Walker v The Queen

[1996] HCATrans 275

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Sydney  No S7 of 1996

B e t w e e n -

DENNIS BRUCE WALKER

Applicant

and

THE QUEEN

Respondent

Application for special leave to appeal

BRENNAN CJ
McHUGH J
KIRBY J

TRANSCRIPT OF PROCEEDINGS

AT SYDNEY ON MONDAY, 9 SEPTEMBER 1996, AT 12.03 PM

Copyright in the High Court of Australia

MR S.J. ODGERS:   May it please the Court, I appear for the applicant in that matter. (instructed by T. Murphy, Legal Aid Commission of New South Wales)

MR R. KELEMAN:   If it pleases the Court, I appear for the respondent. (instructed by S.E. O’Connor, Solicitor for Public Prosecutions (New South Wales))

BRENNAN CJ:   Mr Odgers.

MR ODGERS:   Your Honours, the applicant in this matter was charged with two offences; there is only an application for leave in respect of one of them and that was the charge of maliciously discharge a loaded firearm with an intent to resist or prevent his lawful apprehension.  There was no dispute at the trial that the applicant was struggling with Sergeant Campbell nor that he grabbed the police officer’s weapon nor was there any dispute that he pointed it at the sergeant and said various things, including the possibility of withdrawal of charges.  He then threatened the sergeant, pointed the gun, then pointed it up in the air and discharged it and repeated that process six times until the gun was unloaded, then he threw the gun away and essentially allowed himself to be arrested.  On the defence case, absent self-defence ‑ ‑ ‑

McHUGH J:   Is there not a problem as to whether self-defence has got anything to do with this?  This is a statutory offence.  How is self-defence an answer to this particular case?  The issues are subsumed under maliciously, are they not?

MR ODGERS:   Well, in my respectful submission, no, your Honour; self-defence must be available to this offence, even though it is a statutory offence.

BRENNAN CJ:   Why?

MR ODGERS:   It is essential in excuse; perhaps it falls within excuses that exist within the concept of maliciousness.

McHUGH J:   That is a different question from the self-defence argument.

MR ODGERS:   Perhaps that is a general importance question, your Honours, but ‑ ‑ ‑

BRENNAN CJ:   No, it is not a general importance question; it is a question of primary approach to the criminal law.

MR ODGERS:   Yes.

BRENNAN CJ:   Self-defence is not an across-the-board defence.  It is a defence to offences against the person of a particular kind.

MR ODGERS:   Yes, well in my submission, it must extend to a situation where, on the defence case, you are ‑ ‑ ‑

BRENNAN CJ:   You say it must, but why do you say that?

MR ODGERS:   I am not sure.

McHUGH J:   The offence is malicious discharge of a loaded firearm with intent to resist or prevent lawful apprehension.

MR ODGERS:   Well, your Honours, I do not think you will find a reference to a defence of self-defence in the Crimes Act.

BRENNAN CJ:   You will not.

MR ODGERS:   No.

BRENNAN CJ:   That is because you will find it inherent in the offences such as murder and assault and offences against a person of that kind.

MR ODGERS:   Your Honour, murder is defined in section 18 of the Crimes Act to involve an intentional affliction of grievous bodily harm or intentionally kill or recklessly kill; there is no reference to acting in self-defence as a defence to murder so defined.

KIRBY J:   Was this question that the Court is raising with you raised at the trial by the prosecution or in the Court of Criminal Appeal?

MR ODGERS:   No, well the prosecution sought self-defence to be left, that was the first thing.  In the Court of Criminal Appeal there was no suggestion in the Court of Criminal Appeal by any of the judges or by the Crown that self-defence was not available.

KIRBY J:   I did not think I had seen this.

BRENNAN CJ:   No, it has not been raised at all; it just seems to me that the thing has gone off the rails.

MR ODGERS:   With respect, your Honour, his conviction was inevitable, if self-defence was not available.  I mean, the trial would have been over in seconds, because his case was that, “I was intending to intentionally hold him there while I unloaded the weapon”, so therefore he was essentially admitting the elements of the offence.  If self-defence is not available he should have entered a plea of guilty, but the reality was that at his trial both the Crown and the defence put to the trial judge that self-defence should have been left.  The judge refused.  The Court of Criminal Appeal, it was argued, that the trial judge was wrong; it was not suggested that he was correct because self-defence is simply not available to that statutory offence; the conclusion seems to have been that it was not viable, whatever that means in the precise circumstances, and I will come to that in a moment, but it was never suggested.

Your Honour, that is why I was surprised; it has never been suggested until this point that self-defence is simply not available to a statutory provision like section 33A.

McHUGH J:   Well it is the question what malicious means.  It is defined in the Crimes Act, is it not, in section 5.

MR ODGERS:   There is a reference, your Honours, to “and in any such case without lawful cause or excuse”.  It may be that that is where it comes in so, certainly my submission would be that self-defence is a lawful cause or excuse.  It follows that once the issue is raised by the defence or the prosecution, the burden of proof was on the Crown to prove that there was no lawful cause or excuse.  Perhaps I should move on, your Honours.

BRENNAN CJ:   You should move on, yes.

MR ODGERS:   As I said a moment ago, conviction was inevitable absent self-defence.  It was sought to be left by the Crown and the defence trial judge refused.  The Court of Criminal Appeal essentially held, in the judgment of the Chief Justice at the top of page 50 of the appeal book, that:

There was no viable issue of self-defence in the case.

Our submission obviously enough is that there was and that it was ultimately a jury question and would have been open to a jury to find that the defendant acted in self-defence, or at least have had a reasonable doubt about that matter.

KIRBY J:   Viability does not sound a special leave matter.

MR ODGERS:   Your Honours, the difficulty with this judgment, with respect, is that his Honour the Chief Justice has not really given any reasons whatsoever for his assertion that the defence was not open.  On the preceding page he appears to concede that as a proposition of law it is theoretically possible that self-defence could exist in respect of a lawful arrest, but then he goes on to cite your Honour the Chief Justice who, of course, in Zecevic took a different view, and he also quotes a passage from the majority judgment which appears to assert a general proposition - it is not a proposition of law, but a generalisation - that there would, by implication, I will read it out, this is at page 49:

“The whole of the surrounding circumstances are to be taken into account and where an accused person has created the situation in which force might lawfully be applied to apprehend him or cause him to desist - where, e.g. he is engaged in criminal behaviour of a violent kind - then the only reasonable view of his resistance to that force will be that he is acting, not in self-defence, but as an aggressor in pursuit of his original design.

The Chief Justice then referred to your Honour Chief Justice Brennan, he then referred to a case called Fry and then he said it was correct not to leave it.  With respect, your Honours, that leaves the impression that he essentially took the view that it is never factually, if not legally, possible to have self-defence operating in circumstances of a lawful arrest.  It was put as a proposition of law by the Solicitor-General based presumably on what your Honour Chief Justice Brennan had said in Zecevic.  His Honour Chief Justice Gleeson did not appear to accept that as a proposition of law, but then adopted a generalisation which suggests - the fact that he did not discuss the details of the case at all appears to suggest that he ‑ ‑ ‑

McHUGH J:   I know, but the difficulty is that it is common ground that they were both rolling on the ground a few minutes before the gun was taken out.  Now, having regard to the jury’s findings on the first count, the sergeant said that after he was assaulted the accused went to grab the gun while they were rolling on the ground and you concede that the arrest was lawful, so you have got this situation where the sergeant has been assaulted, he is rolling on the ground, he is apprehending the accused and the accused then pulls his gun out and says he is frightened that the sergeant would kill him

MR ODGERS:   Yes, well more accidentally or deliberately.  The evidence of the applicant was that they were rolling on the ground and he believed that the sergeant was going for his gun.  Thoughts of Gundy went through his mind, he said, which implied that he thought there was a danger that he would be shot either accidentally or deliberately if the sergeant obtained the gun.  He therefore took the gun from him and his evidence was that from that moment on essentially his desire was to unload the gun.

McHUGH J:   I know, but on the account that the jury must have accepted, he had no basis whatever for taking the gun, and I think that is what the Chief Justice ‑ ‑ ‑

MR ODGERS:   With respect, your Honour, you cannot infer that, because we do not know what the jury must have decided.  We know that they must have decided that he threw the first punch, but his case was that the sergeant was going for the gun and we cannot infer anything about whether or not a jury accepted that assertion.  That was never a question that they had to resolve.  In fact, the way that the case went, the very question which they should have been asked to resolve, “Did he believe that the sergeant was going for the gun?”, was never left to them.

BRENNAN CJ:   Now just analyse it back to the constituent elements of the offence.

MR ODGERS:   Yes, your Honour.

BRENNAN CJ:   There is a discharge of a weapon that is said to be malicious; at that time the weapon was in the hands of the accused.  What is the defence that he is then making, against what?

MR ODGERS:   His defence was essentially that he believed that if the police officer obtained the gun from him in a loaded condition there was a danger to him that he might be shot.

BRENNAN CJ:   Well then, the police officer at that time was not offering him any violence at all?

MR ODGERS:   No.

BRENNAN CJ:   So how could it be a case of self-defence?

MR ODGERS:   He said the reason he was not offering him any violence was because he had the gun trained on him.  It was necessary to terrify the police officer by training the gun on him to discourage him from essentially jumping on him before he had a chance to unload the gun; this was his case.  Perhaps a jury would reject it, but, with respect your Honour, it was clear that that was his case and it was premised, it must be said, on his belief that the police officer had been in the process of going for the gun earlier.  He had reacted to that by taking the gun away, he had determined that he was not going to allow the police officer to have a loaded gun, given his fears, and, in order to unload it and to ensure that while he was unloading it the police officer did not jump him, he did what he did.

McHUGH J:   I mean, the difficulty in the case is that the solicitor appearing for the accused never raised self-defence.  When the Crown first raised the point Mr Miles said, well it applies to the first count.

MR ODGERS:   Yes, but then he did; he went on to ask for it for both.  Your Honours, it may be a difficulty, but at the end of the day, looking at this case in totality, without self-defence he admitted his guilt.  The issue was raised before the trial judge, by the Crown and ultimately by the defence solicitor.  With respect, your Honours, it cannot be right that the fact that it was raised so late is a reason for saying, well that is just too bad, you missed out on the chance for the jury to determine this question because your solicitor was a bit slow in picking the point.

BRENNAN CJ:   I must say I do not think he was too slow at all; I just do not think the point ever arose, because if one looks at the circumstances, perhaps it comes back to the question of whether self-defence ever is a defence to this kind of offence, but at the time that the offence was committed, that is, when the shots were fired, there was no violence being offered to him at all.

MR ODGERS:   No, but as I recall, your Honour ‑ ‑ ‑

BRENNAN CJ:   Your statement is that he did it in order to prevent the prospect of something happening which, if it did happen, would offer him violence.

MR ODGERS:   Yes.

BRENNAN CJ:   Well now, is that self-defence?

MR ODGERS:   Yes.

BRENNAN CJ:   Is it?

MR ODGERS:   As I recall in a special leave application last week before your Honours, it was put that self-defence is ultimately pre-emptive; you are engaging in certain conduct, usually violent - you are usually using violence against somebody to prevent something happening.

McHUGH J:   But that is because there is an attack or an imminent attack.

MR ODGERS:   Well, but there was an attack, in the sense that there was a struggle, the sergeant was throwing punches and the applicant believed ‑ ‑ ‑

McHUGH J:   Well that is why I raised that there were these difficulties, because on the jury’s version, the sergeant was the one who was assaulted.

MR ODGERS:   Yes, your Honour, but that raises the interesting legal question about whether, even in the circumstances of a lawful arrest, there could be a situation in which self-defence is available, and the proposition may be put as simply as this:  if you are being lawfully arrested and you believe that excessive force is being used, even if it was not, but you believe it was or it is going to be, it is on the point of being used or it is going to be used, and you determine that you are just going to ensure that that cannot occur and then allow yourself to be arrested once you have negated that risk, can you not ask a jury to determine the question whether or not you had reasonable grounds for that belief?  Ultimately it is a question for juries to determine whether or not, (a) you believed that what you did was necessary and (b) whether or not you had reasonable grounds for it.  This jury was never asked this question; this jury was, in fact, told you have to convict, because even on the defence case he was committing the offence.  The real defence in this case never got to the jury.

Your Honours, the reason, with respect, why this case demands a grant of special leave is because of the impression that it will create that, for all practical purposes, self-defence is never available in circumstances of a lawful arrest.  That was the submission that was put by the Solicitor‑General.  It was in fact the way in which the Chief Justice appears to have treated it.  He has referred both to your Honour Chief Justice Brennan who said it is never available as a proposition of law, he then refers to the majority judgment which suggests that it is never available as a generalisation and then he says, therefore it is not viable.  That is the message that this case creates.  It is never open. 

Your Honours, I do not think I can say much more; I have put the point as forcefully as I can.

BRENNAN CJ:   Thank you, Mr Odgers.  We need not trouble you, Mr Keleman. 

Despite the cogent argument of Mr Odgers there is not sufficient reason to doubt the correctness of the decision of the Court of Criminal Appeal to warrant a grant of special leave.  It is therefore refused.

AT 12.20 PM THE MATTER WAS CONCLUDED