Minniti v The Queen
[2001] WASCA 148
•7 MAY 2001
MINNITI -v- THE QUEEN [2001] WASCA 148
| SUPREME COURT OF WESTERN AUSTRALIA | Citation No: | [2001] WASCA 148 | |
| COURT OF CRIMINAL APPEAL | |||
| Case No: | CCA:265/2000 | 2 APRIL 2001 | |
| Coram: | MALCOLM CJ WALLWORK J MURRAY J | 7/05/01 | |
| 18 | Judgment Part: | 1 of 1 | |
| Result: | Appeal allowed Conviction quashed Retrial ordered | ||
| PDF Version |
| Parties: | ANTONIO MINNITI THE QUEEN |
Catchwords: | Criminal law and procedure Grievous bodily harm caused Self-defence Criteria for application of second paragraph of Criminal Code (WA), s 248 No criterion that force used reasonably necessary for effective defence |
Legislation: | Criminal Code (WA), s 248 |
Case References: | Gray v The Queen (1998) 98 A Crim R 589 Marwey v The Queen (1977) 138 CLR 630 R v Muratovic [1967] Qd R 15 Robinson v The Queen (1991) 180 CLR 531 Bojovic v The Queen (1999) 113 A Crim R 1 Dinsdale v The Queen (2000) 175 ALR 315 Griffiths v The Queen (1977) 137 CLR 29 House v R (1936) 55 CLR 499 Melbourne v R (1999) 198 CLR 1 Mraz v The Queen (1955) 93 CLR 493 Niciforo v The Queen [2000] WASCA 318 R v Allwood [1997] QCA 57 Van den Hoek v The Queen (1986) 161 CLR 158 Wilde v The Queen (1988) 164 CLR 365 |
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA TITLE OF COURT : COURT OF CRIMINAL APPEAL CITATION : MINNITI -v- THE QUEEN [2001] WASCA 148 CORAM : MALCOLM CJ
- WALLWORK J
MURRAY J
- CCA 266 of 2000
- Applicant
AND
THE QUEEN
Respondent
Catchwords:
Criminal law and procedure - Grievous bodily harm caused - Self-defence - Criteria for application of second paragraph of Criminal Code (WA), s 248 - No criterion that force used reasonably necessary for effective defence
Legislation:
Criminal Code (WA), s 248
Result:
Appeal allowed
(Page 2)
Conviction quashed
Retrial ordered
Representation:
Counsel:
Applicant : Mr M T Trowell QC & Mr L M Levy
Respondent : Mr R E Cock QC
Solicitors:
Applicant : Laurie Levy
Respondent : State Director of Public Prosecutions
Case(s) referred to in judgment(s):
Gray v The Queen (1998) 98 A Crim R 589
Marwey v The Queen (1977) 138 CLR 630
R v Muratovic [1967] Qd R 15
Robinson v The Queen (1991) 180 CLR 531
Case(s) also cited:
Bojovic v The Queen (1999) 113 A Crim R 1
Dinsdale v The Queen (2000) 175 ALR 315
Griffiths v The Queen (1977) 137 CLR 29
House v R (1936) 55 CLR 499
Melbourne v R (1999) 198 CLR 1
Mraz v The Queen (1955) 93 CLR 493
Niciforo v The Queen [2000] WASCA 318
R v Allwood [1997] QCA 57
Van den Hoek v The Queen (1986) 161 CLR 158
Wilde v The Queen (1988) 164 CLR 365
(Page 3)
1 MALCOLM CJ: In my opinion, this appeal against conviction should be allowed, the conviction quashed and a new trial ordered. I have reached that conclusion for the reasons to be published by Murray J with which I am in entire agreement.
2 WALLWORK J: On the 24 November 2000, the applicant was convicted after a trial in the District Court at Perth of unlawfully doing grievous bodily harm to Mr Chin. He was ordered to serve a term of 3 years' imprisonment. He now applies for leave to appeal against both the conviction and sentence.
3 The applicant had punched Mr Chin in the face causing him very serious facial fractures amounting to grievous bodily harm. He said that he had done this because during a business discussion in Mr Chin's office and when the matter had been "getting out of hand", he had "a vision on the side of me that a hand was coming across, felt a prick on the shoulder and my right arm went up and hit Bruce". The applicant said in evidence that because he had feared for his safety due to his previous neck surgery, when he saw Mr Chin's hand coming across and felt a prick on his shoulder, he had hit Mr Chin.
4 When asked to explain to the jury why he had reacted in the way which he did, the applicant said, "Just my neck – my neck is a very, very sensitive thing and I just look after everything I do, to try to avoid going through the same pain as I did. I went through a lot in the past three years with the neck. From 1995 to 1998 I went through a hell of a lot through my neck, so I didn't want to go through it again."
5 An orthopaedic and spinal disorder surgeon said in evidence at the trial that the applicant had previously sustained a fracture in the upper part of his neck. That had resulted in his neck being unstable and had meant that it moved more than it should in the upper part of the neck. That had placed the applicant at risk. The surgeon said: "…which puts him at risk, if he has a fall, of death because if the C1 – C2 level where his injury was, if you damage the spinal cord there, it's like the Christopher Reeve injury, where you need to be on a ventilator, but if you fall over and injure your neck, unlike Christopher Reeve, who had ambulance people there because this was a competitive riding accident that he had, you die, because you can't breathe, and the only survivors from those type of injuries, if they damage their spinal cord, which in Mr Minniti's case he didn't at the time of his original injury, but there was the potential for that to occur, then with a simple fall the result is death because you can't breathe."
(Page 4)
6 The applicant's injury had resulted from a car accident in 1996. The surgeon said that an X-Ray about four months after the accident had found the unstable fracture. There had been a serious episode in hospital where the applicant had had some difficulty in breathing and had had to be revived. The surgeon said that there had been a difficult situation: "…these particular injuries, because if you operate, the patient can die as a result of, not any surgical misendeavour, but just – we are passing a number of wires under the lamina very close to the spinal cord and you can trigger a stroke. He was made very well aware of this I think on at least three or four occasions. … We went through this, but if you don't operate and don't stabilise him, if he falls over he can die."
7 The surgeon said that the operation had been performed and a series of wires had been passed under the applicant's lamina between the spinal cord and the lamina; a bone graft had then been applied. Bone had been taken from the back of the applicant's head and placed over the two lamina. The applicant's situation after the accident and on the Wednesday before the trial had been very significantly restricted. He said: "…certainly you wouldn't allow him to go back to any form of contact sport or put himself in a situation where he might have a horse fall, or come down a mountain, ski mountain. In a situation like that, he's been advised about avoiding those sorts of things because of the potential problems. Although we've fixed one problem we've also created a problem."
8 When shown the mark which the applicant said had been caused by a biro wielded by Mr Chin, the surgeon said, "I think any part of the upper torso he would be sensitive about …" The surgeon said that it was fair to say that the applicant had had a vulnerability to injury to the upper torso more than the normal person.
9 The applicant had said in evidence that he had struck Mr Chin, "…to try to avoid going through the same pain as I did…It was just a reaction. I just saw him going towards me and I just – just instinct. I didn't even mean to do it. It shouldn't have happened. It shouldn't even have gone that far."
10 In cross-examination the applicant said that he was saying that Mr Chin had attacked him with a plastic biro and had managed to connect with him and nick his skin. When asked how hard he had punched Mr Chin, the applicant said, "It wasn't a thoughtful punch. It just happened. I didn't time the punch. I didn't see what strength I was using. It was just a hand; just went for him."
(Page 5)
11 The applicant was asked: "Can you explain to the jury why it is you reacted in the way that you did?" He said, "Just my neck – my neck is a very, very, sensitive thing and I just look after everything I do, to try to avoid going through the same pain as I did. I went through a lot in the past three years with the neck. From 1995 to 1998 I went through a hell of a lot through my neck, so I don't want to go through it again."
12 The learned trial Judge was of the view that the second paragraph of s 248 of the Criminal Code(WA) was the relevant part of the section to be considered by the jury in this case given the serious injuries which had been suffered by Mr Chin. Ground 2 of the amended grounds of appeal is that the learned Judge did not direct correctly concerning the second paragraph of s 248.
13 The applicant also contended that the circumstances "really beg to be dealt with under the first limb as well because one would think a single blow, albeit it to a person's face, would be unlikely to cause the significant injuries that were caused to the complainant."
14 The first ground of appeal which was argued for the applicant was that the learned sentencing Judge had erred in law in failing to correctly direct the jury concerning the second part of s 248 of the Criminal Code. That part provides for self-defence where the nature of an unprovoked assault is such as to cause reasonable apprehension of death or grievous bodily harm in the person assaulted. The person assaulted may use force by way of defence if he or she believes on reasonable grounds that he or she cannot otherwise preserve himself or herself from grievous bodily harm. In such a case it is lawful for the victim of the assault "to use any such force to the assailant as is necessary for defence, even though such force may cause death or grievous bodily harm."
15 In Gray v The Queen (1998) 98 A Crim R 589 McPherson JA discussed the requirements of the same section in Queensland. At p 593 his Honour said:
"The defendant must believe that what he is doing is the only way he can save himself or someone else from the assault. He must hold that belief 'on reasonable grounds'; but it is the existence of an actual belief to that effect that is the critical or decisive factor. There is no additional requirement that the force used to save himself or someone else must also be objectively speaking 'necessary' for the defence."
(Page 6)
16 His Honour had come to that view partly because of the reasons for judgment of Gibbs J, as he then was, with whom Lucas J agreed, in R v Muratovic [1967] Qd R 15. At p 19 Gibbs J said, amongst other things:
"In other words, if the jury consider that the nature of the assault was such as to cause reasonable apprehension of death or grievous bodily harm, and that the accused believed 'on reasonable grounds', that he could not otherwise preserve the person defended from death or grievous bodily harm, or if they are left in doubt on those matters, the issue must be decided in favour of the accused and the verdict of acquittal must be entered…"
17 In Gray, McPherson JA said that that statement of the law had been adopted and approved by Barwick CJ in Marwey v The Queen (1977) 138 CLR 630 at 636 – 637 where Barwick CJ said:
"Further, what the second paragraph of s 271 calls for is the actual belief by the accused on reasonable grounds of the necessity of the fatal act for his own preservation. That paragraph, it seems to me, when the occasion is appropriate, makes the belief of the accused the definitive circumstance. As that belief must be based on reasonable grounds, there is no point in repeating the word 'reasonably' before the word 'necessary'. … What the second paragraph requires is that the accused believes on reasonable grounds when he does the fatal act, that it must be done if he is to survive the assault made upon him. The element of reasonableness is supplied by the need for the belief to be founded on reasonable grounds. If there are such reasonable grounds – a matter for the determination of the jury – the self-defence will itself have been reasonable."
18 In Gray (supra), McPherson JA said at 594:
"There is, as shown by the passage in his Honour's reasons from which that excerpt is taken, no separate or independent requirement in s 271(2) that the killing or grievous bodily harm done by the accused should have been 'necessary' for defence when tested by objective standards. … It is of course essential in that context that there be reasonable grounds for that belief; but that is not the same as saying that doing the act that causes death or grievous bodily harm must be objectively necessary."
(Page 7)
19 At 595 McPherson JA said:
"…but it is nevertheless essential that the jury be directed in conformity with the requirements of the provision as it has been authoritatively interpreted by the High Court in Marwey. In the present case there is, at the very least, a serious question whether throughout the summing up his Honour did consistently direct the jury in those terms; or, what is perhaps more important, whether the impact of the decision in Marwey was brought home to them in sufficiently clear terms to ensure that they fully appreciated that it was the appellant's actual state of belief, based on reasonable grounds, that was critical. On a question so fundamental to the proof of guilt, the fact that no specific redirection was sought by counsel at the trial cannot be regarded as decisive against the appellant or against his appeal in this case. It follows that the convictions must be set aside and a new trial ordered."
20 In this case the appellant argues that the learned trial Judge did not direct in accord with the abovementioned authorities.
21 The learned trial Judge when directing on this question said amongst other things:
"You appreciate that when a person is unlawfully assaulted or apprehends that he is being unlawfully assaulted, he is entitled to use such force as is reasonably necessary to make an effectual defence against the assault."
22 The learned Judge went on to say:
"When you consider self-defence, remember it is concerned with the accused defending himself against Mr Chin and it is a matter of degree. It is only lawful to use such force as is reasonably necessary."
23 Those directions are not in accord with the abovementioned authorities.
24 The learned Judge also said:
"It is only the degree of force necessary in the circumstances to make an effectual defence against the assault on yourself, or the apprehended assault on yourself. … and you can appreciate that,
(Page 8)
- because it is lawful to defend yourself, but using excess force, force that is not necessary, is unlawful. … Self-defence is concerned with the lawful use of such force as is reasonably necessary to make effectual defence against the assault on you."
25 Having explained to the jury that they were entitled to take account of any special vulnerability which the applicant may have had as a result of the fusion in his neck which had been done by a surgeon, and with the necessity for the accused to believe on reasonable grounds that he could not otherwise preserve himself from grievous bodily harm than by punching Mr Chin, the learned Judge correctly said, "Did the accused believe on reasonable grounds that he could not otherwise preserve himself from grievous bodily harm than by punching Mr Chin?"
26 However, the learned trial Judge a little later said:
"The third condition, ladies and gentlemen, is in the last lines. This is the third condition for the lawful use of force causing grievous bodily harm. If the other two conditions are met, it is lawful for the accused to use such force as is necessary for defence. This requires you to make a judgment about the degree of force used by the accused and whether that degree of force was necessary for the accused's defence against Mr Chin."
27 In my view the directions of the learned Judge which are set out above, did not comply with the reasons of McPherson JA in Gray or the earlier reasons of Justice Gibbs and Barwick CJ which his Honour referred to in Gray.
28 In this case the learned Judge went on to say:
"The Crown submits that the degree of force was excessive, well in excess of the force necessary to defend himself. The Crown submits that to hit Mr Chin so hard as to fracture the orbit bones around his eyes and fracture his nose bone was excessive force and was not lawful."
29 In Marwey Barwick J, as stated above, said:
"What the second paragraph requires is that the accused believes on reasonable grounds when he does the fatal act that it must be done if he is to survive the assault upon him. The element of reasonableness is supplied by the need for the belief to be founded on reasonable grounds. If there are such
(Page 9)
- reasonable grounds – a matter for the determination of the jury – the self-defence would itself have been reasonable."
30 It follows, said Justice McPherson in Gray, that there is no separate or independent requirement that the killing or grievous bodily harm done by the accused should have been "necessary" for defence when attested by objective standards. His Honour said there must be reasonable grounds for the accused believing when he does the act, that it must be done if he is to survive the assault upon him: "But that is not the same as saying that doing the act that causes the death or grievous bodily harm must be objectively necessary."
31 Finally, in this case the learned Judge, when discussing what the Crown had to prove to negative self-defence said:
"Or, the third one, if the Crown satisfies you that hitting Mr Chin this hard involved the use of more force than was necessary in defending himself against Mr Chin, then the grievous bodily harm would be unlawful."
32 In my view, the learned trial Judge in this case did not direct in accord with the decided cases and ground 2 of the amended grounds of appeal "that the learned sentencing Judge erred in law in failing to correctly direct the jury in respect to the second limb of s 248 of the Criminal Code" has been established. The appeal should be allowed and the conviction set aside.
33 In the circumstances in my view it is not necessary to deal with ground 1 of the ground of appeal which is that the learned trial Judge failed to direct the jury with respect to the first paragraph of s 248 of the Criminal Code. Neither is it necessary to deal with the application for leave to appeal against sentence.
34 MURRAY J: At the trial in the District Court before a Judge and jury of the indictment charging the applicant that on 29 April 1999 at Singleton he unlawfully did grievous bodily harm to a Mr Chin, the Court was presented with clearly defined and limited issues.
35 Upon the undisputed medical evidence, Mr Chin suffered severe facial injuries. They were depressed fractures of the frontal bones of the skull which somewhat repositioned his eye sockets and eyes. The injuries required hospitalisation and surgical repair. He was in hospital for nearly two weeks. In the result, he appears to have made a substantial recovery, but he might have lost his sense of smell permanently and there was a
(Page 10)
- danger of infection of the brain as a result of exposure of that organ through the sinuses.
36 There was no dispute that the applicant caused the injuries by a blow delivered to the front of Mr Chin's face with his fist. It must have been a blow of very considerable force. The issue presented to the jury by the defence was sought to be opened by defence counsel after the opening address of the Crown Prosecutor in these terms, as the submission was made to the trial Judge in the absence of the jury:
"It will be short and, your Honour, the issue has been traversed by my learned friend as to self-defence, and this case will focus down into that defence, and this case will be concerned with the vulnerability and the reasonable apprehension - and your Honour will appreciate that the latter phrase is significant for a direction as to self-defence - and the jury will not know the vulnerability of this man which is founded in a car accident back in 1995, and he has in 1996 had a spinal fusion of C1-C2."
37 Ultimately when, at the commencement of the defence case, counsel was permitted to open, he did not make express reference to self-defence but he opened the facts to which he had previously adverted and which, as Wallwork J has detailed in his judgment, the applicant gave in evidence before the jury. I mention counsel's submission to the trial Judge because it expressly relates to the second limb of the Criminal Code (WA), s 248 with respect to self-defence and the focus was placed upon the issue in those terms from the very outset of the trial.
38 Of course, as has been also made clear, the Crown case did not accept the factual foundation which the defence sought to lay to raise the issue of self-defence. The Crown relied upon the evidence of Mr Chin. In essence it was that the meeting arranged in his office at Singleton was concerned with a lease agreement which the applicant currently had for a hairdressing salon in the property managed by Mr Chin and a new agreement which the applicant apparently hoped to persuade Mr Chin to get his principals to enter into; an agreement seen by the applicant to be upon more favourable terms than those presently applying.
39 On the day in question, when the applicant came to the meeting with Mr Chin, he was not, as Mr Chin expected, alone, but had with him his father and his brother Sam. His father conducted their side of the discussion. He demanded Mr Chin's agreement to their proposal and became increasingly aggressive, shouting, swearing and threatening Mr Chin. The two boys had said nothing.
(Page 11)
40 Without warning he received a very severe blow to his face causing the injuries to which I have referred. He knew his assailant must have been the applicant because he was the only one of the three members of the Minniti family that Mr Chin could not see at the time and neither of the other two men struck him. He had at the time been seated at his desk. He did not, he said, strike the applicant with his hand or with any object. Very shortly after the blow was struck, while he remained seated at his desk, the three members of the Minniti family left his office.
41 The applicant gave evidence in his own defence. His sworn evidence corresponded with what he had said to the police when he voluntarily participated in a video-recorded interview. He agreed that the conversation had become heated. He said there was aggression on both sides, by his father and Mr Chin. He did not participate in the discussion until, seeing that it was futile to continue it, he spoke to his father and suggested that no purpose would be served by continuing the debate and they should return to the hairdressing salon and remove the fittings. He then said that out of the corner of his eye he glimpsed a hand coming across towards him. He felt a prick on his shoulder.
42 Instinctively, he immediately lashed out with his right arm, striking Mr Chin a blow to his face. His evidence explaining why he reacted in that way has been referred to by Wallwork J. In essence it was, he says, because, having suffered the fracture of his neck in a motor vehicle accident and having required lengthy and painful procedures to stabilise the fracture, he nonetheless remained in danger if there should be a subsequent traumatic event which might affect the neck and so he was particularly sensitive to any threat to that area of his body.
43 His treating specialist, a Mr Hardcastle, explained the concerns in more detail and, as the case was fought below, there would seem to have been no contest on the evidence that, in the result, the operation of fusion of the neck vertebrae was successful but that there remained an increased risk of traumatic injury. However, although it had initially been the case, in the three years or so since the operation had been successfully performed, it would not be the case that there was a significant danger greater than would normally present to any individual that injury to the neck might interfere with breathing and even cause death. However, the evidence of the applicant of his fear of serious harm as a result of an injury being sustained to the neck was also uncontested before the jury as a reasonable consequence of the receipt of the serious injury which he did sustain in 1995.
(Page 12)
44 The applicant's evidence as to the events in Mr Chin's office was supported by evidence given by his father and there was also evidence given as part of the defence case by a Dr Cunningham who was consulted by the applicant on 29 April 1999 and whose records revealed that Dr Cunningham's attention had been directed to a superficial laceration of the surface skin on the left shoulder of the applicant. The doctor had no recollection of any bleeding and he simply applied an elastic dressing "to aid in more rapid and better healing". It was against that background of the evidence that the trial Judge came to direct the jury about the issue of self-defence.
45 Her Honour commenced by giving the jury a sheet of paper upon which was set out what her Honour described as the definition of self-defence. At the hearing before this Court the document could not be located but it appears to have been no more than a document setting out the Code, s 248, which is in the following terms:
"248. Self-defence against unprovoked assault
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.
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 the person defended from death or grievous bodily harm, it is lawful for him to use any such force to the assailant as is necessary for defence, even though such force may cause death or grievous bodily harm."
46 The appeal against conviction was argued on two grounds; firstly, that her Honour failed to direct the jury with respect to the first paragraph of s 248, and secondly, that she erred in her direction given to the jury in respect of the second paragraph of s 248.
47 In the first place, it is abundantly clear that her Honour did leave the jury to deal with the issue of self-defence under the first paragraph of s 248 which her Honour described as the fundamental definition of self-defence, but she immediately said that, "In this case you need to go to
(Page 13)
- the next paragraph, which sets down the rules that you need to apply when you are looking at force being used that has caused, you may find, grievous bodily harm." Her Honour then went on to read to the jury the second paragraph of the section. Her Honour's introductory observation was not entirely accurate, but in my opinion, having regard to the whole of the direction, would not have misled the jury, and in any event would have done no harm because this was a case where the doing of grievous bodily harm was effectively conceded and all the evidence was one way.
48 As to the first limb of s 248, it was left by the trial Judge, although in my opinion it need not have been. In the first place, there was the difficulty that the blow delivered by Mr Chin with the biro to the applicant's left shoulder (if that occurrence was not disproved beyond reasonable doubt) was of a very minor kind. Even on the applicant's own evidence, putting his case at its highest, the blow he struck was an instinctive retaliation. But in any event, there was nothing to suggest that any assault by Mr Chin was of such a kind as to make reasonably necessary for effectual defence against it the blow delivered by the applicant, which was of great severity and which, the applicant conceded in giving evidence, was such that he "would have had to hit Mr Chin as hard as [he] could". The applicant agreed with that proposition and also with the proposition that, having been attacked with a biro or pen, "you responded by shattering his face with a massive blow". Further, the force thus used by the applicant was clearly likely to cause and did in fact cause grievous bodily harm, as the jury found.
49 In my opinion, if the first limb of s 248 was to be left at all, the trial Judge could do no more than refer to it. The more her Honour said about it, the more abundantly clear it would become that it could not apply to this case. I would not uphold the appeal on ground 1.
50 Immediately after her Honour read the second paragraph of s 248, she referred to it in terms of the striking of a balance, pointing out that it applied if the nature of the unprovoked assault upon the accused was such as to cause reasonable apprehension of death or grievous bodily harm, in which case it would be lawful to use any such force to the assailant as was necessary for defence even though such force might cause death or grievous bodily harm.
51 Her Honour commenced a more detailed discussion of the question of self-defence by reminding the jury that there was a question whether Mr Chin assaulted the applicant at all. Her Honour correctly told the jury that, if the Crown established beyond reasonable doubt that that did not
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- occur, no question of self-defence would arise. It would only arise for their consideration if they were left in any reasonable doubt that Mr Chin assaulted the applicant.
52 Her Honour continued:
"You appreciate that when a person is lawfully assaulted or apprehends that he is being unlawfully assaulted, he is entitled to use such force as is reasonably necessary to make an effectual defence against the assault. When you consider self-defence, remember it is concerned with the accused defending himself against Mr Chin, and it is a matter of degree. It is only lawful to use such force as is reasonably necessary.
The law of self-defence is available in a range of circumstances. Even if someone is killed, even murdered, self-defence can be a defence, but the issue is always governed by a judgment as to what degree of force is necessary in the circumstances to make an effectual defence.
So, for example, ladies and gentlemen, if you had an argument with your neighbour and he or she pushed you in the shoulder, you would not be entitled to pull out a knife and stab that person, or take out a gun and shoot the person. It's only the degree of force necessary in the circumstances to make an effectual defence against the assault on yourself, or the apprehended assault on yourself. You don't have to wait until the person does it. If you apprehend that they are about to cause you grievous bodily harm, that's sufficient.
So it's that matter of balance and degree, ladies and gentlemen, where your judgment as 12 members of the community is so important in this case, and you can appreciate that, because it is lawful to defend yourself, but using excessive force, force that is not necessary, is unlawful.
You should also distinguish self-defence from mere retaliation. If someone pushes you, it is not lawful to lose your temper and beat that person up in retaliation for them pushing you. Self-defence is concerned with the lawful use of such force as is reasonably necessary to make effectual defence against the assault on you."
(Page 15)
53 The trial Judge said that if the jury were satisfied that the applicant did cause grievous bodily harm to Mr Chin, it would only be lawful to do so if the conditions in the second paragraph of s 248 were fulfilled. She then went through them one at a time and discussed the Crown and defence cases as she did so. Her Honour concluded that process by saying finally that, if the conditions of the section were otherwise met, "it is lawful for the accused to use such force as is necessary for defence. This requires you to make a judgment about the degree of force used by the accused and whether that degree of force was necessary for the accused's defence against Mr Chin." Having referred to the arguments of Crown and defence upon this issue, her Honour concluded her directions with further appropriate references to the onus and burden of proof and finally summed upon the cases of both parties.
54 Neither the prosecution nor the defence had any complaint about any aspect of her Honour's directions but, of course, if it should be the case that, despite that, the view taken on appeal is that there has been an error of law or fact or both which has fundamentally flawed the trial process or caused a miscarriage of justice, then, the proviso not being applicable, this Court will intervene and quash the conviction: Robinson v The Queen (1991) 180 CLR 531.
55 In my opinion, had the trial Judge contented herself with the way in which she commenced her directions about the second paragraph of s 248 together with the way in which she concluded those directions in the context of her discussion of the contentions of the parties with respect to the operation of this paragraph of the section, there could have been no complaint as is raised in ground 2. But at a number of points in her Honour's direction between these passages, her Honour said that it was only lawful under the section to use such force as was reasonably necessary to make an effectual defence against the assault which may have been committed upon the applicant. That clearly imported into the second paragraph of s 248 the concept of reasonable necessity to make effectual defence derived from the first paragraph of the section. In my view, that direction was in error as a matter of law.
56 The seminal decision is that of Gibbs J, then of the Supreme Court of Queensland, in R v Muratovic [1967] Qd R 15 at 18 - 19. His Honour there said of what was then the second paragraph and is now the second subsection of s 271 of the Queensland Criminal Code, a provision in identical terms to s 248, that all that was necessary to establish a defence under the second paragraph of the section was that the accused had an honest and reasonable belief that the nature of the unprovoked assault
(Page 16)
- upon him might cause him to be killed or suffer grievous bodily harm and he honestly and reasonably believed that he could not otherwise preserve himself than by the use of force against his attacker. In that event such use of force was lawful, although it in turn caused death or grievous bodily harm to the other person.
57 The correctness of this decision arose for consideration in Marwey v The Queen (1977) 138 CLR 630 where the decision of Gibbs J in Muratovic was approved. At 637 Barwick CJ, when referring to the use of the word "necessary" in the second paragraph, said that this meant simply "requisite" or "needful". His Honour said:
"What the second paragraph requires is that the accused believes on reasonable grounds when he does the fatal act (or, as in this case, the act which causes grievous bodily harm) that it must be done if he is to survive the assault made upon him. The element of reasonableness is supplied by the need for the belief to be founded on reasonable grounds. If there are such reasonable grounds - a matter for the determination of the jury - the self-defence will itself have been reasonable."
- That being the case, it may be said that the defensive force, if such it was, would itself be necessary. The same view was expressed by Stephen J at 640 - 641; Mason J at 642; and Jacobs J at 643.
58 The point arose again in the Court of Appeal of Queensland in Gray v The Queen (1998) 98 A Crim R 589. In following Marwey and Muratovic, McPherson JA, with whom Davies JA and Fryberg J agreed, said at 593 that:
"… there is plainly a difference between the mental condition predicated of a defender under s 271(1) and under s 271(2). In the case of s 271(1), the degree of force used must be 'reasonably necessary' to make 'effectual defence' against the assault. The criterion in that instance is objective and does not concern itself with the defender's actual state of mind. In the case of s 271(2), it is, at least in part, subjective. The defender must believe that what he is doing is the only way he can save himself or someone else from the assault. He must hold that belief 'on reasonable grounds'; but it is the existence of an actual belief to that effect that is the critical or decisive factor. There is no additional requirement that the force used to save himself or someone else must also be, objectively speaking, 'necessary' for the defence. If this has the effect of writing out of s 271(2),
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- by excluding from it, any requirement which at first sight appears to be imposed by the words 'necessary for defence' in that subsection, then it is a result that is dictated by authority which is binding on this Court."
- The same observation precisely may be made by this Court.
59 In the final analysis therefore, in my opinion, the second paragraph of s 248 requires three conditions for its operation:
(1) The accused must be the recipient of an unprovoked unlawful assault.
(2) The nature of that assault must be such as to cause the accused reasonable apprehension of death or grievous bodily harm judged objectively from his or her point of view in the circumstances known to him or her. In putting it in that way, it will be evident that I am introducing no qualification such as might arise in a case of lawful defence of another and no qualification concerned with the application of s 24 of the Code and the question of mistake.
(3) Nor do I introduce the latter qualification in stating the third requirement that the accused person again in fact believes, upon objectively reasonable grounds, that the person to be defended from the reasonably apprehended risk of death or grievous bodily harm cannot be so defended otherwise than by doing what the accused did so as to cause the death or grievous bodily harm which results to the initial attacker.
60 If those conditions are satisfied, the force used by the accused is lawful - is taken to be necessary for defence - if it is of course defensive force, and so in an appropriate case such as this, the jury might need to be directed about the difference between force used in retaliation for an assault and force used to defend against it, as they very properly were. That, I think, is the notion being conveyed by the phrase, "such force to the assailant as is necessary for defence". Lawful force will include any degree of defensive force, but no amount of force which is not for the purpose of defence.
61 In my opinion, to direct the jury as her Honour did in this case might have deprived the applicant of a chance of acquittal by the introduction of the additional requirement that whatever may have been the objectively reasonable belief in fact held by the applicant, there was an additional requirement if the force he used was to be lawful that the jury considered it to be in fact reasonably necessary for his defence.
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62 If that additional erroneous element in the direction is removed, it could not I think on the facts of this case be said that the jury must, properly directed, have convicted of grievous bodily harm as they did. The proviso that the appeal should be dismissed upon the ground that no substantial miscarriage of justice has actually occurred: Criminal Code, s 689(1), can have no application. The jury returned their verdict in this case by a majority of 10 as to 2 after a retirement of a little over three hours. I would quash the conviction and order a retrial. It is unnecessary therefore to consider the application for leave to appeal against the sentence of three years imprisonment to be immediately served as from 24 November 2000 with eligibility for parole.
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