Penny v The Queen

[1988] HCATrans 259

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IN TEE HIGH COURT OF AUSTRALIA

Office of the Registry

Perth No Pl2 of 1988

B e t w e e n -

RUSSELL GRAHAM PENNY

Applicanc

and

THE QUEEN

Respondenc

Application for special

leave to appeal

MASON CJ
WILSON J
DEANE J
TOOHEY J

GAUDRON J

Penny

TRANSCRIPT OF PROCEEDINGS

AT PERTH ON THURSDAY, 27 OCTOBER 1988, AT 9.53 AM:

Copyright in the High Court of Australia

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MR H.A. '.•:ALLJORK, QC: If it please the Court, I appear

with MR C. De~~IO, for the applicant in this

matter. (instructed by Mazza Mccallum & Robinson)

MR :-! . J. MC'RRAY, QC:  Your Honours, I appear with my learned

friend, MR K. BATES, for the respondent.

(instructed by the Crown Law Department).

MASON CJ:	Yes, Mr Wallwork.
MR WALLWORK:	If the Court pleases, I hand up six copies

of the applicant's submissions.

:C-,IASON CJ:	Thank you.
MR WALLWORK:	If it please the Court, this application

arises out of the trial of the applicant for the death of a young man which occurred early in the

morning of 1 January 1987 after New Year's

celebrations in the supreme court gardens just

up the road from here. When he was tried the

applicant was 19 years of age but when the offence

was committed he was 18 years of age. He was

found guilty of murder and sentenced to life

imprisonment.

If I may refer to the outline of the

applicant's submissions. It is submitted that the

learned trial judge's direction to the jury was

not in line with Your Honours' decision in

ZECEVIC, and that first 1.1 item there, His

Honour said even though you get the situation of the person being attacked in a way which is likely to cause him death or grievous bodily

harm, if he has the opportunity of running away,

withdrawing, he has got to take that. He does

not get the protection of the law relating to
self-defence if there was that option of retreating

from the conflict. At page 653 in ZECEVIC's case,

Your Honours Justice Wilson, Justice Toohey and

Justice Dawson said:

For this purpose -

when speaking of the self-defence - opposite line 25

on page 653, and you actually did refer to our

section of the Criminal Code in passing -

For this purpose it will be relevant to

consider the extent to which the accused
declined further conflict and quit the

use of force or retreated from it, these

being matters which may bear upon the nature

of the occasion and the use which the

accused made of it. Indeed, even in
circumstances in which the accused was not

the original aggressor, retreat in the face

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of a threat of violence before resort co

force may be relevant to the belief of c~e

accused or the reasonableness of the

grounds upon which the accused based his

belief. There is, however, no longer any

rule that the accused must have retreated

as far as possible before attempting to
defend himself. It is a circumstance
to be considered with all the others in

determining whether the accused believed

upon reasonable grounds that what he did

was necessary in self-defence.

Your Honours, the next thing that the applicant

says was an error on the part of the learned

trial judges in 1.2. His Honour said at page 311~

of the papers:

these provisions -

and he was talking about self-defence -

apply so as to justify a person who is being

assaulted to use force against a person

who is attacking him. It does not justify

a person using force against another person

in circumstances where others are attacking

him. That is a circumstance which may have

to be considered on the facts as they apply

in this case.

His Honour developed that theme as is set out

in 1.3 of our submissions. The right of self-defence,

that is, the right of a person to defend himself
against an attack within the limits of the law,

applies only against the person who mounts the

attack.	It does not apply simply because there
may be some other danger in the vicinity.	And

he further developed when he was asked by counsel

for the applicant at the trial to direct on this

question, and he said at page 316C of the application

book, in answer to counsel's question about it:

I think that question is answered by the provisions of the CRIMINAL CODE, and it is

quite clear that - and I so ctirect you - the

question of self-defence will only arise

if the person against whom the force is

used, that is the deceased person himself,
has used force against the accused. In

this context, in terms of the accused being

subjected to an assault of such violence

as to cause him reasonable apprehension of
death or grievous bodily harm, that

apprehension must come from the deceased

and not from his colleagues. Mr Foreman,

ladies and gentlemen, I now invite you to

retire to consider your verdict.

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Those three comments were found not to invalida::::e

or make dangerous the direction on this cuestion

by the Court of Appeal in Western Australia.

WILSON J: 

Just before you go on with that, Mr Wallwork,

can I take you back to ZECEVIC, the passage that
you read which includes the statement:

There is, however, no longer any rule that

the accused must have retreated as far

as possible before attempting to defend

himself.

The Court there is speaking of the common law,

is it not? Is it applicable to the Code in the

light of the concluding words to section - perhaps

this was not a case in which section 249 applies

but the latter words in section 249:

nor, in either case, unless, before such

necessity arose, the person using such

force declined further conflict, and quitted

it or retreated from it as far as was

practicable.

Is that of relevance?

MR WALLWORK:  Sir, it is, but this case concerned both

248 and 249. His Honour left both of these

sections to the jury in this particular case.

In our submission it would not apply to section 248

in any event, in line with the authorities.

WILSON J:  Yes, but what I am directing your attention to

is to whether on this point the Code is different

from the common law because in 248 the phrase is:

that he cannot otherwise preserve the

person defended from death or grievous
bodily harm.

I merely draw it to your attention.

MR WALLWORK:  Yes, Your Honour, I had not appreciated the

last two lines of section 249.

WILSON J:  There may be a distinction between the Code

and the common law.

DEANE J:	Did you say 248 was relevant?
MR WALLWORK:	Yes, sir.
DEANE J:	What, that the force used was not such as it was 1 ike ly
to cause death or grievous bodily harm in this case?

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~,[R ;.JA.LL~•:ORK:  Yes, that was left to the jury on Ct:13.t

basis, Your Honour, because the applicant's def2~c2

was that he just swung his hand in ·:.,hic:-c

he was holding a knife and that he was not incendi~g

co cause death or grievous bodily harm, and that -

was left to the jury on that basis.

DEANE J:  Well, it does not say "intend", it says:

is not such as is likely, to cause ..

grievous bodily harm.

MR WALLWORK:	Yes.
DEANE J:	Striking at somebody with half a pair of scissors.
MR WALLWORK:	It certainly was left, sir, as a jury question.

Perhaps if I may come to that anyway in the decail

of the factual situation, that aspect of it,

Your Honour, but before I did I might just refer,

if I could, to No 3 on the list of

authorities, ROCHE V REG. This matter arose

in a provocation case in Western Australia before

the Western Australian Court of Criminal Appeal

in May of last year, actually, a very similar

direction given in provocation; of course,

provocation was relevant here. At page 170

of that report of ROCHE, His Honour the former case the assailant had come into his bedroom,

his matrimonial bedroom and found his wife in

bed with a person who she was associating with.

The direction in that case was to the effect -

he killed the interloper and the trial judge

directed that whatever his wife might have

been doing was not to be provocation because

the word was the same, it was the provocation

flowing from the person who was assaulted, in

that case, the deceased.	At page 170
His Honour said:

In considering each of those questions

the jury would be concerned to place the

appellant and the act done by Yensch -

who was the deceased man -

in the total context. In particular, they

would place the act in the context of the

matrimonial breakdown and they would have

regard to the impact which that breakdown

had had upon the appellant whether that
impact as it developed over the period of

separation was until the end perceived by the appellant to be caused by the conduce of Yensch or not. In other words, in

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judging the potency of Yensch's wrongf~l

act upon the mind of the ordinary man

situated as the appellant was as well as the impact which in fact it had upon the

appellant, the jury should not exclude

the cumulative effect which the conduct of

the appellant's wife had had upon him.

It is a jury question, of course, but that

conduct may progressively drive a husband,

he being an ordinary man, to the brink

and it may have driven the appellant to

the brink and had it done so then the

provocative act of the decased can then

be seen to be the last straw which

caused the appellant to lose his power of

self-control and to do what he did. It

is not the law "that the first beginning of emotion must not be earlier than just before the fatal act" not is it "necessarv

that the provocative conduct should be a,

single isolated act. It may be an episode

in a series of incidents, an episode which,

because of what had gone before, proved

to be beyond endurance and led to an onset

of ungovernable passion." And in a case

such as this, it being a case of matrimonial

breakdown which may on the facts be found

to have been caused by the acts of the deceased and by the wife's response to

them, one cannot, I think, sensibly separate

the conduct of the wife from the conduct

of the deceased. It is the conduct of both

in combination which is what "had gone

before" and it was the final act or insult

of the deceased when placed in that setting

which may have pushed the appellant beyond

endurance.

It is submitted to Your Honours that where self-

defence situations arise this direction which

His Honour gave, at 1.4, finally just before

the jury retired, that the apprehension must

come from the deceased and not from his colleagues

is misleading to the same degree as the former

direction was in provocation, in exactly, really,

the same context where there was more than one

person in that case giving the provocation.

The defence here of the applicant was that he

was trying to defend himself from a number of

people who were advancing towards him.

WILSON J:  But it still must be, on the passage you read

from ROCHE, "the final act or insult", and I am not

sure that what is said on provocation here is

relevant to self-defence, but the way you are

applying it, it is still said by the Chief Justice

that"the final act or insult of the deceased", that

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it still must come from the deceased. It is

simply that the resistance of the accused has

been lowered by what has gone before.

MR ~,: . ..\LLWORK: Yes. I think that perhaps I ought to put that

in the context in which it was given. It appears

at page 316 of the papers. If I can take

Your Honours to that. Mr Davies, the defence

counsel said to His Honour after those two

earlier directions which I have referred to

in 1.2 and 1.3 where he said that it was not

other people they ought to be concerned with,

it was the assailant. He said:

There is just one point that worried me,

sir, about your referring to the deceased

having a knife, and also the question of

the others attacking. It seemed to me,
in any event, that if the others are

attacking in concert with the deceased,

that would raise a true self-defence

situation; whether or not the deceased

had a knife.

His Honour said:

Thank you, Mr Davies. I think that question

is answered by the provisions of the CRI~INAL

CODE, and it is quite clear that - and I so

direct you - the question of self-defence

will only arise if the person against whom

the force is used, that is the deceased
person himself, has used force against the
accused. In this context, in terms of the

accused being subjected to an assault of such violence as to cause him reasonable

apprehension of death or grievous bodily

harm, that apprehension must come from the

deceased and not from his colleagues.

He was more or less excluding the acts of the -

or he was in the way the jury would have taken it, quite clearly, in our submission, from the

situation. And it may well be, we say, that

the defendant, the accused man, could have been

very scared, could have been terrified, could

have been anything anyway, such as to justify

his self-defence, but not only due to the actions

of the deceased on his story.

WILSON J:  Could you just elaborate the judge's

reference to the context in this case? Where is

the evidence that would support a view of the

facts ~hat suggested that the group was

advancing on the applicant, in such a way

as to raise a reasonable apprehension that he

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was in danger of death or 3rievious bodily

harm, notwithstanding that the deceased himself

did not have a weapon?

MR WALLWORK:  Yes, I will take you to that, sir. First

of all I take you to page 231, if I may.
To get the sense of it, the last paragraph on

230, it would be better to start there. 1tlhat had happened was the accused had been earlier

involved in a scuffle up near the railway line,

about a mile from where the ultimate incident

occurred and he had been there attacked by a

number of men and rescued by some of his friends.

He had been kicked on that occasion; there

had been - a number of assailants attacked him.

There had been another incident, which is

actually referred to on the same page, 230

opposite B:

"Then I run into Vernon and Billy -

this is in Perth, not far from the incident,

at the top of page 230 at A -

"Then I run into Vernon and Billy. I

asked Billy if he still wanted to fight.

When he said 'No' I just pushed him

and then I asked Vernon about why did he

dob me in to the police when him and me

don't get on.	I said 'Why did you try and
get me into trouble?'	I asked him for a
smash.	He said 'No, I don't want to fight'

and that's when one other slim bloke came

along and starting tearing himself, you

know blowing his mouth, and then the boys

that was with me saw four other boys

run across the road and then the boys I

was with said 'One onto one' and that's
when the other boys, the Garletts and

Gordon Dickie - they all pulled out

knives and screwdrivers and one bloke

missed Ronald with a screwdriver. I thought

Vernon Garlett never had a knife because

I went back to ask him for another smash.

That's when he pulled out his knife. When

I pulled out his knife I walked -

I think it should be "When he pulled out his knife" -

I walked back and that's when I saw - seen -

the police coming and we all walked off.

Then we went back down to the car, had a

drink. I grabbed the two pieces of the

scissors -

I should put in there, he later said that the

reason he said he grabbed the two pieces of

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scissors out of the car was to protect the

oe~son from whose house he had taken those two

~cissors who, in fact, was a school teacher

and he did not want to get him into trouble.

But it is not really relevant, I do not think.

I grabbed the two pieces of the scissors, finished the drink, gave one of the

pieces of scissors to Ronald.	Then we
went all back into town.	On the way

in we had a drink of moselle, as v,e kept

walking around. That's when the New Year

started.

There is tradition here in this town that they

ring the bells just up the road about 50 yards

from where this final incident took place at

midnight.

That's when the New Year started. I think there were bells. That's when

we all walked up and down Hay Street

and they met them boys again and they

all went down to the garden."

Going down to 230E, down to the last paragraph:

" ... and they met them boys again and they

went down to the garden -

that is the supreme court gardens here where the

final incident occurred -

I was still walking around when they started

fighting. Then Sophie come and told me that they had already started fighting.

Then she showed me where they was. Then

we was all at the park. Ronald and someone

was fighting. Me and Barry -

and he is the deceased, Barry.

WILSON J:  And that is the first mention of Barry on that

page, is it not?

MR WALLWORK:	Yes, I think it is, sir.
WILSON J:	So the earlier episode did not - although there

is a reference to the Garletts and Vernon Garlett

is named - - -

MR WALLWORK:	It did not involve the deceased.
WILSON J:	- did not involve Barry at all?
MR WALLWORK:	No, I do not think so.
Me and Barry started fighting.  Then he
didn't want to fight.  Then he went around
the crown and came back and king hit me.

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Then it was just like a brawl, an all-in

go.

So it was a brawling, all-in go then. ivnat

do you mean by that?---Everyone just started

fighting.

You said earlier that after Barry king hit

you some of the boys had knives, so you

took your scissors from your pants and

tried to wound him in the arm. Would you

explain how that happened?--Well, as he

was moving towards me -

P.t.ASON CJ:  What is that reference you said earlier:

that after Barry king hit you some of

the boys had knives.

MR WALLWORK:	Where is the reference, sir, did you say?
MASON CJ:	You at line 6:

MR DAVIES: You said earlier that after

Barry king hit you some of the boys had

knives.

What is that reference to? He said earlier:

Then he went around the crowd and came

back and king hit me.

MR WALLWORK:  Yes. I am just trying to pick that up, sir.

TOOHEY J:  I think what has happened, Mr Wallwork, at this

point of the evidence Mr Davies is apparently

taking the accused through his statement - - -

MR WALLWORK:	That is correct.
TOOHEY J:	- - - that he had earlier given some evidence

of a chronological nature and maybe it is a

reference back to that earlier evidence?

MR WALLWORK:	Yes, I am just trying to pick it up, that is correct, Your Honour.
DEANE J:	It is set out at page 339 in Mr Justice Wallace's

judgment.

MR WALLWORK:	I am sorry, 349?
DEA.J.'1E J:	339, just below D.

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:1ASON CJ: That appears to be it.

MR tvALLWORK:  Yes, thank you, Your Honour. Going back to

page 231:

Well, as he was moving towards me,

there was other boys on the right-hand

side of me, moving towards me too. That's

when I took out my scissors.

I see. So it was Barry and the other boys

moving in to you?---Yes.

Then the answer you gave to him in the	records of interview was 11 Because he had
a knife, it was like first in first served.
Then that's when everybody started fighting and I bolted. 11 When you talk
about 11 everybody started fighting 11 who are
you talking about?---Everyone was there.
him in the arm? 11 Answer -"Will you tell me why you tried to wound

that is the record of interview -

Well, when I stabbed him in one arm it would be useless - one less bloke; he's

out of the way.

If I can take Your Honours over to page 232,

opposite B:

When you struck at Barry with the scissors -

the question had been asked in the record of interview:

Answer: 11He tried to get away'.' Did you

notice him try to get away?---No, I just

kept running.

11 Could you see that
You just kept running.	11 No. When that
he was hurt? 11	Answer:

happened, I run. 11 At that stage, when you

start to run - were you in fact aware that

he was hurt, or did he appear to be hurt?---

No.

Is that when all those other boys chased you?

Answer:  Yes.

What happened at the time was that he ran out of

the supreme court gardens, up here, up to Hay Street,

threw the scissors away and then went and stationed

himself very near a police officer so he could not get caught by the friends of the deceased. At the

top of page 233:

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At the time of the fight at Stirling

Gardens, were you drunk? and you said:

"Yes".

That was in the record of interview:

What is your assessment, looking back,

of the state you were in when you were

having that fight with Barry John Garlett?

---Well, I was drunk but I knew what I was

doing.

If I can take Your Honours to the record of interview

at page 328 of the papers. At page 328, opposite D

is the reference that the accused man had told the

police officers what happened earlier in the night

and it is relevant to this question of provocation

and perhaps self defence:

When we got picked up he gave us a lift

into town and as I was getting out I seen

the scissors on the floor. Then I broke

them in half and then went into town did

a lap around town, thats when me and Buddy

Picket went to the carpark near the Blood Bank

and then me and him started fighting.

That is the first fight .. T:here were actually three incidents I think:

Then Lester Winmar said 'Don't fight dirty'.

Thats when I got the best of Buddy and thats

when they all grabbed me. I struggled to

get away thats when they all poked into me.

I got booted, thats when Sophie Penny shouted

out 'Russells getting mobbed'. Then Aaron -

who was another Penny,-Aaron Penny -

and them other boys heard and then they ran

down and said 'Grab em ..... Thats when I was

still on the ground getting booted and then I found a gap to get out and then I run.

That is the first incident. Going over to page 329,

opposite E:

Q. How long before the New Years

celebrations started?

A.	About an hour.
Q.	So that would have been about

eleven o clock.

A.	Yeah.
Q.	What happened then?

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A. Then Aaron and all the boys sung out to me to come back and then we went back over

the train line to them. Then they asked me

what happened, I told them, then they said

well stick with us and we went back looking

for the boys who mobbed me.	By then they was
gone home.	Then we was walking along back into

town to do laps. Then I run into Vernon and

Billy then I asked Billy if he still wanted

a fight when he said no I just pushed him.

That is the one I have just been referring to.	So
that can be called a "second incident":

and then I asked Vernon about why did he

dob me into the Police.

I have had that retyped, Your Honours, it is not a

very good copy. I hand up typed copies of that page:

I asked Vernon about why did he dab me

into the Police ..... I said why did you try

and get me in trouble for and I asked him

for a smash.

And I have already read all that out when it was

being put to him by his counsel. And that is the

second incident, but perhaps I should mention that:

Thats when the other boys, the Garletts,

and Gordon Dicky they all pulled out knives
and screwdrivers. And one bloke missed
Ronald with a screwdriver and I thought
Vernon Garlett never had a knife because I
went back to ask him for another smash. Thats

when he pulled out his knife. When he pulled out his knife I walked back and thats when we

all seen the Police coming and we all walked

off.

There were a number of knives found after this

incident by the police in the park: 

Then we went back down to the carpark and

had a drink. I grabbed the two pieces of
the scissors. Finished the drink gave one

of the pieces of scissors to Ronald then

we all went back into town.

Then we went down to the garden:

I was still walking around when they

started fighting.

It is quite clear, I think, he was not in the first

fight from the other evidence in the papers:

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then Sophie come and told me that they

already started fighting. Then she showed

me where they was, then we was all at the

park Ronald and someone was fighting, me

and Barry -

that is the deceased, the first mention of Barry -

started fighting then he didn't want a

fight then he went around the cro¾d and

come back and king hit me. Then it was

like a brawl a all in go then.

You said earlier that after Barry King

hit you some of the boys had knives so you

took your scissors from your pants and you

tried to wound him in the arm.	Would you
explain how that happened?
A.	Because he had a knife it was like

first in first served then thats when

everyone started fighting and I bolted.

Q. Will you tell me why you tried to

wound him in the arm?

A. Well when I stabbed him in one arm it

would be useless, one less bloke he's out of

the way.

Q. Barry sustained a stab wound to his

throat and chest in the region of his

collarbone, do you think that would be the

result of your blow with the scissors?

A. I don 1 t know because I didn 1 t hear any

noise or anything like that.

Q. When you struck at Barry with the scissors

what did he do?

A.	He tried to get away.
Q.	Could you see that he was hurt?
A.	No. When that happened I run.
Q.	Is that when all those other boys

chased you?

A. Yeah.

So that was his record of interview to the police

officers. At page 214, there is further evidence

on the self-defence aspect, opposite D:

Did you go ..... dm-m to the Supreme Court

Gardens?---Yes. My cousin Sophie came and

told me that they had already started fighting.

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Penny

So your cousin Sophie told you about a

fight and you went down?---Yes.

Did anyone go with you?---Sophie and

Cameron Penny.

There was an older man, but a relative. And by

the way, Aaron Penny, that is another Penny, was

found afterwards lying on the ground. Somebody

had knocked him out with a bottle and he also had

a knife in his hand:

Did anyone go with you?---Sophie and

Cameron Penny.

When you got down there, what was your

first impression of what was happening?---

Lloyd Garlett and Ronald Williams was

fighting, and I seen blokes down close by,

steps in. 11 and I said 11 I'll take the next bloke that

I think that is his first involvement:

Why did you say that?---To warn them to stop getting up on Ronald.

And then did you get involved?---Me and

Barry Garlett.

Yes. How did that first start off - that

you and Barry Garlett?---Well, he was on

the other side and he was walking up, past,

and I hit him.

MR DAVIES:  How did he respond to

that?---We both just started fighting.

How long did that go on?---Not long.

Did anyone intervene at that stage?---

Aaron broke us up.

When Aaron broke that fight up, what did

Barry do?---He went back in the crowd, and come back out and king hit me.

When he came back and king hit you, was he

on his own or was someone with him?---No.

There was a few blokes with him.

Did you notice anything about this crowd

that came back?---They had irons and knives

or screwdrivers - whatever it was.

That is the real reference, I think, Your Honour

the Chief Justice was asking me about, that is at

page 215, opposite E. And he was asked:

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Penny

When you talk about "irons" -

what are you talking about.	And he meant some
kind of metal rod.	And opposite D:

What about Barry Garlett himself?

Did you·,notice anything about him?---1

seen something shining in his left hand.

So when that happened, what did you do?---

1 drew out my half of the scissors.

Why did you draw out your half of the scissors?---To defend myself.

And how did things develop from there?---

Well, I took a swing at his arm, missed,

and run.

Why did you take a swing at his arm ..... Because if I hit him in one arm, he would be useless;

one less bloke out of the way.

Did you connect with him?---No .....

Having taken the swing at him, what did you do?---Missed and run.

Why did you run?---There was too many of

them.

Did you give any thought to what might have
happened to you if you had stayed there?---Yeah.

If I'd have stayed, I probably would have

got bashed too.

Did you see Barry John again?---About

50 yards away from - - when I was running

I looked back and I seen him.

He then told the jury how he had run up to the park.

TOOHEY J:  He also said at the top of page 217, Mr Wallwork,

that as he went away from Barry:

He seemed to be bleeding.

MR WALLWORK:  Yes, that is right. If I can take Your·Honours

to page 301 of the transcript, which was

His Honour Mr Justice Olney. He there set out, in

some detail, this question of reasonable doubt and

at page 303 he dealt with the atmosphere on this

evening, at the top of page 303:

It is quite remarkable, you might think,

that we have had something like 10 so-called

"eye-witnesses" of a single event testifying

16

PlT2/6/SR	27/10/38
Penny

in Court, and I doubt that any two of the• give completely consistent descriptions of what occurred - but that is not unusual, as

it happens, in courts and you will of course

have some thought in considering the testimony

of the witnesses to the circumstances in

which the event happened; the condition, in

some cases, of the witnesses. Some of them

had been drinking; some of them had been

smoking - - I'm not sure whether pot or

dope, but I understand that is something to

do with cannabis or marihuana. They had been

smoking some substance - some of them - and

of course it was a situation where there were

a lot of people around and the atmosphere

no doubt was highly charged.

I think one of the policemen said, there were about

60 people there when he arrived:

You bring to bear upon all those circumstances

your common sense and sort out the important

issues, and look to the testimony of the

witnesses to see how it measures upon the

various issues requiring your consideration.

And at page 308 His Honour dealt with the question

of self-defence- yes, page 308, opposite E:

One then has to move on to this

question of self-defence, because obviously

if the provisions relating to self-defence

apply in favour of the accused ..... the

killing will be justified or excused by law.

As you have been told by the Crown Prosecutor,

there are two separate situations where

self-defence can come up. We have first the

situation where a person is unlawfully

assaulted and has not provoked the assault.

That is section 248:

In this context, the word "provoked",

although it does have a special legal meaning

in other contexts about which I will speaker

later, "provoke" has its ordinary dictionary

meaning ..... it is lawful for him to use

such force to the person who has assaulted

him "as is reasonably necessary to make

effectual defence.

He then went on to deal with that. But before taking

Your Honours through that, if I can take Your Honours

to the question on page 3 of the submissions. 2,

down the bottom of our submissions. It is submitted

that the learned trial judge did not correctly put
the onus of proof when he said at page 315B of the

papers:

PlT2/7/SR	17	27/10/88
Penny

To consider provocation, and indeed to

consider self-defence in the context of

this case, you will probably - I think

you will certainly have to draw some -

make some finding as to whether the deceased
person was armed with a knife at the time

of the combat in the gardens, and whether

he produced that knife in the course of the

fight with the deceased. As I understand

the evidence the accused is the only person

who says that the deceased had a knife at

the time - - -

TOOHEY J: Just interrupting you there, Mr Wallwork, did the

accused say that the deceased had a knife?

MR WALLWORK:  Yes, he saw something flashing, that part, yes.

TOOHEY J: Yes, I appreciate that, but he did not, in terms,

say that the deceased had a knife?

MR WALLWORK:  No, Your Honour:

but that does not mean to say that you

judge a case like this by the weight of

numbers. You would have to judge the

credibility of all of the witnesses,

including the deceased, in coming to the

conclusion of whether or notthe deceased

had a knife in the course of that fight.

It would seem to me a necessary conclusion

as a matter of law that unless the deceased

was armed with a knife in the course of

that fight and did threaten the accused

with it, then the questions of self-defence

and provocation simply do not arise.

And if it please Your Honours, that direction does

not take into account the question of reasonable

doubt and we would submit it is a misdirection

and by itself would justify a retrial. His Honour,

the former Chief Justice, Mr Justice Burt also

in ROCHE on the same page, 170, put it the way we think it ought to be put and that is in the first

paragraph down:

The questions for the jury then

were whether they were satisfied beyond

reasonable doubt that the act of the

deceased was not such as to be likely when

done to an ordinary man to deprive him

of his power of self-control and to cause
him to do what he did - the objective

question - and if not so satisfied then

whether they were satisfied beyond reasonable

doubt that the act which caused Yensch's

death was not done by the appellant in the
heat of passion ..... and before there was time

for his passion to cool.

PlT2/8/SR	18	27/10/88
Penny

And in KERR's case, which is the fourth on our

list of authorities, it was put a slightly different

way by the judges in New Zealand, at page 344.

At page 344, Their Honours were quoting from

PALMER's case in England and they said:

A jury will be told that the defence

of self-defence, where the evidence makes

its raising possible, will only fail

if the prosecution show beyond doubt that

what the accused did was not by way of

self-defence.

It is another way of putting it, but it is in stark

contrast to what His Honour said here, on our

submissions, six lines down on page 4:

It would seem to me a necessary conclusion

as a matter of law that unless the

deceased was armed with a knife in the

course of that fight and did threaten the

accused with it, then the questions of

self-defence and provocation simply do not

arise. That will be a fairly fundamental

matter.

His Honour should have said, "if you are left in any

reasonable doubt about it, then the accused is entitled

to the benefit of that doubtn or words to that effect

"at that time", because he went on - - -

WILSON J:  So it is the question of onus that you are attacking

in this statement?

MR WALLWORK:  Yes, Your Honour. Then he went on in the

next one, 3. The learned trial judge further

directed the jury in much the same way when after

a retirement of approximately one and a half hours,

the jury asked whether the fact of the deceased

being armed was relevant to the question of

provocation. His Honour said:

It seems to me that in the facts of this

case the only wrongful act on the evidence

that could be said to amount to a

wrongful act to bring in this question of

provocation would be if you found that

the deceased pulled a knife on the accused

in the course of that fight. If that was

so, if you could reasonably conclude that

the deceased committed a wrongful act -

not if you have got any reasonable doubts about it -

it would be for you to say whether in the

circumstances as they existed at the time,
whether to do that to an ordinary person would

deprive that person of his power of self

control and so on.

PlT2/9/SR	19	27/10/88
Penny

But that appears at page 322 of the appeal papers

and it had arisen, as I say, after about three hours

and was the last thing the jury were told and they

had already, obviously,had problems with this because

their question appears at page 317 and note the

time there, Your Honours, is 4.35 and they appear

to have retired about 3. 00 o 'clocli': - an hour and a half I am. sorr-1:

Mr Foreman, ladies and gentlemen, I have

been handed two questions that I understand

you wish me to assist you with. The first

is "Would a stab wound to the arm be regarded

as an act of grievoi.:s bodily harm?" and

the second - - you have asked if I could

"Clarify and repeat the point of law
relating to retaliation in the heat of
passion, and is the fact of the deceased

being armed or not relevant to this point?

And that was the answer His Honour gave at page 322,

opposite C, where he said:

if you found that the deceased pulled

a knife.

DEANE J:  But that has to be understood in the context of

very clear directions about onus of proof?

MR WALLWORK: Earlier on in the case, yes, Your Honour, but

it is quite different, in our submission, to the

way that the Chief Justice put it in ROCHE's case

and the way that they put it in PALMER's case

where it is actually said, "if at the end of the

day you are left in reasonable doubt whether he

had a knife or not"or words to that effect

DEANE J: Except His Honour had said that they must be

satisfied beyond reasonable doubt that the act was

not done in self-defence.

(Continued on page 21)

PlT2/10/SR	20	27/10/88
Penny

MR WALLWORK:  This was at the early part of his direct~o~

V

~ '= s ' that is correct, Your Honour.

DEANE J:	Yes.
MR WALLWORK:	But we say that throughout the direction,at the

end particularly, and with this one after the time

being, that should have been repeated. He actually

said it where I mentioned. He said it on a few times

through his judgment, but we say it is a question of

emphasis, and if you read the judgment the emphasis

is not on that very important aspect of it in the

sense which the jury would have been likely to

have understood it.

WILSON J:  Was any redirection sought on that point?

MR WALLWORK: No, Your Honour.

MR WALLWORK:  So, Your Honours, in submission to you, it is our

submission that there is a combination of matters in

this case which would have been likely, in our

submission, to have misled the jury and deprived the

applicant, perhaps, of a chance of acquittal, and

the special leave point is that this is the second

time this aspect has cropped up in Western Australia.

The first time, with respect to provocation and

the second, with respect to self-defence. It is

submitted that if the Full Court, the Court of Criminal Appeal did not find anything wrong i;:ith the direction that you bad to disrega~d the other matters,

that · it is a matter that is likely to come up

again and it is submitted that when a person is

involved in a fracas like this and raises self-defence

and it is left to the jury then it ought to be left

in its total context. That is the ground of the

submission. If it please Your Honours, unless there

is anything further you would like to ask.

MASON CJ:  Yes, Mr Murray.

MR MURRAY:  If it please your Honours, may I commence by

handing up copies of the authorities to which we would

wish to make reference together with an outline of

the respondent's submissions.

MASON CJ:	Thank you.
MR MURRAY:	If it please the Court, those authortties will

probably be found substantially lacking in utility

because, as I have understood my friend's submissions,

no submissions have been made to the Court in relation

to the matter raised at 368 with respect to a failure to

direct about honest and reasonable mistake.

MR WALLWORK:  No, I wish to clarify that:. I do not wish to

argue that; I do not think it is arguable.

PlT3/l/VH	21	27/10/88
Penny

:[R '.·ICRRAY:  Yes, that then occuoied

che bulk of the matter~ to which we direcced 3c:en:~~--

in the authorities that we provided. ~fay I co:::-~"'.ler1.ce.

then, by dealing very briefly, if I may, with the

fact that, in our submission, the matters now, so far

as self-defence and provocation are concerned, have

to be addressed in terms of the jury's verdict of

guilt of murder and it is right, as my friend has
concentrated upon evidence of the applicant in

relation to the issues now raised before the Court,

because it is really that evidence alone which '.vas

capable of giving rise to any coherent statement

upon which the submissions might be based. He had

made, as we have collected the passages in the outline -

in the first paragraph of our outline - some statements
to an investigating police officer,

Detective Sergeant Thompson, and they had not carried the matter very far, so I do not take Your Honours to

them.

My learned friend has taken the Court to the passages in the record of interview which were

substantially raised in connection with that topic and,

again, they did not carry the matter with any
particularity to these issues and my friend picked

up the recitation of the applicant's evidence at

pages214 and 215 and looked at that. So it was

important, in our submission, to see, in terms of
an evaluation of the direction of His Honour the

trial judge, what the factual context was in which

the court was working and what there was which was

capable of giving rise as to either defence, if I

can use that loose terminology. If I can take

"'bur Honours back to 215, in particular, in our

submission, the earlier material which was before
the court in relation to a fracas in the Northbridge

area was really only colour and background material.

It did not carry the ca urt in any relevant way to

matters which would sound in relation to self-defence

and provocation.

That really started at the incident in the

by way of a blow by the applicant upon the deceased.	supreme court gardens and that started by an attack
Apparently that was broken up; the deceased retreated
away from that back into the crowd and one gets the
picture from the witnesses of a milling group of
people. He then came out of the crowd and delivered
his retaliatory"king-hit',' as the witnesses were
describing those blows. There then developed, as
one understands the evidence, an exchange of blows
between the two of them, Garlett, the deceased, and
the applicant, during the course of which, as the applicant says at 215:

I seen something shining in his left hand.

And so the implication was that it was a weapon of

some description, a weapon like a knife, and

Your Honour Mr Justice Toohey has commented that,

PlT3/2/VH	22	27/10/88
Penny

in some of the discussion and some of the comcec',t2:-?

about this, people seemed to have lapsed into the
observation that it was a knife, but that was all

that was necessary to carry it to the point that he

was armed with some weapon and, as he puts it at 215,

it was in response to that that he drew out his

half of the scissors to defend himself. There was

a further development of that as the trial proceeded.

The next passage, very shortly, that we would take the Court to, is at page 223, which he amplified

upon that in that long paragraph at line E. when

he was asked what was his intention when he struck

the blow, he said it was:

Just to put him out of action for the night;

just to stop him attacking me.

Which was a further development, perhaps, of the idea

that he was then defending himself against the attack

which Garlett was launching upon him, which had

undertaken this new element that Garlett was apparently

armed. At 252 there is some further reference to that

in a significant way because, in cross-examination it

was taken up with him by the prosecuting counsel.

The difference in the site and the nature of the blow

which the deceased had actually received from that
which the applicant says was being sruck, aiming a

cross arm sort of blow at the arm of Garlett so as to

disable him, whereas the blow, of course, which

killed him was one received centrally to the front of

the chest just around the breastbone area to the

right and angling back and down into the deceased,

really the classical evidence of the result of a
right-hand overarm blow from an assailant standing

in front of the person who received the wound,

and it was that area which was being discussed with

him at that point when he said that:

He was moving -

at line A -

backwards.

The significance of that does not seem to have quite struck counsel immediately, but he comes back to it fairly quickly and raises the matter again further

down that page. There was further pursuit of that

issue again at page 260 and, at line A, the

question is asked:

He wasn I t having a go at you with the

knife, was he?---He was moving back.

And a man who is moving back you then attacked -

took a swing at him?---I took a. swing at him

because I seen some more other boys coming.

PlT3/3/VH	23	27/10/88
Penny

And that was the extent of the development o: that

then. So the clear picture which one gets from thac

is that, as the blow was struck others were chen

coming and they were somewhat to the rear of Garlett,

one gathers from that.	At the bottom of that page
he reiterates:

Were they all armed with knives at that stage?

---They had knives and - - yes.

WILSON J:	Which page is this?
MR MURRAY:	That is at 260, at the bottom of that page, Your Honour.

So there is reference to those others who were then

coming as he strikes the blow to Garlett who is

retreating backwards - is in the context of other

armed persons then approaching where he and Garlett

were fighting. 270 is the next page which we have

taken the Court to, and at the top of that page

there is a reiteration of the fact that he - this

is now the deceased who is being spoken of, just

before line A:

But he didn't take a swing at you, did he?

---No.

Not with a knife?---Well, he had something shiny in his hand.

And then the questions which are obviously directed

towards the development of the relevant parts of

section 248 or 249 of the Code as to his apprehension

as to what it was at the time, that he did not think

he was going to die or that he was going to be

maimed or hurt, although he said:

I was going to get hurt from it -

from the knife -

if I was moving forwards and he was moving back.

What he there seems to be saying is that as he

moved in to strike this blow his apprehension was

that Garlett may have used the knife to defend

himself. Then he goes on to describe that he chose

to take action, there was no reason necessarily

why he had to do that; he was, as it is put, in the

second-last question on that page:

First in first served - wasn't it? You were

going to get in first, weren't you?---Yeah.

Ans! th.en the conclusion of all that really is at 272,

this is now re-examination where the same issue is

taKen up again. From about line D on th,it page,

defence counsel puts the sequence of events: that

there was a break between the two incidents of fist

blows and that he had noticed Garlett again when

PlT3/4/VH	24	27/10/88
Penny

he came and king-hit him, and, at 273:

At that stage when he king hit you, was he

alone?---No.

Well, if not alone, does that mean there was another person or other people with

him?---No, other people moving in.

Other people moving in. Did you notice

anything particular about those other

people?---They had knives and irons.

And then he was asked could he - at the top of page 274:

have run away -

or could he not and he said -

No.

You couldn't why. Why? They was comin' forwards

and Barry was moving back and when I pulled out

mine, the scissors - - the scissors, when I

pulled that out well, I don't know if it slowed

'em down or not because I took a swing and when

I took a swing I just kept running and that

was when they were still chasing me.

And so that was the extent of the development of that

issue. The totality of that evidence,in the

respondent's respectful submission, made it very

difficult to really effectively run the nature of the

jury's verdict and their view of the factual

circumstances, either the defence of self-defence

or of provocation. But it was important, in our

respectful submission, that the jury did understand

so far as self-defence was concerned, in the terms

of either section 248 or 249, whichever view the jury

took of" the evidence, whichever one of those

sections became the relevant section, that it was

important that the jury understand that
the	justified force in self-defence which could

be used in the terms of those sections was force to

be used against an assailant and so whatever others

were doing it was important that the jury should be
brought to understand that the force had been used

terms of those sections, was that Garlett was an assailant against whom force could be used

against Garlett and it was said in self-defence. within the

justifiably in self-defence and, that is all,

in our respectful submission, the directions of

His Honour were directed towards. He was not saying

to the jury that the whole scene was irrelevant and,

indeed, he referred, in that general passage to which
my learned friend drew the Court's attention earlier,

to the need to keep in mind what the nature of the

PlT3/5/VH	25	27/10/88
Penny

whole picture was, but none the less, within =~e

context of that scene it was important, in our

submission, that the jury understand that upon
whatever view of the evidence they took, the
grounding of the defence would only operate upon

the applicant's response to an assault upon him

by Garlett and therein lay, in factual terms, the

applicant's real difficulty on this ground.

I hope I have developed that sufficiently

clearly. The observations we make about that, so

far as it is said that there is an error of law

involved in the comments that were made by His Honour,

our submission is that they were clearly simply

factual comments designed to relate the context of

the case factually to the directions in law which

had been given and, as I have understood it, no

complaint is made in general terms about the

directions which were given, except, I think, one

complaint which reveals, with respect to my frjend, a misunderstanding about what His Honour was saying

and what part of the law His Honour was dealing with

when he made the observations about which criticism

is directed at 311 of the papers. At line C, my

learned friend takes us to the statements that

His Honour made in that long paragraph which starts:

However, that protection does not apply in a case where the person - in this case the

accused - had endeavoured to kill or do

grievous bodily harm to the other person

before the necessity to preserve himself arose.

So it is no answer that the accused was

assaulted in a life-threatening way by the deceased

if in fact the accused himself has first set about

to cause death or grievous bodily harm to the

other person, and nor in these circumstances,
does the protection of this particular section
apply unless before the necessity to preserve

himself arose the accused has declined further

combat or conflict, or retreated from it so far

as that was practicable.

And that is clearly simply a reference, if the jury

took the view that 249 was the applicable provision

or the potentially applicable provision, to the terms
of that section because that is the section which,

of course, deals with the situation

where the initial assault which is

regarded as relevant to the development of the

factual circumstances was that by the accused.	So
it is said that he was a person who:

has unlawfully assaulted another or has

provoked an assault from another -

and that Garlett then assaulted him -

26

PlT3/6/VH	27/10/88
Penny

with such violence as to cause reasonable

apprehension of death or grievous bodily

harm, and to induce in him -

the necessary belief -

on reasonable grounds.

The development which ,~ppears in that p3.ragraph on

page 311 is then of the proviso or restriction to

that justified use of force in self-defence which

is contained within the second paragraph of

section 249, concluding with the use of the terms:

in either case, unless, before such necessity

arose, the person using such force declined

further conflict, and quitted it or retreated

from it as far as was practicable.

And it was not, at that point, a direction which was

concerned with other than those provisions.

WILSON J: It is a bit unreal to attract 249, is it not, in that the exchange of king hits between a couple of people hardly attracts 249 in the context of a

killing. The assault which would justify a

defence of self-defence could only be the apparent

drawing of a knife by the deceased and, presumably, threatening the accused and whether or not the jury

accepted that depended on their view of the evidence

of the accused and the totality of the other

evidence, and even on the accused's evidence the talk

of him retreating and moving back.

(Continued on page 28)

PlT3/7/VH	27	27/10/88
Penny

~1R '.·1 LR RAY : Ye s , i r i t p l ea s e t he Co u r t . Th a t , Y c 'J r i: : :~ :_'. , r ,

l think is a very fair observation, with res~ect.

But it was n~cessary, I think, to direct - Jnd.

indeed, no complaint is made that there was a

direction which encompassed section 249 because,

l suppose, it was possible that the jury might

take the view that 248 was inapplicable because

the exchange of blows, the fight between the

two involved persons had been initiated by the

applicant.

TOOHEY J: Mr Murray, on your approach to the matter, what

significance, if any, does the existence of ether

persons with whom the deceased had some association,

however ill-defined - - -?

MR MURRAY:  They would be, in our respectful submission,

part of the scene, in the background, which would

colour and give effect in the mind of the applicJnt

to the nature of the assault which was being

inflicted upon him. In other words, if one~has -

I suppose it is put in practical terms in this

statement that the assault by Garlett would have

been of a different character if he was coming

forward as part of a group of persons armed with

knives and whether or not he was then armed.

And there was no evidence that this was the case

but whether or not he was then armed, the nature

of his assault by that threatening behaviour

would be coloured by his participation in what

was being done by a group.

TOOHEY J: If the deceased were, in fact, part of that

group -.;and let us assume for the moment that

there was evidence that the group was bent on

attacking the applicant - does the fact that

one of the members of the group, who happens

to be the one who was killed, is in the process
of moving back at the relevant time enough to

render the defence of self-defence inapplicable.

MR MURRAY:	Yes, in our submission, because it remains always necessary that the person against whom
the force is used, allegedly in self-defence,
was an ass a i 1 ant . If he is behaving in a way w h i ch
is different from the group which is threatening, if that was the case, and specifically in this
case if he is himself in retreat, there can be
no justification in terms of section 248, in our submission, for the use of force against
him.

TOOHEY J:  Yes, you say "in retreat". Do you suggest

the evidence warrants that proposition as opposed

to the deceased moving backwards?

~1R ~1URRAY:  I am sorry. I had not sought to draw a

distinction about that but the evidence of the

PlT4/l/ND	28	27 /lC/88
Penny

applicant was clearly that he was retreating
in at least that sense that he was giving evidence
of declining further conflict himself, at that

point. So there was then, no pressing necessity

in terms of - if you like - the second paragraph

cf section 248 and no capacity to form a belief

on reasonable grounds that the applicant could
not otherwise preserve himself from death or

grievous bodily harm than by using the force

which he did.

So that would be the factual and legal context

1n which we would see those provisions operating,

in our respectful submission. And as we have

observed, it was upon that limited but very central

proposition of fact that the directions to which

attention has been drawn, at 311 firstly and

over on to 312, were being directed. Provision:

does not justify -

at line E, His Honour said -

a person using force against another person

in circumstances where others are attacking

him.

And then His Honour developed that by saying: but the accused says that others of the

deceased's group were in the vicinity and

armed, and it seems to be suggested that

that may be a justification for the
deceased's attack - - for the accused to

attack the deceased Barry John Garlett.

That is not good law. The right of self-

defence ..... applies only against the person

who mounts the attack. It does not apply

simply because there is maybe some other

danger in the vicinity.

It was not, necessarily, a complete statement

of a view of the facts but it was, in our respectful

submission, a very necessary observation to make
in the context of the facts of this case.

In our respectful submission, the Court of Criminal Appeal examining this matter in the

context of the evidence dealt with it rightly,

in our respectful submission, to conclude that

no miscarriage of justice could possibly have

developed in the way in which His Honour the

trial judge dealt with the case upon that issue.

The only other matter I think which needs

to be addressed in relation to that is that -

PlT4/2/ND	29	27 /10/88
Penny

Jnd mv learned rriend oicks up the observati n~ at Jl§ of the papers. ·He does so in the ccnte~t cf a submission that the concern is the way it

impinges upon the onus of proof. There, cf course.

the observation is made in the context of whether

or not Garlett was armed in relation to the matter

cf provocation. And all that His Honour is saying,

in that passage between lines Band D to which

attention has been drawn, in our submission,

is that before the matter of provocation may

be raised to be ultimately negatived to the

required standard by the Crown there must be

some evidence of a provocative act within the

terms of section 281 of the Code or, if you like,

as it is dealt with in section 245 of the Code,

the wrongful act, which is said to give the

spring-board to the issue of provocation, and

it must be right, in our submission, that unless

there is a finding by the jury of such an act

the defence of provocation, if you like, is

necessarily then negatived by the Crown at that

in limine point of its consideration.

And it is that aspect of it rather than

a direction about the ultimate onus of proof
in relation to the matter of provocation at issue,
to which the direction, at page 315 is concerned.

So far as the onus of proof is concerned, our

submission is that His Honour's directions were

clear at all points. One starts with page 301D,

a paragraph dealing with the various elements

and ingredients of defence and the onus o f s tan d a rd

of proof is there referred to in correct terms.

At 304, between lines D and E, there are other

observations simply about consideration of all

the evidence but, again, in the context of the

onus of proof, correctly stated, in relation

to those issues.

After the luncheon adjournment, when

His Honour resumed his address, at 307 of the

papers, he started by further reference to the

onus of proof in relation to establishing the

elements of the offence and then he commenced,

at line Din that paragraph, with:

the question of whether the killing was

authorised, justified or excused by law - They talk about matters of defence or excuse or

justification and the first to which he referred

there would be - at line E, His Honour said:

that the killing was not accidental, and
it would be for the Crown to prove that

the killing was not committed in self-defence -

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and so there is that development ot 1t. At

312B, His Honour again puts it in terms C,::. L,

If you are satisfied beyond a

reasonable doubt, first that the accused

inflicted that stab wound and thus caused

the death, that that wound - - that is that
that death was not accidental in the manner

that I have described to you, and that it

was not done as an act of self-defence within

the limits of that concept as I have outlined

it to you, you would then be in the position

of having concluded that there had been

an unlawful killing.

His Honour directed the jury to go on to the

question of intent. And as to that, at line D

on the following page, again, his remarks

conclude about that with the reference to it

in the terms of the onus and standard of proof.

And so all of that led up to the question

which was developed then at 315 of considering

provocation. His Honour 1 s remarks commenced

with the observation that - at line A:

Remember it is for the Crown to satisfy you that the accused was not

provoked into stabbing the deceased; the

accused does not have to prove that he was

provoked but rather the Crown must satisfy

you beyond a reasonable doubt that he was

not provoked, and if you have any doubt

then you must give the accused the benefit

of that.

So that the remark which then follows to which

we have directed attention followed all of that

and, in our submission, the way in whi~h His Honour

developed that before the jury was one which

was calculated to ensure that they had before

them a very clear and correct understanding of

the question of onus and standard of proof in

relation to the issues which the case was said

to throw up.

After the redirection, as my learned friend

has indicated, at 317, the indication is that

after some period of retirement the jury wanted
clarification and repeat the point of law relating

to retaliation in the heat of passion and when

His Honour came to that, at 322, and then the	remark which was made about on 11 the facts of	case 11 the question of the wrongful act which
might amount to an act of provocation which would
bring the question of provocation to a live issue,
His Honour is there not talking in terms of the
onus or standard of proof at all in relation

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tc the dispcsiticn cE that issue but the ~eej

tc simply find a factual basis for its ccnsiderJt!

at the outset. And in the context cf the facts

cf the case, cur submission is that tc speak

cf it in terms of the deceased being armed and

threatening harm, being armed, was the appropriate

reference to the only thing which cculd possibly

constitute an act of provocation so as to give

rise to consideration cf that matter at all.

As we have seen, the real difficulty then was, of course, that the evidence in truth, in our submission, did not take the case in a way which truly gave rise to any live question of

provocation. May it please the Court, l think

I have covered the matters which my learned friend

raised. Unless there are any matters that the

Court has, I conclude my submissions there.

MASON CJ:  Yes, thank you, Mr Murray. Yes, Mr Wallwork.

MR WALLWORK: Just to very briefly reply, Your Honour:

the direction given at page 316 was in front

of the jury after the defence counsel had clearly

raised for His Honour 1 s consideration whether

or not the question of others attacking was relevant

and His Honour completely clearly said, in effect,	"No, it isn 1 t, you 1 ve got to disregard it." and
then they came back again and again.	The directicn

complained of at 322 failed to mention ''beyond

a reason ab 1 e doubt 11 and i t i s our s u bm i s s i on

that in any criminal case, but especially where

a life term is involved and this could very easily
have been a manslaughter verdict, it was a jury

question, and the jury did not have the prime defence excluded that he was in fear with the others advancing on him, firstly on the self-

defence, and, secondly, were misdirected on

provocation.

So we say he must have been in danger of

losing his chance of acquittal due to the directions.

That is all I would like to say, Your Honours.

MASON CJ:  Thank you, Mr Wallwork. The Court will take

a short adjournment in order to consider the

course it will take in this matter.

AT 11.10 AM SHORT ADJOURNMENT

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CPON R~SlMLNG AT 11.16 AM:

MASON _J: We are not persuaded that in the light cf the

evidence in this case the trial judge erred in

the directions which he gave to the jury. The

evidence was such as to justify the directicn

that the issue of self-defence cnlv arose 1:

the deceased was armed with a knif~ or other

weapon, notwithstanding the presence in the

vicinity of other persons associated with the

deceased.

The applicant submits that the direction

would have misled the jury as to the onus of

proof. However, the particular direction must

be read in the context of the entire summing up in which His Honour had earlier correctly

explained the onus to the jury.	No redirecticn
was sought upon the point.

Although the trial judge left the issue

of provocation to the jury, we are not persuadej

that there was evidence of loss of self-control

fit to be considered by them. In the circumstances,

there was no mistrial or miscarriage and the

application for special leave must be refused.

AR 11.17 AM THE MATTER WAS ADJOURNED SINE DIE

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