Strang v The Queen

[1991] HCATrans 196

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IN THE HIGH COURT OF AUSTRALIA

Office of the Registry

Sydney No Sl42 of 1990

B e t w e e n -

GRAEME EDWIN STRANG

Applicant

and

THE QUEEN

Respondent

Application for special leave

to appeal

DAWSON J
GAUDRON J

McHUGH J

TRANSCRIPT OF PROCEEDNGS

Strang 1 6/8/91

AT SYDNEY ON TUESDAY, 6 AUGUST 1991, AT 12.55 PM

Copyright in the High Court of Australia

MR M.F. ADAMS, QC:  If the Court pleases, in this matter I

appear with my learned junior, MR G.J.L. SCRAGG.

(instructed by James Papas & Associates)

MR R.N. HOWIE, QC: If Your Honours please, I appear with my

learned friend, MR P.G. BERMAN.	(instructed by the
Solicitor for Public Prosecutions)

MR ADAMS:  Your Honours, the nub of the complaint in this

case is the confusion caused in the directions to the jury about self defence upon the other aspect of the case, which was the substance of the case

supported by the applicant on oath, which was that

the injuries involved were inflicted entirely

accidentally and without any intention whatever.

In our submission, there must be a limitation

in the principle of which Pemble is the first
expression by this Court in this country concerning
the need for a trial judge to bring to the jury's

attention, with adequate directions, defences which

are raised on the evidence, even though counsel

either does not refer to them or eschews them in

terms.

We submit that the limitation, upon that

principle, is demonstrated in the circumstances of

this case and that it is not one, as the Court of

Criminal Appeal determined, simply where the jury

was entitled to take one part of the applicant's

evidence, say that that might conceivably raise a defence, and necessarily in so doing disregarding

the real nub of that defence.

May I illustrate briefly the way in which the

problem arises. His Honour the learned trial judge

dealt on a number of occasions with the onus and

standard of proof, commencing those observations at

page 2 of His Honour's reasons. My appeal book

pages are not clearly numbered, so that, commencing at page 2 of His Honour's directions at about point

6, he said: 

it is for you to decide what evidence you
accept and what evidence you reject or what

evidence you have doubts about.

N~ possible complaint could be made about those

words. At page 3, point 2:

it is for the Crown to prove it and the Crown

has to prove the whole of its case. If it

fails to prove something that is essential

then the accused is entitled to be acquitted -

and, it must do that beyond reasonable doubt, at

the end of the paragraph. In the middle of the

Strang 6/8/91

next paragraph - and this, in our respectful

submission, is an offensive direction:

Whether you have a doubt or whether you have a

reasonable doubt, those are questions for you.

Whether you have a doubt or whether it is a

reasonable doubt you entertain. If you are

satisfied, and you don't have any reasonable

doubts about it you are satisfied he is

guilty, then you have got to say he is guilty.

If you do have a reasonable doubt about it you must say not guilty.

His Honour there twice states - well, he first

states that the question whether he has a doubt or

a reasonable doubt are two questions to be

distinguished, and he then goes on to restate the

distinction and then point out that it is a

reasonable doubt that they must entertain.

Now, in dealing with self defence, His Honour

correctly stated, if I may say so with respect to

him, the test, at page 5.5 of the summing up:

The question that has to be asked if self-

defence is being considered is did the accused

genuinely believe on reasonable grounds that

what he did was necessary ..... He does not have

to prove that it was necessary. He does not

have to prove that he had that belief.

If I may roll-up that last sentence, the Crown has

to prove that it was unnecessary, although

His Honour does not there refer to the standard of proof.

DAWSON J: Before you go on to the next passage, I see it is

1 o'clock, Mr Adams. Is this a convenient time?

MR ADAMS:  Yes, it would be a convenient time, Your Honour.

DAWSON J:  We will adjourn until 2 o'clock.

AT 1.01 PM LUNCHEON ADJOURNMENT

UPON RESUMING AT 2.01 PM:

DAWSON J: Yes, Mr Adams.

MR ADAMS:  Thank you, Your Honour. Your Honours, I was

going briefly through the summing-up, the point

Strang 3 6/8/91

being to demonstrate, in my submission, that the

discussion about self defence may well have led to
confusion in the jury's mind as to the way in which

they should dispose of what the real issue in the
case was, and I was taking Your Honours briefly to
the way in which the learned trial judge dealt with

the onus and standard of proof in that respect to

demonstrate that point.

At the bottom of page 5, His Honour pointed out - at page 5 of the summing-up:

The Crown has to prove that he didn't believe that whatever he was doing was necessary or if

he did believe it then the Crown can succeed

if it satisfies you that he had no reasonable

grounds -

of course, that is a completely correct statement
of onus, though it does not advert to the standard

of proof.

The issues of fact are mentioned at the middle

of page 6:

he asks you to accept -

that is the Crown -

asks you to accept from Mr Pels that a third

person, a passenger, pulled them

apart ..... spun him around so for a time he had

his back to the accused.

That was part of the dispute between them; and:

The accused denies that. Next he asks you to

rely on Pels as establishing that while he had
his back to the accused he felt what he

thought were punches under his right armpit

and on the shoulder ..... So the Crown says if

you accept those things there is no question of self-defence.

Again, a proposition which is undoubtedly, with the

greatest respect, correct.

__ At page 7, after some early observations,

His Honour sums up the applicant's evidence, at

about point 2:

He explains very elaborately how the contact

between the knife that he was holding and the

back of Mr Pels may have quite unintentionally

and accidentally come into contact ..... If you

believe it, what Mr Strang told you, then of

course he is not guilty because the Crown has

Strang 4 6/8/91

to prove that it was an intentional stabbing.

If you think that what he says to you might

reasonably be the truth he is still not

guilty. You can only find him guilty if you

are satisfied beyond reasonable doubt that

what he said to you was false.

And then His Honour suggests that there are other

possibilities, and it was in dealing with the other possibilities that the issue of self defence really

became possible because, on the victim's account

and on the Crown's account, no possible occasion

for self defence arose because the victim had his
back turned; on the accused's account, the blows

that were struck were completely unintentional and accidental, so that he did not strike them in self

defence. So it was only, then, if one came to a

different view of the facts in which one did not

accept the Crown's case upon the facts and did not

accept the accused's account of the facts - - -

GAUDRON J:  Was there any evidence on which a third view,

fourth view, might be taken?

MR ADAMS:  We submit, no, despite what was said in the Court

of Criminal Appeal.

McHUGH J:  What about the evidence of the applicant where he

said that he saw the victim's action as:

an initiation to an attack by him against me.

..... I quickly thought the best defence would

be to actually move very quickly inside the

line of his intended attack"?

MR ADAMS:  Certainly that would have been a defence to any

charge of assault involving a knife at that time,
but he said, the accused's case was, the

applicant's case was, that at the time that the

blows were struck causing the injury he was

attempting to disentangle himself, and he was not

at all using the knife with any intention of

defending himself at that stage.

McHUGH J: But the jury were not obliged to accept the

totality of his version. What about what he told

the police, that the passenger:

ran towards me and we grabbed hold of each

other and I stabbed him in the back with the

knife.

MR ADAMS:  Yes, Your Honour. That was a view - the

difficulty is that in the light of his sworn

evidence that he did not intentionally use the

knife in self defence, the difficulty was that such

a view must have been necessarily speculative and

Strang 6/8/91

entirely contrary to the defence that he raised.

They did not have to consider self defence. The

difficulty is the way - if I can come to what

happened at the end of the summing-up, at page 18,

to demonstrate the point that we make. At the

middle of page 18, the last thing that His Honour

said which in our respectful submission was in

error:

Ladies and gentlemen, that seems to me to

point up the issue that you have to decide.

That is, did the accused stab Pels intentionally or not.

It is for you to determine who to believe.

Of course, that was only part of the task, but the jury then came back with a question about self

defence and this is dealt with at page 20, about

point 6:

Finally, you say did Mr Strang deny in his

evidence that the wounding was in self

defence? The answer to that is yes he did.

Did you ever intend to stab him? A. No. Q.

Did you ever intend to attack him with the

knife? A. No.

And then there were some questions and answers

which were read out.

Now, the difficulty about this was that if the

jury were of the view - sorry. They would only
come to the question of self defence, as the judge

directed them, upon the basis that he had

intentionally used the knife. That is, that they

determined beyond reasonable doubt that he intended

to use the knife. It then could not be that in

order to consider self defence they could have

regard to his evidence which, ex hypothesi, they

must have rejected beyond reasonable doubt.

This is where we submit the directions about

the onus of proof and standard of proof to which I

have brought the Court's attention confused the

question, because the jury must have felt that

somehow there was still alive, when they came to

consider the question of self defence, the question

of intention. But it could not be alive if they

had accepted the judge's directions on that point.

So, we submit that by raising this false case

of self defence, it was not merely an artificial -
it did not have the effect of merely raising an

artificial case, but we submit it must have had

Strang 6 6/8/91

effect, or at least there was a substantial risk of

affecting the deliberations of the jury concerning	the real question raised by the adversaries in the
case.
Now, the Court of Criminal Appeal dismissed the confusion, saying they did not accept that
there was any confusion in the evidence caused by
the raising of what we submit was essentially a
chimera. Now, I must concede that counsel for the
defence did not seek redirections on any of these
matters and, specifically did not seek to have the
defence of self defence excluded. But we submit
that when the directions are considered as a whole
the confusion is evident, and that the jury's attention was deflected from the real question here, which was whether or not there was a doubt
about the accused's intention. Your Honours, I think I can add nothing further to the argument.

DAWSON J:	Mr Howie.
MR HOWIE:	Your Honours, there is no doubt that - there

seems to be a clear line of authority which seems

to be not in doubt here that where a trial judge

sees that there is any reasonable evidence or any

possibility that the evidence can disclose a self

defence case, that he should leave it to the jury,
notwithstanding the defence in support, or
notwithstanding the attitude taken by the defence

counsel.

In Varley it was made clear that he should do

that where he is in doubt as to whether or not the

issue of self defence would arise.

GAUDRON J: The point put against you is that it simply did

not arise, could not arise, and led to confusion.

MR HOWIE: Well, with great respect, we say it could arise.

One of the arguments that was put by the defence

was acting in defence of his property - this was	counsel himself to the jury was that the accused
the rope - and that is why it came to be that he was going after this man, or attacking the victim,
was that he wanted to retain the rope and obtain
his property back. That was put at the summing-up at_page 17 point 1. It was put to the jury that
that was an argument - at the bottom of page 16.
This is by Mr Whale, who was appearing for the
applicant:

He relies on the unlawful conduct of Pels, and

that it was reasonable for the accused to

protect his property and he did have the right

to take reasonable steps to protect his

property.

Strang 7 6/8/91

So the whole issue was one of, not self defence, we

say, but even at the start in the defence case, one
of protection of property. There is perhaps a

little difference between the two and one can

easily flow from one into the other.

But what was happening here, and we say the

evidence really arises from what was put by

Mr Justice McHugh, is what the defence says about

it, what the accused said about it, was that the

situation where he came to be grappling with the

victim was in a self defence situation, that he saw

his best line of defence as to run to meet him and

to attack him. At that stage he had a knife in his

hand. He gives an account that while that

grappling was going on he struck the deceased with
a knife, he says involuntarily or accidentally, but

the jury might well accept that that version of the

facts of him grappling with the victim was true,

but the wielding of the knife in that attempt, at

that time, was in self defence and not in some

involuntary moment which just occurred at the same

time in which he was grappling with the victim in a

self defence type situation.

But we say that it was open on the material

and that in fact if it had not been put to the jury

there would have been a strong argument that it

ought to have been put in the whole situation that

arose, and that this man was both, firstly,

defending his property, and then defending himself

from an attack that he saw from what was a bigger

person who he had some fear of.

Now, the other thing that the Court of

Criminal Appeal looked at was whether there was any

prejudice arising to the applicant from this issue

of self defence being put to the jury, but it was

made quite clear through His Honour to the jury in

the summing-up that it was not the defence case,

that the accused was not saying that he was acting

to the jury when he questioned the accused himself,	in self defence. His Honour made that quite clear
and it was made quite clear to the jury that he was
putting it because of a possibility that the jury might foresee, arising from the facts which were
being placed before them, that there may be an is~µe of self defence because the Crown had to prove, to prove the malicious wounding, not only
that the act was done intentionally but without
lawful cause and excuse, the lawful cause and
excuse being, in this case, the possibility of self
defence.

DAWSON J: There had to be some explanation as to why the

knife was drawn.

Strang 6/8/91

MR HOWIE: That is right.

DAWSON J: What was the accused - I should not ask that,

because he did say that he drew the knife:

"I interpreted the slowing of the passenger's

run as an initiation to an attack by him

against me. That is the basic answer to the

question. I only drew it so that if he did

turn around to face me it would deter and

discourage the attack."

MR HOWIE: That is right.

DAWSON J: Now, that could be interpreted, I suppose, as

saying, "Well, at least at that point, I drew the

knife in self defence".

MR HOWIE: That is right, and then, having drawn the knife,

the man moves forward - he says he thinks it is

because he saw the knife being drawn. I think that

he saw that the victim moved towards him.

DAWSON J:  The passenger said they were just scuffling:

pushing, sort of round house punches ..... It

was a messy sort of scuffle.

MR HOWIE:  That apparently is when the two have come

together.

DAWSON J:  He does say, or appears to say, that he drew the

knife in self defence.

MR HOWIE:  I am certain that that is so.

DAWSON J: What does he say about the change in attitude?

Where does that occur?

MR HOWIE:  The change in attitude occurred that when he was

scuffling with the man, having come together, he

was not then intending to knife him. That was an

involuntary action, he said, by him having the

knife out, that it was an involuntary action. I

think the first was accidental, and the second one

he said was due to some pain or some situation

which occurred in his arm which caused him to stab

hinr.

DAWSON J:  So he is saying that he drew the knife in self

defence but he did not actually use it in self

defence, in the ensuing scuffle.

MR HOWIE: That is right, in the ensuing scuffle. And the

stabbing wounds occurred at the time of the

scuffle, according to his version. According to

the Crown version, the stab wounds occurred at the

Strang 9 6/8/91

time in which the scuffle had broken up and the

victim had had his back turned to the accused and

then the knife wounds. But on the applicant's

version, the knife wounds occurred at the time of

the scuffle, which had occurred itself in self

defence.

From the passage which was read by

Mr Justice McHugh, he saw his best line of defence

was to attack, in that scuffle. Now, in that

situation, if the jury accepted or had some doubt

about the question of whether or not the victim had

his back to the accused but had some doubt that the stabbing may have occurred during the course of the

scuffle, which was the accused's version, they may

have then also had no doubt that it was

intentional, because the accused's version of it

occurring accidentally at the time he was scuffling with the passenger, the jury might well have had no

doubt that at that stage it was not simply - he

talked about it almost as being an involuntary act,

something he just did not mean to happen. So that

self defence, in that situation, would well and

truly arise.

DAWSON J: Did the trial judge indicate he was going to

leave self defence to the jury?

MR HOWIE:  I cannot say that. I do not know. The accused's

counsel, I suppose, could have asked for any self

defence to be withdrawn at the end of the summing

up on the basis that it was not the defence that

was being put and that it would only add to the

confusion. No, the transcript did not disclose.

No, I do not know.

DAWSON J: Anyway, there was no objection taken afterwards?

MR HOWIE:	Not after the summing-up, not asking it to be withdrawn.
DAWSON J: That is not surprising, really.
MR HOWIE:	Not surprisingly, perhaps. But we say there

could not be any real prejudice arising from

whatever technical arguments now can be mounted

about the onus of proof. It was clear from reading

th~ summing up as a whole that the Crown had to

prove that the wounding was an intentional act, and

that the defence case was that it was not an

intentional act, but that His Honour was making it

clear to the jury, although this was not the

defence that was being raised - and that was made

quite clear by asking him in the witness box, and

there are various places through the summing up, for example at the top of page 5. This is just

after he has mentioned malice, and that the act

Strang 10 6/8/91

must be one of malice, that is intentional and

without lawful excuse; His Honour goes over to the
top of 5 to make it quite clear to the jury that

the accused is not relying on this but that he

should mention it to them.

We would say that the way it was put to the jury, that they could not have any doubt at all

that this was a matter which was being put to them

as a possibility which may have occurred from them

neither being able to accept one or other view of

the evidence. Thank you.

DAWSON J:  Thank you, Mr Howie. Mr Adams.

MR ADAMS:  Your Honour, in my respectful submission, the

difficulty is not merely here that self defence was

raised. It is possible to conceive of a case where

this kind of evidence was given and yet it was

raised. My submission is that the way in which it

intruded into the trial created grave difficulties,

or a risk of difficulty, in the jury truly

understanding how they were going to deal with this

third competing possible scenario.

DAWSON J: That may be, but if your client really, in his

evidence, had, at least as an initial possibility,

raised the question of self defence, it is very

hard then to eliminate it from the possibilities,

is it not?

MR ADAMS:	Yes, Your Honour.
DAWSON J:	I mean, he did say, in terms that - his own

evidence suggested that he drew the knife in

response to an attack, or what he saw as an attack.

MR ADAMS: Quite, Your Honour, but I am rather discussing

the way in which this issue ultimately came before
the jury. If they accepted Pels, his back was

turned, so the issue was -

DAWSON J: Well, if they accepted a number of versions, then

of course the critical issue of self defence did not arise, but one version was - and on your own

client's evidence - that he drew the knife in self

defence.

MR ADAMS: Quite.

DAWSON J:  A scuffle ensues, and that is one of the

bystanders's evidence, and it is common ground that

the knife was used in that scuffle - well, perhaps

"used" is not - - -

MR ADAMS: Well, that injuries were caused by the knife.

Strang 11 6/8/91

DAWSON J: During that scuffle. And having regard to the

fact that the knife was drawn in self defence, it

must be open, on one version, to say that it was

used in self defence.

MR ADAMS:  Your Honour, except that in dealing with that

issue the jury were told to have regard to evidence

which, in order to come to that issue, they must

have determined beyond reasonable doubt the other

way.

DAWSON J:  I am sorry, you will have to - - -

MR ADAMS: Well, the question which was asked, they

ultimately said the jury asked, "Well, did he deny

in his evidence that the wounding was in self

defence?" He said yes, and then read them a

passage in which he gave the evidence, the

accused's version of the intention or what was in

his mind at the time.	So they were invited to use
that material -

DAWSON J:  No, no. That was in reply to what the accused's

attitude was. He denied self defence, ultimately.

MR ADAMS:  That is so, Your Honour, but it could only be, in

my respectful submission, the question whether he

denied in his evidence that the wounding was in
self defence in order to use it to dispose of that

issue, which His Honour in fact had earlier said

that "the Crown relies on the evidence of the

accused in that regard".	I will just find the
passage.

So that the Crown had relied upon the evidence

of the accused to dispose of doing what he did with

the intention of defending himself, and this

question, in our respectful submission, was at

least likely to be a reflection of that analysis,

and then they were told they could consider, when

considering that defence, as I say, material which

they must have declined to believe beyond

reasonable doubt before they even got to the

question of self defence.

So that it, in the ultimate, confused the

whole way in which they could deal with the

fuh9amental issue in the case.

DAWSON J:  I am afraid I am still not following you,

Mr Adams. Which is the passage you are referring to? Where is it?

MR ADAMS:	When His Honour deals with the arguments of the - page 8 point 5 of the summing up. His Honour deals
with self defence, then:

Strang 12 6/8/91

The burden on the Crown is to prove its case

beyond reasonable doubt on that particular

issue whether or not the blows were struck in

self-defence. The Crown's task is

considerably lightened by the fact that the

accused denied on oath that they were

intentional blows struck in self-defence. The

fact that he gave that evidence may convince

you that if the blows were intentional then

they were not in self-defence.

Now, we submit that that really was not - it

would be impossible to accept his evidence that

they were not in self defence, whilst rejecting his

evidence in that very context, that they were not

intentional.

McHUGH J: But the jury does not have to accept all of his

evidence. They can accept part of his evidence,

and draw their own inferences as to the rest.

MR ADAMS: Certainly, Your Honour, within a degree of

reason, but he was putting the two together.	They
were part of the same concept.	It would be, in my

respectful submission, unlikely that they would

say, "Well, we accept the truth of what he" - it

may be that they would conclude from other evidence

that he was not acting in self defence, but in

dealing with his evidence, say, "Well, we accept
the truth of what he says when he said he was not

acting in self defence, but we think he is lying

when he is talking about his intentions".

But, Your Honour, the real point that I seek

to make here is that the acceptance that they

should consider his evidence on this point as being

relevant to and perhaps disposing of the self

defence argument was the point taken up by the

question to which His Honour adverted at page 20 of

the summing up. Then His Honour read the evidence

as to intent, as I say, upon an issue where they

would have had to have disbelieved him for them to

come to that point at all. And that is what that

question is about.

If the issue of self defence had not intruded

itself in relation to the time that the blows were

struck, the trial would have been a perfectly

simple and straightforward trial. There would have

been the issues squarely raised by the accused on

the one hand by his evidence, and by the - - -

GAUDRON J: But I do not see how you can complain if they

have already disbelieved your client on the one

matter on which you defended him.

Strang 13 6/8/91

MR ADAMS: Well, because, with respect to Your Honour, it is

difficult quite to know how the jury ultimately dealt with it. I pointed out the difficulties

about describing the onus and standard of proof.

He finishes off by saying, "Well, it is a question

of who you might believe". Then they consider the

question of self defence in a way that suggests the

survival of his own evidence as to intention.	How
then would they, or could they then, we ask

rhetorically, have properly understood His Honour's

earlier directions concerning the specific issues
that were directly raised on what I might call his

direct defence?

And our complaint is that the way in which

this summing up moved, by confusing the two,

created a risk of prejudice to the accused so that his real defence, that with which he was sworn to, was not fundamentally weighed up - put up by the

jury against the Crown case in a clear way in which

the jury would have understood how the onus of

proof operated. That is as high as I can put it

and we submit that that is adequate.

DAWSON J: Thank you, Mr Adams. We are unable to detect any

error of principle in the reasons of the Court of

Criminal Appeal and we are not persuaded that the correctness of the conclusion reached by the Court

of Criminal Appeal is to be doubted. Special leave

to appeal is therefore refused.

AT 2.28 PM THE MATTER WAS ADJOURNED SINE DIE

Strang 14 6/8/91