R v Gallagher

[1999] QCA 275

IN THE COURT OF APPEAL	[1999] QCA 275
SUPREME COURT OF QUEENSLAND

C.A. No. 117 of 1999

Brisbane

[R v. Gallagher]

THE QUEEN

v.

JAMES EAMON GALLAGHER

Appellant

Pincus JA Davies JA Thomas JA

Judgment delivered 23 July 1999

Joint reasons for judgment of Pincus and Davies JJA, separate dissenting reasons of Thomas JA

APPEAL AGAINST CONVICTION DISMISSED

CATCHWORDS:	CRIMINAL LAW - APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION - APPEAL AND NEW TRIAL - PARTICULAR
GROUNDS - misdirection and non-direction - conviction of wilful and unlawful damage - whether trial judge should have directed jury on defences available under s 31(1)(c) and s 458(3) Criminal Code
Howe (1980) 55 ALJR 5 Payne [1970] QdR 260
Counsel:	Mr P Callaghan with him Ms K Breen for the appellant Mr T Winn for the respondent
Solicitors:	Legal Aid Queensland for the appellant Director of Public Prosecutions (Queensland) for the respondent
Hearing Date:	23 June 1999

JOINT REASONS FOR JUDGMENT - PINCUS AND DAVIES JJA

Judgment delivered 23 July 1999

1. The appellant was convicted of a charge of wilful and unlawful damage and appeals against the conviction. The notice of appeal complains that the judge erred in refusing to direct the jury in accordance with s 458(3) and s 270 of the Code. On 18 June 1999 there was filed an outline of submissions on the appellant's behalf which relied upon s 458(3) as did the notice of appeal, but did not complain of the absence of direction under s 270. In lieu, the outline said that the jury should have been instructed in terms of s 31(1)(c) of the Code. As to the Crown case of unlawful damage, the evidence was that the appellant struck a motor bike, whose rider had annoyed him, with a steel bar smashing its headlight, a gauge and a mirror. When asked by police whether he had struck the bike with the steel bar the appellant said "no", but in his evidence he said in effect that he struck the light because it was blinding him; there was no particular reason given for smashing the gauge or mirror.

2. Another charge which related to the same incident was one of assault and on that the appellant was acquitted. There was discussion between the judge and counsel as to what was the defence to the wilful damage charge and counsel said in effect that it was under s 270; the argument before us did not pursue that proposition. The judge ruled against a defence based on s 270. With respect to the damage charge, the judge said in effect that he could see no defence but accident.

3. In his summing-up, when directing the jury about the damage charge, the judge made mention of the defence of accident: his Honour said in effect that the defence had argued that the question was whether the damage was unlawfully caused and that they should bring in a commonsense verdict. When the jury retired at the end of the summing-up, in response to a question from the judge defence counsel indicated that he desired further direction on an evidentiary point and also with respect to the charge of assault. The judge gave a redirection on the former point and the jury retired again. Then his Honour was asked by the jury for a further direction with respect to assault and one was given. After being told that the jury had a verdict, the judge reconvened the court and at that stage counsel for the defence asked, for the first time, for a direction under s 458(3). That reads as follows -

   "A person is not criminally responsible for an injury caused to property by the use of such force as is reasonably necessary for the purpose of defending or protecting himself, herself, or any other person, or any property, from injury which the person believes, on reasonable grounds, to be imminent".

4. The judge declined to direct on that. On the hearing of the appeal, Mr Callaghan argued for the appellant that defences under both s 458 and s 31(1)(c) should have been put to the jury; he relied principally on the former. The contention was that the appellant had an apprehension of injury, that there was a continuing threat, on the appellant's evidence, and that the force used could have come within s 458(3). Mr Callaghan did not contend that if he were unsuccessful in his s 458(3) argument he would be likely to be helped by s 31(1)(c).

5. The task of dealing with the points raised is not made easier by the difficulty in understanding what the appellant's case, as presented below, was. According to the evidence of the first witness, police constable Lynes, the appellant told him that the complainant had been following him with his light on high beam, that the appellant tried to stop a police car but it kept driving, that he drove past Southport police station but it looked closed, that he drove through a few streets, but the complainant kept following him. According to the constable, the conversation went on:

   "I stopped here at the lights and got out of my car and he pushed me onto the ground". I said, 'Did you hit his bike with a steel bar?'. 'No' he said".

The evidence that these statements were made was not challenged, in cross- examination of the constable.

1. The next witness was the complainant, whose evidence was to the effect that the appellant had so driven as to endanger the complainant and that he followed him "because I just couldn't understand why this guy wanted to get me off the bike so badly". The complainant's evidence was to the effect that both he and the appellant pulled their vehicles up at a set of lights. The complainant said he was just sitting on his bike when the appellant "jumped out of his car with a metal pipe and proceeded to smash my headlight, my gauges, my mirror . . . ". The complainant said that he got off his bike and the appellant started hitting him on the helmet, that he grabbed the appellant's arms and pushed him down to the ground to detain him.

2. In cross-examination counsel for the appellant below had the complainant admit that his motor bike light was on high beam; the complainant said, however, that it was pointed down. He later explained that his low beam had "blown" two days before. Counsel put to the complainant that, " . . . whether deliberately or accidently, your light was shining right in his face when he got out of his car?". Counsel also put that the complainant was walking towards the appellant and that the appellant's light was on, pointing in front of him. To these suggestions, the complainant replied that the light could not have been shining in the appellant's face.

3. But the point is not, as it seems to us, what response the complainant made to the defence suggestions, but rather that the case put was simply that the bike was stopped with the light on shining ahead, when the appellant got out of his car and began to walk towards the bike. After the exchanges just mentioned, one finds the following questions and answers:

   "And when he approached you on the bike, holding this hollow tube, he started basically just waving it about in any direction, didn't he?-- No, he came straight up and struck my headlight.

   And when he struck your headlight, your light no longer shone in his face, did it?-- Well, it wasn't shining in his face in the first place.

   And you tried to get off the bike or did get off the bike at that point, didn't you?-- Yes.

   And you approached him?-- To stop him from hitting me, yes.

   You approached him, didn't you?-- Yes, I did.

   You, the man who had been deliberately following him for 30 minutes, got off your bike and approached him, didn't you?-- Yes.

   And that was when you were hit on your motor bike helmet, wasn't it?-

   - Yes, and my shoulder.

   And then the two of you fell to the ground?-- Yes. I detained him.

   Do you agree that, either accidently or deliberately, you kicked him at one stage in that episode?-- No.".

Up to this point, there appears to us to be nothing to bring s 458(3) under consideration. It will be noted that the allegation the appellant had made to the police against the complainant was that "He followed me with his lights on high beam". The case put in cross-examination has the appellant get out of the car with the headlight shining at him, walk to the bike waving "this hollow tube" about, and then strike the headlight, at which point the complainant tried to, or did, get off his bike and approach the appellant. There is nothing in this story on which a rational jury could hold that the smashing of the light, gauge or mirror was done, necessarily or otherwise, for the purpose of defending the appellant or his property from imminent injury. Reference to the photographs in evidence shows that the left-hand gauge on the motor bike was smashed; that must have been done by a blow other than the one which smashed the light.

1. The next witness, a security officer, gave evidence in chief that he "saw two blows to the headlight of the motorbike and blows to the helmet while the guy was still on the motorbike". Cross-examining on that version, counsel for the appellant put, among other things, that the appellant hit the motor bike, that the light then went off, that it had been on previously pointing straight ahead and that after the appellant hit the motor bike the man on the bike got off. Counsel also put that shortly after the complainant got off the motor bike he was hit on the helmet. Again, none of this could possibly support a case under s 458(3).

2. In the appellant's evidence, he said he was frightened he was going to be "smashed up". He said that after the vehicles pulled up he "staggered" along the side of his vehicle and tried to wave the complainant away, having a piece of copper pipe in his arms. The appellant said he wanted to show him he had "had enough of it". He went on:

   "And what's he do, but turns his bike and puts the light straight in my face . . . it blinded me totally. He got off the bike at the same time, grabbed me, I swivelled away from him and got - missed the light, and got his - apparently the rear vision mirror, and he grabbed me again, and I just got the light and down I went underneath him. He'd kicked me feet out from under me".

This is inconsistent with the case which had been put up to that stage. There had not previously been any suggestion, to the police or by the appellant's counsel that -

1.         the complainant turned the bike to put the light on the appellant's face;

2.         that as the complainant did this he got off the bike;

3.         that the complainant got off his bike and grabbed the appellant before the appellant smashed the light;

4.         that the complainant kicked the appellant's feet out from under him.

11 The appellant was then asked why he tried to "get the light" and he said it was
because it was blinding him. Subsequently the judge and counsel asked some
further questions about the circumstances in which the motor cycle was damaged:

"[His Honour]: Look, did you intend to hit any part of the motor cycle

at any time?-- No.

You didn't?-- No.

Well, what are you saying? It was an accident?-- I reacted to him blinding me again . . .

Mr Booth: Thank you, Your Honour. I suggest to you that when you got out of the car, you did intend to smash the light with that metal bar?-- I didn't. I didn't intend to smash any light.

Is it your evidence then you didn't intend to smash the light until it was shone in your face?-- Well, it wasn't a pre-thought that way, but that was the reaction. I was trying to protect my vehicle, as a matter of fact".

Later, in further questioning by the judge the appellant said:

"He shone the light into my face when I was out there, and I reacted, and I intended to hit it, if that is what you want me to say . . . [i]t was a reaction, as I saw him jumping off the bike".

In response to further questioning, the appellant said that because of an operation on his knee he "couldn't stagger towards him . . . I was hanging on to the car to get around to the back". Then:

"How then did you intend to defend yourself if you can't even walk properly?-- I wasn't trying to defend. I was trying to stop him, making him go away, and just stop him doing any damage to my vehicle. I didn't think about myself. A bad decision.

In re-examination he said he was terrified "that he was going to do damage to myself and my vehicle". In chief the appellant, in answer to questions as to why he was frightened of the motor bike, complained of the "menacing with the light going on the high beam, and there was the police vehicle was out of range".

1. When asked what was the defence to the assault charge, counsel below told the judge that it was self-defence. When asked about the unlawful damage charge, counsel expressed the hope that the "jury will use their good sense in relation to that matter". As to the damage charge, counsel argued that the hitting of the bike was necessary to prevent "the repetition of an act, namely the shining of the light into the eyes". This was a reference to s 270 on which reliance is not presently placed.

2. As we have mentioned, counsel for the defence below raised s 458(3) after the judge had been informed that the jury had a verdict - hours after the jury had first retired. The argument advanced was that the jury could find that the shining of the light into the appellant's eyes, bearing in mind the evidence that prior to that there had been shining of the light from the rear of the car, was an assault resulting in an injury. The argument presently advanced under s 458(3) does not make it plain on which of the versions or by which combination of versions s 458(3) is said to be applicable. We were invited to take the appellant's case "at its highest", which presumably means to pick out sentences here and there which may be capable of being assembled into a s 458(3) case.

3. It does not appear to us that this is what the law requires of the trial judge. In

Payne [1970] Qd R 260, Lucas J with whom the other judges agreed said:

"It is of course true that a judge is bound to direct the jury as to a defence which is supported by the evidence but is not advanced by the accused . . . [b]ut this does not mean that a judge must search his mind for fanciful interpretations of the evidence in order to put them to the jury as possible defences, particularly if he is not asked to do so by counsel for the accused". (264)

In Howe (1980) 55 ALJR 5, there was a conviction of assault arising out of an altercation and the question was whether the judge should have given the jury a direction under s 247 of the Western Australian Criminal Code whose terms are in substance the same as our s 270. In the court's reasons their Honours said:

"The essential question here is whether the trial judge should have perceived that an issue based on s 247 was fairly raised on the evidence". (7)

In our opinion, it would have been perverse of the jury to have acquitted on the basis that the damage to the motor cycle might have been necessary to defend or protect the appellant or his car from injury which the appellant believed to be imminent. One thing which seems pretty clear is that the two vehicles stopped, the appellant got out of his and moved to the motor cycle and struck it, more than once. The predominant version given as the reason for this was that the appellant was blinded by the light, a condition remediable otherwise than by smashing the light. It would have been perverse of the jury to give any credence to the story, advanced for the first time when the appellant gave evidence, that he had no intention of smashing the light. Similar considerations apply to s 31(1)(c).

1. Mr Callaghan complained that the judge left the damage case to the jury without indicating what was the defence. That is not an extraordinary state of affairs; sometimes unlawful things are done and there is no defence. There was no evidence here on which the judge could have held there was a defence "fairly raised".

2. We would dismiss the appeal.

REASONS FOR JUDGMENT - THOMAS JA

Judgment delivered 23 July 1999

1. The appellant was tried in the District Court at Southport on charges of common assault and wilful damage to property. The jury acquitted him of the assault charge but convicted him of wilful damage. This appeal is against that conviction.

2. It is common ground that upon the night of 20 January 1998, the appellant, a 66 year old man, was driving his Commodore sedan while a younger man, described as wearing a black helmet and heavy beard, was riding his 250cc motorcycle in the Southport area. Both were intending to go to their respective homes. In Waterways Drive something happened which led to a disturbing pursuit in which the motorcyclist followed the appellant in and around the streets of Southport for the next 20 to 30 minutes.

3. It is established that the motorcycle headlight was at all times on high beam. The motorcyclist conceded in cross-examination that the low beam had blown some days previously. He claimed however that the high beam was "pointed down". The appellant's description on the other hand was that the light suddenly came up behind him and flooded the interior of his vehicle "like a Christmas party", upon which he braked hard and went towards the left hand lane. He describes the motorcyclist's light at various stages of the ensuing events as blinding and menacing. The motorcyclist's account (which in evidence-in-chief made no mention of the state of his headlight) was that when he drove near a white Commodore, for no apparent reason it swerved and braked rapidly "to get me off the road". Thereafter he says that he tried perhaps three times to get around the vehicle, but that the car was driving up the centre of the road and each time he tried to get around it the brakes were applied. Thereafter the motorcyclist decided to follow the other vehicle. His stated reason for this was that he wanted to get an apology from the other driver. He conceded that at times he came very close to the rear of the vehicle. This situation continued for approximately 20 or 30 minutes. On one occasion while the appellant stopped near a bridge in obedience to lights, the motorcyclist drove up on to a "no man's land" area about two feet from the Commodore's passenger side window and gesticulated at the appellant. According to the appellant the gesticulations included holding up a clenched fist and waving it, and drawing his hand across his throat. According to the motorcyclist, he made an "arm signal" but not in an aggressive way. When the lights changed both vehicles proceeded across the bridge where the undulating surface enhanced the blinding effect of the motorcycle's light causing the appellant almost to hit the rail. The pursuit continued through various streets in Southport. According to the appellant he unsuccessfully attempted to attract the attention of a police vehicle.

4. The appellant had difficulty in walking, and was scheduled to have a total knee replacement operation within two weeks. He described himself as "beyond being able to protect myself anymore". He said that while driving he was frightened that if he pulled up he was going to be smashed up and that he was terrified.

5. Eventually the appellant had to stop at traffic lights at the corner of Brisbane Road and Captain Cook Drive. The motorcycle stopped immediately behind him. The appellant took a short hollow rod from the rear of his vehicle (resembling a curtain rod about 18 inches long) and moved (according to him with some difficulty) towards the motorcycle. Its light was still on, blinding him. He tried to wave the motorcyclist away. The lights went green but the motorcyclist made no attempt to go. According to the appellant the other man then "turns his bike and puts the light straight in my face". The motorcyclist denied that his light was even shining in the face of the appellant as the appellant approached him, but a security guard, Mr Pozzi, who was in a vehicle about 50 yards from the scene at this point, considered that the light was pointing straight ahead and at the appellant. According to the motorcyclist the appellant "ran" to his bike with the pipe in his hand and struck the bike with it three or four times, breaking the light and also the glass on the speedometer. The motorcyclist then "hopped off" his bike whereupon he was hit on the helmet with the bar. He grabbed the appellant's arms, and pushed him to the ground and took the pipe from him. He reassured the appellant that he was not going to hurt him and then got off him. He may have damaged the appellant's hand or put a graze on it as he held him down on the ground. Mr Pozzi gave a similar account although to him the men appeared to be arguing before he saw two blows to the headlight followed by blows to the helmet. He said that this happened while the motorcyclist was still on the bike, but his earlier version to the police had been that the motorcyclist had dismounted from the bike before being hit on the helmet.

1. The appellant's version was that when he left the vehicle the bike's light was shining in his eyes and he heard the motor stop. The other man jumped off his bike and grabbed the appellant's arm. "I felt something grab me - I spun away and hit the light but I ... missed it the first time". Under cross-examination he agreed that he was swinging the bar wildly, and claimed that he did so to defend himself and that he was terrified. His evidence includes statements that "it was my reaction there to stop ... the blinding", and that "I was terrified that he was going to do damage to myself and my vehicle". He also said that when the man got off his bike, "I thought that he was going to smash me up, and smash my vehicle up".

2. It was the trial judge's duty to explain to the jury what defence was open according to any view of the facts that was reasonably open, including the accused's version.

3. It is hardly surprising that the appellant was convicted of wilful damage, because whilst self-defence was left to the jury on the assault count, no defence at all was left for the consideration of the jury in relation to the wilful damage charge apart from a brief reference to accident. The reference to accident was mere surplusage in the context of an offence of which wilful damage was an element. In the course of the summing-up his Honour said "... it seems to me that even if you accept the evidence of the accused, you may well come to the conclusion that he is guilty of that offence ... that is really the Crown's submission; that there is no defence to that charge". His Honour had earlier ruled that self-defence applied only in respect of offences against the person, and not to offences against property. Accordingly, apart from reference to accident which the learned trial judge obviously recognised as an insignificant possibility, there was no explanation of any possible justification or excuse for the property damage that the appellant admitted doing.

4. The jury effectively retired at 11.05 a.m. after receiving a minor supplementary redirection. At 12.31 p.m. his Honour read a note that had been received from the jury. It stated:

   "If, as we have been instructed, shining a light into a person's face can constitute an assault is that person justified in trying to remove or protect themselves from that assault".

5. His Honour responded by re-stating the effect of s271(1) of the Code, adding the comment "[i]t's not relevant to any charge of damaging property".

6. At 2.22 p.m., the court resumed in the absence of the jury, having been advised by defence counsel that he wanted something further mentioned to the jury, and by the bailiff that the jury had reached a verdict. In the absence of the jury, defence counsel referred his Honour to s458(3) of the Code and asked for the jury to be directed in accordance with it. That subsection states:

   "A person is not criminally responsible for an injury caused to property by the use of such force as is reasonably necessary for the purpose of defending or protecting himself, herself, or any other person, or any property, from injury which the person believes, on reasonable grounds, to be imminent."

This request was opposed by the Crown on the ground that the shining of light into a person's eyes could not amount to an "injury" as distinct from an assault. Defence counsel submitted that it seemed clear from the redirection requested before lunch that the jury was looking for some direction as to whether some defence akin to self- defence might be available to the wilful damage charge, that the defence was open and that it was for the Crown to exclude the defence. His Honour concluded "[n]o, I'm not going to change my ruling. I'm not satisfied that there's any evidence from which the jury could come to the conclusion the shining of the light in the eyes in these circumstances could cause an injury".

1. In my view it was erroneous to confine consideration to the narrow issue of whether injury might be suffered from the high beam of a motorcycle light. Just as it was appropriate in respect of self-defence to instruct the jury that they might "have regard to all the circumstances leading up to the incident", the same alarming events leading up to the confrontation were plainly relevant to the question whether the appellant might have believed on reasonable grounds that injury was imminent either to himself or his property. It is true that the appellant's evidence did not specifically state the type of injury which he feared, but there was abundant evidence of his terror at the ongoing episode and of his fear of damage to himself or his car. If his version was to be accepted or even to be regarded as a reasonably possible account of the facts, a jury might well conclude that he believed on reasonable grounds that injury to his person or property was imminent.

2. Whilst one can sympathise with the learned trial judge having regard to the inconvenience of bringing such a matter to the attention of the jury at such a late stage, it was not too late to do so. Appropriate directions would certainly have been better late than never. 14 The circumstance that criticism may be made of the appellant's evidence and that some material parts of it were not put to the motorcyclist is not enough in my view to justify the trial judge or this court in performing the jury's function. In any event I regard it as entirely credible that the appellant was terrified by the preceding events and that he may well have thought he and his vehicle were in imminent danger of damage. Such a fear is properly raised not only by his own evidence but by the parts of the story that are common to both cases. The issues arising under s458(3), including whether the appellant believed on reasonable grounds that injury was imminent, and whether his response was reasonably necessary to defend himself were classical jury questions[1]. Even relying substantially upon the Crown case it is by no means inconceivable that the appellant's admitted aggression at that point might be regarded as a reasonable form of defence. It is for the jury, not judges, to determine such questions.

   [1]            Kimlin v Wilson, Ex parte Kimlin; Roberts v Wilson, Ex parte Roberts [1966] Qd R 237; R v Walsh [1984] 2 Qd R 407; (1984) 14 A Crim R 431.

3. The defence should have been left to the jury, and the lateness of counsel (and the court) in identifying the appropriate defence was not a ground for excluding it[2].

   [2]            Cf Howe v The Queen (1980) 55 ALJR 5.

4. The appellant did not have a fair trial and his conviction should be set aside. The circumstance that the jury acquitted him of assault, presumably on the ground of self-defence, suggests that his prospect of similar acquittal on the other charge, had the appropriate defence been left to the jury, was substantial. For this reason I have hesitated in reaching a conclusion whether the appellant ought to be re-tried on the wilful damage count. I have concluded however that it would not be appropriate for a verdict of acquittal to be entered by the court at this point. However the Director of Public Prosecutions might well take into account these remarks in determining whether the interests of justice require that the appellant be subjected to another trial on the remaining count. These last observations are however academic in view of the decision of the other members of this court to dismiss the appeal.

5. I would allow the appeal and set aside the conviction.