Mason v The State of Western Australia
[2005] WASCA 125
•2 JULY 2005
MASON -v- THE STATE OF WESTERN AUSTRALIA [2005] WASCA 125
| (2005) 30 WAR 205 | |||
| SUPREME COURT OF WESTERN AUSTRALIA | Citation No: | [2005] WASCA 125 | |
| THE COURT OF APPEAL (WA) | |||
| Case No: | CCA:142/2004 | 3 FEBRUARY AND 30 MARCH 2005 | |
| Coram: | STEYTLER P WHEELER JA ROBERTS-SMITH JA | 2/07/05 | |
| 23 | Judgment Part: | 1 of 1 | |
| Result: | Appeal allowed Conviction quashed No retrial ordered | ||
| A | |||
| PDF Version |
| Parties: | ANDRE GRAHAM MASON THE STATE OF WESTERN AUSTRALIA |
Catchwords: | Criminal law and procedure Appeal against conviction Manslaughter Criminal negligence Selfdefence Trial Judge's directions to the jury on selfdefence Misdirection in answer to a specific question from jury Whether selfdefence open where no intention to cause death or grievous bodily harm Whether a retrial should be ordered |
Legislation: | Criminal Code (WA), s 23, s 248, s 249, s 266, s 279 Sentencing Legislation Amendment and Repeal Act 2003 (WA), s 22 |
Case References: | Jones v The Queen (1995) 78 A Crim R 504 Marwey v The Queen (1977) 138 CLR 630 Parker v The Queen, unreported; CCA SCt of WA; Library No 950259; 26 May 1995 Quartermaine v The Queen (1980) 143 CLR 595 R v Muratovic [1967] Qd R 15 R v Prow [1990] 1 Qd R 64 Randle v The Queen (1995) 15 WAR 26 Zecevic v Director of Public Prosecutions (Vic) (1987) 162 CLR 645 Dziduch v The Queen (1990) 47 A Crim R 378 Murray v The Queen (2002) 211 CLR 193 Stack v The Queen [2002] WASCA 338 |
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA TITLE OF COURT : THE COURT OF APPEAL (WA) CITATION : MASON -v- THE STATE OF WESTERN AUSTRALIA [2005] WASCA 125 CORAM : STEYTLER P
- WHEELER JA
ROBERTS-SMITH JA
- CACR 18 of 2005
- Appellant
AND
THE STATE OF WESTERN AUSTRALIA
Respondent
ON APPEAL FROM:
Jurisdiction : SUPREME COURT OF WESTERN AUSTRALIA
Coram : MALCOLM CJ
File No : INS 189 of 2003
Catchwords:
Criminal law and procedure - Appeal against conviction - Manslaughter - Criminal negligence - Selfdefence - Trial Judge's directions to the jury on selfdefence - Misdirection in answer to a specific question from jury - Whether
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selfdefence open where no intention to cause death or grievous bodily harm - Whether a retrial should be ordered
Legislation:
Criminal Code (WA), s 23, s 248, s 249, s 266, s 279
Sentencing Legislation Amendment and Repeal Act 2003 (WA), s 22
Result:
Appeal allowed
Conviction quashed
No retrial ordered
Category: A
Representation:
Counsel:
Appellant : Mr J Glenn on 3 February 2005 and Mr R W Richardson on 30 March 2005
Respondent : Mr S E Stone & Mr C G Astill
Solicitors:
Appellant : Glenn Solicitors on 3 February 2005 and
Atlas Legal on 30 March 2005
Respondent : State Director of Public Prosecutions
Case(s) referred to in judgment(s):
Jones v The Queen (1995) 78 A Crim R 504
Marwey v The Queen (1977) 138 CLR 630
Parker v The Queen, unreported; CCA SCt of WA; Library No 950259; 26 May 1995
Quartermaine v The Queen (1980) 143 CLR 595
R v Muratovic [1967] Qd R 15
R v Prow [1990] 1 Qd R 64
Randle v The Queen (1995) 15 WAR 26
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Zecevic v Director of Public Prosecutions (Vic) (1987) 162 CLR 645
Case(s) also cited:
Dziduch v The Queen (1990) 47 A Crim R 378
Murray v The Queen (2002) 211 CLR 193
Stack v The Queen [2002] WASCA 338
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1 JUDGMENT OF THE COURT: The appellant applies for an extension of time within which to appeal his conviction, and also applies for leave to appeal against sentence, in relation to his conviction on 10 August 2004 of manslaughter. For that offence, he was sentenced to 4 years' imprisonment with eligibility for parole.
The extension of time
2 The application for an extension of time within which to appeal was made approximately six months out of time. The circumstances, however, were very unusual. On 3 February 2005, the application for leave to appeal against sentence came on for hearing. The submissions of the appellant's counsel, directed to that application, seemed to the Court to be wholly inadequate.
3 In addition, there was a question as to whether his Honour the learned sentencing Judge had approached his task in the correct way. It appeared to us that it was possible that his Honour had attempted to reconstruct the findings of fact actually arrived at by the jury, in order to use those findings as a basis of his sentencing, rather than finding for himself relevant facts for the purpose of sentencing (but, of course, taking care to ensure that those facts as found were consistent with the verdict of the jury). Although this issue had been drawn to the attention of counsel for the appellant and for the respondent by letter prior to the hearing, it seemed to us that the appellant's counsel had not appreciated the question which the Court wished to raise. We directed that the appellant's solicitor furnish the papers to counsel knowledgeable and experienced in criminal law (which the appellant's counsel apparently was not) and we communicated this direction to the Legal Aid Commission which was funding the appellant's application.
4 What occurred thereafter is the subject of an affidavit of Mr Atlas, who is now the appellant's solicitor. He deposes to his efforts, which appear to be have been commendably prompt, to obtain relevant materials from the appellant's former solicitor and to brief counsel. It appears that it took approximately three and a half weeks for Mr Atlas to obtain an adequate set of transcripts. The day after those transcripts were provided to counsel, counsel advised that it was his view that there were grounds to appeal against conviction. He communicated this view to the appellant, who advised him that he had never raised the question of appealing his conviction with his former solicitor, since the tenor of that former solicitor's advice to him suggested that there were only grounds to appeal the sentence. He gave instructions to appeal against conviction, and the
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- application was made the following day. The grounds of appeal appear on their face to be arguable.
5 It is our view that the delay in this case, although unfortunate, has been adequately explained and that the explanation is such that it would be appropriate to extend time within which to appeal. The State, quite properly in the circumstances of this case, takes no issue with the application to extend time. That application should, therefore, be granted.
Circumstances of the offence
6 The appellant threw a rock towards Joondalup Drive in the early hours of 6 April 2003. The rock struck a car driven by the deceased. It was a large rock, weighing approximately 7.2 kilograms. It struck the deceased in the head, and he lost control of the vehicle, which veered onto the median strip and then struck a pole. The deceased suffered severe head injuries and died from them.
7 The events leading up to the death were as follows. The deceased had previously been driving with a group of friends in the Joondalup area. They had been to a party, driven to a nightclub, gone to a service station for something to eat, and at the relevant time had been on their way home. As they were driving in a northerly direction on Joondalup Drive, which at that point was a dual carriageway with median strip and nature strip down the middle, someone in the vehicle said that there was a person lying by the side of the road. That person was the appellant who had been drinking heavily that day.
8 Someone in the vehicle told the deceased to stop in the vicinity of the appellant. Three of the young men left the vehicle and one of them approached the appellant for a cigarette, while the deceased remained in the vehicle with two others, just a little way up the road. There was an argument between the youths and the appellant. There had apparently been some prior discussion in the car about "rolling" someone, which may have influenced some of those in the vehicle.
9 There was evidence that one of the youths asked the appellant for "a smoke" and he gave the youth a pouch of tobacco, from which the appellant considered too much was taken. Insults were exchanged and one of the youths punched the appellant in the head. The appellant was punched again and fell down, and two of the youths took his watch and assaulted him (one at least kicking him) while he was on the ground. The appellant said to police that he was "dazed" as a result.
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10 At that point, the vehicle drove away and the youths who had got out of it ran after it. It did a U-turn and picked them up as it travelled south, then did a further U-turn to go back again in a northerly direction along Joondalup Drive. In the meantime, the appellant had gone to the median strip and picked up the rock. In his interview with the police, the appellant said he had attempted to throw it as the vehicle was coming down in a southerly direction, but dropped it. As the vehicle went north, he lobbed or threw the rock towards the road in an underarm action, with the result which we have described.
11 The appellant gave a variety of accounts of his state of mind, and of his intention, in relation to the throwing of the rock. When first interviewed by police, he said that after he had been "bashed" by the youths, when he saw the car turn he thought, "They're coming to have another go at me", and that when he first grabbed the rock he was "trying to chuck the rock at them". A little later in the interview, he again said that he was trying to "chuck the rock at them". Elaborating on that, though, he said that the rock was really too big to throw and they were going too fast, and he was too drunk, and that, although he was trying to throw the rock "just towards the car" and he was not "actually aiming for anything", he nevertheless hit the vehicle because it was "just uncanny timing". He said that he did not even see the vehicle coming. He was in the trees and just "lobbed it out" when he heard the vehicle coming. He said to police that when he threw the rock, he was just thinking "you pricks", he was not thinking, "Oh, I'm going to kill these blokes with this rock". Rather, he was thinking, "Oh, I'll chuck the rock and hit their car and run away". Specifically asked by the police what was his intention in throwing the rock and what he intended to achieve, he replied, "A dent in their car and - you know, the fucking wankers don't bash and roll me again … I didn't intend on achieving anything, really. It was pretty stupid. It was a stupid thing to do".
12 In his evidence-in-chief at trial, the appellant described hiding in the bushes and then said, "The next thing I know is - there was a rock there and I've just thrown it. I wasn't trying to aim at anything, I wasn't trying to hit anything, I just threw it out. I'm so sorry". It appears that, in this account, there had not been a prior attempt to throw it. He said that he did not know where the car was at the time that he threw the rock. A little later he added, "I never meant to hurt anyone, you know". In cross-examination, the following passages appear:
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- "And you threw it at a vehicle that came along Joondalup Drive?---No, I didn't throw it at a vehicle. I just threw it out towards the road.
Because you heard a vehicle or had seen a vehicle?---No. I didn't hear or see anything.
What were you throwing it out on the road for?---I don't know. I just thought they were coming back to kill me. I don't know. I just threw it. I wasn't trying to aim at anything. I just threw it.
…
You're not telling us, are you, that you just threw the rock out into the road for no reason at all?---Yes. I just - I didn't think. It was just reaction. I just threw it out onto the road.
Whether there was a car there or not, it didn't matter. Is that what you're saying? It was just somewhere to put the rock, was it?---I wasn't putting it there.
Then why did you throw it out onto the road, if that's what you're saying?---As I threw it, I said, 'Go away and leave me alone.'
Who did you say that to?---To myself."
13 He also said, in cross-examination, that he did not recall the account that he had given to police, that he did not throw the rock "at the car", and when asked whether he was angry he responded that he was "in fear of my life". In relation to the manner of throwing of the rock, during his cross-examination, he described simply one motion of, in effect, scooping the rock off the ground and straight out towards the road. He said, "To this day I honestly don't know how I got the rock there. I don't even know - I don't know how it got there".
14 The observations of the police who arrived at the scene not long after the vehicle had collided with the lamp post were that the appellant had been, at that time, some little distance to the south of the lamp post, yelling out. Initially, they could not hear what he was saying, but once they were able to make out the words, their recollection was that he was saying something along the lines of, "I'm going to kill those little fuckers". He appeared to be affected by alcohol and had "blood splotted all over him", including his face. His injuries, whatever they were, did not,
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- however, appear to be particularly serious. A constable who attended at a later time, spoke with the appellant who said to him words to the effect of, "I'm a fucking legend". When asked to explain that, the appellant said, "They robbed me so I threw a rock through the window".
Legal issues
15 The State's case was that the appellant was guilty of murder because he intended to do the occupants of the car, or some of them, grievous bodily harm; or, alternatively, that the death of the deceased was caused by means of an act done in the prosecution of an unlawful purpose (the unlawful purpose being either to damage the vehicle or cause harm to the occupants), which act was of such a nature as to be likely to endanger human life. Although the first was a theoretical possibility, there was an obvious difficulty in establishing, on the state of the evidence, that the appellant had that intention. An intention to cause harm might fairly readily be inferred, but the appellant's drunken state, the conflicting accounts which he gave of his intention, and the unpredictability of the results which could flow from throwing a rock towards a vehicle would all create difficulties for a jury finding beyond reasonable doubt that there was an intention to do grievous bodily harm. The second of the two alternatives was, it seems, more likely.
16 A verdict of manslaughter was also plainly open. One way in which that might be reached would be by the jury finding that the appellant had been provoked, although the evidence of provocation was relatively thin. Plainly, the assault and theft of his watch which the appellant said had occurred might be held to be capable of constituting provocation, and there was evidence from which the jury could consider that it was reasonably possible that the appellant had become angry and had thrown the rock relatively soon after the assault, while still enraged by it.
17 However, the themes which appear to emerge most consistently from the evidence of the appellant, at its highest, were that he was afraid that the youths were returning to renew their assault upon him ("coming back to kill me", as he at one time put it) and that he had no particular intention at the time that he threw the rock but that he just "reacted". Those themes give rise to issues of accident, of criminal negligence, and of self-defence. If the appellant had just reacted, then there would apparently be neither an intention to cause grievous bodily harm nor a prosecution of an unlawful purpose so as to give rise to a verdict of murder.
18 Because the appellant said that the hitting of the car was not intended and was a result of perhaps "uncanny timing", the question of accident
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- arose. However, that "defence" is subject to the provisions of s 266 of the Criminal Code (WA), which provides that it is the duty of every person who has under his control anything of such a nature that, in the absence of care in its use, the life, safety or health of any person may be endangered, to use reasonable care and take reasonable precautions to avoid such danger, and that the person is held to have caused any consequences which result by reason of an omission to perform that duty. The danger to human life involved in throwing this large rock onto a road, or towards a road, where vehicles may be, would appear to be obvious, and it would also appear to be obvious that the appellant did not use any precautions to avoid that danger. If that were the case, then, putting to one side for the moment the question of self-defence, the appellant would be guilty of manslaughter. Manslaughter was, indeed, the finding of the jury.
19 Finally, of course, on the appellant's evidence he had indeed been unlawfully assaulted and he said that the nature of the assault had caused him an apprehension of death. There was some issue at trial as to whether the assault upon the appellant was unprovoked, or was provoked by his abusing or threatening the youth who had taken too much of his tobacco. If the jury accepted that the State had not established that the nature of the assault upon the appellant was not such as to cause a reasonable apprehension of death, or grievous bodily harm, then self-defence against either a provoked assault pursuant to s 249, or an unprovoked assault pursuant to the "second limb" of s 248, would be available, if he believed on reasonable grounds that it was necessary for him to use the force which he used in self-defence.
20 In the circumstances of the present case, the "first limb" of s 248 of the Code relating to self-defence against unprovoked assaults was also theoretically open. That is available where the force used is not intended and is not such as is likely to cause death or grievous bodily harm. Whatever the appellant intended, it is difficult to see how the jury could have considered it possible that the throwing of the rock in the circumstances he described meant that it was not "likely" to cause either death or grievous bodily harm, but it was an issue which was for the jury to determine.
The trial Judge's direction
21 The structure of his Honour's direction to the jury was as follows. After the usual remarks as to the onus and standard of proof and the way in which evidence was to be evaluated, his Honour gave the jury an overview of the events, based upon the evidence of the witness whom
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- his Honour considered gave perhaps the most coherent account of those events. He turned to consider the question of what was meant by killing another person and discussed the evidence relevant to that. He then discussed the relevant intention of doing grievous bodily harm in the context of murder and related the law to the relevant facts. In that context, he discussed the evidence at some length. He then turned to consider the question of the effect of intoxication upon the formation of a specific intent of that kind by the appellant.
22 His Honour told the jury that they would need to consider "in that context" (mentioning the intention to cause grievous bodily harm) the issue of provocation. The jury were told that, in the context of prosecution of an unlawful purpose, they could find a verdict of manslaughter if they found that there was murder in those circumstances, but that the appellant had been acting under provocation.
23 His Honour then told the jury there had been an issue "of self-defence raised in relation to the charge of murder. That would entitle a man to a finding of not guilty completely". With respect, his Honour's direction at this point is not clear. His Honour said to the jury the following:
"The evidence in relation to those circumstances is not altogether clear, but when a person is unlawfully assaulted and has not provoked that assault, it is lawful for him to use such force to the assailant as is reasonably necessary to make an effectual defence against the assault, provided that the force so used is not intended and is not such as is likely to cause death or grievous bodily harm.
There was an argument over the tobacco. Trent Meredith threw what appears to have been the first punch and then there was a struggle. Whatever happened, in the end result there is one factor which you may find assists you in reaching a conclusion. There is a question whether the force used - in relation to throwing the rock in the direction of the car in the circumstances which have been described in this case, was the force used excessive and, beyond that, reasonably necessary to make an effectual defence against any further apprehended violence from those who were inclined to use violence against him.
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- The state has to satisfy you that the accused did not act in self-defence on the first arm of the section. Then you look at the second arm of the section which makes it necessary for the plea to be sustained, that the accused had reasonable grounds to be in apprehension of his death or grievous bodily harm and that he could not otherwise preserve his person than by applying the force that he did."
24 The difficulty with the direction at this point appears to us to be that his Honour had not told the jury what the "second arm" of s 248 consisted of, and why there were two arms. It would have not been clear to the jury that in relation to an unprovoked assault, there were circumstances in which a person may use force which is likely to result in death or grievous bodily harm in self-defence and that the second limb was directed at that aspect. To this point, the direction would have left an impression that self-defence was available only against an unprovoked assault, and only if there was no intention, and no likelihood, of doing grievous bodily harm. The reference to the accused's apprehension of death or grievous bodily harm reads as if it were a further condition which had to exist before self-defence would be open, rather than a description of the circumstances in which force likely to cause death could be used. Any confusion on these points in the minds of the jurors is likely to have been reinforced, rather than dispelled, by the redirection which we describe shortly.
25 His Honour then explained to the jury the elements of "felony murder". His Honour put to the jury that it was open to them to consider whether the purpose of damaging the motor vehicle was the accused's unlawful purpose and that there was, of course, a question as to whether the throwing of the rock in those circumstances was likely to endanger human life. An alternative possible unlawful purpose identified by his Honour was that of causing harm, although not grievous bodily harm, to one or the other of the occupants of the vehicle.
26 Having directed the jury in relation to those two ways in which a verdict of murder might be reached, his Honour turned to the question of accident in s 23 of the Code. He explained to them also, however, that if they concluded the prosecution had not negatived the defence of accident, the question of whether the appellant had failed to take reasonable precautions in the use of the rock arose. He explained the standard of negligence in that respect. He canvassed the evidence which related to the question of accident.
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27 His Honour advised the jury that the "third alternative" in relation to unlawful killing was manslaughter, which occurred where an accused person had done an unlawful act which caused death without any intent. His Honour again explained to the jury the concept of gross negligence and said:
"It may be the case that no matter what else happened, whether it was an accident or an involuntary act, the accused is subject to the express provisions of the Criminal Code in this regard; that is, it is alleged that the accused being in possession of the rock did not use such reasonable care and take reasonable precautions to avoid danger to the life, safety or health of other persons."
- There was in that context no discussion of or reference to self-defence. Although not intended in that way, the words "no matter what else happened" may tend to suggest that in relation to a failure to use reasonable care, no defence arising from the surrounding circumstances discussed by his Honour would have been open.
The redirection
28 After the jury retired, they returned with a question. It is, we think, necessary to set out significant passages from his Honour's redirection in relation to the question. The question was:
"Can we please have the definitions of manslaughter, provocation, self-defence? Can we please have some guidance as to the law on the issues of self-defence, intent and provocation in regards to the charge of manslaughter?"
29 His Honour began by addressing the question of manslaughter and his Honour's interchange with the jury in relation to that issue is as follows:
"As I mentioned to you earlier today there is the alternative verdict in relation to manslaughter which is required. Manslaughter is committed where the accused has done an unlawful act without any intention to kill. An unlawful killing will be manslaughter unless at the time of doing the relevant act the accused had a particular intent. At the very least the accused who caused fatal injuries to another would be guilty of gross negligence; causing the death of the deceased would be guilty of at least the crime of manslaughter.
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- The jury should consider whether the rock was of such a nature that in the absence of due care and precaution by throwing it or lobbing it in the direction of the deceased's car was likely to cause injury. Criminal negligence requires a gross departure from the requirement to use such reasonable care and take reasonable precautions to avoid danger to the life, safety or health of other persons; in this case, namely, those persons who were in the deceased's motor vehicle at the time the rock was thrown or lobbed in the direction of the motor vehicle. I wonder whether that is sufficient clarification for the members of the jury.
THE JUROR: A lot of them don't have an act. What we're trying to grapple with is whether that can be an act that's just to cause injury or it's an act that's actually intending to cause death.
MALCOLM CJ: It may be somewhere in between. If you have a situation where a person does an act which is likely to endanger life or cause permanent injury to health, then that act may lead you to come to a conclusion that it is at least an act which would fall within the scope of manslaughter."
30 The last interchange is very difficult to follow. We do not understand what is meant by "a lot of them don't have an act". It rather suggests that a number of jurors, at least, were concerned that there had been no intentional throwing of the rock, in the sense that the appellant deliberately threw it at anyone or anything or with any particular intention.
31 The remainder of the juror's comment, though, may be referable either to an act likely to endanger human life in s 279(2) of the Code, or to an act involving absence of care whereby the life, safety or health of any person might be endangered pursuant to s 266; alternatively, it may be intended as a reference to the concept of grievous bodily harm. In any event, with respect, his Honour's answer was likely to have been materially misleading. It appeared to suggest that an act which is objectively likely to endanger life or cause permanent injury to health will then, prima facie, be "at least" manslaughter. That impression is all the more likely when this answer is taken together with the passage commencing "It may be the case that no matter what else happened", quoted earlier.
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32 It would, in our view, have been desirable for his Honour to have asked the jury further questions designed to clarify the topic upon which they sought redirection; or to have explained again to the jury that manslaughter did not require proof of intention, but did require an unlawful killing, explaining what would be required for proof a killing was unlawful. Although it is not raised directly by the grounds of appeal, the potentially misleading nature of the reply given would, at least in the context of the direction to which we now turn, require that the conviction be quashed.
33 His Honour then went on to explain briefly the relevance of provocation, which is not an issue of importance in the appeal.
34 In relation to self-defence, his Honour then said the following (paragraphs numbered for ease of reference):
"1. In relation to self-defence, self-defence is relevant in the context of this case only to the charge of murder and that would entitle the accused, if you are considering murder, to a finding of not guilty completely. In relation to murder, you have to consider self-defence; whether or not the accused was attacked, was threatened, and when he was later in the bushes with the rock was acting in self-defence, or was it a pre-emptive strike, if you like, in retribution for what had happened to him earlier when he was knocked about and his watch was taken from him.
2. When a person is unlawfully assaulted and he has not provoked the assault, it is lawful for him to use such force to the assailant as is reasonably necessary to make an effectual defence against the assault, provided that the force so used is not intended and is not such as is likely to cause death or grievous bodily harm. The consequence of that is, for example, that if the force used was likely to cause death or grievous bodily harm through the throwing or lobbing of the rock in the path of the car, then the defence would not be available to him.
3. In this particular case it may be a relevant consideration for you to take into account that the assault which led to the taking of the watch was over. The youths who participated in the assault had departed in the motor car. In that context, on the face of it, there would have to be
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- some reasonable basis to anticipate that he was going to be attacked again before the issue of self-defence would arise again. Assume for the moment that it would be reasonable for him to apprehend that they might try and come after him again.
- 4. What is he to do? Is he entitled, as he appears to have done, to take a pre-emptive strike as the vehicle was coming back down the road and going past him? He had attempted to do it once before but failed and then he tried a second time when they came around again. The law is that if the nature of the assault is such as to cause reasonable apprehension of death or grievous bodily harm and the person using force by way of defence believes on reasonable grounds that he cannot otherwise preserve himself from death or grievous bodily harm it is lawful for him to use any such force to the assailant as is necessary for his defence even though such force may cause death or grievous bodily harm.
5. This against the background that he has been involved in the fracas when he was assaulted and his watch was taken from him but it is necessary that at the time he acts in self-defence he must have reasonable grounds to apprehend that he is about to suffer death or grievous bodily harm and that he cannot otherwise protect his person than by applying the force that he did. So it's a question for you to determine whether the action of throwing or lobbing the rock in the way in which you find he did was an act of self-defence against some attack which he was apprehending on reasonable grounds would occur. Does that help you?"
35 In relation to the entirety of the direction in relation to self-defence, it does appear to be the case, as the grounds of appeal allege, that his Honour did not direct the jury in relation to the question of a provoked assault upon the appellant. Such a direction was, as we have noted, absent from his Honour's first mention of the subject.
36 His Honour correctly told the jury in par 2 above that where a person is unlawfully assaulted and has not provoked the assault, it is lawful for him to use such force, etcetera. There does appear, when one looks at the structure of that redirection, to be a danger that the jury might have
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- understood that the words "and he has not provoked the assault" govern everything which was said thereafter. His Honour did not explain that where the appellant was assaulted with such violence as to cause reasonable apprehension of death or grievous bodily harm, then there were circumstances in which he was entitled to defend himself, even if he had provoked the assault in the first place.
37 As we have noted, there was some evidence which was capable of leading the jury to form the view that the appellant had provoked the initial assault upon him. The evidence of the young men varied, but there was certainly evidence which suggested that the appellant had been badgering them for a lift, had wrongly accused one of them of stealing his tobacco, had threatened to "rip [the young man's] head off", and yelled other abuse at them. There may or may not have been some initial pushing, and it is not clear from the evidence who began that. In those circumstances, it was important that his Honour not leave the jury with the impression that self-defence would be something which the State was required to negative only in a circumstance where the appellant had not provoked the initial assault upon him.
38 There were some other difficulties with the redirection in relation to self-defence. It is not clear whether the jury would have understood that the direction that the defence "would not be available" where the force was likely to cause death or grievous bodily harm (par 2) did not govern everything which followed in relation to self-defence. They may have assumed that the direction at the end of par 4, that in the circumstances described force of the kind that could be used, was a slip. That is particularly problematic in the context of the earlier direction on this topic, which contains no suggestion that it would ever be lawful to use force intended or likely to cause death or grievous bodily harm. Further, as a matter of fact, the reference in par 4 to the accused's first attempt to throw the rock assumes that his account to police was true, when that differed from his evidence at trial.
Errors in redirection - effect
39 In our view, the matters to which we have referred in the redirection; that is, the apparent suggestion made by his Honour that an act which was likely to endanger life or cause permanent injury to health would "at least" be manslaughter, the failure to direct in relation to self-defence against a provoked assault, and the lack of a clear indication of when force intended or likely to cause death could be used, require that the conviction be quashed. This conclusion arises both from the content and the timing of
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- those directions. As Mason and Wilson JJ noted in Quartermaine v The Queen (1980) 143 CLR 595 at 612:
"A misdirection at a stage when a jury has returned to seek an answer to a specific question will generally be a matter of grave import, requiring serious consideration in any appellate review, for the reason that being isolated from the charge itself it is likely to carry great weight with the jury."
40 There is one other question of significance arising from the grounds of appeal. That is the question of whether his Honour erred in directing the jury, as he plainly did, that self-defence was relevant "in the context of this case only to the charge of murder"; that is, whether his Honour erred in not directing the jury that they should consider self-defence when and if they came to consider the question of manslaughter.
41 The ground relating to the availability of self-defence in the context of manslaughter gives rise to certain conceptual difficulties in the context of the facts of this case. The problem only arises if the jury considers the issues in a particular order. If, for example, they had considered self-defence first and found that it had not been negatived, they would, as his Honour noted, have acquitted "completely". However, they may have decided that it would be convenient to reach a view about the appellant's intention first, before turning to other issues.
42 If the appellant had an intention either to do grievous bodily harm, or to do other harm to the occupants of the vehicle or to damage the vehicle (in circumstances constituting a danger to human life), he would come within s 279 of the Code (ie, murder), were it not for the provisions relating to self-defence. It is relatively easy, in the context of a person making a deliberate decision to cause, or attempt to cause, a particular sort of harm, to consider whether in doing so the person was acting under a belief that that action was necessary for his preservation.
43 The difficulty arises where, as in the alternative explanation as to the appellant's state of mind and intention, he has no intention at all to cause any particular result, but simply "reacts", or simply throws a rock "towards the road". The difficulty appears to be twofold. First, s 248 speaks of the use of force "to the assailant" (though s 249 does not). The thrust of the appellant's explanation, at the points in his evidence at which he indicated that his actions were simply a reaction, was that he was not
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- directing the rock-throwing towards any of the occupants of the vehicle, or, indeed, towards the vehicle.
44 Although he did not say so, it may have been open to the jury to find, as the appellant's counsel speculatively suggested to us, that the rock-throwing was nevertheless directed "at" the vehicle and its occupants in the sense that it was intended to distract them, or in that it was intended to show that he had resources available to him should they wish to renew their attack. It may be that the throwing of a rock which, in fact, strikes the assailant, is encompassed within the concept of using force to the assailant, even though the striking of the assailant is unintended and may have been unforeseen.
45 However, even if the throwing of the rock without any intention to cause any result in relation to the assailant - that is, without even intending that the rock strike the assailant - is the use of force "to the assailant", it is then necessary to consider whether the appellant might have believed that the use of that force was necessary to make effectual defence against the assault (or in this case against the apprehended renewal or continuation of the assault which had already occurred). There is a real practical difficulty in finding it possible that the appellant believed that it was "necessary" to throw the rock, in order to defend himself, while at the same time accepting his evidence that he threw the rock without any conscious intention and without really knowing where the vehicle containing his assailants might have been at the relevant time.
46 It is possible, conceptually, to consider that a person might react in self-defence by resort to a weapon of some kind, without having any very clear idea of what he intends to do with the weapon. There are a number of cases involving knives, for example, in which it can fairly readily be seen that an accused may have picked up a knife, and even wielded it, without having any intention of causing any particular result, and perhaps even without necessarily intending to strike the assailant with it. However, in those cases it is relatively clear on the facts that the knife is at least intended as a threat, while in the present case the purpose of throwing the rock at all, on this version of the appellant's account, is a matter of speculation.
47 It may be for that reason that Wilson, Dawson and Toohey JJ in Zecevic v Director of Public Prosecutions (Vic) (1987) 162 CLR 645 at 661 - 662 said, in discussing self-defence:
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- "Murder consists of an unlawful killing done with intent to kill or to do grievous bodily harm. Recklessness may be put to one side as having no apparent relevance in the context of self-defence."
- It is difficult practically to conceive of a person who, while he might be acting deliberately, has no intention to effect any result, and who at the same time believes that it is necessary to do what he does in order to defend himself.
48 Authority elsewhere does not, in our view, assist. In R v Prow [1990] 1 Qd R 64, the Queensland Court of Appeal held that a person charged with manslaughter was entitled to plead self-defence to an unprovoked assault under the equivalent of the first paragraph of s 248, provided that the force used was not intended and was not such as was likely to cause death or grievous bodily harm, even though death or grievous bodily harm may, in fact, have resulted. The facts in that case, however, involved an assault by punching and kicking upon the deceased. There had been a fist fight, and there was no question about whether the accused in that case had intended to assault the deceased by punching and kicking him; he clearly had, but had said that he did so in self-defence and without an intention to kill or do grievous bodily harm. There was some question of causation as to whether the assault was likely to cause death or grievous bodily harm, although death, in fact, resulted. In that case, therefore, there was clearly both an application of force to the assailant, and the deliberate doing of a number of acts which had some logical connection with the accused's desire to defend himself.
49 In Jones v The Queen (1995) 78 A Crim R 504, the Court of Criminal Appeal of New South Wales held that it was necessary, in relation to the alternative verdict of manslaughter, to direct the jury in relation to self-defence. However, that was again a case in which there had been an argument and a scuffle, during the course of which the accused had stabbed the deceased three times. Again, there was clearly an application of force directed to the deceased, and the accused's contention was that the force he used was that he was trying to push the deceased away so that he could escape, although having the knife in his hand at the time. Further, there appears to be a statutory difference; although the alternative verdict in that case was called manslaughter, the direction which the Court of Criminal Appeal suggested as an appropriate direction in that case was in terms which are much closer to a direction which in this State would be relevant to "felony murder". The suggested direction was to the effect that the Crown must establish that the act of the accused
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- in stabbing the deceased caused death; and that the act was an unlawful and dangerous one, with "dangerous" being explained as an act such that a reasonable person in the position of the accused would have realised that by that act the deceased was being exposed to an appreciable risk of serious injury.
50 As counsel for the appellant rightly points out, it would seem to be a very odd result if a person who intends to cause death or grievous bodily harm is able to avail himself of the "defence" of self-defence, while a person who has no such intent, but merely acts negligently, is not. When first considering this matter, it seemed to us that an appropriate answer to that difficulty might be that in directing a jury in relation to the provisions of s 266 of the Code, it will be necessary in situations such as the present - that is, where the accused had reason to be concerned for his safety - to stress the requirement that there be "reasonable care" and "reasonable precautions". It appeared to us that where the accused was acting under the pressure of such concerns, a jury should be directed to consider what precautions could reasonably be expected of a person in the situation of, and having the concerns of, the accused. A person who honestly believes that his life is in danger might be excused for failing to take precautions or care which in other circumstances would be required of him. It would, of course, be for the prosecution to prove that the accused had not taken precautions which were reasonable in the circumstances.
51 However, resort to a particular direction relating to s 266 seems, on reflection, to introduce an unnecessary complexity into the law relating to self-defence. The trend of authority has been to depart to some extent from the precise words of the Code (although they are often read to juries) and to direct in relation to self-defence in somewhat more straightforward, and simpler, terms. Marwey v The Queen (1977) 138 CLR 630 approved the views of Gibbs J (as he then was), in R v Muratovic [1967] Qd R 15 at 18 - 19, which describe the provisions of the Code relating to self-defence as having the effect that the use of force is lawful if the accused actually believed that what he did was necessary for survival or the avoidance of grievous bodily harm and that belief was based upon reasonable grounds. In discussing the common law, but in terms which Malcolm CJ (with whom Kennedy and Pidgeon JJ agreed) described as "generally applicable to the defence under ss 248 and 249 of the Criminal Code" (Randle v The Queen (1995) 15 WAR 26 at 38), the High Court in Zecevic said:
"The question to be asked in the end is quite simple. It is whether the accused believed upon reasonable grounds that it
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- was necessary in self-defence to do what he did." (per Wilson, Dawson and Toohey JJ at 661; Mason CJ agreeing at 654, Brennan J agreeing, with qualification, at 670, Gaudron J at 683)
- In applying that proposition to the Criminal Code, Malcolm CJ in Randle (at 40) said that in the context of the Criminal Code it is necessary for the jury to be first directed on the distinctions between wilful murder, murder and manslaughter. In addition, it will then be necessary where self-defence is raised, to add that the Crown must satisfy the jury beyond reasonable doubt that the act or acts which caused the death were not done in self-defence. The jury should be directed that the act or acts would not be done in self-defence if the Crown satisfied the jury beyond a reasonable doubt (in a case of force likely to cause death) either:
(a) that the accused was not assaulted with such violence as to cause him reasonable apprehension of death or grievous bodily harm; or
(b) that the accused was not assaulted with such violence as to induce him to believe, on reasonable grounds, that it was necessary for his preservation from death or grievous bodily harm to use force in self-defence.
53 Although it is not strictly necessary to determine the matter in this case, in order to decide whether the appeal should be allowed, it is therefore our view that his Honour did err in directing the jury that self-defence was applicable only in the context of murder, and in
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- impliedly excluding it from the jury's consideration when they came to consider manslaughter.
Should there be a retrial?
54 It is not necessary, having determined that the conviction should be quashed, to consider the question of sentence. However, certain considerations which would be relevant to an application for leave to appeal against sentence are relevant to the question of whether there should be a retrial. At the time at which the jury announced its verdict, it also conveyed to his Honour a message seeking, with his Honour's approval, that there be "extreme leniency" in the sentencing of the appellant. The prosecution considered in its sentencing submissions to his Honour that this was "really a classic case of criminal negligence". Having regard to that concession and to the jury recommendation, the view might have been taken that the jurors were reluctantly following what they considered to be the Judge's direction as to the law, despite their view, as members of the community, that it seemed that the appellant had acted carelessly, but in a difficult situation.
55 As we have noted earlier, it was the appellant's evidence that he had been intoxicated, had been sleeping by the side of the road, and had been woken by the youths. Those facts appeared not to have been in dispute. It was also not in dispute that there had been an altercation of some kind, although how badly injured the appellant was in that altercation was a matter of some dispute. In any event, he had been injured to some extent and that presumably would have caused at least some disorientation and very possibly some apprehension for his safety. It was not, therefore, an example of the type of case unfortunately encountered from time to time in which a person, apparently seeking some excitement, throws an item onto the road to see what will happen.
56 The appellant had already spent just over 10 months in custody in respect of this offence while awaiting trial. However, the sentence imposed was one of 4 years with no backdating (equal to a sentence of a further 6 years pursuant to s 22 of the Sentencing Legislation Amendment and Repeal Act 2003 (WA)). By the time the appellant's appeal came to be argued before us in March of this year, he had served a little more than a further 6 months. His time in custody was therefore that which would have been served under a sentence of more than 32 months (or just under 4 years, under the regime prior to the 2003 amendments). The view we then formed was that no member of the Court would impose a sentence which would involve a longer period of time in prison than that which had
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- already been served, having regard to the very unusual circumstances of this offence.
57 The principles governing the question of when it is appropriate not to order a new trial are not in doubt. They were considered in detail in Parker v The Queen, unreported; CCA SCt of WA; Library No 950259; 26 May 1995. The fact that an appellant has served the custodial portion of an appropriate term of imprisonment is a "significant matter", but is not decisive (per Malcolm CJ at 41).
58 This is not a case in which the evidence in the Court below was not sufficiently cogent to justify a conviction, so that that consideration does not arise. Further, the throwing of objects onto roadways is a practice which is unfortunately more prevalent than one would either expect or wish. There is the further very important factor that the death of a young man has been caused. Those factors point in favour of a new trial.
59 However, in addition to the fact that the appellant has already served at least an appropriate custodial term, there is the fact that the trial was one involving complex issues. It also involved, more than many such trials, not only questions of credibility, but the application of community standards of reasonable and appropriate behaviour. Having considered those community standards, the members of the jury made the recommendation for leniency to which we have referred. While the recommendation is not decisive, it should not be lightly disregarded. It is our view that those circumstances lead to the view that, in the present case, the public interest in securing the fair trial of the appellant is outweighed by the oppression of placing him in jeopardy again for the same offence. We would therefore not order a retrial.
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