Rebecca Anne Massey v The Queen - [2013] ACTCA 5

REBECCA ANNE MASSEY v THE QUEEN
[2013] ACTCA 5 (24 January 2013)

APPEAL AND NEW TRIAL – appeal against conviction – murder – directions to jury – self-defence – Zecevic v Director of Public Prosecutions (Vic) (1987) 162 CLR 645 considered – trial judge directions adequate – appeal ground dismissed
APPEAL AND NEW TRIAL – appeal against conviction – murder – directions to jury – element of intention – trial judge not required to canvass whether the Crown’s cross-examination of the appellant involved a non sequitur – appeal ground dismissed
CRIMINAL LAW – murder – self-defence – where accused the “original aggressor” – burden of disproving self-defence – Crown must prove beyond reasonable doubt that original aggression by accused had not ceased prior to the conduct alleged to be in self-defence

Anandan v The Queen [2011] VSCA 413
Hargraves v The Queen (2011) 245 CLR 257
R v Nguyen (1995) 36 NSWLR 397
Zecevic v Director of Public Prosecutions (Vic) (1987) 162 CLR 645

ON APPEAL FROM A SINGLE JUDGE OF THE SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

No. ACTCA 16 – 2011
No. SC 168 of 2010

Judges: Higgins CJ, Refshauge ACJ and Rares J
Court of Appeal of the Australian Capital Territory
Date: 24 January 2013

IN THE SUPREME COURT OF THE       )          No. ACTCA 16 – 2011
  )          No. SC 168 of 2010
AUSTRALIAN CAPITAL TERRITORY    )
  )

COURT OF APPEAL )

ON APPEAL FROM A SINGLE JUDGE OF THE SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

BETWEEN: REBECCA ANNE MASSEY
Appellant

AND: THE QUEEN
Respondent

ORDER

Judges:  Higgins CJ, Refshauge ACJ and Rares J
Date:  24 January 2013
Place:  Canberra

THE COURT ORDERS THAT:

The appeal be dismissed.

IN THE SUPREME COURT OF THE       )          No. ACTCA 16 – 2011
  )          No. SC 168 of 2010
AUSTRALIAN CAPITAL TERRITORY    )
  )

COURT OF APPEAL )

ON APPEAL FROM A SINGLE JUDGE OF THE SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

BETWEEN: REBECCA ANNE MASSEY
Appellant

AND: THE QUEEN
Respondent

Judges:  Higgins CJ, Refshauge ACJ and Rares J
Date:  24 January 2013
Place:  Canberra

REASONS FOR JUDGMENT

THE COURT:

After a trial before a judge and a jury of twelve, the appellant was convicted of the murder of Elizabeth Booshand on 25 July 2008. The sole substantive issue at the trial was whether the appellant acted in self-defence. The appellant appeals against the conviction. The appellant raised four grounds of appeal, three of which are interrelated in respect of the trial judge’s directions on the question of self-defence and the fourth as to the adequacy of his Honour’s direction on the question of intent.

BACKGROUND

The appellant was 35 years old at the time of the death of Ms Booshand. She and the deceased had known each other for over 15 years. They had been acquaintances who had been on reasonable terms until about seven or eight years prior to the events of 25 July 2008. They had fallen out in acrimonious circumstances. They had had previous altercations where they screamed and yelled at each other and, according to the appellant, Ms Booshand had offered to fight her.

In the few weeks preceding 25 July 2008 the pair had had a recent altercation. They were on the same bus going home from Belconnen to the area where they both lived near Charnwood. The appellant went towards the school to pick her son up and claimed that Ms Booshand and her partner, Terrence (Terry) Rogers, continued towards the shop. The appellant claimed that Ms Booshand uttered provocative remarks and that she responded by sticking her finger up in the air at Ms Booshand. She claimed that they had an argument, in which they were both yelling and screaming, and which became more heated. The appellant claimed that Ms Booshand threw a punch at her but missed, after which one of the other persons present took her away. The appellant said that during this exchange Ms Booshand threatened her by saying that Ms Booshand was going to “fucking kill me, that I was dead, that I was gone”.

The appellant carried a pocket knife. She was unable to say for how long prior to the events leading to Ms Booshand’s death she had been doing so. She claimed that she carried the knife because she was scared that Ms Booshand was going to stab her. She claimed to have been told by another friend, Tania Diaz, during the morning or afternoon of 25 July 2008 that the deceased had warned Ms Diaz by saying, “Tell that Bec Massey I’ve got a blade with her name on it, or a knife with her name on it”.

The appellant said that Ms Diaz had told her to be careful because Ms Booshand had said that she was going to get her.

On the evening of 25 July 2008, the appellant, her partner, Michael Marshall, her brother, Paul Fredrickson, her son, Jordan, and her friend, Candice Perry, with Candice’s son went to the Charcoal Chicken shop at Charnwood shops. By coincidence, Ms Booshand, Mr Rogers, and the deceased’s young daughter also went to the chicken shop. Ms Perry told the appellant that Ms Booshand was in the shop waiting for her dinner. The appellant left and went outside, saying in her evidence-in-chief that she did so because she did not want to get into a fight in the takeaway. Closed circuit television footage showed that when the appellant was outside the shop she was apparently addressing inflammatory remarks in a loud voice to Ms Booshand. The appellant’s presence outside came to the deceased’s attention and although Mr Rogers sought to restrain her from going outside, she did so.

Various witnesses gave evidence about the course that events took from that point. The trial ran for four weeks and many different witnesses gave evidence as to those events. We shall return to these later in these reasons. Suffice to say that, as might be expected with a considerable number of witnesses giving evidence nearly three years after the events, a variety of substantially different recollections emerged about what happened. Two principal factual scenarios emerged from that evidence on which counsel came to address the jury in closing and about which the trial judge made observations in his summing up.

The first scenario was that Ms Booshand went outside the chicken shop and responded to the appellant’s taunting, they scuffled, pulled each other’s hair and engaged in an affray, before Mr Rogers and or Mr Marshall succeeded in separating them temporarily, while the men became engaged in their own minor skirmish. After a break following the separation of the two women, the appellant moved down an alley near the chicken shop and in very quick time Ms Booshand followed her there. They then fought, culminating in the appellant pulling out the pocket knife, either from her handbag or pants, and stabbing Ms Booshand a number of times including twice in the chest area. One such stab wound in the chest caused the injuries leading to her death very shortly afterwards at Canberra Hospital.

The second scenario was that after Ms Booshand emerged from the chicken shop, the events escalated in what appeared to be one continuous incident, with no discernible intermediate break, culminating in the fatal stabbing.

THE SUMMING UP

The trial judge gave general directions as to how the jury were to approach the legal elements of the offences of murder and the alternative charge of manslaughter. He provided the jury with written directions about which no complaint is made. The written directions as to murder were in the following terms:

ELEMENTS OF THE OFFENCES
MURDER
The prosecution must establish:
1.   That it was the deliberate act of the accused in stabbing the deceased which caused her death; and
2.   That that act was done with an intention to kill the deceased or with reckless indifference to the probability of causing death; and
3.   That that act was not done in self-defence.
An act is not done in self-defence when the prosecution has established beyond reasonable doubt either:
(a)that the accused did not believe that it was necessary in self-defence to stab the deceased with the intention of killing her or with reckless indifference to the probability of causing death, or
(b)that there were no reasonable grounds for forming any such belief.

His Honour gave further written directions to the jury on the elements of the offence. Relevantly, these included:

The second element –MURDER
Intent and intention are words which carry their ordinary everyday meaning. Before you may convict the accused of murder, the prosecution must prove beyond reasonable doubt that the deliberate act of the accused was done either with the intention to kill the deceased or with reckless indifference to the probability of causing death. An act is done with reckless indifference to the probability of causing death if the accused foresaw or realised that her act would probably cause the death of the deceased but she continued with that act regardless of the risk of death.
If the prosecution has not proved beyond reasonable doubt either of the foregoing, the accused must be found not guilty of the charge of murder and must be acquitted of that charge.
The third element – MURDER AND MANSLAUGHTER
If it is reasonably possible that the accused believed upon reasonable grounds that it was necessary in self-defence to act as she did, the accused is entitled to be acquitted.
That belief is to be determined not by what a reasonable person would have believed, but by what the accused person might reasonably have believed in all the circumstances in which she found herself.

His Honour explained those written directions orally and no complaint is made about that explanation. He made it clear to the jury at this point that, in order for the Crown to prove murder, it had to establish each of the three elements beyond reasonable doubt. In particular, in dealing with the third element, his Honour explained that the prosecution had to establish beyond reasonable doubt either that, first, the accused did not believe that it was necessary in self-defence to stab Ms Booshand, either with the intention of killing her or with reckless indifference to the probability of causing death or, secondly, there were no reasonable grounds for the appellant to form any such belief.

Those directions were taken from the statement of the elements of self-defence by Wilson, Dawson and Toohey JJ, with which Mason CJ and Brennan J agreed, in Zecevic v Director of Public Prosecutions (Vic) (1987) 162 CLR 645 (Zecevic) at

661–2. His Honour repeated the need for the prosecution to establish that the relevant act was not done in self-defence, where the Crown had the onus of proving this beyond reasonable doubt for the purposes of the alternate count of manslaughter. He told the jury that one aspect of the first element that the Crown had to prove was that the act of stabbing had been the deliberate act of the appellant. He said that it was clear from what she had said in her evidence that the stabbing was her deliberate act and not an involuntary one.

The primary judge also explained that the second element, that the Crown had to prove beyond reasonable doubt to establish murder, was that the accused did that act either with the intention of killing Ms Booshand or with reckless indifference to the probability of causing death. He said that “intent” and “intention” were ordinary words which carried their ordinary meaning. He explained that the third element had to be approached by the jury considering whether it was reasonably possible that the accused believed, upon reasonable grounds, that it was necessary in self-defence for her to act as she did. If so, he told them, she was entitled to be acquitted. His Honour then directed the jury that this belief was not that which a reasonable person would have believed, but what the appellant might reasonably have believed in all the circumstances in which she found herself.

THE DIRECTIONS AS TO INTENT

In approaching the issue of intention, his Honour directed the jury that the mental element was the state of mind of the appellant with which she did the act causing death at the particular point of time. He told them that they could infer what a person’s state of mind was at any particular point from considering her state of mind leading up to that time and sometimes afterwards, and that they could look at every part of the series of events that took place before and after the act causing Ms Booshand’s death. He told the jury that a person’s intention could be inferred or concluded from the circumstances in which death occurred and from the conduct of the person before, at the time of, or after the specific act that caused the death and then continued:

Where a specific result is the obvious and inevitable consequence of a person’s act and where that person deliberately does that act, you may readily conclude that that act was done with the intention of achieving that particular result and that’s, in effect, what the prosecution argues here.
The prosecution says that if you find beyond reasonable doubt that Ms Massey stabbed Ms Booshand a number of times, she did so with the intention of killing her. The prosecution says that you look at the injuries inflicted and where they were inflicted and in that regard, reference was made to the two very serious stab wounds.

The appellant contends that this direction on intention was erroneous. It is the basis of the fourth ground in the notice of appeal. His Honour followed this direction immediately afterwards by saying that the prosecution had pointed to the fact that the appellant was apparently uninjured in what was described as a violent incident. He reminded the jury of prosecution counsel’s reference in address to the evidence of Mr Hawke and Mr Evans who were independent witnesses of the events (see [62]–[65], [67]–[68] below). He also reminded them of the need to have regard to the appellant’s counsel’s observations concerning those men and their evidence about what they had seen and heard. He told the jury that whether or not they drew the inference of intention depended on all the circumstances of the case, taking into account what the appellant had said about the consequences she intended and, in particular, her denial of any such intent. He explained that the law required that, to have an intent to commit murder, the appellant had to contemplate or foresee that death was probably a consequence or a likely result of what she was doing. His Honour also instructed the jury that, if she had not come to that realisation but determined to go on and commit the act, regardless of the likelihood of death resulting, if the death did in fact result, then she would also be guilty of murder.

THE DIRECTIONS AS TO SELF-DEFENCE

The primary judge instructed the jury that the prosecution had to prove, beyond reasonable doubt, that the appellant did not act in self-defence. He told them that there were two possible ways for the prosecution to prove that she was not acting self-defence. The first way was for the prosecution to prove beyond reasonable doubt that the appellant did not believe that it was necessary to do what she did to defend herself. The primary judge said that that involved assessing her state of mind at the time by considering the threat that the appellant believed she faced, whether she believed it was necessary to react to that threat with force and to react with the level of force used, in order to defend herself or whether she was acting for some other purpose. His Honour reminded the jury that in making that assessment they had to consider the circumstances as the appellant perceived them to be at the time that she committed the acts. He said that it did not matter that the jury thought she might be mistaken about the danger she faced or that she had overreacted to the threat. His Honour instructed the jury that the question was whether the prosecution had proved that the appellant did not believe that it was necessary to act in the way she did to defend herself against the danger that she thought she faced at that time.

His Honour turned to the second way in which the prosecution could negative self-defence. He told the jury that it would be achieved if the prosecution could prove that, even if the appellant believed the acts were necessary, that belief was not based on reasonable grounds. He instructed them that they had to consider the circumstances as the appellant perceived them to be at the time that she stabbed the deceased, saying:

You must determine whether the prosecution has proved that it was not reasonable for her to have acted in the way she did in response to the threat she believed she faced.
Again, it doesn’t matter if she was mistaken about that threat, so long as her response to the threat in all the circumstances, as she perceived them to be, was based on reasonable grounds.

His Honour then told the jury that in determining whether the appellant acted in self-defence they had to take into account all the circumstances in which the act occurred. He instructed them to consider her claim that she was acting in response to an imminent threat saying that in such circumstances a person could not be expected to weigh precisely the exact amount of self-defence that was required. He instructed the jury that they should not look at the situation with the benefit of hindsight but instead take into account the fact that calm reflection could not always be expected in a situation such as the one in issue. He explained that this was the reason the law did not require the force able lawfully to be used in self-defence to be proportionate to the harm threatened. After explaining this concept his Honour then made the following statement that forms the basis of the first three grounds of appeal:

If Ms Massey started the fight with the deceased or willingly engaged in it, she cannot claim to defend herself in a counterattack unless her original aggression had ended at the time of the counterattack. If she had ended her aggression, but was then required to defend herself against a new attack, the law allows her to raise self-defence. And the issue for you therefore is whether Ms Massey had ended her aggression at the time that she stabbed Ms Booshand. If the prosecution has proved beyond reasonable doubt that her aggressive behaviour had not ended at the relevant time, then you must find that she did not act in self-defence.

Immediately after this, his Honour explained the circumstance that gave rise to the appellant’s claim to act in self-defence by taking them to her evidence which he introduced as follows:

Now as to the circumstance that gave rise to Ms Massey’s claim to act in self-defence, her evidence was this and this is taken from her cross-examination by Mr Lundy. He asked her, “All right. Now it’s following that you say that Elizabeth attacked you?” And her answer was yes. “And where were you actually when she came and attacked you?” Ms Massey said, “I was in the alleyway. Just in the alleyway on the corner”. She was asked, “And what’s the first thing that happened?” Ms Massey’s answer was, “I – the first thing I remember happening is that she grabbed my hair. I think I probably grabbed hers in return”.

The starting point chosen with the second stage of the interaction between the appellant and the deceased is the first scenario referred to in [8] above. His Honour went on to quote from the balance of the appellant’s cross-examination on this point. There she said that the two women fought by throwing punches, struggling and pulling hair. The appellant admitted that she had probably thrown punches and that the deceased had thrown punches. She was asked where the deceased punched her and replied that she could not recall exactly what had happened because of it all being too fast. She said that it was very hazy and said that the main thing she remembered was the deceased pulling her hair.

The appellant said that the next thing that happened was that she got the knife out while the fight was going on. The appellant said that she was not sure whether the knife was in her bag or pocket but that, after she had taken it out, she stabbed the deceased while they were in the alleyway “sort of halfway up the ramp and against the wall. There was a struggle, like I said and it all happened so fast. I can’t exactly say. I didn’t — I didn’t try to stab her anywhere. I stabbed her to try and stop her coming at me”. His Honour told the jury that those were the circumstances from the appellant’s main evidence as to her point of view of what took place. He then said:

The fact that Ms Massey was in a willing fight with Ms Booshand is one of the factors for you to consider when determining whether she believed her act in stabbing Ms Booshand was necessary. You can also take it into account in deciding whether Ms Massey’s belief was based on reasonable grounds in the circumstances the violent struggle between her and Ms Booshand.

His Honour then reminded the jury of the evidence of Mr Rogers and Karen Grainger relating to Ms Massey’s aggression and the defensive stance taken by Ms Booshand. His Honour reminded the jury that their evidence had been subject to detailed criticism by counsel for the appellant as to its reliability and partiality. He noted that Ms Grainger’s evidence should be scrutinised by the jury with care and caution. He told them that they should be cautious in accepting Ms Grainger’s evidence having regard to an intervening nervous breakdown and the treatment for it that she had undergone since the night in question. His Honour reminded the jury that both the prosecution and defence had dealt with evidence given by Mr Marshall saying that this evidence gave support to there being the two incidents as the appellant had said there were.

The jury had the transcript of the evidence of the trial with them in the jury room.

THE APPLICATION FOR REDIRECTIONS

After the jury retired, counsel for the appellant relevantly asked for two redirections, with respect to the summing up, the first, on intention and the second on the issue of aggression by the appellant with respect to the use of self-defence. First, he asked the primary judge to direct the jury that it was the appellant’s unchallenged evidence that she denied intending to stab the deceased in any particular part of her body and that this evidence went specifically to the question of whether the jury could infer an intention from a result.

Secondly, counsel for the appellant also asked for a redirection on the part of his Honour’s summing up quoted in [19] above. He argued that this had conveyed to the jury that, unless there was a new attack, the appellant could not claim that she acted in self-defence. He also contended that this portion of the summing up contained a pre-supposition that the appellant had been the original aggressor by raising the issue for the jury of whether she had “ended her aggression at the time that she stabbed Ms Booshand”. Counsel for the appellant argued that there was a fundamental point that the jury needed to consider as a matter of fact, namely whether there was just one single altercation or two. He argued that the charge to the jury effectively started in the middle of the incident and assumed an original aggressive attack by the appellant rather than her acting in response to an original aggressive action towards herself by the deceased. Counsel argued that it was not correct for his Honour to have charged the jury by saying that:

If Ms Massey started the fight with the deceased or willingly engaged in it, she cannot claim to defend herself in a counter attack unless her original aggression had ended at the time of the counter attack.

His Honour indicated that he accepted that he should draw the jury’s attention to the evidence of the deceased’s aggression. Counsel for the appellant pointed out that more witnesses than Mr Marshall, Mr Rogers and Ms Grainger had given evidence about the fight between the appellant and the deceased. Counsel argued that each of Mr Marshall, Mr Rogers and Ms Grainger were interested parties and that there were disinterested witnesses who were members of the public who had given evidence more consistent with there being two phases in the fight.

His Honour gave the following redirection on intent:

You’ll recall that in the context of intention and intent I pointed to how the prosecution might seek to have you infer an intent and I added that in particular one of the other matters that you need to take into account is Ms Massey’s denial of any such intent. In that context, it’s important if you’re drawing inferences concerning what happened to appreciate Ms Massey’s evidence which was to the effect that she was not aiming for any part of the body in relation to that particular aspect. So, as well as her denial, it is whatever you might draw from her acts that you’re entitled to have regard to.

His Honour then gave the jury the following redirection on the issue of aggression in the context of self-defence:

I also spoke about the issue of aggression in the context of self-defence and in particular pointed out that a person who was an aggressor would not have available to them self-defence. Of course, the issue of who was the aggressor in this matter is a matter very much for you to determine on the evidence and you’ll recall the evidence that was given and that Mr Pappas [counsel for the appellant] went into in quite some detail concerning the aggression on the part of Ms Booshand in leaving the premises and in those aspects of the evidence where she could be said to be the aggressor.
You need, of course, if you are to look at that aspect as far as Ms Massey is concerned be satisfied beyond reasonable doubt that she was in fact the aggressor in any event, but more particularly you have regard to the – when I pointed to Mr Marshall’s evidence concerning the two incidents which evidence that – and you’ll recall from Mr Pappas’ address that is supported by a number of other witnesses concerning the issue of a flare up that it’s not only Mr Marshall’s evidence of that aspect but also the evidence of other witnesses.

EVIDENCE OF THE WITNESSES

Terry Rogers

Mr Rogers was the partner of the deceased. He said that he saw the appellant leave the chicken shop to stand directly outside the front door taunting the appellant to come outside. He decided to walk outside in an attempt to get the appellant and her companions to leave and asked Ms Grainger to keep the deceased in the shop until he had succeeded. He saw the appellant outside at a table and slightly to the left of the door as he exited the chicken shop. As he started walking out the appellant’s brother, Mr Fredrickson, came towards him from his right hand side shouting abusively and calling for a fight as the deceased and Ms Grainger followed him out the door of the chicken shop. Mr Rogers said that the appellant stood up and, as he looked back towards the deceased and Ms Grainger, he saw the appellant strike the deceased in the chest when they were about two to three metres from the front door of the shop and about the same distance from him.

He said he saw the appellant strike the deceased in the chest in a lunging motion with her right hand around the breast area. He saw the deceased’s hands come up in a defensive motion. He turned around to Mr Fredrickson who was screaming and then turned back and saw the deceased coming towards him with a large blood stain on her chest. By then the appellant had run off but Mr Fredrickson remained.

In cross-examination Mr Rogers said he saw the appellant running up the alley perhaps 30 seconds after the lunging into the deceased’s chest which he had described. He did not see the deceased and the appellant in a wrestling match, or grappling with each other, or falling on the pavement together. However, he explained that his attention was going between what the two women were doing and Mr Fredrickson’s continuing expressions of aggression. He said that the two women were nowhere near the alleyway at the time he observed the lunging motion and that they were near the front of the shop.

Mr Rogers said that he had not heard anyone call out “I’ll stab you”. He said that when the deceased first came out of the chicken shop she and the appellant exchanged words for a short period of time.

Karen Grainger

Ms Grainger was a friend of the deceased. About six months before the trial Ms Grainger suffered a mental breakdown and was diagnosed as suffering from post traumatic stress disorder that had affected her memory. In evidence in chief Ms Grainger said that after unsuccessfully asking the deceased not to go outside the chicken shop, she followed the deceased there and saw Mr Rogers involved in an argument. However, after being shown closed circuit television (CCTV) footage taken from inside the chicken shop, Ms Grainger agreed in cross-examination that the deceased and her daughter, Shailee, followed her out of the shop.

In examination-in-chief, she said that she saw the deceased walk up to Mr Rogers and that the appellant was standing in front of the deceased in a group of others. In cross-examination Ms Grainger accepted that she had given evidence at the committal hearing that when the deceased left the chicken shop she approached the appellant and they started to argue. She had also said at the committal that when she went outside she saw Mr Rogers in a fist fight with another man.

Ms Grainger said that the deceased was in the laneway and that there was a lot of yelling and screaming focused on the deceased. Ms Grainger said that the appellant was yelling at the deceased aggressively and they were about a metre apart. She then noticed the appellant “punching into” the deceased’s chest as they moved around the corner. She said that the deceased was not punching back. Ms Grainger saw the deceased put her arms up to protect herself and shortly after she fell forward and lay in the laneway. Ms Grainger did not see anything in the appellant’s hand while she appeared to be punching the deceased.

Victor and Felicity Martin

Victor and Felicity Martin had ordered some food at the chicken shop earlier in the evening and were returning to collect their order. As they approached the shop they heard screaming and yelling. Mrs Martin said that she was about 50 metres away from the shop when she heard loud female screams. She saw two groups in front of the chicken shop angrily yelling at each other. They thought a fight was likely so she went towards their car while her husband went on to collect their order. Mrs Martin moved the car and parked it opposite the chicken shop by which time it was quiet, there were fewer people, only three women and a distressed child.

Mr Martin said that he was walking towards a loud verbal altercation, with screaming and yelling coming from two groups. However, he said that at this time the fight was verbal not physical. Mr Martin agreed that he had said in an earlier statement to the police that as he was about to enter the chicken shop, he heard a male say words like: “It’s because you hit my sister”. He thought that the fight had been going for some time but its intensity subsided as he walked toward the chicken shop’s entrance. He saw one of the persons that he knew who worked in the shop come out to collect rubbish on tables outside. When Mr Martin went inside the shop he heard the intensity of the fight resume. He saw that this occurred just outside the shop and towards his right (i.e. the laneway) and that it involved physical contact as well as yelling and screaming. After Mr Martin had collected his order, he left the shop and heard a young girl’s high pitched screaming. He saw a woman slumped in a white plastic chair to his right with people around her. He was referring to the deceased after she had been stabbed.

Chicken shop employees

Dimitrious Koutsougeras worked at the pizza oven in the chicken shop at a point furtherest away from the door. He heard females yelling and screaming, like a brawl was taking place, from outside the shop with the source of the noise moving from one side to the other as if the persons were chasing each other.

A number of other persons who worked in the chicken shop (Ashley Carey, Aaron Carey, Petros Berlis) gave evidence but they had no material recollection that bore on the issue of whether there were one or two separate incidents.

Counsel for the appellant did not suggest to any of those witnesses that there was a break between segments of the argument or raised voices that those employees recollected hearing from inside the chicken shop.

The shopowner, Angelo Galanopoulos, said that, when he heard screaming and noise outside and the tables and chairs being moved, he went out to move the furniture closer to the shop where it belonged and asked the people causing the noise to go away while putting his hands up. He recognised the deceased and the appellant as part of the group. At this time had had not seen any physical fighting and had observed only yelling and swearing between the group. He could not remember but thought that the group moved away and he then went back into the shop. He next recalled hearing a little girl screaming.

On the seventh day of the trial, Lindsay Smith, the duty manager at the chicken shop, gave evidence. In his evidence in chief he gave an account in which the deceased left the shop after ordering her food and then returned to enquire about her order before suddenly leaving again. Mr Smith said that on the first occasion that the deceased left the shop he saw her, the appellant and Ms Perry in a group which he said was involved in an argument with raised voices. He saw a group on the right hand side of the shop (i.e. closer to the alleyway). He saw both the deceased and the appellant yelling at each other in the confrontation and people in the group variously pushing and shoving or trying to break up the protagonists. He saw the group moving to the right (i.e. towards the alleyway side).

Mr Smith recalled in chief that the group then dispersed and that then the deceased came back to check on her order and that when she went back outside “it sort of all erupted again” immediately outside the shopfront window on the corner of the alleyway. He recounted there was a lot more screaming between the deceased and the appellant but he did see them in a physical altercation, although he also saw others pushing and shoving. He said there was banging on the windows, tables and chairs and then a thud. The next thing he saw was the deceased lying on the ground and he called the ambulance.

Mr Smith’s cross-examination commenced with counsel obtaining his agreement to there being two distinct altercations, the first a larger one, interrupted by a break, with a second shorter one. Mr Smith looked at the CCTV footage with counsel for the parties over the lunch break. He then accepted that he had been mistaken about his recollection that the deceased had come back into the shop between the first and second parts of the altercation that were punctuated by the intervention of Mr Galanopoulos.

In cross-examination, Mr Smith accepted as accurate what he had said in his contemporaneous statement to the police. There, Mr Smith had said that he looked outside and saw the deceased and the appellant involved in a physical altercation with others pushing and shoving, that moved from the left to the right of the shopfront before the group dispersed after Mr Galanopoulos’ intervention. He said the second part of the altercation flared up again, when he heard raised voices swearing and observed further pushing of the furniture before it suddenly ceased when he heard a thud and the group dispersed.

Another employee of the chicken shop, James Giorgio, who was 15 at the time of the stabbing, gave evidence principally based on his statement given to the police on 1 August 2008. He appeared not to have any real recollection of the events when he gave evidence and his Honour allowed Mr Giorgio to refresh his memory from his statement.

Mr Giorgio recognised Mr Marshall by his ponytail as a regular customer when he made an order for pizzas. He saw Mr Marshall go outside the shop. Mr Giorgio heard loud female voices outside the shop uttering insults and threats and saw two women in the midst of a group of people. He said that he saw the appellant throw the first punch at the deceased and then reach out and grab the deceased’s hair.

Mr Giorgio said that the two women and the group moved closer to the front of the shop, then the appellant let the deceased’s hair go, they separated, moving 5–10 metres apart, and the group split into two. He said that Mr Marshall, in an apparent effort to separate the women, grabbed the appellant by the hair and they walked towards the alleyway and that about 30 seconds later Mr Marshall came into the shop and collected the pizzas. After this, Mr Giorgio said that he noticed a woman on the ground outside the shop.

Rebecca Paterson was working as a casual in the chicken shop and noticed the appellant and Ms Perry, whom she recognised as regular customers, come into the shop around 7.30 pm on 25 July 2008. Ms Paterson said that after the two women placed their orders, they went outside and then she heard loud voices outside and the tables and chairs being pushed around on the alleyway side of the shop. She saw the appellant and the deceased pushing, shoving and swinging their fists at each other. At that point, Mr Galanopoulos and Mr Smith told her to stop looking and to get back to work and Mr Galanopoulos went outside. Ms Paterson said that she saw Mr Marshall trying to move the appellant away from the altercation towards the alleyway. She said she heard the altercation then flare up again more intensely and when she looked outside she saw the deceased on the ground.

Robert Venn

Robert Venn approached the chicken shop and he noticed a group of about four people on his right whose voices were a bit loud sitting around a table. As he was going into the chicken shop a woman came out of the door yelling at the group at the table. While he was inside the shop, Mr Venn heard a lot of noise outside from two groups who were yelling angrily at each other. He noticed one tall male wearing a red top (Mr Fredrickson), who was gesticulating, moving between the groups. He said that the groups were moving constantly back and forth.

At one stage Mr Venn saw the male throw a punch that missed and the noise died down. And he said that at some point the two groups suddenly were no longer there and he assumed that they had moved towards the alleyway. After a time that he could not recall they returned when he heard more angry voices including one female voice that was a lot louder than the others. Then the noise stopped and he saw a woman (the deceased) slumped forward sitting in a chair.

Other customers

Peter East gave evidence of seeing a large altercation outside the chicken shop which, from his description, appeared to involve the appellant verbally abusing the deceased. He heard a man in a red jumper say to the deceased that he had seen her punch his sister in the face. However, Mr East did not give evidence dealing with any gap in the altercation or the circumstance in which the deceased was stabbed.

Another customer, Joanne Davies, gave evidence recalling mayhem and yelling outside the chicken shop after the deceased went outside despite being asked by her friend not to go there. She said that she did not hear the altercation flare up again a little before it came to an end.

Kerrie Bloomfield was inside the chicken shop with her housemate, Tahlia Waters. Ms Bloomfield went outside to smoke a cigarette and witnessed an altercation, with raised voices and some punches being thrown. Ms Bloomfield then said that she and Ms Waters comforted the deceased’s daughter after the stabbing. Ms Waters said that she saw the deceased come into the chicken shop with a man and little girl. She saw the deceased leave the shop and appear to be angry. Ms Waters said that the male went outside following the deceased and “then they all just got into a fight”. She said that the deceased and a woman who had been outside the shop were yelling and screaming. She observed the two women pushing, shoving and in a fist fight. Ms Waters was concerned for the little girl. She went outside and took the child away from the altercation that was occurring in front of the chicken shop. When cross-examined, Ms Waters firmly denied that the women moved near the alleyway. It was not put to her that there was any break in the fight.

As Peter Curtis approached the chicken shop, he noticed an altercation going on with swearing and yelling involving a group of people that included Mr Marshall, with whom Mr Curtis had once worked. When Mr Curtis went inside the shop he said that the groups were drifting towards the left of the entry (i.e. towards the alleyway). After he got inside Mr Curtis saw the deceased walk to a chair outside and then collapse in it.

Adrian Fox said that when he approached the chicken shop he noticed two men having some sort of discussion outside it and two women seated at one of the tables. Mr Fox said that, as he went inside the shop, the situation had developed into a confrontation and the shop owner went outside and tried, unsuccessfully, to quieten matters. Mr Fox left the shop and went to the nearby supermarket for five minutes. When he returned and as he was about to go inside the chicken shop he saw a little girl in front of the shop and towards the alleyway. He heard the young girl say, calling out towards the direction of the alleyway, something like “Don’t go there, mum”. Mr Fox could not, and did not, look for the person the girl was addressing. When he left the chicken shop, Mr Fox noticed the deceased sitting looking like she had a pain in the stomach.

Paul Fredrickson

Mr Fredrickson asserted that he had heard, but not seen, the verbal altercation and fight between his sister and the deceased that went on for some minutes. He asserted that for the whole of the time the two women were in dispute his attention was devoted to his own verbal altercation with Mr Rogers. Once again, no suggestion was put to Mr Fredrickson in cross-examination of any break in the hostilities between the appellant and the deceased.

Candice Perry

Ms Perry was friendly with, and knew of the bad blood between, both the deceased and the appellant. She had been at the appellant’s home with her 5 year old son earlier on 25 July 2008. Ms Perry and her son accompanied the appellant, Jordan, Mr Marshall and Mr Fredrickson to the chicken shop to get some food. Ms Perry, said that she, the appellant and their sons went into the chicken shop while the two men waited outside. Ms Perry pointed out to the appellant that the deceased was there inside and the appellant then left the shop. When her order was ready, Ms Perry collected it, went outside and spoke to the appellant who, she said, was seated on a chair with her head down. Ms Perry said that she saw that the deceased, muttering words in an agitated state, was looking out the window towards the appellant.

Ms Perry said that, as she told the appellant that Mr Rogers was calming the deceased down, Mr Marshall rudely told her to be quiet. Ms Perry said that she replied to the effect that she was not prepared to put up with that behaviour and began to leave for home. She said that the deceased, who by then had come outside, then asked her to look after Shailee “while I go and bash Bec”. Ms Perry said that she told Shailee to go to her father, and left walking down the alleyway where she waited because she was uncertain about whether she should return to look after both Shailee and Jordan.

While she was waiting in the alleyway, Ms Perry said that she heard a brawl with male and female voices yelling and screaming and the sound of movement of chairs. Ms Perry then began making her way home walking down the alleyway, when she saw the appellant, who appeared upset hurrying past her. She said that she asked the appellant what had happened and to call her when she got home, but received no response or call.

Michael Booth

Michael Booth was at the shops with his then girlfriend, Jane Griffiths. He was in the carpark and heard angry shouting near the chicken shop. He was concerned as Ms Griffiths was walking towards the dispute, so he set off quickly in that direction to catch up with her. He walked the 20 or so metres from the carpark to the chicken shop. He said that by the time he reached the vicinity of the chicken shop, he noticed, particularly, that the deceased sitting and the male closer to the door of the chicken shop appeared to be facing off and exchanging heated words with the appellant and another male who were in the area of the alleyway. Mr Booth said that he heard the man with the appellant say “That bitch punched my sister in front of her kid”. Soon after, Mr Booth noticed that the deceased was on the ground apparently severely injured.

Ben Hawke

Ben Hawke was visiting the Charnwood shopping centre to investigate a possible business venture at the Charnwood shopping centre. He arrived at about 7.45 pm and wanted to observe a takeaway shop, being the chicken shop. He saw a big crowd inside the shop and then he heard a few people arguing behind him; one woman was sitting on a chair and a man and woman were in front of the shop door. He said he then heard the deceased saying “I’ll fucking stab you, you slut”; the other woman reply “I’ll fucking stab you”; the deceased reiterated “Yeah, I’ll fucking stab you” and then a male tell them both to shut up. He said that the deceased, who was standing, moved towards the other woman and “had a shot at her just like a slap sort of thing”, there were then verbal exchanges and it “virtually pulled up at that stage”.

Mr Hawke said that then matters had seemed to die down a little but, a second male approached enquiring what was going on and tried to calm matters down. He said that about 30 to 60 seconds later the deceased said “You’re not so tough now”, stood up and “wanted to carry on with it again”. Mr Hawke said there was pushing, shoving, grabbing “and everything happened out the front of the shop” as the people involved moved towards its front wall. He said that the activity was among about five people but was not fighting.

Mr Hawke said that at some point a man of Greek appearance came out of “his shop” and tried to move the commotion away but he “got absolutely no result”. He said the shopkeeper then moved the tables and chairs out of the way and went back inside. Next, Mr Hawke said, people separated and moved away, calm returned, and he heard a little girl who was very upset and crying.

He turned to look at the child and then heard more screaming and noise coming from the alleyway side of the shop but not in the alleyway. He turned to where the noise was and saw one women swinging or swatting her right hand in a fast downward motion in the direction of the deceased, who was lying on her back with the palms of her hands facing outwards and straight up trying to stop whatever punches or attack was occurring. He said that this occurred straight in front of the alleyway. Mr Hawke said that the man with the other woman grabbed hold of her and went with her in the direction of the alleyway.

Cale Urosevic

Cale Urosevic was approaching the chicken shop when he noticed a group of people and heard one of them, a female, swearing at someone, apparently inside the shop, whom she said was staring at her. He went inside and saw two females, one of whom was the deceased, staring out of the front of the shop and then they went outside and began exchanging words with the woman outside. He heard yelling and saw the appellant yelling and swearing aggressively at the deceased. He said that the group was moving towards the right (i.e. the alleyway) and then the shopowner went outside. Mr Urosevic went outside and tried to interpose himself between two males who were arguing, in an attempt to calm them down. He focused on the males but heard the females screaming and yelling loudly at each other from what he thought was around the corner in the alleyway. He said that the shopowner made his presence felt and moved the chairs around but did not stay outside very long. The next thing that happened was that Mr Urosevic saw the deceased lying alone in the alleyway about 5 or 6 metres down it. He heard her say “Fucking Bec pulled my hair out”.

Adam Evans

Adam Evans emerged from a neighbouring take-away outlet, Bernie’s From the Bay, on the opposite side of the alleyway and heard a female yelling “Why did you hit her in front of her daughter?”. He said that the women were in the courtyard outside the chicken shop about 4 metres from the entrance to the alleyway. He went back inside the Bernie’s shop and came back outside, he estimated, a couple of minutes later. By that time, he said, the argument had dissipated, but about 10 seconds later he saw two females come out of the alleyway bent over, wrestling and grappling with each other. He said that it looked “pretty intense”. Next, Mr Evans said, one female pushed the other against the wall beside the alleyway and delivered an uppercut punch into the chest of the one against the wall who threw her head back and then fell forward. Mr Evans said that the woman who delivered the punch grabbed the deceased round both shoulders and they fell to the ground. He heard one male say “Get out of here” and then the female (puncher) and two males scrambled and ran up the alleyway.

Mr Evans gave a statement to the police at the scene later that night. He told the police that he did not see a weapon. He agreed that, in his statement, he said that he had heard a voice say “Why did you hit my sister in front of my son?”

Leah Blewitt

Leah Blewitt knew both the appellant and the deceased. She said that on about 6 July 2008 she had a telephone conversation with the appellant who described a recent altercation with the deceased. The appellant told Ms Blewitt that if she saw the deceased again she would stab her.

Michael Marshall

Mr Marshall, the appellant’s partner, said that he was outside the chicken shop with the appellant. He said that the deceased came out of the shop and verbally abused the appellant saying that she would kill her. He said that he got between the two women and told the appellant not to worry about things but the two began fighting in front of the shop and that they were both on the ground wrestling. He said that he separated them by pulling both of them by the hair. He said that the deceased was screaming at him. Mr Marshall said that Mr Rogers was arguing with Mr Fredrickson at that time near the door of the shop. Mr Marshall said that the deceased sat in a chair at a table and he was walking the appellant away. Next, he said that somehow he came to be arguing with Mr Rogers at the corner of the alleyway and, as he turned towards Mr Rogers, “it seemed like the click of the fingers and I turned back around and they [the deceased and the appellant] were both on the ground behind me” in the alleyway on a ramp. He said that the deceased was on top of the appellant and he, again, pulled them apart. Mr Marshall said that he had thought that the appellant had left after he had told her to go home and he had gone to pay for the food they had ordered. Then the deceased, who was now sitting at a table, told him that the appellant had stabbed her and he went home.

Mr Marshall telephoned the appellant when he returned home and asked where she was. He said that when she returned home, he said to her “Tell me you didn’t just stab her” and that the appellant responded “She tried to stab me”. The appellant pointed at where the knife was, underneath the back fence, and told Mr Marshall that he had to leave with the knife because the police would be there soon and she could not go anywhere. He then took the knife and hid it.

In cross-examination by the appellant’s counsel, Mr Marshall was taken to his police statement of 26 July 2008. When he made it, he had concealed his role in hiding the knife and later pleaded guilty to a charge in relation to that conduct. He gave evidence that he had asserted in the statement that the deceased had emerged from the shop and urged the appellant on to fight and that in response she had taken a step back and shaped up, clenching her fists and holding them in front of her. He also told the jury that in his statement he had said that the deceased had tried to fight the appellant a couple of times but the group of people had kept them apart. He described the deceased in the statement as “going off so hard core”, which he said meant screaming, swearing and threatening angrily. Mr Marshall also said that in his statement he had told the police that the first thing the appellant had said when he separated the two women on the second occasion was “That slut just tried to stab me”. He also said that in the statement, after he had asked the appellant to tell him that she had not stabbed the deceased, she said “No”, he replied that he had seen a mark on the deceased like a cut and the appellant responded “I told you, she tried to stab me”.

Later, Mr Marshall made a second statement to the police on 18 September 2008, after he had received legal advice and told the police what he had done with the knife.

OTHER EVIDENCE

There was undisputed medical evidence that the only recent sign of injury on the appellant, when examined at about 5 am on 26 July 2008, was a superficial abrasion of about 2 cm x 2 cm on her inner right thigh. In stark contrast, the autopsy of the deceased revealed six incised stab injuries, three being to her chest, one each to the back of her left thigh, back of the left shoulder and left elbow. She also had a fractured left seventh rib at the back. Two of the chest wounds were particularly serious. First, the deceased had a stab wound on her left anterior (front) chest that went through the cartilage of the fourth left rib into the left upper lung lobe, causing bleeding into the chest itself. Secondly, she had a stab wound between the eleventh and twelfth left front ribs into the thoracic cavity (i.e. the chest) through the diaphragm and into the spleen. Each of those two wounds was about 5 cm deep. Dr Matthew Lynch, who performed the autopsy, considered that at least a moderate degree of force was used to inflict those injuries. The third stab wound, to the left chest, on the side, was only superficial. The third chest stab wound and the wounds to the thigh, shoulder and elbow pierced the skin and penetrated the fat underneath the skin but not deeper.

A short time after she left the scene, the appellant went with Jordan to the house of her neighbour, Lisa Jones. Ms Jones said the appellant was very flustered and quite pale and told Ms Jones, “I just stabbed someone eight times” and demonstrated a stabbing action. The appellant took a cloth nappy that Ms Jones had used for cleaning, telling her that she needed to wrap the knife, which she still had with her, in it. Later that evening, the appellant told Ms Jones’ then partner, Paul Elson, that she had had an argument with the deceased at the shops and “before you knew it the stabbing had happened”. She gave Mr Elson a plastic bag to dispose of as it contained some of the clothing that she had worn during the fight.

There was also photographic evidence that a clump of the deceased’s hair was found at the scene. The deceased had had some heroin and a deal of wine. The deceased was not carrying any weapon.

THE APPELLANT’S EVIDENCE

We have summarised the relevant background given by the appellant at [2]–[6] above and those parts of her evidence to which the trial judge referred in his summing up at [21]–[23] above. The trial judge had admitted the appellant’s evidence of Ms Diaz’s conversation as going to her state of mind in relation to her perceiving risk at the hands of the deceased. The appellant was using methadone, valium and sometimes drinking in this period of her life.

The appellant said that on the night of the stabbing she was inside the chicken shop with Jordan, when Ms Perry pointed out that the deceased was also inside. The appellant said that she left because she did not want to get into a fight in the shop. That was, she said, because every time they saw each other the deceased would yell, scream and have a go at her, offering to fight. The appellant said that she went outside and sat on a chair at one of the tables. She said she saw the deceased staring at her from inside the shop, and then Mr Rogers approached the deceased but she left the shop. The next thing the appellant said that she knew the deceased was near her because she was yelling at her phrases like “You’re fucking dead, slut” which she reciprocated in kind. She stood up.

The appellant said that the men, Mr Fredrickson, Mr Marshall and Mr Rogers, then started arguing and the intensity of the argument she was having with the deceased increased. The appellant said that she said “I’m going to fucking kill you, you dirty slut”, the deceased said something similar and they had “a bit of a wrestling match” in which she and the deceased pulled the other’s hair. The appellant said that the two women might have thrown one or two punches and that she had been hit in the face on the left cheek with a closed fist. At this point they were still in front of the chicken shop but towards the alleyway side. She said that they were separated fairly quickly by Mr Marshall who told the appellant to go home.

The appellant said that Mr Marshall pushed her toward the alleyway and put his arm up against the wall so that she was standing behind him just in the alleyway. She said she was feeling angry, scared and “I was shitting myself”. The appellant said that the three men were continuing to argue and, because they were throwing their arms around, Mr Marshall took his arm away from the wall “and that’s when Liz came and attacked me”. The appellant said that the deceased came at her in the alleyway and grabbed her by the hair. The appellant said that she did not remember exactly what happened because “It’s a bit foggy … It happened so quick. It was just a fight. Punches were thrown. Hair was pulled. Yelling and screaming”. She said that the deceased punched her. The appellant said that she was scared that the deceased was going to stab her. She was not sure whether her knife was in her handbag or pocket, but she pulled it out and stabbed the deceased. It was a folding pocket knife. She said that she did not aim to stab the deceased in any particular part of the body but was only trying to defend herself. The appellant said that her efforts did not have an effect on the deceased who was still coming at her, getting angrier “by the minute”. She did not see that the deceased had any knife.

The appellant did not recall how many times she stabbed Ms Booshand and as they continued to struggle, they fell over in the alleyway with their heads just out in the area at its entrance. The appellant said that she was under the deceased and that Mr Marshall grabbed them both and told her to go home. The appellant said that she did not mean to kill the deceased but was scared that Mr Booshand would stab her.

In cross-examination, when confronted with the evidence of her medical examination at the police station that she had no cuts or abrasions on her face, the appellant said that there were injuries that the doctor had failed to note. She accepted that the deceased was wearing rings on all the fingers of both hands on the night she died.

The appellant accepted in cross-examination that she had deliberately taken her knife out and stabbed the deceased. She also accepted that the stab wound on the deceased’s chest was in the vicinity of the heart but said that she did not deliberately stab anywhere in particular.

The Crown put to the appellant that witnesses had described the second fight as a vicious one.

THE APPELLANT’S ARGUMENT ON INTENTION

The fourth ground of appeal was that his Honour misdirected the jury on the issue of intent. She argued that the direction set out in [15] above involved reliance on the Crown’s submission to them that the position and nature of the two main knife wounds were capable of creating an inference that those wounds were deliberately inflicted at the places they were. The appellant argued that his Honour failed to point out to the jury a non sequitur in the Crown’s argument and to direct them about all the circumstances in which the wounds came to be inflicted. She said that the non sequitur arose in the appellant’s cross-examination. She had been asked to identify where she understood that her heart was. After she had done so, the Crown put to her that, therefore, she knew that she was stabbing the deceased in an area where death or grievous bodily harm would be likely to result. The appellant argued because the deceased was not stabbed in the heart but in the upper torso, it did not follow that she knew any such thing. She also submitted that his Honour should have reminded the jury of the evidence that things happened very quickly, the stabbing occurred in the darkened alleyway and appellant stabbed blindly, merely to stop the deceased advancing on her.

THE APPELLANT’S ARGUMENTS ON SELF-DEFENCE

The first three grounds of appeal were argued together. Those grounds were that the trial judge:

(1) misdirected the jury in relation to self-defence;

(2) failed adequately to direct the jury concerning the evidence upon which the appellant relied in claiming to have acted in self-defence; and

(3) failed to relate his directions to the jury on self-defence to the evidence pertaining to that issue.

The appellant argued that these grounds were made out by the trial judge’s summing up. She contended that this would have confounded the jury and left them open to reasoning that the appellant could not rely on self-defence if she had “started the fight”, in the sense that she had stood outside the chicken shop and taunted the deceased until she came out from the shop. She complained that his Honour had failed to explain to the jury what “starting the fight” meant. The appellant argued that the decision of the Court of Appeal of the Supreme Court of Victoria in Anandan v The Queen [2011] VSCA 413 supported her proposition that it was a misdirection for the trial judge to tell the jury that she could not rely on self-defence if she had been the original aggressor and her aggression had not ceased.

The appellant also contended that the redirection on this question set out at [28] above compounded the problem created by the original directions. She asserted that his Honour did not withdraw the direction complained of but “merely repeated it, in balder terms, and then supplemented it with a further direction seeking to contrast the question of the appellant’s aggression (simpliciter) with the question of the deceased’s aggression (simpliciter)”. The appellant submitted that his Honour made only a passing reference to “the two incidents” and that was inadequate to undo the effect of the alleged initial misdirection because his Honour did not undertake a significant elaboration, of and reference to, the evidence. She contended that his Honour should have related his directions to the evidence concerning the initiation of verbal, as well as physical, hostilities between her and Ms Booshand and the continuation or interruption of any aggression by the appellant. She also argued that his Honour should not have asked the jury to begin considering their verdict until after he had heard and dealt with the application for redirections.

CONSIDERATION – GENERAL

In Hargraves v The Queen (2011) 245 CLR 257 at 275–6 [42] French CJ, Gummow, Hayne, Crennan, Kiefel and Bell JJ said that:

The judge in a criminal trial must accept the responsibility of deciding what are the real issues in the case, must tell the jury what those issues are, and must instruct the jury on so much of the law as the jury needs to know to decide those issues. The trial judge may, but need not, comment on the facts of the case. The trial judge may, but need not, suggest how the jury might evaluate the credibility of evidence that has been given. In some circumstances the common law or statute may require the trial judge to give a particular warning to the jury about factual issues. But informing and underpinning all of these requirements is that the judge's instructions to the jury, whether by way of legal direction or judicial commentary on the facts, must not deflect the jury's attention from the need to be persuaded beyond reasonable doubt of the accused's guilt before returning a verdict of guilty. (footnotes omitted)

CONSIDERATION – INTENTION

His Honour had identified for the jury the legal principles applicable to intention earlier in the summing up and began to relate these to the facts in the ways we described in [15]–[16] above. The trial judge reminded the jury of the essential factual basis of the prosecution case, including the location and nature of the two 5 cm deep stab wounds to the deceased’s chest. The Crown had argued to the jury, as it had put to the appellant in cross-examination, that, because she had stabbed Ms Booshand where she did at those two points in her chest, they could infer that the appellant intended that the wounds would kill. The trial judge also reminded the jury of the lack of injuries to the appellant and referred to the Crown’s reliance in address on the evidence of Mr Hawke and Mr Evans. There was no transcript or evidence of counsel’s addresses to the jury or the submission on evidence to which his Honour was referring at this point in the summing up. However, Mr Hawke graphically described seeing one woman swinging or swatting her right hand downwards towards the deceased who, he said, was lying on her back with palms outstretched trying to fend off the attack: see [65] above. Mr Evans said that a woman pushed the deceased against a wall and delivered an upper cut into her chest. He said that the deceased threw her head back and fell forward. He said that the other woman then grabbed the deceased round both shoulders and they fell to the ground: see [67] above. It is highly likely that the Crown had emphasised those aspects of the evidence of Mr Hawke and Mr Evans in inviting the jury to conclude that the appellant inflicted the stab wounds to the deceased’s chest with the requisite intention for murder.

His Honour followed the reference to the evidence of those two men with a reminder of the appellant’s counsel’s submissions to the jury on that evidence. The trial judge then concluded his remarks on this issue by instructing the jury that whether or not they would infer that the appellant had the requisite intention depended on all the circumstances, including what she had said about the consequences she had intended and particularly her denial of any intent to kill or cause grievous bodily harm. The trial judge later read out the appellant’s evidence, in dealing with the issue of self-defence, that the incident had happened quickly and that she had not tried to stab the deceased in any particular places, but rather had stabbed her to try to stop her attacking: see

[22] above. In his redirections, his Honour specifically drew that evidence to the jury’s notice in relation to the issue of the appellant’s intention: see [27] above.

In our opinion, his Honour’s original directions and summing up to the jury on the issue of intention have not been shown to be erroneous or to have affected the chance of the jury acquitting the appellant. His Honour’s redirection was more favourable to the appellant. It was not necessary for his Honour to canvass whether the Crown’s cross-examination of the appellant involved a non sequitur. The trial judge identified the factual matters to which the jury had been taken by counsel. He reminded them of the appellant’s denial of forming any intent to kill or cause grievous bodily harm and her assertion that she had not been aiming for any particular part of the body when she stabbed the deceased. There is no substance in this ground, which, in any event, was only faintly pressed in oral argument.

SELF-DEFENCE – PRINCIPLES

There are no set words or formulae that are required to explain the law of self-defence to a jury as Wilson, Dawson and Toohey JJ said in Zecevic at 661. Their Honours stated that there was a simple question to be posed, namely “whether the accused believed upon reasonable grounds that it was necessary in self-defence to do what he did”. However, they recognised that in cases of homicide some elaboration for the jury might be necessary. Where a person kills with the intention of killing or doing serious bodily harm to another, the killer must perceive a threat that calls for such a response if he or she seeks to excuse or justify the death as occurring in self-defence. As their Honours said (at 662): “A threat does not ordinarily call for that response unless it causes a reasonable apprehension on the part of that person of death or serious bodily harm”. They said that in charging the jury when the question of self-defence arises on the evidence, a trial judge should place the question in its factual setting, identifying those considerations that may assist the jury in reaching its conclusion. They stressed that the jury must consider the whole of the circumstances, including the degree of force used by the accused. Further, they said (at 662–3) that often the jury could be reminded that they should approach the question of self-defence “in a practical manner and without undue nicety giving, proper weight to the predicament of the accused which may have afforded little, if any, opportunity for calm deliberation or detached reflection”.

Their Honours then addressed one particular evidentiary matter relevant to the answer to the question of self-defence, noting that in the Code States this matter was treated as raising a question of law, saying (at 663):

Where an accused person raising a plea of self-defence was the original aggressor and induced or provoked the assault against which he claims the right to defend himself, it will be for the jury to consider whether the original aggression had ceased so as to have enabled the accused to form a belief, upon reasonable grounds, that his actions were necessary in self-defence. For this purpose, it will be relevant to consider the extent to which the accused declined further conflict and quit the use of force or retreated from it, these being matters which may bear upon the nature of the occasion and the use which the accused made of it. Indeed, even in circumstances in which the accused was not the original aggressor, retreat in the face of a threat of violence before resort to force may be relevant to the belief of the accused or the reasonableness of the grounds upon which the accused based his belief. There is, however, no longer any rule that the accused must have retreated as far as possible before attempting to defend himself. It is a circumstance to be considered with all the others in determining whether the accused believed upon reasonable grounds that what he did was necessary in self-defence: Howe (1958) 100 CLR at 462–464 per Dixon CJ; Viro (1978) 141 CLR at 115–116 per Gibbs J. (emphasis added)

In Anandan v The Queen at [18] Nettle JA said that in this paragraph, Wilson, Dawson and Toohey JJ spoke of a person being the “original aggressor” only in the sense of aggression involving the use of force, not other aggressive behaviour. Coghlan AJA, with whom Lasry AJA agreed on this aspect (at [93]), found that the summing up there created difficulty for the jury in evaluating what the trial judge had meant by her qualification that self-defence was not available to the accused there “unless their original aggression had ended”: Anandan v The Queen at [71]–[81]. Coghlan AJA appeared to accept that the initial aggression could consist of aggressive behaviour, such as occurred there, being the taking of two chairs from a table in a pub occupied by the victim and his friend. He held that the judge there needed to explain what she meant, in the factual context, by the impugned expression.

To the extent that Nettle JA held that the original aggression had to involve the use of force, we are of opinion that his Honour was wrong. A person confronted by the threat of violence need not wait until the threat matures into the actual use of force before taking steps to defend himself or herself. For example, a person confronted by another who, after saying that “I am going to kill you”, then reaches into his pocket, may well apprehend that the hand in the pocket will not be looking for a handkerchief but rather will be searching for a weapon. It is the threat of violence, not its actuality, that is necessary, although very often both will be perceived by the accused. Wilson, Dawson and Toohey JJ explained that the use of deadly force, if justifiable or excusable as self-defence, requires a threat that the user perceives calls for that response: Zecevic 162 CLR at 662. Indeed, as they explained in the first emphasised portion of their reasons quoted in [94] above, the original aggression can induce or provoke the assault from which the accused will claim the right to act in self-defence arises, even though no physical force occurred in the inducement or provocation.

CONSIDERATION – SELF-DEFENCE

The CCTV footage in evidence at the trial, and the evidence of a large body of witnesses, placed the appellant outside the chicken shop when she began yelling at, and taunting, the deceased who was inside the shop. Once the deceased became aware of the appellant’s presence and conduct outside, she left the shop to confront the appellant. The appellant did not suggest that up to this point she had not been inviting a response by the deceased. The evidence of the witnesses present at the chicken shop that we have summarised above was varied and not consistent with the altercation taking a single, clear course that could have been summarised easily in the trial judge’s charge. It was not clear whether there was a discernible break between the appellant’s initial aggressive taunting and provocation of the deceased and the stabbing. Some witnesses suggested that there was. But at this point in those witnesses’ evidence it was again unclear whether the appellant ever ceased her aggression, as opposed to her having been separated physically from the deceased.

The trial judge’s directions were expressed in a practical way that set the question of self-defence into the factual context in which it could arise. That context included the appellant’s initial behaviour that was spoiling for a fight with Ms Booshand. Hence the trial judge’s introduction to the impugned part of his charge invited the jury to consider whether the appellant started the fight or willingly engaged in it: see [19] above. The appellant seized on the first of those alternatives and ignored the second in criticising the summing up. No doubt that was to seek to obtain whatever benefit she could from Anandan v The Queen. However, the charge in this case closely related to the factual situation with which the jury had to deal on the question of self-defence.

The jury could not have been in any doubt that, when his Honour referred to the appellant “starting the fight”, he was referring to her undisputed aggression and taunting depicted on the CCTV and described by a number of witnesses. By referring to the alternative of the appellant willingly participating in the fight, his Honour directed the jury’s consideration to the factual question of how the initial physical interaction between the two women began. The evidence of the events preceding that initial physical interaction did not give rise to any sensible suggestion that the appellant was somehow surprised that the deceased had approached her in response to her aggression and taunting. That being so, his Honour’s characterisation of the relevant alternatives was appropriate.

Next his Honour explained that it was only if the appellant’s aggressive behaviour had ceased before Ms Booshand counterattacked that self-defence was open to the appellant. He reminded the jury that the Crown carried the onus of proving that the appellant’s aggressive behaviour (which the jury would have understood to include willing participation in the fight) had not ceased at any time: see [19] above. He referred the jury specifically to the appellant’s evidence of how she came to be defending herself: see [20]–[22] above. His redirections included reminding the jury of the appellant’s counsel’s arguments concerning the deceased’s aggression. He correctly told them that they had to decide whether they were satisfied beyond reasonable doubt that the appellant was and continued to be an aggressor: see

[28] above. No application was made for a further redirection after his Honour redirected the jury on this (or any other) point. He reminded them of the evidence of the appellant, Mr Marshall and other witnesses to whom counsel had referred in their addresses, on the issue of whether there was a break and a second flare up.

The appellant argued that an original aggressor was entitled to act in self-defence even though his or her “original aggression” had not ended. She also contended that a person willingly engaged in a fight can act in self-defence.

His Honour correctly directed the jury to consider whether the appellant’s original aggression had ceased at the time she stabbed the deceased so as to enable her to form the belief, based on reasonable grounds, that her actions were necessary in self-defence: Zecevic at 663. Here, the initial phase of the confrontation involved either the appellant being seen as the initial aggressor or as a willing participant in the interaction she had with the deceased prior to the stabbing. The factual question was whether that aggression by the appellant (and willing participation in a fight is also aggression) had ceased before she decided to stab the deceased.

In R v Nguyen (1995) 36 NSWLR 397 at 407 Priestley JA, with whom Smart and Ireland JJ agreed, said that self-defence, as a justification or excuse, for killing had a starting point of a person who, not wanting to fight, was attacked or threatened with attack in a way that lead him or her to believe that self-defence was necessary to protect him or her from harm. He continued:

Such situations do not include those where what is going on is a fight which the fighters have willingly joined in, whether to carry on or settle a quarrel, or for some other reason. Once such a fight is under way, the person who has, ex hypothesi, got into it for reasons other than self-defence, may often, because of the nature of fighting, be suddenly faced with injury or death, and to prevent that, self-defence in one sense will be necessary, which may lead to the injury or death of the opponent. That sort of self-defence, if it ends in the killing of the opponent, is not the sort of self-defence that the Crown must negative in showing (when the issue arises) that the killing has been unlawful. The last sentence may need qualification in some circumstances, as for example, if a fight is going on according to broadly understood conventions intended to prevent serious harm and one fighter suddenly breaks the conventions by producing a lethal weapon. That kind of possible qualification does not arise in the present case. (emphasis added)

Nor did the need for such a qualification arise at the trial here. Here, there was a wide variety of accounts about the course of the altercation and whether it, indeed, had two phases, as the appellant suggested. The trial judge, accordingly, was concerned to ensure that, through his directions, the jury understood that they needed to consider whether the prosecution had proved, beyond reasonable doubt, that at the point in time and the stage of the fight, when she stabbed the deceased, the appellant did not act in self-defence. His Honour emphasised that the prosecution had to prove beyond reasonable doubt that the appellant’s aggression had not ended at the time of the stabbing. He directed the jury that the issue was whether the appellant had ended her aggression, and was defending herself against a new attack at the time she stabbed the deceased: see [19] above.

The appellant’s account of the course of the altercation involved Mr Marshall pulling the two women apart and putting the appellant behind his arm. She did not assert that she had chosen to desist. She did not leave the scene as she said Mr Marshall had told her to do. The appellant described what happened next, after an unspecified period, as Ms Booshand attacking her by grabbing her hair. His Honour correctly directed the jury to consider whether the prosecution had proved that the appellant had not ended her aggression at the relevant time. It did not matter at that point whether the aggression was described as the original conduct of the appellant before the deceased confronted her outside the chicken shop or was the appellant’s conduct in the ensuing altercation leading up to Mr Marshall separating them. The jury could have been in no doubt that his Honour was directing them that the prosecution had to prove that, whenever a break in the altercation had occurred, the appellant’s aggression had not ceased at the time she stabbed the deceased: that is, the Crown had to prove that the appellant continued to be a willing participant in the fight after that time and when she stabbed the deceased.

It was not as if some unanticipated change in the nature of the fight occurred that justified the appellant’s use of the knife in the sense discussed by Priestley JA in R v Nguyen at 407. According to the appellant’s own account of the inception of their hostilities outside the chicken shop, each woman had threatened to kill the other. As Wilson, Dawson and Toohey JJ observed in Zecevic at 662:

There is no rule which dictates the use which the jury must make of the evidence and the ultimate question is for it alone. The trial judge should also offer such assistance by way of comment as is called for in the particular case.

That is what his Honour did in an appropriate way in his summing up.

In our opinion, for these reasons, his Honour did not misdirect the jury in relation to self-defence.

CONCLUSION

The appeal must be dismissed.

I certify that the preceding one hundred and nine (109) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Court.
Associate:
Date: 24 January 2013

Counsel for the Appellant:  Mr J Pappas
Solicitor for the Appellant:  Ben Aulich & Associates
Counsel for the Respondent:  Mr J White
Solicitor for the Respondent:  Director of Public Prosecutions (ACT)
Date of hearing:  7 May 2012
Date of judgment:  24 January 2013

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Citations

Rebecca Anne Massey v The Queen [2013] ACTCA 5

Most Recent Citation

Lancaster v Hyde [2016] ACTSC 50

Cases Citing This Decision

3

High Court Bulletin [2013] HCAB 8

R v Lee [2016] ACTSC 233

Lancaster v Hyde [2016] ACTSC 50

Cases Cited

4

Statutory Material Cited

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Zecevic v Director of Public Prosecutions (Vic) [1987] HCA 26

Anandan v The Queen [2011] VSCA 413

Hargraves v The Queen [2011] HCA 44