ when he went outside, was obviously enraged and he talked about that because of the injury that he had received from the particular person. So acting on the spur of the moment, before he had time for his passion to cool will be something we will be saying, if there was anything that the jury might find, took place outside and in particular, dealing with the issue of Blair and we'll be raising that as an aspect.
MACKNAY DCJ: I'm sorry, you're saying that provocation has a role to play?
MOEN, MR: It will do, your Honour, yes. In relation to my client's video record of interview, there is some evidence to suggest that. That's on the outside, not on the inside.
The question of provocation seems not to have gone anywhere. As his Honour pointed out in his summing up, provocation is not a defence to unlawful wounding.
Of course, the fact that the defence has not squarely raised the issue does not absolve the trial judge from the responsibility to leave self defence to the jury if it arises on the evidence: Zecevic v Director of Public Prosecutions (Vic) (1987) 162 CLR 645, 662. This is what the trial judge did. There are four separate passages in the summing up in which his Honour mentioned self defence.
First, in outlining the elements of the offence his Honour told the jury that they had to be satisfied that the wounding was unlawful, 'that means not an accident and not in self defence'. Further that the injury to the complainant was done in circumstances for which the appellant was criminally responsible, 'relevantly … that it was not done in self defence'.
The second reference to self defence appears at the conclusion of his Honour's directions concerning joint criminal enterprise. His Honour reminded the jury that it was for the State to satisfy them that the wounding or assaults did not occur in self defence. In a joint criminal enterprise that meant the person who actually carried out the wounding or assault was acting in self defence. The trial judge then effectively read, without elaboration, the first paragraph of s 248, which I have set out above.
A little later, in discussing one of the unlawful assault counts the trial judge pointed out that it was not suggested on behalf of the appellant that on that, or any other, count, the need to act in self defence would justify the use of a knife or other weapon. He went on to say: 'Nonetheless, that is a matter for you'.
The final occasion on which self defence was mentioned arose when, having retired, the jury asked for a redirection on joint criminal enterprise. The trial judge gave the redirection and no issue is taken with what he said. But at the end of his further remarks, the trial judge said:
Finally, in relation to any wounding or assault you would have to be satisfied that if it wasn't the [appellant] who did it, then you wouldn't have to worry about group criminal enterprise if it was the accused person. So if it was another person in the group who wounded or who assaulted that other person, that he did so unlawfully. In other words, that he was not then acting in self defence.
I omitted to say to you earlier, and perhaps in [sic] out of completeness, I ought say that acting in self defence includes acting under an honest and mistaken belief, provided it's reasonable that act was necessary to be done in self defence. So in other words, if you do something believing you need to do that honestly, and that belief is also reasonable that that act is necessary in self defence, then you're not guilty to any greater extent than if it had, in fact, been necessary. And it's for the State to negative self defence, as I said to you, and it's for the State to establish each of those other things. Then the accused, of course, for the sake of completeness, I remind you, denied any knowledge of or the use of any knife or knives.
I note in passing that if the last paragraph above is taken as a reference directly to Criminal Code s 24 it may be problematic. Whether, and if so to what extent, s 24 applies to s 248 remains a matter of some controversy; see Marwey v The Queen (1977) 138 CLR 630, 637; Lean v The Queen (1989) 1 WAR 348, 349. No complaint was made either at trial or on appeal in relation to that aspect of his Honour's directions.
It is important to note that neither at the conclusion of the trial judge's summing up nor after the redirection did defence counsel complain about any aspect of what the trial judge had said to the jury concerning self defence or any other issue. The absence of objection to a judge's directions is not fatal to reliance on an error if it occasioned a miscarriage of justice, 'but they are reasons to pause before embracing that conclusion': Murray v The Queen (2002) 211 CLR 193 [73] (Kirby J).
The gravamen of the appeal lies in two questions. First, was there a proper evidentiary base for the issue of self defence to be left to the jury such as to make it necessary for the trial judge to direct on the question? Secondly, and assuming there was such an evidentiary base, was the direction adequate on the facts?

Was a self defence issue raised on the evidence?

It is apparent from the exchange between the trial judge and defence counsel set out above that the only evidentiary issue raised at trial came from the appellant's video record of interview. So much was conceded by counsel who appeared for the appellant on the appeal.
In relation to a possible defence under s 248, it was open to the jury to accept Scoon's evidence. In summary, his evidence was that he regarded himself as being under physical threat by a group of men approaching him in a menacing manner. He had heard someone say: 'where's the knife, get my knife', he threw the first punch and the altercation continued. None of the other witnesses who gave evidence at trial relevant to this aspect of the fracas said anything to the contrary. The only evidence to which the appellant could point was the statement made by him in the video record of interview that Scoon threw a punch 'and I started to throw punches and we all jumped in'. But, concentrating on the unlawful wounding counts, the appellant was not facing charges arising from him throwing punches. The mischief lay in the use of a knife to wound the complainants. He denied that he (or anyone else in his group) had possession of or had used a knife in that way or at all. On that basis alone it is difficult to see how an issue of self defence could arise.

There was evidence that Scoon had thrown the first punch and that he had thrown a glass. KW said he saw people holding unbroken glasses and that a glass was thrown over his head. But KW did not tie any of the complainants to that incident. Nor did KW give evidence that a glass was thrown at or near the appellant and nor did he give evidence from which it could be inferred that the appellant must have seen the glass throwing incident. In the video record of interview the appellant did not mention that a glass had been thrown while they were inside the club. At interview ts 9 this exchange occurred:
A. I - I - well I know the - the guy with - the guy with the white top, ah, he had a glass bottle. He throw it, ah, at my brother I think cos I was next to my brother and (indistinct) he ‑ when he hit the floor I have no idea and just the next minute I see blood on my hand.
Q. Okay. Did that - he threw something?
A. He threw a bottle.
Q. Where did that happen?
A. It was outside.
Q. Outside.
A. Yeah.
The fact that the glass throwing incident referred to at interview ts 9 occurred outside the nightclub was confirmed by Scoon, although he said it was a glass, not a bottle. Later in the interview police officers noticed cuts on the appellant's hand and asked him how it happened. He said (interview ts 53 and 55):
Maybe they threw a glass or probably when I just hit ‑ hitting the guy when he was on the floor probably, I don't know, hit something sharp or I don't know what ‑ ‑ ‑
…
When the bouncer guy got involved jumped in tried to stop the fight, you know, and then I was hitting him in the body‑‑‑I just give him a couple of punches and ‑ and the next minute I came outside my hands were bleeding.
Q. Were cut up?‑‑‑Yeah.
That exchange cannot reasonably be read as a statement by the appellant that he was aware that a glass had been thrown at him or anyone else in his group. These parts of the video record of interview were not referred to or relied upon either at trial or by the appellant's counsel on the appeal. I could not see any other material references to the throwing of glasses in the video record of interview. As the incident referred to at interview ts 9 occurred outside the nightclub it must have happened after the stabbing and could not be relevant to this issue.
In my view given Scoon's evidence that he heard mention of a knife and was approached by the appellant in the way he related, the fact that he threw the first punch and threw a glass would not create a factual base for the application of s 248. Again in my view, there is nothing in the video record of interview or in KW's evidence (either alone, or together with Scoon's evidence) that would enliven the operation of the section. It is difficult to identify any other evidence that would even raise, let alone justify, an assertion that the use of a knife, in all of the predicated circumstances, was reasonably necessary to mount an effectual defence against a punch. This, too, militates against any possible issue arising under s 248.
The appellant also called in aid s 250 on the basis that he had come to the aid of the other members of the group. When asked to point to the evidentiary base, counsel nominated three passages in the appellant's video record of interview. First (interview ts 14), that he had told Scoon to calm down because Scoon wanted to fight his friend's brother. This was an apparent reference to Matty. Secondly (interview ts 30), that he had no idea how long the first fight lasted. Thirdly (interview ts 46), the discussion between the appellant and members of the other group outside the toilet in which the appellant enquired of the others what the problem was and was told there was no problem.
In relation to the first of those passages on no reasonable construction could the words attributed to Scoon raise a reasonable case that use of a knife was justified. It is something of a mystery to me how either of the second or third passages bear any relevance to the issue. They could not possibly be said to raise any apprehension in the appellant that he was liable to be attacked.
Counsel for the appellant also referred to four passages in the trial transcript that he submitted pertained to self defence. It is difficult to see their relevance to this part of the ground of appeal. Two references (ts 669, 670) relate to the second altercation outside the nightclub and the appellant's brother being injured by a bottle that had been thrown at him. They could not have any bearing on the offences the subject of this appeal that were committed inside the nightclub. The two other references (ts 662, 666) refer to the punches thrown in the nightclub between Scoon and the appellant. But there is no evidence to justify a link between those actions and the appellant coming to the aid of his brother.
On the evidence a very real question would have arisen whether the appellant had provoked the initial response by Scoon. Be that as it may, both s 248 and s 250 are based on a proportionate response to an unlawful assault perpetrated against the person seeking the protection of the section. And neither section justifies actions that are likely to cause death or grievous bodily harm.
It may not have been necessary for the appellant to use any force at all to effectually defend himself against the assault: by the time the first punch was thrown a number of crowd controllers had converged on the dance floor and both the complainant and the appellant were being restrained and kept apart by the nightclub staff. The appellant said in his own video record of interview (interview ts 55) that he landed the punches (which were found to be blows with a knife) on Scoon while Scoon was being held by a bouncer.
In the circumstances and on the evidence before the court, even if it were reasonably necessary for the appellant to defend himself from Scoon's punches, there was no evidence pointing to the use of a knife as being within the limits of reasonable necessity and thus fulfil the requirements of the first limb of s 248. Of course, there could not have been because the appellant denied that a knife was used.
It is an unreasonable stretch of the imagination to consider that the use of a knife is a like degree of force to defence from the punch of a closed fist in the circumstances of this case. There was, in my view, no evidentiary base requiring that the issue of self defence be left to the jury and the appellant could not have complained had the trial judge remained silent on the issue.

Was the direction adequate on the facts?

In view of the conclusion just announced it is not strictly necessary to deal with the question whether the directions that were given were adequate. But because the ground of appeal alleges a miscarriage of justice brought about by inadequacies in the directions concerning self defence, I should deal briefly with the issue.
Direction to a jury must be tailored to the facts, legal issues and other considerations that have arisen at trial. A trial judge's summing up is a vital part of the trial process and is a central element in ensuring that a trial is fair both to the accused and that the accused is afforded a reasonable chance of acquittal on all defences that are properly open. But directions to the jury do not call for a convoluted legal essay whose only merit is that it might protect a judge from appellate reversal: Zoneff v The Queen (2000) 200 CLR 234 [73]. Trial judges should be astute not to venture into the area of possible defences which are likely to over-complicate the task before the jury: Moylan v The State of Western Australia [2007] WASCA 52 [58]. The object of the proper administration of justice requiring that trials not be made longer or more elaborate that they need to be is defeated if trial judges do not focus the minds of the jury to what are the real issues in the case and confine instructions only to so much of the law as the jury needs to decide those issues: Tully v The Queen (2006) 230 CLR 234 [77], [79].
According to the appellant the trial judge was required to explain to the jury what facts there were and how they could be used based on an hypothesis that directly contradicted the entire thrust of the appellant's case. Explaining it in that way highlights the difficulty in assessing what directions would have been necessary and appropriate. Counsel for the appellant was asked to identify what directions should have been given. He said:
The trial judge should have told the jury that they needed to consider, in light of all of the circumstances as they were, that given all the relevant factors was it reasonably necessary for a knife to be used in self-defence, be it by the appellant or by another member of his group.
The trial judge reminded the jury that it was not suggested on behalf of the appellant that the need to act in self defence would justify the use of a knife or other weapon. He went on to say: 'Nonetheless, that is a matter for you'. His Honour gave detailed attention to the evidence and to the circumstances pertaining to the joint criminal enterprise. They were the central issues in the case. The question of self defence, to the extent it was raised squarely at trial, was a secondary consideration.
There is another consideration. Section 248 requires a jury to determine as an objective fact the extent of permissible force. But the test is not wholly objective and the state of mind engendered in the accused by virtue of the situation then confronting him or her is not entirely irrelevant: Marwey, 638; Stanik v The Queen [2001] WASCA 333; (2001) 125 A Crim R 372, 391. In this case the trial judge dealt comprehensively with the facts and circumstances relevant to the joint criminal enterprise and therefore to the situation in which the jury would assess the objective considerations relevant to whether 'the need to act in self defence would justify the use of a knife'. The appellant did not give evidence and, save for the video record of interview, there was no other evidence relevant to the subjective elements raised in relation to a s 248 defence. In his summing up the trial judge drew the jury's attention to, among others, the passages from the video record of interview at interview ts 14 and interview ts 29 to which reference has already been made. Neither at trial nor on appeal did the appellant's counsel identify other evidence relevant to his state of mind.
In the peculiar circumstances of this case I have difficulty in seeing what more the trial judge was obliged to say in order to ensure a fair trial and, in particular, to afford the appellant a reasonable chance of acquittal on the basis of a defence of self defence.

The application for an extension of time to appeal

The appellant was sentenced on 5 December 2008. The last date for appealing was 18 January 2009. An affidavit dated 17 February 2009 in support of the appellant's application for an extension of time and sworn by the solicitor having carriage of this matter on behalf of the appellant, noted that the appeal notice was filed approximately 30 days out of time contrary to s 28(3) and (4) of the Criminal Appeals Act 2004 (WA). The appellant's case was filed on 17 February 2009.
Any delay requires a cogent explanation: Bardsley v The Queen [2004] WASCA 251; (2004) 29 WAR 338. The reasons for the delay and the merits of the appeal are always relevant factors in the court considering whether to exercise its discretion to allow an application for an extension of time to appeal. The delay in this case is attributed to a delay in receipt of missing transcript pages from the District Court which were not noticed to be missing and applied for until 6 February 2009, counsel having not returned to his chambers to receive a 23 December 2008 request as to the merits of the appeal from Legal Aid, and the volume of the material that needed to be considered.
The well known relevant principles were stated by Burt CJ in Narkle v The Queen (Unreported, WASC, Library No 6108, 2 December 1985) and cited with approval in, amongst other cases, Washer v The State of Western Australia [2008] WASCA 135 [15] (Miller JA):
This court has on a number of occasions pointed out that the time limit fixed by s 695(1) of the Code must be taken seriously and every effort must be made to comply with it. The section contains no express criteria controlling the court's discretion to extend time and in that sense it can be said that the discretion is unfettered. But that is not to say that it will be exercised as of course. It should only be exercised upon facts shown which in the judgment of the court appear positively to call for its exercise and the onus upon an applicant for extension of time will of course increase as the time goes by. A delay of four and a half months, as in this case, can only be described as gross and it would be necessary to show very special circumstances indeed to sustain the exercise of this Court's discretion to extend time to that extent. Those circumstances may explain and excuse the delay or they may relate to the grounds of appeal and indeed the latter consideration may become and will become dominant should it appear that there has been a manifest miscarriage of justice.
The delay in this case involves weeks rather than months. I doubt the delay could be described as gross, and there is an explanation for some of the period by reason of circumstances partly or wholly outside the control of the applicant. I note also that the respondent does not oppose

the application. Nonetheless, the ground of appeal is devoid of merit and for that reason it would be pointless to grant the extension of time.

The application for leave to appeal

The Court of Appeal determined in Samuels v The State of Western Australia [2005] WASCA 193; (2005) 30 WAR 473 [56] that the statutory provision in this State has two features: first, that the leave of the court is required for each ground of appeal, and secondly that there is a presumptive refusal of leave unless the ground has a rational and logical prospect of succeeding. In my view, and for the reasons given, the single ground of appeal in this case does not have a rational and logical prospect of success and I would refuse leave to appeal.

Conclusion

In my view the appellant could not have complained had the question of self defence not been left at all. But it was and, again in my view, the directions given were adequate in the peculiar circumstances of the case. No error of law or fact has been demonstrated in relation to the directions that were given. There has been no miscarriage of justice. I would therefore refuse an extension of time within which to appeal. In any event I would have refused leave to appeal and dismissed the appeal.
MILLER JA: I agree with Owen JA.