R (Respondent) v Brian James Gillman (Appellant) No. SCCRM 94/251 Judgment No. 4742 Number of Pages 8 Criminal Law and Procedure Jurisdiction, Practice and Procedure (1994) 76 a Crim R 553

[1994] SASC 4742

COURT IN THE COURT OF CRIMINAL APPEAL FULL COURT OF THE SUPREME COURT OF SOUTH AUSTRALIA MOHR(1), DEBELLE(2) and NYLAND(3) JJ

CWDS
Criminal law and procedure - jurisdiction, practice and procedure - judge's summing-up - Appeal against conviction - failure of trial judge to fully direct jury as to significance of questions of fact - inadequate direction of trial judge of the distinction between s15(2) (a) and s15(2)(b) of the Criminal Law Consolidation Act - definition of "self defence" within the meaning of that Act - inadequate direction as to meaning of "criminal negligence". Criminal Law Consolidation Act 1935s15.

HRNG ADELAIDE, 18-19 July 1994 #DATE 24:8:1994 #ADD 13:3:1995
Counsel for appellant:     Mr D H Peek
Solicitors for appellant:    Sykes Bidstrup
Counsel for respondent:     Ms W J Abraham
Solicitors for respondent: DPP (SA)

ORDER
Appeal allowed

JUDGE1 MOHR J The appellant was charged with the murder of Milan Ceranic on the 20th March 1993. He was found not guilty of murder but guilty of manslaughter. He appeals against that conviction.

2. The incident which gave rise to the charge occurred at about 6 a.m. on 20th March 1993 at the north western corner of the intersection of Morphett Street and Franklin Street Adelaide.

3. There were seven witnesses who gave evidence relevant to the circumstances of the incident and I will refer to some of their evidence in due course.

4. The prosecution set out to prove that the appellant had struck a blow or blows to the head of the victim with an iron bar, that he did that intentionally and intending to kill, and that death resulted from a blow or blows struck by the appellant. However, as the case developed it became apparent that the alternative verdict of manslaughter was to be in issue as was a verdict of acquittal.

5. That being so it was incumbent on the learned trial Judge to give the jury directions in his summing up not only as to the law applicable but also to make clear to them that before the legal principles involved were considered they must first find proved beyond reasonable doubt the extent of the appellant's involvement in the incident and in particular whether or not he had struck a blow or blows which caused the victim's death and the circumstances under which the blow or blows were struck.

6. The pathologist who conducted the post mortem gave evidence that the deceased had received a minimum of seven blows to the head probably with a blunt instrument. Near the deceased's body was found an iron bar which could have been but not necessarily was the blunt instrument. He selected one of the blows as the most likely cause of death. That being, as I understand his evidence to the front left of the skull where an operation had been performed to relieve pressure on the brain from bleeding.

7. The first of the seven witnesses was a Mr Beacom who a few minutes before 6 a.m. on that morning was driving north along Morphett Street intending to cross Franklin Street and proceed to the North Adelaide golf club where he was due to start playing at 6.10 a.m. He stopped at the traffic lights south of the intersection and saw three men on the northern side of the intersection. The first was standing on the north western corner facing east. The second was crossing Morphett Street towards the north eastern corner and travelling east. The third had, it appeared almost completed a crossing to the north eastern corner travelling east. As Mr Beacom crossed the intersection he saw the third man turn and attack the second man. He was waving what appeared to be a stick and kicking. A scuffle began and as Mr Beacom looked in his rear vision mirror the two men were still scuffling towards the eastern kerb of Morphett Street. There appears no room for doubt that the man attacked was the appellant and his attacker the deceased. Mr Beacom as he crossed the intersection, saw the first man step off the kerb walking east. He was to his left and the two men scuffling to his right. The first man has never been identified and did not give evidence.

8. The next person on the scene was a Mrs Sperring. She had left the State Bank in Currie Street where she had been cleaning at 6 a.m., the end of her shift. She then collected her car from a car park and drove west along Currie Street and turned left into Morphett Street and travelled south. Her evidence was that she saw two men near the north eastern corner of Franklin Street but in Morphett Street. One was an older man who was clearly the deceased and the other a younger man whom she told the police was wearing a thick round-neck woollen jumper. She said in evidence-in-chief that he was wearing a blue coloured jersey but in cross examination admitted what she had described to the police was a roll-necked woollen pullover. She had seen the windcheater taken from the deceased by the police before she gave evidence. It was a blue coloured windcheater. Mrs Sperring did not identify the appellant at a police "line-up". She described the young man as having a back pack of some sort. I pause here to remark that Mr Beacom had noticed that the man on the north western corner had some sort of shoulder bag. The middle man had had no shoulder bag.

9. She described what she saw as the younger man at first pushing the older man who was retreating until he fell backwards. This suggests that she saw the beginning of an incident rather than a continuation of a previous incident. Mrs Sperring went on to say that she crossed the intersection and stopped. She saw in her rear vision mirror that the young man appeared to have, what she described to the police as a brown beer bottle in his hand, and was beating the deceased about the head. She was cross examined about the weapon being a beer bottle and, to support her belief that it was, said that one did not expect bricks to be lying about in Morphett Street. This was a fair indication that what she saw was not the iron bar. She did a "U" turn and drove back to the two men and said something to the effect that the young man should stop what he was doing. He came to the nearside of her car and she had a clear view of him. She then drove to the Adelaide Police Station to report what she had seen but was delayed there for some time before eventually speaking to an officer at about 6.25 a.m. The time of her arrival at the scene cannot be precisely fixed but it must have been approximately 6.05 a.m. She did not identify the appellant in a police "line-up".

10. It appears that a Mr Bartels was next at the scene. He drove east along Morphett Street. He saw the deceased in Morphett Street on the eastern side struggling to get up. Another man walked south from the north western corner in front of his car towards Light Square. He had a clear view of the man. He saw a taxi travel south from the direction of Light Square and proceed on its way. Mr Bartels did not identify the appellant at a police "line up". He must have passed the scene after Mrs Sperring and left before Mr Rowse appeared. That is after 6.05 a.m. and before about 6.10 a.m.

11. Mr Rowse, a taxi driver had travelled west along Franklin Street but at the intersection with Morphett Street saw what turned out to be an Australia Post van with the driver waving his arms. Mr Rowse turned into Morphett Street and saw the deceased and had a short conversation with the van driver. He made a call to his depot at 6.11 a.m. and the ambulance service was notified at 6.12 a.m. These times were either agreed or not challenged. These were the main witnesses who spoke of the actual events and gave evidence as to times.

12. One other time can be fixed with precision. The appellant was seen at the Casualty Department of the Royal Adelaide Hospital by Dr Raj at 6.18 a.m. He had by that time arrived at the department and been processed so that he had probably arrived a short time before 6.18 a.m. Dr Raj gave evidence that the appellant when he saw him was lying in a barouche and was conscious. He gave an account of having been drinking the previous night and having been struck by what he thought was an umbrella about the head, back and chest. He said he had consumed what Dr Raj noted as being thirty "pegs". That I think can be interpreted as thirty drinks of wine or alcohol from what the doctor subsequently said. He was drowsy with what the doctor attributed to alcohol. He did not know whether he had lost consciousness at any time. There was a laceration to the left side of the scalp which was cleaned and sutured. He also complained of soreness in his back. The time that the appellant was at the Royal Adelaide Hospital had or may have had great significance, especially when related to Mrs Sperring's evidence. There would seem not to be time after she saw the attack she spoke of for the appellant to have walked from the scene to the hospital, nor for Mr Bartels to have seen the appellant at some time before 6.11 a.m. fixed by Mr Rowse if in fact the person leaving the deceased was the appellant.

13. In summary the chronology of events was:-
    1. A few minutes before 6 a.m. Mr Beacom saw the appellant
    attacked by and scuffle with the deceased.
    2. At about 6.05 a.m. Mrs Sperring saw what is described
    above.
    3. Some time before 6.05 a.m. and 6.10 a.m. when Mr Rowse
    must have arrived Mr Bartels made his observations.
    4. At 6.10 a.m. Mr Rowse arrived at the scene.
    5. At some time before 6.18 a.m. the appellant arrived at
    the Royal Adelaide Hospital and by 6.18 a.m. was on a
    barouche ready to be examined by Dr Raj.

14. There was an item of forensic evidence which bears on the events of that morning. Blood samples were taken from a white arrow close to the kerb of the north eastern side of Morphett Street. This showed that there was blood present which could have come from the appellant. There was also blood which could not have come from either the deceased or the appellant. There was blood on the deceased's trousers which could not have come from the deceased or the appellant. The blood which could not have come from the deceased or the appellant was from an unknown source.

15. The appellant did not give evidence but was questioned by the police and answered the questions. The gist of his answers was that he had been attacked by the deceased and struck by an iron bar and kicked. He wrestled the iron bar from his assailant and hit him on the head once or twice.

16. Evidence was lead on behalf of the appellant from a doctor and a neuro-psychologist to the effect that years before his death the deceased had suffered a head injury and had been operated on by opening his skull. As a result he had been left with a condition which left him subject to excessive fits of temper if something happened or was said to him which caused such a loss of temper.

17. This short, and by no means complete, digest of the relevant evidence, in my opinion suffices to show that there were very real questions of fact concerning the activities of the appellant to be resolved and as to his actual involvement with the deceased as those facts fell to be proved by the prosecution either to prove murder or manslaughter the latter especially in view of the provisions of Section 15 of the Criminal Law Consolidation Act as it applies to manslaughter.

18. The learned trial Judge referred to the evidence of the witnesses I have referred to above by recounting a precis of it but at no time did he direct the jury as to the possible significance of the aspects of it to which I have referred nor its possible importance in deciding what facts had been established as to the actions of the accused and his possible state of intoxication. In my opinion this failure was fatal to the summing up. Further in my opinion had the jury been fully and properly instructed on the evidence they must have entertained a reasonable doubt as to the appellant's guilt.

19. However as the jury found the appellant not guilty of murder the question of self defence and the way in which s.15 of the Criminal Law ConsolidationAct is to be interpreted, on the assumption that properly directed the jury found facts requiring it to be considered, remains to be discussed. I note that Mr Peek who appeared for the appellant mentioned that the only basis upon which manslaughter was left to the jury was on the basis of Section 15 and that provocation or unlawful and dangerous act were not considered. In my opinion they were correctly left out of consideration.

20. Section 15 reads:-
    "(1) Subject to subsection (2) -
    (a) a person does not commit an offence by using force
    against another if that person genuinely believes that the
    force is necessary and reasonable-
     (i) to defend himself, herself or another;
    or
     (ii) to prevent or terminate the unlawful imprisonment of
     himself, herself or another;
    and
    (b) a person does not commit an offence if that person,
    without intending to cause death or being reckless as to
    whether death is caused, uses force against another
    genuinely believing that the force is necessary and
    reasonable-
     (i) to protect property from unlawful appropriation,
     destruction, damage or interference;
     (ii) to prevent criminal trespass to any land or premises,
     or to remove from any land or premises a person who is
     committing a criminal trespass;
    or
     (iii) to effect or assist in the lawful arrest of an
     offender or alleged offender or a person unlawfully at
     large.

(2) Where -
    (a) a person causes death by using force against another
    genuinely believing that the force is necessary and
    reasonable for a purpose stated in subsection (1);
    (b) that person's belief as to the nature or extent of the
    necessary force is grossly unreasonable (judge by reference
    to the circumstances as he or she genuinely believed them to
    be);
    and
    (c) that person, if acting for a purpose stated in
    subsection (1)(b), does not intend to cause death and is not
    reckless as to whether death is caused,
    that person may not be convicted of murder but may if
    he or she acted with criminal negligence be convicted
    of manslaughter.

(3) For the purpose of this section -
    (a) a person who resists another whom he or she knows to be
    acting in pursuance of a lawful authority will not be taken
    to be acting in defence of himself, herself or another;
    and
    (b) a person commits a criminal trespass if that person
    trespasses on land or premises -
     (i) with the intention of committing an offence against
     the person or an offence against property (or both);
    or
     (ii) in circumstances where the trespass itself
     constitutes an offence."

21. It is Section 15(2) which falls for consideration.

22. Mr Peek argued that in considering subsection (1) the jury should be directed that the matter was wholly subjective and that in that consideration the jury could take into account the possible effect of alcohol on the appellant's appreciation of the situation in which he found himself. In part this is so but there still remains an objective element in the jury's deliberation. The concept of a genuine belief carries with it the necessity for the jury to consider not only what an accused person may say as to his belief but whether in all the circumstances that stated belief was genuine. The onus being on the prosecution that there was not at the very least, a reasonable possibility that the accused held such a belief. In deciding that question the jury was entitled to look not only to the circumstances proved, that is the proved account of the accused's actions but also as to the nature and gravity of these acts. At the end however, the question will still remain as to whether or not it was reasonably possible that the accused genuinely had a belief that a self defence situation existed and that his proven actions in that situation were genuinely believed to be necessary and reasonable.

23. If the prosecution have not proved that, at least, such a reasonable possibility did not exist then the jury must be instructed to turn their attention to a consideration of subsection 2(b) and (c). I find it difficult to reconcile the requirements of subsection 2(b) with subsection (a). In the situation predicated at the end of their consideration of subsection (a) the jury must have found that there was, at least, a reasonable possibility that the deceased had the required genuine belief. They are then asked to consider - "judged by the circumstance as he or she genuinely believed them to be" - that the very same belief was grossly unreasonable. The onus of which lies on the prosecution to prove beyond reasonable doubt. The "circumstances as he or she genuinely believed them to be" must be the same circumstances which leave the jury to find that the force (which must it seems be the force actually used) was, at least a reasonable possibility genuinely believed to be "necessary and reasonable". It is difficult in those circumstances to conceive how the jury could be directed to find the same "necessary force" to be grossly unreasonable. It should be noted that subsection 2(a) and 2(b) are not in the alternative. The only way I can rationalise the two subsections is that subsection 2(a) is speaking of a genuine belief, so found by the jury to, at least, be a reasonable possibility and in subsection 2(b) of a belief that self defence was called for went beyond reasonable and necessary force to such a degree that the force was objectively viewed by the jury "grossly unreasonable".

24. To put such an interpretation on the two subsections offends against common sense and could only serve to confuse the jury. Although not strictly relevant to this appeal, the appellant having been found not guilty of murder, the use of the phrase "does not intend to cause death" in subsection 2(c) further confuses the issue as the doctrine of self defence covers an intention to cause death where that is deemed to be necessary and reasonable.

25. If that is the correct interpretation to be put on these two subsections then, with respect, I do not think the distinction was made clear to the jury especially with the two ways in which the onus of proof resting on the prosecution was to be applied.

26. In deciding the question under subsection 2(b) the question of alcohol needs to be addressed. In my opinion it must necessarily be taken into account in ascertaining the "circumstances as genuinely believed to be" and further that those circumstances are to be disproved either in whole or in part by the prosecution beyond reasonable doubt. In other words the accused is to have the advantage of the circumstances found by the jury, to be, at least, a reasonable possibility when they considered subsection 2(a).

27. In the light of their verdict the jury must be taken to have decided in favour of the appellant that an intention to kill was not proved nor was it proved that he was reckless as to whether death was caused. The appellant having been found not guilty of murder nothing need be said regarding those concepts.

28. However, the concept of "criminal negligence" as referred in the subsection must be assessed. The jury asked for a number of further directions on that topic. His Honour said:-
    "As far as criminal negligence is concerned, what I
    said, and what I repeat is, that what is in issue is
    negligence of a very high degree, showing such a
    disregard for the life and safety of others, as to
    amount to a crime against the State and deserving of
    punishment. Just repeating that, negligence of a very
    high degree, showing such a disregard for the life and
    safety of others, as to amount to a crime against the
    State and deserving of punishment. Right?"

29. With respect, in my opinion that direction fell short of what was required as did his Honour's earlier direction on the topic. Although "negligence" in everyday life is in common usage as a matter of law it has a specific meaning. That legal concept should have been spelt out to the jury in some detail so that they could clearly grasp the legal meaning of the concept. To do less was to leave the risk that some other concept of negligence may have been used in coming to their decision.

30. In my opinion the Section as drafted is completely unworkable and should be repealed and either redrafted in a way to make it clear what is intended or repealed to allow the common law principles set out in Section 2(a) to operate. I do not criticise the way in which the learned trial Judge attempted to rationalise the Section as, in my opinion, he faced an impossible task except for the criticism of his direction on "criminal negligence".

31. For the foregoing reasons I would allow the appeal and set aside the verdict of guilty and quash the conviction and substitute a verdict of acquittal.

JUDGE2 DEBELLE J I agree with the reasons of Justice Mohr and the orders proposed.

JUDGE3 NYLAND J I agree with the reasons of Justice Mohr and the orders proposed.