Warne v The Queen

Case [2020] SASCFC 12

Supreme Court of South Australia

(Court of Criminal Appeal)

WARNE v THE QUEEN

[2020] SASCFC 12

Judgment of The Court of Criminal Appeal

(The Honourable Justice Nicholson, The Honourable Justice Doyle and The Honourable Auxiliary Justice David)

26 February 2020

CRIMINAL LAW - APPEAL AND NEW TRIAL - MISCARRIAGE OF JUSTICE - PARTICULAR CIRCUMSTANCES AMOUNTING TO MISCARRIAGE - MISDIRECTION OR NON-DIRECTION - NON-DIRECTION

CRIMINAL LAW - APPEAL AND NEW TRIAL - MISCARRIAGE OF JUSTICE - PARTICULAR CIRCUMSTANCES NOT AMOUNTING TO MISCARRIAGE - MISDIRECTION OR NON-DIRECTION

The appellant was charged with eight offences alleged to have occurred during 2016 and 2017.  Counts 1, 6, 7 and 8 were charges of aggravated assault, counts 2 and 3 were charges of aggravated assault causing harm, count 4 was a charge of possessing a firearm without a licence and count 5 was a charge of aggravated threatening life.

The complainant in respect of each of the charges of violent offending was the appellant’s then partner.  The assault charges were aggravated by reason that they were alleged to have occurred in contravention of an Intervention Order that had been imposed upon the appellant on 25 July 2016. 

Following a trial before a judge and jury the appellant was found guilty on all charges, save that the jury did not find the aggravating circumstance proven in respect of count 1.  The verdicts in respect of counts 2 and 5 were by majority; the balance were unanimous. 

The appellant pursued four grounds of appeal:  

1.       The trial judge erred in failing to direct the jury either at all, or in one case not until his summing up, as to their obligations to decide the case only on the evidence, to not discuss the case with persons other than their fellow jurors, to not make their own enquiries, and to bring to the trial judge’s attention any departure from the above by any member of the jury.

2. The trial judge erred in failing to direct the jury as to self-defence either at all, or in terms that were in conformity with s 15 of the Criminal Law Consolidation Act 1935 (SA).

3.       The trial judge’s directions lacked balance to the extent that they resulted in a miscarriage of justice.

4.       The trial judge erred in failing to adequately direct the jury in relation to the potential implications for the complainant’s credit of the timing of the photographs purportedly showing the injuries alleged to have been sustained during the course of the conduct the subject of count 1.

Held, per Doyle J (Nicholson J and David AJ agreeing), granting permission to appeal in respect of grounds 1 and 2, and allowing the appeal on ground 2, but only to the extent of setting aside the conviction on count 2 and ordering a retrial on that count, and otherwise dismissing the appeal:

1.       The trial judge ought to have given post-empanelment directions to the effect contended for by the appellant. The instructions provided during the jury pool’s induction, the…

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Warne v The Queen [2020] SASCFC 12
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[2020] SASCFC 12
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CaseChat Overview and Summary

This case concerned an appeal by the appellant, Warne, against his conviction for aggravated assault causing harm. The appeal was heard by Nicholson and Doyle JJ and David AJ in the appellate court. The central dispute revolved around whether the trial judge had adequately directed the jury on the issue of self-defence, particularly in relation to count 2 of the indictment.

The legal issues before the appellate court were whether the trial judge had erred by failing to sufficiently direct the jury on the defence of self-defence, and whether this failure amounted to a miscarriage of justice. Specifically, the court considered whether the evidence presented at trial, including the complainant's own admissions of aggressive behaviour and the appellant's defence counsel's submissions, created an evidential basis that necessitated a more comprehensive direction on self-defence. The court also had to determine if the trial judge's summing up, in its entirety, was balanced and fair in its treatment of this defence.

The appellate court reasoned that while the possibility of self-defence might not always be apparent when a defendant does not give evidence, the evidence as a whole could still give rise to such a defence. They noted that the obligation to direct the jury on self-defence can arise even without a specific request from counsel, and even if the trial judge considers the defence to be weak. In this instance, the complainant's own evidence, coupled with visual evidence from a telephone camera, indicated that the alleged assault was preceded by aggressive conduct from the complainant, including her entering the room with an axe and smashing a bedside table. The court found that this provided a sufficient evidential basis to require a direction on self-defence for count 2.

The court concluded that the trial judge's summing up lacked the necessary balance regarding self-defence for count 2. Consequently, the appeal was allowed to the extent that the conviction on count 2 was set aside, and a retrial was ordered for that count. The appeal in relation to other counts was dismissed.

Orders

Orders of the court

Full text does not contain this section.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

While the possibility of self-defence may not rise above mere speculation or assertion in a case where the defendant does not give evidence, the evidence as a whole may nevertheless give rise to self-defence even in the absence of evidence from the defendant.[10] As the success of the defence is ultimately a matter for the jury, the obligation to direct the jury in relation to self-defence may arise even in the absence of any request or suggestion to that effect by counsel,[11] and even in circumstances where the trial judge regards the defence as weak or tenuous.[12] Conversely, and while acknowledging that the attitude and submissions of counsel (and, indeed, the manner in which a trial has been conducted more generally) will often be influential in a trial judge’s consideration of the directions to be given, these matters are not determinative of the trial judge’s obligations to direct in relation to self-defence.[10] Police v Lloyd (1998) 72 SASR 271 at 275; including, but not limited to, situations where self-defence arises from out of court statements of the defendant that are in evidence (R v Heinicke (1998) 198 LSJS 2).[11] Flanagan v The Queen (2013) 236 A Crim R 255 at [80].[12] R v Muratovic [1967] Qd R 15 at 20; R v Roba (No 2) (2000) 110 A Crim R 253 at [39].The evidence and trial context In the present case the issue of self-defence was mentioned by both the prosecutor and defence counsel. In his opening address the prosecutor, after explaining the legal elements of the offence of aggravated assault causing harm for the purposes of counts 2 and 3, mentioned that the issue of whether there was a lawful excuse might be raised, and that there would be a lawful excuse if the accused was acting in self-defence. He added that the prosecution case was that the defence did not arise because, even though the complainant was at times volatile or angry, this did not mean that her behaviour warranted the appellant’s response; he could have walked away. As the trial unfolded it became apparent from the manner in which defence counsel conducted the case that the defence case involved both a challenge to the veracity of significant aspects of the complainant’s evidence, as well as a suggestion that she was herself a physical aggressor within their relationship. As to the latter, the complainant accepted in her evidence that she and the appellant had a volatile relationship, and that she often behaved in an angry and verbally aggressive manner. However, there was very limited evidence of any physical aggression on the complainant’s part. She accepted that from time to time she would attempt to push past the appellant in order to try and leave the room, as she described in the context of the incident the subject of count 1. She admitted smashing a window of the Union Court house where they lived, and a spotlight that belonged to the appellant. And in the context of the incident the subject of count 2, she accepted that she used an axe to smash a bedside table.

Decision

Reasons for decision

I do not accept that the appellant has demonstrated any lack of balance in the trial judge’s summing up. I would dismiss the application for permission to appeal on grounds 3 and 4.Conclusions and orders For the reasons I have given, I would grant the application for permission to appeal in respect of grounds 1 and 2. I would allow the appeal, but only to the extent of setting aside the conviction on count 2, and ordering a retrial on that count. I would otherwise dismiss the application for permission to appeal and the appeal. DAVID AJ: I would grant permission to appeal on grounds 1 and 2. I would allow the appeal on ground 2. I would refuse permission to appeal on grounds 3 and 4. I agree with the reasons of Doyle J and the orders he proposes.

Ratio Decidendi

Legal Principle Established

Later in his summing up, when addressing count 2, the trial judge returned to the issue of unlawfulness. His Honour said:One of the other major matters raised by [defence counsel] was that there is evidence independent of [the complainant] that suggests that she can be the aggressor and irrational in her behaviour, such that if she needed to be restrained, it would not be surprising that she may be unintentionally injured or any injury was with lawful excuse and therefore, not unlawful. I remind you that the prosecution must prove as part of its case that the accused's actions were unlawful. The submission made by [defence counsel] relied upon [the complainant] smashing a spotlight of the accused, I think maybe a door or something like that but more particularly it is said the videos in October 2016 leading up to her coming in with the log splitter and smashing the bedside table, support the submission that she was both aggressive and irrational in her behaviour.That was being relied upon that it was submitted to you that these show that aggression, show her doing the attacking and raises the question whether any observed injuries were as the result of fending off such aggression ... So that is a matter you will need to give consideration to, members of the jury, because it has been raised on behalf of the accused. So I really just go back in one sense to square one. The prosecution must prove that any use of force by an accused person is unlawful. That means without lawful justification or excuse. I gave you some directions earlier about the use of force and how things are not unlawful if you think you are about to be assaulted you can use force, you can be pre-emptive, if you think force or violence is about to be used against you then you are entitled to resist it and you are also entitled to use force so as to resist the force that is being exacted or trying to be exacted upon you.Consideration I am satisfied that there was a sufficient evidential basis to warrant, and indeed require, that the trial judge leave self-defence to the jury in respect of the charge of aggravated assault causing harm the subject of count 2. On the complainant’s own evidence, and consistently with what could be seen and heard from the recording captured from the appellant’s telephone camera, the alleged assault was immediately preceded by an episode of verbally and physically aggressive conduct by the complainant. On the complainant’s evidence, she was holding an axe when she entered the bedroom. She variously described herself as angry and upset, and as screaming, crying and arguing. She was standing close to the door of what was a relatively small room. The appellant was lying on the bed in that room, with the complainant between him and the door. While denying any intention to hit the appellant with the axe, the complainant acknowledged her intention to threaten and scare him with it. And, of course, she ultimately swung the axe in a manner that resulted in the bedside table not far from the appellant being “smashed to bits”.