R v Marzano

[2000] QCA 272

SUPREME COURT OF QUEENSLAND

CITATION:

R v Marzano [2000] QCA 272

PARTIES:

R
v
MARZANO, Annette Maree
(appellant)

FILE NO/S:

CA No 57 of 2000
DC No 510 of 1998

DIVISION:

Court of Appeal

PROCEEDING:

Appeal against Conviction

ORIGINATING COURT:

District Court at Townsville

DELIVERED ON:

18 July 2000

DELIVERED AT:

Brisbane

HEARING DATE:

11 July 2000

JUDGES:

Davies and Thomas JJA and Williams J
Judgment of the Court

ORDER:

Appeal against conviction dismissed

CATCHWORDS:

CRIMINAL LAW – APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION – APPEAL AND NEW TRIAL – PARTICULAR GROUNDS – UNREASONABLE OR INSUPPORTABLE VERDICT – WHERE APPEAL DISMISSED

CRIMINAL LAW – CRIMINAL LIABILITY AND CAPACITY – DEFENCE MATTERS – SELF-DEFENCE AND OTHER FORMS OF DEFENCE – GENERALLY – appellant convicted of unlawfully doing grievous bodily harm – whether jury's verdict was unreasonable based upon the weight of the evidence in respect to the appellant's version of events – whether there was a misdirection and a failure to differentiate the requirements of self-defence under s 271 Criminal Code – whether there was a misdirection under s 272 so as to "cloud the issue of self-defence"

Criminal Code, s 271, s 272

COUNSEL:

Appellant appeared on her own behalf
M J Byrne QC for respondent

SOLICITORS:

Appellant appeared on her own behalf
Director of Public Prosecutions (Queensland) for respondent

1. THE COURT:  The appellant was convicted in the District Court at Townsville on 17 February this year of unlawfully doing grievous bodily harm to a man Nicholson with whom she was living in a de facto relationship.  She appeals against that conviction and has, to that end, argued her own appeal.  However she has plainly had the benefit of legal assistance in the preparation of her notice of appeal and an 11 page written outline of argument on appeal.

1. There does not appear to have been any doubt that, on 17 April 1998 at Townsville the appellant stabbed Nicholson in the side of the neck with a knife and that the knife penetrated the skin, completely cut one of the muscles of his neck, lacerated the thyroid gland and cut through the cartilage of the windpipe.  Nor does there appear to be any doubt that the injury was likely to cause permanent injury to health.  The only question open in the case appears to have been self-defence.

1. At the appellant's trial four persons gave evidence of relevant events;  Nicholson, the appellant, the appellant's sister Nova Gallagher and Patricia Brackley a friend of the appellant's.  On the evidence of the appellant, but probably not on the evidence of any of the other witnesses, self-defence was open.  She said that the complainant dragged her into the kitchen and put a knife against her cheek.  She thought he was going to stab her and was really scared.  She said that the next thing she knew everyone was really quiet and she realized that she had the knife in her hand and he had his hand to his neck.  The learned trial judge directed the jury on self-defence.

1. Two grounds of appeal are raised by the notice of appeal and pursued in the written outline.  The first is that the jury's verdict was unreasonable.  The second is that the judge misdirected the jury on self-defence.  No particulars were given of the first ground.  In the outline the submission is made that the weight of evidence supported the appellant's version of events.  However it is plain that the jury could reasonably have disbelieved the appellant and been satisfied beyond reasonable doubt that, on the evidence of other witnesses, self-defence was not open or had been negatived.  There is plainly no substance in the first ground and it must be rejected.

1. The learned trial judge gave careful directions on self-defence against unprovoked assault and against provoked assault.  No complaint was, in the end, made about those directions by counsel who represented the appellant at the trial.  An initial request for redirections in this respect appears to have been abandoned.

1. Contrary to the particulars given in the notice of appeal and the written outline, the directions did address the existence of a state of actual belief on the appellant's behalf and did not tend to import an objective requirement of necessity into the appellant's actual belief. The contention is plainly one with respect to s 271(2). His Honour said that that sub-section had three elements which were:

an unlawful assault by Nicholson on the appellant which was not provoked by her;  and

the assault by Nicholson was such as to cause a reasonable apprehension on her part that she was going to be killed or suffer grievous bodily harm at the hands of Nicholson;  and

she believed, in this case she must actually have had that belief, that she could not otherwise defend herself from death or grievous bodily harm, and that belief which she had was based on reasonable grounds.

1. His Honour then said:

"Again, that is an objectively reasonable belief.  If there are reasonable grounds for that belief, then she is allowed to use force in self-defence, even though that force may kill or cause grievous bodily harm."

His Honour plainly explained what he meant by the first sentence above both in the second sentence and in the following passage:

"In that situation, if she was unlawfully assaulted by Nicholson and had not provoked the assault, and she reasonably apprehended that Nicholson was going to kill her, or cause her grievous bodily harm, and she actually believes on reasonable grounds that the only way she can defend herself is by killing him, or causing him grievous bodily harm, she is allowed to do that, and the Crown, if you determine that was the position, have to satisfy you beyond reasonable doubt that that defence does not apply."

That was, in our opinion, a correct direction.  His Honour then went on to say, correctly, that the Crown must negative that defence, to do which it was necessary only to negative one of its elements.

1. The other complaint in the particulars of grounds of appeal and in the written outline, in this respect, is that his Honour did not clearly differentiate the requirements of self-defence under s 271(1) and s 271(2). Again that is not correct. Before dealing with s 271(2) in the above terms his Honour had dealt with s 271(1) in terms which, in our view, showed no error.

1. The appellant also contended that the trial judge's directions as to self-defence against provoked assault (s 272) "clouded the issue of self-defence ... and as a result the appellant was deprived of a proper consideration of the merits of the defence". Whilst it is true that the appellant's case at trial was primarily pursuant to s 271(2) there was evidence which, if accepted by the jury, could possibly have resulted in a finding that the complainant's conduct was provoked by the appellant. If those findings, though unlikely, were made then self-defence had to be considered pursuant to s 272. In the circumstances it was not inappropriate for the learned trial judge to do what he did notwithstanding that it gave rise to an additional complication. There was no error in what the learned trial judge said with respect to self-defence against provoked assault.

1. The appeal should therefore be dismissed.