R v Bond - [2009] SASC 256

SUPREME COURT OF SOUTH AUSTRALIA
(Court of Criminal Appeal)
R v BOND
[2009] SASC 256
Judgment of The Court of Criminal Appeal
(The Honourable Chief Justice Doyle, The Honourable Justice David and The Honourable Justice Kelly)
27 August 2009
CRIMINAL LAW - APPEAL AND NEW TRIAL - PARTICULAR GROUNDS OF APPEAL - MISDIRECTION AND NON-DIRECTION
Appeal against conviction - appellant convicted of murder by jury - whether the trial judge erred in failing to direct the jury that for there to be a conscious and voluntary act on the part of the appellant, the prosecution had to prove that, at the time of the striking the deceased, the accused knew that he had a sharp penetrating object in his hand.
Held: appeal dismissed - direction to this effect not required - the accused knew that he had some type of weapon in his hand.

CRIMINAL LAW - APPEAL AND NEW TRIAL - PARTICULAR GROUNDS OF APPEAL - MISDIRECTION AND NON-DIRECTION
Appeal against conviction - appellant convicted of murder by jury - whether the trial judge erred in failing to direct the jury that the appellant’s conduct in striking the deceased was the striking of the deceased with an unknown object, unless the jury was satisfied that the appellant knew that he had scissors in his hand.
Held: appeal dismissed - the trial judge made it clear with both oral directions and written material that when considering self-defence there was a distinction to be drawn between the appellant’s evidence as to what he thought happened, and the facts as proved.

CRIMINAL LAW - JURISDICTION, PRACTICE AND PROCEDURE - SUMMING UP
CRIMINAL LAW - APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION - APPEAL AND NEW TRIAL - PARTICULAR GROUNDS - MISDIRECTION AND NON-DIRECTION - GENERAL MATTERS - CONSIDERATION OF SUMMING UP AS A WHOLE
Appeal against conviction - appellant convicted of murder by jury - whether trial judge's summing up failed to put the defence case in that it failed to relate the evidence appropriately to the defence of self-defence and self-defence in a place of residence.
Held: appeal dismissed - the trial judge properly directed the jury through oral directions and written material and clearly put the defence case in relation to self-defence.
Criminal Law Consolidation Act 1935 (SA) s 15, referred to.
R v Williamson (1996) 67 SASR 428, distinguished.

R v BOND
[2009] SASC 256
Court of Criminal Appeal: Doyle CJ, David and Kelly JJ

DOYLE CJ: I would dismiss the appeal against conviction. I agree with the reasons of David J for so ordering.
DAVID J: The appellant was charged with murder, contrary to s 11 of the Criminal Law Consolidation Act 1935 (SA), and was convicted after a trial before a jury. He now appeals against that conviction.
It was undisputed at trial that the appellant stabbed the deceased (“V”) with scissors, thereby causing his death. At the time of the stabbing, the appellant was living in a caravan park. The incident took place in the annexe to his caravan. V had previously lived at the same caravan park, and on the day of his death, he visited the appellant at his caravan in the evening.
There was also undisputed evidence led at trial that the reason for V’s visit was to complain to the appellant about him telling people that V owed him money, which had not been repaid. Evidence was also led that V had at least seven convictions for assault and a blood alcohol reading of 0.107%.
Although none of the witnesses called by the prosecution saw the actions which caused V’s death, a number of witnesses heard the sounds of fighting between the two, and the appellant was heard to yell out words to the effect that he wanted V to leave his caravan.
In particular, one witness (Mr Hobby) gave evidence that he was a resident of the caravan park on the evening of V’s death, and that on one occasion he had told V that the appellant was going around talking about the $50 that was owed to him by V. Mr Hobby gave evidence that V then told him that he would go over and tell the appellant to stop such talk. Mr Hobby said he actually saw V enter the annexe to the appellant’s caravan. After a short while, he heard arguing and then banging coming from the annexe. He walked towards the appellant’s caravan, and as he did so, he heard V yell out, “Stop”. Mr Hobby said that as he entered the annexe he heard a final loud smash, and he then saw that V was tipped over a table with his face down and there were scissors in the back of his head. He said the appellant was standing in front of the caravan door. He gave further evidence that he abused the appellant and they had a fight, during the course of which he admitted punching the appellant in the head.
Other witnesses who were at the caravan park on the night were called and gave evidence of hearing an argument and said that there was a scuffle. There was also evidence called that there was a certain animosity between the appellant and V over the debt which V was said to have owed the appellant.
Forensic evidence was called as to the nature of wounds inflicted upon V in the area of the face, neck and head. A number of these were minor bruises and abrasions to the skin of his face and bruising to the front of his chest. However, there were three penetrating wounds which were described as stab wounds, two to the front of either side of the neck and a third to the back on the side of the neck, very close to the base of the skull. That wound caused almost complete severance of the right vertebral artery. In the opinion of the forensic pathologist (Dr Charlwood), it was that wound which caused V’s death. Her opinion was that V would have lost consciousness as soon as that artery was severed.
Evidence was also led that there were two distinct pools of blood in the annexe. The prosecution hypothesis flowing from that evidence was that, as unconsciousness would follow very soon after the severance of the right vertebral artery, there must have been two incidents, the last of which ended in V’s death. On the prosecution hypothesis, that would negate any argument as to self‑defence because that would indicate that there was not an unexpected stabbing from behind with the scissors as the appellant claimed in his evidence. It was the prosecution case that what took place was a deliberate and unlawful killing by the appellant stabbing V with a pair of scissors.
The appellant gave evidence. He said that V came to his caravan and accused the appellant of spreading rumours about V owing money. An argument ensued about that topic. The appellant said he kept telling V to get out. Eventually, according to the appellant, V stepped out of the caravan into the annexe area. The appellant followed him out, but at one stage, V attacked him from behind, knocking him to the floor of the annexe. The appellant said he momentarily lost consciousness, and when he regained consciousness, he found himself being held in a headlock. He said that he was being hit to the head, so he rolled around, unable to see and was disoriented. He said that his right hand located an object, which he seized and used repeatedly to strike V as hard as he could. The appellant said he had no sense of where V’s head was and he did not know which part of V’s body he was hitting with the unknown object. He said at one stage V released his grip and he pushed himself away. It was after that that he first saw blood and realised for the first time that the object with which he was striking V was a pair of scissors.
I set out the following passages of his evidence encapsulating his answer to the charge:
Q.What happened as you went to the annexe door.
A.As I approached, as I walked towards the annexe door, I felt myself getting bashed up against sideways, to the left towards the caravan wall, hitting the table, the small camp table.
Q.What part of you hit the small camp table.
A.It would have been around my hip area.
Q.What caused you to do that.
A.He’s grabbed me, pushed me, rugby tackled me, I don’t know, it happened from behind. I was concentrating on getting to the zip door before [V] did to unzip it before he left.
Q.Was anything said.
A.No, whether I said it aloud I don’t know, I was thinking “Phone, I’m going to phone the –” whether I was thinking aloud, I don’t think I was.
Q.Anything said by him.
A.No.
Q.When you hit the table, were you upright or how were you positioned.
A.I think I was going sideways. I was standing up but I was walking, I was going sideways, left.
Q.What then happened.
A.I smashed up against the caravan wall, my body, my head.
Q.What about [V], what was he doing.
A.I don’t know.
Q.Did you remain standing.
A.No. The next I remember - I may have lost consciousness, I don’t know - the next thing I remember I’m on my back, not being able to breathe properly.
Q.Why was it that you weren’t able to breathe properly.
A.I was in a headlock from behind.
Q.On your back how were you positioned.
A.I was on my back like this (INDICATES). The first I was aware was a terrible pain in the middle of my back like I landed on a cricket ball. I was on my back. [V] was beside me. He had me in a headlock. There was blows to my head.
Q.Which part of your head.
A.The top of my head. My right arm was underneath his back. My left arm - I just couldn’t breathe. I tried to grab his hand - blows to the head, when he wasn’t hitting me on the head or arm on here (INDICATES) it was lying [sic] being locked in a vice. I tried to grab his hand, I couldn’t budge it, it was just like a vice. Straightaway it was just like being inside a cyclone. I was just full of panic. I looked down, I looked down in the area of my feet and seen a screwdriver, with that I was remembering the tools that were on the table and now on the floor. Any one of these tools could be used against me as a weapon. I was thinking at the same time Hobby is in the area, he could be coming in the annexe at any time. I was in a complete state of panic. We were rolling around, I was disorientated, I couldn’t see anything, I didn’t know which position I was. I was like a rag doll. I was like in a vice getting tossed around and bashed to the head. I felt something as I was rolling around in my right hand, I started hitting him with it.
Q.Did you know what it was.
A.No.
Q.When you say you were rolling around, were you actually on the floor or what.
A.On the floor.
Q.Where was your head in relation to the back door of the annexe, if you can say.
A.My feet would have been facing the front and my head would have been the back door, I believe but I have no idea, it was very dark. My hand was constantly over my head.
Q.You are indicating there with your left hand.
A.Yes.
Q.You say you grabbed something and started hitting him.
A.Yes.
Q.What was it that you grabbed.
A.No idea.
Q.Did you realise later what you’d grabbed.
A.Later, yes.
Q.Was it a large object or what.
A.I don’t know, it was something that I grabbed instantaneously, it was a hard object. I felt it with my hand, it moved. I struggled around to grab it again. I hit him as hard and fast as I could.
Q.Are you able to say what part of him you hit at.
A.No. I was hitting his body.
Q.Were you aiming at any particular part of him.
A.No.
Q.When you first started hitting at him do you know whether or not you made contact.
A.Not sure, not sure, the struggle had stopped as quick as it started. I’m not sure how many times I was hitting at him. As soon as his hand was free from my neck, everything just stopped.
Q.You say it stopped as quick as it started.
A.Yes.
Q.You don’t know how many times you hit him.
A.No.
Q.What happened to the object that you were hitting him with.
A.What happened to it?
Q.Yes.
A.Just let it go, as soon as it stopped, I just stopped.
Q.How did it stop. Just explain what happened.
A.How did it stop?
Q.Yes.
A.The pressure was gone off my neck and it stopped.
Q.What happened to [V].
A.He stopped too.
Q.How was he positioned when he stopped.
A.He was hard up against my body to my right-hand side.
Q.What about his head.
A.I was underneath his head, I couldn’t see his head. The first thing I did was push myself away, push his arm, push myself away.
Q.What happened to [V], where did he end up.
A.He was leaning on my body, he ended up left-hand side facing me, downwards.
Q.I’ll come to that in a moment with some photographs. Was he remaining on the ground.
A.Yes.
Q.Did you see any blood.
A.Yes.
Q.When did you see blood.
A.As I pushed myself away I rolled and seen the blood.
Q.Did you see anything stuck into his body.
A.Yes.
Q.Tell us about that.
A.As I pushed myself away he wasn’t moving at all. I seen blood and I seen the scissors.
Q.Where were the scissors.
A.In his neck (INDICATES).
Q.You are then indicating the back of the upper part of his neck.
Clearly, the defence of self-defence was raised by the appellant, necessitating directions pursuant to s 15 and s 15C of the Criminal Law Consolidation Act 1935 (SA).
I turn to the grounds of appeal.
Grounds of appeal
Ground 1
The trial judge should have directed the jury that for there to be a conscious and voluntary act on the part of the appellant, the prosecution must prove that at the time of striking the deceased, he knew, at the least, that he had a sharp penetrating object in his hand.
In his summing up, the trial judge directed the jury on the elements of murder that have to be proved in the following terms:
The prosecution must first prove that the act or the acts of the accused caused the death of the deceased. Of course, most events are a culmination of a chain of events; there are often a number of circumstances involved. It is sufficient to constitute proof of this element for the prosecution to prove that the conduct of the accused was a substantial cause of death. It is as always a matter for you but in this case there is no dispute that [V] was killed by the wound that almost severed his vertebral artery and that the accused inflicted that wound. For that reason you are unlikely to have much difficulty in your consideration of that element.
The prosecution must next prove that the act or acts of the accused which caused death were conscious and voluntary acts. Any act of the accused which was unconscious or involuntary cannot amount to a crime. Crime consists of doing a deliberate act or acts.
In this case the accused has testified that he, in effect, blacked out for a short moment before finding himself on the floor and that he was thereafter in a state of shock. However, he testified that he quite deliberately struck the deceased in self-defence with an object he had reached for on the floor. In those circumstances, although it remains a matter for you, I do not expect that you will have much difficulty with this element of the offence.
The crime of murder requires proof by the prosecution that the act or acts which caused death were done with a particularly guilty mind. So the next element which the prosecution must prove is that the accused had such a guilty mind, namely, one in which he intended either to kill or to do grievous bodily harm.
Grievous bodily harm means really serious bodily harm. The law does not permit a person to say as a defence to murder “I only intended to inflict really serious bodily harm and did not intend to kill him”. If the accused’s intention was either to kill or to do really serious bodily harm he had the necessary guilty mind to constitute this element of the crime.
It is of course not possible to see directly into a person’s mind to ascertain his or her intention. A person’s intention however is a fact and may be proved like any other fact. In this case there is direct evidence of the accused’s intention at the time in what he told the police and the evidence which he has given to you in court. There are also such inferences as you are prepared to draw from what the accused is proved to have done.
Very often the best evidence of what a person intends is the inference which can be drawn from what he does. If a person loads a pistol and discharges it at another, the inference is likely to be drawn that he intended to wound or kill that person.
You are required to weigh up all the evidence as to the accused’s intention, including what he has said about his intentions and the inferences which may reasonably be drawn from his actions.
An intention is no less an intention because it is formed spontaneously or on the spur of the moment. The intention required by the law to constitute the offence need not be planned. It need not be premeditated. It may be formed on the spur of the moment.
The factual issue in this trial that most directly bears on the accused’s intention is whether he knew that he was holding a pair of scissors in his hand when he struck at the neck, head and face of [V]. If it is proved beyond reasonable doubt that the accused knew he was holding a pair of scissors, and you will remember the accused has denied it, nonetheless if it is proved beyond reasonable doubt that the accused knew he was holding a pair of scissors, that fact would strongly support an inference that he intended to, at the very least, cause really serious bodily harm. If, on the other hand, it is not proved that the accused knew he was wielding a pair of scissors it is obviously much more difficult to draw the necessary inference about his intention. In this case the prosecution must also prove that the act which killed [V] was not committed for the purpose of self-defence. I will direct you further on what is a defensive purpose for the purposes of the law later after I have explained to you the offence of manslaughter by unlawful and dangerous act.
So far I have simply directed you as to the crime of murder. That crime as I have said requires you to be satisfied beyond reasonable doubt that the death of the deceased was substantially caused by a conscious and voluntary act on the part of the accused done without lawful justification such as self-defence and done either with an intention to kill or an intention to do grievous bodily harm.
If you are satisfied of these matters beyond reasonable doubt, the prosecution has proved the crime of murder and that is your proper verdict.
If, however, the prosecution has proved the first two elements, namely the death of the deceased was caused by a conscious and voluntary act of the accused, without lawful justification or excuse, but has failed to prove the third element, his intent, the accused is not guilty of murder and you must then consider the crime of manslaughter as an alternative to murder.
[Emphasis added.]
The trial judge then went on to direct the jury on the elements of the alternative charge of manslaughter. It is not necessary for me to go into that.
Mr Cuthbertson QC, counsel for the appellant, now argues that when directing the jury on the element that the act or acts which caused the death of V must be conscious and voluntary, the trial judge erred when suggesting to them that they would not have much difficulty with that element. Mr Cuthbertson argues that the judge should have directed the jury that for the acts to be voluntary, the appellant had to know that he had a sharp and penetrating object in his hand. He argues that even if the striking was for all purposes deliberate, if there was an ignorance about the nature of the act, then the element of voluntariness would not have been made out. To support that proposition he relied upon the decision of this Court in R v Williamson.[1] In that case, the deceased was killed by a blow from a knife. The defence at that trial was that the defendant thought he was simply striking a blow with his fist. It was conceded at trial that despite his ignorance as to whether it was a blow or whether he had a knife in his hand, the relevant act was still voluntary. On appeal, it was argued that it could only be voluntary if the accused knew that a knife was in his hand. On that basis, it was argued that the trial judge in that case erred in directing the jury that the act was done voluntarily, because such a direction necessarily assumed one of the central issues at the trial, namely, whether he knew it was a knife in his hand. Doyle CJ (with whom Matheson and Duggan JJ concurred) held:[2]
This is an area in which caution is required. In my opinion the law is not clearly settled. Nor did the court have the benefit of a full review of the relevant authorities.
In my opinion, the better view in this particular case is that to secure a conviction for murder the prosecution had to prove that the accused voluntarily struck the deceased with a knife. In other words, to prove that the striking of a blow with the knife was a conscious act and a deliberate act, and that necessarily means that the prosecution had to prove that the accused knew that he had the knife in his hand. In the words of the joint judgment of Mason CJ, Brennan and McHugh JJ in R v Falconer, the prosecution had to prove that the accused made a conscious choice to do an act of the kind done. There is such a difference between the striking of a blow with a fist and the striking of a blow, knife in hand, that in my opinion it was necessary for the distinction to be drawn and for the prosecution to prove that the accused made a conscious choice to strike a blow knowing that he had the knife in his hand.
I think it is likely that only in rare cases will the precise identification of the act which must be shown to be voluntary give rise to difficulty. However, I consider that the better view is, as I have already said, that the accused must be shown to have made a conscious choice to perform an act of the kind done, and that in a case such as the present there is a significant difference between a punch and striking with a knife, and that it cannot be said that to prove a conscious choice to punch is to prove an act of the kind in fact done.
[Citation omitted.]
[1] R v Williamson (1996) 67 SASR 428.
[2] R v Williamson (1996) 67 SASR 428, 434.

In my view, R v Williamson[3] turns very much on its own facts. As Doyle CJ said, an accused must be shown to have made a conscious choice to perform an act of a kind done, and in Williamson’s[4] case there was a significant difference between a punch and a striking with a knife or any type of weapon. In the present case, the evidence of the appellant was that in an act of self‑defence he grabbed something and started hitting V:
… it was something that I grabbed instantaneously, it was a hard object. I felt it with my hand, it moved. I struggled around to grab it again. I hit him as hard and as fast as I could.
On his own version, what the appellant was doing was more than merely punching V. He was using a hard object to hit V as hard and as fast as he could. On that evidence, the appellant’s actions were clearly voluntary, even though he gave evidence of ignorance of the precise nature of the weapon he was using. In the present case, he knew he had some type of weapon in his hand, whereas in the case of Williamson,[5] there was a clear distinction between him thinking he was punching his victim, as distinct from using a weapon.
[3]    R v Williamson (1996) 67 SASR 428.
[4]    R v Williamson (1996) 67 SASR 428.
[5]    R v Williamson (1996) 67 SASR 428.
I would dismiss that ground of appeal.
Ground 2
The trial judge should have directed the jury that the appellant’s conduct in striking the deceased, against which the issue of self defence was to be determined, was the striking of the deceased with an unknown object, unless the jury was satisfied that the appellant knew that he had scissors in his hand (see Directions on Self Defence, pages 20-32).
Ground 3
The Summing Up failed to put the defence case in that it failed to relate the evidence appropriately to the defence of Self Defence and Self Defence in a Place of Residence.
I deal with these two grounds together as they cover the same aspects of the trial judge’s summing up.
In his summing up, the trial judge directed the jury on the question of self‑defence[6] and self-defence in a place of residence.[7] He did that both orally and with the assistance of written directions. There was no argument generally about the judge’s directions on self‑defence, except the specific issue raised in the above grounds.
[6] Criminal Law Consolidation Act 1935 (SA) s 15.
[7] Criminal Law Consolidation Act 1935 (SA) s 15C.
Mr Cuthbertson argues that throughout the trial judge’s directions in relation to self‑defence, both orally and in writing, he referred to “the conduct to which the charge relates”, without explaining to the jury the difference between the actual conduct to which the charge relates, and what the defendant genuinely believed that conduct to be. In other words, the difference between striking V with a knife or striking him with a hard object. In order to appreciate the argument it is important to set out the relevant legislation as to self-defence:[8]
[8] Criminal Law Consolidation Act 1935 (SA) s 15(1), s 15(2), s 15C(1), s 15(C)(2).
15—Self defence
(1)It is a defence to a charge of an offence if—
(a)the defendant genuinely believed the conduct to which the charge relates to be necessary and reasonable for a defensive purpose; and
(b)the conduct was, in the circumstances as the defendant genuinely believed them to be, reasonably proportionate to the threat that the defendant genuinely believed to exist.
(2)It is a partial defence to a charge of murder (reducing the offence to manslaughter) if—
(a)the defendant genuinely believed the conduct to which the charge relates to be necessary and reasonable for a defensive purpose; but
(b)the conduct was not, in the circumstances as the defendant genuinely believed them to be, reasonably proportionate to the threat that the defendant genuinely believed to exist.
…
15C—Requirement of reasonable proportionality not to apply in case of an innocent defence against home invasion
(1)This section applies where—
(a)a relevant defence would have been available to the defendant if the defendant's conduct had been (objectively) reasonably proportionate to the threat that the defendant genuinely believed to exist (the perceived threat); and
(b)the victim was not a police officer acting in the course of his or her duties.
(2)In a case to which this section applies, the defendant is entitled to the benefit of the relevant defence even though the defendant's conduct was not (objectively) reasonably proportionate to the perceived threat if the defendant establishes, on the balance of probabilities, that—
(a)the defendant genuinely believed the victim to be committing, or to have just committed, home invasion; and
(b)the defendant was not (at or before the time of the alleged offence) engaged in any criminal misconduct that might have given rise to the threat or perceived threat; and
(c)the defendant's mental faculties were not, at the time of the alleged offence, substantially affected by the voluntary and non-therapeutic consumption of a drug.
…
[Emphasis added.]
In his charge to the jury in relation to self-defence, the trial judge picked up the words of the appropriate sections. He directed the jury thus:
The prosecution bears the onus of proving that the conduct of the accused was unlawful. His conduct would not have been unlawful if it occurred in lawful self-defence. The law recognises that a person who is attacked, or threatened with attack, is entitled to defend himself even, in certain circumstances, to the extent of causing the death of his attacker, or potential attacker.
It is very important that you understand that, when self-defence arises as an issue in a case, an accused person is not required to prove that he was in fact acting in self-defence. Once it arises, the onus at all times remains on the prosecution to prove beyond reasonable doubt that the accused was not acting in self-defence. The issue has been raised in this case. Before considering it in detail, I make some general comments.
I have said that the law recognises that self-defence is appropriate in certain circumstances. Those circumstances are actually set out in an Act of parliament and, in particular, two sections: 15 and 15C of an act called the Criminal Law Consolidation Act. That Act requires that the matter be approached by having regard to the facts, that is, the issue of self-defence, by having regard to the facts as the accused genuinely believed them to be.
Can I illustrate that with an example. A person might point an unloaded gun at another. The person at whom the gun is pointed may genuinely believe that it is loaded and might respond with a severe attack on the person pointing the gun which leads to that person’s death. In that case the issue of self-defence is to be decided on the basis that the gun was loaded because that is what the accused believed. In deciding whether the accused is entitled to a complete acquittal in this case leading to a verdict of not guilty of both murder and manslaughter, you will be required to consider the matter in two stages.
The first stage looks at the state of mind of the accused. It asks the question “Did the accused genuinely believe that his actions were necessary and reasonable to defend himself?”. Leaving aside cases of a defence in a residence that I will come to later, if the accused had that belief, it would not be enough, by itself, to justify an acquittal on the charge of murder. You would have to go further and consider the second stage of the inquiry, that is, in addition to the genuine belief of the accused. This additional stage looks at whether the accused’s actions were reasonably proportionate to the threat he believed to exist. You will remember that the circumstances which you must have regard to are those which the accused genuinely believed to exist. However, it is you who must decide whether the response was reasonably proportionate.
Another example might help. If one person slapped another across the face and the person who was slapped drew a gun and shot the person who slapped him, it could hardly be said that the actions of the person who used the gun were reasonably proportionate to the situation which he faced.
You will appreciate from what I have just said that your consideration and conclusion on the issue of self-defence may well be very different depending on whether you are considering it as an element of the offence of murder, on the one hand, or manslaughter by unlawful and dangerous act on the other. It is different because, although it is a matter for you, it is not difficult to understand how a person may genuinely believe that it is necessary to use an object to merely cause his attacker enough pain to stop the attack.
However, if it is known that the object is, as in this case, a pair of scissors, capable of causing serious wounds, and it is intentionally used to do so, different considerations arise. It follows that your conclusion on the issue of self-defence may be different if you were to find beyond reasonable doubt that the accused knew he was jabbing a pair of scissors into [V’s] head area than it would be if the possibility that Mr Bond did not know what he was holding in his hand were to remain open.
If, by reference to the first stage, an accused genuinely believes that his conduct was necessary and reasonable to defend himself, but, by reference to the second stage, his conduct, judged on the facts as he believed them to be, was not reasonably proportionate to the threat, then he would not be guilty of murder, but, leaving aside again places of residence, guilty of manslaughter. This assumes that the other elements of the offence of manslaughter are present.
However, the proportionality requirement, the second stage, that I have just explained does not apply where a self-defence occasion arises in a place of residence. I will say more about that exception in a moment.
[Emphasis added.]
The trial judge then gave further unexceptional directions about when an engagement in combat is not self-defence, and the onus of proof being on the prosecution. He then referred in his summing up to aide-mémoires that were provided to the jury, one concerning written directions and one setting out a flowchart. In the written directions the judge effectively set out s 15(1)[9] when he said:
The law provides that the accused does not commit the offence of murder or manslaughter:
1.If he genuinely believes that his conduct to which the charge relates was necessary and reasonable to defend himself; and
2.That conduct was, in the circumstances as the accused genuinely believed them to be, reasonably proportionate to the threat that the accused genuinely believed to exist.
Then in the written directions he went on and said:
So you will see you must consider first the actual state of mind of the accused and, second, whether what he did was reasonably proportionate to the threat which he believed to exist.
In considering the first question, the state of mind of the accused, you must have regard to the actual belief held by him. The belief must extend both to the necessity and reasonableness of his conduct. Did the accused actually believe that what he did was necessary and reasonable to defend himself? If you conclude beyond reasonable doubt that he did not have the belief, then the prosecution will have proved that the accused was not acting in self-defence. The killing will be unlawful.
[9] Criminal Law Consolidation Act 1935 (SA) s 15(1).
Mr Cuthbertson argues that the trial judge has erred throughout, because when considering the genuine belief in relation to the conduct to which the charge relates and the necessity and reasonableness of the appellant’s conduct, a distinction should have been made to the jury between what he actually believed (that he was hitting V with a hard object), and what the prosecution alleged and what, in fact, was proved (the stabbing with a knife). By not making that distinction, Mr Cuthbertson argues that the jury may have been led to believe that in considering the appellant’s state of mind in relation to self-defence, they were confined to a belief that a stabbing was taking place and no allowance could be made for the appellant’s evidence that he did not think he was using a pair of scissors.
Mr Cuthbertson further argues that when considering the objective aspect of s 15,[10] namely - in the circumstances which the accused genuinely believed to exist, was the conduct reasonably proportionate to the threat that he genuinely believed to exist? - it should have been pointed out to the jury that it is not only his belief as to the threat, but also his belief as to his own conduct in dealing with that threat, which had to be appreciated by the jury. Once again, Mr Cuthbertson argues that this was not done, and the lack of such a direction may lead to the jury thinking they could only deal with the questions of self-defence on the basis of the facts alleged by the prosecution.
[10] Criminal Law Consolidation Act 1935 (SA) s 15.
In my view, the argument is misconceived. Looking at the summing up as a whole, both the oral directions and written material, the trial judge made it clear that when considering self-defence, there was a distinction to be drawn between the appellant’s evidence as to what he thought happened, and the facts as proved. I have already pointed out the passage making that clear distinction. The jury was told that before being given the written memoranda, and they would have clearly understood that the issue of self-defence, as explained, may depend on whether it was found beyond reasonable doubt that “the accused knew he was jabbing a pair of scissors into [V’s] head area”. In my view, the trial judge has properly directed the jury and has clearly put the defence case in relation to self‑defence.
I would dismiss both grounds of appeal.
KELLY J: I agree that this appeal should be dismissed for the reasons given by David J.