R v Micallef; R v Lourens
[2025] QCA 21
•4 March 2025
SUPREME COURT OF QUEENSLAND
CITATION:
R v Micallef; R v Lourens [2025] QCA 21
PARTIES:
In CA No 127 of 2024:
R
v
MICALLEF, Jake Michael
(appellant)In CA No 128 of 2024:
R
v
LOURENS, Jason Rudi
(appellant)FILE NO/S:
CA No 127 of 2024
CA No 128 of 2024
DC No 106 of 2023DIVISION:
Court of Appeal
PROCEEDING:
Appeal against Conviction
ORIGINATING COURT:
District Court at Maroochydore – Date of Convictions: 28 May 2024 (Long SC DCJ)
DELIVERED ON:
4 March 2025
DELIVERED AT:
Brisbane
HEARING DATE:
11 February 2025
JUDGES:
Mullins P, Gotterson AJA, Henry J
ORDERS:
1. Appeals allowed.
2. Convictions of both appellants on count 2 set aside.
3. New trial ordered on count 2.
CATCHWORDS:
APPEAL AND NEW TRIAL – NEW TRIAL – IN GENERAL AND PARTICULAR GROUNDS – PARTICULAR GROUNDS – MISDIRECTION OR NON-DIRECTION – where the appellants were each convicted after a trial on a charge of grievous bodily harm – where the defences of self-defence and aiding in self-defence as per ss 271 and 273 of the Criminal Code (Qld) were raised – where the learned trial judge made an exclusionary effect direction whereby the jury were directed that if they accepted the complainant’s evidence the defences of self-defence and aiding in self-defence would not arise – whether mixed interpretations of the complainant’s evidence were open – whether the learned trial judge’s direction unduly confined the jury’s task
APPEAL AND NEW TRIAL – NEW TRIAL – IN GENERAL AND PARTICULAR GROUNDS – PARTICULAR GROUNDS – MISDIRECTION OR NON-DIRECTION – where the appellants were each convicted after a trial on a charge of grievous bodily harm – where during said trial, the court received a note from the jury asking if it could return separate verdicts for each defendant – where the learned trial judge directed the jury that because of the circumstances of the case the jury’s answer would be ‘both guilty or both not guilty’ – whether it was an error to confine the jury to returning the same verdicts against both defendants – whether this error caused a miscarriage of justice
APPEAL AND NEW TRIAL – NEW TRIAL – IN GENERAL AND PARTICULAR GROUNDS – PARTICULAR GROUNDS – MISDIRECTION OR NON-DIRECTION – where the appellants were convicted after a trial on a charge of grievous bodily harm – where the learned trial judge directed the jury on the defences of self-defence and aiding self-defence per ss 271 and 273 of the Criminal Code (Qld) – where the learned trial judge also directed the jury on excessive force per s 283 of the Criminal Code (Qld) – whether the learned trial judge was in error to refer to s 283 of the Criminal Code (Qld) – whether any such error risked the jury misunderstanding the proper defence tests
Criminal Code (Qld), s 271, s 273, s 283
HML v The Queen (2008) 235 CLR 334; [2008] HCA 16, cited
R v Burton[2003] QCA 370, applied
R v McGrory[2011] QCA 140, applied
Stevens v The Queen (2005) 227 CLR 319; [2005] HCA 65, citedCOUNSEL:
The appellant in CA 127 of 2024 appeared on his own behalf
K M Hillard, with H Meyers-Nicolas, for the appellant in CA 128 of 2024
M B Lehane for the respondentSOLICITORS:
The appellant in CA 127 of 2024 appeared on his own behalf
Legal Aid Queensland for the appellant in CA 128 of 2024
Director of Public Prosecutions (Queensland) for the respondent
MULLINS P: I agree with Henry J.
GOTTERSON AJA: I agree with the orders proposed by Henry J and with his Honour’s reasons for them.
HENRY J: The appellants, Micallef and Lourens, stood trial for their alleged role in two separate episodes of violence allegedly committed upon the complainant. All three were attending a so-called ‘boys’ weekend’ convened at a unit at Alexandra Headlands by another man, Sanson.[1] He allowed his male friends to invite some of their male friends, with the consequence that attendees such as the complainant, were not well known to others, such as Micallef and Lourens.
[1]These reasons refer to those involved by their surnames only, in the interests of brevity and to avoid potential confusion from use of first names which are similar.
Tension arose between the complainant and Lourens. They became involved in a physical altercation in the apartment and Micallef intervened. That episode attracted count 1, a charge of common assault against both Micallef and Lourens. The jury returned ‘not guilty’ verdicts on that count.
Later when Micallef and Lourens left the apartment complex, the complainant assaulted Lourens without warning, smashing a bottle over his head. Another physical altercation ensued, culminating in the complainant suffering a broken jaw. That episode attracted count 2, a charge of grievous bodily harm, against both Micallef and Lourens. Both were convicted of count 2 by the jury and both have appealed that conviction.
The grounds of appeal correctly complain of error in two related directions given to the jury on count 2. The first direction – the ‘exclusory effect direction’ – was that if the jury accepted the complainant’s account of what occurred during the second episode, such acceptance would exclude the operation of the defences of self-defence and aiding in self-defence and their duty would be to convict both defendants. That direction was taken a step further when, on inquiry by the jury, a second direction was given. That direction – the ‘same verdicts direction’ – was that the jury’s verdicts on count 2 in respect of both defendants should be the same, whether guilty or not guilty.
The confining effect of those directions involved error of a kind which means the appeals should succeed. The only other issue of substance identified by the appeal grounds is the relevance of a direction per s 283 Criminal Code.[2]
[2]The operative grounds were those advanced by Micallef. Lourens, who made no submissions in his own right, adopted Micallef’s grounds in effective abandonment of his own.
The issues to be determined in the appeal are conveniently identified in the conclusions to be reached about them, namely:
1. Mixed interpretations of the complainant’s evidence were open.
2. It was an error to confine consideration of defences to count 2 to consideration of whether the jury accepted the complainant’s account.
3. It was an error to confine the jury to returning the same verdicts against both defendants on count 2.
4. The confining quality of the directions caused a miscarriage.
5. Reference to s 283 was unnecessary but inconsequential.
6. There is no substance to other appeal grounds.
7. A new trial should be ordered.
1. Mixed interpretations of the complainant’s evidence were open.
On any view of the evidence, the complainant, Lourens, Micallef and the only other men from the unit who gave evidence, Sanson and Hennessey, were all adversely affected by alcohol. The complainant may also have used cocaine.
In recalling the events of the night when giving evidence, the complainant’s answers were not always fully responsive and proffered limited detail. It is unclear whether this was a symptom or cause of variability which emerged in his evidence of both episodes.
Aspects of the complainant’s evidence in support of count 1 were variable
The complainant alleged of the first episode that there was a fight between him and ‘two other dudes’. Micallef and Lourens were strangers to the complainant before this night. He did not purport to identify them, but the evidence of other witnesses impliedly identified them as the relevant two ‘dudes’.
The complainant described that fight as initially being between him and one of the men, Lourens, with a second man, Micallef, then intervening. On his own account he kneed the intervener in the head. Micallef ended up with a bloodied nose as a result. The complainant claimed he ended up on the ground being punched and kicked by the men to the head for 10 to 15 seconds. However, he conceded in cross-examination that when the second man intervened, the complainant had been punching the first man who was on the ground.
This variability during his evidence meant there was more than one interpretation open of his evidence. It raised the obvious possibility it was Lourens, not him, who was first attacked on the ground. That in turn heightened the possibility Lourens was acting in self-defence and Micallef was aiding in self-defence at the time of the alleged commission of count 1.
That possibility found support in the evidence of the organiser of this ill-fated boys’ weekend, Sanson, and his friend Hennessey. Hennessey, who had invited the complainant, testified he saw the complainant, Lourens and Micallef, whose nose was bloodied, all punching into each other and he intervened, pushing them away from each other. Sanson saw Hennessey intervening, at a time by which Lourens and Micallef had pinned the complainant down, but they were not punching him.
Aspects of the complainant’s evidence in support of count 2 were variable
Turning to the second episode, it involved another violent altercation between the complainant and Lourens, in which Micallef intervened, allegedly ending with the complainant on the ground.
The particulars for count 2 alleged the doing of grievous bodily harm occurred outside the apartment complex some time after Micallef struck the complainant to the head from behind and prior to police attending. The particulars alleged each defendant was guilty of doing grievous bodily harm, on the same alternative bases, namely:
·the defendant punched, kicked and or stomped on the complainant’s head, causing his broken jaw; or
·the defendant aided the other defendant to cause grievous bodily harm by physically assaulting the complainant while the other defendant punched, kicked and or stomped on the complainant’s head.[3]
[3]The particulars were initially cast wider to allege encouragement by presence but that was not persisted in.
The complainant testified that after the first episode he was a bit sore around the face and decided he was going to catch a taxi home. He explained it was when he was downstairs, waiting for a taxi, that the second episode happened.
Hennessey estimated Lourens and Micallef left the unit about half an hour after the complainant had left the unit. It was open to the jury to entertain the possibility the complainant may have lingered downstairs and readied himself for a confrontation rather than moved on and away from the apartment complex.
The complainant heard the two males coming. He testified that as the first one came through the front entrance gate the complainant hit him over the head with a Vodka Cruiser bottle, the bottle smashing. This caused a significant enough cut to Lourens to have later required stitches. It also caused blood to stream down Lourens’ face.
The complainant testified that after he had ‘bottled’ Lourens:
‘We had a bit of a scuffle, and, yeah, ended up sort of, you know, made him sort of nearly started talking things through and then, yeah, I got punched in the fuck – in the backish – side-ish of the head, so yeah.’ (emphasis added)
This reference to ‘nearly started talking things through’ marks the genesis of an interpretation of the complainant’s evidence favoured by the primary judge that on his account there had been a cessation of any violence requiring a defensive response by Lourens or Micallef.
The complainant testified that after he had ‘bottled’ Lourens they moved, as they were fighting, to between the front gate and the street and were there when the complainant’s head was hit, apparently by a second man, inferentially Micallef.
When evidence-in-chief first moved to the phase after the second male had struck the complainant to the head, the prosecutor struggled to extract much detail from the complainant. For example, the following exchange was of no assistance in specifically establishing the complainant was assaulted on the ground by two men:
‘So then you’ve been hit in the back of the head. What happened then?--- I fell to the ground.
Yes?--- And got kicked and stomped and jumped on. So---
And that’s while you’re on the ground?--- Yeah.
And whereabouts on your body was that?--- In the head and the ribs and stuff like that, so I got dragged on my back by my ankles, so---
All right?---Mmm.
And do you know which of the males dragged you?--- No, I don’t know which one dragged me, but yeah.
All right. And can you say – again, I’m testing your memory – but can you say where on your head you were assaulted?--- It was all over. Just---
All over. All right. And how were you positioned on the ground?--- I was---
Were you fighting back at that point?--- Well, no, I was on the ground. I couldn’t really fight back.
Yep?--- All I could do was try to block myself, so---
…
All right. And do you – how did that fight end?--- I’m not too sure. I ended up in hospital. I just woke up in hospital at the end of it, so---
…
You’ve woken up in hospital. How long – how long were you being assaulted that you can remember on the ground?--- Probably 30 seconds, maybe 40 seconds. So---’
Despite the complainant implying he was unconscious in the aftermath the police gave evidence that after they arrived at the scene the complainant was conscious and expressing concern that his mobile phone be found.
There was other imprecision in the complainant’s evidence, including when the broken jaw was suffered. More relevantly to this appeal, there was also variability about any cessation of violence by the complainant before he ended up on the ground being assaulted. That variability, explained in greater detail below, meant more than one view of the complainant’s evidence was open on the topic.
2. It was an error to confine consideration of defences to count 2 to consideration of whether the jury accepted the complainant’s account.
The complainant’s account was the main source of evidence justifying consideration of the defences of self-defence and aiding in self-defence in count 2
The complainant’s account was the principal source of evidence in support of the conclusion, which is not in dispute, that the defences of self-defence and aiding in self-defence reasonably arose for the jury’s consideration.
There was little other evidence of what had occurred during the second episode.
Unlike the first episode, there were no eyewitnesses to the second episode. Micallef and Lourens did not give evidence, although evidence of their brief accounts to others was led.
When Lourens was spoken to by police who arrived later that night, he said of the episode downstairs that after the complainant had smashed a bottle over his head he had jumped the fence, chased the complainant down the road and ‘kicked the shit out him’. He said he had wanted to kill him at that point. That drunken admission’s reference to a chase down the road did not fit comfortably with the complainant’s eventual version of events.
Lourens’ account of the second episode in his later interview with police when sober was sparse. He explained he had been ‘wasted’. He recalled he was ‘bottled’ over the top of the gate and ‘got into an altercation’ of which he could recall no detail.
Micallef said in a police interview that his only physical involvement in any episode that night was when he had intervened to split up the fight upstairs in the unit and been kneed in the nose by the complainant, breaking it. His interview involved no admission of involvement in violence outside the apartment complex.
However, Sanson testified that later that night Micallef had told him, in reference to events downstairs between the complainant and Lourens, they had started fighting again and Micallef had tried to break the fight up and been punched again by the complainant.
The exclusory effect direction confined consideration of defences for count 2 to consideration of whether the jury accepted the complainant’s account
The primary judge’s directions to the jury regarding self-defence were given firstly in respect of count 1 and then in respect of count 2. In directing on count 1 his Honour explained the operation of the defences of self-defence and aiding in self-defence, as contained respectively in ss 271(1) and 273 of the Code.
In directing upon count 2, and that offence’s element of unlawfulness, his Honour explained that what he had already explained about the defences of self-defence and aiding in self-defence was potentially applicable to the jury’s consideration of count 2.
His Honour then explained the legal operation of self-defence as contained in s 271(2) of the Code, first describing the content of the provision, then explaining its elements by reference to the complainant’s assault of Lourens, smashing the bottle over his head. The defence’s relevance to the defence of aiding in self-defence vis-à-vis Micallef was also explained. However, there was no elaboration upon how the facts gave rise to the potential operation any of the defence provisions.
The primary judge explained the burden remains on the prosecution to prove each defendant was not acting in self-defence or aiding in self-defence. His Honour then gave the exclusory effect direction:
‘The prosecution may negate any justification of self-defence and aiding in self-defence or satisfy you that it does not apply by proving beyond reasonable doubt any of the matters that are relevant to any such justification is not applicable. In this case, it is unnecessary to discuss in any further detail how the prosecution may be able to do that, because the issue is as to whether, in respect of count 2, any justification of self-defence and aiding in self-defence is excluded in respect of the acts for which the defendant are to be otherwise held criminally liable in terms of causing the grievous bodily harm to the complainant. As you know, that has been particularised in terms of both defendants punching, kicking and stomping on the complainant sometime after Jake Micallef struck [the complainant] to the head from behind.
The only evidence which is referrable to that sequence of events is that of the complainant, who described the blow from the defendant Micallef occurring after there had been a cessation of any fighting between he and the defendant Lourens, and that they had started trying to talk things out, and that after the blow by Micallef, he was knocked to the ground, where he was kicked and stomped on and, he described, dragged, when he was not able to fight back. I will come back to any potential significance that any observation of Mr Sanson as to what occurred outside the units might have, when I deal with the evidence later, but the point that I’m simply making is that that sequence of events only comes from the complainant’s evidence.
If that evidence is accepted beyond reasonable doubt as to that sequence of events, by which grievous bodily harm was occasioned by each defendant to the complainant, as I have – I have indicated already what you need to be satisfied about to decide that – it is not suggested otherwise and there is no other conclusion open other than that such conduct by each defendant was unlawful. There could not be any relevant suggestion other than that the relevant acts of each defendant were not in any sense acts in defence of anyone, because they were not in any relevant sense acts defending against any unlawful assault by the complainant on anyone. And there is nothing in those circumstances which could give rise to any belief on reasonable grounds as to any necessity to use such force, let alone any reasonable necessity to do so.
Accordingly, and if you are so satisfied to accept the complainant’s evidence as to this course of events and that the grievous bodily harm was occasioned to the complainant in that course of events, and also as to the criminal liability of each defendant for all of those applications of force to the complainant, beyond reasonable doubt, then it would be your duty to convict or find each defendant guilty of count 2. If you are not so satisfied in respect of all three propositions, then it would be your duty to acquit or find each defendant not guilty.
To recap on that, the three propositions are – it starts with the notion of accepting the complainant’s evidence as to that course of events beyond reasonable doubt, as it involves also your acceptance of the criminal liability of each defendant for the applications of force that are described, the nature of him being kicked and stomped upon in particular when he is on the ground, and also the allegation [he’s] punched, by the two men together, whilst he was in no position to fight back, and that it was that course of events, that combined application of force for which each of the defendants is legally responsible that caused the grievous bodily harm, the broken jaw. Then that is the basis upon which it would be your duty to convict each defendant. Otherwise, if not so satisfied of all of those things, it would be your duty to acquit both of them.’ (emphasis added)
The source of the primary judge’s approach in directing as he did was his view that on the complainant’s account, if accepted, there was such a clear cessation in the sequence of violence downstairs that there could be no defence for the violence allegedly done to the complainant after that break. Yet the complainant did not give a singularly clear account of the cessation. It was variable, so that competing views of it were open to the jury on the complainant’s own account.
The complainant’s evidence of the cessation was variable
It will be recalled that after smashing the bottle on Lourens’ head the complainant testified there was what he variously described as a scuffle and a fight, which ended up with them ‘nearly started talking things through’ but then he was struck to the head. Self-evidently, the complainant ‘nearly’ starting to do something, amid an altercation started by him, was not the same as doing it.
The complainant explained the blow to his head occurred between the front gate, where the ‘bottling’ occurred, and the street and that they had moved to that point whilst ‘fighting’. The complainant explained the man who had struck him towards the back or side of the head had been behind the other man when he came out the gate. The primary judge sought to clarify that aspect during this exchange:
‘HIS HONOUR: Did you see him when at – when you were scuffling with the – the man that you hit---?--- Well, no, my eyes weren’t really on him and then – yeah, I got – all of a sudden, hit in the back of the head – well, back right at the head. So---
What, whilst the scuffle was occurring?--- Yeah. Once we – me and him had sort of stopped scuffling and we started trying to talk things out---' (emphasis added)
Describing the two men nearly starting to talk things through or starting to try to sort things out was interpretative rather than descriptive.
The reference in evidence-in-chief to ‘sort of’ stopping and ‘trying to sort things out’ prompted it to be put in cross-examination that there was no ‘making up’ in the middle of’ the second event. The complainant responded that there was. He testified they had spoken for ‘a couple of seconds’. He for the first time claimed he said, ‘Fuck, you know, sorry, didn’t expect it to be that bad’, but proffered no detail of what was said by Lourens. When challenged about his ‘couple of seconds’ estimate, his responses included that the conversation was ‘quick’ and that it was ‘more than two seconds’.
It had not been put this way in evidence-in-chief, when the complainant’s account merely involved vague assertions of a perception of what was about to but did not happen. This is not to suggest the jury could not act on the complainant’s newly introduced assertion, in cross-examination, of a cessation of some seconds with some words of apology. However, the variability of the complainant’s evidence meant there were competing interpretations open – just as there had been for his account of count 1.
There were signs in the primary judge’s exchanges with counsel that the confidence with which he directed about the ‘cessation’ in fighting may have been because of the evidence of Sanson. Sanson did not witness the episode downstairs but, at one point in his account of his intoxicated memory of events, he recalled being downstairs and briefly seeing the complainant and Lourens talking close together. He testified to hearing the word ‘miscommunication’ as he walked away. On his account the two men were on the road and there was no sign of injury to Lourens such as blood streaming down his face. In clear contrast to that evidence the complainant’s evidence put the supposed cessation on the footpath, not the road, and on his account blood was flowing over Lourens’ face by that point.
Sanson’s evidence was therefore at odds with the complainant’s evidence. It was arguably capable of providing support for the complainant’s evidence but was also so inconsistent with it as to arguably provide no support at all.
The exclusory effect direction wrongly assumed there was only one interpretation of the complainant’s evidence open
Returning to the complainant’s evidence, the upshot is that, depending upon what parts of the complainant’s evidence were accepted and how they were interpreted, it was open to the jury to conclude:
· the complainant merely perceived there was going to be a cessation but it did not actually happen before the blow was delivered to his head; or
· there was only a momentary cessation – quick or a few seconds long; or
· there was a cessation which was more than two seconds long.
The primary judge’s direction was therefore in error in conveying the interpretation that there had been a clear cessation in fighting, as if it was the only interpretation of the complainant’s account open to the jury.
The exclusory effect direction unduly confined the jury’s task
By assuming there was only one interpretation of the complainant’s evidence open, the direction disentitled the jury from developing their own understanding of the complainant’s version of what took place and thus removed the need for the jury to consider the potential operation of the defence provisions.
For example, it removed the need to consider whether in applying s 271(2) there was a basis for Lourens to believe on reasonable grounds that, because the assault by the complainant was continuing, he could not otherwise preserve himself. Another example is that the direction removed the need to consider, in applying s 273 to Micallef, whether his intervention was in good faith because the assault by the complainant would have appeared to him to be ongoing.
It may have been, had the jury taken the view there was unlikely to have been any cessation apparent to the defendants, that the jury would still have regarded the defences as excluded. That would have depended on what the jury accepted of the complainant’s evidence of the ensuing events and how that bore upon issues like whether the force had been necessary per s 271(2) or for the purpose of defence per s 273. But they were matters which should have been left to the jury to consider and decide.
The task of a trial judge in summing up the case to the jury ‘is to formulate for the decision of the jury the issues of fact which they need to resolve in order to return a verdict’.[4] The exclusory effect direction was obviously calculated at aiding the jury in that way.
[4]Stevens v The Queen (2005) 227 CLR 319, 327.
In that respect the case is similar to R v McGrory,[5] where the jury was directed that if force was applied to the complainant ‘essentially in the way he described’, then it was applied unlawfully. Muir JA, with whom Fraser JA and Fryberg J agreed, acknowledged the jury were entitled to reject parts of the complainant’s evidence and develop their own understanding of what took place. However, the complainant’s account in that case must have been singularly clear in its essentials, for his Honour also reasoned that acceptance of events essentially as described by the complainant could not have left a view of the facts which made s 271(1) applicable. The same cannot be said here. The complainant’s account was not singularly clear and on some interpretations of it the defence provisions remained relevant for the jury’s consideration.
[5][2011] QCA 140.
In the circumstances of this case it was an error to confine consideration of defences in count 2 to consideration of whether the jury accepted the complainant’s account.
It is unfortunate that trial counsel (who were not counsel in the appeal) did not argue against the giving of the direction or later apply for a re-direction to correct the error. This explains why the grounds of appeal complain the error caused a miscarriage, rather than there being a wrong decision on a question of law.
The respondent contends there was potential forensic advantage for the defendants in acquiescing to the exclusory effect direction, because it confined the Crown case. The foundation for that submission appears to be that the direction essentially required the jury be satisfied of the complainant’s account, taken at the highest. Yet such an approach is more likely to have advantaged the Crown because of its tendency to deflect attention from the variability of the complainant’s account. Because of the erroneous assumption underpinning the exclusory effect direction, there was no elaboration in directions upon how the legal defences of which the jury were informed arose for the jury’s factual consideration. If there had been, it would likely have aided the jury’s appreciation of how some aspects of the complainant’s variable account actually lent support to the defences.
Ultimately it is unnecessary to express a concluded view whether the choice of trial counsel to not oppose the giving of the exclusory effect direction precludes a conclusion that the giving of that direction alone caused a miscarriage. That is because it fed into the giving of the same verdicts direction, to which these reasons now turn.
3. It was an error to confine the jury to returning the same verdicts against both defendants on count 2.
It was necessary to decide how to answer a jury question about whether their verdicts had to be the same verdicts for each defendant
The primary judge’s summing-up spanned the afternoon of day 5 of the trial and the morning of day 6. At the outset of day 6 the Court received a note from the jury which read:
BOTH COUNTS
CAN WE AS THE JURY SEPARATE THE VERDICTS ON.
I.E. ON EITHER COUNT
ONE GUILTY
ONE NO GUILTY
OR DO THEY BOTH HAVE TO BE THE SAME VERDICT
His Honour properly invited submissions from counsel in the absence of the jury as to how the note should be addressed.
Two of the three trial counsel initially submitted the verdicts could be different but seemingly acquiesced to the different view of the primary Judge as to how the jury’s question should be decided. Be that as it may, the jury’s question required a decision for the trial judge on a question of law. The attitude of the parties, whether the product of forensic choice or not, could not be determinative of the direction required at law.
In exchanges with counsel his Honour acknowledged it was theoretically correct that the verdicts on count 2 could be different. However, he expressed the view, in light of the way in which the jury had been directed in relation to count 2, that it necessarily followed the verdict would have to be the same for both defendants. He considered there could be no suggestion of any justification of self-defence or aiding in self-defence if the jury accepted the complainant’s account of a cessation of any interaction between the complainant and Lourens. His Honour thus reasoned he would tell the jury in respect of count 2 that the jury’s verdicts would have to be the same for both defendants.
The same verdicts direction on count 2 confined the jury to convicting both defendants or acquitting both defendants
When the jury returned for the resumption of the summing-up that morning, his Honour immediately gave directions in answer to their note. It was explained to the jury at the outset that, as a simple theoretical response to their question, the answer was they could return separate verdicts as against each defendant on each count. However, his Honour explained he was going to come to a qualification about that theoretical position. His Honour explained the reason for the theoretical position was that there may be differences in the evidence for and against each defendant. Further, his Honour explained in respect of count 1 that there were differences in the evidence and different ways in which its use of justification or excuse, including provocation, may arise.
Then, turning to count 2, his Honour explained, while the answer in theory would usually be ‘yes’, the jury would remember his explanation of the application of the legal framework to count 2, reminding them if there was a belief on reasonable grounds that it was necessary to use force in defence, that that may constitute a justification for what followed. His Honour then said:
‘However, as I have explained to you, in the circumstances of this case, the Crown case is put in particular reference to a sequence of events which the complainant describes as occurring after there has been a cessation or break in any exchange of blows or violence as between the complainant and the defendant Lourens, following him being struck by the bottle. And the simple proposition is that at that point there is no ongoing assault, if that is what you accept happened, from the complainant towards the defendant Lourens. And he describes a course of events and I will take you to the evidence shortly, where he is then struck from behind by the defendant Micallef. He ends up on the ground and then he describes a course of both of the men involved in further applications of force whilst he is on the ground. And the proposition that is put to you is simply this: if you accept that evidence beyond reasonable doubt as to that sequence of events and that it was in that sequence of events that the grievous bodily harm in the nature of the broken jaw was occasioned to the complainant, and you accept that, as I have explained it to you, that each of the men was so involved in applying force to him in a concurrent sense, acting together, in that sense that each was intending to aid the act of the other by doing that, then you may find that – or the argument is that you find, in those circumstances, that they are each criminally responsible for their own acts and also for the act of the other man.
And in that way the Crown do not need to establish any more precisely just which particular blow or blows it was that caused the grievous bodily harm because the contention is that each defendant is responsible criminally not just for his own acts in doing so but the acts of the other defendant as well. And that it would follow, if you accepted that evidence, that there could not be any relevant suggestion other than that those acts of each defendant were not in any sense acts in defence of anyone … So if you are satisfied of all the propositions you can find both guilty. If not, find each not guilty.
It follows from what I have just explained that practically, because of the way the Crown case is particularised and put to you here in these circumstances, on count 2 it practically follows that it is both guilty or both not guilty.’ (emphasis added)
This direction would have been understood by the jury as requiring that they return the same verdicts on count 2 as against both defendants. Implicit in the direction was the assumption that acceptance of the complainant’s account meant accepting the force applied to the complainant while he was on the ground was concurrently inflicted by both defendants.
The same verdicts direction wrongly assumed there was only one interpretation of the complainant’s evidence open
The direction wrongly assumed there was only one interpretation open on the complainant’s evidence, namely that both defendants assaulted the complainant when he was on the ground.
The complainant’s initial description in evidence-in-chief of what occurred when he was on the ground has already been canvassed. In summary he said that after the blow to his head he fell to the ground, was kicked, stomped and jumped on to the head and ribs and was dragged. He said nothing as to who or how many people did this.
The questioning then drifted to consideration of photos, but eventually returned to the alleged assault on the ground with the following exchange:
‘Now, when you were on the ground being assaulted outside the unit?--- Yeah.
What was the lighting like?--- I don’t know, just normal – pretty normal, like – you know – if you’re outside at night-time. So a couple of street lights, I guess.
Yep. So---?--- So---
---could you see the men that were assaulting you?--- Yeah.
See their faces?--- Yeah.’
The above question’s plural reference to ‘men’ was adopted by the answer given but the question was a leading one, because the complainant had not testified he was concurrently assaulted by multiple persons when he was on the ground. Other than through the response to this leading question the jury were in effect left to infer that both of the men present each assaulted him on the ground. Notably, despite confirming in the above-quoted response that the complainant could see the men’s faces, he said nothing as to whether he recognised them or what their relative positions were or what he saw of either of their individual actions.
In light of those features of the complainant’s own evidence, and depending on what parts the jury accepted as reliable, it was not clear on his evidence that both men applied force to him on the ground. It was a conclusion, bereft of supplementary descriptive support, adopted after a leading question.
Perhaps it was the most probable conclusion. However, given the complainant’s lack of recollection of detail, it was open to the jury to work towards a different view of the complainant’s account about whether the force allegedly applied to him on the ground was jointly applied by both men. On one view of his imprecise account, it may have been two men were close by above him but only one of them actually delivered the blows. On another view it may have been both men were involved in delivering physical force in the process of getting the complainant to ground but that only one of them went on with delivering blows thereafter.
The same verdicts direction unduly confined the jury’s task
The effect of the same verdicts direction and its reiteration of the exclusory effect direction had the effect of telling the jury that if they accepted the complainant’s account it excluded defences and meant both defendants should be found guilty on count 2.
As already explained, it was open to the jury to arrive at a view of the complainant’s evidence that there was unlikely to have been any cessation apparent to the appellants. Further, it was open to the jury to entertain the possible view, depending on their view of the complainant’s own account, that despite the proximity of two men, the force actually applied to him after he had been put to ground might only have been applied by one of them. The compounding effect of the same verdicts direction was to remove each such potential view from the jury’s consideration.
4. The confining quality of the directions caused a miscarriage.
The respondent submitted that the case on count 2 was an all or nothing case as against both defendants and that the returning of differing verdicts on count 2 would have been perverse. That submission is unsustainable at the threshold, given that different defences were applicable to each defendant and that accounts given by each defendant were admissible only as against the defendant who gave the account.
Further, if consideration of the varying interpretations of the complainant’s evidence had been left to the jury, their deliberations may well have involved quite different factual considerations for each defendant.
For example, in the case of Lourens, because of his admissions, they may have been willing to conclude, with greater confidence than for Micallef, that he did apply force to the complainant on the ground. However, they may have been forgiving in their consideration of whether self-defence had been excluded in the context of the force possibly being part of a quickly occurring defensive chain of response to the complainant’s serious attack with the bottle upon him without warning. Of course there were viable arguments against that possibility, most obviously depending on their view of whether it would have been apparent there was a cessation of violence by the complainant and whether the blows on the ground continued as long as the complainant alleged.
In the case of Micallef the jury may have struggled to conclude beyond reasonable doubt that he did apply continued force to the complainant on the ground. Even if they did, the imprecision as to what force he applied may have seen them take a generous approach to the defence of aiding in self-defence and whether, from his perspective of what occurred, he was acting defensively in good faith to prevent an ongoing assault upon his bloodied friend.
None of this is to suggest the jury would have reached the same or different verdicts in respect of either defendant. But these were issues for the jury to consider. The two directions’ implicit removal of such consideration denied the defendants a chance of acquittal fairly open to them.
There was for that reason a miscarriage of justice. The decision to answer the jury’s question in the way which occurred also involved a wrong decision on a question of law. Either way, the result is that the appeal must be allowed.
5. Reference to s 283 was unnecessary but inconsequential.
Section 283 Criminal Code provides:
‘283 Excessive force
In any case in which the use of force by one person to another is lawful the use of more force than is justified by law under the circumstances is unlawful.’
In explaining self-defence and aiding in self-defence as they related to count 1, the primary judge recited the content of s 283 without saying some particular provision was being referred to. When directing on the defence provisions of relevance to count 2, his Honour’s reference to the language of s 283 was even briefer, namely:
‘Remember what I’ve said to you about the general concept that using more force than may be justified is not lawful.’
The appeal grounds assert it was an error to refer to the language of s 283. The appellants submit the provision had no place in this trial and reference to it risked jury misunderstanding of the proper tests per ss 271 and 273.
Section 283’s focus is on cases in which a defendant’s use of force is lawful but the defendant uses more force than is justified by law. Sections 271 and 273 will usually only be raised in circumstances where the use of force would, but for the operation of those sections, be unlawful. Typically, it would be unlawful because the application of force was not consented to by the complainant, thus constituting an assault.
In such cases, if ss 271 or 273 reasonably arise for consideration and cannot be excluded, the use of force will be deemed lawful. The terms of those sections limit the extent of the force deemed lawful so that if the prosecution cannot exclude the possibility the force used was within those limits the charge must fail.
The appellants are correct in arguing there is no utility in referring to s 283 in such a case. Once force which is ordinarily unlawful because the complainant does not consent to it, is deemed lawful by circumstances within the bounds of a defence provision which cannot be excluded, s 283 could have no work to do.
As was explained in R v Burton,[6] such defence provisions ‘specify the force which may be used lawfully in the circumstances in which the section applies’, making it ‘thus unnecessary to refer to s 283’. In Burton it was observed reference to s 283 in such a case could not of itself be harmful. However, it was problematic in Burton because there had not been a clear direction as the application of s 271(1), thus leaving the jury with the impression the test under s 271(1) was simply whether the force used was excessive.
[6][2003] QCA 370, [28]-[30].
It was preferable not to refer to s 283 in the present case because it was surplusage. However, the appellants’ submission that it risked conveying the wrong impression of the proper defence tests is unsustainable. It was not a real risk because the legal operations of the tests in both limbs of s 271 and of s 273 were clearly explained. The primary judge’s reference to s 283’ effect could not have been understood as changing the operative effect of those provisions. That conclusion is fortified by the fact that no complaint was made about the direction by trial counsel.
6. There is no substance to other appeal grounds.
The remaining grounds of appeal complain of two errors in directing on self-defence.
One alleged error is failing to direct the jury of the need to exclude self-defence. However, the primary judge did give such a direction.
The other alleged error is failing to direct the jury to assess the level of danger presented by the complainant against the state of mind of the defendant. But the directions given did carry that effect.
The argument in support of these grounds largely amounted to a complaint that the directions did not accord with the directions suggested in Queensland’s Supreme and District Courts’ Criminal Directions Benchbook. Such suggested directions are necessarily crafted at an abstract level and cannot substitute the trial judge’s obligation in each case to prepare and give directions appropriately moulded to the individual circumstances of that case.[7] Further, the suggested directions in the Benchbook are only the product of judges’ extra-curial writing designed to aid trial judges. They are not legally prescriptive. An appellant’s complaint of legal error must necessarily be grounded in what the law says, not what a suggested direction of the Benchbook says.
[7]HML v The Queen (2008) 235 CLR 334, 386-387.
7. A new trial should be ordered.
The conclusion that the appeal must be allowed was not based on some determinative inadequacy in the evidence, so as to suggest a judgment of acquittal ought be entered. A new trial should therefore be ordered.
The orders should be:
1. Appeals allowed.
2. Convictions of both appellants on count 2 set aside.
3. New trial ordered on count 2.
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