R v John Raymond Black No. SCCRM 386 of 1992 Judgment No. 3615 Number of Pages 7 Criminal Law and Procedure

[1992] SASC 3615

COURT IN THE FULL COURT OF THE SUPREME COURT OF SOUTH AUSTRALIA COURT OF CRIMINAL APPEAL KING CJ(1), LEGOE(2) AND OLSSON(3) JJ

CWDS
Criminal law and procedure - Offences against the person - Shooting at with intent - 3 counts in relation to three men shot by appellant - self-defence - Jury properly invited to consider alternatives, including retreat, open to appellant - no need in circumstances for direction as to no opportunity for calm reflection - verdict of guilty on one count and not guilty on other two counts - verdict justified on appellant's own evidence - appeal dismissed.

HRNG ADELAIDE, 14 September 1992 #DATE 14:9:1992
Counsel for Crown:         Mr P R Brebner
Solicitors for Crown:     Director of Public Prosecutions
Counsel for appellant:     Mr G F Barrett
Solicitors for appellant: R J Cole and Partners

ORDER
Appeal dismissed.

JUDGE1 KING CJ This is an appeal against a conviction by reason of a verdict of a jury in the Supreme Court of the crime of shooting at with intent to do grievous bodily harm. 2. The appellant was charged on an information containing three counts. The first count was one of shooting at John Van Roosmalen with intent to do him grievous bodily harm. The second count charged the appellant with shooting at William Owen Gilchrist with intention to do him grievous bodily harm. The third count charged him with shooting at George Williams, with intent to do him grievous bodily harm. 3. The appellant was found guilty on the first count, and not guilty on the other two counts. 4. The charges arose out of an episode which occurred in a house on a property in the Murray Mallee, situated about 60 kms from the town Murray Bridge. The house was somewhat isolated, and there were no very near neighbours. 5. The two men who were alleged to be the victims in relation to the first two counts, resided in the house, and the appellant had also been residing there for about six weeks. The appellant and Roosmalen had apparently made contact as a consequence of both being patients of the same psychiatrist or psychologist. The appellant had come to live at the property with Roosmalen, and Gilchrist, and for at least a time it appears there was another man residing there also. George Williams, who is the alleged victim in relation to the third count, lived in a house on a property some kilometres away from Van Roosmalen. 6. On the day of the alleged crime the appellant and Williams had gone out together. They had spent a considerable amount of time drinking in a hotel at Murray Bridge. During the course of that day it appears that Williams told the appellant a good deal about the activities of Roosmalen, and the nature of the household which he kept on the property. 7. Williams told the appellant that there was a homosexual relationship between Roosmalen and Gilchrist. He told him that on that very day three men were coming to the property, apparently for homosexual purposes. He also told him that it was planned to bring street kids to the property for the same purpose. 8. The appellant gave evidence that as a result of this information he decided that he would leave the property and, indeed, decided that if he had sufficient information he would communicate with the police. 9. Late in the afternoon or early evening, Williams and the appellant went to the house. The appellant was armed with a Winchester rifle and Williams was armed with a shotgun. There was a conversation between the appellant and Roosmalen which appears to have been acrimonious. Roosmalen claimed almost total amnesia as to the content of that conversation, but the appellant gave evidence that he had accused Roosmalen of the matters which had been mentioned to him by Williams and had told Roosmalen that he had "come undone". 10. What followed on that evening was in dispute between the witnesses at the trial, but in the upshot four men suffered gunshot wounds. The appellant suffered wounds in the left hand and right leg which, however, came from the same bullet, that having been fired from a shotgun. Roosmalen suffered a wound in the left shoulder and another in the right arm, as a result of two separate shots from the Winchester rifle. Gilchrist suffered two wounds in the back and another in the thigh from the rifle. Williams suffered a wound in the leg from the rifle. 11. The three alleged victims gave evidence for the prosecution at the trial and their evidence, although it differed in certain respects, was substantially to the effect that the appellant had shot the three of them and that the wound which the appellant suffered was fired by Williams after the last of the shots by the appellant. The appellant, on the other hand, claimed in his evidence that he was the first of the four men to suffer injury that night and that he shot the other three men in defending himself from a threat which he perceived to be emanating from them. 12. The fact that the jury returned verdicts of not guilty on the second and third counts, coupled with the fact that they had returned after retiring to seek a further direction as to self defence, indicates I think quite clearly that they were acting upon the basis of the evidence given by the appellant. There is really no intelligible basis for the verdicts of not guilty in relation to the second and third counts except self defence and that could only be based upon the appellant's evidence. If the jury had acted upon the evidence of the three alleged victims, no issue of self defence would have arisen and there could be no basis upon which there could be verdicts of not guilty on the second and third counts. 13. Counsel for the appellant argued his appeal upon the basis of the appellant's evidence. Counsel for the prosecution before us has agreed that that is the only proper approach to the case. It is necessary, therefore, to examine the various points raised by counsel for the appellant in the light of the evidence which the appellant gave at the trial. 14. Mr Barrett, who appeared for the appellant, criticised the learned judge's summing up in two respects. He claimed that the learned judge had not given an adequate direction to the jury in relation to the bearing which the opportunity to retreat or to take some measure other than shooting these men, had upon the issues which they had to decide. Mr Barrett stressed that this was an isolated property; that on the appellant's evidence he did not know who had shot him and that he had no realistic means of making his escape or taking any other action to protect himself. He argued that the learned judge should have brought this to the attention of the jury. 15. It seems to me, however, that the summing up fairly left this aspect of the case to the jury. The appellant had, on his own evidence, shot three men and the justification put forward for so doing was that he feared that he was in danger from them, having previously been shot. 16. It was obviously necessary for the jury to consider, in assessing the reasonableness of his actions, the alternatives which might have been open to him and it was, therefore, appropriate for the judge to point that out to the jury. His Honour said:
    "Due consideration must also be given to the possibility of
    retreating, of avoiding the attack, or of seeking assistance
    which is available, or is close at hand. There is no fixed rule
    about this matter. The law does not say that, in every
    circumstance, a person under attack must run away, or call for
    assistance. It is simply a matter which bears upon the question
    whether the accused genuinely believed, on reasonable grounds,
    that what he did was necessary in self defence at the time, or,
    indeed, as to whether the accused genuinely believed that he was
    in any danger, or under any real threat, at all. In the context
    of this trial, a consideration relating to this matter is, was
    there something else which the accused could have done if he did
    genuinely perceive a threat to his life or safety? Now, you have
    heard what Mr Brebner and Mr Algie have put to you about that
    matter and you must have regard to what they have said. Could
    the accused have walked or driven away? Could he have done something
    else other than shoot the men?" 17. It seems to me that that fairly poses for the jury's attention the question which they had to answer and I do not think that any fault can be found with it. His Honour went on at a subsequent stage of the summing up to say this:
    "Each case depends upon its own particular facts and
    circumstances. It is for you to say whether it is a reasonable
    possibility, having regard to all of the circumstances, as you
    find them to be, that the accused believed, on reasonable
    grounds, that, in relation to each charge, shooting the man
    concerned, in the way that you find he did, was necessary in self
defence." 18. And that again, as it seems to me fairly poses the issue for the jury. 19. Mr Barrett also complained that the learned judge did not give the jury the advice, which is referred to in the case of Zecevic (1987) 162 CLR 645 at 662, that it should fairly: "approach its task in a practical manner and without undue nicety, giving proper weight to the predicament of the accused which may have offered little, if any, opportunity for calm deliberation or detached reflection." 20. Whether advice of that kind ought to be given to a jury must depend upon the circumstances of the particular case and is a matter for the judgment of the trial judge. This is not the sort of case to which the classic observation, "that detached reflection is not to be expected in the presence of an uplifted knife", has any application. It was not a case in which the appellant was faced with a sudden emergency and had to make a snap decision as to his response to it. The episode occupied a significant period of time. The appellant was armed and at the relevant times his alleged victims were not. He was in control of the situation. Although he had suffered a wound, he was by no means in a situation in which he had no opportunity to consider alternatives open to him. In that situation I do not think that the learned judge can be criticised for omitting the direction to which counsel referred. 21. Mr Barrett also argued that the verdict is unsafe and ought to be set aside on that ground. He laid stress upon what he contended was the inconsistency between the jury's verdict in relation to the second and third counts and the verdict in relation to the first count. He laid particular stress on the verdict of not guilty in relation to the Williams count. 22. The appellant's evidence as to the relevant events of the night was substantially as follows. He said that following the acrimonious conversation with Roosmalen in which he had threatened to bring Roosmalen undone, he went into the kitchen to get some drinks. He returned to the family room and as he came through the door leading from the kitchen to the family room he was hit by a bullet in the left hand and the right leg. He did not see who fired the shot. The appellant had the loaded Winchester rifle in his possession throughout or virtually throughout the relevant part of the rest of the evening. He said that Roosmalen was standing near a table in the family room and that Williams was in another part of the family room. 23. At one point, Williams called out 'look out John'. The appellant fearing that the person who had shot him was behind him looked around and thinking that he may have been outside the door, fired through the open door of the family room into a verandah area outside. He fired four shots and three of them hit Gilchrist who was in that verandah area. 24. As I have said, Gilchrist was shot twice in the back and once in the thigh. 25. At some point subsequent to that, it appears that Williams dragged Gilchrist back into the family room and sat him on a stool. The appellant ordered Van Roosmalen to lie on the floor. Van Roosmalen was still standing and did not respond to that order. The appellant fired a warning shot wide of Van Roosmalen. Van Roosmalen still did not lie on the floor. The appellant then shot Van Roosmalen once in the right arm and once in the left shoulder. Van Roosmalen then got on the floor. Williams at some stage made a movement towards his shotgun and towards the appellant saying `my gun, my gun'. The appellant ordered him back. He ordered Williams on to the floor and when Williams was almost on the floor he shot him in the leg. 26. The appellant's explanation of the shooting was that he felt that he was in danger from the three men. He said that he did not know who had fired the shot which hit him. He said that neither Van Roosmalen nor Williams had warned him that he was about to be shot and neither had come to his assistance afterwards. He deduced that he was in danger from them and that it was necessary for him to disable them so that he could get to the phone and seek assistance. 27. It may well be that the jury took the view that the appellant genuinely believed that he was in danger from the three men. Indeed, it is difficult to explain the verdict of not guilty on the second and third counts, particularly on the third count relating to Williams, except on the footing that the appellant had such a belief. The question therefore that remained for the jury was whether the appellant's belief was based upon reasonable grounds. 28. I should say at this point that the present section 15 of the Criminal law Consolidation Act was not in force on the date of the incident and that the law as laid down by the High Court in Zecevic v The Director of Public Prosecutions (Victoria) supra is the law applicable to the case. 29. Mr Barrett has made a strong argument for the proposition that there is no logical basis for distinguishing between the counts relating to Williams and Van Roosmalen in this regard or, at least no basis for distinguishing between those two cases in a way which would make the verdict of guilty, in the Van Roosmalen case, more reasonable than a verdict of guilty in the Williams incident, or put another way that would make it more reasonable to bring in a verdict of not guilty in the Williams case than in the Van Roosmalen case. 30. There were some points of distinction between the two cases. In the case of Williams, he had made a move towards a gun and had used the expression `my gun, my gun' and it is possible that the jury considered that that provided some basis for the appellant reaching the conclusion that Williams presented a threat to him. It is not difficult to reconcile the verdict in the Gilchrist count with the verdict in the Van Roosmalen count because the jury have been prepared to give the appellant the benefit of the doubt in relation to a belief that he was in some danger from somebody outside the door and that he fired in reasonable response to that apprehension of danger. But, even if there is no clear logical basis for distinguishing the Williams episode from the Van Roosmalen episode, with respect to the reasonableness of the appellant's actions, it by no means follows that the verdict in the Van Roosmalen case is unsafe. 31. The jurors were told, as all juries are, that they must give the benefit of any reasonable doubt to the accused. It may be that they felt that there was just enough in the incident relating to Williams moving towards his gun to enable them to say that the appellant's conduct with respect to Williams was reasonable. With respect to Van Roosmalen there was no similar incident. Van Roosmalen was unarmed throughout that night. He didn't have a gun in his possession at any time, nor did he give any indication that he wished to gain possession of a gun, or had any intention of using a gun. He did not at any stage make any threat to the appellant either by word or by gesture. When he was shot he was simply an unarmed man standing some little distance from the appellant and making no threatening movement towards him. 32. The appellant gave evidence that Van Roosmalen on a previous occasion had made a remark to him that it would be easy to bury somebody on the property and nobody would ever know about it, but the jury may well have thought that that provided no reasonable basis for a belief that Van Roosmalen was a threat to him. 33. There was no indication in the appellant's own evidence that Van Roosmalen was in any way implicated in the shooting of the appellant. Certainly the appellant was shot by somebody and that somebody was almost certainly Gilchrist. 34. But the fact that one person behaves in an irrational way by using a firearm does not necessarily implicate his companions in that action. There was nothing in what had occurred to suggest that Van Roosmalen had countenanced that shooting, or was in any way a party to it, or entertained a desire to harm the appellant in the way that he feared. 35. It is true that there had been an acrimonious conversation and the appellant had made a threat to expose what he considered to be Van Roosmalen's nefarious activities, but there was no indication from anything that happened that night that the appellant was under threat to life or limb from Van Roosmalen. The jury therefore were confronted with the situation that an unarmed man was shot twice for neglecting to comply with an order to lie on the floor in circumstances in which nothing that he had said or done suggested that he presented any threat to the appellant. The appellant may have thought that he would be in danger in attempting to put through a telephone call without first disabling Van Roosmalen, but it seems to me, on the evidence, it was clearly open to the jury to conclude that any such belief was quite unreasonable. 36. Whether the appellant was fortunate to escape conviction on the count relating to Williams is not a matter upon which this court needs to express any opinion. It is sufficient for this court to consider whether the jury's verdict is supported by the evidence relating to the Van Roosmalen incident. 37. It seems to me that it was quite open to the jury to take the view that any perception on the part of the appellant that it was necessary to shoot Van Roosmalen to avert some threat to the safety of the appellant was quite unreasonable in the circumstances of the case, as described by the appellant in his own evidence. 38. In my opinion therefore, none of the points raised on this appeal can be sustained. The conviction was a proper conviction upon the evidence given by the appellant himself and it was given following a summing up with which no fault can properly be found. 39. In my opinion therefore, the appeal should be dismissed.

JUDGE2 LEGOE J I agree and I would merely add that in my opinion the two verdicts which have been discussed by the learned Chief Justice are consistent for the reasons that the learned Chief Justice has enunciated.

JUDGE3 OLSSON J I also agree.