R v Mekic No. Sccrm-03-252, Sccrm-03-253

[2004] SASC 44

R v MEKIC
[2004] SASC 44

Court of Criminal Appeal:  Doyle CJ, Mullighan and Debelle JJ

1. DOYLE CJ             I ask Debelle J to give his reasons first.

2. DEBELLE J           The applicant was convicted following trial by jury of unlawful wounding. The trial judge sentenced the applicant to imprisonment for 18 months, with a non-parole period of nine months, but suspended the sentence upon the appellant entering into a bond to be of good behaviour.

3. The applicant applied for leave to appeal against both the conviction and sentence. A judge of this Court granted leave to appeal against the conviction but refused leave on the first three grounds in the notice of appeal. The applicant now asks for leave to appeal on those three grounds. The judge also refused leave to appeal against sentence. The applicant has also applied for leave to appeal against sentence but that application is now withdrawn.

4. The first two grounds in the notice of appeal are closely related. They are that the trial judge erred in refusing to leave the issue of self-defence to the jury and in directing the jury that such a defence was not available. The other ground is that the judge erred in refusing to leave the issue of defence of property to the jury and in directing the jury that that defence too was not available.

5. In order for the defence of self-defence to be left to the jury there must be evidence which, if believed, might reasonably lead the jury to be satisfied that the accused genuinely believed that what he did was necessary and reasonable for a defensive purpose and that, in the circumstances, as he genuinely believed them to be, the conduct of the accused was reasonably proportionate to the threat which he believed to exist: c.f. VanDenHoek v The Queen (1986) 161 CLR 158 at 162. In short, there must be evidence on which a reasonable jury could decide the issue favourably to the accused: Reg v Muratovic [1967] Qd R 15 at 20 approved in Zecevic v Director of Public Prosecutions (Victoria) (1987) 162 CLR 645 at 665. The evidence must at least enable a reasonable jury to form a logical conclusion by logical reasoning and not by mere speculation.

6. There was no direct evidence that the applicant had acted in self-defence. The applicant did not give evidence. The only suggestion that the applicant had acted in self-defence was put in cross-examination to the victim and in some evidence of a friend of the victim who was called as a prosecution witness.

7. The evidence was that the victim had lent his car to the applicant. When it was returned, it required some mechanical repairs. The victim then went to the applicant’s premises and asked the applicant to contribute to the cost of the repairs. The applicant refused. The victim responded by saying he would report the matter to the police. The victim’s evidence was that the applicant then attacked him with a screwdriver and stabbed him five times.

8. Counsel for the applicant put to the victim in cross-examination that the applicant had not borrowed his car. It was also put that the argument arose when the applicant accused the victim of stealing property belonging to him. It was alleged in cross-examination that the victim attempted to attack the applicant, who had acted in self-defence. The applicant’s counsel suggested to the victim that it was he who had the screwdriver, that some of his injuries resulted from the struggle, and that he inflicted other injuries to himself. The victim denied all those allegations when put to him.

9. The only other evidence on the issue of self-defence was that of a former friend of the victim who was called as a prosecution witness. She was sitting in a vehicle outside the premises when the incident took place. She said that she heard an argument between the appellant and the victim but could not say what was being said. Her evidence was that she heard the victim talking in a raised voice and at one stage had seen him with his hands in the air. She said that his manner was overbearing. However, she did not see the incident which was the subject of the charge. She said that, while she was sitting in the vehicle, she heard a crashing sound in the garage which sounded like two men fighting. The victim denied that there had been any crashing sound or fighting.

10. A pathologist called by the prosecution conceded that it was a theoretical possibility that some of the victim’s injuries could have been inflicted in the course of a struggle.

11. It is apparent from the recitation of the evidence that the evidence on the question of self-defence is entirely speculative. There is no arguable case that the evidence in this case satisfied the required standard to be put to the jury.

12. The third ground of appeal concerned part of the direction of the trial judge. He directed the jury that any possible link between a screwdriver found in the backyard of the applicant’s premises and damage to a door of the applicant’s house was a red herring and should not concern them. It is contended this was an issue of fact for the jury to determine, that is to say, it was for the jury to determine whether there was any link between those events. There was no evidence linking the screwdriver which had been found with the victim nor was there any evidence that the damage to the door was in any way linked to or associated with the victim. There was nothing in this point to warrant the grant of leave to appeal.

13. For these reasons, I would refuse leave to appeal on grounds 1, 2 and 3 of the notice of appeal.

14. DOYLE CJ             I also would refuse leave to appeal on grounds 1, 2 and 3 of the appeal. I agree with Justice Debelle’s summation of the facts. In my view when one looks at the evidence as summarised by him, there was no material which might have caused the jury to have a reasonable doubt whether self-defence had been excluded.  Accordingly, the Judge rightly did not lead self-defence. For those reasons I also refuse leave to appeal.

15. MULLIGHAN J     I agree. I do not think there was evidence which might reasonably have led the jury to be satisfied that it was a reasonable possibility that the accused genuinely believed that what he did was necessary and reasonable for a defensive purpose. There was, therefore, no basis to lead self defence to the jury. I agree with the observations of the other members of the court about the third ground of appeal and I would reject the application.

16. DOYLE CJ             The order of the court is leave to appeal against conviction be refused on grounds 1, 2 and 3. The court also orders that leave to appeal against sentence be refused.