REGINA v Timothy James Coates

[2002] NSWCCA 441

CITATION:	REGINA v Timothy James COATES [2002] NSWCCA 441 revised - 12/12/2002
FILE NUMBER(S):	CCA 60232/02
HEARING DATE(S):	4/11/02
JUDGMENT DATE:	6 December 2002
PARTIES :	REGINA Timothy James COATES (Appellant)
JUDGMENT OF:	Sully J at 1; Dunford J at 2; Bell J at 3

LOWER COURT JURISDICTION:	District Court
LOWER COURT FILE NUMBER(S) :	01/51/0063
LOWER COURT JUDICIAL OFFICER :	McGuire DCJ

COUNSEL :	P. Barrett (Crown) A. Cook (Appellant)
SOLICITORS:	S E O'Connor T A Murphy
LEGISLATION CITED:	Crimes Amendment (Self-Defence) Act 2001
CASES CITED:	R v Dziduch (1990) 47 A Crim R 378 R v Hawes (1994) 35 NSWLR 294 R v Lean (1993) 66 A Crim R 296 R v Zecevic (1987) 162 CLR 645
DECISION:	Appeal dismissed

60232/02

SULLY J
DUNFORD J
BELL J

6 December 2002

REGINA v Timothy James COATES

Judgment

1 SULLY J: I agree with Bell J.

2 DUNFORD J: I agree with Bell J.

3 BELL J: The appellant appeals against his conviction on an indictment charging him with the malicious infliction of grievous bodily harm upon Jason Scott Billett with intent to do grievous bodily harm to Jason Scott Billett. He was arraigned upon this charge in the District Court at Lismore on 29 January 2002. After a trial lasting seven days the jury returned a verdict of guilty. He was sentenced to imprisonment for four years to date from 7 February 2002. A non-parole period of two years and three months was specified.

4 By notice of appeal dated 21 April 2002, the appellant signified his intention to appeal against conviction and to seek leave to appeal against the severity of the sentence imposed upon him. By notice dated 13 September 2002 the appellant abandoned further proceedings in respect of the application to appeal against the severity of sentence.

5 The appeal against conviction was argued upon a single ground, namely, that the trial judge misdirected the jury as to self-defence. It is necessary to set out the evidence given at the trial in some detail in the light of the way the parties developed the submissions with respect to this single ground.

6 The incident occurred on 16 December 2000 at Ulmarra. The complainant was employed at the Ulmarra Sawmill (“the mill”). The appellant had worked at the mill for a short period of time prior to the incident. On this day it is common ground that the appellant approached the complainant outside the mill and struck him about the head with a large piece of wood causing injuries including a fractured skull. The defence case at trial was conducted upon the basis that the Crown was not able to negative that at the time the appellant struck the complainant he was acting in defence of his partner, Leah Taylor.

7 Ms Taylor had been involved in a domestic relationship with the complainant for a period of some months. Their relationship came to an end about two months prior to 16 December 2000.

8 Following their separation Ms Taylor applied to the Grafton Local Court for an order restraining the complainant from making contact with her. She alleged that the complainant had been telephoning her in an attempt to resume the relationship. She considered this contact to be harassment.

9 About one week after her separation from the complainant Ms Taylor commenced a relationship with the appellant. She moved to the appellant’s home at Tyndale with her son. Ms Taylor alleged that on 1 December 2000 the complainant telephoned her and spoke in an abusive and threatening manner in breach of the terms of the apprehended violence order that she had obtained. This matter was reported to the police. Arrangements were made for a police officer to speak to the complainant. In the event, the police failed to locate him.

10 On the morning of 16 December 2000 Ms Taylor was speaking with a man named Alan Egan near the mill when she heard a wolf whistle. She saw someone walking towards her from the mill and believed it to be the complainant. She told Mr Egan that she did not wish any trouble. She drove to the local hotel where she telephoned the Grafton Police. Senior Constable Lysaght and Constable Trivett responded to her call and attended the mill in an endeavour to speak with the complainant. They were not able to locate him.

11 At about 6:00 pm on 16 December 2000, Ms Taylor picked up the appellant from work. She told him what had happened earlier in the day and, on her account, the appellant became angry. The couple drove to the Ulmarra Hotel where they each consumed a beer. Before leaving the hotel the appellant purchased three cans of rum and coke. He and Ms Taylor then drove to the mill. Ms Taylor said the appellant expressed his wish to sort the issue out with the complainant. The appellant drank two cans of pre-mixed rum and coke in the course of the trip.

12 Ms Taylor dropped the appellant off near the mill. She said that she had not wished to have any confrontation with the complainant.

13 The owner of the mill, Paul Jones, lived in the grounds of the mill. Around 6:00 pm on 16 December as he entered his residence he saw the appellant. He said that the appellant was in a very agitated state, pacing back and forth. The appellant asked where the complainant was. Mr Jones told him that the complainant was at the mill and enquired what was going on. The appellant responded saying he had come, “to sort this show once and for all” (Jones, T 206.16). During this conversation Mr Jones said that the appellant stated that, he was, “going to kill that bastard” (Jones, T 207.53). The appellant left Mr Jones’ premises, jumping over some thirteen steps and landing on the concrete slab at the bottom of the stairs.

14 A number of persons were present at Mr Jones’ premises and witnessed his conversation with the appellant. One of these persons was Kieren Kelly. Mr Kelly went to the mill to warn the complainant of the appellant’s approach.

15 After receiving Mr Kelly’s warning the complainant saw a white Ford parked in the showground. He saw Ms Taylor sitting in the vehicle and he approached her. As the complainant came near the white Ford Ms Taylor alighted from it and began to hit him. She said that she had taken hold of his shirt with her left hand and hit him with a closed right fist about the face. She kicked him in the shins and broke her toe because she was not wearing shoes at the time.

16 Ms Taylor estimated that the entire incident lasted between ten and fifteen minutes. She said that the complainant had not hit or grabbed her at all. He had not put his hands up to her throat. His arms had remained by his side, although at one stage he had raised them in order to fend off her blows.

17 A short time after Ms Taylor stopped hitting the complainant she saw the appellant running across a paddock towards them. The complainant was facing Ms Taylor with his back towards the appellant. He asked why she had struck him. Before she was able to answer the appellant reached them and hit the complainant across the back and shoulders. Ms Taylor said that she heard the complainant say, “Oh fuck” and he then fell to the ground (Taylor, T 67). The complainant attempted to stand up. He was on his knees when the appellant struck him a second time to the back of his head. After the first blow the complainant appeared to be groggy, stunned and unbalanced. The second blow, according to Ms Taylor, knocked the complainant unconscious. Immediately after this blow the appellant went to strike the complainant again. Ms Taylor said that she ducked under the blow, pushing the appellant in the stomach and causing him to lose his balance. Yvette Egan, who was present at the scene, gave evidence that she had not seen Taylor do this.

18 Kieren Kelly, Terry O’Driscoll, Yvette Egan, Alan Egan, and Dillon Portis all witnessed the incident. Each gave an account that the appellant had struck the complainant three times.

19 The complainant said that he had returned from the pub after lunch between 4:30 pm and 5:00 pm. He was fixing motorbikes at the mill. While he was doing this Dillon Portis approached him and told him that the appellant was at the mill and that he was going to give him a hiding. Dillon told him that the appellant was “going off his head” and that he wanted to kill him (Billett, T 12).

20 The complainant saw Leah Taylor sitting in her car in the showground. He said he walked over to the car to see if she was all right. When he got to the car he said that Ms Taylor jumped out of it, yelling obscenities and punched and kicked him. Some of the blows connected with his head. Ms Taylor was saying that she would send him to jail. When he asked why she replied that it was because he had been ringing her and harassing her. He said that he had not thrown any punches at Ms Taylor, nor had he tried to grab her. On his account he responded to the assault on him by backing away, putting his arms up in an attempt to shield himself from the blows. He said that he had talked to her in an endeavour to calm her down.

21 None of the witnesses to the incident gave evidence of observing the complainant choking or attempting to choke Ms Taylor. None gave an account of seeing him place his hands near her neck.

22 After the appellant struck the complainant Ms Taylor ran to the car and got into the driver’s seat, unlocking the passenger side door for the appellant. He dropped the piece of wood with which he had stuck the complainant on the ground.

23 Ms Taylor said that as she and the appellant drove from the scene the appellant said, “I hope the little bastard dies” (Taylor, T 72.4). Ms Taylor telephoned her mother from her mobile telephone. The appellant spoke with her mother, saying that he had struck the complainant and that he had thought he had killed him. The account that he gave of the incident in the course of this telephone call was that the complainant had attempted to rape Ms Taylor. After the telephone call the appellant told Ms Taylor that she had to go along with this account because he would not get into trouble if it were understood that he had acted in order to protect her. He told her to say that the complainant had ripped her shirt in an attempt to rape her. She claimed that the appellant said that if she did not keep to this story that she would, “get the same” (Taylor, T 72-74, T 79).

24 Ms Taylor participated in an electronically recorded interview with police on 30 December 2000 (Ex 2). On that occasion she gave an account that the complainant had opened the car door taking hold of her by the shoulder and pulling her out of the car. She said that he had said, “I’ve never done anything to you and now I’m gunna have my way with you and then I’m gunna kill you, you fucking bitch”. She went on to describe that the complainant had grabbed hold of her shirt, ripping it open. She said that she had suffered the injury to her foot when the complainant pulled her from the car.

25 On the first day of the trial Ms Taylor gave the police a version of the events consistent with that which she gave in evidence. She said that she had been frightened of the appellant. She had moved out of his property around the beginning of April 2001. She said that appellant had threatened her that if she changed her statement he would tell the police that she had set him up. Ms Taylor was charged in relation to her assault upon the complainant and ultimately she pleaded guilty to that offence. In August 2001, following her separation from the appellant, Ms Taylor obtained an apprehended violence order restraining him from contact with herself, her son and her parents.

26 Senior Constable Thompson spoke with Ms Taylor on the evening of 16 December 2000. He observed that her shirt looked as though the buttons had been pulled open. A photograph of her shirt taken on 4 July 2001 was tendered at the trial, Ex G. The shirt as depicted in that photograph appeared to have a tear in it. Senior Constable Thompson said he had not noticed any tears in the shirt on 16 December 2000.

27 Senior Constable Thompson questioned the appellant concerning the incident. The appellant gave this account:

“I went to the mill to see Jonesy, to see where he (Billett) was, he told me he was in the showground, so I ran next door and saw him tearing Leah’s cloths off, he had hold of her and I thought that he was going to rape her. So I ran over to them, I grabbed a two by one piece of wood off the pile, I jumped the fence and I hit him over the back of the head, and he said, ‘Oh fuck’, and he went to his knees, he tried to get up so I hit him in the head with it … “ (Thompson, T 228-229)

28 Senior Constable Thompson gave evidence of a further interview with the appellant conducted on 12 November 2001 at the Grafton Police Station. On this occasion the appellant said that Ms Taylor had lied concerning her version of the incident as she had outlined it to him and to the police. He participated in a further electronically recorded interview, Ex K. Again, he admitted to striking the complainant and maintained that he had been acting in defence of Ms Taylor. In this interview he asserted his belief at the time that the complainant had been attempting to rape Ms Taylor although he said she had subsequently told him that was not the case.

29 The appellant did not give evidence at the trial. The case that he made was that Leah Taylor had lied, both to him and to the police in her initial version of the incident between herself and the complainant. The appellant believed that the complainant had tried to sexually assault Ms Taylor and that his actions had been carried out in defence of her.

30 Senior Constable Thompson was called in the defence case. During the further interview with the appellant on 12 November 2001 the appellant had been asked what he had seen between the complainant and Ms Taylor. He said that he saw the complainant choking Taylor who was standing on one foot. Her shirt had been ripped open. He told the police in the course of the interview that in May 2001 Ms Taylor had told him that the complainant had not endeavoured to rape her and that he had not dragged her out of the car.

31 The appellant’s case depended upon the contents of his two interviews with the police. His case was not that the complainant had in fact tried to sexually assault Ms Taylor, but rather that in the circumstances as he perceived them he believed the complainant to have been attacking her. This is significant to the challenge mounted by Mr Cook as to the directions given by the trial judge on self-defence.

32 This trial was conducted before the commencement of the Crimes Amendment (Self-Defence) Act 2001.

33 It is appropriate to set out the whole of his Honour’s directions on the topic of self-defence:

“Now if these matters have been proved, you then go to the question of whether the Crown has established that the accused’s actions did not constitute a defence of Leah Taylor. You must appreciate that the law casts no duty on the accused to prove that he was acting in her defence. Indeed, the question of the defence of another having been raised, it is the law that the Crown must prove to you, beyond reasonable doubt, that Mr Coates was not acting in defence of Leah Taylor when he struck Billett and inflicted grievous bodily harm intending to do so, before you could convict.
There is an acceptance in the law that, in certain circumstances, a person is entitled to defend himself or another who is being subjected to violence or is threatened by it. He is allowed to use force to defend that person, if he had reasonable grounds for believing that his actions were necessary in the defence of that person. Now that does not mean that he is entitled to revenge himself upon the attacker when any danger is past, nor is he entitled to perform acts which he does not believe, on reasonable grounds, were necessary to defend a person under attack.
The question you must decide, in relation to this issue, is whether the Crown has established that the accused did not believe, on reasonable grounds, that it was necessary for him to strike Jason Billett with that piece of timber, a number of blows to the back or back of the head, with the force described. The Crown may do this by proving to you (a) that he had no such belief, he held no such belief or that there were no reasonable grounds for such a belief. I will repeat that. The Crown may prove that he was not acting in defence of Leah Taylor, if it proves to you (a) that the accused had no such belief, or (b) that there were no reasonable grounds for such a belief.
As you are aware Timothy Coates claimed, to the police, that what he did was to prevent Jason Billett from raping his girlfriend. In determining whether the Crown has proved its case, you will consider the claim by the accused that he struck Billett on the head to prevent him from raping Leah Taylor.
The question for you to determine is this, did the accused believe on reasonable grounds that it was necessary for him to hit Billett as he did in defence of Leah Taylor? If he had that belief and had reasonable grounds for it, or if you are left in reasonable doubt about the matter, then the accused is entitled to an acquittal.
On the other hand if you are satisfied beyond reasonable doubt, that the accused did not believe that it was necessary to do what he did in defence of Leah Taylor, or if you accept that whilst he may have had that belief but you are satisfied beyond reasonable doubt that he did not have reasonable grounds for holding that belief, then his claim, that he acted in her defence, fails.
You would of course approach the question of the claim that he was acting to defend Leah Taylor in a practical manner and give due weight to the situation in which he found himself at the relevant time, that the occasion may have afforded little opportunity for calm deliberation and assessment of the appropriate response to the situation which presented. The use of inappropriate force would not automatically lead to a conviction.
You may, of course, find that the accused held no belief that he was acting in defence of Leah Taylor. You may consider that he did not rush up behind Billett and smash that piece of timber onto his back or head or shoulders, for her protection and that he had no reasonable grounds for believing that such actions were necessary to prevent her being raped.
You have heard numerous descriptions of Jason Billett’s conduct, and on all the eye witnesses’ accounts Jason Billett, at no stage, attacked Leah Taylor, sexually or otherwise. On all versions of the events, except that of the accused, he did not grasp her about the throat, he did not tear her clothing, he made no effort to attack her in any shape or form. Indeed, he did not lay hands on her. The only physical contact between them was his holding up his hands with his palms forward, as some of the witnesses demonstrated, as he attempted to protect himself from her punches and slaps. She came into contact with him, not the reverse.
You would, of course, take into account the accused’s description of the events in his record of interview, and his statement to the police, and to Mrs Taylor, when he asserted that he was acting to prevent Billett raping Leah.
Does it appear to you, ladies and gentlemen, that the accused’s conduct genuinely reflected a belief that he was acting to defend Leah Taylor from a sexual attack by Jason Billett? Or, does it lead you to the conclusion that he was the attacker who deliberately sought to injure Billett, without the question of her defence motiving his actions, and that his claim that he struck Billet to defend her is simply an excuse to justify his aggression? That this claim was an afterthought, an untruthful version of events to prevent him from being charged and convicted for a deliberate, vicious and cowardly attack on an unsuspecting victim? In other words, he simply attacked Billett in anger, and was not acting under any perception that Leah Taylor was being raped, or that Billett was attempting to rape her or attack her in any way?

If the Crown has established that the force used by the accused was out of all proportion to any attack, which he could reasonably have believed was being made on his girlfriend, then that is a matter which you would take into account in deciding whether he was acting in her defence.
When I say that a person is entitled to use force to defend himself, or to defend another, that does mean that he is entitled to employ force which was obviously, and totally unnecessary. To give you a couple of exaggerated examples, for removed from this case, take this situation. My next door neighbour and I have had angry words over the back fence, he, out of annoyance, leans over and directs the hose over me. It is cold, all my clothes are wet. That clearly constitutes an assault upon me. I would be entitled to take reasonable steps to prevent him doing that, to prevent him assaulting me. I could push him away, I could pull the hose from his grasp, or I could do something commensurate with what has been done to me. This does not, however, mean that I would be entitled to pick up a pick, or a mattock, or a garden fork and thrust it into his body. That could not sensibly be described as self-defence.
A man and his wife are in a hardware store, the man sees another person sneak up behind his wife, reach around and grasp her the breast. She is clearly being indecently attacked, and the husband would be entitled to take steps to defend her. He would not, however, be justified in picking up a machete and slashing that man’s arm, cut him about the head. He would be entitled to grab the man and push him away, perhaps to punch him, but he certainly would not be entitled to use the excessive force involved in picking up that machete and striking him.
In neither of the example, that I have given you, could it be sensibly claimed that the force used would be necessary to defend the person being assaulted.
You may feel that the accused’s action in deliberately selecting a piece of timber and then running towards Billett, as he backed away from Leah Taylor with his palms held up, and then striking him with such force two or three times, was conduct which went far beyond what he could possibly have believed was necessary to defend or protect her. On the other hand, you might determine she was being sexually assaulted, and that what the accused did was necessary to prevent this.
As I say, the use of excessive force is one of the circumstances which you may take into account, in your consideration of whether he held the belief that his actions were necessary to protect her, or as to whether he had reasonable grounds for such belief “ (SU6-12).

34 At the conclusion of the summing up, but before the trial judge formally asked the jury to consider their verdict the appellant’s counsel sought a number of re-directions. Among other matters he said this:

“Your Honour stated early in addressing the facts, in my note, before going to compare the Crown case and the accused’s case, that as a statement Billett did nothing that could possibly construe as an attack on Leah Taylor. Your Honour in my submission it’s the belief of the accused which is important for the jury’s consideration, as opposed to the actuality that bald statement by your Honour excludes any finding that the accused, on any reasonable basis, could construe what was going on in that altercation as an attack on Leah Taylor … “ (T36-06/02/02).

35 On more than one occasion during the course of his application for re-directions Mr Watts, who then appeared for the appellant, submitted that the perception of the appellant as to the events that were unfolding was the critical consideration for the purposes of the jury’s deliberation with respect to self-defence. Mr Watts also complained that passages in the summing up dealing with the disproportionate use of force in response to the threat or perceived threat were an inadequate statement of the law.

36 The trial judge brought the jury back into court and gave a number of further directions. Among these his Honour said:

“I said to you that whilst it was a matter for you, the evidence seemed to suggest that there were three possible scenarios; 1, that the eye witnesses were telling lies; 2, that they were mistaken and had all made the same mistake; or 3, that they were giving an accurate account and that it was the accused who was not giving you a true account of events. I thought I said to you that there may be other scenarios that would present themselves to you. There is of course the possible scenario that the accused perceived that Leah Taylor was under attack and he considered that it was necessary for him to do what he did.
…
I said to you that if the Crown has established that the force used by accused was out of all proportion to any attack which he could reasonably have believed was being made on his girlfriend, then that is a matter which you would take into account when deciding whether he was acting in self-defence. I did say to you ‘In determining whether the Crown has proved its case you will consider the claim by the accused’ after I told you that he claimed he was doing what he did to prevent Jason Billett from raping his girlfriend. I said, ‘the claim by the accused that he struck Billett on the head to prevent him raping Leah Taylor’ the question for you determine is this, did the accused believe on reasonable grounds that it was necessary for him to hit Billett as he did in defence of Leah Taylor. If he had that belief and had reasonable grounds for it or if you were left in reasonable doubt about the matter then he is entitled to an acquittal.
On the other hand, if you were satisfied beyond reasonable doubt that the accused did not believe that it was necessary to do what he did in defence of Leah Taylor or if you accept that whilst he may have had that belief but you were satisfied beyond reasonable doubt that he did not have reasonable grounds for holding that belief, then his claim that he acted in self-defence fails.
I said to you that if the Crown has established that the force used by the accused was out of all proportion to any attack which he could reasonably have believed was being made on his girlfriend, then that is a matter which you would take into account in deciding whether he was acting in self-defence.
If you consider that the force used was inappropriate that does not necessarily lead to a finding of guilt, it is simply one of the matters that you would take into account in determining whether he was acting in her defence” (SU49-52).

37 During the course of its retirement the jury sent a note to the trial judge in these terms:

“Your Honour 1, would you state whether there is a law which permits or states the extent of what a person is allowed to do in defence of another? 2, we seek clarification of intent to cause GBH as opposed to the undisputed intent to use the piece of wood to stop the accused assaulting Leah” (T54-06/02/02).

38 The trial judge discussed the response to the jury’s question with counsel. Mr Watts objected to the further direction that his Honour proposed. In Mr Watts’ submission the correct answer to the question was “no”. The direction that his Honour gave was as follows:

“The other question you raised is ‘Could you state whether there is a law which limits or states the extent of what a person is allowed to do in defence of another’.
It is the law, ladies and gentleman, that a person defending himself or another is entitled to use force proportionate to the threat which he perceived was being offered.
Now it is for the Crown to establish that the force in fact used by this accused, was out of all proportion to any attack which he could reasonably have believed was being threatened or occurring to Leah Taylor. You should bear in mind the difficulty that the accused might have experienced in calculating the precise action which he should have taken in order to prevent Billett from raping or sexually attacking Taylor, if that was his belief as to what was occurring. You should approach your consideration of this matter in a practical manner, having due regard to the situation in which the accused found himself, and as to what opportunity he would have had to consider his options and choose a course of action. Look at the whole of the circumstances and remember that the degree of force employed is only part of the picture.
In the case before you, the Crown alleges that the force used in smashing that piece of timber against Billett’s head and body, not once but two or three times, was out of all proportion to any force that was necessary to halt any attack which he genuinely believed was taking place.
In considering the claim by the accused that he acted in defence of Leah Taylor in preventing a rape upon her, you might pose the question; did the accused believe on reasonable grounds that it was necessary for him to strike Billett as he did to defend her. If he had that belief and there were reasonable grounds for it or if you are left in reasonable doubt about the matter, then he is entitled to an acquittal. On the other hand, if you are satisfied beyond reasonable doubt that he did not believe that it was necessary for him to do what he did in her defence, or if you accept that whilst he may have had that belief, that you are satisfied beyond reasonable doubt that he did not have reasonable grounds for holding that belief, the claim of him acting to defend her failed.
I remind you of what I have said on a number of occasions, there is no obligation on the accused to prove that he was acting in her defence. It is for the Crown to prove that he was not. The Crown proves this by establishing either (a) that he had no such belief, or (b) that he had no reasonable grounds for any such belief.
Any finding that the accused deliberately used excessive force or unnecessary force in the circumstances does not necessarily prove the Crown case, but can be taken into account by you in deciding whether the Crown has proved this aspect of the matter. In deciding whether the Crown has established that he had no belief that it was necessary for him to do what he did, or that he had no reasonable grounds for such belief, I remind you of the examples I gave you yesterday which illustrated excessive force, disproportionate to any violence being offered” (T68-70-07/02/02).

39 No complaint was directed to the initial directions given by his Honour on the topic of self-defence. Indeed Mr Cook, who appeared on the appellant’s behalf, acknowledged that the directions set out in the first three paragraphs of the extract at [33] above were in conformity with the decision of the High Court in R v Zecevic (1987) 162 CLR 645.

40 In Mr Cook’s submission his Honour’s further directions on the topic of self-defence were confusing and, in some respects, misstated the law.

41 The first complaint relates to the direction given at [33] above:

“If the Crown has established that the force used by the accused was out of all proportion to any attack, which he could reasonably have believed was being made on his girlfriend, then that is a matter which you would take into account in deciding whether he was acting in her defence” (SU11).

Mr Cook complained that this direction imported an incorrect test; namely, a consideration of whether objectively the appellant was acting in defence of Ms Taylor and not whether he perceived her to be the subject of an attack. Mr Cook accepted that this criticism of the trial judge’s directions would not, viewed alone, constitute significant error. That I consider to be a fair concession. The concluding words “in deciding whether he was acting in her defence” are to be read in their context. Relevantly the context includes the preceding words of the sentence, “which he could reasonably have believed was being made on his girlfriend.” Further, the complaint follows immediately after his Honour’s reference to the question of whether the appellant was acting under any perception that Leah Taylor was being raped or that Billett was attempting to rape her or attack her in any way.

42 At the heart of Mr Cook’s challenge was the contention that the effect of the directions on self-defence was that the Crown would negative self-defence if the jury concluded that, viewed objectively, the appellant’s response was out of proportion to the threat or perceived threat. He placed particular emphasis on the two illustrations that the trial judge gave to the jury of disproportionate responses and to his observation at the conclusion of the first such example that:

“That could not sensibly be described as self-defence” (SU10-11).

43 Mr Cook contended that the concluding sentence of the passage that I set out below served to reinforce a view that the jury were concerned with the facts that they found proved as to the situation and with whether the appellant’s response was, in fact, necessary:

“You may feel the accused’s action in deliberately selecting a piece of timber and then running towards Billett, as he backed away from Leah Taylor with his palms held up, and then striking him with such force two or three times, was conduct which went far beyond what he could have possibly believed was necessary to defend or protect her. On the other hand, you might determine she was being sexually assaulted and that what the accused did was necessary to prevent this” (SU11).

This submission seems to me to take the sentence complained of wholly out of context. So much is apparent from the preceding sentence.

44 Mr Cook made no criticism of the re-direction set-out at [36] above. He accepted that these further directions were conformable with R v Hawes (1994) 35 NSWLR 294 at 305 and R v Lean (1993) 66 A Crim R 296. However, he contended that they did not serve to adequately correct the impression created by the examples given earlier that an accused who responds by the use of force that is objectively disproportionate to the threat or perceived threat cannot be said to have acted in self-defence or defence of another. This suggested deficiency in the directions on this topic was submitted to have been compounded by the trial judge’s response to the question asked by the jury.

45 Two aspects of the further directions given in answer to the jury’s question are challenged. Mr Cook submitted that a response in the terms suggested by trial counsel namely “no” would have been correct in law (albeit he acknowledged somewhat unhelpfully brief). In his submissions the opening sentence of the further direction was wrong:

“A person defending himself or another is entitled to use force proportionate to the threat which he perceived was being offered” (T68-07/02/02).

Mr Cook complained that this direction effectively conveyed to the jury that if they concluded that the appellant’s response was “unreasonable” or “out of all proportion” then the Crown would have negatived self-defence. In the course of oral submissions Mr Cook acknowledged that there could be no objection had his Honour, in conformity with R v Dziduch (1990) 47 A Crim R 378 at 380, commenced his further direction by saying:

“The Crown must establish that the force in fact used by the accused, was out of all proportion to any attack on him which he could reasonably have believed was being threatened by the victim”.

Mr Cook pointed to the use of the word “entitled” in the first sentence of the further directions and submitted that this expression carries with it a sense that the onus is on the accused to establish that his response was proportionate to the threat which he perceived as offered. In R v Hawes (1994) 35 NSWLR 294 a like complaint was made of the trial judge’s direction that “the law does permit people to act in their own defence…”. Hunt CJ at Cl (in a judgment with which Simpson J and Bruce J concurred) rejected the proposition that the use of the word “permit” constituted a misdirection as to the onus of proof (at p 305). His Honour went on to note that it was unfortunate that in that case the trial judge had not expressed his directions in a way that emphasised that the onus is upon the Crown.

46 In this case when one reads the whole of the direction given by his Honour in answer to the jury’s question I consider that there is no force to the contention that the suggestion might wrongly have been left with the jury that the accused bore an onus.

47 Mr Cook accepted that save for the opening sentence extracted above, the further direction given in response to the jury’s question was an unexceptional and correct statement of the law as it applied on the issue of self-defence. He contended that it was undercut by his Honour’s concluding reminder of the examples that he had earlier given.

48 Mr Cook conceded that on several occasions the trial judge, rightly, directed the jury that the proportionality of the response was a circumstance to be taken into account in deciding whether the Crown had negatived (a) the existence of the accused’s belief or (b) the reasonableness of any such belief. However, Mr Cook contended that when one looked to the two examples that his Honour gave these directions were effectively undermined. The jury were given examples of disproportionate responses to perceived threats and told that:

“in neither of the examples, that I have given you, could it be sensibly claimed that the force used would be necessary to defend the person being assaulted” (SU11).

49 In Mr Cook’s submission despite the clear statement of the principles (in conformity with Zecevic) given by his Honour there existed the risk that the parting reminder of the examples earlier given was likely to lead the jury to conclude that if the appellant’s response was objectively “unreasonable” the Crown had succeeded on the issue of self-defence. I do not accept that is so.

50 The further direction given in answer to the jury’s question constituted an accurate statement of the law. The reference to the examples was in the context of a direction that a finding that the appellant deliberately used excessive or unnecessary force did not necessarily prove the Crown case but was a circumstance to be taken into account in determining whether the Crown had established (a) that the appellant had no belief that it was necessary to do what he did or (b) that he had no reasonable grounds for such a belief.

51 I consider that the sole ground of appeal has not been made good.

For these reasons the Order that I propose is:

1. The appeal be dismissed.

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