Massey v The Queen
[2013] HCATrans 245
[2013] HCATrans 245
IN THE HIGH COURT OF AUSTRALIA
Office of the Registry
Canberra No C4 of 2013
B e t w e e n -
REBECCA ANNE MASSEY
Applicant
and
THE QUEEN
Respondent
Application for special leave to appeal
CRENNAN J
GAGELER J
TRANSCRIPT OF PROCEEDINGS
AT CANBERRA ON FRIDAY, 11 OCTOBER 2013, AT 1.45 PM
Copyright in the High Court of Australia
MR J. PAPPAS: Yes, may it please your Honours, I appear for the applicant in this matter. (instructed by Ben Aulich & Associates)
MR H.K. DHANJI, SC: I appear with MR J.G. LUNDY for the respondent. (instructed by Director of Public Prosecutions (ACT))
MR PAPPAS: Your Honours, this application springs from the proposition that it is not the common law that an original aggressor cannot raise a plea in self‑defence or plea of self‑defence, and to direct a jury in that fashion is take away from the jury a question of fact and a jury function. In the Victorian decision of Anandan v The Queen the Supreme Court of Victoria identified a miscarriage of justice in a direction which may have left the jury believing that an original aggressor could not act in self‑defence, and, your Honours, I will take you in a moment, if I may, to the relevant parts of that judgment.
One of the things that was said by his Honour Justice Nettle was that there were three things wrong with the direction in that court, that is wrong in the sense that they did not comply with what this Court said in Zecevic v The Director of Public Prosecutions, and your Honours will find that at paragraph 19 of his Honour’s judgment, and that is found at page 50 of the applicant’s authorities. In fact it commences at paragraph 18. First, his Honour said there that the plurality in Zecevic were talking about original aggression being:
aggression which involved the use of force; not just any aggressive behaviour as the judge’s direction suggested.
Ultimately the Court of Appeal in the Australian Capital Territory sought to distinguish Anandan by categorising that understanding of Zecevic as wrong.
CRENNAN J: Did the other Justices of Appeal in Anandan agree with Justice Nettle on this point or were they silent on that point?
MR PAPPAS: Not that I could find, your Honour. I know that the Court of Appeal in the Australian Capital Territory suggested that Justice Oghlan by implication did, but I had difficulty identifying any passage in the judgment of Justice Oghlan which in terms seemed to endorse that proposition.
CRENNAN J: I had the same problem.
MR PAPPAS: But, more significantly, in my submission, is the error which his Honour identified at paragraph 19 of the judgment in Anandan, and that is, he says that:
Secondly, Wilson, Dawson and Toohey Justice did not say that the self‑defence is not open unless an accused who is the original aggressor ceases to behave aggressively ‘before the relevant time’. Their Honours said that, if an accused is the original aggressor (in the sense of committing the first aggressive violent act), it is relevant for the jury to consider whether the ‘extent to which’ the original aggression ceased before the accused committed the act of violence with which he is charged –
and the relevance is rationally that it bears upon the assessment of whether the offender may then have formed a reasonable view that it was necessary to do what he or she then did. That is an error which we say was replicated in the Supreme Court of the Australian Capital Territory where the judges certainly talked in terms of the “cessation of original aggression”. There was also a mixing of metaphors in terms of whether or not the appellant could be considered as having engaged willingly in a fight. That is an expression taken, as we apprehend it, from the New South Wales Court of Criminal Appeal decision in R v Nguyen. I trust yesterday, your Honours, a copy or copies of that judgment made its way to you.
CRENNAN J: Yes, thank you.
MR PAPPAS: It was a late inclusion. The reason why that authority was made available at the last minute is this. What the Court of Criminal Appeal in New South Wales is talking about in Nguyen is something different to, in my respectful submission, original aggression as it should properly be understood within the judgment of the plurality in Zecevic. What the court was talking about in Nguyen was two people engaged willingly in a fight, if you like, from the out, so that neither could effectively claim at any stage of that exchange or that consensual exchange of violence to be acting in self‑defence. That is a different proposition entirely, in my respectful submission, from what the plurality was considering in Zecevic when they talked about original aggression.
CRENNAN J: Well, all these inquiries are highly fact‑sensitive, are they not?
MR PAPPAS: They are, your Honour, but in Anandan the Court of Appeal in Victoria took the view that because the jury were left in the position where they may have believed that original aggression in the form of aggressive words – and your Honours may recall that the factual circumstances were some taking away of chairs at a beer garden, followed by abusive words, followed then by pushing, I think, spitting, the holding of a knife behind the back.
There was a gradual escalation of violence but the Court of Appeal in Victoria took the view that because the impugned direction left open the possibility that the jury might regard the offender as debarred from raising self‑defence because he had been an original aggressor in the sense that he had spoken roughly and had taken away chairs, things that fell short of actual violence, that there had been a miscarriage of justice.
So we say it is here, and it is no answer for the Court of Appeal in the Australian Capital Territory to say his Honour Justice Nettle is wrong, original aggression means something less than, or can mean something less than physical violence. It can mean, in fact, anything that provokes or causes an attack because that only serves to highlight the danger of directing a jury in the way in which this jury was directed.
CRENNAN J: Well, now, I think the respondent’s answer to that is to be found at application book 101, in paragraph 23.
MR PAPPAS: Yes, and they say it is an entirely different case.
CRENNAN J: Yes. Well, the point is made that what Zecevic stands for is that it is most important in all of these cases to put the self‑defence within its factual matrix, if you like.
MR PAPPAS: Yes.
CRENNAN J: So that distinction made in paragraph 23 turns on those sorts of considerations.
MR PAPPAS: Except for this, your Honour. Paragraph 23 starts in the middle of what is on anyone’s view of the facts of this matter the agreed factual continuum. That is, these two women did not just suddenly set to fighting outside a take‑away shop on a Friday evening. There was a ‑ ‑ ‑
CRENNAN J: There was CCTV footage, was there not?
MR PAPPAS: There was CCTV and there were a lot of eye witnesses to the events of the evening. But what is not contentious – at least said not to be contentious – are facts 1 to 6 – sorry, of paragraphs 2 to 6 of the applicant’s summary. Your Honours will find that at page 95 of the application book. Point 5 being:
The applicant removed herself from the store and initially the deceased remained in the store.
Then:
There was evidence capable of satisfying a jury that the applicant taunted the deceased from her position outside the store.
The remainder of the factual allegations are apparently contentious. But when you go to the respondent’s written outline, it is hard to see in what real respect they are contentious because what happened was eventually there was a physical altercation between these two women outside the store. Eventually, there was a breaking‑up of that physical altercation. I know there is at least some controversy about the length of time that interposed, as it were, between the two parts of the dispute. But the point is paragraph 23 of the respondent’s outline starts in the middle of the narrative. It simply assumes that there was suddenly and without any precursor a physical altercation between the two women.
What was happening, of course, was that the applicant before you took herself away from the deceased woman – took herself outside the store – and on one version of the evidence, taunted her from outside the store. When you look at the direction which his Honour gave the jury – and your Honours will find that at page 17 of the application book – at line 20:
If Ms Massey started the fight with the deceased or willingly engaged in it –
and can I just pause there to say that mixes the two concepts, with respect, and imports the concept from Nguyen:
she cannot claim to defend herself in a counterattack unless her original aggression had ended at the time of the counterattack.
Going down a little bit further:
And the issue for you therefore is whether Ms Massey had ended her aggression at the time that she stabbed Ms Booshand. If the prosecution has proved beyond reasonable doubt that her aggressive behaviour had not ended at the relevant time, then you must find that she did not act in self‑defence.
Pausing there, that highlights exactly the risk which the Supreme Court in Victoria identified in Anandan, that is, that a jury might regard the aggressive behaviour as the words – the taunting words, if you like, from outside the shop which ultimately led to the physical altercation.
CRENNAN J: There was a redirection in relation to this aspect of his Honour’s direction which I think is at the bottom of page 57 of the application book.
MR PAPPAS: There was and it added ‑ ‑ ‑
CRENNAN J: But you may wish to point out ‑ ‑ ‑
MR PAPPAS: Page 30, your Honour. Where his Honour says at about line 29:
I also spoke about the issue of aggression in the context of self‑defence and in particular pointed out that a person who was an aggressor would not have available to them self‑defence. Of course, the issue of who was the aggressor in this matter is a matter very much for you to determine –
et cetera. But we would say that that redirection simply compounded the problem because the jury were then told in simplistic terms if they regarded Ms Massey as the aggressor, and pausing there, they might well have thought the taunting from outside the shop was an aggressive act, then she was not entitled to rely on self‑defence, and that is most certainly not what Zecevic says. Zecevic says in that passage which is often referred to and commences with the words:
one situation which requires particular mention –
is this:
Where an accused person raising a plea of self‑defence was the original aggressor and induced or provoked the assault against which he claims the right to defence himself, it will be for the jury to consider whether the original aggression had ceased –
and I pause there to note the word “ceased” –
so as to have enabled the accused to form a belief, upon reasonable grounds, that his actions were necessary in self‑defence. For this purpose, it will be relevant to consider the extent to which the accused declined further conflict and quit the use of force or retreated from it, these are matters which may bear upon the nature of the occasion and the use which the accused made of it.
So that we say that the common law is simply not that an original aggressor cannot call in aid a plea of self‑defence. It is a matter for the jury in all cases to determine to what extent the original aggressor declined further conflict, quit the use of force or retreated from it, and those are matters which bear upon the nature of the occasion. To make good the circle, as it were, when the Supreme Court of the Australian Capital Territory said, well, his Honour Justice Nettle is wrong, original aggression can be simply words or conduct which inflame the circumstances, the corollary of that is that the retreat necessary before a reasonable belief might be formed may be consequentially not very large.
CRENNAN J: Was that really necessary to their decision, that observation about Justice Nettle, whether he was right or wrong? It is an observation which occurs before the court does come down to its consideration and its consideration seems to be based on considering the directions in the factual setting that was presented.
MR PAPPAS: I must say, your Honour, I had always taken it to be essential to their fact finding. I would not have imagined the Court of Appeal would lightly describe a judicial brethren as simply wrong in such an important matter unless they considered it integral to their reasoning process, but I had not stopped to consider whether it was simply, as it were, a throwaway line, I took the Court to be saying that “original aggression” as described, or as that term appears in Zecevic, could well be something far less than physical violence, and in those circumstances it means that the jury question becomes far more finely balanced, because if that be right it may be that someone does not need to do very much in order to retreat from that original aggression sufficiently far in order to form a view based on reasonable grounds that it is necessary to act in self‑defence.
So, your Honours, I really do not want to say more than that. In my submission, when you look at Anandan and you look at this case, they are very near in terms of factual substratum and the direction which was impugned. The one difference here, which was not in Anandan, is the possibility, if you like, on the evidence or the probability on another version that there was a break in the physical altercation between the two women. There certainly was not that break in Anandan. There was simply a passage of escalating aggression, if you like, on the part of the appellant in that case.
CRENNAN J: There were a lot of witnesses here, were there not?
MR PAPPAS: Yes, there were I think something in the order of 100 all up, your Honour.
CRENNAN J: In a sense there were two possible scenarios: a break or not break.
MR PAPPAS: That is right, but even without the break, your Honour, the Anandan situation is analogous because there there were the taking of chairs, as I have said, the uttering of harsh words and a steady escalation of violent behaviour, if I can use that expression broadly, on the part of the appellant and still the court identified a miscarriage of justice because of the possibility in the end that the jury might not have appreciated that, even
though the appellant in that case had been an original aggressor, it was still open to him to call in aid a plea of self‑defence, and that is exactly the point that we make here in relation to this woman. The only issue that really was a live issue at the end of this trial was self‑defence.
GAGELER J: Did the Court of Appeal have the CCTV footage?
MR PAPPAS: I do not recall, I am sorry, your Honour. That is a failing in my memory. I know the CCTV footage did not have sound. I know there is – and it is simply an awkward expression in the Court of Appeal’s judgment. It seems to imply that one can tell from the CCTV footage that there were taunts. That is not so. It was silent footage and the evidence about taunts came from various witnesses. I am sorry I cannot answer you better than that, your Honour.
CRENNAN J: Yes, thank you, Mr Pappas. Yes.
MR DHANJI: Thank you, your Honour. Just in relation to that last point, certainly the Court of Appeal made reference to the closed circuit television footage. That is at page 82 of the application book where their Honours at paragraph 98 refer to:
The CCTV footage in evidence at the trial, and the evidence of a large body of witnesses, placed the appellant outside the chicken shop when she began yelling –
and described the matter in that way. Your Honours, the respondent submits that this matter raises no question of general importance. In the respondent’s submission, the directions given to the jury were entirely orthodox in the sense that they were consistent with what this Court – or at least what their Honours Justices Wilson, Dawson and Toohey said with respect to the issue of this idea of initial aggressor in this Court’s decision in Zecevic.
Critical to that aspect of the matter is that what their Honours were talking about and what their Honours made plain was that this notion or this idea is something that their Honours were discussing because it is a situation that commonly arises with respect to the facts. What their Honours made clear was that they were not grafting on some form of addition to the rule, but rather giving an explanation as to how one approaches those facts and that approach was a matter, and is a matter, that sits really subsidiary to the rule that is laid down.
CRENNAN J: On the previous page.
MR DHANJI: That is right.
CRENNAN J: On one view their Honours may have been referring to an example, for example, this is how it works.
MR DHANJI: That is right. So, in the context of a situation where one has two people engaged in a fight, or one person starting a fight and then needing to defend themselves, well, how does one go about applying the test in that situation, and ultimately it comes down to really a matter that is not much more than common sense, and it is what the jury were told in this case. That is, if a person continues to act as an aggressor, then quite clearly they have not shifted from the position of being the initial aggressor to someone who is defending themselves, and I will come to the particular directions in a moment, but ultimately in the respondent’s submission it is not much more than that.
GAGELER J: Well, is the statement in the first sentence of paragraph 97 of the Court of Appeal’s judgment necessary for its conclusion?
MR DHANJI: No, your Honours.
GAGELER J: Why not?
MR DHANJI: Because ultimately – and this comes back to the key point that ultimately one is talking about how one applies or the application of the law to particular facts. What really happened in Anandan was that that court, after reviewing the factual matrix and the directions that were given, were concerned that the jury may have been left with a particular impression, that is, that if a person was an initial aggressor then that person was disentitled from relying on self‑defence. The Court of Appeal in this matter undertook the same process but in the circumstances of this matter arrived at a different conclusion, that is application of the same principles of law, but arriving at a different conclusion in relation to what the jury would have made of this particular factual situation.
Insofar as his Honour Justice Nettle in Anandan went further. It was not necessary for the Court of Appeal in this matter to make any determination with respect to the rightness or wrongness of that particular passage, and indeed, a grant of special leave in this matter in the respondent’s submission would really be a grant of special leave to determine the correctness of what Justice Nettle said in Anandan, and clearly there is little utility in granting special leave in this matter to review what a single judge said in Anandan. But, in any event, the Court of Appeal in this case was entirely right to come to the conclusion that initial aggression did not have to involve the use of force.
Now, it is in a sense perhaps counterproductive to get into a debate about this and what precisely are the rules with respect to initial aggressor because ultimately all one is trying to do at the end of the day is to properly instruct the jury on the facts of the particular case. So even the idea of getting into this debate is a counterproductive exercise, but, having said that, if one goes back to Zecevic and what was said in Zecevic, it is, in the respondent’s submission, clear that the initial aggressor does not necessarily, at least in the sense that their Honours were talking about it, need to have actually used physical violence. What their Honours said – and if I can take your Honours to the applicant’s bundle at page 19 – your Honours will see in the paragraph beginning near the top of the page:
There is, however, one situation which requires particular mention.
And their Honours make plain, at that point, that it raises only evidentiary matters. Their Honours say:
It should, we think, be regarded as raising only evidentiary matters to be considered in arriving at an answer to the ultimate question –
I will pass over the next few lines. Their Honours then say, beginning in the left‑hand margin with the word “where”:
Where an accused person raising a plea of self‑defence was the original aggressor and induced or provoked the assault against which he claims the right to defend himself, it will be for the jury to consider whether the original aggression had ceased so as to have enabled the accused to form a belief, upon reasonable grounds, that his actions were necessary in self‑defence.
So your Honours will see that all that has been spoken ‑ ‑ ‑
CRENNAN J: The whole context of those remarks was that on the previous page their Honours had warned about approaching self‑defence in a way where matters of evidence were elevated to rules of law, so that is the context in which they said that.
MR DHANJI: That is exactly right, your Honour. That is why, ultimately, when one looks at this and heavy reliance is based on Anandan, all that comes out of the cases is that in Anandan, the Court of Appeal in Victoria formed a view as to an impression that the jury may be left with. In this case, the Court of Appeal formed a view that the jury could not have been left in any doubt as to the availability of self‑defence. To make it plain, it was never suggested either at trial, in my submission, or in the Court of Appeal, that self‑defence was not available as a matter to go to the jury.
Really, all that comes of the directions is that the jury were directed as to how to go about the particular factual situation they had. In particular, in a sense, these directions are aimed to assist a jury so that the jury does not jump to the wrong conclusion – that is, if somebody starts a fight, well, they get what they deserve, or they cannot rely on self‑defence just because they started the fight. That is the purpose of directing the jury with respect to these particular facts.
I have digressed from where I was going to take your Honours, and that is, really, to look at this matter and to focus in the way that the applicant does, does also, to an extent, overlook the context of the entire matter, itself. What your Honours perhaps already appreciate, is that these directions were given in the context of the particular factual matrix. But the directions overall, and the relevant directions, begin at page 6 of the application book.
What your Honours see at page 6 is that the jury was appropriately directed that before they even got to self‑defence, the prosecution had to satisfy the jury that it was a deliberate act of the deceased in stabbing the accused. Secondly, that the act was done with an intention to kill the deceased or with reckless indifference to the probability of causing death. That is later explained as actually foreseeing the likelihood of causing death and going ahead regardless.
The reason I take your Honours to that is that it is somewhat significant in this case is that the ACT at the time of this was almost effectively on its own, as I understand it, in not including an intention to occasion grievous bodily harm as being sufficient to amount to murder. So what that means is that before the jury have even come to self‑defence, the jury was satisfied beyond reasonable doubt that the applicant acted with an intention to kill or acted with reckless indifference to the probability of causing the death of the deceased.
Now, when one takes that aspect and then considers that on the facts of this case the jury had a deceased who suffered six stab wounds, with no suggestion that the deceased was armed at any stage, and an accused who had no more than what was described as a superficial abrasion by the Court of Appeal, it is immediately apparent that by the time the jury came to self‑defence, they were already satisfied of particular facts that were going to make it very, very difficult for the then appellant.
So those matters are relevant in the way described in Zecevic and this is at 662, it is page 18 of the applicant’s bundle, and their Honours there three lines down refer to “self‑defence” in the context of murder and their Honours say:
A killing which is done in self‑defence is done with justification or excuse and is not unlawful, though it is done with intent to kill or do grievous bodily harm. However, a person who kills with the intention of killing or of doing serious bodily harm –
and indeed, as I point out in this case, it is more –
can hardly believe on reasonable grounds that it is necessary to do so in order to defend himself unless he perceives a threat which calls for that response. A threat does not ordinarily call for that response unless it causes a reasonable apprehension on the part of that person of death or serious bodily harm.
So, in other words, when one comes to actually apply the defence in this case, one is looking to where is the threat to the applicant of death or serious bodily harm in the context of a fight with the deceased who was, as I say, unarmed and in the context of a fight in which, despite the fact that it had gone on, on any version, this had gone on for some time, and despite the length of time over which it had progressed, the applicant was described ultimately as having no more than a superficial abrasion.
So then, despite the clear difficulty in which the applicant necessarily found herself, the trial judge did ultimately go on to give full directions with respect to self‑defence. Your Honours will see those beginning ‑ ‑ ‑
CRENNAN J: Mr Pappas told us that there was no dispute between you about matters at least 2 to 6 in relation to the statement of the factual background and I think he pointed us to page 95 of the application book. What about point 11 on the next page?
MR DHANJI: It was no part of the prosecution case that self‑defence ought not to have been left, and self‑defence was left, so it does not go any further than that. That is, it was never suggested to the jury that self‑defence ‑ ‑ ‑
CRENNAN J: Self-defence was not available.
MR DHANJI: That is right. They simply had to ‑ ‑ ‑
CRENNAN J: And that was not raised in the Court of Appeal either?
MR DHANJI: That is right. So there we have at page 17 – to put it in context, self‑defence directions begin at 16 and there are full directions which make clear both the test and put it in a way that makes the onus abundantly clear to the jury. Then when one comes to 17, there is this further direction, but as I say, this is all in the context of it being made plain that this was an issue for the jury to determine. The impugned passage begins at line 20. It begins critically with the word “If”, so it is made plain that there is a matter there for the jury to determine, and that is:
If Ms Massey started the fight with the deceased or willingly engaged in it, she cannot claim to defend herself in a counterattack unless her original aggression had ended –
It goes on to say –
If she had ended her aggression, but was then required to defend herself against a new attack, the law allows her to raise self‑defence. And the issue for you therefore is whether Ms Massey had ended her aggression at the time that she stabbed Ms Booshand.
Now, the sense of that can be understood – first, as I have said, it is consistent with Zecevic. But secondly, the sense of it can be understood in that, well, what is the alternative? If she has not ended her aggression, she is in a fight, she is continuing to act aggressively – that is entirely inconsistent with the idea that she is in fact seeking to defend herself, and therefore doing what she then did based upon that honest belief on reasonable grounds. His Honour the trial judge then goes on to describe some of the evidence in relation to it. I will not take your Honours in detail through that other than perhaps to skip to line 40 at page 17, the reference to the applicant being asked:
“Right and then what happened?” She said something indistinct and “fight”. She was asked, “Sorry?” and she said “There was a fight.” She was asked, “Now what does that mean?” She said, “Punches thrown, a struggle, hair pulled.” She was asked, “All right, now when you say punches thrown, did you throw punches?” She said, “Possibly, yes. More probably than possibly, yes I did.”
It goes on to describe the incident between the two. So on any view, there is a struggle between the two. Over the page on page 18, line 10:
Her answer was, “The main thing I remember is her pulling my hair.”
She was asked, “All right, now the next thing? Well is the next thing that you got the knife out?” Her answer was yes.
So that obviously enough feeds into what I was indicating to your Honours earlier in terms of the context in which the knife is produced. But critically, having gone through those aspects, when one goes to line 29, your Honours will see this:
Now those are the circumstances from Ms Massey’s evidence from her point of view as to what took place. The fact –
His Honour is clearly enough talking about facts, and it has been made plain to the jury that the facts are for them –
that Ms Massey was in a willing fight with Ms Booshand is one of the factors for you to consider when determining whether she believed her act in stabbing Ms Booshand was necessary. You can also take it into account in deciding whether Ms Massey’s belief was based on reasonable grounds in the circumstances of the violent struggle –
So, in other words, what his Honour has done is spent a good deal of time – I am back on page 16 and 17 – explaining the test, that is the legal test, gone to the factual issue that arises in terms of whether there is a person who is engaged in a fight or is an aggressor, and then having gone through those matters comes back and makes it abundantly clear at line 29 that the discussion that has taken place above is simply in the context of it being a factor to be considered by the jury in applying the test, and that is where we come back to the idea that all that is happening here is the jury were properly instructed, consistently with Zecevic, as to the proper test to be applied.
What ultimately in the respondent’s submission becomes significant is that in a case like Anandan there was a particular and perhaps unusual factual matrix and that is made clear – and this is in Anandan at page 47 of the applicant’s bundle – it is in paragraph 8 of his Honour Justice Nettle’s reasons. What his Honour says there is:
At trial, Paterson –
that is the complainant in Anandan –
accepted that he lost his temper, charged the appellant and barrelled into him and tried to hit him. He accepted, too, that he intended to attack the appellant.
So that is the attack made on the accused, or the appellant, in Anandan. What becomes apparent in the facts of Anandan is that whilst there had been this argument, a bit of to‑and‑fro, a bit of throwing of food, the real
escalation – and I see the light is on – the real escalation occurs when there is this barrelling at the accused. That is very different to this factual situation.
CRENNAN J: That is after the chair has been raised.
MR DHANJI: That is right. Chairs have been moved. There has been some food thrown. Then we have the victim losing his temper, charging at the appellant, barrelling into him. So in that context it was obviously enough important that the jury understood or not be confused by the idea of initial aggression simply by moving the chairs. That is not this case. Thank you, your Honours.
CRENNAN J: Yes, Mr Pappas.
MR PAPPAS: Thank you, your Honours. My friend makes the proper concession that this is a matter which commonly arises, that is this question of original aggression in various factual circumstances. It is apparent that the ACT Court of Appeal at paragraphs 101 and 103 of the judgment - I will just turn up the relevant page of the application book.
CRENNAN J: Page 83 and then continuing on.
MR PAPPAS: Pages 83 and 84 of the book - were concerned to, as it were, explain and justify his Honour’s charge to the jury in terms of the “aggressive behaviour” of the appellant having “ceased”. That word appears clearly at 101 and it appears twice in 103 in this context:
His Honour correctly directed the jury to consider whether the appellant’s original aggression had ceased at the time she stabbed the deceased so as to enable her to form the belief –
et cetera, I will not read the rest of it –
The factual question was whether that aggression by the appellant (and willing participation in a fight is also aggression) had ceased before she decided to stab the deceased.
The simple answer is, we say, that does not accord with Zecevic and it does not accord with the common law. It is not necessary for aggressive behaviour whatever form it might take, other than perhaps in the limited case of a willing participant in a fight of the sort described in R v Nguyen, it is not necessary for that aggression to cease. It is sufficient if it has abated or if the participant has moved away from, if you like, putting it in neutral terms, an aggressive stance sufficient to allow him or her to form the necessary belief on reasonable grounds. That is clearly what the plurality
says in Zecevic and it is clearly not what the trial judge directed the jury, and your Honours will see that at appeal book page 17 at line 28:
And the issue for you therefore is whether Ms Massey had ended her aggression at the time that she stabbed Ms Booshand. If the prosecution has proved beyond reasonable doubt that her aggressive behaviour had not ended at the relevant time, then you must find that she did not act in self‑defence.
It is the duality or the plurality of aggressive behaviour, whatever that might mean, with the concept that it has to end before someone can raise a plea of self‑defence that resulted in the misdirection which the ACT Supreme Court of Appeal simply did not address, in my respectful submission.
CRENNAN J: We are not persuaded that there are sufficient reasons to doubt the correctness of the conclusions reached by the Court of Appeal of the Supreme Court of the Australian Capital Territory such as to warrant a grant of special leave to appeal. Further, given the facts of this case and the evidence, we are not persuaded that there is a relevant conflict between the decision of the Court of Appeal and Anandan v The Queen [2011] VSCA 413 such as might raise a question of public importance warranting a grant of special leave to appeal. Accordingly, special leave to appeal is refused.
Adjourn the Court to 10.15, Tuesday, 29 October.
AT 2.28 PM THE MATTER WAS CONCLUDED