Regina v Munro

[2001] NSWCCA 187

Reported Decision: 51 NSWLR 540

New South Wales

Court of Criminal Appeal

CITATION:	Regina v Munro [2001] NSWCCA 187
FILE NUMBER(S):	CCA 60021/01
HEARING DATE(S):	30 April 2001
JUDGMENT DATE:	18 May 2001
PARTIES :	Regina v Christopher Brett Munro
JUDGMENT OF:	Stein JA at 1; Greg James J at 51; Bell J at 55

LOWER COURT JURISDICTION:	Supreme Court
LOWER COURT FILE NUMBER(S) :	SC 70043/00
LOWER COURT JUDICIAL OFFICER :	Badgery-Parker AJ

COUNSEL :	B M J Toomey QC/M A Kumar - Appellant M C Marien - Crown
SOLICITORS:	Walsh & Blair - Appellant S E O'Connor - Crown
CATCHWORDS:	CRIMINAL LAW - manslaughter - self-defence - whether the occasion for self-defence had ceased. - CRIMINAL LAW - self-defence - whether reasonable grounds for belief that the act was necessary. - CRIMINAL LAW - self-defence - Home Invasion (Occupants Protection) Act 1998 - whether Act declared and clarified the common law - whether Act extended the rights of an occupier at common law - D
LEGISLATION CITED:	Home Invasion (Occupants Protection) Act 1998
CASES CITED:	n/a
DECISION:	Appeal against conviction dismissed

IN THE COURT OF
CRIMINAL APPEAL
60021/01
STEIN JA

GREG JAMES J
BELL J

Friday, 18 May 2001

REGINA v Christopher Brett MUNRO

JUDGMENT

1    STEIN JA:

Introduction

2    On 13 December 2000 Badgery-Parker AJ, sitting without a jury, found the appellant not guilty of the murder of Benjamin Phillip Prior on 26 December 1999 but guilty of manslaughter. His Honour gave written reasons for his decision. On 19 December 2000 his Honour sentenced the appellant to imprisonment for a term of 3 years from 25 December 1999 to expire on 24 December 2002 and determined a non-parole period to expire on 22 December 2000.

3    Two of the grounds of appeal challenge findings of fact made by the trial judge. With the consent of the Crown the appellant added a ground to the effect that the verdict was unreasonable as not being supported by the evidence.

Grounds of Appeal

4    The Amended Notice of Appeal essentially raises the following issues:

1. That the verdict was unreasonable and not supported by the evidence.

2. That his Honour erred in finding that the occasion for self-defence had ceased when the fatal blows were struck.

3. That there was no evidence to support his Honour’s finding that the fatal head injury to the victim was inflicted by the last blow or blows delivered immediately before he fell to the ground.

4. That his Honour erred in holding that the Home Invasion (Occupants Protection) Act 1998 merely codified the common law as to self-defence.

Facts and Findings of Primary Judge

5    His Honour recited the facts as follows:

10. In December 1999 the accused … was residing at 13 Loughnan Street, Coolamon. The accused was then just over 20 years of age, having been born on 26 November 1979. Also resident there were his grandmother, … and that person’s mentally disabled daughter, an aunt of the accused. A verandah which extended part way along the front of the building and down the whole of the west side of the building was furnished as a flatette, and it was in this part of the house that the accused resided. In the next door house, No. 15, resided two brothers Benjamin Prior (aged 25 years) and Gerard Prior (then aged 17 years and two months).
11. Late on the evening of Christmas Eve, 24 December 1999 both the accused and Ben Prior were at a hotel in Coolamon referred to in the evidence as the “top pub”. They played a game of pool. At some state late in the evening or in the small hours of the following morning, an argument developed between them with regard to the accused’s behaviour towards a girl who had interfered with the pool table. Peace was restored and the evidence does not reveal the extent of any residual ill feeling existing at the time when one or other of the two young men first left the pub.
12. The accused is an epileptic and on long term medication for that condition. That medication reacts badly with alcohol and it seems he probably should not drink at all. On the evening of 24 December he consumed a quantity of alcohol and soon after his return home he became violently ill, vomiting or retching continually for some hours. Some time after 3 am the sounds that he made attracted the attention of the brothers Prior in their house next door and became a source of irritation to them. Towards dawn, but while it was still dark, they went out of their house and towards the accused’s home and yelled out to him to be quiet. The Prior brothers had been drinking and the quantity that each consumed was certainly sufficient to produce a significant measure of disinhibition. There was an exchange of words between them and him, with foul language used on both sides. Reference was made to the earlier incident at the pub, and Ben Prior challenged the accused to come out into the street to “sort it out”. He refused to do so.
13. The Prior brothers commenced to walk towards the accused’s home. Ben waited while Gerard Prior went back into his own home and picked up a cricket bat. … ….. By the time they reached the steps the cricket bat was in the possession of Ben though Gerard could not say in what circumstances the transfer occurred. Ben went up the steps onto the verandah. His brother was certainly on the steps if not on the verandah itself, and both young men were visible to the accused as he moved along the verandah towards them. A struggle took place between the accused and Ben Prior, and in the course of that struggle the accused obtained possession of the cricket bat. He commenced to swing it at Ben Prior and some blows made contact with him. That led Gerard to run away down the path towards the front gate, and Ben turned to follow him. The accused continued to strike at him with the bat. At a point about four metres from the house and two metres short of the gate, Ben Prior collapsed into shrubbery on the right hand side of the path. The accused continued to strike Ben as he lay on the ground, as well as fending off Gerard each time he tried to intervene.
14. One at least of the blows delivered before Ben Prior fell struck him on the back of the skull, causing a fracture and underlying subdural and subarachnoid haemorrhage which caused the death of Ben Prior on the morning of 26 December 1999.

6    In examining the evidence his Honour said:

The accused did not strike Ben Prior with the bat as soon as he obtained possession of it, but only after Prior attempted to punch him. He hit Prior two or three times while Prior was still on the verandah. He said he was trying to scare the man in order to get him off the verandah. Ben started to run and the accused says that he hit him three or four times more as Prior was running on the path. The deceased had only travelled about three metres down the path when he fell. He lay face down with his head towards the street, his feet towards the house, and Gerard’s description of the location, which places the deceased’s head a little closer to the house than the garden arbour posts, is consistent with the finding of blood in a damaged bush just on the house side of the post on the right hand side of the path looking towards the street. I am satisfied that Prior fell unconscious as a result of the blow which caused the skull fracture and that the skull fracture was not an injury caused by any blows which the accused continued to deliver after Prior had fallen.

7    The trial judge turned to other matters bearing on the appellant’s state of mind. These included that he was very ill at the time, having vomited for some hours; he had had little sleep; his home had been invaded in darkness by two bulky young men, one armed with a cricket bat and both acting aggressively towards him; the appellant’s concern that his elderly grandmother and mentally disabled aunt were in the house and the appellant’s possible lingering effects of earlier intoxication. To this may be added his epilepsy, mentioned earlier by his Honour. Notwithstanding, his Honour said that the impression conveyed by the appellant during his ERISP was that he was answering ‘frankly and truthfully’. The trial judge, having viewed the video tape, concluded that he had no reason to doubt the appellant’s truthfulness in the police interview. The appellant did not give evidence at the trial.

8    We have also viewed the tape. I agree with his Honour’s conclusions on the demeanour of the appellant on the ERISP. Notwithstanding his low IQ, his behaviour during the recorded police interview revealed an apparent ability to understand and fluently answer questions put to him in a cogent manner. His Honour said as much in his later remarks on sentence. Again, I must say that I gained much the same impression as did his Honour on viewing the ERISP. This is relevant to my later consideration of his Honour’s judgment.

9    His Honour considered the question of causation. At what moment and where in the sequence of blows was the fatal blow struck? His Honour accepted that if the fatal blow was struck while the appellant and Ben Prior were still on the verandah, the act would have been one done in self-defence and was an act which the appellant clearly believed was necessary to perform in self defence. There were reasonable grounds for the appellant to entertain such a belief. His Honour however found that the most likely cause of death was from the deceased’s most serious injury, that to the right posterior parietal scalp. A forensic pathologist, Dr Botterill, said that this injury was most likely to have caused the victim to become unconscious, probably instantaneously. The other injuries to the deceased were unlikely to have caused unconsciousness. While Dr Botterill stated that the degree of force causing the depressed fracture was most likely to cause unconsciousness straight away. However, he said that may not always be the case. His Honour concluded that he was satisfied beyond reasonable doubt that the significant head injuries were not inflicted on the verandah but ‘were inflicted by the last blow or blows delivered immediately before Ben Prior fell to the ground’.

10    The Home Invasion (Occupants Protection) Act (the Act) applied to the circumstances of the case. Counsel for the accused argued at the trial that the Act modified the common law. In particular, it was submitted that s 9 (read in light of other provisions) made the test of reasonableness of the accused’s belief that it was necessary for him to act as he did, entirely subjective. This, so it was said, is quite different from the common law.

11    His Honour rejected the submission finding that the Act declared the common law and was in all respects the same as the common law which existed before the Act.

12    His Honour then turned to determine the issue of self-defence. He focused on whether the Crown had excluded any reasonable possibility of self-defence, either by proving beyond reasonable doubt that the accused did not believe that it was necessary to act as he did in self-defence, or by proving beyond reasonable doubt that the grounds for the accused’s belief to that effect were not reasonable grounds.

13    His Honour said:

… as Ben Prior ran away from the house, along the path towards the street a matter of a few paces only, the accused pursued him and continue to strike at him with the bat, and some of those blows landed. According to the accused himself, he hit Prior three or four times on the head and leg while Prior was running. …

14    This was a reference to answer 348 in the ERISP. His Honour then set forth questions and answers 289 to 297. These included answer 297, which reads in part:

… and just going up the path and his brother was already gone but I got him before he got out the gate. So he didn’t come back, I thought I’d give him a few taps.

15    The judge also set out paras 350 to 355 of the ERISP. These included the answer to 355 as follows:

No I had to hit him a couple of times to stop him.

16    Badgery-Parker AJ said that he accepted that the appellant believed that it was necessary to press home his attack up to the point where Prior had left the verandah ‘and was fleeing towards the street’. That, he said, was clearly a belief held on reasonable grounds.

17    However, in the ERISP, the appellant had repeatedly used the words ‘run’, ‘ran’ or ‘running’. His Honour quoted some examples.

18    These included the answer to 291:

He [the deceased] was running out the, trying to run out the gate …

19    Also, the answer to 352:

And then Ben ran, and then I hit him …

20    Further, the answer to 355:

I had to hit him a couple of times to stop him.

21    His Honour stated that there clearly came a moment when the appellant’s concern was no longer to defend himself but ‘to stop them from fleeing’.

22    He concluded:

… I am satisfied beyond reasonable doubt that when he [the accused] struck the blows which put an end to the deceased’s flight and brought him to the ground, the accused had ceased to believe that it was necessary for him to do what he was then doing by way of self-defence. He was striking the deceased not in the belief that was necessary to do so in self-defence but in a desire to stop the deceased from getting away.

and:

… There is as I understand the facts, nothing to suggest that Ben Prior was about to resume the attack on the particular occasion, whatever may have been his thoughts about the future, and nothing to suggest that the accused believed otherwise.

23    The Crown had therefore excluded any reasonable possibility that the appellant acted in lawful self-defence. Alternatively, according to the trial judge, if the deceased did have the belief that it was necessary for him to act as he did in self-defence, nevertheless the grounds of his belief were not reasonable. Badgery-Parker AJ found that he was satisfied that the Crown had proved beyond reasonable doubt that the appellant did not have reasonable grounds to believe that it was necessary, in self-defence, to beat the deceased with the bat, not to drive him away but to stop him making good his escape.

Where were the fatal blows struck?

24    As already mentioned, the trial judge found that he was satisfied beyond reasonable doubt that the significant head injuries were not inflicted on the verandah, but that they ‘were inflicted by the last blow or blows delivered immediately before Ben Prior fell to the ground [on the pathway]’.

25    It is submitted by the appellant that this finding was not open to be made by his Honour beyond reasonable doubt when regard is had to the relevant evidence, in particular the evidence of Dr Botterill and statements made by the appellant in his ERISP.

26    In my view, the evidence was such as entitled his Honour to find as he did. His conclusion was one which was open on the evidence.

27    It was Dr Botterill’s opinion that the severity of the force which would be required to result in the depressed fracture to the skull, when transmitted through to the remaining brain tissue, was more likely to have caused unconsciousness straight away. That was the invariable situation but ‘not always the case’. Counsel for the appellant seized upon this concession to cross-examine the doctor.

28    In cross-examination Dr Botterill said:

… I can’t say I personally had any experience either in my clinical experience or forensic experience of a wound with a depressed skull fracture which didn’t result in near instantaneous loss of consciousness, but it is conceivable.

29    Counsel then asked him:

… it would be possible, would it not, to be struck on the head at or near the top of the steps, and to stumble, run, stumble down to that point or near that point where the shrub is even with a hard blow which caused a fracture?

30    Dr Botterill answered that it was conceivable but that he had had no such experience.

31    The witness said that there were two areas of injury to the back of the skull, which were caused by at least two blows. While it was conceivable that more than one blow may have caused the injury to the same area, it was unlikely that the two injuries resulted from ten blows to the head.

32    Dr Botterill also stated his opinion that it was unlikely that the depressed fracture to the deceased’s skull was caused by contact with the garden post.

33    The fact that Dr Botterill acknowledged the possibility that the depressed skull fracture did not cause immediate loss of consciousness does not destroy the foundation of his Honour’s finding on causation. On an examination of the relevant evidence his Honour was simply entitled to conclude as he did, that it was not a reasonable possibility that the fatal blow or blows did not cause immediate loss of consciousness.

34    That finding, coupled with the repeated statements by the appellant in the ERISP that Ben Prior ran from the verandah, and the finding that his answers in this respect were reliable, was fairly open to his Honour.

35    In my view, his Honour was entitled to accept the statements of the appellant in the interview. The appellant displayed no uncertainty in his answers about the victim running from the verandah and being pursued by him. An examination of the ERISP makes it plain that the appellant was saying that Ben Prior was running along the path towards the gate and that the appellant pursued him and hit him, causing Prior to fall to the ground. It was therefore open to his Honour to conclude from the ERISP that the fatal blow was struck when the deceased was on the pathway running away from the appellant. This evidence, combined with that of Dr Botterill, entitled the trial judge to conclude that the Crown had excluded as a reasonable possibility that the fatal blow was struck while the victim and the appellant were still on the verandah. The evidence was such that it was open to find that the significant head injuries were inflicted by the last blow or blows delivered on the pathway immediately before Ben Prior fell to the ground.

Had the occasion for self-defence ceased?

36    The appellant submits that his Honour was in error in finding beyond reasonable doubt that when the fatal blows were struck, the appellant had ceased to believe that it was necessary for him to do what he was doing by way of self defence. Rather he was striking the deceased in a desire to stop him getting away.

37    Again, it seems to me that the evidence was such, particularly the appellant’s statements in the ERISP, that his Honour was entitled to find that the occasion for self defence had ceased by the time the fatal blow or blows were delivered.

38    True it is that the time span was short. But his Honour was well aware of this and took it into account. His Honour was also acutely aware not to pick over the appellant’s words in the ERISP too closely but to look to the substance of what he was saying. Nonetheless, his Honour was entitled to conclude that what the appellant said in the interview accurately reflected what had occurred and the appellant’s state of mind.

39    It follows, in my view, that his Honour was well entitled to find that the attack on the appellant had ceased and that the deceased (unarmed) was fleeing. Nor was there anything to suggest that the attack was about to be resumed on that particular occasion or that the appellant believed otherwise.

40    Accordingly, the trial judge was entitled to conclude that the appellant did not hold the belief that it was necessary to do what he did in self defence.

41    Further, it seems to me that his Honour was entitled to find, in the alternative, that even if the appellant held the requisite belief, there were no reasonable grounds for him to hold such a belief.

42    In my opinion, the Crown is correct in submitting that the reason or motive of the appellant in striking the victim ‘to stop him’ matters not. For example, whether it was to stop the victim fleeing or in pure retaliation, or a bit of each, does not matter so long as the judge is satisfied that the appellant was no longer acting in self defence.

The Home Invasion (Occupants Protection) Act

43    At the trial counsel for the accused argued that while s 6 of the Act did not depart from the common law with respect to self-defence, other provisions did so depart. It was submitted that s 9 extended the rights of an occupier at common law.

44    Section 9 provides:

Whether grounds are reasonable grounds for the purposes of section 6, 7, or 8 is to be determined having regard to the belief of the occupant, based on the circumstances as the occupant perceived them to be.

45    Counsel had submitted that the words ‘having regard to’ required the belief of the occupant to be taken into account in determining whether the grounds for that belief were reasonable. With respect to this Badgery-Parker AJ said:

The interpretation of s 9 for which Mr Toomey contends would require that the phrase “the belief of the occupant” in s 9 was intended to refer to a belief on the part of the occupant, not that it was necessary for him to act as he did in self-defence (the belief to which s 6 refers) but rather a belief on his part that he had reasonable grounds for believing that it was necessary for him to act as he did in self-defence.

46    In rejecting the contention his Honour said:

The significance of the words in s 9, “having regard to the belief of the occupant” is to emphasise that the determination which has to be made “whether the grounds are reasonable grounds for the purposes of s 6” is a determination about the grounds upon which the occupant himself (the actual person, not some hypothetical person in the same position as the occupant) held the relevant belief.

47    In my opinion, this conclusion is correct. As his Honour said, the construction contended for would make it almost impossible to apply s 10(b) of the Act. Nor was there anything in the language of s 9 to suggest that the word ‘belief’ did not have the same connotation as ‘believe’ in s 6, referring to the belief (for the purposes of s 6) which the occupant must hold so that he may lawfully act in self defence against an intruder.

48    As his Honour noted, the conclusion that he had reached was entirely consistent with the second reading speech which repeatedly emphasises that the purpose of the Act was to declare and codify the common law.

49    I agree with his Honour’s conclusion on this issue and the reasoning which underlay it.

50    In my opinion, the appellant has not made out any of his grounds and the appeal against conviction ought be dismissed.

51    GREG JAMES, J: I agree with Stein, JA.

52    In particular, I too consider that his Honour’s fact finding was open to him, particularly from the applicant’s answers in the ERISP and notwithstanding the appellant’s intellectual deficit, tiredness and the remaining effect of his illness and intoxication at the time of interview.

53    These were matters to which the trial judge had regard. His Honour’s conclusion was not unreasonable.

54    There is no legal basis for this court to intervene.

55    BELL J: I agree with Stein JA.

56    I also agree with the additional observations of Greg James J.

oOo