R v Katarzynski

[2002] NSWSC 613

CITATION:	R v Katarzynski [2002] NSWSC 613
FILE NUMBER(S):	SC 070013/02
HEARING DATE(S):	24/06/02 to present
JUDGMENT DATE:	9 July 2002
PARTIES :	Regina v Kirstain William Katarzynski
JUDGMENT OF:	Howie J at 1

COUNSEL :	Mr L. Babb - Crown Mr G. Cusack QC - Accused
SOLICITORS:	S.E. O'Connor - Crown Mark Rumore - Accused
CATCHWORDS:	CRIMINAL LAW AND PROCEDURE - Criminal liability and capacity - self-defence - relevance of the accused's self-induced intoxication.
LEGISLATION CITED:	Crimes Act 1900 - Part II Div 3 ss 418-423, 428 Home Invasion (Occupants Protection) Act 1998 - ss 6 - 9, 11 Crimes Amendment (Self Defence) Act 2001 - s 4 Tasmanian Code - s 46
CASES CITED:	R v Michael James Taylor [2002] NSWSC 610 Zecevic v Director of Public Prosecutions (Victoria) (1987) 162 CLR 645 Dziduch (1990) 47 A Crim R 378 R v Hawes (1994) 35 NSWLR 294 R v Conlon (1993) 69 A Crim R 92 McCullough v R [1982] Tas R 43 R v Munro [2001] NSWCCA 187
DECISION:

IN THE SUPREME COURT
OF NEW SOUTH WALES
CRIMINAL DIVISION

Howie J

TUESDAY 9 JULY 2002

070013/02 R v KIRSTAIN WILLIAM KATARZYNSKI

JUDGMENT

1 Howie J: The accused has been indicted for murder and is currently standing trial before a jury. The deceased was shot by the accused following a number of altercations between them in a hotel in Liverpool in the early hours of the morning of 6 April 2001. There is ample evidence before the jury that the accused was intoxicated as a result of his voluntary consumption of alcohol at the time of the shooting. There is no issue that the accused committed the act which caused the death of the deceased although, it will be a matter for the jury to determine whether the act causing death was voluntary and whether the accused at the time of firing the gun had the necessary mental state for the offence of murder.

2 The Crown has conceded that on the evidence led in the trial it is open for the jury to find that there was a real possibility that when the accused shot the deceased he was acting in his own self defence. The Crown has also conceded that the applicable law relevant to that issue is Part 11 Division 3 of the Crimes Act 1900 (NSW), see R v Michael James Taylor [2002] NSWSC 610.

3 The relevant provisions of the Crimes Act are, therefore, as follows:

418 Self-defence — when available
(1) A person is not criminally responsible for an offence if the person carries out the conduct constituting the offence in self-defence.
(2) A person carries out conduct in self-defence if and only if the person believes the conduct is necessary:
(a) to defend himself or herself or another person, or
(b) to prevent or terminate the unlawful deprivation of his or her liberty or the liberty of another person, or
(c) to protect property from unlawful taking, destruction, damage or interference, or
(d) to prevent criminal trespass to any land or premises or to remove a person committing any such criminal trespass,

and the conduct is a reasonable response in the circumstances as he or she perceives them.

419 Self-defence — onus of proof
In any criminal proceedings in which the application of this Division is raised, the prosecution has the onus of proving, beyond reasonable doubt, that the person did not carry out the conduct in self-defence.

420 Self-defence — not available if death inflicted to protect property or trespass to property
This Division does not apply if the person uses force that involves the intentional or reckless infliction of death only:
(a) to protect property, or
(b) to prevent criminal trespass or to remove a person committing criminal trespass.

421 Self-defence — excessive force that inflicts death
(1) This section applies if:
(a) the person uses force that involves the intentional or reckless infliction of death, and
(b) the conduct is not a reasonable response in the circumstances as he or she perceives them,
but the person believes the conduct is necessary:
(c) to defend himself or herself or another person, or
(d) to prevent or terminate the unlawful deprivation of his or her liberty or the liberty of another person.

(2) The person is not criminally responsible for murder but, on a trial for murder, the person is to be found guilty of manslaughter if the person is otherwise criminally responsible for manslaughter.

422 Self-defence — response to lawful conduct
This Division is not excluded merely because:
(a) the conduct to which the person responds is lawful, or
(b) the other person carrying out the conduct to which the person responds is not criminally responsible for it.

423 Offences to which Division applies
(1) This Division applies to offences committed before or after the commencement of this Division, except as provided by this section.
(2) This Division does not apply to an offence if proceedings for the offence (other than committal proceedings) were instituted before the commencement of this Division.

4 The evidence in this trial would appear to give rise to a consideration by the jury of whether the accused was acting in self-defence under s 418(2); that is whether there is a reasonable possibility that he believed his conduct in firing the hand gun three times toward the deceased was necessary to defend himself and, whether such conduct was “a reasonable response in the circumstances as he [ ] perceived them”. Depending upon what decision the jury comes to on that issue, it may be open for it to find the accused guilty of manslaughter under the excessive force provision in s 421.

5 At the close of the Crown case I raised with counsel the interpretation of s 418(2) and in particular whether the accused’s intoxication was a relevant matter to a determination of the reasonableness of his response to what he perceived to be the threat to him presented by the deceased at the time that he fired the hand gun, a bullet from which passed through the deceased’s heart. To understand the point it is necessary to refer briefly to the most recent history of the law of self-defence in this State.

6 At common law, at least since Zecevic v Director of Public Prosecutions (Victoria) (1987) 162 CLR 645, the question to be asked by a jury when considering the issue of self-defence on a trial of murder was whether there was a real possibility that the accused believed upon reasonable grounds that it was necessary in self-defence to do what he did when his act caused the death of the deceased. If the Crown did not prove beyond reasonable doubt either that the accused did not hold such a belief or that he had no reasonable grounds for such a belief, he was to be acquitted: Dziduch (1990) 47 A Crim R 378 at 379-380. It was the accused’s belief, based upon the circumstances as the accused perceived them to be, which has to be reasonable and not the belief of the reasonable man: R v Hawes (1994) 35 NSWLR 294 at 306.

7 In Conlon (1993) 69 A Crim R 92 Hunt CJ at CL, as a trial judge sitting without a jury, had to consider the relevance of the accused’s intoxication by alcohol and cannabis on the issue of self-defence. His Honour determined that intoxication was relevant both to a consideration of whether the accused had reasonable grounds for his belief that it was necessary to act to defend himself and the reasonableness of his response to his perceived need to defend himself.

8 In the course of his judgment his Honour stated (at 98-99):

“The Crown, however, argued that the decision as to whether there were reasonable grounds for any belief on the part of the accused that it was necessary in self-defence to do what he did was a completely objective one. But it is clear from the formulation of the issue in Zecevic v DPP that it is the belief of the accused, and not that of the hypothetical reasonable person in the position of the accused, which has to be reasonable. And the reference in the joint judgment of Wilson, Dawson and Toohey JJ (at 658; 171) to "the requirement of reasonableness" as having "remained part of the law of self-defence" since it was an ingredient of the law of excusable homicide suggests to me that they did not intend to depart from the nature of the analogous decisions posed in relation to self-defence in Viro , as to whether the accused reasonably believed that he was threatened with an attack and as to whether he believed that his response to that threat was reasonably proportionate to the danger which he believed that he faced. The first of those analogous decisions was a mixture of the objective and the subjective; it was not completely objective, in the sense of what a reasonable person would have believed, but rather it was what the accused himself might reasonably have believed in all the circumstances in which he found himself: see proposition 1(b) as expressed by Mason J in Viro (at 146) ; see also Helmhout (1979) 1 A Crim R 464 at 467-468, a decision of the Full Court of the Federal Court. The second decision was completely subjective, in the sense that it required no more than a subjective belief that reasonable proportionality existed where in fact it did not: Viro (at 143), per Mason J; Zecevic v DPP (at 672; 181-182), per Deane J.

It seems to me that it would require a very clear statement by the High Court that it had intended to substitute a completely objective assessment for that of a mixed objective and subjective nature as had been posed in Viro . No such statement has been made, and the issue does not appear to have been discussed in any case since Zecevic v DPP . The submission by the Crown that the decision is a completely objective one is rejected.

That, however, does not resolve the problem which arises in the present case. Although the mixed objective and subjective nature of the assessment as to whether the accused's belief was based on reasonable grounds means that account must be taken of those personal characteristics of this particular accused which might affect his appreciation of the gravity of the threat which he faced and as to the reasonableness of his response to that danger, the Crown has argued (as an alternative to the argument which I have rejected) that voluntarily induced intoxication through the consumption of alcohol or drugs should not be taken into account as such a personal characteristic because (it is said) to do so would entitle those whose perceptions are mistaken by reason only of such intoxication to kill with impunity.

No judgment of an Australian court (reported or unreported) given since Zecevic v DPP has been found which insists that such a personal characteristic should be excluded from this assessment. The issue appears, surprisingly, not to have been discussed. It has been discussed in England, although the law relating to self-defence there has developed somewhat differently to the way in which it has now been stated by the High Court in Zecevic v DPP .

9 His Honour then proceeded to consider a number of English cases and the decision in McCullough v R [1982] Tas R 43 in which the view had been taken that the intoxication of the accused was irrelevant to a consideration of the reasonableness of his response to the threat he perceived. Hunt CJ at CL refused to follow those cases in light of statements made by members of the High Court in Zecevic v DPP. His Honour concluded:

“In my opinion, therefore, I should take into account the voluntarily induced intoxication of the accused in the present case - in so far as it may have affected either his appreciation of the gravity of the threat which he faced or the reasonableness of his response to that danger - in determining whether the Crown has established that there were no reasonable grounds for a belief by him that it was necessary in self-defence to fire the bullet into the head of Hulands which in fact caused his death, with the intention of at least inflicting grievous bodily harm upon him.”

10 The common law, therefore, provided that self-defence existed where the accused (a) believed that he was called upon to defend himself, (b) that his conduct was necessary in order to defend himself and (c) that he had reasonable grounds for each of those beliefs. The intoxication of the accused was relevant to a consideration of each of those matters.

11 On 1 December 1998 the Home Invasion (Occupants Protection) Act 1998 came into operation. The relevant provisions of that Act were as follows:

6.Self-defence
An occupant of a dwelling house may act in self-defence against an intruder if the occupant believes on reasonable grounds that it is necessary to do so.

7.Defence of other persons
An occupant of a dwelling house may act in defence of any other person in the dwelling house against an intruder if the occupant believes on reasonable grounds that it is necessary to do so.

8.Defence of property
An occupant of a dwelling house may act in defence of any property of, or within, the dwelling house against an intruder if the occupant believes on reasonable grounds that it is necessary to do so.

9.Reasonable grounds
Whether grounds are reasonable grounds for the purposes of section 6, 7 or 8 is to be determined having regard to the belief of the occupant, based on the circumstances as the occupant perceived them to be.

11.Immunity from criminal liability
(1) An occupant of a dwelling house who acts in accordance with section 6, 7 or 8 is immune from criminal liability resulting from his or her acts.

12 The operation of those provisions was considered in R v Munro [2001] NSWCCA 187. That was an appeal against a verdict of guilty in a trial by judge alone conducted by Badgery-Parker AJ. In dismissing the appeal Stein JA, with whom the other members of the Court agreed, stated:

“43 At the trial counsel for the accused argued that while s 6 of the Act did not depart from the common law with respect to self-defence, other provisions did so depart. It was submitted that s 9 extended the rights of an occupier at common law.

44 Section 9 provides:
Whether grounds are reasonable grounds for the purposes of section 6, 7, or 8 is to be determined having regard to the belief of the occupant, based on the circumstances as the occupant perceived them to be.

45 Counsel had submitted that the words ‘having regard to’ required the belief of the occupant to be taken into account in determining whether the grounds for that belief were reasonable. With respect to this Badgery-Parker AJ said:
‘The interpretation of s 9 for which Mr Toomey contends would require that the phrase "the belief of the occupant" in s 9 was intended to refer to a belief on the part of the occupant, not that it was necessary for him to act as he did in self-defence (the belief to which s 6 refers) but rather a belief on his part that he had reasonable grounds for believing that it was necessary for him to act as he did in self-defence.’

46 In rejecting the contention his Honour said:
‘The significance of the words in s 9, "having regard to the belief of the occupant" is to emphasise that the determination which has to be made "whether the grounds are reasonable grounds for the purposes of s 6" is a determination about the grounds upon which the occupant himself (the actual person, not some hypothetical person in the same position as the occupant) held the relevant belief.’


47 In my opinion, this conclusion is correct. As his Honour said, the construction contended for would make it almost impossible to apply s 10(b) of the Act. Nor was there anything in the language of s 9 to suggest that the word ‘belief’ did not have the same connotation as ‘believe’ in s 6, referring to the belief (for the purposes of s 6) which the occupant must hold so that he may lawfully act in self defence against an intruder.

48 As his Honour noted, the conclusion that he had reached was entirely consistent with the second reading speech which repeatedly emphasises that the purpose of the Act was to declare and codify the common law.

49 I agree with his Honour’s conclusion on this issue and the reasoning which underlay it.”

13 On 22 February 2002 the Home Invasion (Occupants Protection) Act 1998 was repealed by s 4 of the Crimes Amendment (Self Defence) Act 2001. That later Act amended the Crimes Act by inserting into it the current provisions of Part 11 Division 3. In her Second Reading Speech introducing the Crimes Amendment (Self Defence) Act 2001 the relevant Minister indicated that the provisions were based, with two exceptions, upon the recommendations of the Model Criminal Code Officers Committee (MCCOC). The Minister said:

“I turn now to the model proposed by the Model Criminal Code Officers Committee. That model removes the objective element of the test as to what the defendant perceived the danger to be. This represents the common law before the case of Zecevic v DPP (Vic) (1987) 162 CLR 645. It means that a person who really thought they were in danger, even if they were mistaken about that perception, may be able to rely on self-defence for their actions. The person's actions on the basis of their belief still has to be reasonable, but the belief itself is totally based on their circumstances as the person perceived them to be……………….
The Bill follows the general concept of self-defence laid down by the Model Criminal Code, so that a defendant who actually believed it was necessary to do what he or she did to repel an attack, even if they were wrong about that perception, may seek to rely on self-defence, so long as it was a reasonable response in the circumstances as perceived by the defendant. However the Bill contains two fundamental departures from the Model Criminal Code.”

14 Those two departures were the re-introduction of the concept of excessive self-defence in relation to murder and the extent of the right to defend property neither of which are relevant to the present issue. The Minister, having referred to those two matters in detail, went on:

“The Bill repeals the Home Invasion (Occupants Protection) Act 1998 and the Workplace (Occupants Protection) Act 2001 so that the law can apply uniformly across all situations where self-defence might arise. It will effectively abolish the current common law regarding self-defence. In every case it will be the general concept of self-defence, as codified in the Bill, which will apply. However, the common law is not made irrelevant—the provisions in the Bill are firmly grounded in common law principles.”

15 In December 1992 MCCOC issued its Final Report on the subject of Chapter 2 of the proposed Model Criminal Code. That chapter deals with the general principles of criminal responsibility. MCCOC proposed a provision dealing with self-defence which is in almost identical terms with that contained in s 418 of the Crimes Act. It is as follows:

“313 Self-defence
A person is not criminally responsible for an offence if the conduct constituting the offence was carried out by him or her in self-defence.

313.1 Conduct is carried out by a person in self-defence if the person believed that the conduct was necessary:
- - to defend himself or herself or another person; or
- to prevent or terminate the unlawful imprisonment of himself or another person, or
- to protect property from unlawful appropriation, destruction, damage or interference, or
- to prevent criminal trespass to any land or premises or to remove a person committing any such criminal trespass,
his or her conduct was a reasonable response in the circumstances as perceived by him or her.

16 In explanation of this provision the report stated (at 69):

“The test as to necessity is subjective but the test as to proportion is objective. It requires the response to of the accused to be objectively proportionate to the situation which the accused subjectively believed she or he faced (the words “as perceived by him or her” were added to make this clear). The approach is consistent with s 46 of the Tasmanian Code.”

17 It should be noted that the decision in McCullough, which Hunt CJ at CL distinguished in Conlon, concerned the interpretation of s 46 of the Tasmanian Code. In McCullough the Court of Criminal Appeal said:

“In our opinion the learned trial judge in these passages properly directed the jury that the test of reasonableness under s. 46(2) is a subjective test, in the limited sense that the question to be considered by the jury was whether it was reasonable for the applicant in all his then circumstances to hold the relevant apprehension and to have the relevant belief (cf. Muratovic [1967] Qd R 15 at 201). It is true that the learned trial judge did not tell the jury that one such circumstance to be taken into account was the applicant's state of partial intoxication (if they thought he was in that state), but since that was one of his then circumstances the jury would have taken it into account, and it would have been proper to do so, in relation to the issue whether the applicant in fact held the apprehension and the belief to which the subsection refers. But it would have been a wrong direction to tell the jury that they could or should take such state of intoxication into account in deciding whether or not the applicant's apprehension and belief, if he held them, were reasonable or held on reasonable grounds. The criterion of reasonableness is in its nature an objective one, and in our view it would be incongruous and wrong to contemplate the proposition that a person's exercise of judgment might be unreasonable if he was sober, but reasonable because he was drunk. Any more positive or detailed direction than the learned trial judge gave was unnecessary, but if a more specific direction were to be given it should be in the terms that a person's state of intoxication may be taken into account in considering whether or not he held the apprehension and belief to which subs. 46 (2) refers, but not in respect of whether such apprehension and belief were reasonable or held on reasonable grounds.”

18 In the present case the Crown has contended that, even if Conlon represented the common law position on the assessment of reasonable grounds for the accused’s belief as to what conduct was necessary in self-defence, it does not represent the position with respect to a “reasonable response” under s 418, which provision, it was submitted does not, and was not intended to, codify the common law. The Crown’s submission was that, although intoxication is relevant to an assessment of the belief held by the accused as to what conduct was necessary in his self-defence and as to the circumstances perceived by the accused, it is not relevant to an assessment of the reasonableness of the accused’s response to those circumstances.

19 Mr Cusack QC for the accused has argued that the common law as stated by Hunt CJ at CL should be maintained in the interpretation of s 418 as, in his submission, the terms of the section do not manifest a clear intention on the part of the Parliament to displace the common law requirement that intoxication be considered both when determining the belief of the accused and the reasonableness of his conduct. He points out that had Parliament wished to bring about the result, for which the Crown contends, it could have easily done so by using the term “a reasonable person” which would have picked up s 428F of the Crimes Act. That section states:

“If, for the purposes of determining whether a person is guilty of an offence, it is necessary to compare the state of mind of the person with that of a reasonable person, the comparison is to be made between the conduct or state of mind of the person and that of a reasonable person who is not intoxicated.”

20 However, it should be noted that s 418(2) is concerned not with the state of mind of a reasonable person but with the reasonableness of the conduct of the accused having regard to his or her state of mind.

21 In my view the Crown’s submission should be accepted. I acknowledge that to do so is a departure from the common law position as pronounced in Conlon to the possible detriment of an accused person but such a result flows from a consideration both of the words of the section and of the history of the legislation that I have set out briefly above.

22 The question now posed for the jury, where there is evidence raising self-defence, is not the same as it was at common law after Zecevic v DPP and as it was considered in Conlon. The questions to be asked by the jury under s 418 are: (i) is there is a reasonable possibility that the accused believed that his or her conduct was necessary in order to defend himself or herself; and, (2) if there is, is there also a reasonable possibility that what the accused did was a reasonable response to the circumstances as he or she perceived them.

23 The first issue is determined from a completely subjective point of view considering all the personal characteristics of the accused at the time he or she carried out the conduct. The second issue is determined by an entirely objective assessment of the proportionality of the accused’s response to the situation the accused subjectively believed he or she faced. The Crown will negative self-defence if it proves beyond reasonable doubt either (i) that the accused did not genuinely believe that it was necessary to act as he or she did in his or her own defence or (ii) that what the accused did was not a reasonable response to the danger, as he or she perceived it to be.

24 The issue as to the reasonableness of the accused’s response is objective in so far as the jury is not concerned with what the accused believed was necessary to respond to the circumstances as he or she perceived them to be. The current provision is not concerned with whether the accused’s belief as to what was the necessary response was a reasonable one or whether he or she had reasonable grounds for that belief. This is where the current provisions are in contrast to the position at common law: the accused need not have reasonable grounds for his or her belief that it was necessary to act in the way he or she did in order to defend himself or herself. It is sufficient if the accused genuinely holds that belief.

25 It will be a matter for the jury to decide what matters it should take into account when determining whether the response of the accused was reasonable in the circumstances in which he or she found himself or herself. The jury is not assessing the response of the ordinary or reasonable person but the response of the accused. In making that assessment it is obvious than some of the personal attributes of the accused will be relevant just as will be some of the surrounding physical circumstances in which the accused acted. So matters such as the age of the accused, his or her gender, or the state of his or her health may be regarded by the jury. Whether or not some particular personal characteristic of the accused is to be considered will depend largely upon the particular facts of the case.

26 But in my opinion one matter that must be irrelevant to an assessment of the reasonableness of the accused’s response is his or her state of sobriety. As was pointed out in McCullough, it is logically incongruous “to contemplate the proposition that a person's exercise of judgment might be unreasonable if he was sober, but reasonable because he was drunk”. Apart from Conlon, I am not aware of any other decision that has held that intoxication is a matter relevant to an evaluation of the reasonableness of the conduct or belief of a person. It is not relevant at common law to an evaluation of the accused’s response to provocation or the belief of a reasonable person as to the dangerousness of the accused’s actions for the offence of manslaughter.

27 In Conlon Hunt CJ at CL expressed the view that he was not prepared to introduce the policy applied in the interpretation of s 46 of the Tasmanian Code in McCullough to the interpretation of the decision in Zecevic v DPP. I do not believe that I am similarly constrained. As I have indicated s 418 is not, and was not intended to be, a codification of the common law. Further, the general policy adopted by the legislature in respect of the relevance of intoxication to the criminal law is contained in Part 11A of the Crimes Act. The provisions of that Part have limited the use that a court can make of the fact that an accused is intoxicated when considering criminal responsibility. In my view, if the policy enunciated in Part 11A were not adopted in construing s 418, the result would be to create an illogical and unacceptable inconsistency in the criminal law of this State with regard to the relevance of intoxication to criminal responsibility.

28 For these reasons I directed the jury to the effect that they must take into account the accused’s intoxication when considering whether he might have believed that it was necessary to act as he did in defence of himself and when considering the circumstances as he perceived them, but not when assessing whether his response to those circumstances was reasonable.

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Last Modified: 07/10/2002