R v Roberts

[2011] SASCFC 117

SUPREME COURT OF SOUTH AUSTRALIA

(Court of Criminal Appeal)

R v ROBERTS

[2011] SASCFC 117

Judgment of The Court of Criminal Appeal

(The Honourable Justice Sulan, The Honourable Justice White and The Honourable Justice Peek)

26 October 2011

CRIMINAL LAW - APPEAL AND NEW TRIAL - MISCARRIAGE OF JUSTICE - PARTICULAR CIRCUMSTANCES AMOUNTING TO MISCARRIAGE - MISDIRECTION OR NON-DIRECTION - NON-DIRECTION

Appellant appeals against conviction on one count of aggravated causing serious harm with intent to cause serious harm - conviction arose out of an altercation which occurred at the appellant's home - victim was struck on the arm by a sword wielded by the appellant causing serious injury to the victim's hand and arm - appellant argued he was acting in self-defence - whether trial Judge was in error in not giving a direction to the jury in terms of s 15C of the Criminal Law Consolidation Act 1935 (SA) - whether the evidence led by the prosecution that the appellant had chosen to exercise his right to silence should have been before the jury - whether the trial Judge's directions with regard to the subjective elements of the offence were adequate.

Held: Appeal allowed - conviction set aside and matter remitted to the District Court for retrial - a direction in accordance with s 15C of the Criminal Law Consolidation Act 1935 (SA) should have been given - the failure to do so was an error of law - the jury should have been directed that the accused was under no obligation to speak to the police and that no adverse inference could be drawn from the exercise of his right not to answer questions - the directions given to the jury in relation to the subjective elements of the offence were not inadequate and misleading - the jury could have been in no doubt that the appellant's intention was in issue.

Criminal Law Consolidation Act 1935 (SA) s 15, s 15A, s 15B, s 15C, s 21, s 23, s 168(1); Acts Interpretation Act 1915 (SA) s 19(2)(b); Criminal Law (Self-Defence) Amendment Act 2003 (SA) s 4(1), referred to.
R v Martin (2007) 99 SASR 213; Pemble v The Queen (1971) 124 CLR 107; Braysich v The Queen (2011) 85 ALJR 593; R v Heness [2009] SASC 243, discussed.
Fingleton v The Queen (2005) 227 CLR 166; Petty v The Queen (2001) 205 CLR 50; Azzopardi v The Queen (2001) 205 CLR 50; Police v Lloyd (1998) 72 SASR 271; R v Edwards [2009] SASC 223; Gipp v The Queen (1998) 194 CLR 106; Murray v The Queen (2002) 211 CLR 193; CTM v The Queen (2008) 236 CLR 440; Zecevic v Director of Public Prosecutions (Vic) (1987) 162 CLR 645; R v Howe (1958) 100 CLR 448; Palmer v The Queen [1971] AC 814; Viro v The Queen (1978) 141 CLR 88; Beckford v The Queen (1987) 85 CAR 378; R v Oatridge (1992) 94 CAR 367; R v Shannon (1980) 71 CAR 192, considered.

R v ROBERTS
[2011] SASCFC 117

Court of Criminal Appeal:        Sulan, White and Peek JJ

SULAN J:           

1The appellant, Lee James Roberts, was convicted of aggravated causing serious harm with intent to cause serious harm.  The particulars of the offence are that on 27 September 2008, at Magill, he unlawfully caused serious harm to Shane Klaus Gunther Hennigs, intending to cause him serious harm.  The offence was aggravated because, at the time, he used a sword when committing the offence.[1]  The appellant appeals against the conviction.

[1]    Criminal Law Consolidation Act 1935 (SA)

23 – Causing serious harm

(1)A person who causes serious harm to another, intending to cause serious harm, is guilty of an offence.

Maximum penalty:

(a)for a basic offence – imprisonment for 20 years;

(b)for an aggravated offence – imprisonment for 25 years.

2The conviction in this matter arose out of an altercation which occurred in the early hours of the morning of 27 September 2008 at the appellant’s home.  The victim, Mr Hennigs, was struck on the arm by a sword wielded by the appellant.  Hennigs sustained a serious injury to his hand and arm, as a consequence of which he was unable to work for a lengthy period.

3The events leading up to the incident commenced during the afternoon of Saturday, 26 September 2008.  Hennigs was at the Arkaba Hotel viewing the AFL grand final.  During the afternoon, he was joined by Rhiannon Brown, Julia Spehr and Sarah Tolcher.   At that time, Brown was the girlfriend of Hennigs, and Tolcher was the girlfriend of the appellant.  The appellant was not present at the hotel.

4Later that afternoon, Hennigs and the three women went to the home of the appellant, where he resided with Tolcher.  The four of them were drinking at the rear of the house.  The appellant did not join them.  During the afternoon, the appellant’s brother and his friends arrived and the appellant was socialising with them.

5Later in the evening, Hennigs and the three women left the house to purchase some soft drink and beer.  When they returned, the side gate had been locked.  Personal belongings of Spehr had been moved from the rear of the house to the front fence and, when they entered the property, they found that the front door was locked.  The appellant had locked the property and given a clear indication that he wished them to leave. 

6At the trial, each person gave evidence.  Hennigs, Brown and Spehr were called by the prosecution.  The appellant gave evidence and Tolcher was called by the defence.  It is necessary to refer in some detail to their evidence.

7Hennigs gave evidence that when they arrived at the house, having gone to purchase the soft drink, they had decided to go to the Adelaide Hills to a friend’s house.  He said that he had left a bottle of Jim Beam inside the house.  He went to the door and knocked on the door.  By that stage, Tolcher was inside the house.  He said that the appellant opened the door and gave him the bottle of Jim Beam.  He said he returned to the car and was about to leave when he heard the appellant and Tolcher arguing.  He said he was in the back seat of the car.  Brown was in the driver’s seat.  As they were about to leave, he saw Tolcher being pushed through the window at the front of the house.  He said that he and Brown then got out of the car to see what was happening.  He said that Brown, who was near the front window of the house, was calling out to see if Tolcher was all right.  He said he could not recall whether Tolcher responded.  He said he was worried about Tolcher, and he tried to attract the appellant’s attention.   He threw a wheelie bin at the window, because he was frustrated that he could not get inside the house.  He did not think it did any damage to the window.  He said that he then went to the front door to try and enter the house. Tolcher opened the door.  She came outside.  He said he saw the appellant standing approximately two to three metres in front of him.

8Hennigs said that he asked the appellant what the appellant was doing.  He moved closer towards the appellant, as he wanted to control the appellant and calm him down.  He gave the following evidence:

QHow close did you get to him.

ALittle bit further than arm length.

QHad he moved at all before you got to that spot just out of arm’s length.

AYeah.

QWhat did he do.

AHe started swinging a weapon at me.

QHow did he swing it.

AStraight up and down.

QJust stand up and demonstrate if you would.

ACome like that and straight down like that (INDICATES WITH RIGHT ARM BEHIND HIS THIGH A MOVEMENT BACK UP ABOVE HIS HEAD AND THEN STRAIGHT DOWN IN FRONT OF HIMSELF IN A SWINGING ACTION).

QDid you see what he was swinging.

ANo.

QHow did you react to what you saw of the swing.

AI quickly grabbed him by the shirt pulled my head down and tried to keep going close so that he couldn’t get a decent swing on to me.

QWhat effect did you think moving closer to him would have in terms of –

ASo he couldn’t get – can’t get a decent swing if I’ve got him on the swing and he’s got his arms up, just trying to protect myself.

Q       The swing that you did see, did any of that swing come into contact with your body as far as you’re aware of at that stage.

AI wasn’t aware, no it didn’t.

Q       Do you know how you reacted other than seeing the swing in terms of what you did with your hands.

ASorry can you repeat that.

QYou told us how you grabbed him, put your head in, before that, when you saw the swing, do you know what you did in terms of protecting yourself.

APut my arms up.

QHappened once you had your head at his chest and your hands on his shirt.

AStarted moving forward towards the front door.

QWas anything being said by either of you.

ANo.

QWhere you trying to go towards the front door or trying to go the other way.

ANo it just happened that way as I was trying to protect myself.

QWere you trying to resist going towards the front door.

ANo.

QSo you were going backwards.

AYes.

Q       Do you know what happened to the object that he was swinging before you put your head close.

ANo.

QHow far did you move backwards.

AWe made it to the front porch.

QHow long did that take.

ANot long at all.

QWhat happened at the front porch.

AI remember being on my knees, then Lee standing above me and looking down on to my hand and realising that it had been cut in half straight down the middle.

QWhich hand.

AMy right hand.

9He said that Tolcher tried to grab the sword from the appellant, who then ran away. 

10Brown gave evidence that, when the group returned to the house after having been away to purchase the soft drink, she parked the car in the carport.  She said that the four of them tried to get into the house but were unable to do so.  They tried to go to the back, but found that the carport gate was locked.  They then returned to the front door.  She said that Tolcher was banging on the door to try to get in, and calling out to the appellant to let her into her own house.   She said that lasted for about five minutes, until the appellant eventually opened the door and let Tolcher in.  She said that once Tolcher had entered the house, she could hear a great deal of yelling and things started to be smashed.

11She said that she tried to look through the window to see what was going on inside, but was unable to see.  She said that, as she was doing that, something was thrown at the window which caused it to smash.  She said that Hennigs and Spehr were standing somewhere behind her.  She said she could hear Tolcher crying.  Shortly thereafter, the front door was opened.  At that stage Hennigs, who had earlier thrown a wheelie bin at the broken window, was standing near the front door.  After the front door was opened, Hennigs stepped inside.  She said that Hennigs was in the house for a very short time.  She was asked:

QWhat was the next thing you saw of Shane.

AThe next time I seen them was they both had come outside the front and then they were both on the ground and Shane held his hand up and it was like that (INDICATES) pretty much.

HIS HONOUR

QIt was –

AIt was cut in half like that (INDICATES).

QYou could see that.

AYes.

XN

QCould you see blood.

AYes, everything you could see.

QHow was the blood, dropping or spraying or what.

ALike, squirting out.

QThis was outside, was it.

AYes.

Q       I want to try if possible to see if you can help us as to what you saw at different stages before you realised Shane’s hand was injured.  Did you see him at the front doorstep when they came out together.

AYes, they both came out very quickly and then they were,  all I could see was just those two on the ground and then that’s when Shane held his hand up and realised what had happened and sometime in amongst all that Sarah had grabbed the weapon off Lee and then Lee had got up off the ground and grabbed the weapon off Sarah and then ran off down the street.

12Spehr gave evidence that when they returned from purchasing the soft drink, she found her handbag at the front gate.  She had left it at the back of the premises.  She said that, at that stage, Tolcher knocked on the front door and asked whether they could come in. The appellant responded, “No”.  She said that, after about five minutes, the appellant let Tolcher in and then locked the door.

13She said she heard arguing and loud voices from inside the house.   Hennigs and Ms Brown were at the front and were asking why they could not go in.  Brown was encouraging Tolcher to come with her.  She said that Brown was shouting loudly.  Spehr heard the window smashing.  She then heard yelling between Hennigs and Tolcher.  She went back to the car.  She was asked:

QDid you know where Shane was when you got into the car.

AYes, Shane and Rhiannon were near the door outside of the – what did you call it before, the curve next to the door.

QThe patio.

AThe little patio, they were just there, saying ‘Come outside, come outside Sarah, let’s go’.

QDo you hear that from where you sat in the car.

AYep.

QCould you see them from where you sat in the car.

AYep.

QHow long were they saying words like ‘Come on Sarah, let’s go’.

AMaybe five minutes, around about five minutes, 10 minutes.

QDuring that time did you stay in the car or get out again.

AI sat in the car for a while and then I got out of the car because I didn’t want to leave without them, but I wanted to go so I got out of the car to try and get them to, like, go.

QWho were you trying to get to go.

ARhiannon and Sarah, I just wanted to leave, because they were having an argument and I didn’t want to be around it.

QSo did you still want Sarah to go with you at the point you got out of the car.

AYes, I would have liked Sarah to come with us, but –

QWere you prepared to leave without her.

AI might have, yes.

QWhen you got out of the car where did you go.

AI just went back and stood next to that brick wall.

14She then heard smashing glass.  Tolcher was out the front saying that she would be all right.  When she heard the glass breaking, she did not recall where Hennigs was standing.  She saw Hennigs throw a wheelie bin at the window.  Her next memory was that the appellant opened the front door.  She was asked:

QWhat happened when he opened the door.

AI think Lee came out maybe a foot and then they both went inside.

QWhere was Shane when Lee came out.

AJust at the front door as well.

QSo how far were they from each other when Lee came out.

AMaybe 2 feet, 3 feet.

QDid Lee have anything with him when he came out.

A      I didn’t see originally when he came out.

QHow did they get back inside.

AJust walked, like walked inside.  They both seemed quite aggravated.

QWere any words spoken between them.

AI can’t remember.

QCould you see what they did once they got inside.

ANo, because I was – I actually was near the driveway at this point, considering running away.

QSo how were you feeling at this stage.

AScared.

15She said that events after that were uncertain in her mind.  She said that she became aware that Hennigs was injured when he screamed and came out the front door.  She said that she had difficulty in remembering exactly what occurred.

16The appellant’s evidence was that he had decided that he no longer wanted people at his home because he was tired.  When Hennigs and the three women returned after having collected the soft drink, he greeted them.  He was at the front door and told them that he no longer wanted them to stay, and that he was tired and going to call it a night.  He said that Tolcher came inside and he closed and locked the front door.  He said that the others remained at the front door.  As soon as he had closed it, Hennigs and Brown started to yell at him and Tolcher.  He was asked:

Q       What happened when you and Sarah went inside.

A       So I closed the wooden door behind me.  As soon as I closed the wooden door Shane and Rhiannon both began to yell in to us (sic).

Q       Who were they yelling at.

A       Shane yelling at me, Rhiannon yelling at Sarah

Q       Yelling what.

A       Shane was calling me out (sic), calling me a ‘fuckhead’ asking me what my fucking problem was.

Q       What was Sarah doing.

A       She was yelling back at Rhiannon.

Q       Had you and Sarah been exchanging words up to that point.

A       No we hadn’t.

Q       So when Shane and Rhiannon were yelling at you or Sarah, any particular words that you heard.

A       Like I said Shane was trying to call me out, calling me a ‘fuckhead’ asking me what my problem was.  Rhiannon was calling Sarah a ‘bitch’, words to that effect.

Q       Was Sarah saying anything to Rhiannon.

A       Absolutely she was ‘What’s your problem?  Just go home.  Fuck off’.

Q       What room was this happening in.

A       We were in the lounge room.

Q       Talking through door or window or what.

A       Both I guess, yeah.

Q       What about Julia Spehr, did you have any idea as to where she was.

A       No, I don’t know.

Q       Was anything done in relation to the door that you became aware of.

A       Absolutely.  After a period of yelling Shane began to kick the front door which was making a loud banging noise as he was kicking the screen door on to the wooden dear (sic).

17He said that they continued to exchange words.  He heard the wheelie bin outside being picked up and it was then hurled at the front window of the house. The window broke.  He said that he and Tolcher were very scared.  He said that Tolcher went to the window and there was a heated exchange between her and Brown.  He then saw someone’s arms grabbing Tolcher through the window, pulling her out of the house.  He said that he then ran to the front of the house and opened the front door.  He saw Tolcher on the ground outside the house.  He was asked:

Q       Did you do anything to the screen door.

A       Not at this stage, I looked out, saw Sarah on the floor, I saw what looked like Rhiannon to be attacking her and Shane was standing over her and in his hand he had a broken beer bottle.

Q       What did you do.

A       I grabbed the closest thing which was to me which was an ornamental Samurai sword I had on the wall in the sleeve took it out the sleeve and opened the screen door.  The screen door opens on to a brick wall, so I opened it and swung it open so it makes quite a loud noise when you smash it open like that, or swing it open and smash it against the brick wall.

Q       Where was the Samurai sword in relation to the front door, don’t worry with the photographs, just explain.

A       There’s a jacket hanging on the wall on what’s a nail which is used as a hook and there is another nail which is used as a hook which it was hanging on.

Q       So right at the front door.

A       Yeah basically.

Q       When you grabbed the sword what did you do.

A       Took it out of its sleeve and swung the front door open on to the brick wall.

Q       Why did you slam the screen door open.

A       I was trying to get the attention of everybody out the front.

Q       Did you succeed in that.

A       Yes, I did.

Q       What did Hennigs do.

A       He turned around and saw me, I was standing there waving the sword in a threatening motion.

Q       What did Hennigs do.

A       Turned around and charged at me.

Q       Where were you at that stage.

A       Standing right in the doorframe.

Q       What did you do.

A       I saw him coming, I had said to him ‘Get the fuck away from her, fuck off’.  He had run at me and I was just trying to just scar him off I suppose.

18He gave evidence that Hennigs was attempting to attack him, and they ended up in the back laundry.  According to the appellant, he then forced Hennigs back along the corridor and outside the front door.  He described what happened after he forced Hennigs out of the front door.  He said:

Q       How were you and he at that stage;  what were you doing to each other if anything.

A       I was still facing the street, he was still facing the back of the house.  We were still in the struggle.  As I was charging back out the house out the front there’s the pole that holds the verandah up, I pushed him all the way back to that and he has hit that with his shoulder which has caused him to spin around to his side still holding on to me, both fell yelling on the ground and he’s landed on top of me, my legs facing what would be south and head facing north.  So facing towards the driveway.

19He said that Hennigs was on top of him.  It was at that time, as Hennigs was getting off him, that the appellant realised that Hennigs had been severely cut.  The appellant said he was in shock.  He said he “freaked out” and left.  He had the sword with him and threw it into the creek and then went to his friend’s house.  He said he was not aware of where Tolcher was when he left.  He said, later in the night, he went back to the house, picked up Tolcher and then went to his mother’s house.  They returned to his house that morning and were cleaning the house when the police arrived.  He was arrested. Arrangements were made for him to speak a lawyer. 

20Tolcher gave evidence that, when the group arrived at the house, after having purchased the soft drink, they all walked to the front door.  She said that the appellant opened the door and told the group that he would like them to go home because he had had enough.  He let her into the house, and then he closed and locked the door.  She said that she went into the lounge room.  There was no argument between Tolcher and the appellant.  She said the others were still outside.  She heard Hennigs yelling for the appellant to come out the front.  She also heard bottles being smashed.  She said she was frightened and she and the appellant barricaded the back door.   She said that she was telling Brown to leave and to take her boyfriend with her.  She said she was talking to Brown through the window.  She then stepped back from the window and heard the recycle bin being thrown at it through the right-hand window.  She said Brown was at the window and she was joined by Hennigs.

21She said she was then pulled through the window and she ended up on the ground outside.  She gave the following evidence:

AThen I got pulled through the window, the window, because the window had been broken by the bin and the bottles and everything that had been thrown it was serrated with broken glass at the bottom so I had to kind of jump over the glass to avoid ripping my stomach and then I was out the front in a big pile of broken glass and tried to grab the wheelie bin which was on the side which had just been thrown and as I was grabbing it trying to get up, Rhiannon’s come over and moved the bin out of my reach so I – I didn’t understand why she did that.

Q       Was that a quick action or what.

AYeah, well I was trying to pull myself out of the glass and she’s just come over and –

Q       No, sorry, the actual going through the window.

AYes, it was very quick, it all happened very, very quickly.

Q       Incidentally, how much did you weigh at that time.

AI’ve always weighed about the same, about 48 kilos.

Q       So you ended up on the ground.

AYes, I had a massive chunk of glass hanging out my foot and my finger was cut and then she’s moved the bin out of the way and that’s when Lee swing open the door and –

Q       What door are you talking about there.

AThe front door.

Q       Which of the front doors, the screen door of the wood.

ALee swing open the screen door, so it smashed against the wall, it was very loud and got all of our attention and then he had his Samurai sword thing and was just trying to scare Shane saying that he should go, telling him to go.

…

Q       Then what did Shane do.

AShane ran at Lee and pushed him into the house.

Q       Were you still able to keep sight on what was going on at that stage.

AWhen I pulled the chunk of glass out of my foot I chased them inside and they were fighting through the house.

Q       When you say ‘fighting through the house’, describe where they were.

AThey were – Shane was pushing Lee backwards towards the laundry and then it was a very small laundry so I couldn’t really, like –

Q       Where were you at this stage.

AJust following them.

Q       Then what.

AAnd then they came and went back through the house, the whole time they were fighting and then they ended up out the front again and Shane was on top of Lee.

Q       When you saw them fighting inside the house did you notice blood.

ANot at that stage.

Q       When they came out were you still in the house or had you cut out yourself.

ASorry?

Q       I think you might have said they came out.

AYes.

Q       Where were you.

AI just followed them, I was yelling and screaming.

Q       When they came out of the house what position were they in in relation to one another

AYes, Shane was on top of Lee out the front on the ground in front of the porch.

Q       Who was on the ground.

ALee was on the ground and Shane was on him on his front.

Q       Was Lee hanging onto anything at that stage.

AI think he still had the sword in his hand.

22She said that Brown had kicked the appellant whilst the appellant and Hennigs were on the ground. Brown grabbed the sword.  She said it was at that stage that she realised that Hennigs was injured.  She ran inside to grab a blanket.  The appellant had disappeared.

23After the police arrived, she was taken to the hospital where she was treated for her injuries.  She saw the appellant the next morning when she was present when the police arrived and arrested him. 

Section 15C Criminal Law Consolidation Act 1935 (SA), as amended

24The appellant’s case was that he was acting in self-defence.

25The first issue that arises in the appeal is whether the trial Judge was in error in not directing the jury in the terms of section 15C of the Criminal Law Consolidation Act 1935 (SA), as amended.

26Before I deal with the submissions of counsel at trial and the arguments on appeal, I should deal with the legislative scheme.

27At common law, the defence of self-defence was available to a defendant charged with an offence involving an assault.  Conduct was not unlawful if it was reasonably possible that the defendant was acting in self-defence or the defence of another, and that his or her conduct was proportionate to the threat or force with which the defendant was confronted. 

28In 1991, Parliament introduced legislation which provided a statutory form of self-defence.  That was further amended in 1997.  The relevant statutory provisions are:

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.

(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.

(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 omitted)

…

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 perceive 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 perceive 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).

(Underlining is mine)

29The trial Judge did not direct the jury in terms of section 15C, and the question which arises is whether he was required to so direct. In R v Martin,[2] Gray J with whom Sulan and David JJ agreed, discussed the legislative scheme.  In that case, the Court accepted the submission of the Crown as to the construction of the section.  The following passage from Martin demonstrates the approach that should be taken in respect of the construction of section 15C.[3]

Counsel for the Crown submitted that, on their proper construction, ss (1) and (2) of s 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.

[2] (2007) 99 SASR 213.

[3] (2007) 99 SASR 213 at [13].

30In my view, the section poses practical difficulties for a trial Judge who is required to direct a jury in terms of the sections.  The first question which arises is whether the defence of self-defence is open.  The onus of proof is upon the prosecution to prove that the accused did not genuinely believe the conduct to which the charge relates was necessary for a defensive purpose, that is, to defend himself or his partner. 

31In this case, as can be observed from the evidence to which I have earlier referred, the defence case raises the issue of self-defence or defence of another.  The trial Judge directed the jury accordingly, and there is no complaint about his directions.

32In the case of self-defence, once the issue of whether the defendant genuinely believed his conduct to be necessary and reasonable for a defensive purpose is determined in the defendant’s favour, then the jury is required to consider the question of proportionality. 

33The onus is upon the prosecution to prove beyond reasonable doubt that the conduct was not reasonably proportionate to the threat that the accused reasonably believed existed.  However, a further question arises in circumstances in which the defendant establishes on the balance of probabilities that he genuinely believed the victim to be committing, or had just committed, a home invasion, and the defendant was not himself or herself engaged in criminal conduct at or before the time of the alleged offence, which criminal conduct might have given rise to the threat or perceived threat. Further, the defendant must prove that his mental faculties were not, at the time of the alleged offence, substantially affected by the voluntary and non‑therapeutic consumption of a drug.  If the defendant establishes those matters, the question of proportionality does not arise. 

34An example of how the section operates is as follows:  A is at home watching television.  He hears a noise outside.  He fears for his safety and that of his family.  He has a registered firearm and ammunition in the house.  He is in possession of the firearm when a person, B, comes through a window carrying a large knife.  B threatens A and comes towards him.  A shoots the person.  There is clearly an issue of whether, in the circumstances, A genuinely believed that shooting B was necessary and reasonable to defend himself and his family.  The prosecution has the onus to prove beyond reasonable doubt that A did not have such a belief.  A is charged with causing grievous bodily harm with intent to cause grievous bodily harm.  In his defence, A’s case is that his conduct was lawful because he reasonably believed that it was necessary to protect himself and his family against a person who was entering his house armed with a large knife.  There is no issue that B was committing a home invasion.

35A gives evidence and says he took the firearm and shot B to defend himself and his family. A does not specifically say that he believed B was committing a home invasion. However, it can be inferred from all the surrounding circumstances that A did not only believe it was necessary and reasonable to defend himself, but also that he genuinely believed B to have committed or be committing a home invasion, that being a serious criminal trespass in a place of residence. In those circumstances, if the jury accepted A’s evidence on the balance of probabilities, section 15C would operate and a jury would be directed that if they considered it was a reasonable possibility that A believed it was reasonable and necessary for him to defend himself, and that they were satisfied on the balance of probabilities that A believed B was committing a home invasion, then the question of whether his conduct was proportionate to the risk he faced is not a matter to which the jury need to have regard. If, on the other hand, A had not so satisfied the jury, on the balance of probabilities of his belief that B was committing a home invasion, then they must be satisfied beyond reasonable doubt that, in shooting B, his conduct in the circumstances as A believed them to exist was not proportionate to the threat before they could convict.

36The example referred to demonstrates the difficulty faced by a trial Judge in directing the jury of the operation of the section and the difficulty a jury may have in applying the direction.

37In this case, counsel for the appellant submits that the trial Judge erred in failing to direct the jury in terms of section 15C. Before I deal with the specific complaint, it is necessary to relate an exchange between counsel and the Judge which influenced the Judge not to give a direction pursuant to section 15C.

38The Judge, prior to final addresses and prior to the summing up, raised with counsel the issue of section 15C. Counsel for the appellant, who is not counsel on the appeal, ultimately submitted to the trial Judge that he did not request the Judge to give a direction to the jury in accordance with section 15C. That submission was made after a lengthy discussion between counsel and the Judge on the issue.

39Defence counsel did not give any reason why he considered that the Judge should not give a direction. It may have been that counsel did not consider that the evidence raised a section 15C question; it may have been a decision made for tactical reasons, as defence counsel might have been concerned that the jury would become confused, having heard a direction on the one hand that the prosecution has the onus of proof beyond reasonable doubt to establish that the appellant did not act for a defensive purpose but, if section 15C applied, then there is an onus upon the accused to establish the matters the subject of section 15C. If they accepted the defence version, the jury was not required to consider proportionality. If they were not so satisfied, they then had to consider whether the prosecution had proved beyond reasonable doubt the defensive conduct was disproportionate to the threat or violence of the victim. The directions are complex and difficult, and could lead to the jury focussing on the conduct of the appellant in a way which defence counsel might have considered was to the detriment of the appellant. In any event, for whatever reason, counsel specifically did not request a section 15C direction.

40That, however, does not relieve a trial Judge from having to give such a direction if the evidence raises the issue.  A trial judge has a duty to direct the jury both as to the law and the possible use of relevant facts on any matter upon which the jury could, in the circumstances of the case on the material before them, find or base a verdict in whole or in part.[4]  A judge is not relieved of that duty if both counsel do not seek a direction, or even if counsel for the accused requests the judge not to direct the jury in respect of a possible defence.  In Pemble v The Queen, Barwick CJ said:[5]

Here, counsel for the defence did not merely not rely on the matters now sought to be raised;  he abandoned them and expressly confined the defence to the matters he did raise.  However, in my opinion this course did not relieve the trial judge of the duty to put to the jury with adequate assistance any matters on which the jury, upon the evidence, could find for the accused. 

[4]    Pemble v The Queen (1971) 124 CLR 107.

[5]    Pemble v The Queen (1971) 124 CLR 107 at 117-18.

41Menzies J agreed.  He said:[6]

An appeal court is not, of course, concerned to investigate the actual basis upon which a jury has returned its verdict, but the events which I have outlined emphasise that the conduct of a case  by counsel does not impose any limit upon the course which the jury may take and cannot make superfluous a full and accurate direction covering all that must be proved before a verdict of guilty can be returned.

[6]    Pemble v The Queen (1971) 124 CLR 107 at 130.

42Later, he said:[7]

Moreover, counsel for the defence cannot effectively disclaim a defence open to the accused upon the evidence.  The judge must submit that defence to the jury.  Even less can counsel concede a matter of law to the disadvantage of the accused.  The law is always for the judge as counsel for the defence rightly told the jury.

[7]    Pemble v The Queen (1971) 124 CLR 107 at 133.

43Windeyer J agreed with the Chief Justice.  Owen J agreed that, whatever course the appellant’s legal advice took at trial, the Judge was required to leave to the jury a possible defence, even if counsel did positively submit that the direction should not be given.  In Fingleton v The Queen, McHugh J said:[8]

Whatever the offence and however the accused’s case is conducted, the law requires that a judge’s summing up comply with the principles to which I have referred.  A trial judge is bound to put to the jury every lawfully available defence open to the accused on the evidence even if the accused’s counsel has not put that defence and even if counsel has expressly abandoned it. 

[8] (2005) 227 CLR 166 at [83].

44Whatever the reasons for counsel whether they be that counsel considers that the jury might be distracted and not focus adequately on the defence case or that the jury may be confused or for any reason counsel does not ask for a specifically requested direction not to be given that does not relieve the judge of his duty to give it if the evidence calls for it.

45In this case the question for the trial judge was whether the appellant had satisfied the evidential burden required to enliven section 15C. If so, then it became a question for the jury whether they were satisfied, on the balance of probabilities, of the matters required to be proved by the appellant. If they were so satisfied, then they were not required to consider the second limb of self-defence, being proportionality.

46The evidential burden was discussed by the High Court in Braysich v The Queen.[9]  The defendant was prosecuted for creating a false appearance of active trading in a security on the stock exchange.  It is a defence, if it is proved, that the purpose for which the defendant did the act was not, or did not include the purpose of creating a false or misleading appearance of active trading in securities on a stock market.  In other words, the accused is not guilty of the charge if he can prove, on the balance of probabilities, that his purpose in conducting the transactions the subject of the charge was not to create a false and misleading appearance of active trading on the stock market.  For the defence to be left to the jury, there is a threshold question for the trial judge of whether the evidential burden has been satisfied.  If it has, no matter how weak, it is the duty of the trial judge to direct the jury of the law and facts which support the defence.

[9] (2011) 85 ALJR 593.

47French CJ, Crennan and Keifel JJ discussed the approach of the trial judge in the circumstances in which, as in this case, there is an evidential burden and a legal burden on the accused.  They said:[10]

If a trial judge has to consider whether, at the close of the evidence in a criminal trial, a particular defence should be left to the jury, the question which the trial judge will have to ask himself or herself will be:

1.     In a case where the legal burden is on the prosecution and the evidential burden on the accused – is there evidence which, taken at its highest in favour of the accused, could lead a reasonable jury, properly instructed, to have a reasonable doubt that each of the elements of the defence had been negatived?

2.     In a case in which both the legal burden and the evidential burden rest upon the accused – is there evidence which, taken at its highest in favour of the accused, could lead a reasonable jury, properly instructed, to conclude on the balance of probabilities that the defence had been established?

[10] (2011) 85 ALJR 593 at [36]-[37].

It is the latter question which should have been asked in this case at trial.  It can be reframed by reference to s 998(6) into an inquiry whether there was evidence from which a reasonable jury, properly instructed, could find that it was more likely than not that the appellant lacked the proscribed purpose.  Put another way – was there evidence from which the jury could conclude that it was unlikely, in the sense of improbable, that the appellant had the proscribed purpose?

The appellant was not required to produce evidence of his subjective purpose or purposes in order to meet the legal burden of establishing the statutory defence.  The legal burden on him was to prove on the balance of probabilities that he lacked the proscribed purpose.  One way of doing that was to adduce or point to evidence inconsistent with the proposition that he had that purpose.  He did not have to point to evidence of his actual purpose in order to invoke the defence.  Any evidence that could support an inference that the appellant did not have the proscribed purpose was relevant to the statutory defence.  The question whether he had discharged the “evidential burden” was to be answered accordingly.

48Applying the principle to this case, one question that the Judge was required to consider was whether there was evidence which, taken at its highest in favour of the appellant, could lead a reasonable jury, properly instructed, to conclude, on the balance of probabilities, that the appellant genuinely believed the victim to be committing a serious criminal trespass in a place of residence.

49Counsel for the DPP correctly submits that the appellant had the onus, on the balance of probabilities, to establish his state of mind.  The appellant gave no direct evidence of his state of mind.  Counsel conceded that, if there is evidence from which it can be inferred that a defendant had the requisite belief, that could be sufficient.  Counsel argues that, if a defendant does not turn their mind to whether or not someone is a home invader, they cannot rely on the defence.

50In my view, Parliament cannot have intended the section to operate only in circumstances in which a defendant gives evidence that he actually turned his mind to the question of whether a person was a home invader and whether, in defending himself, he was doing so with a genuine belief that the person was committing a home invasion. That submission would lead to the result that, if a defendant does not give evidence, and there is some evidence from which it could be inferred that he had the requisite belief, the judge must direct the jury in respect of section 15C. But if he gives evidence and is silent about his belief, then the judge is not required to direct the jury, even if there is evidence from which such reasonable belief could be inferred. Counsel for the DPP accepts that, even if the defendant, when giving evidence, is silent as to his belief, but it can be inferred that he was defending himself against an attacker who was breaking into his house, then the evidentiary onus would be satisfied.

51Counsel for the DPP submits that, in this case, the appellant gave evidence that his motive for going outside the house was to protect Tolcher, as he and she were scared for their safety.  He referred to the appellant’s evidence that he grabbed the Samurai sword intending to assist Tolcher.  Counsel submits that the appellant’s motive was not to defend himself against a home invasion, but to assist his partner who was outside the house.

52Counsel submits that, on the appellant’s account, he was striking out at Hennigs because Hennigs was armed with a broken bottle, and he was not striking out at Hennigs because he believed he was a home invader.  Counsel submits that the appellant’s state of mind was, “I am acting in self-defence against a man with a bottle”.  His state of mind was not, “I am acting in self-defence against a man who has a bottle and because he is a home invader”.  He submits that there is insufficient evidence from which it can be inferred that the appellant had an honest and genuine belief that his action was against a home invader. 

53That submission is to be rejected. A consideration of section 15C by the jury only becomes relevant once the jury is satisfied or considers it a reasonable possibility that the accused genuinely believed it was necessary and reasonable to defend himself or another. Once that is the position, section 15C comes into play if it can be inferred that the accused genuinely believed the victim to be committing a home invasion. If, in the course of his evidence, he is silent about that aspect of his belief and no questions are asked of him, and the evidence is capable of supporting the inference that he was acting both in self-defence and in the belief that the person was a home invader, then it becomes a question for the jury.

54In reality, when people act on the spur of the moment, as occurs with self-defence, it is virtually impossible to dissect their state if mind and compartmentalise it.  The reality is that a person acting in self-defence may be doing so for a number of reasons, including that they were defending themselves or another, and including that they were defending their home.  Ultimately, it is a question for the jury.  In my view, in this case, there was evidence upon which a jury could conclude that the appellant was acting both in self-defence and with a belief that the victim was invading his home.

55On the defence case, taken at its highest, the appellant was confronted by Hennigs, who was armed with a bottle. Hennigs had previously thrown a wheelie bin at the window of the house, after it had been made clear to him that the appellant did not want him on the premises. Hennigs refused to leave and was attempting to break the front door. The appellant opened the door after his girlfriend, Tolcher, had been dragged through the window. Hennigs confronted the appellant with a bottle and entered the house. Hennigs was, therefore, committing a home invasion. It could be inferred that the appellant acted to defend himself and Tolcher, and also in the belief that his home was being invaded. From that point, it becomes a matter for the jury, and a direction in accordance with section 15C should have been given. The failure to do so is an error of law.

The right of silence – Grounds 3 and 4

56In his opening address, the prosecutor stated that, after the appellant was arrested that, on legal advice, he did not answer questions.  The prosecutor told the jury that the appellant was so entitled.  During the trial, a police officer gave evidence that the appellant had obtained legal advice and, based on that advice, the appellant had declined to answer questions.  There was no objection to that evidence being led.  In summing up, the trial Judge directed the jury that the appellant had been arrested, that he had received advice and had exercised his legal rights as he was perfectly entitled to do.  The trial Judge stated:

That brings me there to Detective Sergeant Ashlee Bridge and all I need to remind you about there is that she became the investigating officer at 7 a.m. the next morning.  Just after 8 a.m. she went to the house, knocked and looked around, could not raise anyone.  Later that morning she returned as a result of a phone call.  She arrested the accused, and he received legal advice and exercised his legal rights as he was perfectly entitled to do.  She photographed the injuries to his elbow and the back of his right hand.

57The appellant submits that the evidence led by the prosecution that the appellant had chosen to exercise his right to silence and not answer police questions was inadmissible and irrelevant and should not have been before the jury.  It is submitted that there was a danger that the jury would conclude that the appellant had declined to answer questions because he was guilty.

58In Petty v The Queen, the trial judge directed the jury:[11]

If Maiden had remained silent, if he had said nothing but not guilty, if he had not made a statement to the police in his record of interview, if he had not made a statement here in court right up to the moment when you bring back your verdict, you would be directed that no inference or conclusion of guilt can be drawn from that silence.

I direct you, therefore, that you are not permitted to draw any inference or conclusion of guilt from Maiden’s failure to raise this explanation that Mark White’s death was an accident at some earlier stage.  But that does not mean that, as Maiden has chosen not to remain silent and as he did offer at least one version of what happened when he made his record of interview on 15 February, you cannot take into account in judging the weight to be given to this explanation now put forward so late his failure to put it forward either at the time of his record of interview or during the committal proceedings, at least when James Crawley was giving evidence to which such an explanation was directly relevant or at some later time, but at any event in time for the Crown to investigate it fully.  It is a matter for you, members of the jury, what weight you give to this explanation now put forward by Maiden that this was all an accident.

[11] (1991) 173 CLR 95 at 103-104.

59Mason CJ, Deane, Toohey and McHugh JJ said:[12]

A person who believes on reasonable grounds that he or she is suspected of having been a party to an offence is entitled to remain silent when questioned or asked to supply information by any person in authority about the occurrence of an offence, the identity of the participants and the roles which they played.  That is a fundamental rule of the common law which, subject to some specific statutory modifications, is applied in the administration of the criminal law in this country.  An incident of that right of silence is that no adverse inference can be drawn against an accused person by reason of his or her failure to answer such questions or to provide such information.  To draw such an adverse inference would be to erode the right of silence or to render it valueless.

[12] (1991) 173 CLR 95 at 99

60Their Honours observed that the right of silence means that it must not be suggested that an accused’s exercise of the right of silence may provide a basis for inferring a consciousness of guilt.  The Court said:[13]

Thus, to take an example, the Crown should not lead evidence that, when charged, the accused made no reply.  Nor should it be suggested that previous silence about a defence raised at the trial provides a basis for inferring that the defence is a new invention or is rendered suspect or unacceptable. 

[13] (1991) 173 CLR 95 at 99.

61They said:[14]

If all that had been involved in the present case had been the exercise by Maiden of the right to remain silent, it would be clear that that evidence was inadmissible to establish that it had not been suggested, in cross-examination of the witness James Crawley on the committal hearing, that Maiden had previously told him that the killing of the deceased, Mark White, had been accidental.

[14] (1991) 173 CLR 95 at 101.

62Dawson J said:[15]

The right to silence is a convenient, if somewhat imprecise, expression, which conveys the traditional objection of the common law to any form of compulsory interrogation.  It embraces the absence of any obligation on the part of a person suspected of having committed a crime to answer questions by the police or other persons in authority.  The exercise of the right to silence cannot, of itself, amount to an admission of any kind or reflect a guilty conscience, and a trial judge should so instruct a jury where an accused has chosen not to answer questions whether at or before the trial.  The trial judge should tell the jury that the accused was quite entitled to remain silent and that they should not infer guilt from the fact that he exercised his right to do so.

[15] (1991) 173 CLR 95 at 118.

63Gaudron J put the position as follows:[16]

Although ordinary experience allows that an inference may be drawn to the effect that an explanation is false simply because it was not given when an earlier opportunity arose, that reasoning process has no place in a criminal trial.  It is fundamental to our system of criminal justice that it is for the prosecution to establish guilt beyond reasonable doubt.  The corollary of that – and it is equally fundamental – is that, insanity and statutory exceptions apart, it is never for an accused person to prove his innocence.  Therein lies an important aspect of the right to silence, which right also encompasses the privilege against incrimination.

[16] (1991) 173 CLR 95 at 128-129.

64In this case, there was no objection by counsel to the evidence being led.  The failure of the Judge to exclude it is not, of itself, good reason to overturn the conviction.  The failure could have been cured by a direction.  The evidence, having been admitted, the Judge should have directed the jury in clear terms that no inference of guilt can be drawn from the fact that the appellant had exercised his right not to answer questions.

65In R v Heness,[17] Mr Heness had answered some questions, but had not told police certain matters.  His evidence at trial was inconsistent with what he had said to the police.  Doyle CJ, with whom Bleby and Kelly JJ agreed, said:[18]

The Judge did not tell the jury that Mr Heness was under no obligation to answer questions by the police.  Nor did he refer to the circumstances in which Mr Heness found himself, and the way in which they might have caused him to fail to respond more fully to the police questions.

Nor did the Judge make the point that no inference adverse to Mr Heness should be drawn from the circumstance that he first raised the threats at trial.  The prosecutor made no direct submission to that effect, but in my opinion it is implicit in her submission to the jury that they could and should treat as significant the fact that this matter was first raised at trial.

[17] [2009] SASC 243.

[18] [2009] SASC 243 at [110]-[111].

66The appeal was dismissed, as the Court was satisfied that the jury would inevitably have reached the same verdict.  The Court considered that there had been no substantial miscarriage of justice. 

67In the present case, the Judge directed the jury that the appellant received legal advice and exercised his legal rights as he was perfectly entitled to do when he did not answer questions.  The Judge did not direct the jury that they could draw no inference or, alternatively, they could not infer guilt from the decision by the accused not to answer questions.  The jury should have been directed not only that the accused was under no obligation to speak to the police, but that no adverse inference can be drawn from the exercise of that right. 

68In Azzopardi v The Queen, Gaudron, Gummow, Kirby and Hayne JJ said: [19]

In the course of argument of the present matters it was suggested that if a judge said nothing to the jury about the fact that an accused had not given evidence, the jury may use the accused’s silence in court to his or her detriment.  Plainly that is so.  It follows that if an accused does not give evidence at trial it will almost always be desirable for the judge to warn the jury that the accused’s silence in court is not evidence against the accused, does not constitute an admission by the accused, may not be used to fill gaps in the evidence tendered by the prosecution, and may not be used as a make-weight in assessing whether the prosecution has proved its case beyond reasonable doubt.  It by no means follows, however, that the judge should go on to comment on the way in which the jury might use the fact that the accused did not give evidence.

(Underlining is mine)

[19] (2001) 205 CLR 50 at [51].

69It is submitted by counsel for the Director that, in this case, there was no risk of a miscarriage of justice.  The fact that the direction did not go far enough, it is argued, has not resulted in a miscarriage of justice in this case, as the Judge highlighted that the appellant’s decision not to answer questions was his legal right and had been exercised upon legal advice.  In those circumstances, it is said it would hardly be likely that a jury would have drawn an adverse inference from the exercise of a legal right that his lawyer had advised the appellant to exercise. 

70I do not agree.  In my view, if evidence that an accused did not answer questions is led, then a direction simply that he exercised his right not to answer questions is not sufficient.  It must be made clear to a jury that they can draw no inference from his decision not to answer questions.  In this case, the problem was exacerbated because there was a direction to the jury relating to the appellant’s flight.  The Judge directed the jury that they could consider the appellant’s actions after the altercation in leaving the scene as evidence of consciousness of guilt.  In those circumstances, in my view, it was essential for the Judge to direct the jury that they could draw no inference from the appellant’s decision not to answer questions.

71On that ground alone, I would allow the appeal.

The direction relating to serious harm

72The appellant complains that the trial Judge’s directions were inadequate and misleading in that he failed to explain to the jury that, at the time of inflicting serious bodily harm, the appellant must have intended to inflict serious bodily harm.  As I understand the argument, counsel for the appellant contends that the trial Judge failed to distinguish between his direction on the meaning of serious harm and the requirements that the appellant must intend to do serious harm.

73The trial Judge provided a written aide memoir to the jury.  The aide memoir was in the following terms:

Aggravated Causing Serious Harm with Intent to Cause Serious Harm

There are 4 elements to this offence.

1.That the accused caused serious harm to Mr Hennigs by a deliberate act.

2.That the accused acted unlawfully.

3.That at the time of inflicting serious harm the accused intended to inflict serious harm.

4.That the accused used a weapon namely a Samurai Sword.

“Serious harm” means:

(a)     harm that endangers a person’s life; or

(b)     harm that consists of or results in serious and protracted impairment of a physical or mental function; or

(c)     harm that consists of or results in serious disfigurement.[20]

[20]   Criminal Law Consolidation Act 1935 (SA) s 21.

74In his oral direction, when directing the jury about the elements of the charge, the trial Judge referred to the aide memoir and said:

The first, which I will read out, that the accused caused serious harm to Mr Hennigs by a deliberate act.

The second element is that the accused acted unlawfully.

The third, that at the time of inflicting serious harm the accused intended to inflict serious harm.

The fourth element, that the accused used a weapon, namely a Samurai sword.

In italic print on your document is a definition of the term ‘serious harm’.  Serious harm means (a) harm that endangers a person’s life, or (b) harm that consists of or results in serious and protracted impairment of a physical or mental function, or (c) harm that consists of or results in serious disfigurement.

It might be easier if we deal with that aspect before we go further in the document.  There is no dispute on the evidence before you about the fact that Mr Hennigs suffered a severe injury to his hand and that such an injury does amount to serious harm.  It has not been argued to you by anyone that the injury to his hand was not serious.  So, although it is an element of the offence that you must be satisfied about beyond reasonable doubt I would suggest that that particular element should not cause you much difficulty in terms of the serious harm.

75Counsel submits that, in directing the jury that the element of the offence involving serious harm should not cause the jury much difficulty, the Judge had included both the definition of serious harm and the intent to cause serious harm thereby misdirecting the jury.  In my view, the submission must fail.

76Later in the summing up, the trial Judge dealt in more detail with each element of the offence.  He directed the jury that the prosecution must prove that the accused had an intention in his mind to cause serious harm at the time that the serious harm was caused.  He directed the jury that the defence case is that the specific intention required has not been proved.  The jury could have been in no doubt that the appellant’s intention was an issue, and that the Judge had not directed them that they should have little difficulty with that element.  The Judge’s direction made it clear that the jury might not have difficulty in concluding serious harm had resulted from the act or acts of the appellant, but he did not suggest that to be the case in respect of the intention of the appellant.

77I pause to observe that neither counsel for the prosecution nor counsel for the defence considered that the direction was inadequate or misleading.  In my view, this ground of appeal has no merit. 

Conclusion

78I would allow the appeal, set aside the conviction and remit the matter to the District Court for a retrial.

79WHITE J.       The appeal in this case raises two issues: 

(1)whether the trial Judge’s directions concerning self-defence were deficient because of his failure to direct the jury in terms of s 15C of the Criminal Law Consolidation Act 1935 (SA) (CLCA);

(2)whether a miscarriage of justice occurred by reason of the prosecution having led evidence that the appellant had, when arrested, declined to answer police questions and, further, by reason of the absence of any direction to the jury that they should not draw any inference adverse to the appellant because of his exercise of the right to silence.

80I agree that both these issues should be resolved in the appellant’s favour and, accordingly, that the appeal should be allowed.  I do not wish to add to the reasons of Sulan J in relation to the second issue, but wish to state my own reasons on the first.

81The appellant also seeks permission to appeal in respect of the trial Judge’s directions concerning serious harm.  I would refuse that permission.  I agree with the reasons of Sulan J on that issue.

Self-Defence and Home Invasion

82Before identifying the issues to which the appellant’s submissions concerning this ground give rise, it is appropriate to refer to relevant aspects of the statutory scheme concerning self-defence.

83Section 15(1) and (2) and s 15A(1) of the CLCA are the primary self‑defence provisions. Section 15 is concerned with defence of oneself and defence of another, whereas s 15A is concerned with defence of property. Section 15 provides (relevantly):

(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 exist1.

(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.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.

…

(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.

Section 15A(1) provides:

(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 exist1.

84There are two elements of the defence established by s 15(1) and s 15A: a genuine belief by the defendant that the conduct to which the charge relates is necessary and reasonable for a defensive purpose (a genuine belief), and reasonable proportionality between the defendant’s conduct, and the threat which the defendant believed to exist (reasonable proportionality). The former involves a subjective test, and the latter an objective test.[21] 

[21]   Police v Lloyd (1998) 72 SASR 271.

85Sub-section (3) of s 15 defines a “defensive purpose”. It is self‑defence or defence of another which is pertinent for present purposes.

86Sub-section (5) casts the onus of disproving a defence of self‑defence (when it is raised) on the prosecution.

87Section 15C qualifies the operation of s 15(1) and (2) (and, for that matter, s 15A(1) and (2)). It provides:

(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.

…

The expression “relevant defence” is defined in sub-s (3) to mean a defence under s 15(1) or s 15A(1) and “home invasion” is defined to mean “a serious criminal trespass committed in a place of residence”.

88Thus, in a case to which s 15C applies, the defendant will still have a defence of self‑defence even if the defendant’s conduct was not reasonably proportionate to the perceived threat, provided that the defendant establishes on the balance of probabilities each of the circumstances listed in sub-pars 2(a)-(c). I will refer to this as the home invasion defence.

89The submissions in the present case focussed on sub-par (a), as the Director conceded that there was at least some evidence on which it would have been open to the jury to find the existence of the circumstances mentioned in sub‑pars (b) and (c). In what follows I will make no further reference to sub-pars (b) and (c), without of course intending thereby to imply that they are matters which may be disregarded in the application of s 15C.

90Unlike ss 15 and 15A, s 15C(2) places the onus on the defendant to establish, on the balance of probabilities, the circumstances to which it refers.

91This means that, in a case like the present, the defendant must establish that he or she had a genuine belief that the victim was committing, or had just committed, a home invasion in the defined sense.  On one view, the expression “genuine belief” involves a tautology.[22]  A “belief” is by definition that which is believed, being “the conviction of the truth or reality of a thing based upon grounds sufficient to afford positive knowledge”.[23] 

[22]   R v Edwards [2009] SASC 233 at [152].

[23]   Macquarie Dictionary.

92It may be that the adjective “genuine” is used as a word of emphasis, that is, to emphasise the importance of the trier of fact examining closely an accused’s assertions about his or her state of mind.  This was the view taken by Debelle J in Police v Lloyd:[24]

[T]he task first required by s 15(1) is to examine the belief of the accused and to determine whether that belief was genuinely held. It is a subjective test in the sense that it is the belief of the accused which must be examined. The Court is not, at this stage, concerned to examine whether a reasonable person would hold that belief. The Court or a jury is, however, required to determine whether it is a reasonable possibility that the accused held that belief. Expressed in terms of what the prosecution had to prove in this case, the question was whether the prosecution had proved beyond reasonable doubt that the respondent did not genuinely believe any of the above three matters. The concept of a genuine belief carries with it the necessity to consider not only what the accused person may say as to his belief but whether, in all the circumstances, that stated belief is genuine …[25]

(Emphasis added)

[24] (1998) 72 SASR 271.

[25] Ibid at 276.

93Some commentators go further and suggest that the use of an adjective such as “genuine” or “honest” in context like the present is to encourage the trier of fact to apply some scepticism when assessing an accused’s belief or state of mind.  Thus, in relation to consent as a defence to rape, Professor Bronitt has said:

[A] further judicial qualification oft incorporated into the direction is the requirement that the accused’s mistake must be “honest and genuine”.  Although the qualification is doctrinally redundant (the defendant is mistaken or simply lying, in which case he is not mistaken), it encourages the jury to apply a sceptical eye to claims of mistaken belief in consent.[26]

(Emphasis added)

[26]   Bronitt, Simon, “The Direction of Rape Law in Australia: Towards a Positive Consent Standard”, (1994) 18 Crim LJ 249 at 252-3.

94In the context of s 15C, notions of scepticism may be inappropriate. However, the requirement that the defendant prove that his or her belief that the victim was committing a home invasion was genuine does seem to indicate that the evidence relied upon should be examined closely.

95The requirement that the defendant’s belief be genuine does not imply any element of reasonableness.  What is necessary is that the defendant, subjectively, had a genuine belief.

96Against that background the issues on the present appeal can be summarised as follows:

(1)does s 15C contemplate the home invasion defence being available only when the defendant’s conduct was, in whole or in part, responsive to the home invasion (or perceived home invasion)?  Put slightly differently, does the defendant have to establish not only a genuine belief that the victim was committing, or had just committed home invasion, but also that he or she was, by the conduct to which the charge relates, defending himself or herself against that invasion?

(2)in a case in which s 15C is possibly raised and in which a defendant does give evidence, is it necessary for that evidence to include a statement of the defendant’s belief about the home invasion?  Related to that is the question of whether, in the absence of such evidence, the defendant may point to any other evidence in the trial from which his or her genuine belief about a home invasion may be inferred?;

(3)did the express disclaimer of reliance on s 15C by senior counsel for the appellant at trial relieve the trial Judge from giving the jury a direction concerning it?

Defence against the Home Invasion?

97Counsel for the Director submitted that s 15C(2) makes it incumbent upon a defendant to establish not just a genuine belief that the victim was a home invader, but also a belief that, by engaging in the conduct which is the subject of the charge, he or she was defending against the home invasion. The submission was that a defendant whose conduct was not motivated by the actual or perceived home invasion, could not rely on the home invasion defence. This had the consequence, so the submission ran, that a defendant wishing to rely upon s 15C(2) had to establish his or her motive for the assault on the victim. The defendant could do this by reference to his or her own evidence, or by reference to other evidence.

98Some support for the construction of s 15C for which the Director submitted can be seen in the Second Reading Speech of the then Attorney‑General on the introduction of the Criminal Law Consolidation (Self-Defence) Amendment Bill into the House of Assembly on 31 March 2003. It was that Bill which led to the introduction of s 15C into the CLCA. The Attorney‑General said:

In order for [s 15C] to apply, the defendant must establish –

·        That he or she was responding to what he or she genuinely believed to be a home invasion …[27]

[27]   House of Assembly Hansard, 31 March 2003, p 2613.

As will be seen, I consider that s 15C does not bear out that understanding of the Attorney‑General.  That may be because s 15C as enacted differs from the form of s 15C in the Bill introduced into the House of Assembly.

99The Director’s submission requires consideration of the inter‑relationship between s 15(1) and (2) and s 15A(1) and (2), on the one hand, and s 15C on the other. It is, however, sufficient for present purposes to consider only s 15(1).

100On a literal reading, it could be said that s 15C requires the defendant to establish the circumstances which indicate that the section is applicable, ie, that the victim of the offence was not a police officer acting in the course of his or her duties, and that self‑defence or defence of property would have been available if the defendant’s conduct satisfied the requirement of reasonable proportionality. However, in my opinion, this is not a sensible construction. It is not readily to be supposed that s 15C is to be understood as requiring a defendant to establish that self‑defence would have been available. If that was so, the defendant would be obliged to prove the elements of the defence of self‑defence which, by ss 15(5) and 15A(4), it is for the prosecution to disprove.

101Further, the notes to both ss 15 and 15A explain the relationship between those provisions and s 15C. As seen earlier, Note 1 in s 15 refers to s 15C and continues:

If the defendant establishes that he or she is entitled to the benefit of that section, this paragraph will be inapplicable.

This suggests that when an defendant establishes a home invasion defence, it is not necessary for the trier of fact to consider ss 15(1)(b) or 15A(1)(c) at all.

102There may be a question as to the regard which may be had to these notes. Section 19(2)(b) of the Acts Interpretation Act 1915 (SA) provides that, in the absence of express words to the contrary, notes in an Act do not form part of the Act. The CLCA does not contain any express provision to the contrary. However, this does not mean that regard may not be had to the notes as extrinsic material providing an aid to statutory construction. See “Statutory Interpretation in Australia”: Pearce and Geddes (7^th Ed) at [4.54]. 

103Note 1 was incorporated into s 15 by s 4(1) of the Criminal Law (Self-Defence) Amendment Act 2003.  This was the same amending Act by which ss 15B and 15C were inserted.  It would be a curious result if a Court could not have regard to notes which Parliament itself had expressly inserted into the Act in an attempt at clarification of the relationship between two provisions. 

104The inter‑relationship between s 15, on the one hand, and s 15C appears therefore to be as follows. It is for the prosecution to exclude as a reasonable possibility that the defendant had a genuine belief that the conduct to which the charge relates was necessary and reasonable for a defensive purpose. If the prosecution does not exclude that possibility then, in a case in which the victim is not a police officer acting in the course of his or her duties, it is for the defendant to establish the circumstances giving rise to the home invasion defence under s 15C(2). If the defendant establishes those matters, then he or she will have a complete defence, ie, the prosecution will not have shown that the conduct was unlawful. However, if the defendant does not satisfy the trier of fact on the balance of probabilities of the home invasion defence, it will then be for the prosecution to exclude as a reasonable possibility that the defendant’s conduct was, in the circumstances as the defendant genuinely believed them to be, reasonably proportionate to the threat which the defendant genuinely believed to exist.

105This suggests that in a trial involving self‑defence in which s 15C may be applicable (and in which there is no suggestion that the victim was a police officer acting in the course of his or her duties), a trial Judge may, as part of the overall directions concerning self-defence, pose the following questions for the assistance of the jury.

106First, has the prosecution proved beyond reasonable doubt that the defendant did not genuinely believe the conduct to which the charge relates to be necessary and reasonable for a defensive purpose?  If that question is answered in the affirmative, self‑defence will have been disproved and the prosecution will have established that the conduct was unlawful.

107However, if the first question is answered in the negative, the next question to be addressed is: has the defendant proved on the balance of probabilities each of the circumstances specified in sub‑pars (a)-(c) in s 15C(2)? If that question is resolved in the affirmative, then self‑defence is available and the prosecution will have failed to prove that the conduct of the defendant was unlawful.

108However, if the second question is resolved in the negative, the question under s 15(1)(b) must be addressed, namely, has the prosecution proved beyond reasonable doubt that the conduct was not, in the circumstances as the defendant genuinely believed them to be, reasonably proportionate to the threat which the defendant genuinely believed to exist? If that question is answered in the affirmative, then self‑defence will have been disproved and the prosecution will have proved that the conduct was unlawful. However, if the third question is answered in the negative, then self‑defence is available as a defence and the prosecution will have failed to prove that the conduct of the defendant was unlawful.

109On this understanding of the inter-relationship between the two provisions, there is, in my opinion, no reason for the implication of a further requirement concerning the purpose or motive for the defendant’s conduct in relation to the home invasion defence.  On the contrary, a number of matters indicate that such an implication would be inappropriate.

110In the first place, s 15C(2) does not make the purpose or motive of the defendant one of the matters which he or she must prove. The criterion upon which s 15C(2)(a) operates is the belief of the defendant about the conduct in which the victim is, or has been, engaging, and not the purpose of the defendant’s conduct in relation to that victim.

111Secondly, the effect of s 15(1)(a) (and the counterpart provisions in ss 15(2) and 15A) is to put the onus of proof concerning a defendant’s state of mind insofar as it concerns purpose on the prosecution. It is for the prosecution to prove beyond reasonable doubt that a defendant did not genuinely believe that the conduct in question was necessary and reasonable for a defensive purpose. That being so, it is not readily to be supposed that s 15C(2) is to be understood as imposing upon a defendant the onus of establishing positively matters concerning his or her purpose or motive. Such an obligation, if it did exist, would undermine seriously the burden of proof imposed on the prosecution under s 15(1)(a).

112Thirdly, in the context of cases to which s 15 applies, it is sub-s (3) which defines a “defensive purpose”. It is that conduct which is to be considered in the context of s 15C. The defensive purpose to which s 15(3) refers should not be circumscribed by having super-imposed on it, in cases to which s 15C applies, an additional requirement that the defendant’s conduct be for the purpose of resisting a home invasion.

113For these reasons, I do not accept the Director’s submissions concerning this aspect of s 15C. In my opinion, the proper application of s 15C does not require an defendant to establish, in addition to a genuine belief that the victim was committing, or had just committed, a home invasion, that his or her purpose was to defend himself or herself (or another) against that invasion.

Evidence of a Belief of Home Invasion

114The circumstances in which a trial Judge should leave a statutory defence to a jury were discussed by the High Court in Braysich v The Queen[28] and should be regarded as settled.  In considering whether a defence should be left to the jury, the trial Judge should take the evidence at its most favourable to the defendant.[29]  If it would be open to the jury on that view of the evidence to find the defence made out, the defence should be left.  Thus, in Braysich, the majority said:

If a trial judge has to consider whether, at the close of the evidence in a criminal trial, a particular defence should be left to the jury, the question which the trial judge will have to ask himself or herself will be:

…

2.In a case in which both the legal burden and the evidential burden rest upon the defendant – is there evidence which, taken at its highest in favour of the defendant, could lead a reasonable jury, properly instructed, to conclude on the balance of probabilities that the defence had been established?[30]

[28] [2011] HCA 14; (2011) 85 ALJR 593.

[29] Ibid at [17]; 600.

[30] Ibid at [36], 605.

115In answering this question, the trial Judge must consider all the evidence, and not just the defendant’s, concerning his or her state of mind.  A defendant is entitled to “point to any evidence, his own and/or that of other witnesses, which, as a matter of logic or human experience”[31] may establish the defence.

[31] Ibid at [22]; 601. See also [37]; 605.

116The circumstances surrounding the appellant’s conduct are set out in the reasons of Sulan J.  Although there are a number of differences in the witnesses’ accounts, they did have some elements in common which are relevant for present purposes.

117The appellant had indicated, in perhaps an antagonistic way, that the drinking party (with the possible exception of Ms Tolcher) was no longer welcome in his house.  He removed their belongings from the house (other than those of Ms Tolcher), told them to leave and took positive steps to preclude their re-entry.  The drinking party remained in the yard of the home and engaged in conduct which, on one view, could be construed as an attempt to re-enter the house.  This included the victim, Mr Hennigs, kicking at the door and throwing a wheelie bin (and perhaps some bottles) against a window.  At one stage the appellant opened the door.  The victim then moved towards him and the two men entered the house.  It was while they were in the house, or immediately after their exit, that the appellant’s assault on the victim occurred.

118On one view, the victim’s entry into the house was a mere incident in the course of a more prolonged altercation, and so could be said to be quite different from the more typical serious criminal trespass in a place of residence.  However, as noted earlier, the determination of whether a statutory defence should be left should be made by reference to the evidence at its highest.  On the appellant’s evidence, Mr Hennigs had entered the house after it had been made clear to him that his permission to do so had been withdrawn, and in circumstances in which it could be possibly be inferred that he had the intention of committing an offence,[32] for example, the offence of assault.

[32]   See the definition of “serious criminal trespass” in s 168(1) of the CLCA.

119Accordingly, there was evidence which, taken at its highest, could have satisfied the jury on the balance of probabilities that the appellant genuinely believed Mr Hennigs to be committing, or to have just committed, a home invasion.  It is true that the appellant did not refer expressly to any belief on his part that Mr Hennigs was committing a home invasion.  That however was a matter to be taken into account by the jury when considering, on the evidence, whether the appellant did have a genuine belief that Mr Hennigs was committing, or had just committed, home invasion.

120As noted earlier, the prosecution conceded that there was also evidence which, taken at its highest, could have satisfied the jury, on the balance of probabilities, of the existence of the circumstances referred to in s 15C(2)(b) and (c).

121This means that, subject to the point to be next considered, the Judge should have instructed the jury in terms of s 15C.

The Disclaimer of s 15C by Trial Counsel

122The trial Judge raised with counsel whether a direction should be given in terms of s 15C. After some discussion, senior counsel for the appellant indicated that he would consider the position during the overnight adjournment. On the following morning, senior counsel informed the trial Judge that the appellant did not wish to rely upon s 15C.

123This decision of counsel accorded with the Judge’s own views.

124The reasons for the disclaimer by senior counsel are not known. It appears, however, to have been a considered forensic decision. It is possible that counsel did not wish himself to address the jury, and did not wish the Judge to direct the jury, concerning the application of s 15C(2)(b). That sub-paragraph required the appellant to establish on the balance of probabilities that he was not, at or before the time of the assault on Mr Hennigs, engaged in any criminal misconduct which may have given rise to the threat, or perceived threat, from Mr Hennigs. Such a direction may have brought into direct focus the evidence concerning the appellant’s conduct in relation to Ms Tolcher, something counsel may have wished to avoid.

125However, at least since Pemble v The Queen,[33] trial judges have been bound to put to the jury every lawful available defence which is open on the evidence, even when the accused’s counsel not only does not raise that defence, but expressly disclaims reliance upon it.[34]

[33] (1971) 124 CLR 107.

[34]   See also Fingleton v The Queen [2005] HCA 34 at [83]; (2005) 227 CLR 166 at 198-99; Gipp v The Queen [1998] HCA 21 at [53]; (1998) 194 CLR 106 at 124; Murray v The Queen [2002] HCA 26 at [78]; (2002) 211 CLR 193 at 219; CTM v The Queen [2008] HCA 25 at [84], [112]-[119]; (2008) 236 CLR 440 at 468, 475-76.

126Pemble, and most of the cases which have followed it, concern circumstances in which the onus of proof rested wholly upon the prosecution.  That is not the present case.  It is possible that, in cases in which it is the accused who has the onus, there is greater scope for an accused to be bound by the forensic choices made by his or her counsel.  That is particularly so if the directions of the trial Judge on the elements necessary to satisfy that onus will have the effect of pointing up difficulties in the accused’s principal defence at trial.  The trial Judge’s directions may, for example, have the indirect effect of highlighting for the jury an absence of evidence from the accused himself or herself as to critical matters going to the availability of the defence of self‑defence altogether.

127A jury may well wonder why the Judge is directing them about a possible defence which the accused has not raised before at all.  However, in this respect, the observation of Kirby J in C, TM v The Queen[35] is pertinent:

If necessary and appropriate, the Judge could inform the jury that he or she was instructing them in that way because he or she was obliged by law to explain to them all of the legal principles necessary to ensure a fair and accurate trial of the accused.  If the jury were told that this course sometimes becomes necessary because counsel may overlook legal defence or because counsel might elect not to argue a point, they would understand.  The Judge’s duty transcends that of counsel.[36]

[35] [2008] HCA 25; (2008) 236 CLR 440.

[36] Ibid at [84]; at 468.

128Accordingly, senior counsel’s disclaimer of s 15C at trial, does not preclude the appellant now relying on appeal on the absence of direction concerning it.

Conclusion

129For these reasons, I agree that the appeal should be allowed, the conviction set aside, and the matter remitted to the District Court for retrial.

130PEEK J.           I would allow the appeal. I agree with the reasons of both Sulan J and White J, which I consider are consistent with each other. I add in relation to s 15C Criminal Law Consolidation Act 1935, perhaps unnecessarily, the following brief observations.

131I respectfully agree that the questions that White J formulates and suggests may assist the jury in a trial involving s 15C are entirely accurate as a matter of law. However, I do not believe that his Honour would suggest that it will be sufficient that such formulations be simply read to the jury, the jurors then being left to make of them what they will.

132It is perhaps useful to recall that in the present case (as in so many others) experienced lawyers have presented forceful argument for diametrically opposing interpretations of formulation, in this case a statute.  Here, the Court has been able to come to a unanimous conclusion as to the correct interpretation but that is not to gainsay the fact that the opposing view had force and was argued with considerable persuasion by Mr Kimber SC.  Such is sufficient to demonstrate the danger that individual jurors, just as much as lawyers, may interpret a given formulation in significantly different ways; they are therefore entitled to adequate assistance in interpreting such formulation in what the law declares to be the correct way.

133Indeed, the matter of divining, and then explaining, the precise content of the “defence”[37] of self defence has historically presented continuing difficulties. Aspects of the common law in this area obviously underwent numerous and significant changes over hundreds of years and it is actually rather difficult to state in a few sentences precisely what the common law as to self defence was (particularly in relation to such matters as the precise balance between objective and subjective intent; “proportionality” etc), either in the United Kingdon or in South Australia, prior to the enactment of s 15 Criminal Law Consolidation Act 1935.  Suffice it to say, there have been a number of differing regimes in Australia which, over the last fifty years or so, could be divided very roughly into the periods from R v Howe[38] up to Palmer v The Queen,[39] from Palmer to Viro v The Queen,[40] from Viro to Zecevic v Director of Public Prosecutions (Vic),[41] from Zecevic to the first iteration of s 15; from the first iteration of s 15 to the second major iteration of s 15; and thence to the present.

[37]   I use the term in a broad and perhaps inexact way; cf Zecevic v Director of Public Prosecutions (Vic) (1987) 162 CLR 645, 657 (Wilson, Dawson and Toohey JJ).

[38] (1958) 100 CLR 448.

[39] [1971] AC 814. Palmer v The Queen prescribed a test with a high degree of objective content and was applied in Australia, despite the earlier contrary decision of the High Court in R v Howe (1958) 100 CLR 448, until the decision in Viro v The Queen (1978) 141 CLR 88. In the UK, a trend away from the approach in Palmer v The Queen [1971] AC 814 and towards a more subjective approach was to be observed by at least the time of such cases as Beckford v The Queen (1987) 85 CAR 378 and R v Oatridge (1992) 94 CAR 367 (and perhaps earlier – see the interesting earlier “hybrid decision in R v Shannon (1980) 71 CAR 192)

[40] (1978) 141 CLR 88.

[41] (1987) 162 CLR 645.

134One cannot help noticing that a number of regime changes have been seen to be associated with difficulties in exposition of the law to juries.  Thus in Zecevic v Director of Public Prosecutions (Vic), Mason J observed:[42]

… It is interesting to observe that the Judicial Committee in Palmer, well in advance of the Viro formulation, described the Howe doctrine as “requiring a jury to go through a complicated and difficult process”.  Obviously this evaluation of Howe played a decisive part in its rejection because Lord Morris went on to speak of the version of the defence vindicated in Palmer as “one which can be and will be readily understood by any jury”, as “a straightforward conception”, involving “no abstruse legal thought”.

I still believe that the doctrine enunciated in Howe and Viro expresses a concept of self-defence which best accords with acceptable standards of culpability, so that an accused whose only error is that he lacks reasonable grounds for his belief that the degree of force used was necessary for his self-defence is guilty of manslaughter, not murder.  But in the light of experience since Viro, which is in my view not wholly to be accounted for by the complexity of the summary formulation at the end of my judgment, I recognize that the doctrine imposes an onerous burden on trial judges and juries.  In this respect I take note of the fact that in this case Wilson, Brennan, Dawson and Toohey JJ have concluded that the doctrine of self-defence enunciated in Howe creates difficult problems for trial judges and juries.  For this reason there is a serious risk that the doctrine will not achieve its desired goal.

(Footnotes omitted)

[42] (1987) 162 CLR 645, 653.

135However, it is the following statement by Deane J in Zecevic that best captures the essence of the point I seek to make:[43]

Law cannot exist in a vacuum and the elucidation of legal principle must inevitably, if it is to be related to reality, proceed by way of factual analogy and illustration.  The processes of such legal reasoning do not however transform factual argument into legal principle or require that factual considerations and illustrations be subsequently treated as legal propositions which limit and control a jury in applying its own standards and reaching its own conclusions in relation to the factual issues which the law entrusts to its decision.  The effective discharge of that subservient judicial function also requires that legal principles governing criminal liability which are developed by appellate courts be capable of effective oral exposition and that summary statements of such legal principles in judgments which are framed on the basis that they will be read by lawyers are not mistakenly seen as rendering unnecessary the framing of oral directions to a jury in words which can be readily understood by an ordinary juror.

The formulation in Viro v The Queen, of a summary statement of the task of the jury in deciding an issue of self-defence on a murder trial was intended to provide a concise statement of principle to which reference could be made by a trial judge in framing, in language suitable for a jury, legal directions appropriate to enable the jury correctly to identify and comprehend the real questions of fact which must be resolved in deciding such an issue in a particular case.  The concurrence of a majority of the Court in that formulation and the inherent complexity of some of the notions which it encapsulated made it perhaps inevitable that it would be seen by some trial judges as providing a convenient and safe set of directions to be given verbatim to a jury in any such case.  The use of the formulation in that way creates a situation in which an ordinary juror must experience extreme difficulty in comprehending the process which he and his fellow jurors are being instructed to follow in determining an issue of self-defence.  In part, that difficulty is the predictable result of the use for the purpose of giving oral directions to a jury of a formulation which was framed to be read by lawyers.

(Emphasis added)

[43] (1987) 162 CLR 645, 670-671.

136With great respect I would wish to endorse that passage. With equal respect, the great value of the judgment of White J in the present case is in its precision and exactitude of analysis; I simply wish to emphasise that the formulated questions delineate only the beginning of the task of the trial Judge. That task includes directing the jury as to the s 15C defence in the context of the facts of the particular case, the needs of the particular jury and, quite often, in the context of other defences to be considered quite apart from that arising under s 15C. It is important that directions be given that effectually convey the concepts and requirements encapsulated in his Honour’s formulated questions in a way that the jury can readily understand in often complicated circumstances. At the risk of repetition, a slavish rendition of the very words suggested in a formulation may not be the most efficacious way of accomplishing that goal; according to the circumstances, considerably more may be needed by way of explanation and assistance.