O'Neill v The State of Western Australia
[2013] WASCA 158
•1 JULY 2013
O'NEILL -v- THE STATE OF WESTERN AUSTRALIA [2013] WASCA 158
| SUPREME COURT OF WESTERN AUSTRALIA | Citation No: | [2013] WASCA 158 | |
| THE COURT OF APPEAL (WA) | |||
| Case No: | CACR:283/2012 | 24 MAY 2013 | |
| Coram: | PULLIN JA BUSS JA MAZZA JA | 1/07/13 | |
| 30 | Judgment Part: | 1 of 1 | |
| Result: | Application for an extension of time to appeal dismissed Appeal dismissed | ||
| B | |||
| PDF Version |
| Parties: | TERRENCE PATRICK O'NEILL THE STATE OF WESTERN AUSTRALIA |
Catchwords: | Appeal Criminal law Offence of unlawful wounding with intent to maim, disfigure, disable or do grievous bodily harm Part of victim's ear bitten off Whether any evidence to enliven defence of another Trial judge not leaving defence to the jury |
Legislation: | Criminal Code (WA), s 248, s 294(1) |
Case References: | Braysich v The Queen [2011] HCA 14; (2011) 243 CLR 434 Fingleton v The Queen [2005] HCA 34; (2005) 227 CLR 166 Floyd v The State of Western Australia [2013] WASCA 33 Goodwyn v The State of Western Australia [2013] WASCA 141 Heijne v The State of Western Australia [2010] WASCA 86 Houghton v The Queen [2004] WASCA 20 Parker v The Queen (1964) 111 CLR 665 Pemble v The Queen [1971] HCA 20; (1971) 124 CLR 107 R v Birks (1990) 19 NSWLR 677 R v Taufahema [2007] HCA 11; (2007) 228 CLR 232 Raux v The State of Western Australia [2012] WASCA 1; (2012) 210 A Crim R 562 Stanoevski v The Queen [2001] HCA 4; (2001) 202 CLR 115 TKWJ v The Queen [2002] HCA 46; (2002) 212 CLR 124 Williams v Smith [1960] HCA 22; (1960) 103 CLR 539 |
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA TITLE OF COURT : THE COURT OF APPEAL (WA) CITATION : O'NEILL -v- THE STATE OF WESTERN AUSTRALIA [2013] WASCA 158 CORAM : PULLIN JA
- BUSS JA
MAZZA JA
- Appellant
AND
THE STATE OF WESTERN AUSTRALIA
Respondent
ON APPEAL FROM:
Jurisdiction : DISTRICT COURT OF WESTERN AUSTRALIA
Coram : DERRICK DCJ
File No : IND 288 of 2012
Catchwords:
Appeal - Criminal law - Offence of unlawful wounding with intent to maim, disfigure, disable or do grievous bodily harm - Part of victim's ear bitten off - Whether any evidence to enliven defence of another - Trial judge not leaving defence to the jury
(Page 2)
Legislation:
Criminal Code (WA), s 248, s 294(1)
Result:
Application for an extension of time to appeal dismissed
Appeal dismissed
Category: B
Representation:
Counsel:
Appellant : Mr S B Watters
Respondent : Ms S H Linton
Solicitors:
Appellant : McDonald & Sutherland
Respondent : Director of Public Prosecutions (WA)
Case(s) referred to in judgment(s):
Braysich v The Queen [2011] HCA 14; (2011) 243 CLR 434
Fingleton v The Queen [2005] HCA 34; (2005) 227 CLR 166
Floyd v The State of Western Australia [2013] WASCA 33
Goodwyn v The State of Western Australia [2013] WASCA 141
Heijne v The State of Western Australia [2010] WASCA 86
Houghton v The Queen [2004] WASCA 20
Parker v The Queen (1964) 111 CLR 665
Pemble v The Queen [1971] HCA 20; (1971) 124 CLR 107
R v Birks (1990) 19 NSWLR 677
R v Taufahema [2007] HCA 11; (2007) 228 CLR 232
Raux v The State of Western Australia [2012] WASCA 1; (2012) 210 A Crim R 562
Stanoevski v The Queen [2001] HCA 4; (2001) 202 CLR 115
TKWJ v The Queen [2002] HCA 46; (2002) 212 CLR 124
Williams v Smith [1960] HCA 22; (1960) 103 CLR 539
(Page 3)
1 PULLIN JA: The appellant applies for an extension of time in which to appeal against his conviction after trial of one count of unlawfully wounding with the intent to maim, disfigure, disable or do grievous bodily harm contrary to s 294(1) of the Criminal Code (WA).
2 On 20 December 2012, McLure P granted the appellant's application for leave to appeal and ordered that the appellant's application for an extension of time be referred to the hearing of the appeal.
Evidence led by the prosecution
3 On St Patrick's Day, 17 March 2011, the victim and some friends stopped at the Subiaco Hotel on their way home for a drink. At around 1.00 am on 18 March 2011, the victim left the hotel and encountered the appellant and his two sons, John O'Neill and Liam O'Neill. They had also been drinking at the Subiaco Hotel and were angry about having been asked to leave the hotel after staff decided to close the hotel due to a disturbance caused by another troublemaker. The O'Neills were ushered out of the hotel by hotel staff and became more agitated when they saw the troublemaker being manhandled by one of the hotel's bouncers. John and Liam punched and kicked at some of the hotel's doors and windows.
4 Two of the victim's female friends made remarks to each other about the O'Neills' aggressive behaviour. The O'Neills charged at the victim and there was a scuffle on the ground. While the men were on the ground, the victim was wounded when one of the O'Neills bit off the top third of his left ear. A bar attendant at the Subiaco Hotel identified the appellant as the person who bit the victim's ear.
Evidence led by the appellant
5 The appellant gave evidence that he was not involved in the fight, but that he had managed to break it up and take his sons home. He denied biting the victim's ear. The appellant called Liam O'Neill as a witness. He was granted a certificate under s 11 of the Evidence Act 1906 (WA) and then gave evidence that he was the person who bit the victim's ear.
The trial judge's directions
6 The trial judge's directions are not the subject of any challenge in this appeal save for the trial judge's direction in relation to the unlawfulness element of the offence:
Now, I can tell you, members of the jury, that as a matter of law, if [the appellant] did bite off the top portion of [the victim's] left ear as is alleged,
- that act was contrary to law, and was not excused. Accordingly, if you conclude that you are satisfied beyond reasonable doubt that [the appellant] did bite off the top portion of [the victim's] ear, as is alleged by the State, you will necessarily conclude that the State has proved that [the appellant] unlawfully wounded [the victim], and that this element of the alleged offence has been proved. So that deals with the unlawfulness element of the charge (ts 328).
Jury questions
7 Following the commencement of deliberations, the trial judge received a note from the jury containing three questions. The second question read:
(2) Could the action of the [appellant] to intentionally bite the ear of the victim in order to protect his son from being assaulted by the victim excuse him from intent with respect to charge 1? (ts 378).
8 After reading the question to counsel in the absence of the jury, the trial judge indicated that he proposed to answer the question as follows:
Well, the short answer to that question is, 'No', I would have thought. The only issue that that raises, to my mind, is really that that's not the case of either party (ts 379).
9 The trial judge then invited submissions from counsel. Counsel for the appellant submitted:
[I]f [the jury] came to the view that there was an intention, and that intention could well have been to protect his son, and if that causes them to doubt that he had an intention to achieve one of the results in the indictment and that he didn't, in effect, apply his mind to that outcome but was seeking to achieve the outcome referred to in question 2, then necessarily he's not guilty because the State haven't proved the specific - or the intent to cause those sorts of results that are illegal (ts 380 - 381).
10 The trial judge and counsel for the prosecution entered into the following exchange:
RIVALLAND, MR: How are we getting into an area where it's - it seems like we're raising a defence at this point that he had an intent - whether he had an intent to sufficiently bite down to defend his son and he was committing a lawful action by way of intending to get him off his son, when the [appellant's] case is that it wasn't him at all?
DERRICK DCJ: Yes. But the question's directed to intent. I understand what you're saying, which was the issue I was raising, in a sense. But at
- the end of the day, the jury have to make their own findings of fact on the evidence. And who knows what they're thinking? But from that, they may be thinking on the - or they may be concluding on the evidence that they're satisfied beyond reasonable doubt that one of the boys was on the [victim] and [the appellant] bit the ear to protect his son. I don't know. But the fact is, the State still has to prove intention.
RIVALLAND, MR: Yes.
DERRICK DCJ: And that question appears to me to be directed to intention.
RIVALLAND, MR: I don't know there's been any evidence led in respect of his committing this act in defence of his son when - - -
DERRICK DCJ: No, I just said that.
RIVALLAND, MR: Yes.
DERRICK DCJ: I agree with you, Mr Rivalland. You're just repeating that.
RIVALLAND, MR: Sorry.
DERRICK DCJ: But that's not the issue they're directing their question at.
RIVALLAND, MR: Okay.
DERRICK DCJ: They're asking - and so put aside the unlawfulness element - - -
RIVALLAND, MR: Yes, yes.
DERRICK DCJ: They're asking here whether if they find the intention was to protect the son from being assaulted, does that excuse him from intent with respect to that charge. Well, I think that I just have to repeat to them - I mean, I thought about what Mr Sutherland says, but I think I just need to repeat to them that what they need to be satisfied beyond reasonable doubt of is that the intention was to be one of the things specified in the charge. And if they're satisfied beyond reasonable doubt that he had that intention, then the fact that he may also have had an intention to protect his son from being assaulted, does not excuse him from intent with respect to the charge.
RIVALLAND, MR: I agree with that.
DERRICK DCJ: I think that's the way to deal with it (ts 381 - 382).
(Page 6)
11 The trial judge recalled the jury and answered its question in the following way:
Before you can find [the appellant] guilty of the offence charged in count 1, you must be satisfied beyond reasonable doubt that he had the intention alleged in the charge: the intention to do grievous bodily harm or to maim, disfigure or disable. If you are satisfied beyond reasonable doubt on all of the evidence that he had that intention, then the fact that he may also have had an intention to bite the ear of the victim in order to protect his son would not preclude you from finding him guilty of the charged offence. But I emphasise to you, you've got to be satisfied beyond reasonable doubt of the intention alleged in the charge. It's that intention that the State must prove beyond reasonable doubt. So if you are only satisfied that he had an intention to bite the ear to protect his son and you're not satisfied beyond reasonable doubt that the intention at the time of doing the bite was to maim, disfigure, disable or do grievous bodily harm, then you're not going to be satisfied beyond reasonable doubt of that element and you'll find the charge not having been proved. You'll find him not guilty. And of course, everything I said there is premised on the basis that you're satisfied beyond reasonable doubt that it was [the appellant] that actually bit [the victim's] ear (ts 386 - 387).
The jury verdict
12 The jury returned with the verdict that the appellant was guilty of one count of unlawfully wounding with intent to maim, disfigure, disable or do grievous bodily harm.
Ground of appeal
13 There is one ground of appeal that alleges, in effect, that the trial judge erred in directing the jury that the defence of defence of another was not available to the appellant. It reads:
Ground 1
The learned trial judge erred when he directed the jury that the defence pursuant to section 248(4) of the Criminal Code was not available to the appellant.
Particulars:
1.1 It was open to the jury to consider whether the appellant, if he was the offender, acted in the defence of another;
1.2 Pursuant to section 294 of the Criminal Code the prosecution needed to negative section 248 beyond reasonable doubt to establish the offending was 'unlawful';
(Page 7)
- 1.3 The learned trial judge directed the jury that if the appellant was the offender then it was an act contrary to law and was not excused.
14 The essence of the appellant's submissions is that the jury was entitled to decide the case on a factual basis that was not advanced by either side during the trial and that the jury's question revealed that they were 'clearly troubled' and 'concerned' by the possibility that the appellant might have been acting in defence of his son when he bit the victim's ear.
Disposition
15 There are numerous authorities which make it clear that a judge must put to the jury every lawfully available defence open to an accused on the evidence even if the accused's counsel has not put that defence and even if counsel has expressly abandoned it: Braysich v The Queen [2011] HCA 14; (2011) 243 CLR 434 [32] (French CJ, Crennan & Kiefel JJ) and the cases referred to in footnote 57; Floyd v The State of Western Australia [2013] WASCA 33 [19] (McLure P, Newnes & Mazza JJA agreeing).
16 The trial judge has a 'filtering' task to perform as a matter of law: Braysich [33]. In considering whether a particular defence should be left to the jury, the judge must ask himself or herself whether there is evidence which, taken at its highest in favour of the accused, could lead a reasonable jury, properly instructed, to have a reasonable doubt that each of the elements of the defence had been negatived: Braysich [36]. In a trial where a defence has been raised by defence counsel, the state of the evidence may require a direction to the jury that there is no evidence capable of supporting a particular defence to the charge and that they are not to consider that defence in their deliberations: Braysich [32]; Heijne v The State of Western Australia [2010] WASCA 86 [40] (Martin CJ, Owen & Buss JJA agreeing). Where counsel has failed to raise a defence and the application of the defence would be purely speculative in the sense that it would lack foundation in the evidence, the trial judge may decline to give any direction to the jury as to the defence as such a direction would detract from the real issues in the trial.
17 Section 248 of the Criminal Code reads:
(1) In this section -
harmful act means an act that is an element of an offence under this Part other than Chapter XXXV.
(2) A harmful act done by a person is lawful if the act is done in self-defence under subsection (4).
(Page 8)
- …
(4) A person's harmful act is done in self-defence if -
(a) the person believes the act is necessary to defend the person or another person from a harmful act, including a harmful act that is not imminent; and
(b) the person's harmful act is a reasonable response by the person in the circumstances as the person believes them to be; and
(c) there are reasonable grounds for those beliefs.
19 The question about whether the trial judge erred has to be judged by reference to the position as it was when all the evidence had been given. The evidence included the evidence of the appellant. The appellant did not, in his evidence, contend that he bit the victim's ear because he was acting in defence of his son. That would have been inconsistent with his evidence that he did not assault the victim at all. However, it is true that the trial judge would have to have been alert to the possibility that the appellant's evidence that he did not bite the victim's ear, and Liam's evidence that he was the person who did so, would be rejected by the jury, and that they would accept the prosecution's evidence that it was the appellant who did so.
20 The trial judge would then have had to consider, if that were so, whether there was any evidence which could enliven a defence under s 248.
21 It is appropriate to begin with s 248(4)(b), because this creates an insuperable obstacle to the success of the appellant's appeal. Section 248(4)(b) contains an objective and subjective aspect. The objective aspect requires an objective assessment about whether the harmful act (the biting of the ear in this case) was a 'reasonable' response and the subjective aspect requires that assessment to be made in the circumstances 'as the person believes them to be'.
22 The circumstances, as the appellant believed them to be, were the subject of the appellant's testimony. He saw a struggle. He saw his son, John, on the ground with the victim lying on top of him. At its highest,
(Page 9)- this was evidence that the victim was assaulting John by touching him. His son, Liam, was punching the victim in the head and body
- (ts 226 - 227). Those circumstances did not justify the unreasonable and grossly disproportionate response of biting off a piece of the victim's ear.
23 Counsel for the appellant sought to advance the appellant's case by referring to the evidence of Liam, who testified that he was worried because he saw the victim with his hands on his brother John's face, and 'it looked like he was eye gouging him'. This shows why the appellant's perception of the circumstances is important when considering the defence. Liam's perception that his brother's eyes were being gouged was not the appellant's perception. The appellant did not testify that he saw the victim gouging John's eyes.
24 It would be absurd to reason that the jury might reject the appellant's evidence about what he perceived, and substitute for his evidence what Liam perceived.
25 As a result of the above analysis, there was no evidence to enliven the defence. It is clear that a defence should not be put to the jury if its application would be purely speculative in the sense that it would lack foundation in the evidence. Whether there is evidence fit for consideration by a jury is a question of law: Parker v The Queen (1964) 111 CLR 665, 681. In light of the fact that there was no evidence to enliven the defence, the trial judge was correct to direct the jury, as he did, that the act charged was unlawful, in other words, it was contrary to law and not excused (applying the reasoning in Houghton v The Queen [2004] WASCA 20 [49] (Murray J), [121] (Steytler & Wheeler JJ). The fact that the jury asked the question that it did, did not alter the correctness of that direction or require the trial judge to direct the jury that the defence of defence of another was not open on the evidence.
26 There is no merit in the appeal. As a result, the application for an extension of time in which to appeal should be dismissed and the appeal should be dismissed.
27 BUSS JA: The appellant has applied for an extension of time to appeal against conviction.
28 He was charged on an indictment which alleged that on 18 March 2011, at Subiaco, he unlawfully wounded Dean Mac Siomoin with intent to maim, disfigure, disable or do some grievous bodily harm to the complainant, contrary to s 294(1) of the Criminal Code (WA) (the Code); alternatively, that on 18 March 2011, at Subiaco, he unlawfully wounded the complainant.
(Page 11)
29 The appellant pleaded not guilty. After a trial in the District Court before Derrick DCJ and a jury, he was convicted of the primary charge.
30 The appellant alleges that the trial judge erred by directing the jury that the defence of acting in self-defence of another, pursuant to s 248(4) of the Code, was not available to him.
31 On 20 December 2012, McLure P referred the appellant's application for an extension of time to the hearing of the appeal.
32 I agree with Pullin JA that the application should be dismissed, but for different reasons.
The State's case at trial
33 The State's case at trial was in essence as follows.
34 Late in the evening on 17 March 2011, the complainant and some of his friends left the Irish Club in Subiaco and wandered along Hay Street towards Rokeby Road. They intended to catch a taxi to their homes.
35 However, when they arrived at the Subiaco Hotel, on the corner of Hay Street and Rokeby Road, they noticed that the hotel was open and entered the premises to have another drink.
36 Later, at about 1.00 am on 18 March 2011, as the hotel was closing, the complainant and his friends, Ms Kelly and Ms Tucker, were standing on the footpath outside the hotel.
37 The appellant and his sons, John and Liam O'Neill, had been drinking at the Subiaco Hotel on the night of 17 March 2011 and early in the morning of 18 March 2011.
38 At closing time, they were requested by hotel staff to finish their drinks. The appellant resented this request and responded by tipping his drink over the bar and storming out of the hotel with his sons. As they were leaving, the appellant and his sons interfered with attempts by hotel staff to remove another troublemaker. The sons smashed doors with their fists and boots.
39 Ms Kelly and Ms Tucker gave evidence that Ms Kelly made comments to Ms Tucker about the aggressive behaviour of the appellant and his sons (ts 64, 88). It appears that the appellant and his sons overheard these comments. The appellant and John O'Neill then charged towards the complainant and knocked him to the ground on the footpath
(Page 12)- outside the hotel. Ms Kelly and Ms Tucker said the complainant had not said or done anything to provoke this attack (ts 65, 88).
41 Three members of the hotel staff, Ms Shiminski, Ms Thackray and Mr Gamble, gave evidence.
42 Ms Shiminski and Ms Thackray said they watched the appellant and his sons as they left the hotel. They heard them break the glass on a door nearby (ts 99, 111).
43 Ms Shiminski said that, after hearing the breaking glass, she walked into the pool room of the hotel to obtain a better view of what had happened (ts 100). She saw a fight outside the window, which culminated in the appellant approaching the complainant from behind and biting his ear (ts 101).
44 There was evidence that the hotel staff had not been drinking and had seen the incident from the well-lit interior of the hotel.
45 About a third of the complainant's left ear was bitten off. He was covered in blood and taken by ambulance to hospital (ts 102).
46 The complainant, Ms Kelly and Ms Tucker said in evidence that they did not see who had bitten the complainant's ear (ts 43, 65 - 66, 88).
The appellant's case at trial
47 The appellant's case at trial was in essence that, although the complainant had been wounded and the appellant and his sons were at the Subiaco Hotel on the night in question, the appellant did not bite the complainant's ear and, hence, did not cause his injury (ts 32).
48 The appellant gave sworn evidence at trial. Defence counsel also called Liam O'Neill as a witness.
49 The appellant said in evidence that he and his sons had been drinking at the Irish Club and the Subiaco Hotel. They were drunk (ts 218).
(Page 13)
50 He recalled having a brief conversation with the complainant prior to the incident. He did not recall anything specific about the conversation. It was 'just a drunk sort of stupid conversation' (ts 220 - 221).
51 The appellant admitted having knocked over a drink at the bar. However, he insisted that it was accidental and said he had apologised before he and his sons left the premises (ts 222).
52 According to the appellant, his son, John, argued with the hotel's security officers as they were leaving. He also recalled that two young women had called John an 'Aussie wanker' and a 'yobbo' (ts 224 - 225).
53 The appellant gave evidence that there were 'a couple of fights going on' including a fight between his sons and a man (obviously the complainant) who was 'wearing a white shirt'. This man was on top of John (ts 225 - 226). He said that his other son, Liam, was punching the man who was wearing the white shirt (ts 226).
54 According to the appellant, he eventually managed to break up the fight between his sons and the man in the white shirt. The appellant said he told someone who came up to him and shaped to fight him, 'Look, we don't want to fight, we just want to go'. The appellant said he then walked away with his sons (ts 227 - 228).
55 The appellant's detailed evidence about the fight involving his sons and the complainant was as follows:
Yes. Tell us about what happens as you go back along towards the people in front of the hotel, please---Johnny - I don't - I can't really remember too good, but I was just trying to get them away all the time, and I remember Johnny was wresting with a guy in a white shirt, and the guy sort of had him like this.
Now, when you say 'the guy had him like this', you put your hands on the scruff of your collar, is that what (indistinct)------Like collar, or something like this, yeah.
Scruff of the neck of your shirt. Did you recognise the fellow who had him---I don't recognise him, but the guy had a white shirt on, like a - yeah, bigger guy, like, white shirt.
…
SUTHERLAND, MR: All right---Think a guy in a white shirt, yeah.
So the guy in the white shirt's got him. He's got him by the scruff of the neck---Yep.
(Page 14)
- …
Yes---And the guy was on top of Johnny, and then Liam ran up and started punching into the guy.
All right. And in that situation, you've got the man in the white shirt, he's there---Yes.
And what's his position when you say Liam started to punch him---He was on top of Johnny.
And where was Johnny---He was lying on the ground.
Was Johnny face down, face up, any recollection---Pretty - he was lying on his back. Like, face up, yeah.
Lying on his back, okay. And the man in the white shirt, was he lying on him, or was he crouching over him. What - can you be as specific as you can about that man's posture, please---He was on top of Johnny. Like, on top, yeah. Lying on top of him, or on top of - - -
Did he appear to be doing anything with his hands or arms---It still looked like he had him. Like, sort of like that, on the ground, holding him down.
And how far away from those two were you, Johnny and the man on top of him---I was close, yeah. I was very close around there, yeah.
All right. And Liam was punching him. Was Liam closer than you, or were you the same distance away; what's your recollection---Liam was closer to me. He was on top of the guy, yeah.
All right. And you said Liam punched him. Did you see the part of the man where Liam - do you have a recollection of where - where Liam was punching him about his body, head------Probably - - -
SUTHERLAND, MR: - - -legs; what was he hitting---The top of him, I would say. Like, the head maybe, or something like that.
All right---Yeah, because he was on top of Johnny, so he was on - he was behind him like that, on top of him, sort of punching into him.
Liam was behind the man---Yes, he was behind the man, punching him, yes.
Okay. And what did you do to Liam---I grabbed him by the back, and pulled him off.
…
And when you pulled Liam off you say eventually, what did Liam do then that you recollect---I just more or less - I did - he did sort of - I tried
- to - he - I did - he did listen to me. I got him to sort of move off, you know (indistinct)
Move off in which direction---Towards that way.
And when you say 'that way', did that take you to the train station, to Kings Park---Towards Kings Park, yeah, up the road.
Kings Park, all right. Now, the other persons who were there, the man in the white shirt and Johnny, do you - can you tell us about whether they stayed down, or at some point got up---Yeah, Johnny got up, and the man in the white shirt got up. He was to my right. I remember him to my right when I had Liam, and then Johnny got up after (ts 225 - 227).
56 The appellant gave evidence that he never held the man in the white shirt with whom his son, John, was struggling. Also, he said that he did not bite the ear of the man in the white shirt (ts 229, 253). His evidence was that he had ' … never punched anyone, or touched him (meaning the complainant) at all, no' (ts 227, 251). The tenor of the appellant's evidence was that he was attempting to act as a 'peacemaker' and, in effect, to remove his sons from the hotel (ts 224, 227 - 228, 242, 244) and, later, remove them from the physical altercation that occurred on the footpath outside the hotel (ts 247 - 251). The appellant denied that he was involved in the brawl or any fighting (ts 252, 261).
57 Shortly after Liam O'Neill commenced giving evidence about the fight between himself, his brother John and the complainant, he declined to answer any questions about his involvement in the fight on the ground that his answers might incriminate him. The trial judge informed Liam that if he answered questions in a satisfactory manner his Honour would grant him a certificate under s 11 of the Evidence Act 1906 (WA) (ts 280 - 283).
58 Liam O'Neill then gave evidence that he was the person who had bitten the complainant's ear. He said that after he had bitten the complainant's ear, his father (the appellant) had dragged him (Liam) away. The complainant and his brother John then disengaged. According to Liam, his father then said, 'Let's go home', and they walked up Hay Street, towards Kings Park, and were driven home by another person (ts 284 - 285).
59 Liam O'Neill gave evidence that the complainant was on top of John O'Neill and had his hands on John's face. It appeared to Liam that the complainant was gouging John's eyes (ts 280). Liam O'Neill's detailed evidence about his having bitten the complainant's ear reads:
(Page 16)
- SUTHERLAND, MR: … Mr O'Neill, what if anything did you do when you saw your brother in that situation---Well, I remember just being really worried, because he's blind in one eye.
What did you do---Punched him a few times to try to get him off.
When you say to punched him, what was your position relative to the Irish fellow---Well, it was on top of my brother, and I was - - -
Where were you in relation to him---I was behind him.
You say you punched him. Whereabouts did you punch him---It was the back of the head.
And did your punches to the back of his head have any effect---No.
SUTHERLAND, MR: What did you do next---I just remember biting down on his ear really hard.
Do you have a recollection of the position of the Irishman when you bit his ear---Yeah, he was on top of my brother.
In order to bite his ear, could you do that standing up, or did you have to change - - ----I don't know.
- - - your posture in some way to be able to do that---Yeah, I bent down and bit him.
Did you - how far down do you recollect the fellow was where his ear was---He was on his knees, I'd say.
And do you recollect that person's position relative to the hotel? Was his head towards the hotel, was one side or the other side towards the hotel---Yeah, his head was towards the hotel.
At this stage, do you have a recollection of which side of him you went to---Not really.
And tell us your recollection of what it was that you did in terms of biting---I just bit down really hard.
What on---His ear.
Do you have a recollection of anything happening to the ear, or the part of it that you were biting---No.
Did you bite for long---I can't remember. I just remember just doing it real quick, and - - -
Real quick, just a gentle nip, or was it something different than that---Nah, it was pretty hard.
(Page 17)
- Did that cause the man to do anything---Yeah, he got off my brother straight away.
When you say he got off your brother, did he roll off, or - I'm asking here about the manner in which he removed himself from your brother---Well, first off all my dad dragged me off, and then he got up, and then my brother.
Yes. What happened next---My dad said 'Let's go home', just dragging us both up the road.
Who was doing that---My dad.
…
SUTHERLAND, MR: Yes. In which direction did you go up the road---It was up the street, up towards Kings Park (ts 283 - 285).
60 Liam O'Neill reiterated in cross-examination that the appellant was dragging him away from the complainant as he, Liam, was biting the complainant's ear (ts 303). Liam did not assert that the appellant interacted physically with the complainant, let alone bite his ear.
The trial judge's summing up
61 The trial judge told the jury in his summing up that the State's case on the issues of identity and causation was that the appellant did an act which caused the wound to the complainant by 'biting … the upper portion of [the complainant's] left ear off' (ts 326).
62 His Honour then told the jury that the appellant did not dispute that someone had bitten the complainant's left ear and, in the process, had bitten off the upper portion of his ear (ts 326 - 327). His Honour elaborated:
[The appellant's] case, consistently with the evidence that he gave and the evidence that was given by Liam O'Neill, is quite simply that he was not the person who did the relevant act. [The appellant] denies that he bit [the complainant's] ear, and therefore denies that he was the person who caused the injury, or in other words the wound suffered by [the complainant] (ts 327).
63 The trial judge instructed the jury that the State must prove that the appellant, in wounding the complainant, acted unlawfully (ts 327). His Honour explained:
Now, an act is unlawful if it prohibited by law, or to put it another way, if it is contrary to law and not excused. The State's case is that [the
- appellant], by attacking [the complainant] without cause, and in the course of doing so biting off the upper portion of [the complainant's] ear, acted in a way that was contrary to law and not excused. So on the State's version of events, there was no lawful excuse for what [the appellant] did.
[The appellant's] case is of course not that he did the alleged act, that is the biting of [the complainant's] ear, but that it was lawful for him to do so. His case, as I've just said, is that he did not do the act at all. So the issue of unlawfulness doesn't even arise on [the appellant's] case (ts 327 - 328). (emphasis added)
64 The appellant's very experienced and competent criminal defence lawyer did not request any redirection or additional direction from his Honour (ts 376 - 377).
65 The jury retired to consider its verdict at 11.16 am on 19 October 2012 (ts 376).
The jury's questions
66 At about 3.45 pm on 19 October 2012, the jury sent a note to the trial judge which contained three questions, as follows:
(1) was it the role of the prosecution to prove intent with respect to charge 1 or is the role of the jury to determine intent based on the evidence? (2) Could the action of the accused to intentionally bite the ear of the victim in order to protect his son from being assaulted by the victim excuse him from intent with respect to charge 1? (3) Is the use of sufficient force to remove a section of the ear a positive indicator of intent? (ts 378)
67 His Honour read the questions to the prosecutor and defence counsel, in the absence of the jury, and debated with them the answers he should give.
68 As to question (2), his Honour indicated to the prosecutor and defence counsel that the 'short answer' to the question appeared to be, 'no' (ts 379).
69 The following exchange occurred between the trial judge and defence counsel about question (2):
SUTHERLAND, MR: [I]n terms of understanding this notion of intent and looking inside the head of [the appellant], as you put it, if the jury come to the view that they cannot exclude the reasonable possibility that the intention was to achieve the result of freeing up his son, then it is pertinent.
(Page 19)
- DERRICK DCJ: In what way? …
SUTHERLAND, MR: Yes.
DERRICK DCJ: One doesn't exclude the other.
SUTHERLAND, MR: No. That's right. Yes. And unless they're satisfied beyond reasonable doubt - it doesn't follow that because he had that intent he must have had the other one. If they come to the conclusion that the only intent that they can be satisfied about is the intention to protect his son, to achieve a result of - in that respect - - -
DERRICK DCJ: But am I not covering that by answering the first question, by telling them they have to be satisfied beyond reasonable doubt the intention was to do grievous bodily harm, maim, disable, disfigure? I make that clear to them in answering question 1. And then question 2, isn't the answer just, 'No'? I mean: Could the action of the accused to intentionally bite the ear of the victim in order to protect his son from being assaulted by the victim 'excuse' him from intent?
SUTHERLAND, MR: It doesn't excuse him from intent. He may have the intention of achieving the result of freeing up his son. And it is relevant, in my submission, that it be included in the discussion, whether it's with regard to the answer in one or separately in regard to two. Because if they come to the view that the only intent they can be satisfied is that intention [was] to look after his son---
DERRICK DCJ: Yes.
SUTHERLAND, MR: - - - and that there was nothing in his mind, they cannot be satisfied that he had applied his mind to the other question.
DERRICKDCJ: So you say that I should tell the jury, in answer to question 2 [sic], that - again repeat to them that - they need to be satisfied beyond reasonable doubt that the intention was to maim, disfigure, disable, or do grievous bodily harm, and that if the only thing that they are satisfied beyond a reasonable doubt of is that the intention was to protect the son from being assaulted, then they would necessarily not be satisfied beyond reasonable doubt of the intention element of the charge? Well, what do you say I should say to them in answer to that question, question 2?
SUTHERLAND, MR: In answer to that question, if they came to the view that there was an intention, and that intention could well have been to protect his son, and if that causes them to doubt that he had an intention to achieve one of the results in the indictment and that he didn't, in effect, apply his mind to that outcome but was seeking to achieve the outcome referred to in question 2, then necessarily he's not guilty because the State haven't proved … the intent to cause those sorts of results that are illegal … I think that's the way that I'd be seeking to have it discussed.
(Page 20)
- DERRICK DCJ: So if they come to the view that the intention was an intent to protect the son from being assaulted by the victim, and that this causes them to have a reasonable doubt about whether he had the intention specified in the charge, then necessarily the verdict must be not guilty?
SUTHERLAND, MR: I think so, yes.
DERRICK DCJ: All right (ts 379 - 381).
70 After hearing submissions from the prosecutor, his Honour informed counsel of the manner in which he proposed to respond to question (2), and heard again from the prosecutor and defence counsel:
DERRICK DCJ: They're asking here whether if they find the intention was to protect the son from being assaulted, does that excuse him from intent with respect to the charge. Well, I think that I just have to repeat to them - I mean, I thought about what Mr Sutherland says, but I think I just need to repeat to them that what they need to be satisfied beyond reasonable doubt of is that the intention was to do one of the things specified in the charge. And if they're satisfied beyond reasonable doubt that he had that intention, then the fact that he may also have had an intention to protect his son from being assaulted, does not excuse him from intent with respect to the charge.
RIVALLAND, MR: I agree with that.
DERRICK DCJ: I think that's the way to deal with it.
RIVALLAND, MR: I agree with that, your Honour.
DERRICK DCJ: Do you think that I need to remind them that in fact, that … scenario is not what's occurred on either parties' case.
SUTHERLAND, MR: No. And the reason for that is that the jury have heard the evidence and if in the course of their thinking - they think well, a person might do this with any manner of things in mind and they're giving an example, one of which is to protect.
DERRICK DCJ: But that's what concerns me a little bit, because the jury have been directed in accordance with the way the case has been conducted on the evidence that the issue of unlawfulness is not a live one here.
SUTHERLAND, MR: I'm not seeking to enliven the issue of unlawfulness.
DERRICK DCJ: Right.
SUTHERLAND, MR: I'm just seeking to have the matter explained to the jury in such a way as not to fetter their thinking - - -
(Page 21)
- DERRICK DCJ: Yes.
SUTHERLAND, MR: - - - and one of the issues is that with intent, one can have a range of intents all at once. One may be focused on one particular thing which may be that which is the subject of the State's case or it may be something else.
DERRICK DCJ: All right (ts 382 - 383). (emphasis added)
71 The jury returned at 4.01 pm on 19 October 2012, and the trial judge answered question (2), in the manner he had foreshadowed to the prosecutor and defence counsel, as follows:
Before you can find [the appellant] guilty of the offence charged in count 1, you must be satisfied beyond reasonable doubt that he had the intention alleged in that charge: the intention to do grievous bodily harm or to maim, disfigure or disable. If you are satisfied beyond reasonable doubt on all of the evidence that he had that intention, then the fact that he may also have had an intention to bite the ear of [the complainant] in order to protect his son would not preclude you from finding him guilty of the charged offence. But I emphasise to you, you've got to be satisfied beyond reasonable doubt of the intention alleged in the charge. It's that intention that the State must prove beyond reasonable doubt. So if you are only satisfied that he had an intention to bite the ear to protect his son and you're not satisfied beyond reasonable doubt that the intention at the time of doing the bite was to maim, disfigure, disable or do grievous bodily harm, then you're not going to be satisfied beyond reasonable doubt of that element and you'll find the charge not having been proved. You'll find him not guilty. And of course, everything I said there is premised on the basis that you're satisfied beyond reasonable doubt that it was [the appellant] that actually bit [the complainant's] ear (ts 386 - 387).
72 Defence counsel did not request any redirection or additional direction from his Honour (ts 387).
The jury's verdict
73 At 4.58 pm on 19 October 2012, the jury returned its verdict of guilty on the primary charge of unlawful wounding with intent to maim, disfigure, disable or do some grievous bodily harm to the complainant, contrary to s 294(1) of the Code.
The ground of appeal
74 The sole ground of appeal alleges that the trial judge erred when he directed the jury that the defence pursuant to s 248(4) of the Code was not available to the appellant.
(Page 22)
75 On 20 December 2012, McLure P granted leave to appeal on this ground.
The appellant's submissions
76 Counsel for the appellant submitted that:
(a) His Honour was bound 'to direct the jury correctly because, even though the "defence of another" was not part of [the appellant's] defence at trial, it is always open to the jury to decide the case' upon a factual basis not advanced by the State or the defence.
(b) His Honour, in answering question (2) from the jury, 'appears to have not properly considered the "unlawful" element contained in s 294(1)'.
(c) After receiving the jury's note 'about the possibility that [the appellant] was acting to protect his son', his Honour should have directed the jury that 'the "defence of another", unless negated by the State beyond reasonable doubt, may absolve [the appellant] from criminal responsibility'.
(d) His Honour erred in instructing the jury, during his summing up, that, if it was satisfied that the appellant was the offender, biting off part of the complainant's ear was an act 'contrary to law' and was not excused (ts 328), because question (2) showed that the issue of 'unlawfulness' was 'clearly a factual matter that concerned the jury'.
The ground of appeal: when the defence under s 248(4) of the Code should be left to the jury
77 If it is necessary for a trial judge to consider, at the close of the evidence in a criminal trial, whether a particular defence should be left to the jury, the relevant question, in a case where (as with s 248(4) of the Code) the legal burden is on the State and the evidential burden is on the accused, will be: is there evidence which, taken at its highest in favour of the accused, could lead a reasonable jury, properly instructed, to have a reasonable doubt that each of the elements of the defence or an element of the defence, as the particular case may require, had been negatived? See Braysich v The Queen [2011] HCA 14; (2011) 243 CLR 434 [17], [36] (French CJ, Crennan & Kiefel JJ).
78 A trial judge should leave the defence under s 248(4) to the jury if, at the close of the evidence, there is evidence which, taken at its highest in
(Page 23)- favour of the accused, could lead a reasonable jury, properly instructed, to have a reasonable doubt as to whether the State had negatived the defence.
The ground of appeal: the elements of the defence under s 248(4) of the Code
79 Section 248(1) of the Code provides that, in s 248, the term 'harmful act' means an act that is an element of an offence under pt V other than ch XXXV.
80 Section 294(1) creates an offence under ch XXIX of pt V.
81 By s 248(2), a harmful act done by a person is lawful if the act is done in self-defence under s 248(4).
82 Section 248(4) provides:
A person's harmful act is done in self defence if -
(a) the person believes the act is necessary to defend the person or another person from a harmful act, including a harmful act that is not imminent; and
(b) the person's harmful act is a reasonable response by the person in the circumstances as the person believes them to be; and
(c) there are reasonable grounds for those beliefs.
83 It is unnecessary to refer to s 248(3), s 248(5) or s 248(6).
84 Section 248(4)(a) specifies, as an element of the defence, that 'the [accused] believes the act is necessary to defend the [accused] or another person from a harmful act, including a harmful act that is not imminent'.
85 Section 248(4)(a) prescribes a single subjective requirement, namely the accused must, subjectively, believe that his or her harmful act is 'necessary to defend the accused or another person from a harmful act, including a harmful act that is not imminent'.
86 By s 248(4)(a), therefore, the accused must, subjectively, believe that his or her harmful act is necessary to defend the accused or another person from a harmful act (including a harmful act that is not imminent).
87 Section 248(4)(b) specifies, as an element of the defence, that 'the [accused's] harmful act is a reasonable response by the [accused] in the circumstances as the [accused] believes them to be'.
(Page 24)
88 Section 248(4)(b) incorporates two concepts. First, the concept of the accused's belief as to the circumstances. Secondly, the concept of whether the accused's harmful act is a 'reasonable response'. The composite requirement embodied in s 248(4)(b) from these concepts is that the accused's harmful act is a reasonable (objective) response by the accused in the circumstances as the accused (subjectively) believes them to be.
89 By s 248(4)(b), therefore, the accused's harmful act must be, objectively, a reasonable response by the accused in the circumstances as the accused, subjectively, believes them to be.
90 Section 248(4)(c) specifies, as an element of the defence, that 'there are reasonable grounds for those beliefs'.
91 The beliefs to which s 248(4)(c) refers are the beliefs of the accused as stated in s 248(4)(a) and s 248(4)(b).
92 By s 248(4)(c), there must be, objectively, reasonable grounds for each of the subjective beliefs of the accused stated in pars (a) and (b).
93 That is, there must be, objectively:
(a) reasonable grounds for the accused's subjective belief, within s 248(4)(a), that the harmful act is necessary to defend the accused or another person from a harmful act, including a harmful act that is not imminent; and
(b) reasonable grounds for the accused's subjective belief, within s 248(4)(b), as to the circumstances.
94 So, it is apparent that s 248(4) enumerates four elements. First, the accused (subjectively) believes the harmful act is necessary to defend the accused or another person from a harmful act, including a harmful act that is not imminent (s 248(4)(a)). Secondly, the accused's harmful act is a reasonable (objective) response by the accused in the circumstances as the accused (subjectively) believes them to be (s 248(4)(b)). Thirdly, there are reasonable (objective) grounds for the accused's (subjective) belief that the harmful act is necessary to defend the accused or another person from a harmful act, including a harmful act that is not imminent (s 248(4)(a) read with s 248(4)(c)). Fourthly, there are reasonable (objective) grounds for the accused's (subjective) belief as to the circumstances (s 248(4)(b) read with s 248(4)(c)).
(Page 25)
95 If the accused satisfies the evidential onus in relation to the defence then the burden is on the State to negative the defence by excluding at least one of its elements beyond reasonable doubt.
The ground of appeal: rational tactical decision by defence counsel at trial
96 The Australian criminal justice system involves a contest between the State or the Crown and the accused. In general, the accused is bound by the conduct of his or her counsel. The accused's counsel has a broad discretion in the conduct of the defence. As Gleeson CJ (McInerney J agreeing) noted in R v Birks (1990) 19 NSWLR 677:
Decisions as to what witnesses to call, what questions to ask or not to ask, what lines of argument to pursue and what points to abandon, are all matters within the discretion of counsel and frequently involve difficult problems of judgment, including judgment as to tactics. The authorities concerning the rights and duties of counsel are replete with emphatic statements which stress both the independent role of the barrister and the binding consequences for the client of decisions taken by a barrister in the course of running a case (683).
- See also TKWJ v The Queen [2002] HCA 46; (2002) 212 CLR 124 [8] (Gleeson CJ); R v Taufahema [2007] HCA 11; (2007) 228 CLR 232 [168] (Kirby J).
97 An apparently rational decision made by the accused's counsel in the course of the trial will not result in an unfair trial or a miscarriage of justice merely because it may appear then or later on appeal that the decision was not carefully considered, was unwise, or produced consequences which operated to the disadvantage of the accused. See Stanoevski v The Queen [2001] HCA 4; (2001) 202 CLR 115 [21] (Gaudron, Kirby & Callinan JJ); TKWJ [16] - [17] (Gleeson CJ), [95] (McHugh J), [107] (Hayne J, Gummow J agreeing).
98 An appellate court does not examine whether a decision taken by the accused's counsel at the trial was, in fact, taken for the purpose of obtaining a forensic advantage. Rather, the appellate court is concerned only with whether counsel's decision is capable of explanation on that basis. That is, could there be any reasonable explanation for the decision? The test is objective in character. See TKWJ [17] (Gleeson CJ), [27] (Gaudron J, Gummow J agreeing), [107] (Hayne J, Gummow J agreeing).
The ground of appeal: its merits
99 I am satisfied, for three reasons, that the ground of appeal is without merit.
(Page 26)
100 First, there was no evidence, either direct or circumstantial, that was capable of satisfying the appellant's evidential onus in relation to the subjective element of the defence embodied in s 248(4)(a). Secondly, defence counsel made a rational tactical decision not to rely on, or request the trial judge to give a direction about, s 248(4). Thirdly, his Honour did not make an error in telling the jury that the issue of unlawfulness did not arise on the defence case.
101 As to the absence of evidence capable of satisfying the appellant's evidential onus, the appellant gave sworn evidence at trial, in substance, that:
(a) the complainant was struggling with his son, John O'Neill;
(b) he (the appellant) did not hold the complainant;
(c) he (the appellant) did not bite the complainant's ear;
(d) he (the appellant) never touched the complainant;
(e) he (the appellant) was attempting to act as a 'peacemaker' and, in effect, remove his sons from the hotel and, later, remove them from the physical altercation that occurred on the footpath outside the hotel; and
(f) he (the appellant) was not involved in the brawl or any fighting (ts 224, 227 - 229, 242, 244, 247 - 253, 261).
102 There was no direct evidence from the appellant or any other witness, and no circumstantial evidence, which, taken at its highest in favour of the appellant, could have led a reasonable jury, properly instructed, to have a reasonable doubt that the State had negatived the subjective element of the defence embodied in s 248(4)(a); that is, that the appellant, subjectively, believed that it was necessary for him to bite the complainant's ear to defend one or both of his sons from a harmful act (including a harmful act that was not imminent) by the complainant, within s 248(4)(a).
103 As to defence counsel's rational tactical decision, the focus of defence counsel at trial, based on the sworn evidence of the appellant and Liam O'Neill, was that the jury could not be satisfied beyond reasonable doubt that it was the appellant who had bitten the complainant's ear.
104 It would have been inconsistent with defence counsel's focus, and inconsistent with the sworn evidence of the appellant and Liam O'Neill,
(Page 27)- for defence counsel to have submitted to the jury that if it was satisfied beyond reasonable doubt that (contrary to the defence case) the appellant had in fact bitten the complainant's ear, then the State could not negative beyond reasonable doubt that the appellant had acted in defence of one or both of his sons including, in particular, that the appellant had, subjectively, believed that his biting of the complainant's ear was necessary to defend one or both of his sons from a harmful act by the complainant (including a harmful act that was not imminent).
106 Consistently with the defence case, defence counsel expressly disavowed, in debate with his Honour about the manner in which question (2) should be answered, that he was 'seeking to enliven the issue of unlawfulness' (ts 383).
107 As to the trial judge's statement to the jury, during his summing up, that 'the issue of unlawfulness doesn't even arise on [the appellant's] case' (ts 328), a decision by a trial judge as to whether a defence should be left to the jury must be made on the evidence adduced at trial. This is a question of law for the judge. Any view by the jury about possible defences, which may be discernible from questions asked by the jury, cannot control or influence the judge's determination of this legal issue.
108 It is true that a jury, as the tribunal of fact, is entitled to 'work out for themselves a view of the case which [does] not exactly represent what either party [has] said': Williams v Smith [1960] HCA 22; (1960) 103 CLR 539, 545 (Dixon CJ, McTiernan, Fullagar, Kitto & Menzies JJ). See also Raux v The State of Western Australia [2012] WASCA 1; (2012) 210 A Crim R 562 [114] (Buss JA) and the cases there cited. However, that proposition does not detract from a trial judge's duty to determine whether, on the evidence adduced at trial, a defence should, as a matter of law, be left to the jury. The trial judge's decision on that issue is to be made by applying the test enunciated in Braysich [17], [36]. As I have mentioned, in the present case, the appellant's evidential onus in relation to the subjective element of the defence embodied in s 248(4)(a) was not satisfied. His Honour gave proper consideration to the 'unlawful' element in s 294(1), and he did not err in instructing the jury, during his summing up, that 'the issue of unlawfulness' did not arise, even on the appellant's case.
(Page 28)
Conclusion
109 I would dismiss the appellant's application for an extension of time to appeal because the ground of appeal has no reasonable prospect of success.
110 MAZZA JA: I agree with Pullin and Buss JJA that this appeal against conviction must be dismissed.
111 My reasons for arriving at this conclusion may be stated briefly.
112 I respectfully adopt Buss JA's summary of the evidence and the trial proceedings.
113 The single ground of appeal alleges that the learned trial judge erred in failing to leave to the jury defence of another, pursuant to s 248(4) of the Criminal Code (WA).
114 The State case was that the appellant and his two sons, John O'Neill and Liam O'Neill, were drunk and in an aggressive mood when they left the Subiaco Hotel. They attacked the complainant and, in the course of that attack, Ms Shiminski, a sober staff member at the hotel, saw the appellant bite the complainant's ear.
115 The appellant's case was that he did not attack the complainant and did not bite his ear. The appellant testified that his sons and the complainant got into a fight and that he was, in effect, the peacemaker. He said that he saw Liam fighting the complainant, who was in turn fighting John. He then grabbed Liam, pulling him off the complainant and 'got him to … move off'. He said that the complainant and John then got up. The appellant testified that he and his sons left the area.
116 The trial was run on the basis that the only real issue in dispute was the identity of the person who bit the complainant's ear. Put another way, the element of unlawfulness in the charge against the appellant was not in dispute. The two cases could hardly have been starker. On the one hand, the State case was that the appellant and his two sons were aggressors and that the appellant bit the complainant's ear. On the other hand, the defence case was that the appellant did not touch the complainant, he was acting as a peacemaker and it was Liam who had bitten the complainant.
117 Where a defence imposes a legal burden on the prosecution and an evidential burden on the accused, as is the case with the defence under
(Page 29)
118 s 248(4), the test as to whether the defence should be left to the jury is as follows:
[I]s there evidence which, taken as its highest in favour of the accused, could lead a reasonable jury, properly instructed, to have a reasonable doubt that each of the elements of the defence has been negatived? [Braysich v The Queen [2011] HCA 14; (2011) 243 CLR 434 [36] (French CJ, Crennan & Kiefel JJ)]
119 In the context of this case, if the answer to this question is 'yes', the learned trial judge would have been obliged to put the defence under s 248(4), even though the appellant's experienced trial counsel maintained at all times that the element of unlawfulness was not in dispute: Pemble v The Queen [1971] HCA 20; (1971) 124 CLR 107 [18] - [20] (Barwick CJ); Fingleton v The Queen [2005] HCA 34; (2005) 227 CLR 166 [83] (McHugh J); and Braysich v The Queen [2011] HCA 14; (2011) 243 CLR 434 [32] (French CJ, Crennan & Kiefel JJ).
120 Section 248 of the Criminal Code, insofar as it is relevant to this case, is in these terms:
(1) In this section -
harmful act means an act that is an element of an offence under this Part other than Chapter XXXV.
(2) A harmful act done by a person is lawful if the act is done in self-defence under subsection (4).
…
(4) A person's harmful act is done in self-defence if -
(a) the person believes the act is necessary to defend the person or another person from a harmful act, including a harmful act that is not imminent; and
(b) the person's harmful act is a reasonable response by the person in the circumstances as the person believes them to be; and
(c) there are reasonable grounds for those beliefs.
(Page 30)
- Section 248(4) contains a number of subjective and objective components.
The belief set out in s 248(4)(a) is plainly subjective. The relevant belief is that the harmful act done by the accused is necessary to defend the accused or another person from a harmful act. I do not accept Mr Levy's submission that the relevant belief is only that the accused believed the act to be necessary. This submission ignores the words in the subsection 'to defend the person or another person from a lawful act'. The word 'necessary' must relate to something; in other words, 'necessary to do what?' It is clear from the statutory text that the answer to this question is: 'necessary to defend the person or another person from a harmful act'.
Section 248(4)(b) requires that the accused's harmful act be a reasonable response in the circumstances as the accused believes them to be. What the fact finder is required to do is:
(a) determine what, in the accused's mind, were the circumstances surrounding the doing of the harmful act by the accused; and
(b) having regard to the circumstances as the accused believed them to be, decide if the accused's harmful act was a reasonable response.
Section 248(4)(b) is thus a combination of objective and subjective considerations. The objective consideration is whether the accused's harmful act was a reasonable response, but that has to be viewed from the perspective of the accused's subjective beliefs as to the circumstances.
I turn to s 248(4)(c). That subsection requires that there be reasonable grounds for those 'beliefs'. The 'beliefs' (plural) referred to in s 248(4)(c) must refer to the beliefs contained in 248(4)(a) and (b). Section 248(4)(c) thus imports an objective assessment of each of the subjective beliefs in (a) and (b). This means that there must be reasonable grounds for the accused's belief that the act is necessary to defend the accused or another person from a harmful act, and there must be reasonable grounds for the accused's belief of the circumstances surrounding the doing of his or her harmful act [170] - [174].
122 Based on the testimony of Ms Shiminski, there was evidence that the appellant had done a harmful act (biting the ear) to the complainant. However, there was no evidence, taken at its highest in the appellant's favour, that the appellant did so believing that the act was necessary to defend his son John. The appellant did not give evidence to that effect and there was nothing from the surrounding circumstances that would enable a jury to reasonably infer that the appellant had that belief. No jury, properly instructed, could have had a reasonable doubt that this element of the defence under s 248(4) had been negatived.
123 Alternatively, there was no evidence capable of enlivening the element contained in s 248(4)(b). As Pullin JA explains in his reasons, the circumstances that the appellant believed existed were that his son John was on the ground with the complainant on top of him. The appellant testified that the complainant was holding John down. Unlike Liam, the appellant did not testify that he saw the complainant gouging John's eyes. At its highest, the evidence could sustain an inference that the appellant believed that the circumstances were that the complainant was on top of John, in circumstances where it might be thought that the complainant would somehow attack him. I am unable to see how a reasonable jury could have objectively assessed the appellant's act of biting the complainant's ear to be a reasonable response in the circumstances as the appellant believed them to be. To bite someone's ear in the circumstances was an unreasonable, extreme and unnecessary response. A reasonable response would have been to push or pull the complainant off John or perhaps to punch the complainant. Put in terms of the Braysich test, there was no evidence which, taken at its highest in favour of the appellant, could have led a reasonable jury properly instructed to have a reasonable doubt that the element in s 248(4)(b) had been negatived.
124 As there was no basis in law for the defence to be left to the jury, it follows that his Honour did not err in failing to direct the jury as to defence of another pursuant to s 248. In fact, to have done so in this case may have led to a miscarriage of justice because it would have undermined the case the appellant ran at trial, that is, that he was not the offender.
125 The appellant requires an extension of time to appeal. As the appeal has no merit, the application should be refused.
126 The orders that I would make are:
1. The application for an extension of time is refused.
2. The appeal is dismissed.
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