PRFN v The Queen

[2001] HCATrans 202

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Sydney  No S205 of 2000

B e t w e e n -

PRFN

Applicant

and

THE QUEEN

Respondent

Application for special leave to appeal

McHUGH J
HAYNE J

TRANSCRIPT OF PROCEEDINGS

AT SYDNEY ON FRIDAY, 22 JUNE 2001, AT 2.55 PM

Copyright in the High Court of Australia

MR P.R. ZAHRA, SC:   If the Court pleases, I appear in this application with my learned friend, MR R.J. BUTTON.  (instructed by Legal Aid Commission of New South Wales)

MR A.M. BLACKMORE:   If the Court pleases, I appear for the respondent with my learned friend, MR M.C. MARIEN.  (instructed by S.E. O’Connor, Solicitor for Public Prosecutions (New South Wales))

McHUGH J:   Yes, Mr Zahra.

MR ZAHRA:   Thank you, your Honour.  This application for special leave concerns a matter of fundamental importance to the application of the test of self‑defence.  In this Court’s decision in Zecevic, the joint judgment in Zecevic states that – this is at page 661 and there is, in fact, an extract in the application book at page 107:

“The question to be asked in the end is quite simple it is whether the accused believed on reasonable grounds that it was necessary in self‑defence to do what he did.

The primary question in this application is whether the Court, by this statement, intended to replace propositions 1 to 6 which were set out in the judgment of Justice Mason, as he then was, in this Court’s decision in Viro, in other words, whether Zecevic had intended to replace those propositions with a single or complete or self‑contained test of self‑defence founded on the belief of the accused on reasonable grounds that it was necessary in self‑defence to do what he did.

The second aspect of this application is to raise the question that if it was not intended by this statement in Zecevic to displace all the propositions in Viro, whether propositions 1(a) and 1(b) have, in fact, been retained.  If I could just briefly refer to those propositions.  An extract appears in the application book at page 80:

1(a)  It is for the jury first to consider whether when the accused killed the deceased the accused reasonably believed that unlawful attack which threatened him with death or serious bodily harm was being or was about to be made upon him.

(b)  By the expression “reasonably believed” is meant, not what a reasonable man would have believed, but what the accused himself might reasonably believe in all the circumstances in which he found himself.

The outline of argument refers at some length to the trial judge’s reasoning from paragraphs 20 to 27 in the application book at 108 from which it is argued that his Honour has, in fact, applied proposition 1 in Viro.  The Court of Criminal Appeal noted that his Honour used the terminology of Viro, however, did not expressly state that his Honour was in error.

McHUGH J:   One problem I have, at the moment, in understanding your argument is that I am just having some difficulty in perceiving what is the problem.  The judge accepted the applicant believed he was living under the continuing threat of further abuse from the deceased and for the purpose of the argument he seemed to accept that the applicant held this belief on reasonable grounds.  However, in accordance with the test in Zecevic, the judge held that the accused had to believe upon reasonable grounds that it was necessary in self‑defence.

MR ZAHRA:   Yes.

McHUGH J:   On that issue, particularly having regard to the timing of the threat, the judge held that he just had not made that out as a matter of fact or a jury could not fight it in your favour as a matter of fact.

MR ZAHRA:   Yes.  Your Honour, we submit that, in fact, the trial judge had applied Viro proposition 1(a) and (b).  We would submit that there is, in fact ‑ ‑ ‑

McHUGH J:   I know you submit that but I do not see, myself, at the moment, unless you can take me to the precise passage where he did apply the first proposition as a threshold test as opposed to an evidentiary element.

MR ZAHRA:   Yes.  Your Honour, can I take your Honours to the outline of argument at paragraphs 20 to 27.  It is in the application book at 108.  Your Honour, can I say this firstly, that the reason that this is, in fact, a fundamental issue is that the test in proposition 1 in Viro is, in fact, quite a different test to the test in Zecevic.  The emphasis in Zecevic is on the belief of the accused on reasonable grounds that it was necessary in self‑defence to do what he did as distinct from proposition 1 that:

the accused reasonably believed that unlawful attack which threatened him with death or serious bodily harm was being or was about to be made upon him.

So, it is submitted that there is, in fact, quite a significant difference in the test, one requiring the accused to reasonably believe that there was an imminent attack as distinct from the proper test in Zecevic, a belief that the act was necessary in self‑defence.

McHUGH J:   No, but had that been held in Rogers, for example, that the test in Zecevic requires consideration of the imminence of threat as one of the factual circumstances to be taken into account in going to the reasonableness of the accused’s belief?

MR ZAHRA:   Yes, your Honour, but, in fact, it is a matter of fact, not a rule of law.

McHUGH J:   That is what I was asking you about because I did not see the judge dealing with the matter as a matter of law as you maintain.

MR ZAHRA:   Yes.

McHUGH J:   And that is why I was asking you to take me to the passage which you say is your best support for your proposition.

MR ZAHRA:   Yes, can I take your Honours, in fact, to the outline of argument at page 108 at around line 14.  His Honour went on to say:

“The observations made by the majority in Zecevic do not, in my view, cut down the requirement of imminency as stated by Mason J in the first of the propositions he then adumbrated.  The Court’s statement relating to what should be directed to the jury, when dealing with the factual issue which has been referred to as calm deliberation on behalf of the accused, plainly enough goes to the events at the time, that is the time when the killing took place.”

Secondly, the passage at about line 37 where the outline of submissions note his Honour rejected the submissions that are there referred to and said:

“The phrase used by Mason J in Viro did not use the word “immediate” he said, as I have already set out, that the attack was one “about to be made upon him”.  In terms of plain English, “about to be made” in my view involves an attack which is very imminent indeed.”

Then over the page at 109 at the top of the page:

“In my view there is nothing in the evidence which could give rise to a realistic hypothesis that an attack was about to be made by the deceased on the subject night or, indeed, in the immediate future.”

Then on the same page at about line 39:

“Here it was an apprehended harm rather than the threat of immediate harm which was the matter which gave rise, on the uncontested evidence, to the accused’s actions”.

Ultimately, if I could take your Honours to page 10 of the application book which, in fact, is the closing statement in his Honour’s judgment, the terminology there clearly is, in fact, the exact terminology in Viro.

HAYNE J:   But can we come back to the facts?  His Honour at pages 2 and 3 dealt with it on the basis that there was no factual dispute that the attack was intended to kill the deceased, that the accused had invited the deceased to come over and that he had done so on a particular basis and that he invited the deceased to come to the property having formed the intention of killing him and had put in place a plan.

MR ZAHRA:   Yes.

HAYNE J:   In light of those facts, how was self‑defence a real live issue at this trial?

MR ZAHRA:   Your Honour, accepting that the test of self‑defence in Zecevic requires the accused’s belief, primarily, on reasonable grounds, the application ‑ ‑ ‑

HAYNE J:   I understand that but what were the facts that made self‑defence a real live issue?

MR ZAHRA:   Can I take your Honours again to the outline of argument, particularly paragraph 11, and that is at page 105 of the application book at about line 50, the recitation there to the state of mind, and, in fact, going over the page also that there were a number of different excerpts as to his state of mind.

Also, your Honour, at paragraph 29, which is at page 110 of the application book, I have listed in point form the other factors which go to the question of the accused’s subjective belief and it is submitted that those matters in point form also refer to matters of an objective nature, which the jury were in a position to assess and, in fact, assess the question of the reasonableness, whether the belief was on reasonable grounds, particularly the fact that whilst there had been a period of time between the sexual assault and, in fact, the killing, that there were a number of other matters, particularly phone calls and chance meetings, which propagated the threat, that the threat was, in fact, therefore continuous, it not being withdrawn and it remained immediate and on that basis that there was a realistic hypothesis accepting that the test in Zecevic requires the subjective belief that the acts of the accused were necessary in self‑defence.

That belief is on reasonable grounds.  This, in fact, highlights the issue that I had referred to at the outset that there is quite a difference between the Zecevic test and the test in Viro in proposition 1 because 1 talks in terms of a reasonable belief of the imminence of the attack.  That is the Viro propositions and the belief that the act was necessary in self‑defence.

So, your Honour, this, is, in fact, the point of primary importance whether Zecevic is a complete test or whether there is this additional state of mind, there is this additional belief, quite apart from whether you believe that your actions are necessary in self‑defence, whether there is an additional requirement that there also be a reasonable belief that there was an imminent attack.  It is submitted that his Honour the trial judge in the Court of Criminal Appeal propagated the error of concluding that Viro No 1 still applies.

McHUGH J:   But, Mr Zahra, assume for the moment in your favour that one did not agree with everything the learned trial judge said, why is not the actual decision correct?  I mean, how could a judge possibly leave self‑defence to the jury in this particular case?

MR ZAHRA:   Your Honour, only that I could repeat that as the test in Zecevic is the question which refers to the reasonable belief of the accused on reasonable grounds and refer to those matters that I have referred to.

McHUGH J:   But there must be reasonable grounds for the belief.

MR ZAHRA:   Yes, your Honour.  As submitted that whilst there was a period of time between the sexual assault that there were other matters such as the phone contact, the statements, the sexual references in phone contact, the chance meetings, those matters could be considered to be objective support to the fact of the continuation of the threat, the fact that it had not been withdrawn and remained immediate.

Your Honours, it appears also and, in fact, my friend may seek to clarify this issue, but also from my friend’s outline of argument that it appears that my friend does not suggest that Viro No 1 or 2 has been replaced by Zecevic and it is submitted also that the Court of Criminal Appeal, after referring to the matters that I have taken your Honours to about the factual matters and also the references to Viro No 1, that the Court of Criminal Appeal, in fact, did not expressly state that Viro No 1 no longer applies.

So the first point of fundamental importance relating to this application is the question of whether Viro No 1 has been displaced by the decision in Zecevic.  There is, in fact, the additional question that this application raises and that is the question whether the judgment in the Court of Criminal Appeal in this matter requires a separate threshold test that the acts of the accused must be in response to an actual imminent attack.

It is submitted, consistent with the applicant’s written submissions, that the issue of “imminent attack” is not a threshold test but one of the circumstances, for example, along with proportionality relevant to the question of reasonableness of the belief of the accused.  It is not suggested that imminence is not a material consideration.  It is accepted that imminence touches not only on the subjective belief of the accused but also on the objective considerations, whether there were reasonable grounds for the belief of the accused.

This application is not concerned with rearguing, as the appellant did in Zecevic, that the question is solely whether the accused believed that there was an imminent attack.  It is accepted that the judgment in Zecevic makes it clear that the test of self‑defence has both subjective and objective components.  It is accepted that the statement in the judgment of the Court of Criminal Appeal that is in the application book at page 83 is correct in that regard.

McHUGH J:   What do you have to say about pages 87 to 88 in the Court of Criminal Appeal’s judgment?

MR ZAHRA:   Yes.

McHUGH J:   At the top of 88:

Even if there were infelicities in the way the trial judge expressed himself, it is necessary that the ruling  . . . not be left to the jury was wrong.

MR ZAHRA:   Your Honour, before that the court leant to refer to propositions in Viro and, in fact, went to various judgments in Viro.  It also, by that time, had referred to his Honour’s references to Viro and it is submitted at that point in time that the Court of Criminal Appeal should have made it very clear that it was wrong to follow the propositions of Viro 1(a) and (b).  But, in fact, it did not do so and that, it is submitted, raises quite some concern.

McHUGH J:   At 87, his Honour said:

Rather, as his Honour’s citation from R v Rogers demonstrates, he treated the imminence of any threat to the appellant as an important factual consideration relevant to . . . reasonable grounds ‑ ‑ ‑

MR ZAHRA:   Yes.  Your Honour, whilst there was reference to Rogers, we certainly would submit that the judgment in Rogers is, in fact, correct so far as the application of imminence.

McHUGH J:   Yes.

MR ZAHRA:   And referring to the Chief Justice’s remarks in that, the extract in the application book at page 86:

This is why, historically, it has been regarded as important to seek to limit the scope of the defence by referring to requirements such as urgency and immediacy.  However, I accept the appellant’s submission that, consistently with the approach to self‑defence taken by the High Court in Zecevic, it is now more appropriate to treat those ‘requirements’, not as technical legal conditions for the existence of necessity, but as factual considerations relevant, and often critically relevant, to the issues of an accused person’s belief –

But, your Honours, when one goes to the bottom of page 88, the ultimate disposition of the matter was such that this is noted:

The appellant was not being attacked or anything like it, and to return to R v Rogers the critical element of imminence of a threat was lacking.

Now, it is submitted, whilst there is reference to Rogers that there is quite a substantial and significant difference between imminence being a critically relevant factual consideration and what is stated here, “critical element of imminence of a threat”.  That, it is submitted, has, in fact, done what was concerning the High Court in Zecevic, that there is a concern to elevate matters of fact to rules of law and it is submitted that this decision, even though it does refer to Rogers, makes a critical statement which is, in fact, different.  “Critically relevant factual considerations” determined Rogers and here “critical element of imminence of a threat”.

It is submitted that if this decision is allowed to stand in light of the references to Viro and I would presume, if my reading of my friend’s submissions is correct, that it is his view that Viro No 1(a) and (b) still exist, that there are twofold questions here, whether it still does exist and secondly, whether, in fact, there is a threshold test.

I understand that, in fact, overnight, my friend has placed an additional authority before the Court which, in fact, is the matter of Osland and I understand my friend is intending to rely on paragraph 172 of that judgment and the comments of Justice Kirby in a situation where there is an act which is not in response to an imminent attack but in a situation where

there still is a belief on reasonable grounds that the act was necessary in self‑defence.

The submission in relation to that particular passage is that, in fact, it only lends to highlight the fact that there is an issue here as to whether there is a threshold test, a requirement of the response being to an act which is imminent rather than one which has the effect of resulting in the belief of the accused on reasonable grounds that it was necessary in self‑defence.

McHUGH J:   Your time is up, Mr Zahra.

MR ZAHRA:   Thank you.

McHUGH J:   We need not hear you, Mr Blackmore.

The Court is not persuaded that there is any arguable ground that there has been a miscarriage of justice in this matter.  Special leave to appeal is refused.

AT 3.15 PM THE MATTER WAS CONCLUDED