Criminal law - Appeal against conviction - Whether trial judge failed to identify and link relevant evidence to elements of self-defence - Whether defence case put fairly to jury - Whether warning required in relation to evidence of certain witnesses - Turns on own facts

Criminal law - Appeal against sentence - Totality - Turns on own facts

Leave to appeal on all grounds in the conviction and sentence appeals refused

Alford v Magee [1952] HCA 3; (1952) 85 CLR 437

Braysich v The Queen [2011] HCA 14; (2011) 243 CLR 434

Domican v The Queen [1992] HCA 13; (1992) 173 CLR 555

The State of Western Australia v Pollock [2009] WASCA 96

Vagh v The State of Western Australia [2007] WASCA 17

Walsh v The State of Western Australia [2011] WASCA 119

Winmar v The State of Western Australia [2007] WASCA 244

1 McLURE P: The appellant seeks leave to appeal against his conviction after trial and sentence on one count of unlawfully doing grievous bodily harm with intent to maim, disable or do grievous bodily harm contrary to s 294(1) of the Criminal Code (WA) (the Code) (count 1), one count of unlawful wounding with intent to maim, disable or do grievous bodily harm contrary to s 294(1) of the Code (count 3) and one count of unlawfully doing an act as a result of which the life, health or safety of another was, or was likely to be, endangered contrary to s 304(1) of the Code (count 6). Counts 2, 4 and 6 were alternative counts.

2 In the course of an affray on 14 November 2009 in suburban Narrogin between members of feuding Aboriginal families, the appellant shot and wounded Lisa Woods (count 1) and Dean Colbung (count 3). He also shot at a vehicle being driven by Sidney Ugle (count 6).

3 On 10 March 2011 Derrick DCJ, who had presided over the trial, sentenced the appellant to 5 years' imprisonment on count 1, 4 years and 6 months' imprisonment on count 3 and 1 year and 3 months' imprisonment on count 6. He ordered the sentences on counts 1 and 6 to be served cumulatively, resulting in a total effective sentence of 6 years and 3 months' imprisonment. The appellant was made eligible for parole.

4 The facts found for the purposes of sentencing are as follows. During 2009 in Narrogin there was an ongoing feud between two Aboriginal family groups, the Ugles and Colbungs on the one hand, and the Kicketts and Boltons on the other. On 14 November 2009 the funeral of Ms Velma Ugle, an Aboriginal elder, was held in Narrogin. There were a large number of members of the Ugle and Colbung families in Narrogin on that day to attend the funeral. After a wake at an Aboriginal community centre, a large number of Ugle and Colbung family members went to the house of Dean Colbung at 12 Clark Street, Narrogin. Dean Colbung was the eldest son of the deceased. Dean Colbung's house was across the road from Ashworth Park. A number of mourners were in the front yard of Dean Colbung's house and others were in the park.

5 At the same time, a number of members of the Bolton and Kickett families were gathered at a house at 4 Floyd Street, Narrogin, approximately half a kilometre from Dean Colbung's house in Clark Street. The appellant and his wife were at 4 Floyd Street. On two occasions on the evening of 14 November 2009, the officer in charge of the Narrogin police station visited both 12 Clark Street and 4 Floyd Street and effectively obtained undertakings from the senior members of each group that, in order to avoid trouble, the Ugles and the Colbungs would not venture away from 12 Clark Street and the Boltons and the Kicketts would stay in the area of 4 Floyd Street. The appellant was present at 4 Floyd Street during the visits from the police officer and knew of the undertaking.

6 The appellant's daughter, Kylie Bolton, lived at 15 Ashworth Crescent, Narrogin which was across the road from the southwest corner of Ashworth Park. It was approximately 100 m from Dean Colbung's house.

7 A short time after the police officer left 4 Floyd Street, the appellant and his wife also left 4 Floyd Street and drove in the appellant's ute to their daughter's house. Shortly thereafter, a number of younger male Kickett and Bolton family members who were at 4 Floyd Street, including the appellant's son, decided they would make their way to Kylie Bolton's house. They walked through Ashworth Park. By this time it was close to 8.30 pm and almost dark. A number of younger male Ugle and Colbung family members who were standing in Ashworth Park opposite Dean Colbung's house saw the group of Kicketts and Boltons walking across the park and a fight broke out. It turned into an all-out brawl with bottles and rocks being thrown. At least 50 people were involved in the brawl. There were significantly more people from the Colbung/Ugle group than the Kickett/Bolton group.

8 While the brawl was taking place, the appellant was standing in the front yard of 15 Ashworth Crescent watching what was occurring. He obtained or was provided with a double-barrel shotgun from inside the house. The appellant inserted two cartridges into the barrel. He then stood behind his ute and took aim at Mr Todd Jackson, one of the persons who had been at Dean Colbung's house. At the time, Mr Jackson was approximately 50 m from the appellant, standing near the driveway of 16 Clark Street. He had armed himself with a rake which he intended to use in the brawl. However, he was not at the time posing any immediate threat to the appellant or anyone else at 15 Ashworth Crescent.

9 Having taken aim, the appellant fired the shotgun at Mr Jackson. The appellant intended to do him serious injury. However, moments before the appellant fired the shotgun, Mr Jackson's partner, Lisa Woods, observed the appellant to be taking aim at Mr Jackson. She ran towards him in order to knock him out of the way. She was successful in doing that. Unfortunately, the result was that the appellant's shot hit her. She was struck with three shotgun pellets, including one to her abdomen which perforated her bowel. She underwent surgery at Royal Perth Hospital.

10 At the same time, Dean Colbung Jr was sitting or standing near a low fence that separated the front yard of his father's house from the house next door at 14 Clark Street. He was approximately 90 m away from the appellant and was not involved in the brawl. He was not posing a threat to the appellant or to members of the appellant's family who were at 15 Ashworth Crescent.

11 The appellant took aim at Dean Colbung Jr and fired the second of the cartridges that he had loaded into the double-barrel shotgun. In shooting at Mr Colbung, the appellant intended to cause him serious injury. One of the pellets from the shotgun struck Mr Colbung in the lower left quadrant of his abdomen, close to his hip. He also underwent surgery.

12 Meanwhile, another member of the Ugle/Colbung group, Mr Sidney Ugle, had seen the injured Lisa Woods lying on the ground. By this time she had been carried to somewhere outside the front of Dean Colbung's house. Sidney Ugle was not involved in the fighting. He decided to use his car to drive Ms Woods to hospital. He drove his car to where she was. Family members put Ms Woods in his car. He then started driving slowly down Clark Street towards the intersection with Ashworth Crescent, which was the most direct route to the hospital. He drove slowly because there was glass on the road and people were running around. As Mr Ugle approached the intersection, the appellant pointed a shotgun in the direction of his car and fired a shot at the car. The appellant was about 40 m away from the car when he fired the shot. The appellant did not intend to hit Mr Ugle. However, a number of pellets from the shotgun struck the lower front left portion of his car.

13 Within a short time of the appellant firing the shots, police were cordoning off the surrounding streets. In due course a number of police officers entered Ashworth Park and formed a line between the feuding family groups who were still behaving aggressively towards each other. By this time, the appellant had left the front yard of 15 Ashworth Crescent and was in front of the Bolton/Kickett group in Ashworth Park, shirtless, behaving aggressively and shouting abuse towards the Colbung/Ugle group. In due course police were able to restore peace and good order.

14 The appellant relies on two grounds in the conviction appeal. He contends the trial judge erred by failing to 'properly direct' the jury in relation to (1) the evidence which supported the defence of self-defence and (2) the danger of convicting the appellant on the basis of the evidence of the witnesses Woods and Jackson. A claim that the trial judge failed to 'properly direct' the jury discloses nothing of the precise error(s) complained of. That has to be gleaned from the written and oral submissions.

15 The appellant did not give evidence at trial. The appellant's counsel in the appeal, who was also trial counsel, says the defence case at trial was that the appellant did not fire the shots that injured Ms Woods or Mr Colbung but if he did fire the shots that injured them, they were acts done in self-defence. The tension between the alternative defences is self-evident, even to a layperson.

16 It emerges from the submissions advanced on behalf of the appellant that the complaint about the direction is twofold. First, it is said the trial judge failed to identify and link the relevant evidence adduced at trial to the elements of the defence of self-defence (see Alford v Magee [1952] HCA 3; (1952) 85 CLR 437, 466 and The State of Western Australia v Pollock [2009] WASCA 96). Secondly, it is said the defence case was not put fairly to the jury. The relevant legal principles on that subject are well-known: Domican v The Queen [1992] HCA 13; (1992) 173 CLR 555, 560 - 561; Pollock [144] - [149]; Walsh v The State of Western Australia [2011] WASCA 119 [57].

17 The trial judge in his summing up identified all the elements of each of the offences with which the appellant was charged, in the course of which he put the appellant's primary defence to each charge and then gave accurate and comprehensive directions on self-defence in relation to all counts. The direction on count 1 is a representative example. The trial judge identified and explained the alternative defences as follows:

[The appellant] does not assert as part of his defence to count 1 that he was not acting unlawfully because he was acting in self-defence. So he doesn't say as part of his case, 'Yes, I shot the shot but I was acting in self-defence'. As I have said, his case is that he did not fire the shot at all that caused the injury to Ms Woods and that therefore he was not the person who caused the grievous bodily harm.

However, I am directing you that if you are satisfied beyond a reasonable doubt that [the appellant] did, as alleged, fire the shot that caused Ms Woods' injury ... you will need to consider the issue of self-defence (ts 494).

18 After setting out the elements of self-defence and where the burden lay, the trial judge continued:

[T]he State can discharge its burden by proving any one or more of the following things. So if it proved any one of these things it will have negated self-defence. First, that the actions of any member or members of the Colbung and Ugle families immediately prior to the firing of the shot did not constitute an unlawful assault on [the appellant] or a member of his family. That is, the group did not by their conduct threaten to apply force to [the appellant] or a member of his family without his consent, or have an actual or apparent ability to effect their purpose.

Or (2), that [the appellant] did not believe that it was necessary for him to fire the shotgun in the manner that you find that he did, to defend himself or members of his family from the unlawful assault, assuming that you're not satisfied beyond reasonable doubt that the unlawful assault did not occur. Or thirdly, that [the appellant's] act of firing the shotgun was not a reasonable response by him in the circumstances as he believed them to be; or fourth, that there were no reasonable grounds for [the appellant's] beliefs.

...

Now, obviously you cannot look inside [the appellant's] head to see what his beliefs were at the time that he fired the shot gun if you find that he did. To determine what [the appellant's] beliefs were, it is necessary for you to examine the evidence of the circumstances that were prevailing at the time that he fired the shot and the evidence of his conduct both before and after he fired the shot.

The reasonableness of [the appellant's] beliefs, whatever you find them to be, and the reasonableness of his response are objective matters to be judged by the standard of a reasonable person of the same age, background and level of intellectual functioning as [the appellant] and familiar with all the circumstances that you find are known to him at the relevant time (ts 495 - 496).

19 These directions were crafted by reference to the issues arising on the evidence. The trial judge also provided a summary of the evidence of the many witnesses who gave evidence at trial. He said:

I'm not attempting to recite in detail all of the evidence given by each of the witnesses, therefore do not think that if I do not mention an aspect of a witness's evidence I have a view one way or the other as to its importance. I do not. It is for you to decide what evidence you think is important to the issues in this case (ts 522).

20 The issues had been carefully and repeatedly identified by the trial judge. He then summarised the evidence of the 16 witnesses he described as being from the Colbung/Ugle group followed by a summary of the evidence of the five witnesses from the Kickett/Bolton group. The trial judge also summarised the submissions of the State and the defence relating to the issues at trial. It is apparent from the summary that defence counsel at trial had very little to say about the evidence relating to self-defence (ts 553 - 554).

21 At the conclusion of the summing up, the trial judge asked counsel whether they wished to raise any matter of fact or law arising out of his summing up. Counsel for the appellant only raised what he described as 'a very minor matter of fact' relating to the location of shotgun pellet damage to Mr Ugle's vehicle. He made no mention of any of the matters now sought to be raised in this appeal.

22 The challenge based on the principle in Alford v Magee does not have a reasonable prospect of succeeding. It would have been practically impossible and potentially misleading for the trial judge to summarise the evidence of each witness relevant to the individual elements of self-defence. The incident was a moving feast involving large numbers of participants and spectators, not all of whom were in the same location at the same time. The evidence of those witnesses had to be considered as a whole. Further, save in relation to events involving Ms Woods, Mr Jackson, Mr Dean Colbung Jr and Mr Ugle's car, it is difficult to identify with any precision what would have been in the appellant's field of view or his (or his family's) proximity to events as they were unfolding. Indeed, in the absence of evidence from the appellant, there is a question as to whether self-defence had to be put to the jury. As to the test, see Braysich v The Queen [2011] HCA 14; (2011) 243 CLR 434 [17], [36]. However, it is unnecessary to determine that question.

23 Further, as a result of the nature of the incident and the evidence of those present at it, it was not feasible to direct the jury on the application of the law to the facts as they found them to be. The number of potential factual permutations were so numerous that it would have been unsafe to single out examples. Having regard to the careful and comprehensive directions given by the trial judge on self-defence and his summary of the relevant evidence, the jury had sufficient knowledge and understanding to enable it to apply the law to the facts as they found them to be.

24 On the subject of fairness and balance in the summing up, it is said on behalf of the appellant that the trial judge should, at the very least, have referred the jury to the following points in relation to self-defence:

(a) the appellant was a middle-aged man who was, with his wife, confronted by a large crowd of angry people from a hostile feuding family;

(b) that the crowd had spilled out of the house where the Colbung family wake was being conducted and was approaching the location of the appellant;

(c) the appellant and his family were largely outnumbered by the Colbung family;

(d) members of the Colbung family were hurling objects towards the location of the appellant;

(e) the complainant Jackson was approaching the appellant armed with a rake;

(f) there was evidence that at least one member of that feuding family was armed with a rifle in the park opposite the appellant;

(g) there was evidence from prosecution witnesses that the house of the appellant was being fired at by a .22 calibre rifle.

25 With the exception of items (c), (f) and (g), which were referred to in the summing up, the matters are contentious assertions based on a highly selective approach to the evidence. To the extent that the assertions have any proper evidentiary foundation, they are canvassed in the trial judge's summary of the evidence. Moreover, the matters go well beyond those canvassed by the appellant's counsel in his address to the jury as summarised by the trial judge. The accuracy or completeness of the trial judge's summary of the defence address is not challenged.

26 The other matter relied on for the claimed lack of balance is the alleged failure of the trial judge to refer to 'key' evidence given by prosecution witnesses in cross-examination. This claim does not travel beyond mere assertion save for a transcript reference to an unidentified topic said to disclose an example of where Ms Woods' evidence in cross-examination varied from her evidence-in-chief. The appellant's submissions fall a long way short of what is required to satisfy the court that the appellant has an arguable claim on this point. It is not this court's role to attempt to fill in what is a very large information and analytical gap.

27 Ground 1 has no reasonable prospect of succeeding.

28 The appellant contends the trial judge erred in failing to direct the jury that it was dangerous to act on the evidence of Ms Woods and Mr Jackson unless they scrutinised their evidence with special care.

29 Warnings are usually only required if some aspect of the evidence gives rise to a perceptible risk of a miscarriage of justice and the risk of a miscarriage is not necessarily obvious to the lay mind: Winmar v The State of Western Australia [2007] WASCA 244 [21] - [22]; Walsh [54] - [56].

30 In relation to Ms Woods, the appellant places reliance on the following: she had consumed at least 12 drinks before being shot; her evidence that the weapon used to shoot her had a 'scope' was contradicted by other prosecution evidence; her evidence that 'she had not discussed or recollected her version of events following discussions with Jackson after waking up in hospital' (the transcript reference to the evidence relied on (ts 61) does not support the proposition); Jackson's evidence that he had discussed the incident with Ms Woods whilst she was in hospital; and the bad blood between the feuding families. According to the appellant, a warning was necessary in relation to the evidence of Mr Jackson because he had also consumed some alcohol prior to the incident; there was an 'inter-relationship' between the evidence of Ms Woods and Mr Jackson; and because of the bad blood between the feuding families.

31 There is no arguable basis for the claim that the trial judge erred in failing to give a warning of the type sought by the appellant. The relevance and capacity of the particular matters on which the appellant relies to inform an assessment of the credit (honesty and reliability) of the witnesses would have been patently obvious to the jury. Matters of this nature fall fairly and squarely within the knowledge and experience of a jury. Further, evidence given by other witnesses (Elder Abraham, Peter Ugle, Brendan Ugle, Benjamin Ugle, Nona Ugle and Renata Ugle) was capable of supporting the evidence of Ms Woods and Mr Jackson. Finally, the credibility of witnesses from both sides of the feuding groups was in issue. To single out Ms Woods and Mr Jackson would occasion considerable unfairness. Ground 2 has no reasonable prospect of succeeding.

32 The appellant relies on three grounds of appeal. He claims the total sentence is manifestly excessive (ground 1), that the sentencing judge erred in failing to consider self-defence as mitigatory in the circumstances (ground 2) and in failing to give proper weight to the appellant's age and health (ground 3).

33 The appellant was aged 56 at the time of sentencing. He was born in Narrogin. The sentencing judge found that he was a positive figure in the lives of his immediate and extended family. He had done his best to give his children a loving and supportive upbringing. The appellant had been convicted of only one relatively minor offence in the previous 20 years. The trial judge regarded that as having mitigatory value.

34 The appellant attended school until Year 9. He worked in a variety of occupations until he was involved in a serious car accident when he was 26. In the previous four to five years the appellant and his wife had worked as live-in carers at an out-of-home care programme for children whose parents were using illicit substances.

35 The appellant has type 2 diabetes, heart disease, blood pressure problems and arthritis. The sentencing judge said:

I accept that your age and your health problems mean that you will find the serving of a term of imprisonment somewhat more difficult than a younger person without any significant health problems ...

However, your state of health is not so poor that you will suffer significantly more hardship in serving a term of imprisonment than an average prisoner. There is nothing before me to suggest that your conditions will not be able to be appropriately managed in prison. I therefore consider your age and health problems to be of limited mitigatory value only, albeit of some mitigatory value (ts 593).

36 Notwithstanding his conviction, the appellant continued to maintain his version of events which was in effect that he fired two shots in the air to scare the mob away, fired at the car because it was going to run over him and that, at the time of firing the shots, he was in fear of his life. The sentencing judge rejected the appellant's version of events. He continued:

My finding is that you did not fire the shots in the belief that it was necessary to do so in order to defend yourself or anyone else. The fact that you continued to maintain your version of events prevents me from giving you any significant credit for remorse or acceptance of responsibility (ts 595).

37 The sentencing judge expressly turned his mind to the totality principle and reduced the otherwise appropriate sentence on count 6 from

2 years and 6 months to 1 year and 3 months and made the reduced sentence cumulative with the sentence on count 1.

38 Ground 2 of the sentence appeal is completely devoid of merit. The trial judge made an express factual finding that the appellant did not act in self-defence.

39 As to ground 1, a claim of manifest excess applies to an individual sentence. The gravamen of the ground is that the total sentence infringes the first limb of the totality principle because it is disproportionate to the overall criminality involved in all the offences, viewed in their entirety and having regard to the circumstances of the case including those referable to the appellant personally. Ground 3 does not disclose an appealable error. A failure to give adequate weight to a relevant sentencing consideration only gives rise to an appealable error if it amounts to a failure to exercise the discretion actually entrusted to the court: Vagh v The State of Western Australia [2007] WASCA 17 [76]. Ground 3 should be treated as a particular of ground 1.

40 The offences the subject of counts 1 and 3 are very serious. To shoot two people with an intention to maim, disable or do them grievous bodily harm unarguably deserves that characterisation.

41 The sentencing judge was correct to conclude that the background circumstance of the long-running feud did not mitigate the appellant's culpability to any significant extent. The appellant is a mature man and a leader of his community. The fact and continuation of violent feuding between groups reflects a significant level of dysfunction and breakdown in values which is intolerable to all right thinking members of the community.

42 What little there is by way of mitigation in this case was properly reflected in the sentencing process and outcome. The total sentence of 6 years and 3 months is well within the range of a sound exercise of the sentencing discretion. Grounds 1 and 3 also have no reasonable prospect of succeeding.

43 For these reasons, leave to appeal on all grounds in the conviction and sentence appeals should be refused and the appeals dismissed.