Walters v The King

[2023] SASCA 133

SUPREME COURT OF SOUTH AUSTRALIA

(Court of Appeal: Criminal)

WALTERS v THE KING

[2023] SASCA 133

Judgment of the Court of Appeal  

(The Honourable President Livesey and the Honourable Justice David)

11 December 2023

APPEAL AND NEW TRIAL - NEW TRIAL - IN GENERAL AND PARTICULAR GROUNDS - PARTICULAR GROUNDS - MISDIRECTION OR NON-DIRECTION - JUDGE'S SUMMING UP

Appeal against conviction.

A jury found the applicant guilty of aggravated causing serious harm with intent to cause serious harm, contrary to s 23(1) of the Criminal Law Consolidation Act 1935 (‘the CLCA’).

The victim attended the home of the applicant following exchanges of text messages in relation to a drug debt owed by the applicant. The applicant and victim had a violent altercation in which the applicant stabbed the victim. At trial the applicant contended that the stabbing occurred in the course of a home invasion within s 15C(2) of the Act.

On appeal the applicant contended that a miscarriage of justice arose from the trial judge’s unbalanced direction to the jury in relation to the statutory “home invasion defence” under s 15C(2) of the CLCA. The applicant contended that the trial judge failed to put to the jury that his drug possession did not give rise to the offending, because the altercation occurred as the result of his failure to repay a drug debt which was not “criminal misconduct”, as defined.

The Court held (refusing permission to appeal):

1.Though it was suggested that the failure of the appellant to give evidence may have rendered it unnecessary for the trial judge to leave the statutory “home invasion defence” to the jury, that she did so was both understandable and entirely appropriate.

2.It is not reasonably arguable that the direction on s15C(2)(b) was unbalanced.

3.The trial judge was not required to leave for the jury a view of the facts which was untenable.

4.The applicant's approach ignored the breadth of the s 15C(2)(b) exclusion. The altercation and the offending resulted from the applicant’s drug possession. The appellant’s drug possession could not be divorced from the debt owed in respect of that possession. They remained inextricably linked. That is to say, the drug possession may have given rise to the threat or perceived threat.

Controlled Substances Act 1984 (SA) 33L; Criminal Law Consolidation (Self Defence) Amendment Act 2003 (SA); Criminal Law Consolidation Act 1935 (SA) s 23; Supreme Court Act 1935 (SA) s 19C; Legislation Interpretation Act (SA) s 16, referred to.
Alcan (NT) Alumina Pty Ltd v Commissioner of Territory Revenue (2009) 239 CLR 27; Alford v Magee (1952) 85 CLR 437; Braysich v The Queen (2011) 243 CLR 434; CIC Insurance Ltd v Bankstown Football Club Ltd (1997) 187 CLR 384; Commissioner of State Taxation v Perpetual Corporate Trust Limited (2002) 115 ATR 145; CTM v The Queen (2008) 236 CLR 440; Fingleton v The Queen (2005) 227 CLR 166; Gipp v The Queen (1998) 194 CLR 106; HCF v The Queen [2023] HCA 35; Hinrichsen v The King [2023] SASCA 111; Huxley v The Queen [2023] HCA 40; James v The Queen (2014) 253 CLR 475; Lorke v The Queen (2019) 135 SASR 334; Manning v State of South Australia (2015) 124 SASR 76; Melbourne v The Queen (1999) 198 CLR 1; Murray v The Queen (2002) 211 CLR 193; Orreal v The Queen (2021) 274 CLR 630; Pemble v The Queen (1971) 124 CLR 107; R v McCarthy (2015) 124 SASR 190; R v Marshall [2023] SASCA 105; R v Martin (2007) 99 SASR 213; R v Roberts (2011) 111 SASR 100; RPS v The Queen (2000) 199 CLR 620; The Queen v A2 (2019) 269 CLR 507, considered.

WALTERS v THE KING
[2023] SASCA 133

Court of Appeal – Criminal:  Livesey P and David JA

THE COURT:

Introduction

1. Following a trial, on 17 July 2023 a jury unanimously found the applicant guilty of aggravated causing serious harm with intent to cause serious harm, contrary to s 23(1) of the Criminal Law Consolidation Act 1935 (SA) (the CLCA).

2. In broad terms, the prosecution case was that the applicant caused serious harm to Mr Gavin Greene, intending to cause him serious harm, when he stabbed him a number of times with a knife on 2 January 2021 at Mount Gambier.  The aggravating feature was the applicant’s use of an offensive weapon.

3. It is common ground that Mr Greene had supplied the applicant with methylamphetamine some weeks before, and the applicant had refused to pay Mr Greene, whether in cash or kind.  On 2 January 2021 Mr Greene attended at the applicant’s home unit in connection with this drug debt, after the applicant and Mr Greene had exchanged threatening text messages.  In one of these messages the applicant goaded Mr Greene about coming around to his unit.  Soon after Mr Greene’s arrival, there was a violent altercation inside the unit, during which the applicant stabbed Mr Greene.

4. The applicant relied on self-defence. There was an issue about whether the applicant’s response to any threat or perceived threat was excessive. Although the applicant did not give evidence, the trial judge directed the jury regarding s 15C of the CLCA, which permits a defendant to set up self-defence where the defendant’s disproportionate response occurs in the context of a “home invasion”, that is, the “home invasion defence”.

   Permission to appeal and the disposition of the application

5. By amended grounds dated 27 October 2023, the applicant seeks permission to appeal on the following proposed grounds:

   There was a miscarriage of justice as a result of inadequate directions to the jury by the learned Trial Judge with respect to:

   (a)Section 15C(2)(b) of the Criminal Law Consolidation Act, and;

   (b)Section 15C(2)(c) of the Criminal Law Consolidation Act.

6. The respondent contended that the application for permission to appeal is not reasonably arguable.  On 13 November 2023 the question of permission was referred for argument as on appeal before two judges.[1] 

   [1]     Supreme Court Act 1935 (SA); s 19C(2), Joint Criminal Rules 2022 (SA), r 192.3(c).

7. During the hearing on 8 December 2023, the applicant abandoned proposed appeal ground (b).  For the following reasons, permission to appeal should be refused.

   The circumstances of the offending

8. By the time of the alleged offending, Mr Greene had for some time been demanding that the applicant pay him for a “scoop” of methylamphetamine, and he had become angry about the applicant’s refusal to do so. Text messages exchanged between the two men regarding this drug debt between New Year’s Eve on 31 December 2020 and 2 January 2021 became increasingly hostile and threatening.  For example, Exhibit P1 included the following exchange:

   Greene:When exactly am I going to get the scoop back [?] you owe me Walters…  it’s 2 n a half months already...

   Applicant:   When I get more 

   Greene:     What? you haven’t had any in the last 2 n half months??

   Applicant:   Grow up

   Greene:Really? Walters… U are a fried fucking unit.  Next time I see U cunt, I’m going to kick the fuck out of you. 

9. During 1 January 2021, the applicant messaged Mr Greene as follows:

   Applicant:I can’t be fried if I’m not on. 

   Happy New Year. 

   I am home. 

   I am sorry, do you need to wash your vagina m 

   Come on you fucking COWARD, come and say shit to my face, you Yellow Cunt.

10. The following day, on 2 January 2021 at 4.23 pm, around half an hour before the altercation, the applicant messaged Mr Greene in these terms:

    Applicant:   Afternoon COWARD. 

    Don’t forget to change your tampon. Ya yellow cumt. 

    Cunt.

    And ya scoop, shove that up your arse.

11. Mr Greene gave evidence that he walked 500 metres to the applicant’s home to talk to the applicant about what was owed.  He said that when he got to the front door, he knocked on the screen door which was closed.  The front door was open.  Mr Greene said that he could see the applicant inside the unit.  The applicant got up and started yelling abuse at Mr Greene.  He said, “Do you want to fuck me with, you cunt?”  Mr Greene said the applicant came to the screen door and put his foot through it. 

12. After the applicant opened the screen door, Mr Greene said the applicant started swinging punches to his neck and abdomen.  This occurred just inside the applicant’s unit.  Mr Greene described around 15 strikes from the applicant.  During the altercation, Mr Greene noticed blood.  Mr Greene stopped and walked outside.  Initially Mr Greene thought it was the applicant’s blood.  He said to the applicant, “You better go and get yourself checked out”, to which the applicant replied, “I think you’d better go and get yourself checked out”, after which Mr Greene lost consciousness and collapsed. 

13. The applicant had stabbed Mr Greene in the neck and stomach with a knife.  In MFI P11, the transcript of a triple-zero call, the applicant is recorded as having admitted that he had stabbed Mr Greene.  The applicant told the operator that he was protecting himself.  Later, the blade portion of the knife used by the applicant was found on a verandah just outside his home unit. 

    Section 15C of the CLCA

14. In so far as it was suggested that the applicant’s response was not proportionate to the threat posed by Mr Greene, the applicant relied upon s 15C of the CLCA, by which self-defence which is, objectively, not reasonably proportionate is permitted in connection with a home invasion:

    15C—Requirement of reasonable proportionality not to apply in case of an innocent defence against home invasion

    (1)     This section applies where—

    (a)     a relevant defence would have been available to the defendant if the defendant's conduct had been (objectively) reasonably proportionate to the threat that the defendant genuinely believed to exist (the perceived threat); and

    (b)     the victim was not a police officer acting in the course of his or her duties.

    (2)In a case to which this section applies, the defendant is entitled to the benefit of the relevant defence even though the defendant's conduct was not (objectively) reasonably proportionate to the perceived threat if the defendant establishes, on the balance of probabilities, that—

    (a)     the defendant genuinely believed the victim to be committing, or to have just committed, home invasion; and

    (b)     the defendant was not (at or before the time of the alleged offence) engaged in any criminal misconduct that might have given rise to the threat or perceived threat; and

    (c)     the defendant's mental faculties were not, at the time of the alleged offence, substantially affected by the voluntary and non-therapeutic consumption of a drug.

    (3)     In this section—

    criminal misconduct means conduct constituting an offence for which a penalty of imprisonment is prescribed;

    drug means alcohol or any other substance that is capable (either alone or in combination with other substances) of influencing mental functioning;

    home invasion means a serious criminal trespass committed in a place of residence;

    non-therapeutic—consumption of a drug is to be considered non-therapeutic unless—

    (a)     the drug is prescribed by, and consumed in accordance with the directions of, a medical practitioner; or

    (b)     the drug is of a kind available, without prescription, from registered pharmacists, and is consumed for a purpose recommended by the manufacturer and in accordance with the manufacturer’s instructions;

    relevant defence means a defence under section 15(1) or section 15A(1).

15. This provision was inserted in 2003.[2]  As the Attorney-General explained in the course of his second reading speech:[3]

    …where an innocent occupier genuinely believes that he or she is defending himself or herself from the commission of an offence of aggravated serious criminal trespass in a residential building occupied by them, then, as a general rule, he or she may use such force in defence of his or her person or property as she genuinely believe [sic] to be proportionate to the threat that they genuinely believe that they face…

    There are to be some exceptions to [s 15C]. For example, the occupier is not entitled to the extended right if he or she is so intoxicated by self-induced intoxicants that his or her judgment is substantially impaired. The Government has consistently maintained its opposition to any form of the drunk’s defence and will be pursuing that matter further in the future. In addition, the occupier is not entitled to the extended right if he or she was engaged in criminal misconduct that might have given rise to the threat or perceived threat. If, for example, the occupier was a thief in possession of a large quantity of stolen money and the home invader was after the stolen money, it would be incongruous to treat the thief in the same way as an innocent home owner protecting himself or herself.

    [2]     Criminal Law Consolidation (Self Defence) Amendment Act 2003 (SA).

    [3]     South Australia, Parliamentary Debates, House of Assembly, 31 March 2003, page 2613 (Hon MJ Atkinson). 

16. At common law this Court may consider this kind of extrinsic material when identifying the mischief to which the provision is directed.[4] Under s 16 of the Legislation Interpretation Act 2021 (SA) this material may also be considered in order to assist with ascertaining the meaning of the provision.[5]

    [4]     CIC Insurance Ltd v Bankstown Football Club Ltd (1997) 187 CLR 384, 408; Alcan (NT) Alumina Pty Ltd v Commissioner of Territory Revenue (2009) 239 CLR 27, [47] (Hayne, Heydon, Crennan and Kiefel JJ); R v A2 (2019) 269 CLR 507, [33] (Kiefel CJ and Keane J), [124] (Bell and Gageler JJ).

    [5]     R v Marshall [2023] SASCA 105, [53]-[55] (Livesey P, David JA and Kimber AJA); Commissioner of State TaxationvPerpetual Corporate Trust Limited (2002) 115 ATR 145, [14] (Livesey P, Doyle and Bleby JJA).

17. This statutory defence has been considered by the Court of Criminal Appeal on a number of occasions.[6]  In R v Martin the Court described the common law and initial iteration of the statutory defence,[7] before accepting the following submission regarding the operation of s 15C:[8]

    Counsel for the Crown submitted that, on their proper construction, ss (1) and (2) of s 15C provide that where the evidence does not negative beyond reasonable doubt that the defendant genuinely believed that his conduct was necessary and reasonable for a defensive purpose and prove beyond reasonable doubt that the victim was a police officer acting in the course of his or her duties, then a defendant is entitled to the benefit of the defence even though his conduct was not, objectively, reasonably proportionate to the perceived threat. The defendant must establish, on the balance of probabilities, that the defendant genuinely believed the victim to be committing, or to have just committed, home invasion. The defendant must also establish that the defendant was not, at or before the time of the alleged offence, engaged in any criminal misconduct that might have given rise to the threat or perceived threat. Finally, the defendant must establish that the defendant’s mental faculties were not, at the time of the alleged offence, substantially affected by the voluntary and non-therapeutic consumption of a drug.

    [6]     R v Martin (2007) 99 SASR 213; R v Roberts (2011) 111 SASR 100; Manning v State of South Australia (2015) 124 SASR 76, [18]-[19] (Nicholson J) regarding the definition of “home invasion”; R v McCarthy (2015) 124 SASR 190, [81]-[90] (Gray J); Lorke v The Queen (2019) 135 SASR 334, [110]‑[120] (Peek J, with whom Nicholson and Doyle JJ agreed), [174]-[178] (Nicholson J).

    [7]     R v Martin (2007) 99 SASR 213, [10]-[11] (Gray J, with whom Sulan and David JJ agreed), citing Palmer v The Queen [1971] AC 814.

    [8]     R v Martin (2007) 99 SASR 213, [13] (Gray J, with whom Sulan and David JJ agreed).

18. In that case there was an issue about whether a police raid on a suspected drug laboratory was conducted lawfully. The applicant was inside the house with his partner and her child.  He and his partner denied that police had announced that they were police before using a battering ram on the front door.  The applicant said he fired two shots at his front door, fearing a home invasion.  The applicant was acquitted of two counts of attempted murder but convicted on the two alternative counts of endangering life.  The appeal was not concerned with construing the statutory defence but with the directions given about it, and the refusal by the trial judge to conduct a voir dire into whether police had acted in accord with the law.  These criticisms were rejected and the refusal to conduct a voir dire was held to be within the trial judge’s discretion.  The appeals against conviction and sentence were dismissed.

19. In R v Roberts the applicant appealed against his conviction on a charge of causing serious harm with intent to cause serious harm.[9] The applicant attacked another man with a Samurai sword in circumstances where, on the defence case, the other man was engaged in a home invasion. These circumstances were contested. At the trial the applicant’s counsel disclaimed reliance on the s 15C statutory home invasion defence. The trial judge did not leave that defence to the jury to consider. The appeal was allowed, in part on the basis that the trial judge had a duty to direct the jury on the law and the facts relevant to any defence raised on the evidence, notwithstanding the conduct of counsel. The Court again described the history of the statutory defence and addressed potential difficulties facing trial judges directing juries about the operation of the statutory scheme.[10] Justice Sulan (with whom Peek J agreed) rejected the proposition that the s 15C defence only operated where an accused gave direct evidence of a genuine belief that there was a threat of home invasion. His Honour held that, even if an accused did not give evidence, or having given evidence was silent on the issue, there may nonetheless be evidence from which the relevant belief may be inferred.[11] 

    [9]     R v Roberts (2011) 111 SASR 100, [39]-[48] (Sulan J, with whom Peek J agreed); [114]-[128] (White J, with whom Peek J agreed).

    [10]   R v Roberts (2011) 111 SASR 100, [27]-[36] (Sulan J, with whom Peek J agreed); [82]-[95] (White J, with whom Peek J also agreed).

    [11]   R v Roberts (2011) 111 SASR 100, [49]-[55] (Sulan J, with whom Peek J agreed).

20. Justice White (with whom Peek J agreed) explained that whilst in one sense the requirement for a “genuine belief” involved a tautology, the adjective “genuine” was used as a word of emphasis:[12]

    In the context of s 15C, notions of scepticism may be inappropriate. However, the requirement that the defendant prove that his or her belief that the victim was committing a home invasion was genuine does seem to indicate that the evidence relied upon should be examined closely.

    [12]   R v Roberts (2011) 111 SASR 100, [91]-[94] (White J, with whom Peek J agreed).

21. Justice White also explained that the requirement that the accused prove a genuine belief did not imply any element of reasonableness as to the accused’s subjective belief.[13] His Honour described the interrelationship between s 15 and s 15C in the following way:[14]

    The interrelationship between s 15, on the one hand, and s 15C appears therefore to be as follows. It is for the prosecution to exclude as a reasonable possibility that the defendant had a genuine belief that the conduct to which the charge relates was necessary and reasonable for a defensive purpose. If the prosecution does not exclude that possibility then, in a case in which the victim is not a police officer acting in the course of his or her duties, it is for the defendant to establish the circumstances giving rise to the home invasion defence under s 15C(2). If the defendant establishes those matters, then he or she will have a complete defence, that is, the prosecution will not have shown that the conduct was unlawful. However, if the defendant does not satisfy the trier of fact on the balance of probabilities of the home invasion defence, it will then be for the prosecution to exclude as a reasonable possibility that the defendant’s conduct was, in the circumstances as the defendant genuinely believed them to be, reasonably proportionate to the threat which the defendant genuinely believed to exist.

    [13]   R v Roberts (2011) 111 SASR 100, [95] (White J, with whom Peek J agreed).

    [14]   R v Roberts (2011) 111 SASR 100, [104] (White J, with whom Peek J agreed). See also his Honour’s suggested questions for the jury between [105] and [113], concluding with “In my opinion, the proper application of s 15C does not require a defendant to establish, in addition to a genuine belief that the victim was committing, or had just committed, a home invasion, that his or her purpose was to defend himself or herself (or another) against that invasion”. See also Peek J at [131]-[136], which includes the following, “I simply wish to emphasise that the formulated questions delineate only the beginning of the task of the trial judge. That task includes directing the jury as to the s 15C defence in the context of the facts of the particular case, the needs of the particular jury and, quite often, in the context of other defences to be considered quite apart from that arising under s 15C”.

1. In this case the applicant’s proposed appeal grounds relied upon the second and third of the three essential limbs of s 15C(2) of the CLCA. These require that a defendant establish on the balance of probabilities that the defendant was not, whether at or before the time of the alleged offence, engaged in any criminal misconduct that might have given rise to the threat or perceived threat (s 15C(2)(b)), and the defendant’s mental faculties were not, at the time of the alleged offence, substantially affected by the voluntary and non-therapeutic consumption of a drug (s 15C(2)(c)).

   The directions given on ss 15C(2)(b) and (c) of the CLCA

2. The trial judge gave the jury extensive directions, together with an aide memoire, concerning self-defence. The directions on the s 15C(2) home invasion defence were said to be so deficient as to result in a miscarriage of justice within s 158(1)(c) of the Criminal Procedure Act 1921 (SA) (the CPA).[15]

   [15]   See, for example, Huxley v The Queen [2023] HCA 40, [40]-[43] (Gordon, Steward and Gleeson JJ).

3. After setting out the elements of the offence, followed by the elements of self-defence, the trial judge addressed s 15C of the CLCA. Her Honour explained that if the prosecution proved that the applicant’s conduct was disproportionate then it was necessary for the jury to decide whether the s 15C home invasion defence was proved by the accused on the balance of probabilities. This required the proof of three matters:

   1.That the accused genuinely believed that Mr Greene was committing or had just committed a home invasion. 

   2.That the accused was not engaged in any criminal conduct at or before the time of the alleged offence that might have given rise to the threat or perceived threat faced.

   3.That the accused’s mental faculties were not substantially affected by voluntary and non-therapeutic consumption of drugs.

4. The trial judge recited some of the evidence earlier set out, together with the evidence from Mr Greene that he was angry when he went to the home of the applicant. When the trial judge came to apply the evidence to the elements of the s 15C defence, her Honour said that it was for the accused to prove on the balance of probabilities that he genuinely believed that the victim, Mr Greene, was committing or had just committed a home invasion. That is to say, that he had entered the applicant’s home without permission and while intending to commit an offence, being an assault.

5. The trial judge then directed the jury that the applicant must also demonstrate that he was not engaged in any “criminal misconduct” that might have given rise to a threat or perceived threat.  Her Honour explained that “criminal misconduct” is defined as conduct constituting an offence for which a penalty of imprisonment is prescribed.  As to this second element, the trial judge explained to the jury:[16]

   In this case, you heard evidence that the accused had received a small quantity of a drug, being methylamphetamine, from Mr Greene about two-and-a-half months prior to this altercation.  Possession of drugs, being methylamphetamine is a criminal offence for which a penalty of imprisonment is prescribed by the Act that creates that offence.  It is a matter for you to assess whether it has been proved by the defence, on the balance of probabilities, that the accused was not engaged in criminal misconduct that might have given rise to the threat or perceived threat that he felt. 

   [16]   Transcript of Summing Up, The King v Walters, (District Court of South Australia, Judge Davison, 17 July 2023), 24.

6. As for the third element, the trial judge said the following:[17]

   Thirdly, the defence must establish that the accused’s mental faculties were not substantially affected by a voluntary and non-therapeutic consumption of a drug. The accused must prove this on the balance of probabilities. In this regard, you know that the accused said that he had consumed a cone of cannabis that afternoon. That is the only substance that you have heard any evidence in relation to occurring at the time of the alleged offending. As I say, it is for the accused to prove this on the balance of probabilities in relation to all three requirements.

   The third requirement, that is, the one relating to the drugs, you will notice it says that the accused must prove that he was not substantially affected by the consumption of any drug. In this regard, you can have regard to any evidence that shows the accused and his behaviour immediately subsequent to the offence, and any of the medical evidence that you consider to be relevant.  But it must be that the accused proves, on the balance of probabilities, that he was not substantially affected by the consumption of a drug.

   [17]   Transcript of Summing Up, The King v Walters, (District Court of South Australia, Judge Davison, 17 July 2023), 24-25.

7. Later in the trial, after hearing from the then counsel for the applicant, the trial judge added the following by way of a further direction to the jury:[18]

   It is for the accused to prove that his mental faculties were not substantially affected. In determining whether he has proved, on balance, that he was not substantially affected you can take into account all of the evidence that has been given in this case, including the 000 call, his response to questions that he was asked on the 000 call; you can take into account the interview with the police, the discussion with ambulance officers and the discussion with medical practitioners, as they are recorded in P12; you can take into account all of those matters in determining whether you are satisfied that he has proven that it is more probable than not that he was not substantially affected by the consumption of a drug.

   [18]   Transcript of Summing Up, The King v Walters, (District Court of South Australia, Judge Davison, 17 July 2023), 33.

8. There is no dispute that neither counsel at the trial addressed the jury on s 15C(2)(b) of the CLCA. This represented a considered forensic judgment by each counsel.

9. Finally, there is no dispute that the applicant’s possession of methylamphetamine, sourced from Mr Greene, potentially comprised “criminal misconduct” as defined by s 15C(3), for it was “conduct constituting an offence for which a penalty of imprisonment is prescribed”.[19]

   [19]   Controlled Substances Act 1982 (SA), s 33L(1)(a), for which the maximum penalty was $2,000 or imprisonment for 2 years, or both.

   The applicant’s contentions and their determination by this Court

10. The respondent suggested that there was room to question whether her Honour was, in the absence of evidence from the applicant, obliged to leave the s 15C defence to the jury. Similarly, it might also have been questioned whether the applicant could have had any genuine belief concerning a home invasion in circumstances where he had taunted Mr Greene about coming to see him and, when Mr Greene did so, the applicant appears to have opened the screen door and immediately engaged in a violent altercation whilst armed with a knife.

11. Despite these questions, the caution displayed by the trial judge was both understandable and entirely appropriate. Pemble v The Queen requires that a trial judge put to the jury any available defence which is raised on the evidence, regardless whether the accused’s counsel has raised it, and even should reliance on a defence be expressly disclaimed by counsel.[20] The trial judge addressed all elements of the s 15C home invasion defence as an adjunct to her obligation to determine the “real issues” in the trial and so as to ensure that the applicant received a fair trial according to law.[21] 

    [20]   Pemble v The Queen (1971) 124 CLR 107; Fingleton v The Queen (2005) 227 CLR 166, [83] (McHugh J); Gipp v The Queen (1998) 194 CLR 106, [53] (McHugh and Hayne JJ); Murray v The Queen (2002) 211 CLR 193, [78] (Kirby J); CTM v The Queen (2008) 236 CLR 440, [112]-[119] (Kirby J); Hinrichsen v The King [2023] SASCA 111, [67]-[75] (Livesey P), [368]-[370] (Lovell and Doyle JJA).

    [21]   Alford v Magee (1952) 85 CLR 437, 466 (Dixon, Williams, Webb, Fullagar and Kitto JJ); Pemble v The Queen (1971) 124 CLR 107, 117-118 (Barwick CJ); Melbourne v The Queen (1999) 198 CLR 1, [143] (Hayne J); RPS v The Queen (2000) 199 CLR 620, [41] (Gaudron ACJ, Gummow, Kirby and Hayne JJ); Murray v The Queen (2002) 211 CLR 193, [37] (Gummow and Hayne JJ), [78] (Kirby J); Braysich v The Queen (2011) 243 CLR 434, [36] (French CJ, Crennan and Kiefel JJ); James v The Queen (2014) 253 CLR 475, [31] (French CJ, Hayne, Crennan, Kiefel, Bell and Keane JJ); see also R v Roberts (2011) 111 SASR 100, [124] (White J); Hinrichsen v The King [2023] SASCA 111, [67]-[75] (Livesey P), [368]-[370] (Lovell and Doyle JJA).

12. The first criticism made by the applicant was whether what was said to be the trial judge’s “unbalanced” direction adequately addressed the competing versions and considerations associated with reliance on the s 15C statutory home invasion defence. More particularly, the applicant contended that her Honour’s direction regarding the second element (set out earlier) was so flawed that it produced a miscarriage of justice.

13. This contention depended on the premise that the applicant was not engaged in “criminal misconduct” at the time of the altercation.  It was effectively contended that the applicant’s anterior drug possession did not give rise to the threat perceived by the applicant.  The altercation occurred, it was said, as the result of Mr Greene’s anger over hostile messaging because the applicant had refused to repay his debt.  Neither the messaging nor the failure to repay could be described as “criminal misconduct”.

14. In these circumstances, it was asserted that the trial judge’s failure to put this view of the case meant that her direction was “unbalanced”, effectively removing the s 15C defence from the jury’s consideration.

15. There are two answers to the applicant’s criticism.  First, it is not reasonably arguable that the direction given by the trial judge was unbalanced.  The direction set out what was uncontentious – the applicant had been in possession of methylamphetamine, and that is criminal misconduct – and then outlined a question of fact for the jury’s determination.  In so doing, her Honour did not take any position on that question, whether for the prosecution or for the defence.  The question was articulated in neutral terms.  It was not necessary for her Honour to argue the applicant’s case, but rather to identify the issue and the question of fact that the jury had to decide. 

16. The direction made it clear that the issue of causation was for the jury to determine on the balance of probabilities.  There was no failure to provide a fair and balanced direction.

17. Secondly, and in so far as it is now suggested that the jury should have been asked to consider that there was only a debt and hostile messaging, disengaged from the earlier drug possession, that must be rejected.  Even if one were to disregard the fact that the applicant cross-examined Mr Greene on the basis that the altercation “developed over a scoop”,[22] a trial judge is not obliged to direct the jury on a view of the facts which is untenable.

    [22]   Transcript of Proceedings, The King v Walters, (District Court of South Australia, Judge Davison, 17 July 2023), 85.

18. It was not tenable on the facts of this case to suggest, as the then counsel for the applicant put to the trial judge after she had given her summing up to the jury on s 15C, that the jury should be directed that it was as if Mr Greene had loaned the applicant $50 and he had failed to repay that debt.[23]  Counsel went on to suggest that there was no “link between the scoop and the attendance of Greene … the link is the refusal to pay the debt”.  As her Honour responded, the debt was a drug debt.  It was not open to view the debt in any other way. 

    [23]   Transcript of Summing Up, The King v Walters, (District Court of South Australia, Judge Davison, 17 July 2023), 31.  Cf Orreal v The Queen (2021) 274 CLR 630, [16] (Kiefel CJ and Keane J).

19. The applicant’s approach ignored the breadth of the s 15C(2)(b) exclusion. In order to succeed with the statutory home invasion defence, the accused must exclude all three of the essential limbs to s 15C(2), including the second, s 15C(2)(b). This case raised two issues associated with this exclusion to the defence. They were concerned with causation and timing. The first was whether the criminal misconduct “might have given rise to the threat or perceived threat” confronting the accused. The second issue was whether the accused’s criminal misconduct occurred “at or before” the time of the alleged offending.

20. It was not sufficient for the accused to exclude criminal misconduct which in fact gave rise to the threat, for the accused must exclude criminal misconduct which “might” have given rise to the threat.  In addition, the use of the phrase “given rise to” suggests a very broad, open textured association between the criminal misconduct and the threat.  The use of that phrase demonstrates that it will not necessarily assist an accused to point to other factual features which played some part in giving rise to the threat, particularly if those features were themselves connected with criminal misconduct.

21. In this case, the altercation necessarily arose as the result of the applicant’s possession of methylamphetamine, even though that had occurred some weeks before. Although there were additional features associated with the applicant’s drug possession – in increasingly aggressive terms he had refused to pay for the drugs he had received – those additional features did not deprive the applicant’s drug possession of its causative effect on any threat potentially perceived by the applicant. One could not divorce the applicant’s drug possession from the debt owed in respect of that possession. They remained inextricably linked. That is to say, the applicant’s drug possession may have given rise to the threat or perceived threat as s 15C(2)(b) requires.[24] 

    [24] Although it was not argued in this way, and it is unnecessary to reach any conclusion, it might also have been contended that the combination of taking possession of the drugs and then refusing to pay for them could have been characterised as a form of theft, see s 134(1) of the CLCA, and thereby “criminal misconduct”.

22. Moreover, it was not necessary for the applicant’s drug possession to be coincident in time with the offending. 

23. When confronted with these propositions during the hearing before this Court, the applicant responded that if the s 15C home invasion defence was not open, then it should not have been left to the jury. Whether or not that proposition should be accepted, there are many reasons why a trial judge might decide to leave a defence to the jury even if, on final analysis, the defence is not open. As has already been observed, the caution displayed by the trial judge in this case was both understandable and entirely appropriate.

24. As for the second criticism concerning the third element of the home invasion defence, this was addressed only fleetingly in writing and abandoned at the hearing. In writing the applicant referred to material which suggested that he had consumed only “one cone” of cannabis, which he asserted was a “relatively small amount” which, together with his behaviour recorded in the police interview, rendered it open to the jury to find that his mental faculties were not substantially affected as s 15C(2)(c) requires.

25. This contention failed to engage with the requirements for demonstrating error or a miscarriage of justice within s 158 of the CPA. Contrary to the proposed ground of appeal, no complaint was made or is available concerning any of the directions given by the trial judge concerning the third element of the home invasion defence, set out earlier.

26. The applicant was right to abandon this proposed ground of appeal.

    Conclusion

27. It is not reasonably arguable that there was any miscarriage of justice.[25]

    [25]   HCF v The Queen [2023] HCA 35, [2] (Gageler CJ, Gleeson and Jagot JJ), citing Zhou v The Queen [2021] NSWCCA 278, [22] (Beech-Jones CJ in CL) which, in turn, cited Hofer v The Queen (2021) 274 CLR 351, 364-365 [41], 366-367 [47], 390 [118], 391-392 [123] and Edwards v The Queen (2021) 273 CLR 585, 609 [74]. See also AK v The Queen [2022] NSWCCA 175, [2]‑[5].

28. Permission to appeal should be refused.