R v Dunn - [2012] SASCFC 40

SUPREME COURT OF SOUTH AUSTRALIA
(Court of Criminal Appeal)
R v DUNN
[2012] SASCFC 40
Judgment of The Court of Criminal Appeal
(The Honourable Justice Gray, The Honourable Justice Anderson and The Honourable Justice Stanley)
18 April 2012
CRIMINAL LAW - APPEAL AND NEW TRIAL - PARTICULAR GROUNDS OF APPEAL - MISDIRECTION AND NON-DIRECTION - PARTICULAR CASES - WHERE APPEAL DISMISSED
CRIMINAL LAW - GENERAL MATTERS - CRIMINAL LIABILITY AND CAPACITY - DEFENCE MATTERS - DEFENCE OF PERSONS OR PROPERTY - DEFENCE OF ANOTHER
CRIMINAL LAW - GENERAL MATTERS - CRIMINAL LIABILITY AND CAPACITY - DEFENCE MATTERS - DEFENCE OF PERSONS OR PROPERTY - DIRECTIONS TO JURY
Appeal against conviction - following trial in the District Court, defendant found guilty by jury verdict of recklessly causing serious harm contrary to section 23(3) of the Criminal Law Consolidation Act 1935 (SA) - at trial the primary issue in dispute was whether the defendant's actions were unlawful - defence of another was raised - whether the Judge in error in summing up in relation to the onus of proof - whether the Judge in error in oral and written directions as to the second limb of self defence; namely, whether the defendant's conduct was in the circumstances as the defendant genuinely believed them to be, reasonably proportionate to the threat that he genuinely believed to exist.
Held: appeal dismissed - an impugned passage said to relate to the onus of proof in the summing up was not a misdirection, the jury would have understood that the Judge was making an observation about how they might approach their task - the substance of the statutory requirements relating to acting in the defence of another were adequately explained to the jury - in this case it is difficult, if not impossible, to distinguish between the defendant's belief as to the threat his partner faced and his belief as to the circumstances - in the event it was necessary, proviso would be applied.
Criminal Law Consolidation Act 1935 (SA) s 15, s 15B, s 23(3) and s 353(1); Criminal Law Consolidation (Self-Defence) Amendment Act 1991 (SA); Criminal Law (Self-Defence) Amendment Act 1997 (SA), referred to.
Zecevic v DPP (Vic) (1987) 162 CLR 645; R v Spartels [1953] VLR 194; R v Redman [1978] VR 178; R v Gillman (1994) 62 SASR 460; Police v Lloyd (1998) 72 SASR 271; R v Edwards [2009] SASC 233; R v Burns (2009) 103 SASR 514; R v Roberts (2011) 111 SASR 100; Fingleton v The Queen (2005) 227 CLR 166; McBride v The Queen (1966) 115 CLR 44, considered.

R v DUNN
[2012] SASCFC 40
Court of Criminal Appeal Gray, Anderson and Stanley JJ
GRAY J:

This is an appeal against conviction.
The defendant and appellant, Antony Dunn, was charged on information with the offence of recklessly causing serious harm contrary to section 23(3) of the Criminal Law Consolidation Act 1935 (SA). Particulars of the offence were that the defendant, between 1 and 4 August 2009 at Glenelg, unlawfully caused serious harm to Jothi Kumara Gedara, being reckless as to whether such harm was caused. On 10 November 2011, following a trial in the District Court, the defendant was convicted by unanimous jury verdict of the offence as charged.
Background
The incident the subject of the charge took place at the Grand Hotel at Glenelg. It was the prosecution case at trial that the defendant punched Mr Gedara twice. Mr Gedara was a security guard at the Hotel and was attempting to prevent the defendant’s partner, Coralee Crystal Louise Tamarapa, continuing an altercation with the defendant, but was first attacked by Ms Tamarapa and then punched by the defendant.
The prosecution case with respect to the plea of defence of another was that Mr Gedara did no more than stop Ms Tamarapa and that he simply redirected her elsewhere. It was the prosecution case that Mr Gedara’s physical contact with Ms Tamarapa was limited to him stopping her with his arm and open palm, and that the defendant could not possibly have had a genuine belief that he needed to defend Ms Tamarapa from Mr Gedara. Further, it was the prosecution case that there was no reasonable proportion between what the defendant claimed to have seen and the punches administered to Mr Gedara’s face.
The prosecution called two witnesses – Mr Gedara and Wayne Edwin Gooding, a security supervisor at the hotel who knew the defendant socially as a patron of the hotel.
The Judge in the course of his summing up summarised the substance of Mr Gedara’s evidence in the following terms:
He said that some time before the incident he noticed a group of males whom he knew. As part of the PR of his job, he decided to introduce himself to the accused whom he had not seen before. He said that he went up to the group, shook hands with the accused and spent about 30 seconds with him. He said that just after midnight he came through the top section of the bar, down some steps onto the floor level heading to section four to speak to a colleague.
…
As he did so he noticed the accused walk past him with a smile. He then noticed an angry woman pursuing him. He said that he had to protect the girl because, he said, on his experience with her being angry and going after the male she might get damaged or, as he put it, there is a story going to start.
He said he put out his right hand to stop her and then directed with his left that she go elsewhere. She started attacking him, not really punching him but trying to grab his face or scratch him.
Upon that happening, he received one punch to the right side of his face and then a harder one to his left. He was punched with the accused’s right fist on which he saw shining, which were probably rings, he said.
He fell backwards. He noticed that the accused’s friends were holding him because he appeared angry and aggressive. The accused screamed at Mr Gedara saying ‘I’ll kill you’. Mr Gedara denied that he had ever put his hand on Ms Tamarapa’s shoulders and turned her around. He denied that the accused’s punch came over her right shoulder, it came from the side. That is the only evidence of Mr Gedara to which I make reference, but you have heard other references to evidence by counsel and you have heard the evidence yourself.
The Judge referred to the evidence of Mr Gooding in the following terms:
The second witness was Mr Gooding. He knew the accused socially and as a patron of the Stamford Grand. He said he saw a woman having a heated argument with the accused and he saw her throw at him something that he found out later was keys. She stormed off towards the stage area. Mr Gooding said that she then had an argument with another woman. Mr Gedara came through the crowd to split the two women apart.
The suggestion of an argument between two women is not the evidence of any other witness. Mr Gooding said that he was up in the Crows Nest when the incident started. He said what he did see was Mr Gedara getting between the two women with outstretched arms. He said that for his part he went to see his wife and asked her to move. He said that, frankly, he was more concerned with his wife. He did not see the accused hit Mr Gedara. He said that he did see a disruption which he described as all hell breaking loose. He said four of the accused’s friends were trying to calm him down. The accused was in an aggravated state and gesturing like he was not happy about something. He was waving his arms and his mates were restraining him. The accused was trying to break free of their restraining him. Mr Gooding did not see the accused manhandle either of the women he got in between. …
The defendant and Ms Tamarapa gave evidence for the defence. On the defence case, Mr Gedara had behaved aggressively towards Ms Tamarapa. Ms Tamarapa gave evidence that Mr Gedara had spun her around and then grabbed her by the shoulders at the base of the neck. The defendant gave evidence that when he turned in his partner’s direction, he saw her being held by the shoulders/neck area by Mr Gedara, feared for his partner’s safety and punched Mr Gedara. It was his evidence that he did so in defence of his partner.
The defence case was outlined by the Judge in the course of his summing up as follows:
The defence case is that the accused acted lawfully in defending his partner from the attack Mr Gedara made on her. Mr Gedara was choking or strangling her and throwing her around. It is a reasonable possibility that the accused genuinely believed he needed to defend his partner, and his actions were reasonably proportionate to the threat posed to her. The prosecution has not proved that the accused acted unlawfully.
The Judge summarised the evidence of the defendant as follows:
He said that he was in the process of having just one drink at the bar of the hotel when his partner came up to him very angry. She snapped his glasses and threw them at him, saying that he was supposed to be home with their son. She spun him around. He asked her what she was doing and why she broke his glasses. She was angry and intoxicated.
She asked him why he had not been at home with their son and he said he had been there. She said ‘Bullshit’ and he said ‘Fuck this’ and he walked 4 or 5 metres. He turned around and saw Mr Gedara, as he thought, choking or strangling his partner, with his partner trying to fend him off. He took a couple of steps and punched Mr Gedara with his right fist, connecting with Mr Gedara’s left cheek. He delivered the punch over his partner’s right shoulder. He said it was a strong punch but he feared what was going to happen to his partner. He said Mr Gedara stumbled back and the accused’s friends grabbed him, that is the accused. He said that he had hit Mr Gedara only once.
…
In cross-examination the accused was asked about the earlier meeting with Mr Gedara. Several times he said that he could not recall Mr Gedara introducing himself. Finally in answer to a question from me he said that he denied such an introduction. He said there was no uncertainty in his mind about that. He said that after he left his partner to go home she followed him ranting and raving. He turned around because he wanted her to come with him. That is when he noticed Mr Gedara, as he thought, choking or strangling his partner and throwing her around. Mr Gedara looked aggressive as he was doing that. The accused denied threatening to kill Mr Gedara. He said he could not remember what, if any, rings he had on his hand that night. He might have had one ring on his right hand.
Finally, the Judge summarised the evidence of Ms Tamarapa as follows:
Finally, there is the evidence of Ms Tamarapa. She said that she had been drinking wine at home with the girlfriends before going to the hotel where she drank vodka and Coke. At about 11 p.m., at the invitation of one of the accused’s friends, she went up to a room in the hotel. She estimated that she had had roughly 10 drinks that night.
When she saw the accused’s sunglasses in the room she went down to speak to him about it. She was angry and threw the glasses at him after breaking them. The accused appeared shocked and did not know what she was going on about. He walked off and she went to follow him. Someone grabbed her from behind and she tried to flick him off. As she stepped forward again she felt two hands grabbing her on the shoulders. She was turned around and held firmly around the shoulders at the base of the neck so that she was constrained. She saw someone come over her right shoulder and she was let go.
Although she was facing Mr Gedara, she did not notice any identification badges on him and she did not see him being punched or touched in any way. She noticed the accused going towards the front door of the hotel and she followed him. She did not know whether the accused was wearing any rings that night. She said sometimes he did wear rings but she was not sure about that night.
Mr Gedara suffered serious facial injuries. He underwent surgery on his left eye to release the pressure on the eye ball, and was treated for left optical nerve damage. Mr Gedara further sustained fractures on both sides of his upper jaw and fractures to his cheekbone and left orbital floor – a bone beneath the eye. He has since undergone further surgery to repair the fractures, with the need for the insertion of metal plates. He has not regained sight in his left eye.
At trial the issue in dispute was whether the defendant’s actions were unlawful. Defence of another was raised.
The defence of defence of another raised for consideration the following matters, which are commonly referred to as the first and second limbs of the defence. First, whether the defendant genuinely believed the conduct to which the charge related was necessary and reasonable for a defensive purpose – in the present case, the defensive purpose being the defence of another. Secondly, if the defendant might have held the above belief, was the conduct in the circumstances as the defendant genuinely believed them to be reasonably proportionate to the threat that he genuinely believed to exist.
The Appeal
On appeal it was complained that the Judge misdirected the jury in several respects. First, it was said that there was a misdirection as to the burden of proof. Secondly, it was complained that the Judge erred in his directions to the jury in relation to the second limb of lawful defence of another. Finally, it was said that in all the circumstances, the verdict was unsafe and unsatisfactory.
Section 15 of the Criminal Law Consolidation Act relevantly provides:
(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.
…
(3)For the purposes of this section, a person acts for a defensive purpose if the person acts—
(a)     in self defence or in defence of another; or
(b)     to prevent or terminate the unlawful imprisonment of himself, herself or another.
…
(5)If a defendant raises a defence under this section, the defence is taken to have been established unless the prosecution disproves the defence beyond reasonable doubt.
Section 15B is headed “Reasonable proportionality” and provides:
A requirement under this Division that the defendant's conduct be (objectively) reasonably proportionate to the threat that the defendant genuinely believed to exist does not imply that the force used by the defendant cannot exceed the force used against him or her.
Burden of Proof
In accordance with section 15(5), the defence is taken to have been established unless the prosecution disproves the defence beyond reasonable doubt.
In summing up, having addressed the elements of the offence and the defence of defence of another, having referred to the evidence given in the trial and having outlined the prosecution and defence cases the Judge observed at the conclusion of summing up:
Ladies and gentlemen, I have explained the law particularly as it relates to self-defence, which includes defence of another. I have briefly summarised the evidence and the case for the respective parties. I have very briefly summarised counsel’s addresses. The facts are for you and for you alone. Your approach in your discussions about the facts and how the law applies to those facts is also a matter for you.
I just say this, sometimes the application of the correct legal principles becomes less difficult once you have determined what facts you find proved beyond a reasonable doubt. That may have some relevance to this case. You could choose to approach your task by first deciding what facts you are satisfied of beyond reasonable doubt. If you were satisfied beyond reasonable doubt of Mr Gedara’s account of what happened, then you would apply the law to those facts. If you were not satisfied of Mr Gedara’s account, is it a reasonable possibility that the accused’s account is correct? In those circumstances, applying the law, is it a reasonable possibility that the accused was acting in defence of his partner? The burden of proving all ingredients of the charge is upon the Crown.
[Emphasis added.]
The defendant submitted on appeal that the above extract was a critical direction in relation to the application of the burden of proof to the issue of defence of another. It was said that the real issue was not whether the defendant’s account was correct or whether Mr Gedara’s account was correct, but rather whether, having regard to the entirety of the evidence, the prosecution had proved beyond reasonable doubt that the defendant had not acted in the defence of another. Alternatively, the question should be posed as follows – could it be said that the prosecution had excluded a reasonable hypothesis that the defendant had acted in the defence of another.
The comment of the Judge, and in particular the above emboldened sentence, was said to be a misdirection as to the burden of proof. The proper direction was said to be that if the jury were to reject the defendant’s account, were they on the balance of the evidence satisfied beyond reasonable doubt that the prosecution had proved each of the elements of the offence and had excluded the defence of self-defence; that is, in the circumstances of the present case, the defence of another. Therefore, even if the jury rejected the defendant’s account, it was still required to consider whether it accepted that Mr Gedara’s account excluded any lawful justification.
The Director submitted that the extract of the summing up set out above was not a direction to the jury. It was said that the Judge had earlier in his summing up directed the jury as to the law and the impugned passage was simply an observation about how the jury might approach their task. The Director accepted that if the impugned passage was to be treated as a direction to the jury, then it was a misdirection, but that in that event the proviso should be applied.
At the outset of the summing up the Judge provided the following directions with respect to the burden of proof:
Every person who is charged with an offence comes to the court with a presumption of innocence. That means that unless and until the jury finds proved beyond reasonable doubt that a person is guilty of an offence, then he or she is presumed to be innocent of it. That presumption remains with him or her throughout the trial. Nothing short of proof beyond reasonable doubt will suffice.
In respect of each ingredient of the charge the Crown bears the onus of proving that ingredient to you and proving it to you beyond reasonable doubt. Unless it does so, the accused is entitled to a verdict of not guilty. The accused bears no onus of proof.
I have used the expression ‘reasonable doubt’ and counsel have used it too. I want to say something about it. A reasonable doubt is one which you as reasonable jurors are prepared to entertain. The expression requires no other explanation than that. It is simply a doubt that as a reasonable person entertains, and you, as jurors, are presumed to be reasonable persons.
At the end of the day you ask yourselves: am I in doubt as a reasonable person acting reasonably about the guilt of the accused?
During the course of my summing up I will occasionally say to you that you should be satisfied about something. When I do that I want you to understand that I always mean satisfied beyond reasonable doubt. If I speak of matters being proved to your satisfaction or if I use words like ‘proved’ or ‘satisfied’ or ‘accepted’, then each time I mean proved beyond reasonable doubt because I will not use the whole expression every time.
…
The accused is charged with the offence of recklessly causing serious harm. The particulars of the offence are that the accused, between 1 and 4 August 2009, at Glenelg unlawfully caused serious harm Mr Gedara, being reckless as to whether such harm was caused. To establish the charge against the accused, the prosecution must prove each of five separate ingredients. Each ingredient must be proved beyond reasonable doubt.
…
The fourth ingredient is that the accused must have acted unlawfully – ‘unlawfully’ in bold. The accused does dispute this ingredient. He says that he acted lawfully. He says that he acted in self-defence or, perhaps more accurately, in defence of his partner, Ms Tamarapa.
The accused would not have acted unlawfully if he acted in self-defence or in defence of another, as the law understands each of those concepts.
…
In a case where the defence is raised, as it is raised in this case, it is for the Crown to negative, to disprove self-defence and to do so beyond reasonable doubt. To put that another way, only if you are satisfied beyond reasonable doubt that the accused did not genuinely believe that it was necessary and reasonable to act as he did in defence of his partner - the first limb of self-defence - or if you are satisfied beyond reasonable doubt that the conduct was not reasonably proportionate to the threat as the accused saw it - the second limb - then the question of self-defence disappears from the trial and the element of unlawfulness is proved.
…
If the prosecution has failed to prove any one of these ingredients then the accused must be acquitted of this charge. Each ingredient must be proved beyond reasonable doubt.

The Director drew particular attention to the final sentence of the impugned paragraph in which the jury were again directed that the prosecution bore the onus of proof beyond reasonable doubt. The Director invited this Court to consider the impugned passage in the context of the entire summing up and in particular the Judge’s earlier directions in regard to the burden of proof.
In my opinion, the jury would have understood that the Judge was making an observation about how they might approach their task. The language in the final sentence of the paragraph would have been understood to be a reminder of the earlier directions in regard to the burden of proof.
The Defence of Another
The defendant complained on appeal that the Judge, on more than one occasion during the course of the summing up, omitted to direct the jury with respect to the subjective element in relation to the circumstances of the conduct in accordance with section 15(1)(b) of the Act.
It is to be observed that section 15 has two limbs. In regard to the first limb, section 15(1)(a), the question for the jury to consider is whether it is at least possible that the defendant genuinely believed that it was necessary and reasonable to strike Mr Gedara in order to defend Ms Tamarapa. Another way of posing the question is to ask whether the prosecution has excluded as a reasonable possibility that the defendant genuinely believed that it was necessary and reasonable for him to so act to defend Ms Tamarapa. There was no complaint about the Judge’s direction concerning this limb.
Turning to the second limb, section 15(1)(b), the question for the jury is whether the prosecution has excluded as a reasonable possibility that the defendant’s conduct in the circumstances as he genuinely believed them to be was reasonably proportionate to the threat that the defendant genuinely believed to exist.
The broad purpose of section 15(1)(b) is to have the members of the jury place themselves in the position of the defendant as he genuinely believed it to exist and then to objectively assess the reasonable proportionality of his conduct. In this respect, it is to be noted that the jury should also be directed in accordance with section 15B with respect to reasonable proportionality. The question for the jury is whether, having regard to the circumstances as the defendant genuinely believed them to be and having regard to the threat that the defendant genuinely believe to exist, has the prosecution excluded the reasonable hypothesis that the defendant’s conduct was reasonably proportionate; that is, reasonably proportionate as objectively assessed.
Unsurprisingly, the moulding of a direction to meet these statutory requirements in a particular case may cause some difficulty. However, the substance of the statutory requirements should be addressed.
The Judge in summing up made reference to the second limb of section 15 on several occasions:
The law as to self-defence is set out in an Act of parliament, the same Act that provides the offence of which the accused is charged. It is a complete defence to the charge if the accused genuinely believed the force he used was necessary and reasonable in the defence of his partner and if that conduct was, in the circumstances as the accused genuinely saw them, reasonably proportionate to the threat which he believed his partner faced.
There are two limbs to self-defence. The first is concerned with the accused’s genuine belief about the necessity for self-defence. The second introduces the concept of proportionality between the threat and the reaction. Was the accused’s reaction to the threat as he genuinely saw it reasonably proportionate to that threat? These are questions of fact for you to determine.
The accused’s case is that he acted in genuine defence of his partner. His case is also that what he did was reasonably proportionate to the threat that she faced. It is for the Crown to disprove self-defence.
In a case where the defence is raised, as it is raised in this case, it is for the Crown to negative, to disprove self-defence and to do so beyond reasonable doubt. To put that another way, only if you are satisfied beyond reasonable doubt that the accused did not genuinely believe that it was necessary and reasonable to act as he did in defence of his partner - the first limb of self-defence - or if you are satisfied beyond reasonable doubt that the conduct was not reasonably proportionate to the threat as the accused saw it - the second limb - then the question of self-defence disappears from the trial and the element of unlawfulness is proved.
[Emphasis added.]
It was submitted that in the above passages along with others, the Judge omitted to address the defendant’s genuine belief as to the circumstances and omitted reference to the threat as being the threat that the defendant genuinely believed to exist.
Further attention was drawn to the following passages from the written directions provided to the jury by the Judge:
There are two limbs to self-defence.
The first is concerned with the accused’s genuine belief about the necessity for self-defence. The second introduces the concept of proportionality between the threat and the reaction. Was the accused’s reaction to the threat, as he genuinely saw it, reasonably proportionate to that threat? These are questions of fact for you to determine.
The accused’s case is that he acted in genuine defence of his partner. His case is also that what he did was reasonably proportionate to the threat she faced. It is for the Crown to disprove self-defence.
In a case where the defence is raised, as it is raised in this case, it is for the Crown to negative, to disprove self-defence, and to do so beyond reasonable doubt.
To put that another way, only if you are satisfied beyond reasonable doubt that the accused did not genuinely believe that it was necessary and reasonable to act as he did in defence of his partner (the first limb of self-defence) or, if you are satisfied beyond reasonable doubt that the conduct was not reasonably proportionate to the threat as the accused saw it (the second limb), then the question of self-defence disappears from the trial and the element of unlawfulness is proved.
The defendant contended on the appeal that the Judge, both in his oral summing up and in his written directions, made two errors. First, the Judge omitted reference to the second limb requirement of a genuine belief in relation to the circumstances of the conduct. Secondly, it was said, instead of the requirement that the threat be considered “in the circumstances that [the defendant] genuinely believed them to be”, the Judge directed “as [the defendant] genuinely saw them”. It is to be noted that in respect of the threat, the Judge on more than one occasion used the words as the defendant “genuinely saw it”, rather than “genuinely believed to exist.”
The defendant contended before this Court that section 15(1)(b) of the Criminal Law Consolidation Act requires that first, the jury consider the conduct in relation to the circumstances as the accused genuinely believed them to be, and secondly, that the jury consider the threat that the accused genuinely believed to exist. It was said that on more that one occasion during the course of summing up and in the written direction given to the jury, the Judge omitted the subjective element in relation to the circumstances of the defendant’s conduct.
The Director contended that the defendant’s submission was misconceived. He submitted that the genuine belief under the second limb is as to the threat faced – not as to the conduct that responded to the threat. The task of the jury under the second limb, it was said, is to consider the proportionality of the conduct of the defendant bearing in the mind the degree of threat to which the conduct relates is as the defendant genuinely believed to exist. It is under section 15(1)(a) of the Act – the first limb – that the genuine belief of the defendant about his conduct is considered. The Director conceded, however, that the Judge did not use the precise words of the statute, but contended that no risk of a miscarriage of justice arose.
The construction contended for by the defendant may be outlined as follows. First, there is to be an identification of the conduct to which the charge relates. Next, there is to be a determination of whether the defendant genuinely believed that the conduct was necessary and reasonable for a defensive purpose; here, namely defence of another. Next, there is to be a finding as to the defendant’s genuine belief as to the circumstances. One side of the proportionality test is the proportionality of the defendant’s conduct in the circumstances as he genuinely believed them to be. Then, there is to be a finding as to the threat the defendant genuinely believed to exist. The other side of the proportionality test is the proportionality of the defendant’s conduct in light of the threat that the defendant genuinely believed to exist. Finally, there is to be objective consideration of the reasonable proportionality of the conduct which is in the circumstances referred to in the matters the subject of the defendant’s genuine belief.
Counsel for the defendant during argument on the appeal placed emphasis on the need to identify the subjective component of “each side” of what must be objectively viewed; namely, the conduct in the circumstances as the defendant genuinely believed them to be, and the conduct in view of the threat that the defendant genuinely believe to exist. It was submitted that Parliament in enacting section 15(1)(b) expressly postulated the jury considering the genuine belief of the defendant in regard to “circumstances” in contradistinction to a genuine belief as to “threat”. These words are different and, it was said, to be given a different meaning. The plain meaning of the words in section 15(1)(b) were said to be clear; Parliament has sought fit to qualify both the question of circumstances and the question of threat by reference to the defendant’s genuine belief. When pressed on this issue, counsel for the Director conceded that it was difficult to imagine what was intended by these words. Counsel for the Director, however, placed particular emphasis on the fact that in the within proceeding, in his submission, there were no relevant circumstances that were not also relevant to threat. He submitted that in such a case, the words in relation to circumstances can be completely omitted from a proper direction. His submission went no further than this.
At common law, a defendant was taken to have acted in self-defence where he or she believed upon reasonable grounds that it was necessary in self-defence to do what he or she did in resisting his or her attacker. The often cited authority for this proposition is the decision of the High Court in Zecevic,[1] where in a joint judgment, Wilson, Dawson and Toohey JJ observed:[2]
It is apparent, we think, from the difficulties which appear to have been experienced in the application of Viro, that there is wisdom in the observation of the Privy Council in Palmer that an explanation of the law of self-defence requires no set words or formula. The question to be asked in the end is quite simple. It is whether the accused believed upon reasonable grounds that it was necessary in self-defence to do what he did. If he had that belief and there were reasonable grounds for it, or if the jury is left in reasonable doubt about the matter, then he is entitled to an acquittal. Stated in that form, the question is one of general application and is not limited to cases of homicide. Where homicide is involved some elaboration may be necessary.
[1] Zecevic v DPP (Vic) (1987) 162 CLR 645.
[2] Zecevic v DPP (Vic) (1987) 162 CLR 645, 661.
The defence of defence of another arose where the defendant sought to protect another person in imminent danger of death or serious bodily harm and the defendant honestly believed on reasonable grounds that the actions taken by him or her were necessary to save that person from death or serious bodily harm.[3]
[3] See R v Spartels [1953] VLR 194; R v Duffy [1967] QB 63; R v Redman [1978] VR 178.
It is to be accepted that the current law on self-defence and defence of another is to be found in section 15 of the Criminal Law Consolidation Act. Section 15, prior to its repeal in 1991, provided that “[e]xcept as provided in s 14, no punishment shall be incurred by any person who kills another by misfortune or in his own defence, or in any other manner without felony.” This version was repealed by the Criminal Law Consolidation (Self-Defence) Amendment Act 1991 (SA). It is apparent that the re-enacted section 15 was introduced to implement the recommendations of the Parliamentary Select Committee on Self-Defence. Those recommendations included the following:[4]
[4]    South Australia, Parliamentary Debates, Legislative Council, 10 April 1991, 4275 (The Hon A Levy), referring to the earlier report and recommendations.
[t]hat the justification for the use of force by a person acting in self-defence or defence of property be assessed on the basis of the facts as the person genuinely believed them to be rather than, as under the common law, as the person reasonably believed them to be…
In the second reading speech, it was stated that the framing of the terms of the Bill had “proved to be a most difficult and complex task”.[5] The amending Act codified the law on self-defence and excessive self-defence. The new section 15(1) relevantly provided that a person “does not commit an offence by using force against another if that person genuinely believes that the force is necessary and reasonable … to defend himself, herself or another.” Subsection (2) provided:
[5]    South Australia, Parliamentary Debates, Legislative Council, 10 April 1991, 4275 (The Hon A Levy).
(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 (judged 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.
From the time of this enactment, there were a number of calls to amend the legislation as the section had become known as being impossible to explain to juries.[6] The current version of section 15 was enacted in 1997, with the enactment of the Criminal Law Consolidation (Self Defence) Amendment Act 1997 (SA).   During the second reading, the basis for the calls for change was made clear: that “the combination of the burden of proof beyond reasonable doubt and the absolutely subjective nature of the test placed an impossible burden on the Crown.”[7] The concept of proportionality was introduced and the following was said about the change sought to be brought about by the new section:[8]
The major substantive change from current law in s. 15 is that, for an acquittal, the force used by the person in self-defence must be objectively reasonable on the facts as he or she believed them to be, rather than, as s. 15 currently states, it suffices if the person genuinely believes that the force used was reasonable in all of the circumstances.
This change, on a balanced assessment of its practical effect, should not cause any concern. It does not put South Australia law back to the unsatisfactory common law position from which all parties agree to move in 1991. It brings South Australian law into line with that of all other Australian jurisdictions and with the law in the United Kingdom and Canada. Further, it is in accordance with the recommendations of the Model Criminal Code Officers Committee (a body which has reported to the Standing Committee of Attorneys-General on, among other matters, the general principles of the criminal law), the English Law Commission, the Canadian Law Reform Commission and the English Criminal Law Revision Committee. In this Bill, the use of force to defend oneself or one’s property requires the jury to assess the situation on the facts as the defendant genuinely believed them to be. If, on the basis of the defendant’s genuine belief, the force used was “over the top” then it would not be acceptable.
[Emphasis added.]
[6]    See eg R v Gillman (1994) 62 SASR 460.
[7]    South Australia, Parliamentary Debates, House of Assembly, 27 February 1997, 1089 (The Hon SJ Baker).
[8]    South Australia, Parliamentary Debates, House of Assembly, 27 February 1997, 1089 (The Hon SJ Baker).
Sections 15, 15A, 15B and 15C of the Criminal Law Consolidation Act have become notorious for the difficulty they cause in directing juries.
I will turn shortly to some of the decisions and passages relied on by both counsel on appeal. However, it is convenient to begin with a reference to the observations of Debelle J in Lloyd, where his Honour reviewed the common law position and undertook a detailed analysis of the tasks arising from section 15. Debelle J identified and discussed the first task – the first limb – as follows:[9]
…the task first required by s 15(1) is to examine the belief of the accused and to determine whether that belief was genuinely held. It is a subjective test in the sense that it is the belief of the accused which must be examined. The court is not, at this stage, concerned to examine whether a reasonable person would hold that belief. The court or a jury is, however, required to determine whether it is a reasonable possibility that the accused held that belief. Expressed in terms of what the prosecution had to prove in this case, the question was whether the prosecution had proved beyond reasonable doubt that the respondent did not genuinely believe any of the above three matters. The concept of a genuine belief carries with it the necessity to consider not only what the accused person may say as to his belief but whether, in all the circumstances, that stated belief was genuine: see R v Gillman (1994) 62 SASR 460 at 465.
Importantly, Debelle J identified and discussed the second task – the second limb – as follows:[10]
The next task for the magistrate was to examine the issues arising out of s 15(1)(b). This provision is concerned with the question whether the accused has responded reasonably to the perceived threat. Section 15(1)(b) gives effect to what has been the law at least since Viro v The Queen, that the force used must not be disproportionate to the necessitities of the occasion: see also Morgan v Colman (at 337). However, s 15(1)(b) departs from the decision of the High Court in Zecevic v Director of Public Prosecutions by requiring the assessment of the reasonableness of the accused's response to be made bearing in mind the belief of the accused as to the matters referred to in s 15(1)(a). Expressed another way, s 15(1)(b) requires the assessment of the reasonableness of the response of the accused to be made by reference to the circumstances as the accused genuinely believed them to be. With that factual background, it is necessary objectively to decide whether the accused has acted in a way which was reasonably proportionate to the threat which the accused genuinely believed to exist. In short, the test requires an objective assessment to be made of the reasonableness of the response of the accused having regard to the nature of the threat which the accused subjectively and genuinely believed to have existed. …
[9] Police v Lloyd (1998) 72 SASR 271, 276.
[10] Police v Lloyd (1998) 72 SASR 271, 277.
In Edwards, in the context of a Judge alone trial, I said the following about the requirements of section 15A when addressing the components of that section comparable with those of section 15 presently under consideration:[11]
A consideration of section 15A requires at least the following: an identification of the conduct to which the charge relates; a determination as to whether the defendant genuinely believed that the conduct was necessary and reasonable to assist in a lawful arrest; a finding as to the defendant’s genuine belief as to the circumstances; a determination of the threat that the defendant genuinely believed to exist; and finally, an objective consideration of the reasonable proportionality of the conduct in the defined circumstances to the threat that the defendant genuinely believed to exist in the defined circumstances.
[Emphasis added.]
[11] R v Edwards [2009] SASC 233, [137].

In Burns, Sulan J and I made the following observations in the course of disposing of a complaint about a trial Judge’s directions on the topic of self-defence:[12]
In the course of summing up when dealing with self-defence the Judge directed the jury with respect to what he described as the two requirements giving rise to self-defence. …
…
…In regard to the first requirement, the correct question is for the jury to consider whether it is at least possible that the defendant genuinely believed that it was necessary and reasonable to punch the other party in order to defend himself. Another way of posing the question is to ask whether the prosecution has excluded as a reasonable possibility that the defendant genuinely believed that it was necessary and reasonable for him to so act in order to defend himself.
The second requirement is also to be addressed in the same way – has the prosecution excluded as a reasonable possibility that the defendant’s conduct in the circumstances as he genuinely believed them to be, was reasonably proportionate to the threat that the defendant believed to exist?
In our view in the present proceedings, there is a real risk that the jury may have misunderstood where the onus of proof lay on the issue of self-defence. We consider that the references by the trial Judge to the onus resting on the prosecution to disprove the defence of self-defence were insufficient to adequately guard against the risk of a miscarriage of justice.
[Emphasis added.]
[12] R v Burns (2009) 103 SASR 514, [14]-[17].
The Director in the within proceeding relied on the following more recent remarks of Sulan J in Roberts, where his Honour addressed the issues that are to be brought home to the jury when directing in accordance with section 15:[13]
In my view, the section poses practical difficulties for a trial Judge who is required to direct a jury in terms of the sections. The first question which arises is whether the defence of self-defence is open. The onus of proof is upon the prosecution to prove that the accused did not genuinely believe the conduct to which the charge relates was necessary for a defensive purpose, that is, to defend himself or his partner.
In this case, as can be observed from the evidence to which I have earlier referred, the defence case raises the issue of self-defence or defence of another. The trial Judge directed the jury accordingly, and there is no complaint about his directions.
In the case of self-defence, once the issue of whether the defendant genuinely believed his conduct to be necessary and reasonable for a defensive purpose is determined in the defendant’s favour, then the jury is required to consider the question of proportionality.
The onus is upon the prosecution to prove beyond reasonable doubt that the conduct was not reasonably proportionate to the threat that the accused reasonably believed existed. …
In the same decision, White J drew the following two elements from the section:
There are two elements of the defence established by s 15(1) and s 15A: a genuine belief by the defendant that the conduct to which the charge relates is necessary and reasonable for a defensive purpose (a genuine belief), and reasonable proportionality between the defendant’s conduct, and the threat which the defendant believed to exist (reasonable proportionality). The former involves a subjective test, and the latter an objective test.
[Footnote omitted. Emphasis added.]
[13] R v Roberts (2011) 111 SASR 100, [30]-[33].
The Director submitted that there was no need to slavishly follow the precise terms of the section, and in a case where the threat cannot be divorced from the circumstances, there could be no error in directing as the Judge did in the within proceeding. In response, the defendant sought to rely on the decision of the High Court in Fingleton,[14] where McHugh J discussed the minimum requirements of a summing up. Included in those minimum requirements are the facts that are relevant to the issues; that is, identification of the facts relevant to the issues and an explanation as to how the law applies to those facts. In relation to where statutory terms are involved, relying on the previous decision of the Court in McBride,[15] his Honour observed:[16]
A summing-up is radically defective unless it adequately explains "to the jury the nature and essentials of" the offence with which a person is charged. Where the offence involves statutory terms, it is usually "imperative that the jury be specifically directed as to the criteria to be applied and the distinctions to be observed in determining" whether particular conduct is within the terms of the section.
[Footnotes omitted.]
[14] Fingleton v The Queen (2005) 227 CLR 166.
[15] McBride v The Queen (1966) 115 CLR 44.
[16] R v Roberts (2011) 111 SASR 100, [84].
It is to be observed that the Judge at the outset of his directions on the defence in the earlier emboldened extract identified each of the subjective elements in accordance with the terms of section 15(1)(b). Thereafter the Judge discussed the respective states of mind. It may be accepted that the Judge did not on every occasion that he made reference to the subjective elements refer to the precise terms of the legislation; namely, “in the circumstances as the defendant genuinely believed them to be” and “proportionate to the threat that the defendant genuinely believed to exist”. On occasions he used such terms as “as [the defendant] genuinely saw it” and the conduct was not reasonably proportionate to the threat “as the [defendant] saw it” and “reasonably proportionate to the threat which [the defendant] believed his partner faced”.
To my mind, the substance of the statutory requirements relating to acting in the defence of another were adequately explained to the jury. In the present case it was difficult, if not impossible, to distinguish between the defendant’s belief as to the threat that his partner faced and the defendant’s belief as to the circumstances. It would seem that every identified relevant circumstance was relevant to and coloured the threat that, on the defendant’s case, he genuinely believed to exist. The Judge addressed these requirements on several occasions during the summing up, as well as in the written directions he provided to the members of the jury when they retired to consider their verdict. The provisions were to my mind adequately addressed.
Section 353(1) of the Criminal Law Consolidation Act
I have reached the conclusion earlier in these reasons that there was no misdirection either as to the burden of proof or as to that part of the Judge’s summing up that addressed the defence of another. If contrary to my reasons there was some inadequacy in the directions of the trial Judge, I consider that any such misdirection would not have given rise to a risk of a miscarriage of justice and if necessary to do so I would apply the proviso in accordance with the terms of section 353(1) of the Criminal Law Consolidation Act.[17] My review of the evidence in the trial demonstrates that there was clear and cogent evidence to support the verdict of the jury. Further, in the course of the summing up the Judge repeatedly reminded the jury that the prosecution bore the onus of proof beyond reasonable doubt in regard to each element of the offence, including the element that the defendant acted unlawfully. Further, the Judge explicitly referred on several occasions to the prosecution carrying the onus of proving beyond reasonable doubt that the defendant had not acted in the defence of his partner. As discussed above, when dealing with the elements of defence of another, the Judge, although not always using the precise language of section 15, conveyed to the jury the import and substance of the section on repeated occasions.
[17] Section 353(1) of the Criminal Law Consolidation Act 1935 (SA) provides:
The Full Court on any such appeal against conviction shall allow the appeal if it thinks that the verdict of the jury should be set aside on the ground that it is unreasonable or cannot be supported having regard to the evidence, or that the judgment of the court before which the appellant was convicted should be set aside on the ground of a wrong decision on any question of law, or that on any ground there was a miscarriage of justice, and in any other case shall dismiss the appeal; but the Full Court may, notwithstanding that it is of the opinion that the point raised in the appeal might be decided in favour of the appellant, dismiss the appeal if it considers that no substantial miscarriage of justice has actually occurred.
Conclusion
I would dismiss the appeal.
ANDERSON J. I would dismiss the appeal for the reasons given by Gray J. I also agree that in the alternative the proviso would apply.
STANLEY J: I have had the advantage of reading the reasons of Gray J. I would dismiss the appeal. I agree with the reasons given by Gray J. I have nothing further to add.