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.
The appellant puts forward eleven grounds of appeal, ten of which particularise alleged shortcomings in the trial judge’s directions to the jury. The remaining ground asserts that the verdict was “unsafe and unsatisfactory and cannot be supported having regard to the evidence”.
The Court heard argument on the appeal on 21 October 2004.
On 28 October 2004 the Court ordered that the appeal be allowed, the conviction quashed and that the appellant be presented in the District Court for re-trial.
The Court reserved its right to publish reasons later.
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.
Medical evidence indicated that Rowan suffered a penetrating wound of the abdomen of the order of 10 to 15 centimetres deep.
The appellant called a psychiatrist, Dr Jules Begg, who gave evidence that he had examined the appellant on two occasions, in July 2003 and March 2004. He described him as nervous, unsure of himself, and assessed his psychological functioning as equivalent to that of a 14 year old adolescent boy.
The grounds of appeal
(a) Grounds 1, 2 and 3
In these grounds, the appellant complains that the trial judge failed adequately to direct the jury as to the manner in which they might take into account the evidence of Dr Begg, more particularly on the issue of the accused’s belief as to the necessity to defend himself, and the genuineness of that belief and of his belief that the use of the knife was reasonable.
Before referring to the trial judge’s treatment of Dr Begg’s evidence, I will refer to his treatment of the more general aspects of the issue of self-defence.
The issue of self-defence was the central issue in the case.
The trial judge left to the jury two questions as to that issue, which he reduced to writing in the form of a memorandum handed to the jury. The questions as posed by him in the memorandum were:
“Question 1:
At the time when he wounded Shane Rowan is it at least reasonably possible that Mr Wheeler genuinely believed that it was necessary and reasonable to do so in order to defend himself?
[In answering this question you must consider what Mr Wheeler himself genuinely believed was necessary and reasonable in all the circumstances in which he found himself. You do not answer this question by considering what some imaginary reasonable person would have believed. This stage of enquiry is concerned with Mr Wheeler’s own belief given the actual situation in which he was at the time.]
If the answer to this question is NO, the question of self-defence disappears from the trial.
If the answer to this question is YES, then you must go on to consider Question 2.
Question 2:
Has the prosecution excluded as a reasonable possibility that Mr Wheeler’s conduct, in the circumstances as he genuinely believed them to be, was reasonably proportionate to the threat that Mr Wheeler genuinely believed to exist?
[In answering this question you must consider:
(a) the belief of Mr Wheeler as to the circumstances in which he found himself; and
(b) then apply your assessment as a jury (and not that of Mr Wheeler) as to whether the conduct was or was not, reasonably proportionate to the threat which he genuinely believed he faced.]
If the answer to this question is NO, then the prosecution has failed to prove its case against Mr Wheeler and your verdict should be not guilty.
If the answer to this question is YES, then your verdict should be guilty, assuming all other matters are proved beyond reasonable doubt.”
The questions were posed in terms which were technically correct, having regard to s 15 of the Criminal Law Consolidation Act 1935, as the section then stood.
However, with respect to the trial judge, in my view, neither in the memorandum nor in his summing up, did he give sufficient guidance to the jury as to how those questions were to be addressed in the context of the evidence.
In explaining to the jury during the course of his directions the elements of the offence, the trial judge said:
“16 … The third element is that the accused inflicted the wound unlawfully, that is without lawful excuse, and in this case, you have to consider the lawful excuse of self-defence. If the wound was inflicted in self-defence, it is not unlawful, therefore the third element would not have been proved, therefore the accused would be not guilty.”
I pause to note, with respect to the trial judge, that part of his explanation might have been better expressed. It would have been more accurate to say that the infliction of the wound would cease to be unlawful, if the Crown failed to exclude as a reasonable possibility that the wound had been inflicted in self-defence.
Later he said:
“21 Self-defence, if you found that established, if you found that the Crown had not rebutted the self-defence argument that has been put to you, then he would be not guilty of either of those offences.”
The trial judge continued:
“23 The law recognises that persons who are attacked or threatened with attack are entitled to defend themselves. I just give it to you simply first and then a more detailed version.
24A person does not commit an offence firstly, if that person genuinely believes that the conduct to which the charge relates was necessary and reasonable to defend himself. And secondly, that the conduct was in those circumstances that the accused genuinely believed them to be, reasonably proportionate to the threat that the accused genuinely believed to exist. Counsel have more or less said the same words to you. I will enlarge upon that for you. It’s a two-stage inquiry. I repeat those two aspects for you: one, genuine belief that the conduct to which the charge relates, in this case the stabbing, was necessary and reasonable to defend himself; and secondly, was that conduct in the circumstances that the accused genuinely believed them to be, reasonably proportionate to the threat that he genuinely believed to exist? That is fairly straightforward on the face of it, but I need to discuss it more fully.
25The genuine belief of the accused must extend both to the necessity and the reasonableness of his conduct and there is a distinction between necessity and reasonableness which I can perhaps illustrate for you.”
The trial judge then went on to give the example of a person who is slapped in the face, who responds by stabbing the assailant with a knife; and by way of another example, he referred to a person kicked on the shins who responds by producing a gun and shooting the assailant.
He referred also to other relevant considerations as to the partly subjective and partly objective elements in the statutory formulation. With respect to him, in my view, he did so in an abstract way, without relating his direction more immediately to the circumstances in question.
Importantly, in the process of doing so, he did not refer to the evidence of Dr Begg, and to the fact that in assessing the genuineness of any belief which the appellant might have had as to the reasonableness of his conduct, they should take into account that the evidence of Dr Begg, if accepted by the jury, was that his psychological functioning was at the level of a 14 year old.
This was a highly relevant matter for the jury to consider. There is force in the submission of Mr Boucaut of counsel for the appellant, that the brief mention of Dr Begg’s evidence by the trial judge later in the summing up in terms which were unrelated to their consideration of the appellant’s state of mind at the relevant time, tended to marginalise the significance of the evidence, and failed to give to the jury sufficient guidance as to how they might take it into account on the central issue in the case.
It is important in any trial that in explaining the elements of the offence, the trial judge does not confine the explanation to an account of the relevant legal principles, abstracted from the facts of the case. The explanation of the elements should incorporate a reference to the factual issues, and an explanation of the interaction between the facts and the legal concepts.[1]
[1] See R v Perks (1986) 43 SASR 112 per Olsson J at 119, Alford v Magee (1952) 85 CLR 437 at 466, R v Mogg (2000) 112 A Crim R 417 per Thomas JA at [71] page 430, and R v Curtis (1991) 55 A Crim R 209 per Olsson J at 220-221.
For example, in this case, it would have been desirable, when explaining the elements of self-defence, to refer to Dr Begg’s evidence and if that was accepted by the jury, the likely mental reaction of a person whose psychological function is at the level of a 14 year old, to the situation as it developed. In the same context, reference might have been made to the effect on the appellant’s state of mind, of the earlier acts of violence on the part of Rowan, and Rowan’s drunken state on the night in question.
The failure to integrate the explanation of the elements with references to relevant factual issues such as those to which I have referred, deprived the jury of the level of assistance necessary to ensure a fair trial.
In my view, the first three grounds of appeal are made out.
(b) Grounds 4, 5 and 6
These grounds assert that the trial judge erred in failing to direct the jury as to how the consumption of alcohol might have affected the reliability of Rowan and Sullivan as witnesses; as to how it may have affected their behaviour on the night in question; and as to how Rowan had previously been shown to have acted violently when intoxicated.
The trial judge gave no direction to the jury as to how they might take into account the evidence that Rowan and Sullivan had drunk excessively on the night in question and showed signs of being intoxicated.
It was his duty to do so. The dictum of Duggan J (with whom Bollen and Mullighan JJ agreed) in Bedi v R[2] is apposite:
“It is clear that the intoxication of an accused person, whether induced by alcohol, drugs or a combination of both, may be of relevance to a variety of issues in a criminal trial, including the existence of a particular state of mind or the appreciation of facts relevant to some element of an offence or to a defence to the charge. Intoxication may also be of relevance in the assessment of the reliability of the witnesses. If there is evidence of intoxication capable of having some bearing on these issues it is the duty of the trial judge to identify that evidence for the jury and relate it to those issues with appropriate directions on the law.” (my emphasis)
[2] (1993) 61 SASR 269, (1993) 68 A Crim R 539.
The case called for a direction to the jury that they might well conclude, by reference to the altercation at the hotel earlier in the evening, that Rowan was behaving in a drunken and aggressive manner towards the appellant, and further, that his consumption of alcohol might explain and support the appellant’s assertion that Rowan behaved in a similarly belligerent fashion when he followed the appellant to his home.
A similar direction might have been given with respect to the effects of Sullivan’s consumption of liquor.
Also, the direction concerning Rowan might properly have referred to the fact that there was some evidence which the jury might accept as indicating that Rowan was prone to violent behaviour when intoxicated, that evidence relating to the circumstances in which he had previously been convicted of rape. While the appellant was not aware of that previous conviction, a reminder to them of the circumstances in which that offence was committed, might have been relevant to a consideration by the jury as to whether the appellant’s account of Rowan’s behaviour on the night in question, should be accepted.
I would further accept the appellant’s contention that the case called for a direction that the reliability of both Rowan’s and Sullivan’s testimony as witnesses, might have been adversely affected by their level of intoxication.
(c) Grounds 7, 8 and 9
These grounds assert that the trial judge misdirected the jury by posing various questions, of which the following are examples:
“Where does the truth lie?”,
“What do you really think happened?”, and
“What do you think is more likely?”
It is true that during the course of the summing up the trial judge emphasised the need for the jury to be satisfied beyond reasonable doubt before reaching a conclusion of guilt.
However, looking at the summing up overall, in my view, there is force in the argument advanced by the appellant that the combined effect of the various comments in question, might have led the jury to conclude that if they did not believe the appellant’s account of the matter, they should necessarily be led to convict.
At the request of counsel, the trial judge recalled the jury following the conclusion of his summing up and directed them to disregard the comment which he had made, “In short, what do you think is more likely?”, and emphasised that the charge must be proved beyond reasonable doubt.
However, in my view, that re-direction is unlikely to have operated on the minds of the jury fully to correct the impression given by the number of references in the summing up, during the course of which the judge invited the jury to consider, in one way or another, where the truth lies.
The problem is illustrated by the following passage in the judgment of Wells J, with whom Legoe and Matheson JJ agreed, in R v Calides.[3]
“It seems to me that where a case has so shaped itself that the outcome is likely to depend upon the view taken by a jury of two opposing bodies of evidence, it is a very natural and easy thing for a jury, indeed for anyone, including a judge, to begin by saying to themselves or himself:
‘Here are two opposing bodies of evidence’ they can’t both be true. I suppose we have to decide who’s telling the truth.’
That, I repeat, is a perfectly natural and almost inevitable approach to begin with, at least for the man in the street. That may be a perfectly practical start, but, unfortunately, in my opinion, it suffers badly from a lack of proper guidance from the principles relating to onus and standard of proof. It has been said again and again in this Court, and in the cases to which I invited counsel’s attention, which I do not propose to repeat, that where you have two opposing bodies of evidence on matters central to the case which will almost certainly lead, if properly considered and weighed, to a resolution of the case, it is wrong to treat them with the comment, ‘It is for you to decide where the truth lies.’[4]
The onus of proof and the standard of proof must be correctly applied. It is not just for the jury to decide where the truth lies if that means, and it could well mean to a jury, that it is for them to say whether there is some material which could give them an inclination of opinion in favour of one side or the other. It would be even worse if the jury were left with the impression that it was their task to decide, and to find, whether there is some material for providing a basis for an inclination of opinion one way or the other.
As the former Chief Justice, Sir Mellis Napier, used to say many times in this Criminal Court, in such circumstances there are really, for all practical purposes, three possibilities: the jury maybe completely satisfied with the evidence led from the Crown, in which case, assuming all other matters to be properly established, the verdict will be guilty; the jury may be perfectly satisfied with the version presented by the accused, in which case there will inevitably be a verdict of not guilty; and there is the third possibility, which must never be overlooked, and that is that the jury, after a full and careful consideration, may arrive at the result that they are unable to say where the truth lies, or that they are unable to say who is telling the truth. If that is the situation, then, of course, the verdict must also be not guilty.” (my emphasis)
[3] (1983) 34 SASR 355 at 358-359.
[4] The cases to which his Honour referred were: 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.

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.
DUGGAN J. I agree with the reasons prepared by Perry J.
BLEBY J. I agree with the reasons of Perry J for allowing this appeal.