R v Martin - [2007] SASC 336

SUPREME COURT OF SOUTH AUSTRALIA
(Court of Criminal Appeal)
R v MARTIN
[2007] SASC 336
Judgment of The Court of Criminal Appeal
(The Honourable Justice Gray, The Honourable Justice Sulan and The Honourable Justice David)
18 September 2007
CRIMINAL LAW - GENERAL MATTERS - CRIMINAL LIABILITY AND CAPACITY - DEFENCE MATTERS - SELF-DEFENCE AND OTHER FORMS OF DEFENCE
CRIMINAL LAW - EVIDENCE - JUDICIAL DISCRETION TO ADMIT OR EXCLUDE EVIDENCE - EVIDENCE UNFAIR TO ADMIT OR IMPROPERLY OBTAINED - GENERALLY
CRIMINAL LAW - EVIDENCE - MATTERS RELATING TO PROOF - BURDEN OF PROOF - DIRECTION TO JURY
CRIMINAL LAW - JURISDICTION, PRACTICE AND PROCEDURE - JUDGMENT AND PUNISHMENT - SENTENCE
Appeal against conviction and sentence - appellant convicted by jury of two counts of endangering life - appellant sentenced to 5 years’ imprisonment with a non-parole period of 3 years - police entered the appellant's premises pursuant to a general search warrant - rapid force entry method used - appellant fired two warning shots - statutory defence of self-defence raised - evidence given that the appellant believed that forced entry was a home invasion - section 15B of the Criminal Law Consolidation Act 1935 (SA) provides that the requirement of reasonable proportionality does not imply that the force used by the defendant cannot exceed the force used against him or her - section 15C of the Criminal Law Consolidation Act provides that the requirement of reasonable proportionality does not apply where, inter alia, a defendant genuinely believes the victim to be committing a home invasion and the victim is not a police officer acting in the course of his or her duties - police search of the appellant's premises found traces of drug methylamphetamine - materials associated with the manufacture of methylamphetamine seized - during trial Crown led evidence of seized items as probative of a motive for the appellant to violently resist police - appellant applied for a voir dire to challenge lawfulness of execution of general search warrant - application dismissed - whether trial Judge erred in declining voir dire - whether trial Judge erred in ruling that the lawfulness of the police entry was a matter for the jury - whether trial Judge erred in ruling that the issue of whether the police officers were acting in the course of their duties was a matter for the jury - whether trial Judge erred in permitting the Crown to lead evidence of seized items for the purpose of establishing motive - whether the trial Judge erred in his directions in respect of the requirement of section 15B - whether the trial Judge erred in his directions concerning the burden of proof in relation to self-defence - whether the head sentence and non-parole period imposed were manifestly excessive - Held: appeal against conviction and sentence dismissed - it is within the discretion of the trial Judge whether or not to hold a voir dire hearing - no proper or adequate material placed before the court to justify a voir dire hearing - no miscarriage of justice occasioned by the refusal to conduct a voir dire hearing - the evidence of traces of methylamphetamine and items sometimes associated with its manufacture was admissible as evidence relevant to, and probative of the appellant's intention in discharging the gun and the appellant's belief as to the nature of any threat - the prejudicial effect of the evidence was low - the trial Judge's directions adequately warned the jury against an impermissible use of this evidence - the trial Judge's directions concerning section 15B were a correct statement of the law - the trial Judge's explanation to the jury of the burden of proof in terms of "reasonable possibility" was appropriate - the trial Judge appropriately instructed the jury as the application of the burden of proof - the sentence imposed was within the trial Judge's sentencing discretion.
Criminal Law Consolidation Act 1935 (SA) s 15, s 15A, s 15B, s 15C; Summary Offences Act 1953 (SA) s 67; Criminal Law (Sentencing) Act 1988 (SA) s 18A; Criminal Law Consolidation (Self-Defence) Amendment Act 1991 (SA); Criminal Law Consolidation (Self-Defence) Amendment Act 1997 (SA), referred to.
Palmer v R (1971) 55 Cr App R 223; R v Williams (1976) 14 SASR 1; R v Basha (1989) 39 A Crim R 337; Rusovan v The Queen; Russo v The Queen (1994) 62 SASR 86; Reg v Harris [1961] VR 236; R v Stehbens (1976) 14 SASR 240; The Queen v De Simoni (1981) 147 CLR 383, considered.

R v MARTIN
[2007] SASC 336
Court of Criminal Appeal: Gray, Sulan and David JJ
GRAY J.
Introduction

Eugene John Thomas Martin, the defendant and appellant, was charged with two counts of attempted murder and two alternative counts of endangering life. The offences were said to have occurred on 17 December 2004. At the commencement of his trial he pleaded guilty to the further charge of possession of a prescribed firearm.
The jury returned unanimous not guilty verdicts to the charges of attempted murder and a unanimous guilty verdict to one count of endangering life and a majority guilty verdict on the other count of endangering life.
The principal issue arising on this appeal is the reach of the statutory defence of self-defence. The resolution of the issue involves the interpretation of the statutory scheme and an examination of the extension of the defence in circumstances of a home invasion.
The charges arose out of an incident on 17 December 2004. Police officers including STAR Group officers entered the appellant’s home at Collinswood at about 7:00 am. The method of entry was described by police as “rapid forced entry” and was said to be authorised by a general search warrant pursuant to section 67 of the Summary Offences Act1953 (SA). Detective Dewar, the police officer exercising his general search warrant, asserted in his witness statements prior to trial that he suspected there was a clandestine drug laboratory at the appellant’s premises on that date.
The prosecution evidence at trial was to the effect that police officers acting under authority of the general search warrant were directed to enter the premises at Collinswood at about 7:00 am on 17 December 2004. Inside the appellant’s home that morning were the appellant, his partner Michaela Lewis and her child.
Several police officers attempted to force entry through the back door of the premises, but were unsuccessful. They went to the main door at the front of the property and attempted to gain entry. They used a battering ram device to smash down the front door. While Constables Wheeler and Willoughby were at the front door and in the process of forcing entry, the appellant fired two shots from inside the premises toward that doorway. One projectile passed through the solid timber door on an upward path passing above the heads of the two officers who were nearest to and battering the front door. A second projectile was fired into, and was left imbedded in, the upper part of the doorframe.
It was the prosecution case that the police had announced their presence when outside the home prior to attempting to gain entry by breaking down the doors. A number of police witnesses said that one or more had called out “police, police” before or during the period that the doorways were being forced.
The police officers gained entry and arrested the appellant. A search of the premises was undertaken. Traces of the drug methylamphetamine were found on items seized. The police seized other items said to be associated with the preparation of the drug methylamphetamine. A handgun was located under the mattress of a bed in the main bedroom. No clandestine drug laboratory was located.
The defence case was that the appellant and his partner Ms Lewis were awakened by loud banging noises. They had had recent trouble with Ms Lewis’ ex-boyfriend, a member of a motorcycle club, and his associates. The appellant thought that his home was being invaded by these people and he acted to defend himself, Ms Lewis, Ms Lewis’ daughter, and the home. This was said to raise the statutory defence of self-defence pursuant to section 15 of the Criminal Law Consolidation Act 1935 (SA) as qualified by section 15C of that Act. The firing of the two shots toward the door and doorframe was said to have been to warn off the intruders. The appellant and Ms Lewis gave evidence that the police did not call out and identify themselves in advance or, if they did, neither was aware that it was the police attempting to gain entry. The appellant gave evidence that he did not know that it was the police at his door. He claimed that if he had known that what was occurring was a police raid, he would not have fired any warning shots.
The Legislative Scheme
At common law it is recognised that conduct to defend oneself may give rise to a defence of self-defence. When it is necessary to defend oneself, the use of reasonable force is not unlawful. It is for the prosecution to prove that the accused’s conduct is unlawful. As a consequence, where on the evidence the issue of self-defence is fit to be left to the jury, the onus is on the prosecution to prove beyond reasonable doubt that an accused is not acting in self-defence.[1] At common law the test whether the force used in self-defence is reasonable is an objective test.
[1] Palmer v R (1971) 55 Cr App R 223.
In 1991, a statutory form of self-defence was enacted.[2] In 1997, the statutory defence was amended.[3] The statutory provisions in force, relevant to the present case, were in the following terms:
[2]    Criminal Law Consolidation (Self-Defence) Amendment Act 1991 (SA).
[3]    Criminal Law Consolidation (Self-Defence) Amendment Act 1997 (SA).
Division 2—Defence of life and property
15—Self defence
(1)     It is a defence to a charge of an offence if—
(a)the defendant genuinely believed the conduct to which the charge relates to be necessary and reasonable for a defensive purpose; and
(b)the conduct was, in the circumstances as the defendant genuinely believed them to be, reasonably proportionate to the threat that the defendant genuinely believed to exist. [see Note 1]
(2)     It is a partial defence to a charge of murder (reducing the offence to manslaughter) if—
(a)the defendant genuinely believed the conduct to which the charge relates to be necessary and reasonable for a defensive purpose; but
(b)the conduct was not, in the circumstances as the defendant genuinely believed them to be, reasonably proportionate to the threat that the defendant genuinely believed to exist. [see Note 2]
(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.
(4)     However, if a person—
(a)resists another who is purporting to exercise a power of arrest or some other power of law enforcement; or
(b)resists another who is acting in response to an unlawful act against person or property committed by the person or to which the person is a party,
the person will not be taken to be acting for a defensive purpose unless the person genuinely believes, on reasonable grounds, that the other person is acting unlawfully.
(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.
Notes—
1 See, however, section 15C. If the defendant establishes that he or she is entitled to the benefit of that section, this paragraph will be inapplicable.
2 See, however, section 15C. If the defendant establishes that he or she is entitled to the benefit of that section, the defendant will be entitled to a complete defence.
15A—Defence of property etc
(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—
(i)to protect property from unlawful appropriation, destruction, damage or interference; or
(ii)to prevent criminal trespass to land or premises, or to remove from land or premises a person who is committing a criminal trespass; or
(iii)to make or assist in the lawful arrest of an offender or alleged offender or a person who is unlawfully at large; and
(b)if the conduct resulted in death—the defendant did not intend to cause death nor did the defendant act recklessly realising that the conduct could result in death; and
(c)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. [see Note 1]
(2)     It is a partial defence to a charge of murder (reducing the offence to manslaughter) if—
(a)the defendant genuinely believed the conduct to which the charge relates to be necessary and reasonable—
(i)to protect property from unlawful appropriation, destruction, damage or interference; or
(ii)to prevent criminal trespass to land or premises, or to remove from land or premises a person who is committing a criminal trespass; or
(iii)to make or assist in the lawful arrest of an offender or alleged offender or a person who is unlawfully at large; and
(b)     the defendant did not intend to cause death; but
(c)the conduct was not, in the circumstances as the defendant genuinely believed them to be, reasonably proportionate to the threat that the defendant genuinely believed to exist. [see Note 2]
(3)     For the purposes of this section, a person commits a criminal trespass if the person trespasses on land or premises—
(a)with the intention of committing an offence against a person or property (or both); or
(b)in circumstances where the trespass itself constitutes an offence or is an element of the offence.
(4)     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.
Notes—
1 See, however, section 15C. If the defendant establishes that he or she is entitled to the benefit of that section, this paragraph will be inapplicable.
2 See, however, section 15C. If the defendant establishes that he or she is entitled to the benefit of that section, the defendant will be entitled to a complete defence.
15B—Reasonable proportionality
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.
15C—Requirement of reasonable proportionality not to apply in case of an innocent defence against home invasion
(1)     This section applies where—
(a)a relevant defence would have been available to the defendant if the defendant's conduct had been (objectively) reasonably proportionate to the threat that the defendant genuinely believed to exist (the perceived threat); and
(b)the victim was not a police officer acting in the course of his or her duties.
(2)     In a case to which this section applies, the defendant is entitled to the benefit of the relevant defence even though the defendant's conduct was not (objectively) reasonably proportionate to the perceived threat if the defendant establishes, on the balance of probabilities, that—
(a)the defendant genuinely believed the victim to be committing, or to have just committed, home invasion; and
(b)the defendant was not (at or before the time of the alleged offence) engaged in any criminal misconduct that might have given rise to the threat or perceived threat; and
(c)the defendant's mental faculties were not, at the time of the alleged offence, substantially affected by the voluntary and non-therapeutic consumption of a drug.
(3)     In this section—
criminal misconduct means conduct constituting an offence for which a penalty of imprisonment is prescribed;
drug means alcohol or any other substance that is capable (either alone or in combination with other substances) of influencing mental functioning;
home invasion means a serious criminal trespass committed in a place of residence;
non-therapeutic—consumption of a drug is to be considered non-therapeutic unless—
(a)the drug is prescribed by, and consumed in accordance with the directions of, a medical practitioner; or
(b)the drug is of a kind available, without prescription, from registered pharmacists, and is consumed for a purpose recommended by the manufacturer and in accordance with the manufacturer's instructions;
relevant defence means a defence under section 15(1) or section 15A(1).
The primary question arising in the present case concerns the interpretation and application of section 15C(1)(b). The defence contended that Constables Wheeler and Willoughby were not acting in the course of their duties as police officers at the time they attempted entry to the Collinswood premises. As a result a home invasion was taking place. Accordingly it was argued that section 15C had application and that the jury should have been directed to consider the defence having regard to the terms of the sub-section.
Counsel for the Crown submitted that on their proper construction, sub-sections (1) and (2) of section 15C provide that where the evidence does not negative beyond reasonable doubt that the defendant genuinely believed that his conduct was necessary and reasonable for a defensive purpose and prove beyond reasonable doubt that the victim was a police officer acting in the course of his or her duties, then a defendant is entitled to the benefit of the defence even though his conduct was not, objectively, reasonably proportionate to the perceived threat. The defendant must establish, on the balance of probabilities, that the defendant genuinely believed the victim to be committing, or to have just committed, home invasion. The defendant must also establish that the defendant was not, at or before the time of the alleged offence, engaged in any criminal misconduct that might have given rise to the threat or perceived threat. Finally, the defendant must establish that the defendant’s mental faculties were not, at the time of the alleged offence, substantially affected by the voluntary and non-therapeutic consumption of a drug.
Counsel for the Crown then submitted the following chart to diagrammatically depict the operation of sections 15 and 15C:
Has the prosecution proven beyond a reasonable doubt that the Neither s15 nor
defendant did not genuinely believe the conduct to which the Yes→ s15C defence
charge relates to be necessary and reasonable for a defensive                  available
purpose?
  No
  ↓
Has the prosecution proven beyond a reasonable doubt that the s15 Defence
conduct was not, in the circumstances as the defendant genuinely    No→    available
believed them to be, reasonably proportionate to the threat that
the defendant genuinely believed to exist?
Yes
  ↓
Has the prosecution proven beyond a reasonable doubt that the s15C not
victim was a police officer acting in the course of his or her duties?    Yes→ available
No
  ↓
Has the defendant proven, on the balance of probabilities, that the s15C not
defendant genuinely believed the victim to be committing, or to         No→    available
have just committed, home invasion?
Yes
  ↓
Has the defendant proven, on the balance of probabilities, that the s15C not
defendant was not (at or before the time of the alleged offence)       No→    available
engaged in any criminal misconduct that might have given rise to
the threat or perceived threat?
Yes
  ↓
Has the defendant proven, on the balance of probabilities, that the s15C not
defendant’s mental faculties were not, at the time of the alleged       No→    available
offence, substantially affected by the voluntary and non-therapeutic
consumption of a drug.
Yes
  ↓
  s15C defence available
These submissions should be accepted. They helpfully analyse and represent the effect of the relevant sections.
The Trial

At the commencement of the trial the appellant applied for a voir dire hearing to challenge the lawfulness of the general warrant said to justify the police entry. The appellant sought the exclusion of evidence on the basis that the police had unlawfully entered the premises. The appellant further contended that the challenge to the validity of the search warrant directly related to the availability of the defence in section 15C of the Criminal Law Consolidation Act concerning home invasion.
It was contended that if the police were not acting lawfully in their entry to the appellant’s home, then the prosecution would not have established that “the victim was a police officer acting in the course of his or her duties” and section 15C(2) would apply. It was part of the appellant’s submission to the trial Judge that he should conduct a voir dire hearing to determine whether section 15C applied.
The trial Judge refused the application for a voir dire hearing. The Judge ruled that the issue of whether the police were acting unlawfully in respect of the purported exercise of the general search warrant was an issue to be determined in the trial before the jury. The Judge provided the following ex tempore remarks.
In this matter an application has been made for a voir dire hearing. In the first place the application was based on a rule 9 notice which claimed that it was appropriate to investigate the issue whether all of the evidence in the case, and in particular the evidence in relation to the incident upon which these charges are founded, should be excluded on the basis that the police officers acted unlawfully in entering upon the premises in the manner which is disclosed in the depositions.
It seems to me that the only way in which evidence could be excluded on this basis would be in the exercise of the Bunning v Cross discretion; at least that is the only way in which it could be argued. I reject that argument on the basis that the Bunning v Cross discretion addresses a situation where it is alleged that there is illegally obtained evidence. In my view, the res itself is not evidence which is illegally obtained in these circumstances. So the original basis for holding a voir dire hearing falls to the ground.
The other suggestion which has been made to me is that, in view of the self-defence provisions in the Criminal Law Consolidation Act, I should direct my attention to answering issues such as whether the police officers were acting in the course of their duty and whether they were acting reasonably. Again, it is my view that a voir dire hearing is inappropriate as a vehicle for answering these questions.
As at present advised, it is my view that these issues give rise to mixed questions of law and fact and that, although it would be necessary for me to instruct the jury as to the law, the ultimate question whether these were actions in the course of the police officer’s duty and whether they were reasonable actions, is something for the jury to determine.
In all the circumstances, I think it is inappropriate to hold a voir dire hearing. That is not to say that some of the issues which have been discussed, such as that raised by s 15C of the Criminal Law Consolidation Act, are not relevant; they may well be and that must be left to the evidence to be given at the trial before the jury.
The appellant did not thereafter pursue in the trial and in the presence of the jury the issue of the validity of the execution of the search warrant. There was no challenge in the trial to the lawfulness of the police raid.
The Appeal
On the hearing of this appeal, the appellant advanced four grounds in respect of which he had obtained permission to appeal against conviction. However, permission to appeal against conviction was refused on three further grounds. The appellant has now sought permission in respect of each of the further grounds from this Court. The appellant was also refused permission to appeal against sentence. In this respect the appellant sought leave to appeal from this Court. In accordance with the practice of this Court, counsel presented full argument on the three proposed grounds so that if the Court granted permission to appeal it could dispose of those three grounds at the conclusion of this hearing. The same approach was followed with respect to the leave to appeal against sentence.
A Voir Dire Hearing
The first three grounds of appeal related to the proposed attack on the lawfulness of entry and raised an issue of procedural fairness.
On the application for a voir dire hearing, it was submitted to the trial Judge that there was a question whether Constables Wheeler and Willoughby were acting in the course of their duties. The question sought to be explored by the appellant was whether the general search warrant pursuant to which the officers acted was invalid and hence their conduct unlawful. It was argued that a voir dire hearing would allow the appellant to explore the lawfulness of the officers’ conduct in their entry into his home.
It is within the discretion of a trial Judge whether or not to hold a voir dire hearing. A voir dire should not be held if there is no proper or adequate material justifying that course. In Williams,[4] Wells J observed:
In these days it is, of course, accepted that, generally speaking, juries can be relied upon to exclude from their deliberations items of evidence that have wrongly, though inadvertently, been placed before them and that they have been directed to put from their minds, or to make a proper use of an item of evidence that is susceptible also of an improper use; but where evidence, if admitted, would have a powerful, or could have a close to decisive, effect upon the outcome of the trial, the voir dire procedure has been found to be conducive to a smooth hearing, and to avoid the risk of a miscarriage of justice caused by the jury's inability to put an offending item of evidence out of their minds.
But it should not be, as it sometimes is, assumed that the trial judge ought to have resort to such a procedure without strong reasons. The practice of directing a voir dire in appropriate cases must not lead to the supposition that counsel have an unrestricted right to a fishing expedition. Ordinarily, a trial judge will not allow a voir dire hearing simply at the request of counsel. It is within his discretion whether or not to do so, and for the exercise of the discretion there must be proper and adequate material before him. That material may be found in an explicit assurance by counsel for the defence that he intends to adduce certain evidence, or in some passage or passages in the depositions.
The presence or absence of such material is closely linked with the question that arises, once the trial judge has ordered a voir dire hearing, as to who should begin. For the resolution of that question there is, I apprehend, no inflexible rule. What is done must depend on the circumstances. In my opinion, though without purporting to be exhaustive, if nothing appears in the depositions that reasonably suggests—and a scintilla would not suffice—that an inquiry is called for into the voluntariness of the alleged confession or admission, or into the question whether the confession or admission should be excluded as a matter of discretion, a trial judge cannot be expected to direct a voir dire hearing unless defence counsel gives him his formal assurance that testimony relative to one or other of those inquiries would be tendered by or on behalf of the accused.
If no such material is to be gathered from the depositions, but the trial judge decides to act upon the assurance of counsel, it would only be in the exceptional case that the Crown, and not the accused, would be called on to begin. But if the trial judge is referred to material in the depositions that suggests the need for one or other of the inquiries, or both, the course that naturally suggests itself is that the Crown should call its evidence first.
In the present case there was no material in the depositions or otherwise to suggest any illegality. Counsel did not foreshadow or give any assurances as to the existence of evidence that would show illegality.
[4] R v Williams (1976) 14 SASR 1 at 3.
Even if it was to be assumed that the police suspicion was honestly but unreasonably held, the trial Judge’s discretion could not properly be exercised to exclude the evidence of methylamphetamine traces in the appellant’s home. The public policy in protecting citizens, including police officers, from conduct likely to endanger life, far outweighs the public interest in excluding evidence procured on the basis of a faulty, but honest, assessment by a police officer of the grounds for suspicion.
A Basha Inquiry
Counsel for the appellant submitted that the trial Judge, having determined that it was not appropriate to conduct a voir dire hearing, should have proceeded to a hearing in the nature of a Basha inquiry.[5] Such an inquiry, it was said, would have allowed the officer holding the general search warrant to be cross-examined in the absence of the jury – on a voir dire during the course of the trial. This it was said would have provided a disclosure of facts relevant to the question of whether the police were acting lawfully in the exercise of their duties.
[5] R v Basha (1989) 39 A Crim R 337.
An immediate difficulty confronting acceptance of this submission is the absence of any application to the trial Judge for a Basha inquiry. There was no miscarriage of justice in the failure of the trial Judge to hold a Basha inquiry in the absence of a request from the defence that they be given that opportunity. No basis for a finding that the search was illegal was put before the trial Judge. None has been suggested on the hearing of this appeal. It would be an abuse of process to allow cross-examination of witnesses to be called in a trial in advance of the hearing purely for the purposes of a fishing expedition.
It should also be recorded that the prosecution provided the appellant’s solicitors, prior to trial, with a declaration from the detective who acted on the general search warrant, which addressed the basis of his decision to act on it. It is relevant in this circumstance that no further issue was taken during the trial to further argue or challenge the detective’s beliefs and the basis for those beliefs. It was open to the defence to seek a further hearing in the absence of the jury during the course of the trial. No application was advanced.
An Issue for the Jury
Counsel for the appellant submitted that the question of whether the police were acting in the course of their duty was not an issue that should properly be debated before the jury. It was said that an inquiry into the validity of the general search warrant and the lawfulness of the police officers’ conduct would necessarily lead to an investigation about the basis for the suspicion held by the holder of the warrant. It was said that an examination of those matters was likely to put into evidence matters of hearsay, propensity reasoning, bad character or illegal associations. It was said that it would not be appropriate or fair to require the appellant to ventilate these questions in the presence of the jury as it would expose the appellant to significant prejudice and undermine his right to a fair trial.
In this case, the question of whether the police were acting in the course of their duty depended upon whether the search was authorised by the general search warrant. The search would be authorised only if the officer holding the warrant held a relevant suspicion.
The question of whether a police officer held the suspicion requisite to authorise the search of the appellant’s premises is a question of fact. Where there is a dispute as to a question of fact which bears not on the admissibility of evidence but on the conclusion as to the guilt of the accused, it is a question for the jury to decide.
The defendant at trial before the jury did not challenge the lawfulness of the search. Accordingly, the issue was not in fact left to the jury. There is no evidential basis on which to apprehend that the search was unlawful. There has been no miscarriage of justice occasioned by the refusal to conduct a voir dire hearing.
The Relevance of Evidence as to Motive
A further ground of appeal challenged the trial Judge’s ruling that evidence of traces of the drug methylamphetamine, and items sometimes associated with the production or manufacture of that drug, found in the appellant’s home, were relevant and admissible items of evidence.
On the day following the trial Judge’s ruling on the voir dire application, the appellant learned that the prosecution intended to lead evidence in the trial that certain items seized from his house had been forensically tested, revealing the presence of traces of methylamphetamine. Items that could be used in the manufacture of that drug were also seized.
The prosecution alleged that the evidence was relevant and admissible on the basis that it was probative of a motive for the appellant to violently resist the entry of the police. The appellant’s counsel argued for the exclusion of that physical evidence on the basis that its prejudicial value exceeded its probative value. The trial Judge ruled that the evidence was relevant and admissible:
In my view, the evidence is relevant and admissible. Insofar as there might be any suggestion of prejudicial effect, then I am of the view that it can be catered for by appropriate directions to the jury, so I will allow the evidence.
On the appeal, counsel for the appellant submitted that the admission of the evidence for the purposes of establishing motive was flawed. It was said that the evidence was not properly admissible on that basis. It was complained that to do so invited improper speculation about the appellant’s background and imputed bad character.
Coupled with this submission was a complaint that the directions given by the trial Judge during the summing up were inadequate and insufficient to deal with the unfair prejudice flowing to the appellant. In that respect the trial Judge directed:
Ladies and gentlemen, in the course of the trial I gave you some directions about the evidence of what was found and what was not found in the course of the search of the [appellant’s] house. You have been told that the police entered the premises because of a suspicion that there was a clandestine drug laboratory in place there. We know that the police did not find any such laboratory.
To begin with, the fact that there was a suspicion of this nature is totally irrelevant to the question of whether the [appellant] is guilty of any of these offences with which he has been charged. The only reason why it was mentioned in the case was as part of the history, to explain why the police were there in the first place. It would have been quite artificial to present the case to you without any reference to the reason for the police raid. That having been said, I direct you not to draw any inference adverse to the [appellant] by reason of that suspicion. To do so would be quite illogical but I direct you, as a matter of law, that you cannot draw any such adverse inference against the [appellant].
Secondly, some items were found which, according to the evidence, could be used to make methylamphetamine and, furthermore, traces of that drug were found. I am referring now to the evidence concerning the glassware, the magnesium sulphate, or Epsom salts found with the mortar and pestle, the magnesium sulphate in the coffee grinder, the pseudoephedrine on the swab used on the coffee grinder and the methylamphetamine from the pan of the scales. Again I direct you that the mere fact that such items were found cannot lead you to view the [appellant] in an adverse way. The only relevance of that evidence is in deciding whether you accept the prosecution argument that the presence of these items provided a motive for the conduct of the [appellant] as alleged by the prosecution.
The prosecution need not prove motive and it is not an element of the offences. However, according to the prosecution argument, the [appellant] well knew it was the police at the door and he did not want them searching the premises and finding these items, hence his actions to prevent them from entering the premises.
The [appellant] has given his explanation and has admitted taking methylamphetamine for a specific purpose. I repeat: no adverse inference as to the general behaviour of the [appellant] is to be drawn from this evidence. Its relevance is confined purely to the question of motive, and whether or not such a motive existed is a matter for you.
It was contended that one of the material prejudices that flowed from the reception of the evidence was that the appellant was compelled to explain his prior use of methylamphetamine during evidence. This involved a concession of illicit action in the past on his part and provided an unfair distraction from the main issues in the trial.
The appellant’s case at trial was that he believed that the people outside his home were in fact people sent by the ex-boyfriend of the appellant’s partner, who was a member of a motorcycle club, and that he discharged the gun in order to scare them away. The appellant gave evidence that he had nothing to hide from the police and that, had he realised that the people outside were police officers, he would have allowed them to enter. The presence of traces of drugs and drug-related items was circumstantial evidence suggesting that the appellant did in fact have a reason to prevent the police from entering his house. It was evidence tending to show that discharging the gun was not inconsistent with a belief that the people outside were police.
The evidence of traces of drugs and items sometimes associated with the manufacture of drugs was admissible as evidence relevant to and probative of the appellant’s intention in discharging the gun. The evidence was relevant to his actual belief as to the nature of any threat. The evidence could assist for the purpose of assessing the defences of self-defence and defence of another.
The prejudicial effect of the evidence was low. The appellant was already known to the jury to be a person who had used methylamphetamine, who possessed a gun, and who on his own account had dealings with members of at least one motorcycle club. The jury knew that the police had determined to conduct a raid on his premises. The finding of traces of drugs in the appellant’s premises would have little prejudicial effect insofar as the discovery confirmed his own evidence that he had used methylamphetamine. The evidence was unlikely to have any significant prejudicial effect insofar as it suggested involvement in dealing or manufacture of drugs.
As the trial Judge held, any prejudicial effect could be appropriately dealt with and was dealt with by directions. The trial Judge adequately warned the jury against an impermissible use of the evidence.
Self-Defence
Counsel for the appellant sought to complain that the directions given by the trial Judge did not adequately draw attention to the proportionality aspect of self-defence, and in particular, to the terms of section 15B of the Criminal Law Consolidation Act. It was further submitted that the substance of the Judge’s direction was given in what was described as an aide mémoire in writing and that fell short of an adequate legal direction.
In relation to self-defence, the trial Judge provided written directions to the jury, in addition to oral directions. The written directions included the following:
You are still required to have regard to the circumstances as the [appellant] genuinely believed them to be and also to the [appellant’s] genuine belief as to the existence of the relevant threat. However, having done that, you are required to consider whether, in those circumstances, his conduct was reasonably proportionate to the threat which he believed to exist. This does not imply that the force used by the accused cannot exceed the force used against him.
[emphasis added]

The jury understood that the written memorandum intended to provide direction on the law. This was confirmed by the jury’s description of the document as a direction when asking questions of the Judge. The written direction correctly stated the applicable law. The jury were able to, and were encouraged to refer to the written direction during their deliberations.
During his summing up the trial Judge provided the following example:
Let me illustrate that last point of being reasonably proportionate to the threat he believed existed. Suppose that one person slaps another lightly across the face offering no real threat and the other person, when slapped, pulls out a gun and shoots the other person dead. It might, by some stretch of the imagination, be possible to accept that the accused genuinely believed that what he did was necessary to protect himself, but the defence might well fall down at the reasonable proportion stage on the ground that he was going too far; it was not proportionate to pull out a gun and shoot the person dead given that the person had received a slight tap on the cheek and there was no real threat that was posed to him. This element of reasonableness comes into the second part of the test. It is confined to this question of proportion.
This example of disproportionate conduct would have conveyed to the jury that the defensive response need not be carefully measured to precisely meet the apprehended harm. The jury would have understood from the example that it was an extreme response that could be described as disproportionate.
Burden of Proof
The remaining complaint regarding conviction sought to be advanced related to the Judge’s directions concerning the burden of proof in relation to self-defence.
The appellant claimed that the following extract from the summing up had the effect of inverting or wrongly explaining the onus of proof:
So, ladies and gentlemen, you will consider the defence version of this matter. If you reject that version and find that the [appellant] realised the police were attempting to gain entry, the issue of self-defence is to be determined on that basis and the [appellant] has given you to understand, that there was no reason why he should have taken such action against the police if he had known who they were. On the other hand, if it is reasonably possible that the [appellant] thought it was the motorcycle club members and that it was his genuine belief that self-defence or defence of others was what led him to fire the shots, you will consider the application of the test for self defence on that basis.
Other relevant directions of the trial Judge were as follows:
An accused person comes into this court with a presumption of innocence in his or her favour. The law regards him or her as innocent unless guilt has been proved to you, to the satisfaction of the jury, beyond reasonable doubt. The burden of proving any charge lies wholly upon the Crown; the accused does not have to prove anything. If an accused person puts forward a defence, such as self-defence or defence of another, as happened in this case, he or she does not have to prove it; it is the Crown which must disprove it or say that it is irrelevant, otherwise the Crown will not have proved the charge.
Furthermore, nothing short of proof beyond reasonable doubt will do. It is not enough for the Crown to show a mere suspicion of guilt or to show that an accused person is probably guilty. The accused is not to be convicted of any offence unless his guilt has been proved beyond reasonable doubt. It is important for you to remember, ladies and gentlemen, that the requirement of proof beyond reasonable doubt extends to each and every element of the particular offence you have under consideration. You cannot convict an accused person so long as you have any reasonable doubt as to any essential element of the crime or crimes charged against him.
...
[Directions on attempted murder:] Finally, it must be established that the accused acted unlawfully. His actions would be lawful if he was acting in self-defence. The Crown must disprove, in this case, that the accused was acting in self-defence. There cannot be a finding of guilt if there is a reasonable possibility that the accused was acting in self-defence.
...
[Directions on endangering life:] Finally, the act must be without lawful excuse. Once again, the Crown must prove that the act was done in circumstances which did not constitute self-defence or defence of another.
...
In the first place it is for the Crown to disprove self-defence. I have said that to you on several occasions. You cannot infer from that that the onus of proving it is on the defence; it is not. In a case where the defence is raised, as it is raised in this case, it becomes a question for the Crown to negative, to disprove, and to do so beyond reasonable doubt.
[emphasis added]
Counsel for the appellant argued that posing the issue in terms of “reasonable possibility” was an analysis that this Court has disapproved. The appellant relied on the following observations of Olsson J in Rusovan[6] for this proposition:[7]
In this regard the last point which the learned trial judge made to the jury was expressed thus:
“You will have to say to yourself, having discussed it amongst yourself and got help from each other, shared your opinions — you might have the ultimate question in your minds ‘Is it reasonably possible that they were not the people who had the control at different times, and that Rusovan did not commit the offence of being in possession for sale, or taking part in the sale?’ They just were not there. Is that reasonably possible? Is it reasonably possible that Mr Russo was not there? He was not taking part in any sale. They have got the wrong man.
Having regard to the whole of the evidence, is that reasonably possible? Is that a reasonable possibility? If the answer to that is yes, ladies and gentlemen, you must acquit them. But if you are satisfied of all the elements that I have told you about having regard to all the evidence, you might even say ‘I do not like the look of the pair of them. I do not think much of them. I do not think much of their story’, but if you think it is reasonably possible that they are not the men, then it is an acquittal, otherwise your proper verdict is one of guilty as charged.”
In my opinion this mode of expression was unfortunate. In the first place it infused the test of reasonable possibility in lieu of the concept of proof beyond reasonable doubt; and thus tended to negate the earlier direction as to proof beyond reasonable doubt. Secondly, it addressed the situation of the two accused globally and failed to recognise that Rusovan did not give evidence and had not proffered any version of narrative events. It suggested that he, in effect, had to sink or swim with Russo. Any possibilities related to one were, in fact, likely to be different to those related to the other.
I cannot escape the conclusion that such a formulation had a strong tendency to deflect the jury from a consideration of the proper question: Had the Crown proved all elements of the relevant offences charged, beyond reasonable doubt, as against the two accused, considered separately?
[6] Rusovan v The Queen; Russo v The Queen (1994) 62 SASR 86.
[7] Rusovan v The Queen; Russo v The Queen (1994) 62 SASR 86 at 105-106.
The criticism in Rusovan was not directed to the use of the words “reasonable possibility” in the abstract. Rather, the suggested error in the summing up was that in the circumstances of that particular case it was wrong to tell the jury that the case turns on the issue as to whether a particular identification situation exists as a reasonable possibility, failing which guilt must be found. Rather the real issue was said to be whether on each count the circumstances were such as to be consistent with any reasonable hypothesis other than guilt. Rusovan provides no assistance to the resolution of the present case.
It is appropriate for a trial judge, when summing up, to direct a jury to consider whether they think a particular factual scenario is “reasonably possible”. The expression has been considered without adverse comment in many cases, including cases involving the issue of self-defence.
In the above extracts, the trial Judge appropriately instructed the jury as to the way in which they were required to apply the tests relating to self-defence to the facts of the case as they found them to be. In light of the earlier direction, the jury would have understood the reference to “find[ing] that the accused realised the police were attempting to gain entry” as meaning “finding beyond reasonable doubt”. Such a finding would necessarily involve rejection of the account given by the accused.
Properly applying these directions, the jury would have considered the question of self-defence on the basis of the evidence given by the appellant, unless they were satisfied beyond reasonable doubt that the accused realised that the people who were attempting to gain entry were police.
Appeal against sentence
The appellant was sentenced pursuant to section 18A of the Criminal Law (Sentencing) Act 1988 (SA) to the one penalty. He was imprisoned for five years. A non-parole period of three years was fixed. The Judge directed that the head sentence and the non-parole period commence on the day he was taken into custody, 20 March 2007. On the offence of possessing a firearm without a licence, the appellant was sentenced to imprisonment for two months to be served concurrently with the sentence for the offences of endangering life. The Judge ordered that the firearm used in the offences be forfeited.
When sentencing the Judge remarked:
The offences of endangering life arose out of a forced entry on your home which was carried out by police officers on 17 December 2004.
On the morning of that day a number of police officers from the Drug Squad and the STAR Force went to premises rented by you at Collinswood. At the time you were living there with your partner, Michaela Lewis, and your son. The police officers attempted to enter the house through a rear door, but were unsuccessful. They then moved to the front of the house and entered through the front door after forcing it with a ram. While they were at the front door you fired two shots from a revolver. You were then positioned inside the house and they were outside on the other side of the door.
One of the projectiles embedded itself high up on the upright of the architrave of the door, on the inside of the house. The projectile hit a chime which is fixed to the door. The other projectile went through the door at a point towards the top of the door. The door is of solid wood construction.
The projectiles did not hit any of the police officers, but the officers were on the outside of the door and two of them were standing near it at the time the shots were fired. One of the police officers was using a ram on the door at the time the shots were fired.
The police officers said that there was a considerable amount of shouting by them outside the house while they were attempting to gain access. They called out the word ‘Police’ when they were attempting to gain access to the rear door and this was also called out as they were attempting access to the front door. This evidence is summarised in my summing-up to the jury.
I will refer to your version of the incident and that of Ms Lewis later in these remarks. Both of you gave evidence at the trial. I have taken that evidence into account when deciding the appropriate sentencing basis. However, I have also considered the evidence of the police officers and the arguments which have been advanced in relation to it.
I am satisfied beyond reasonable doubt that you were aware that police officers were outside attempting to enter the premises prior to you firing the weapon. I reject your version and the evidence in support it received from Ms Lewis, that you believed that members of a motorcycle gang were at the door and that you fired the shots by way of self-defence and defence of others.
However, I accept that you fired the shots in panic and that you did not intend to hit the police officers.
Nevertheless, you deliberately fired two shots and you knew that this was likely to endanger the lives of those on the other side of the door. Furthermore, you were recklessly indifferent as to whether their lives were in danger.
This is the basis upon which I propose to sentence you.
I have had careful regard to the version which you gave to the jury concerning your involvement with the man Ralph, who was formerly Ms Lewis’s partner. You have explained his connection with a motorcycle gang and your concern that members of that gang might inflict harm on you and your family.
I accept that you were involved in a dispute with Ralph, but, as I have said, I have also considered the extensive evidence of the police officers concerning their actions outside the house and I reject your claim that you mistook them for members of the motorcycle gang. I have not reached this decision without considering the submissions made by your counsel on your behalf; nor have I overlooked the evidence of Ms Lewis.
The complaint advanced on appeal challenged the finding that the appellant knew it was the police who were attempting to gain entry to the house. It was said that the remarks on sentence did not adequately justify the rejection of the evidence given by the appellant and his partner.
It was further submitted that the jury’s verdicts were consistent with the appellant having genuinely believed that members of a motorcycle gang were at the door. The firing of a gun twice was reasonably proportionate to the perceived threat. It was contended that the appellant should have been sentenced on a different and more favourable basis consistent with the jury’s verdicts. As a result it was said that error permeated the sentencing process leading to a sentence of imprisonment and a non-parole period both of which were manifestly excessive.
Where, following a trial by jury, a person has been convicted of a criminal offence, the power and responsibility of determining the sentence rests with the judge, not with the jury. A trial judge is entitled to form his or her own view of the facts, provided that view is consistent with the jury verdict. The Victorian appellate decision in Harris,[8] approved by the South Australian Supreme Court in Stehbens,[9] summarises the position:[10]
[8] Reg v Harris [1961] VR 236.
[9] R v Stehbens (1976) 14 SASR 240.
[10] Reg v Harris [1961] VR 236 at 236-237.
The responsibility of awarding punishment once a jury have convicted a prisoner lies solely upon the judge. He has to form his own view of the facts and to decide how serious the crime is that has been committed, and how severely or how leniently he should deal with the offender. The learned judge in forming his view of the facts must not, of course, form a view which conflicts with the verdict of the jury, but so long as he keeps within those limits, it is for him and him alone to form his judgment of the facts. He has presided at the trial and he has seen the witnesses and has seen how the trial has progressed, and he can form his own judgement of the seriousness or other character of the offence.
In Stehbens this Court further discussed the authorities:[11]
[11] R v Stehbens (1976) 14 SASR 240 at 245-246 (footnotes omitted).
In this Court, in Reg. v. Thompson Bray C.J. said:
“Is the judge in sentencing still bound to act on the view of the facts most favourable to the accused and consistent with the jury’s verdict? Or can he act on the version which he himself is satisfied beyond reasonable doubt to be true, provided that it is not inconsistent with the jury’s verdict? ... (W)hen the view of the jury of the particular factual issue in question for the purpose of sentencing is unknown, and the judge is prepared to make a finding on it beyond reasonable doubt based on his own opinion of the sworn evidence before him, I am inclined to think that he is at liberty to act upon it.”
We respectfully agree with the proposition, limited as it is to a sentence upon a jury’s verdict. His Honour’s views find support in Reg. v. Kane, where the Court said:
“If the learned Judge, as may well have been the case, regarded it as his duty to take the view of the facts most favourable to the prisoner, it would deny his freedom to form his own view of the facts within the limits of the conviction, and it would be a wrong approach.”
This does not mean, of course, that a judge is free to form his own opinion of the facts without regard to the general principles of proof in criminal cases. The judge must give the prisoner the benefit of any reasonable doubt when forming his view of the facts for the purpose of sentencing the prisoner, consistent with the verdict of the jury. But accepting these principles, we think that the learned trial Judge was fully entitled to form the view which he did form.
The court cannot take into account circumstances that would have warranted a conviction for a more serious offence than the one for which the accused was convicted. The principle is reflected in the judgment of Gibbs J in De Simoni:[12]
[T]he general principle that the sentence imposed on an offender should take account of all the circumstances of the offence is subject to a more fundamental and important principle, that no one should be punished for an offence of which he had not been convicted. … The combined effect of the two principles … is that a judge, in imposing sentence, is entitled to consider all the conduct of the accused, including that which would aggravate the offence, but cannot take into account circumstances of aggravation which would have warranted a conviction for a more serious offence.
[12] The Queen v De Simoni (1981) 147 CLR 383 at 389.
The above authorities establish that a sentencing judge following a trial before a jury, is entitled to make findings of fact consistent with the jury’s verdict. The findings made by the trial Judge in this case, when sentencing, were consistent with the verdict. It is correct, as counsel for the appellant pointed out, that the jury’s verdict was also consistent with an acceptance of the appellant’s belief that members of a motorcycle club and not police were at the door. However, the jury’s verdicts were also consistent with the findings made by the Judge when sentencing.
In these circumstances no error has been demonstrated in the approach taken by the trial Judge or in the findings that he has made. On the basis of these findings it was conceded that the sentence imposed was well within the Judge’s sentencing discretion. This concession was correctly made.
Conclusion
The applicant should be granted leave to appeal as sought. However, the appeals against conviction and sentence should be dismissed.
SULAN J: I would dismiss the appeals against conviction and sentence. I agree with the reasons of Gray J.
DAVID J. I agree that the appeal should be dismissed for the reasons given by Gray J.