Tasmania v Milligan - [2021] TASSC 59

[2021] TASSC 59

COURT: SUPREME COURT OF TASMANIA

CITATION: Tasmania v Milligan [2021] TASSC 59

PARTIES:  STATE OF TASMANIA
  v
  MILLIGAN, John William

FILE NO:  230/2019
DELIVERED ON:  24 November 2021
DELIVERED AT:  Burnie
HEARING DATE:  22-24 November 2021
JUDGMENT OF:  Blow CJ

CATCHWORDS:

Criminal Law – General matters – Criminal liability and capacity – Defence matters – Defence of persons or property – Generally – Whether defences available – Recklessly discharging a firearm.

Criminal Code (Tas), ss 40, 41, 46.
O'Rourke v Boxhall [1958] Tas SR 8, followed.
Aust Dig Criminal Law [2085]

REPRESENTATION:

Counsel:
           State:  K Edwards, A Chisholm
           Accused:  J Ker
Solicitors:
           State:  Director of Public Prosecutions
           Accused:  Legal Aid Commission of Tasmania

Judgment Number: [2021] TASSC 59
Number of paragraphs: 12

Serial No 59/2021
File No 230/2019

STATE OF TASMANIA v JOHN WILLIAM MILLGAN

REASONS FOR JUDGMENT BLOW CJ

24 November 2021

These are my reasons for a ruling that I gave on the first day of this trial. Count 3 on the indictment is a charge of recklessly discharging a firearm, contrary to s 239B of the Criminal Code. The accused wishes to defend that charge on the basis that he was acting in lawful self-defence, lawfully defending his dwelling-house, and lawfully defending premises against trespassers, in accordance with ss 46, 40 and 41 of the Criminal Code respectively. Ms Edwards, for the Crown, submitted that no such defences were available to a charge under s 239B. Ms Ker, for the accused, submitted that they were. I held that such defences could be available.
Section 239B of the Criminal Code reads as follows:
"239B Recklessly discharging a firearm
A person who discharges a firearm recklessly or without due regard to the safety of any other person or property is guilty of a crime.
Charge: Recklessly discharging a firearm."
The sections that the accused may wish to rely on provide as follows:
"40     Defence of dwelling-house
It is lawful for any person who is in peaceable possession of a dwelling-house, and for any person lawfully assisting him or acting by his authority, to use such force as the person using the same believes on reasonable grounds to be necessary to prevent the forcible breaking and entering of the dwelling-house by any person whom he believes on reasonable grounds to be attempting to break or enter the dwelling-house with intent to commit any crime therein, or to eject therefrom any person who has unlawfully entered the dwelling-house, and whom he believes on reasonable grounds to intend to commit a crime therein.
41     Defence of premises against trespasses: Removal of disorderly persons
It is lawful for a person who is in peaceable possession of any land, structure, vessel, or place, or who is entitled to the control or management of any land, structure, vessel, or place, and for any person lawfully assisting him or acting by his authority, to use such force as the person using the same believes on reasonable grounds to be necessary to prevent any person from wrongfully entering upon such land, structure, vessel, or place, or to remove therefrom a person who wrongfully remains therein or conducts himself therein in a disorderly manner; provided that any such force is not intended and is not likely to cause death or grievous bodily harm.
…
46     Self-defence and defence of another person
A person is justified in using, in the defence of himself or another person, such force as, in the circumstances as he believes them to be, it is reasonable to use."
Ms Edwards argued that the defences created by these sections were only available in relation to charges in which the intentional use of force was an element of the crime or offence charged. She relied on some comments of Evans J, with whom Tennent and Wood JJ agreed, in Wahl v Tasmania [2012] TASCCA 5. That case concerned a charge of causing grievous bodily harm by dangerous driving. At trial, it was argued that the appellant had been defending herself, her son and another young man against violence or anticipated violence at the hands of three people, including a woman whom she drove over. Evans J said, at [16]:
"As has been explained, an intention upon the appellant's part to apply force to Mrs Clifford was not an element of the charge she faced. That being so, on my cursory consideration of this aspect of the matter, I am unable to see how self-defence could arise."
Those comments were obiter. His Honour went on to cite the following passage from Gilles, Criminal Law, 4^th ed, at 316:
"While usually [self] defence has been invoked in relation to offences of homicide and assault it can (uncommonly) be relevant in other contexts, such as possession of an offensive weapon, reckless driving (driving very fast to escape an apparent would-be assailant), or making or possessing an explosive substance."
In a footnote, the learned author provided a reference to only one case to support those comments. Unfortunately the footnote referred to an irrelevant case. The case that he intended to refer to was Attorney-General's Reference (No 2 of 1983) [1984] QB 456.
That case arose out of a prosecution of a man who made some petrol bombs, intending to use them to repulse raiders from his property. Because of a statutory provision, the Crown bore the burden of proving beyond reasonable doubt that he had made the petrol bombs under circumstances that gave rise to a reasonable suspicion that he did not do so "for a lawful object". It was held that self-defence could be a "lawful object" within the meaning of the relevant provision. Evans J commented that that case, and a similar Irish case, provided "no guidance on when the defence of self-defence as enunciated in the Code, s 46 is available." I agree, but I think that the words of s 46 and the other relevant sections speak for themselves.
There is nothing in any of the sections that limits their scope to prosecutions for particular offences or classes of offences. When the circumstances contemplated by s 46 exist, a person is "justified" in using force in self-defence or defence of another person. That is to say, the person does not commit any crime or offence by using force in self-defence or defence of another person, provided he or she uses no more force than is reasonable in the circumstances as he or she believes them to be.
That is clear from the judgment of Burbury CJ in O'Rourke v Boxhall [1958] Tas SR 8, which concerned an earlier version of s 46. At the time, s 46(1) provided as follows:
"A person unlawfully assaulted, not having provoked such assault, is justified in repelling force by force if the force he uses is not meant to cause death or grievous bodily harm, and is no more than is necessary for the purpose of self-defence."
The applicant in that case was charged with disturbing the public peace by fighting in a public place, contrary to a provision in the Police Offences Act 1935. A magistrate refused to admit evidence of self-defence and convicted him. Burbury CJ quashed the conviction. He said the following at [12]:
"Section 46 does not merely afford a defence to a charge of assault, unlawful wounding, murder or some other crime against the person under the Criminal Code itself. It is of general application and makes lawful acts done in self-defence falling within the terms of the section. A person doing an act which is justified by s 46 and which can only be characterised as an act in self-defence is not criminally responsible for that act. An act so characterised and therefore justified cannot be the subject of a charge under the Criminal Code or the Police Offences Act 1935 – in short, so far as it is only an act in self-defence it cannot be a breach of the law at all. That I think follows from the terms of s 46 itself …".
Although the wording of s 46 has changed, it still provides that certain conduct is "justified" in certain circumstances. There is no reason to distinguish O'Rourke v Boxhall. If, by virtue of s 46, a person uses force that he or she "is justified in using", that use of force cannot be the subject of a charge under the Code or any statute. The situation must be the same whenever a person uses force that it is "lawful" for him or her to use by virtue of s 40 or s 41.
I therefore held that defences under ss 46, 40 and 41 of the Code could be available in relation to a charge of recklessly discharging a firearm contrary to s 239B of the Code.