Rogers v The State of Western Australia - [2008] WASCA 201

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA

TITLE OF COURT : THE COURT OF APPEAL (WA)

CITATION: ROGERS -v- THE STATE OF WESTERN AUSTRALIA [2008] WASCA 201

CORAM: STEYTLER P
MILLER JA
MURRAY AJA

HEARD: 8 SEPTEMBER 2008

DELIVERED : 26 SEPTEMBER 2008

FILE NO/S: CACR 166 of 2007

BETWEEN: MARTYN JOHN ROGERS
Appellant
AND
THE STATE OF WESTERN AUSTRALIA
Respondent

ON APPEAL FROM:
Jurisdiction              :  DISTRICT COURT OF WESTERN AUSTRALIA
Coram  :MARTINO DCJ
File No  :IND 917 of 2007

Catchwords:

Criminal law and procedure - Appeal against conviction - Whether jury's verdict unreasonable - Whether trial judge should have directed jury as to defence not raised by counsel at trial - Honest and reasonable mistake of fact - Whether open on the evidence

Legislation:

Criminal Code (WA), s 23, s 24, s 248

Result:

Appeal dismissed

Category: B

Representation:

Counsel:

Appellant: Mr L M Levy
Respondent: Mr P D Yovich

Solicitors:

Appellant: Michael Tudori
Respondent: Director of Public Prosecutions (WA)

Case(s) referred to in judgment(s):

Aubertin v The State of Western Australia [2006] WASCA 229; (2006) 33 WAR 87
Beckford v The Queen [1988] AC 130
CTM v The Queen [2008] HCA 25; (2008) 82 ALJR 978
Da Costa v The Queen (1968) 118 CLR 186
Fingleton v The Queen [2005] HCA 34; (2005) 227 CLR 166
Libke v The Queen [2007] HCA 30; (2007) 230 CLR 559
M v The Queen (1994) 181 CLR 487
Marwey v The Queen (1977) 138 CLR 630
Morris v The Queen (1987) 163 CLR 454
Nudd v The Queen [2006] HCA 9; (2006) 80 ALJR 614
Pacino v The Queen (Unreported, WASCA, Library No 980722, 14 December 1998)
R v Bird [1985] 1 WLR 816
R v Lawrie [1986] 2 Qd R 502
Williams v The Queen (1995) 15 WAR 559

STEYTLER P: On 28 November 2007 the appellant was acquitted by a jury on a charge of unlawfully doing grievous bodily harm to the complainant. However, he was convicted on the lesser, alternative, charge of unlawfully assaulting the complainant (common assault). He appeals against his conviction on two grounds. The first is that the conviction was unreasonable. The second is that the trial judge failed to direct the jury in relation to a defence of mistake of fact under s 24 of the Criminal Code (WA).

The evidence at the trial

The offence charged arose out of an alcohol‑fuelled altercation between two groups of people at the Left Bank Hotel in Fremantle on the evening of 9 December 2006. The first group comprised the complainant and his friends (complainant's group). It ultimately comprised some eight or nine people. The second group, which included the appellant (appellant's group), were members of a social club called the 'Man Club'. Earlier in the day the appellant's group had gone on a cruise. They had consumed a good deal of alcohol. The appellant had drunk about eight stubbies of full‑strength beer before he got to the Left Bank Hotel. He, and others in his group, continued to drink alcohol after arriving there. The complainant's group had also consumed a considerable amount of alcohol. By the time of the altercation, the complainant had drunk about eight to ten stubbies of full‑strength beer and a shot of Sambucca.
The altercation between the two groups happened in two stages. The first took place in an outdoor section of the hotel. This led to the eviction of members of both groups by hotel security officers. The complainant, whose de facto wife, Ms Kerry Marotte, had gone to the hotel to pick him up, left the hotel with Ms Marotte. Not long afterwards, the altercation resumed. In the course of it, the appellant punched the complainant, knocking him unconscious. The complainant fell and hit his head. He suffered a fractured skull and a subdural haemorrhage. Whilst in intensive care in hospital, he contracted staphylococcus aureus pneumonia, endangering his life. Fortunately, he survived.
The prosecutor called nine witnesses. The first three were the complainant, Ms Marotte and Mr Phillip Haddleton, who was one of the complainant's group. The next three were members of the appellant's group, Craig Puddy, Cameron Mansell and Joaquim Lobo. Two of the hotel's crowd controllers gave evidence. The ninth witness was a police officer, Constable Gregory Balfour, who had conducted a video‑taped interview of the appellant. The videotape was tendered at the trial and shown to the jury. The appellant did not give evidence. Nor did he call any witnesses.
In his evidence, the complainant could not recall the incident. He was unable to recall any fights at the hotel at all. However, he denied being an aggressor.
In her evidence, Ms Marotte said that the complainant had not been involved in the first stage of the altercation. She said that, after she and the complainant had left the hotel grounds, the complainant returned to get Mr Haddleton, who was to be given a lift home by Ms Marotte. She said that, as the complainant and Mr Haddleton were walking through the hotel car park area (Ms Marotte's car was parked elsewhere), a fight broke out behind them. This spilled into the car park. Ms Marotte said that the complainant and Mr Haddleton were not involved in the fight. Despite this, the appellant hit Mr Haddleton three times and then punched the complainant once. The punch to the complainant, being the event that gave rise to the charge, was struck with sufficient force to knock him unconscious. When cross‑examined by the then counsel for the appellant it was never put to Ms Marotte that the complainant had approached the appellant aggressively. Her evidence that this had not happened was consequently unchallenged.
Mr Haddleton's evidence largely corresponded with that of Ms Marotte. He said that, while he was walking out of the hotel with the complainant and Ms Marotte, he saw the hotel's crowd controllers eject a member of the appellant's group from the hotel. Shortly afterwards Mr Haddleton was hit two or three times. He did not see his attacker until after he had been hit. He turned around and saw the appellant hit the complainant. He said that the complainant had had his hands in his pockets at the time he was hit. The complainant was unconscious before he hit the ground. It was put to him in cross‑examination that he and the complainant had come 'rushing towards [the appellant] and two others in an aggressive manner' and that the complainant had had his fists raised. It was also put to Mr Haddleton that he had not been punched at all and that the appellant had 'palmed' or 'pushed' him off. He denied that these propositions were accurate and maintained his evidence‑in‑chief.
Mr Puddy's evidence was that, as he and others in the appellant's group walked out of the hotel, members of the group were approached by people (members of the complainant's group) who had been waiting outside. Scuffles broke out. Mr Puddy saw two men (the complainant and Mr Haddleton) approach the appellant in an aggressive or confrontational manner. The appellant hit the complainant, who fell to the ground. Mr Puddy believed that the complainant had been about to punch the appellant. He said that he could not 'categorically' say that the complainant's fists were raised, but they were 'definitely up in a protective, or in an aggressive manner'. Although he used the word 'protective', it seems from the transcript that he intended to correct this by the use of the words 'or in an aggressive manner'. The next question that he was asked was, 'Okay, so his fists were in an aggressive manner [sic] coming towards Mr Rogers. Is that what you saw?' He responded by saying, 'Yes'.
Mr Mansell said that he saw two men charge at the appellant in succession. The appellant pushed the first of them away (seemingly Mr Haddleton), but the second man (the complainant) had his fists clenched and was acting aggressively. Each of the appellant and the complainant attempted to punch the other. Only the appellant's punch made contact. He said that the complainant had been 'saying profanities', such as, 'You're going to fucking get it'.
Mr Lobo's evidence was that the complainant and another man had approached him and the appellant in an aggressive way. The complainant had his 'fists up ready to go'. Mr Lobo described the two men as having had 'a fierce manner' and as having been 'ready to attack us'. He said that the appellant 'defended me and him'.
The two crowd controllers who gave evidence were Mr Gareth Cooks and Mr Troy Hokin. Mr Hokin said that spot fights had broken out everywhere between the two groups. However, he did not see the lead up to the punching of the complainant by the appellant. Mr Cooks saw the alleged assault. He said that the appellant and the complainant had approached each other in an aggressive manner. He said that the appellant 'just struck first'.
In his video‑taped interview, the appellant said that there were two men who had approached him aggressively. He had pushed the first away, but punched the second (the complainant). His explanation for punching the complainant was that he had thought that he would be struck by the complainant who had 'a clenched fist at the side'.
There were consequently effectively three versions of what had taken place: that advanced by Ms Marotte and Mr Haddleton (an unprovoked assault by the appellant), that advanced by Messrs Puddy, Mansell, Lobo and the appellant (an act of self‑defence to an assault by the complainant) and that advanced by Mr Cooks (the appellant and the complainant having approached each other aggressively with the appellant having struck first).

The appellant's defences at trial

I have said that the appellant did not give, or call, evidence at the trial. However, his counsel admitted that the appellant had struck the complainant. He raised a plea of self‑defence based on evidence given by the appellant's group and on what was said by the appellant during the video‑recorded interview with the police. He submitted, in the alternative, that the grievous bodily harm had been brought about by accident, providing a defence to the more serious charge by virtue of s 23 of the Criminal Code (WA).
It is apparent from the verdicts of the jury that they must have concluded that the prosecutor failed to negative the defence of accident but that the defence of self‑defence had been negatived.

Ground 1 - Was the verdict unreasonable?

The appellant contends that the verdict of the jury was unreasonable because the weight of evidence supported his contention that he had acted in self‑defence. The particulars to this ground rely upon the combined effect of the evidence of a majority of the witnesses (Messrs Puddy, Mansell, Lobo and Cooks) and the video‑record of the appellant's interview by the police. Counsel for the appellant submitted that it would be dangerous, in all of the circumstances of the case, to allow the verdict to stand: M v The Queen (1994) 181 CLR 487.
When considering whether a conviction is unsafe or unsatisfactory (or whether the conviction should be set aside because, having regard to the evidence, it is unreasonable or cannot be supported: s 30(3)(a) of the Criminal Appeals Act 2004 (WA)) the question is one of fact which the court must decide by making an independent assessment of the evidence: Morris v The Queen (1987) 163 CLR 454; M, 493 (Mason CJ, Deane, Dawson & Toohey JJ). In M, the court explained how the task should be approached, as follows (493):
Where, notwithstanding that as a matter of law there is evidence to sustain a verdict, a court of criminal appeal is asked to conclude that the verdict is unsafe or unsatisfactory, the question which the court must ask itself is whether it thinks that upon the whole of the evidence it was open to the jury to be satisfied beyond reasonable doubt that the accused was guilty … But in answering that question the court must not disregard or discount either the consideration that the jury is the body entrusted with the primary responsibility of determining guilt or innocence, or the consideration that the jury has had the benefit of having seen and heard the witnesses. On the contrary, the court must pay full regard to those considerations … (Citations omitted)
The question is whether the jury must, as distinct from might, have entertained a doubt about the appellant's guilt: Libke v The Queen [2007] HCA 30; (2007) 230 CLR 559 [113] (Hayne J, Gleeson CJ & Heydon J agreeing). It is not sufficient to show that there was material which might have been taken by the jury to be sufficient to preclude satisfaction of guilt to the requisite standard: Libke [113].
Counsel for the appellant accepts that, in the present case, it was open to the jury to accept the evidence of Ms Marotte (the only person who was not under the influence of alcohol, apart from the two crowd controllers) and Mr Haddleton. However, he contends that, even then, the conviction was unreasonable and cannot be supported, having regard for the conflicting evidence. However, the jury were entitled, not only to rely upon the evidence of Ms Marotte and Mr Haddleton, or such parts of the evidence of those witnesses as they accepted, but also to place no reliance upon all, or most, of the evidence of the other witnesses. Having seen and heard the evidence, the jury were in a position to evaluate it in a manner in which a court of appeal cannot: M, 494 (Mason CJ, Deane, Dawson & Toohey JJ). There is nothing in the transcript of the evidence that should lead to the conclusion that it was dangerous for the jury to rely upon the evidence of Ms Marotte and Mr Haddleton and to place no reliance upon the somewhat contradictory versions of the other witnesses. To interfere with the verdict in those circumstances would be to pay less than full regard to the considerations referred to by the High Court in M.
In any event, it is not clear upon what basis the jury found that self‑defence had been negatived. At the relevant time, s 248 of the Code provided, so far as it is presently relevant, that:
When a person is unlawfully assaulted, and has not provoked the assault, it is lawful for him to use such force to the assailant as is reasonably necessary to make effectual defence against the assault, provided that the force used is not intended, and is not such as is likely, to cause death or grievous bodily harm.
The jury may have rejected self‑defence as a reasonable possibility either by accepting the evidence of Ms Marotte and Mr Haddleton and rejecting the other evidence (in which event they would have found that there had been no assault on the appellant) or by finding that the appellant's response went beyond what was reasonably necessary to make effectual defence against the threat from the complainant.
In this last respect it was undoubtedly open to the jury to accept evidence that the complainant's face was struck with sufficient force to render him unconscious before he hit the ground. Each of Ms Marotte, Mr Haddleton and Mr Cooks gave evidence to that effect. The appellant is a large man. He acknowledged, during his interview with the police, that he is 6 ft 2 in tall. The jury may have found that the appellant had overreacted to the aggressive posture of the complainant and that it had not been reasonably necessary for the appellant to make effectual defence by punching the complainant so forcefully in the face as to render him unconscious. This finding was open to them even though they accepted that this was not done with the intention of causing, and that it was unlikely to cause, death or grievous bodily harm. It is noteworthy, in this respect, that, when he came to make his sentencing remarks, the trial judge assumed that the jury had accepted that the appellant had formed the view that the complainant was going to assault him, but concluded that the blow struck by the appellant 'was not a reasonable response to the situation that [he was] in'.
Counsel for the appellant also relied, under this heading, upon the fact that the prosecutor never told the jury, in opening, which version of the facts he contended for. In my opinion, that was not a matter of any significance in this case. The prosecutor obviously contended that the jury should either accept evidence that the assault on the complainant was unprovoked or conclude from the evidence that the punch involved the use of force that was greater than was reasonably necessary to make effectual defence against an assault, if the jury found that there had been one. In his closing address (as summarised by the trial judge in his charge to the jury), the prosecutor submitted to the jury that, if they accepted the evidence of Ms Marotte and Mr Haddleton, self‑defence was not available and, if they accepted the evidence of witnesses from the appellant's group, they should conclude that excessive force had been used (although this last comment appears to have been directed specifically to the offence charged rather than to the alternative offence of common assault).
In the circumstances it appears to me to have been unnecessary for the prosecutor to do more than he did. The options available to the jury were clear. Moreover, no complaint is made in the grounds of appeal (or at all) as regards the trial judge's summing up in this respect. The trial judge explained the options available to the jury (leaving to one side, for the moment, the question whether he should have directed them as regards a possible defence of mistake) and outlined the circumstances in which they could find the charge, or the lesser alternative charge, to have been proved. The trial judge was not asked to re‑direct the jury in that respect. Nor was any complaint made at the trial concerning the prosecutor's closing address.
Ground 1 has not been made out.

Ground 2 - Defence of mistake

Counsel for the appellant contends that, notwithstanding that he was not asked to do so, the trial judge should have directed the jury in respect of s 24 of the Code. At the material time, that section relevantly provided that:
A person who does … an act under an honest and reasonable, but mistaken, belief in the existence of any state of things is not criminally responsible for the act … to any greater extent than if the real state of things had been such as he believed to exist …
It is not in dispute that s 24 might be applied in the context of self‑defence: Pacino v The Queen (Unreported, WASCA, Library No 980722, 14 December 1998) 17 (Kennedy J, the other members of the court agreeing). It is also accepted that, even if the issue is not raised by defence counsel (as was the fact in this case), it is incumbent on the trial judge to direct the jury on all relevant defences. In Fingleton v The Queen [2005] HCA 34; (2005) 227 CLR 166, McHugh J said [83]:
A trial judge is bound to put to the jury every lawfully available defence open to the accused on the evidence even if the accused's counsel has not put that defence and even if counsel has expressly abandoned it (Pemble v The Queen (1971) 124 CLR 107). Barwick CJ stated the relevant principles in Pemble … at 117 ‑ 118:
'There is no doubt that the course taken by counsel for the appellant at the trial contributed substantially to the form of the summing up. If the trial had been of a civil cause, it might properly be said that the trial judge had put to the jury the issues which had arisen between the parties. But this was not a civil trial … Whatever course counsel may see fit to take, no doubt bona fide but for tactical reasons in what he considers the best interests of his client, the trial judge must be astute to secure for the accused a fair trial according to law. This involves, in my opinion, an adequate direction both as to the law and the possible use of the relevant facts upon any matter upon which the jury could in the circumstances of the case upon the material before them find or base a verdict in whole or in part.' (footnotes omitted)

An honest, reasonable and mistaken belief can relate either to the objective element of self‑defence (the existence of an assault upon the accused person) or the subjective element (the degree of force that was reasonably necessary to meet the threat) or both: Pacino, 17. Counsel for the appellant at the trial did not raise the possibility of a mistake in either respect. Counsel for the respondent suggests that this was for sound tactical reasons. He suggests that, if the possibility had been raised, attention would have been drawn to the appellant's intoxicated state, his condition having been relevant to the reasonableness of any belief formed by him: Aubertin v The State of Western Australia [2006] WASCA 229; (2006) 33 WAR 87. He also suggested that the jury would necessarily have been invited to give closer attention to the amount of force used by the appellant when punching the complainant. More importantly, the raising of a defence of mistake might have been thought to detract from the evidence of those who said that the appellant had, in fact, been required to defend himself against an assault by the complainant. Counsel for the respondent contends that, having chosen not to raise the issue for sound tactical reasons, the appellant cannot now contend that the failure by the trial judge to direct the jury as regards s 24 gave rise to a miscarriage of justice. He relies, in this respect, upon Nudd v The Queen [2006] HCA 9; (2006) 80 ALJR 614 [9] (Gleeson CJ), [31] (Gummow & Hayne JJ), [79] (Kirby J).
The appellant was represented by experienced counsel at the trial. His decision not to raise the issue of mistake may well have been influenced by tactical considerations. However, if the defence was reasonably open on the evidence then, as McHugh J pointed out in Fingleton, the trial judge was nevertheless required to direct the jury in respect of it. It would be difficult in that circumstance to suggest that no substantial miscarriage followed from the omission. The passages from Nudd that were relied upon by counsel for the respondent do not assist him. They deal with a different situation, being one in which the appellant contended that, because of the incompetence of his counsel at trial, evidence which might have been led (the appellant had not himself given evidence) was not led and his defence was put forward ineptly.
However, I am not persuaded that a defence of honest and reasonable, but mistaken, belief was reasonably open to the appellant on the evidence.
If the jury accepted the evidence of either or both of Ms Marotte and Mr Haddleton, there was no scope for any defence of mistake. On their evidence there was nothing that could reasonably have led the appellant to believe that he was being or would be assaulted by the complainant.
There seems to me also to have been no scope for a defence of mistake arising out of anything said by Mr Cooks. He appears to have regarded both men as having been willing to fight. That, of course, is only one factor to be taken into account in considering whether a defendant acted in self‑defence (R v Bird [1985] 1 WLR 816), albeit it will often be a telling factor against the defendant. As the court (Lord Lane CJ, Skinner and Simon Brown JJ) pointed out in Bird (820):
If the defendant is proved to have been attacking or retaliating or revenging himself, then he was not truly acting in self-defence. Evidence that the defendant tried to retreat or call off the fight may be a cast-iron method of casting doubt on the suggestion that he was the attacker or retaliator or the person trying to revenge himself. But it is not by any means the only method of doing that.
So, for example, in Beckford v The Queen [1988] AC 130, 144, Lord Griffiths (delivering the judgment of the Privy Council) said that 'a man about to be attacked does not have to wait for his assailant to strike the first blow … ; circumstances may justify a pre‑emptive strike' (see also R v Lawrie [1986] 2 Qd R 502, 505). However, in the present case there was nothing in Mr Cooks' evidence that provided any foundation for a defence of honest and reasonable, but mistaken, belief on the part of the appellant concerning the need for a pre‑emptive strike or concerning any other relevant factual matter.
Nor is there any scope for mistake on the evidence of any of the appellant's group. Their evidence (and what was said by the appellant in the course of his interview with the police) was to the effect that the appellant had in fact been assaulted by the complainant. It is important to bear in mind, in this respect, that the trial judge explained to the jury, when directing them concerning the defence of self‑defence, that, if the complainant had 'attempted or threatened to punch [the appellant] and appeared to be able to do so that could constitute an assault without [the complainant] actually punching [the appellant]'. It would consequently have been apparent to them that, on the evidence of witnesses from the appellant's group, there could have been no real doubt that the complainant had attempted or threatened to punch the appellant and appeared to be able to do so. Although (unlike Mr Mansell) neither Mr Puddy nor Mr Lobo said that the complainant had tried to punch the appellant, both said that he had come at the appellant aggressively, with his fists up. The appellant said, in the course of his interview with the police, that he 'thought [he] was gonna get hit' and that the complainant had come at him 'very fast' and aggressively (pages 18 and 19 of the transcript of the interview).
In Marwey v The Queen (1977) 138 CLR 630, 637, Barwick CJ (with whom Aickin J agreed) regarded it as necessary to have resort to the defence of mistake only 'if the reasonable grounds for the necessary belief included the accused's erroneous understanding of some fact which, had it been as the accused understood, would have supported the existence of reasonable grounds'. Nothing of that character appeared from the evidence. Not one of the witnesses said anything that suggested that the appellant might have been labouring under some misapprehension of fact. The evidence (Mr Cooks aside) was, as I have said, either to the effect that he was undoubtedly being assaulted, or about to be assaulted, or that he was undoubtedly not being assaulted; and it left no room for mistake on his part. As I have also said, Mr Cooks' evidence, albeit to different effect, raised no issue of mistake. The appellant himself gave no sworn testimony concerning any mistake on his part (and what was said by him in the course of his interview was to the effect that the complainant had been about to assault him). A defence of mistake, like one of provocation, 'cannot be constructed out of speculation and suppositions about mere possibilities': Da Costa v The Queen (1968) 118 CLR 186, 202 (Windeyer J); Williams v The Queen (1995) 15 WAR 559; CTM v The Queen [2008] HCA 25; (2008) 82 ALJR 978. There must be some foundation for it and none appeared.
Similarly, if the basis for the conviction was that the jury accepted that there had been an unprovoked assault on the appellant by the complainant, but that the appellant had used more force than was reasonably necessary to make effectual defence against an assault, it is difficult to see how any miscarriage could have arisen out of the failure to give a direction concerning mistake. That is because, when he directed the jury that the force used by the appellant must have been reasonably necessary to make effectual defence against the assault, the trial judge said:
Whether the force used by [the appellant] was reasonably necessary to make effectual defence must be judged in the light of the situation confronting [him] and in all the circumstances that were known to him at the time. For that reason [the appellant's] belief and understanding is a circumstance that you take into account in determining whether the force used by [him] was reasonably necessary.

That direction expressly invited the jury to take into account the appellant's belief and understanding, regardless of whether it was, or may have been, mistaken. The jury could not have understood from this direction that, if the appellant's belief was mistaken, they were free to ignore it. If that was so, there would have been no reason for the trial judge to have invited them to take into account the appellant's belief and understanding.

Ground 2 consequently fails.

Conclusion

I would dismiss the appeal.
MILLER JA: I agree with Steytler P.
MURRAY AJA: Having had the advantage of reading the reasons of Steytler P in draft, I agree with them and that the appeal should be dismissed.