R v Williams
[2000] VSC 20
•8 February 2000
SUPREME COURT OF VICTORIA
CRIMINAL JURISDICTION Not Restricted
No. 1470/99
| THE QUEEN |
| v. |
| BENJAMIN RICHARD WILLIAMS |
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JUDGE: | VINCENT, J. | |
WHERE HELD: | MELBOURNE | |
DATE OF RULING: | 7 DECEMBER 1999 | |
DATE REASONS HANDED DOWN: | 8 FEBRUARY 2000 | |
MEDIUM NEUTRAL CITATION: | [2000] VSC 20 | |
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CATCHWORDS: Issue of self-defence withdrawn from jury's consideration – R. v. Kear [1997] 2 VR 555 – Deceased defending himself and his property against unlawful invasion – Whether actions of deceased were reasonable in the circumstances – Pemble v. The Queen (1971) 124 CLR 107 – Zecevic v. DPP (Vic.) (1987) 162 CLR 695.
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APPEARANCES: | Counsel | Solicitors |
For the Crown | Mr. G. Horgan | Office of Public Prosecutions |
| For the Accused | Mr. S. Langslow | Victoria Legal Aid |
HIS HONOUR:
Shortly prior to the closure of the prosecution case, a foreshadowed discussion took place with counsel concerning the question – whether in the circumstances the issue of self defence should be left for consideration by the jury.
It arose against the following broad evidentiary background which, I should add, was undisputed by the defence.
The deceased was present in his home at Wodonga on the evening of 27 February 1999 playing board and computer games with a male friend named Matthew White. At about 10.30 p.m. he responded to a knock on the front door where he was confronted by three male persons wearing stocking masks. The deceased was, the evidence indicates, a dealer in marijuana and the men who were aware of his activities, had decided to "do over" or raid the premises for the purpose of securing drugs and money which they understood would be kept there. Although there was no evidence on the matter, it would, I think, be reasonable to infer that they proposed to rely, in order to achieve their objective upon the intimidating effect of their appearance and their joint presence and, if necessary, overpower the deceased, as there was no evidence that any of the men was armed with a weapon of any kind. There was evidence that all had been drinking and may have been affected by alcohol. The accused was, it should be added, acquainted with the deceased who he said had chased him off the premises at gun point a week earlier.
According to the undisputed evidence of the deceased’s companion, on seeing the men, the deceased immediately closed the front door and peremptorily ordered the persons outside to leave.
However, they did not withdraw and moved to a nearby loungeroom window through which, after a covering fly screen was removed, all three entered the premises. The precise movements of those then present and the exact sequence of events could not be stated with the same degree of confidence as the background matters I have just set out and clearly were not the subject of any concession by the defence at the trial. Indeed, at the stage at which the discussion took place, it was possible, on the evidence, only to speculate about a deal of what had occurred. That, it should be added, has remained the situation. However, the evidence indicated that by the time that the men had begun to enter through the window, the deceased had obtained possession of a shotgun that he owned and which, according to the evidence, was usually kept in a gun safe in a room referred to in the trial as "the computer room". According to the evidence of his companion who was the only person to deal with this aspect, the deceased raised the weapon, pointed it in the direction of the window and again ordered them to leave. It appears to be common ground that this was the weapon brandished by him in the episode to which I have referred earlier. The computer room also contained a safe, the object of the intruder’s interest, in which they believed that he kept drugs and money.
It was undisputed that a confrontation took place between the deceased and some, at least, of the men, in the course of which the deceased sustained three fatal stab wounds to the back. He also received multiple bruising and incised injuries to the head, face, arms, hands and legs, some of which may have occurred if he had fallen heavily onto objects during or after the struggle.
Not surprisingly, when an opportunity to escape from the situation arose Mr. White left through the back door. He made his way to a service station from which he called the police. Accordingly, he was not present at the time of the stabbing and witnessed little of the action which preceded it.
The evidence of what took place in the house and the circumstances of the deceased's death was limited and was in large measure to be found in the interview conducted by the investigating police officers with the accused who provided very little detail. Relevant passages are set out later. During the interview the accused attributed his asserted difficulty in recollection of the events to the speed at which they occurred and claimed that he had been struck on the head by the deceased with the shotgun shortly after entering the unit and was in consequence confused and concussed. He also asserted that he was intoxicated at the time. Nevertheless, he did state that at a point of time at which Mr. Wilson, who had possession of the shotgun, was engaged with one of his companions, he (the accused) went into the kitchen area where he obtained a large knife, returned to a position behind the deceased and then stabbed him three times in the back causing his death.
Viewed from the perspective of the deceased, the forcible invasion of his home by three masked persons, that indisputably had occurred, clearly gave rise to an occasion for self defence. That proposition was not contested by the accused. Nor in a situation where their purpose and intention must have been obvious, was there any suggestion advanced that the presentation of the shotgun by the victim of this invasion to deter the perpetrators could, of itself, arguably be perceived as unreasonable in the circumstances. Finally, there was no contention presented that, at least initially, the deceased may not have been acting in the defence of himself and his property.
However, as will emerge later, counsel for the accused did attempt to advance an argument that the deceased may have engaged in actions which could be perceived as having exceeded the limits of what could be regarded as reasonable in the circumstances or, having gained dominance over the initial aggressors, were possibly directed to the punishment of the perpetrators and conceivably to act as a deterrent to others. More accurately, as I understand the contentions presented, it was argued that a jury could consider that the prosecution had not excluded beyond reasonable doubt, the reasonable possibility that reasonable grounds may have existed for the development of such perspectives by the accused who may then have been lawfully entitled to act as he did.
In this framework, a number of questions were asked of witnesses by counsel for the accused directed to the possibility that the deceased may have discharged his firearm, impliedly an unreasonable act in the circumstances. However, although, according to the evidence, later examination of this weapon revealed the presence of gun shot residue and a fired cartridge in one of its two barrels and the deceased had a cartridge in his pocket, there was, for practical purposes, nothing to indicate that it had been fired on the occasion in question. I am mindful in making this statement of the evidence of Mr. White and that of a neighbour Mr. McDonnell each of whom heard a bang, albeit at different times. In my opinion, the evidence would enable the jury only to speculate as to what activity produced either of those sounds. Certainly no claim was ever made by the accused that the gun was discharged. In the absence of any further evidence, he could hardly then advance an argument that he may have responded to any such occurrence, save on the basis of pure conjecture. In any event, even if the jury accepted that the gun may have discharged, there was absolutely nothing in the evidence at that stage to indicate whether this had occurred intentionally or accidentally or which identified the stage of proceedings or the circumstances under which it had happened. I will return to this aspect.
As I pointed out at the time that the discussion took place, I was doubtful that, without further evidence, any foundation existed upon which the issue of self defence could be properly put before the jury and invited counsel for the accused to advance any arguments available as to how it could be seen to arise.
He responded:
"It’s a conclusion principally – perhaps I can put it this way: Principally matters contained in the record of interview coupled with some circumstantial matters."
There is no need for recourse to the large number of authorities from a number of jurisdictions which have made clear that a trial judge must be astute to ensure that an accused person is not to be denied the consideration by the jury of any defence which may be legitimately open on the evidence. The judge’s duty in this regard is clear, is not dependent upon any defence advanced on behalf of the accused and great care must be taken by the Judge to ensure that full effect is given to this principle even in the face of the express disavowal by the accused of the possible defence involved.
Presented with such a situation in Pemble v The Queen (1971) 124 CLR 107 at 118 Barwick, CJ stated:
"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."
Of course, it does not follow that the mere assertion of the existence of a possible defence on the base incantation of the expression "self-defence", or the presentation of a speculative or fanciful scenario unsupported by evidence will impose upon a trial judge an obligation to instruct the jury concerning the defence so asserted or raised, as Tadgell, JA pointed out in R v Kear [1997] 2 VR 555 at 557 where he said:
"While it is possible that a jury could reason in that way – in as much as almost anything is possible – I cannot conclude that it would be at all sensible to invite them to do so. A jury ought to be credited with ordinary commonsense. Self-defence is to be left to them if there is some evidence fit to be considered on the matter. There must be evidence which, if believed, might reasonably lead the jury to fail to be satisfied that the accused believed that what he did was necessary by way of self-defence: cf. Van den Hoek v. R. (1986) 161 CLR 158 at 162; Shea v. R.(1988) 33 A Crim R 394 at 398 at 398. But:
before it can be said that the issue of self-defence arises, there must be evidence before the jury which would enable a reasonable jury to form a logical conclusion, by legitimate logical reason and not illegitimate speculation, upon the questions or issues set out in Viro’s Case.
R. v. Lane [1983] 2 V.R. 449 at 462, per Fullagar J. Although Viro v. R. (1978) 141 CLR 88 has since been overtaken by Zecevic, the rest of that passage is apt and I respectfully adopt it."
The instructions given by a trial Judge to the jury must be directed to the issues of fact and law that can be identified as having been raised by the evidence adduced in the trial. They are neither meaningful nor useful in the absence of an appropriate evidentiary framework which justifies the putting of the issues before the jury in the first place and gives rise to a duty to instruct them (inter alia) as to the principles of law relevant to the jury consideration of those issues and an obligation to relate the principles to the evidence. Where no appropriate evidentiary framework exists to which the instructions can be attached, the provision of broad statements, and the intrusion of what are in terms of the evidence irrelevant principles of law are, at best, time wasting and unnecessary and, at worst, a virtual invitation to the jury to engage in illegitimate speculation.
Whilst the situation in the present case was rather unusual in that it was being argued that self-defence had been raised as an issue in the face of the necessary acceptance by the defence that the accused was one of the raiding party against whose actions the deceased was entitled to take reasonable measures to defend himself and his property, of itself this constitutes no bar . The High Court in Zecevic v DPP Vic (1987) 162 CLR 645 made it clear that an initial aggressor may in appropriate circumstances be able to claim a right to act in his lawful self-defence.
Counsel for the accused in the present matter argued that when regard is had to the evidence of the time at which the police were initially contacted by Mr. White and the evidence of the two members who attended the scene that there was still activity taking place when they answered, it is apparent that a protracted struggle must have taken place. I accepted that it was certainly open to the jury to adopt that view. He emphasised the seeming determination of the deceased and the nature of his illegal activities as suggesting that he may have been prepared to employ extreme violence to protect his property or to deter any who may contemplate staging a similar raid. There is, however, nothing in the evidence to support as a reasonable hypothesis the possibility that he did employ any such measures or that he may have been acting other than in self-defence, or that he may indeed have reasoned in this fashion. In this context, it is to be observed that there is no evidence that the accused or either of his companions sustained any significant injury. On the other hand, the deceased was found to have the injuries earlier described. Counsel drew my attention to statements made by his client when interviewed that indicated that he was frightened by the gun and apprehensive that his companions and he might be overpowered and perhaps injured, consideration which of themselves in circumstances where the other party was entitled to act in self-defence would be unlikely to give rise to a lawful occasion of self-defence for the actual aggressor. Of significance when considering whether the reasonable possibility existed on the basis of the evidence that an occasion for self-defence may have arisen for the accused is the fact that he at no stage asserted or even intimated that the deceased may have been doing more than strenuously resisting the three intruders.
In support of his contention that the issue of self-defence was raised by the evidence in this case, counsel for the accused referred to a number of questions and answers in the transcript of the interview. I think that it is worthwhile, in view of the conclusion at which I arrived, to set them all out below, together with some further passages which place some of the particular questions and answers into context.
194 Q.
A.I said, 'Who used the knife,' and you said, 'I did.'
Yes.195 Q.
A.
I asked you why and you replied, 'Because he had the fuckin’ gun.' Do you recall saying that?
Yes.206 Q.
A.
I then told you, I said, 'I’m afraid that he has died,' and you replied, 'Fuck. He smashed Tony with the butt of the gun, so I just got him.' Do you recall saying that?
It was pointed at Tony. It was pointed at me too.210 Q.
A.
I asked you, 'Is the knife still in the sink?' You replied, 'I got it out of the second drawer, just got scared, pointing the gun at me.' Do you recall saying that?
Pointing the gun at both of us.[This group of questions refers to an earlier conversation conducted by investigating members with the accused.]
324 Q.
A.
And when you got in – into the loungeroom, where was Eddie?
Gone to get his gun, I s'pose. He wasn't in sight and we were looking for him.325 Q. Right A. So, like, he was hiding and … 326 Q. Sorry? A. It just smashed me, like, verbs, [sic] before I even done anything. 327 Q. Alright. So he was hiding, was he? A. He wasn't hiding, he was – he went and got his gun, but he – like, I couldn't see him and that just knocked out sort of, you know, I got knock – a knock here, a knock here, that's why I – I reckon today I've been a bit confused. 328 Q. Alright. A. Concussed or something. 329 Q. Did you let the doctor know about that? A. Nuh. 330 Q. Why not? A. Dunno. 331 Q. Mm. Okay. So when you were first hit with the gun, is that in the loungeroom? A. Yeah, in the hallway thing – in the hallway towards the kitchen. 332 Q. Alright. So you had to go through ---? A. And between the bedroom and the kitchen, or his computer room, or whatever it was. 333 Q. Alright. So you had to go through the loungeroom into the hallway? A. Mm. 334 Q. Past the kitchen is another – the hallway continues round and the – there's the computer room that opens off ---? A. Yeah. 335 Q. That and then you've got a bedroom down off ---? A. He was in the computer room and just – yeah. 336 Q. So the first struggle takes place where? In the ---? A. Computer room. 337 Q.
A.
In the computer room? And what – what happens in there in the struggle?
I just got belted a few times and belted him a few times and – it all happened so quick.338 Q. Yeah, I can imagine. So when this is happening in the – in the bedroom – in the computer room, sorry, what was on the floor in the room, do you know? Was there anything on the floor? A. In the computer room. 339 Q. Yeah A. I can't even – no, I can't remember. 340 Q. Mm'm. Alright. A. Can't even remember really stabbing him. 341 Q. Alright. So when you – when you come in and you walk up the hallway towards the computer room, where's Tony? A. He was in there, trying to hit the safe – trying to get to the safe and Eddie went up there and smashed him. I was struggling with Eddie and --- 342 Q. So did – did Tony go in before you to the computer room, or was he – did he come in after you? A. Yeah, he went in the computer room first, because I was already being hit in the hallway thing. 343 Q. Alright. So he had to go past you to get into the computer room? A. Yeah. Past Eddie and that. 344 Q. So he went past you and Eddie whilst you and Eddie were struggling and having a ---? A. Is he really dead 345 Q. Having – having a fight? Yeah. He's dec- ---? A. Is this real. 346 Q. He's deceased, yep. So do you know – do you know how Tony was trying to get into the safe? A. I think it was a combo lock, I dunno, I didn't even see it. 347 Q.
A.Mm.
It’s, like, I just – I can’t – can’t remember, like, you know, I was just intoxicated and I just can’t remember.348 Q.
A.Alright. So ---?
But I know there was bloody two barrels pointing at me face at one time.349 Q. Mm. A. … tried to get away. When we smashed … Tony was up at the wall and he smashed Tony with the butt of the gun and then went 'one' – 'one' – counted 'one' and then I went straight into the kitchen and got that knife and stabbed him. [The transcript contained the words "… moved … away". However counsel for both the prosecution and accused regarded it as inaccurate. I have replaced the expression in the answer to question 349 with the words which they agreed could be discerned.] 350 Q. Alright. What – I know you went in there to get the safe, but what was your intention in getting the safe? A. Money. 351 Q. Money? A. Money. 352 Q. And – alright, what were you gonna do with the money when you got it? A. Dunno, probably just … 353 Q. Mm. A. … stupid, but just spend it. 354 Q. Alright. So after the struggle happens, you – you break free from – from Eddie? Is that – is that how it happened? A. Yeah. 355 Q. Once you're free of Eddie, what happens then? A. (NO AUDIBLE REPLY) 356 Q. 'Cos what I've got at the moment is you and Eddie fighting in the hallway on the – on the way to the computer room and you've got Tony who goes past the two of you and goes into the computer room. A. Mm. then I followed him in the computer room. 357 Q. You followed? A. I went in the computer room as well. We were sort of struggled and we – we all went in the computer room, we were all in there. 358 Q. Right, so the struggle sort of continued into the computer room? A. Yeah. 359 Q. How did you know that the safe was in the computer room? A. 'Cos Tony yelled out to me. 360 Q. Right, so for Tony to find it in the computer room, did he go into any other rooms looking for it. A. Nuh, no other room. 361 Q. No other room? A. Wh-, repeat the question, sorry. 362 Q. For Tony to find the – the safe. A. Mm. 363 Q. Did he go and look for it in any other room, before going to the computer room? A. I don't – I dunno. 364 Q. Mm? A. Dunno. 365 Q. So is – is it a fact that you're struggling with Eddie, which is keeping Eddie's attention drawn to you and that's given the opportunity to Tony to go and find the safe? A. Yeah, something like that. 366 Q. Alright? A. I'm still going for self-defence. Have I got a chance? It's not a cold-blooded murder? 367 Q. Well, that – that's not for me to say? A. … man, fuck. 368 Q.
A.
Alright. So when – when Tony – when Tony finds the safe, what happens then?
He yells out to me, 'Yeah, Ben, the safe’s here.' And I went in and he had his – just hitting everyone with the gun, pointing it at everyone, so.369 Q. Alright. And then what happens from there? A. It's all too fast, I can't remember. No comment. That's all. [The above questions and answers set out, for practical purposes, the features of the version then provided by the accused of the circumstances under which the stabbing took place.]
… 565 Q. She goes on to say that, 'At one stage, Ben said he might say it was self – in self-defence that he stabbed the guy.' Did you say that? A. Yeah 566 Q.
A.
And you had your shirt off and you showed Warren your back and asked whether was a scratch, which was on your back, could make it look like self defence. Do you recall doing that?
Self defence is – the only thing about self defence is that the gun being pointed at me.567 Q. Right. But I'm – I'm asking about the scratch on the back. Do you recall showing the scratch to Warren and asking if that'd make it look like self-defence? A. Yeah. 568 Q. Did that happen? A. Well, that's – I dunno, I was drunk. 569 Q. Yeah. A. I dunno what I was saying. 570 Q. Yeah, I'm – I'm just asking whether – whether that – that happened. A. Mm. 571 Q. And Warren, 'No mate, she saw – Shontel sees the scrape, it's about 2 inches long in the middle of your back.' Have you got a scrape on the – on your back? A. Yeah. 572 Q. Yeah. And that was photographed today, wasn't it? A. Yeah. 573 Q. How'd you get that scrape? A. I dunno. 574 Q. Did it happen in the fight with Eddie? A. I'd say it would've. 575 Q. Did you have it before you went to Eddie's place? A. No 576 Q. And you had it after you got back from Eddie's place? A. (NO AUDIBLE REPLY) 577 Q. Can you recall how it was that you got the scrape? A. I was drunk and I got a few cuts and that on me, I dunno how I got 'em. 578 Q. Right. Alright. 'Ben said he got the scratch when he was jumping over fences, running away from the guy's house.' Do you recall saying that? A. I must've, yeah.
[At the stage at which question 566 was asked, the interviewing police member was putting to the accused parts of the statement of a witness, Shontel McLaughlin, to whose home the men went after the stabbing of the deceased had occurred. She gave evidence in chief of a conversation involving the accused. The relevant portion of the transcript reads:
"Just tell us as best you can what was said to you?---They just said we went to Roadshow Drive and Tony kicked in the door and hit the guy in the head and he ran out or something and they asked for the drugs and money I think.
They what?---They asked for the drugs, the money.
The drugs money.
HIS HONOUR: The drugs and money.
WITNESS: Drugs and money.
MR. HORGAN: I beg your pardon?---And they were hitting him or something, I don't know, and the person who died, he grabbed Ben's stocking and Ben was just kneeing him in the head.
Sorry, he grabbed Ben's stocking?---Yes.
And pulled it off?---Yes. And was kneeing him in the head.
Who was kneeing who?---Ben was kneeing the man that died and that was it. I really can't remember.
Did you learn where the knife had come from that the stabbing had been done with?---Yes.
What did they say about that?---They said they took it out of his kitchen drawer and I don't know who took it out, and Ben didn't want to do it, Ben didn't want to do anything, but Steven Meyers said to him that, "If you don't do it – don't be a woos or I will bash you' or something like that and so, I don't know. Ben must have done it then, I don't know.
I don't want you to guess about your own conclusions. I'm really just asking, if you can, to recall as accurately as you can what – and I've said what they said to you. I will come back to that in a moment – but just what was said about what happened. What did they say had been done with the knife?---Put – they put it in the sink and washed it with water.
Who were you told washed the knife?---I can't remember.
When I asked you these questions I said what did they say. Who was telling you, who was giving you the description?---I can't remember. It was Tony or Ben or both of them. I can't remember.
You were being filled in about what had happened?---Yes.
By, well, you would say by both of them?---Yes.
And this conversation is taking place amongst the people in the room where you've described and the people you've described?---Yes.
Did Ben raise, bring up the question of self-defence?---Yes, he did.
What was said?---I think Ben was only joking though.
Don't worry about only joking. I want to know what was said?---He had a scratch on his back and he said to Warren and me or just Warren I think it was or to everyone.
Hang on. You've got a very soft voice?---Sorry.
And it's hard to hear you and if I'm having difficulty the jury will be having difficulty. The question of self-defence came up, you thought Ben was joking?---Yes.
What did he say?---He said he had a scrape on his back and said oh, do you think I could say, you know, he hurt me and that's why I did it to him, you know, just joking around.
And then he just started crying.
Did he say how he got the scrape on his back?---No, he didn't.
Did he say anything about his running away?---I can't remember.
Did he show you the mark on his back?---Yes, he did.
I will ask you again: Can you recall if he said where he got that?---No, I can't remember.
And then you say he started to cry again?---Yes.
When you say you thought he was joking, why did you draw that conclusion?---Because he didn't go on about it and he just – it wasn't a thing that he was worried about and he was just – and he just had a little grin on his face when he said it and so that's why I thought he was joking."
Although the witness was challenged by counsel for the accused with respect to her recollection of the conversation and specifically who provided her with the description of what had taken place -
"Are you able to say whether it's possible that you got your best understanding of what had apparently happened, therefore, from Tony rather than from Ben?---I really can't say.
Can't say for sure?---Yes.
You said to Mr. Horgan that you can't remember who was giving the description of what was happening or what had happened, but you said that you were being filled in by both of them?---Yes",
it is to be observed that her evidence that the accused dealt with the possibility of raising self-defence in the fashion and circumstances set out above was never disputed.]
… 645 Q.
A.Do you wish to say anything in answer to the charge?
Self defence.
Counsel’s argument with respect to the possibly relevant circumstantial matters is encapsulated in the following passages from the transcript:
"Mr Langslow: There are a series of circumstances and the first of them relates to the deceased and his circumstances, that is that there is evidence that he was dealing in drugs and that in that occupation the jury may be and would be entitled to infer, in my submission, that that would require an attitude towards self-help in, that is no police, in what’s called in the underground, I suppose, the rip-off situation. In other words, a person who needs to be prepared to use violence to protect what is his. So that’s one circumstance, it’s put.
Your Honour, further that on the evidence that the jury could conclude, infer that the deceased was a strong willed, determined man, young man, in particular from the circumstance that it’s apparent from Mr Wilson Senior’s evidence that his father, that he, Mr Wilson Senior, was against his son’s involvement in this practice and yet his son persisted to the degree that his father moved out yet remained close to him in that he bought him meals, so that shows something about the deceased’s determination to persist in this activity. There is evidence from Mr Wilson as well that there had been previous incidents, and to use the term again, rip-offs, or intrusion into the premises, only one of which was reported to the police and that all relates, all matters, relate to the degree to which the deceased was or may be prepared to go to protect his property.
Then there is a further matter, Your Honour, that relates to the evidence given of times by Mr Jasper and Mr Stewart and the evidence of the dispatch of the car – I’m sorry, Jasper and Stewart to the scene following the phone call from Mr White. In other words, that dispatch was at 10.45. Mr Stewart and Mr Jasper arrive six minutes later at 10.51 and the ambulance you will recall arrived three minutes after that at 10.54. It is immediately apparent – having regard to the evidence that was given by Mr Stewart and Mr Jasper about events that occurred before the ambulance got there – that in these circumstances there was time for a great deal of activity in the interval between Mr White’s departure from the premises at some time prior to 10.45 and the arrival of police at 10.51. There is six minutes there and probably the necessary time it will take Mr White to get from the service station to the house.
His Honour: What follows from that?
Mr Langslow: What follows from that relates in part to an answer that I referred you to before on question 324. That relates to the smashing with the gun, and I don’t think I’ve referred to the actual answers where he said he was down, he was down on the floor. My client was out on the floor, having been smashed with the gun, and he speaks of being confused and concussed or something. That coupled with evidence from Mr White that the deceased had the gun at the time of or prior to the actual entry into the premises by the intruders and he still had it seven or eight minutes later when Mr Stewart looked through the window would tend to suggest, I’m intending to put it, that the jury might well infer that – and there are some other facts of the matter – Mr Wilson went out of the house for a period and then came back in.
His Honour: Wilson went for a period and came back in?
Mr Langslow: Yes.
His Honour: And apart from your own imagination, upon what do you base that proposition?
Mr Langslow: I suppose there is a bit of imagination. Perhaps it’s not. Your Honour, it’s put that the jury would be entitled to infer that from a series of things, one of the things being that Mr White refers to a bang as he goes out the back door from somewhere else in the house. He says it sounds like a door, could be the front door, and it could be Wilson going out the front door."
…
"… Mr Langslow: I put that there is a series of circumstantial matters which would tend to suggest that the gun was fired at a time shortly prior to the police car turning the corner, and that if it wasn’t fired inside then it must have fired outside, and at that time – I know the fact that such a thing is not mentioned by my client is a matter that tends against it, of course, but he does say or he speaks about being hit in the head and possibly concussed or confused and he talks about being intoxicated."
…
"… Mr Langslow: … what I was going to suggest is that my client is down and at a later time the jury might infer that when he comes around he has compressed events in his mind which arose over a relatively extended period, that is seven or eight minutes into events which on their face would only take the period of time that Mr Stewart was looking in the window to cover and that can’t be right.
His Honour: No, what it does suggest is that your client and his conspirators were considerably more determined to get that safe than the description [given by the accused would suggest (my interpolation)].
Mr Langslow: That’s another way of looking at it. That’s one way of looking at it. I appreciate that and I appreciate the forensic damage in putting this argument, but that’s what I seek to do and I seek to put this argument based on a series of matters principally relating to the gun. I’m happy to go through all of those.
His Honour: I understand the way in which an argument that the gun had been discharged would be formulated.
Mr Langslow: So what I was really wanting to suggest, Your Honour, was because of Wilson’s possession of a gun throughout that extended period it suggests at the very least the jury would be entitled, to infer that the conflict wasn’t continuous as it appears to be described to be in the long answer given by Williams when Mr Tremaine has explained it in his own words and that, for example, the bang heard by Mr White could not be the same bang which is heard by Mr McDonnell because of the lapse of time and the description given by each of those people. So that they would be entitled, in my submission, to infer that the first noise was the noise of a door and the second noise was the noise of a gunshot. So that my client doesn’t have the benefit of being able to say that he heard a gun shot and that that had an influence on his actions because he doesn’t refer to it at all. Anyway, that’s the basis of it, Your Honour. So what I’m putting is that firstly the answers in the interview alone, despite their somewhat confused nature, are capable of raising the issue in a way that if it ought be left to the jury, despite the illegal entry and despite the fact that Mr Wilson was entitled to defend himself and his own property, it’s my submission that there is still a matter of self-defence capable of going to the jury on the evidence of the record of interview alone and that there are a series of circumstances which, in my submission, are capable of assisting him in that regard. I have tried to put them in a way that whilst they mightn’t appeal as arguments to Your Honour, in my submission, are matters which are capable of being put forward to the jury and from which the jury could draw inferences favourable to him."
In that passage, I indicated that I understood how an argument that the shotgun may have been fired would be formulated. In this context, I was adverting to the evidence of the possession by the deceased of the weapon, the presence of residue and a fired cartridge within it, the evidence of Mr White and Mr McDonnell as to the hearing of a bang, and the presence of a cartridge in the jeans pocket of the deceased. I was also mindful of the evidence of the father of the deceased that his son kept a fired cartridge in the gun to protect the firing pin, the evidence of the various police members concerning the absence of any physical damage to the premises and the absence of any odour in the premises or on the weapon indicating discharge, the evidence that no wad was located although a search of the area was conducted, and the absence of any assertion by the accused in his interview that the gun had been fired.
The contention that the weapon may have been discharged deliberately, or accidentally was supported by very little evidence indeed. However, if one conjectured that at some stage and at some unknown location the shotgun may have been deliberately or accidentally fired, the conceivable circumstances under which this may have happened and any possible bearing of this discharge on the question of the availability of self defence as an issue to be considered by the jury would be dependent not upon any evidence before them but upon the limits of their imaginations.
Counsel endeavoured to deal with the array of problems presented by the evidence on this aspect by suggesting that his client may have been confused and the gun may have been fired outside the premises. The resort to assertions of this kind emphasises, in my opinion, the wildly speculative character of a self-defence scenario which the defence was arguing should be put before the jury, and which raised the possibility that the accused may have acted in part in response to the possible discharge of the weapon although he did not remember or claim that he did so.
There was nothing in the evidence which could support the contention that at any stage prior to the stabbing the accused or either of his companions may have decided to withdraw from the enterprise or to break off the confrontation with the deceased. The description provided by the accused to the police raises that possibility neither directly nor even by suggestion. There is nothing in the evidence that could raise the reasonable possibility that the occasion for self-defence by the deceased had passed so that he had no further need to defend himself or his property or which suggests that he may have so perceived the situation or that this view may possibly have been adopted by the accused man. Finally, in my view there was no basis for placing before the jury the possibility that the response of the deceased may have been unreasonable in the circumstances, bearing in mind that the assessment of reasonability was a matter for them to determine.
On being so informed, counsel for the accused indicated that he would seek instructions from his client to ascertain whether the matter could be taken any further. He subsequently announced that there would be no other evidence adduced which could bear on the question.
I then determined finally that the issue of self-defence would be withdrawn from the jury's consideration.
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