R v Wheeler - [2004] SASC 397

SUPREME COURT OF SOUTH AUSTRALIA
(Court of Criminal Appeal)
R v WHEELER
Reasons for Decision of The Court of Criminal Appeal
(The Honourable Justice Perry, The Honourable Justice Duggan and The Honourable Justice Bleby)
2 December 2004
CRIMINAL LAW - APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION - APPEAL AND NEW TRIAL
CRIMINAL LAW - GENERAL MATTERS - CRIMINAL LIABILITY AND CAPACITY - DEFENCE MATTERS - SELF-DEFENCE AND OTHER FORMS OF DEFENCE - PARTICULAR CASES
The appellant, a 20 year old man, appealed against his conviction following a trial in the Supreme Court on a charge of wounding with intent to do grievous bodily harm - the victim followed the appellant to his home after an argument between them at a hotel, whereupon he committed a drunken assault on the appellant - the appellant retaliated by stabbing the victim in the abdomen with a knife - the central issue at the trial was self-defence - medical evidence called by the appellant was to the effect that his psychological functioning was at the level of a 14 year old - held that the trial judge failed in the course of his directions to the jury on the issue of self-defence, to give sufficient guidance as to how the jury should take into account the medical evidence in determining the subjective reasonableness of the appellant's response to the victim's attack - observations as to the need to relate directions on the law to the evidence - further observations as to the undesirability of directions to the jury to "determine where the truth lies" and as to the trial judge's failure to direct as to how the jury should take into account the victim's consumption of alcohol - appeal allowed - order for new trial.
Criminal Law Consolidation Act 1935 s 15, referred to.
R v Perks (1986) 43 SASR 112; Alford v Magee (1952) 85 CLR 437; R v Mogg (2000) 112 A Crim R 417; R v Curtis (1991) 55 A Crim R 209; Bedi v R (1993) 61 SASR 269; R v Calides (1983) 34 SASR 355; The Queen v Jackson (1957) 74 WN (NSW) 477; The Queen v El Mir (1958) 75 WN (NSW) 191; Price v The Queen (1962) 36 ALJR 235; The Queen v Lapuse (1964) VR 43; The Queen v Smith (1964) VR 217; Re Lamperd (1983) 46 ALR 371; Liberato and Ors v The Queen (1984-1985) 159 CLR 507; Lunn, Criminal Law South Australia (Butterworths) Vol 1, par [440.2], considered.

R v WHEELER
[2004] SASC 397
Court of Criminal Appeal: Perry, Duggan and Bleby JJ

PERRY J. The appellant appeals by leave against his conviction following a trial in this Court before a judge and jury, on a charge of wounding with intent to do grievous bodily harm. Particulars of the charge were that on 7 March 2003 at Grange, he unlawfully and maliciously wounded Shane Rowan with intent to do him grievous bodily harm.

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading R v Wheeler

Details

AGLC: R v Wheeler [2004] SASC 397
Case: [2004] SASC 397
Decision Date: 2 December 2004

CaseChat Overview and Summary

The appellant, a young man, appealed his conviction for wounding with intent to do grievous bodily harm. The incident occurred after a heated argument at a hotel, where the victim followed the appellant to his home and attacked him while he was drunk. The appellant defended himself by stabbing the victim, claiming self-defence. The central issue in the trial was whether the appellant's actions were reasonably justified in self-defence. The trial judge did not sufficiently guide the jury on how to consider the appellant's psychological evidence and the victim's alcohol consumption when assessing the reasonableness of the appellant's response.

The court needed to determine if the trial judge provided adequate directions to the jury regarding the medical evidence and the victim's state of intoxication, both of which were critical to evaluating the reasonableness of the appellant's self-defence claim. Additionally, the court had to assess whether the judge's direction to the jury to "determine where the truth lies" was appropriate and whether it adequately instructed the jury on how to approach the evidence.

The court found that the trial judge did not sufficiently guide the jury on how to apply the medical evidence regarding the appellant's psychological state and the victim's alcohol consumption when determining the reasonableness of the appellant's actions. The judge's direction to the jury to "determine where the truth lies" was also deemed inappropriate. Given these errors, the court concluded that the appeal should be allowed, and a new trial was ordered to rectify the issues identified.

The final orders of the court were to allow the appeal and order a new trial for the appellant. The court emphasized the importance of ensuring that the jury understands how to appropriately consider all relevant evidence, including medical evidence and the circumstances surrounding the incident, when assessing self-defence claims.

Orders

Orders of the court

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Background

Background to the litigation

My reasons for concurring in that order, follow.Background At the time of the alleged offence, Rowan was aged about 32 years, and the appellant 19, almost 20. They both lived in the general area of Grange, and had known each other casually for two to three months beforehand. A week or so (the estimates vary, it may have been longer) before the incident leading to the alleged offence, the appellant was accused by Rowan of stealing $50 from another person. The appellant vehemently denied this to Rowan, who in response threatened to “trash” the appellant’s house. It was common ground that shortly afterwards Rowan came to the appellant’s house while the appellant was absent. Two chairs which were on his front veranda were thrown over a low wall which bordered the veranda, and a wooden door was kicked in so that it was splintered near its hinges. After that incident, the appellant went to Rowan’s house where an altercation took place, in the course of which Rowan threatened the appellant with a knife. They next confronted each other when they met by chance on the night in question at the Grange Hotel. During a further altercation which occurred between them, Rowan threw the appellant against a pile of chairs. In the result, they were ordered out of the hotel. By then it was after midnight. There was no evidence that the appellant had consumed alcohol, but Rowan and a companion who accompanied him, Mark Sullivan, whose nickname was “Diesel”, both admitted to a heavy consumption of liquor. Rowan said that he had consumed between 15 and 20 pints of beer during the evening, and Sullivan 10 to 12 schooners. On leaving the hotel, the appellant returned to his house. He was apprehensive that Rowan might follow him. He locked the doors and armed himself with a knife. He called a friend to see if he would visit him. Shortly afterwards, Rowan and Sullivan arrived. Rowan sat in one of the chairs on the veranda. The appellant emerged and sat in the chair next to him. Rowan kept accusing him of stealing the money, and the appellant maintained his denial of having done so. The discussion became heated. Sullivan came over, and according to the appellant said to Rowan, “What are you waiting for. Let’s do it.” Rowan calmed him down, but continued the altercation with the appellant. The appellant says that Rowan then punched him several times, and told him to get out of his chair “otherwise we’re going to stomp you in your chair”. The appellant says he got up, and as Rowan bore down on him, he pulled the knife from his pocket and endeavoured to retreat into the house, opening the screen door. As he did so, Rowan taunted him, “What are you going to do? Stab me? Go on.” The accused maintains that Rowan continued to approach him in a threatening manner, whereupon he stabbed him with the knife, at the same time retreating into the house. The appellant was pursued into the house by Sullivan, but managed to escape and run off down the street. Soon afterwards he rang the police.

Evidence

Evidence Before The Court

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Decision

Reasons for decision

PERRY J DUGGAN J BLEBY J

Brennan J in Liberato and Ors v The Queen observed:[5]“When a case turns on a conflict between the evidence of a prosecution witness and the evidence of a defence witness, it is commonplace for a judge to invite a jury to consider the question: who is to be believed? But it is essential to ensure, by suitable direction, that the answer to that question (which the jury would doubtless ask themselves in any event) if adverse to the defence, is not taken as concluding the issue whether the prosecution has proved beyond reasonable doubt the issues which it bears the onus of proving. The jury must be told that, even if they prefer the evidence for the prosecution, they should not convict unless they are satisfied beyond reasonable doubt of the truth of that evidence. The jury must be told that, even if they do not positively believe the evidence for the defence, they cannot find an issue against the accused contrary to that evidence if that evidence give rise to a reasonable doubt as to that issue.”[5] (1984-1985) 159 CLR 507 and 515 and see also Lunn, Criminal Law South Australia (Butterworths) Vol 1, par [440.2] and the cases there cited.Conclusion I have not dealt with all of the complaints made by the appellant. My view as to those to which I have referred is sufficient to dispose of the appeal. In particular, I have not dealt with ground 11, which complains that the verdict was unsafe and unsatisfactory. As to that aspect of the matter, I have given anxious consideration as to whether or not, given the circumstances of the case, a properly directed jury could be satisfied beyond reasonable doubt that the accused was not acting in self-defence. Relevant to the resolution of that question, is the fact that there was uncontroverted evidence that the alleged victim, Rowan, had displayed animosity and at times violence towards the appellant; that Rowan and Sullivan were guilty of a drunken assault upon the appellant in his own home before the offence is alleged to have been committed; and that at the time the appellant retaliated by stabbing Rowan, he was endeavouring to retreat behind the wire screen door. However, at the end of the day, I have reached the view that it would be open for a jury to view the case as one involving what might be described as excessive self-defence. Issues such as those to which I have referred are matters for the jury to consider in the event that the DPP chooses to re-present the appellant for trial. I agree with the reasons prepared by Perry J. I agree with the reasons of Perry J for allowing this appeal.

Ratio Decidendi

Legal Principle Established

Established by: PERRY J, DUGGAN J, BLEBY J

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