Criminal law - Appeal and new trial - Verdict unreasonable or insupportable having regard to evidence - Appeal dismissed - Appellant charged with committing an unlawful act intended to cause bodily harm Victim the initial aggressor - Appellant struck victim multiple blows with a hammer - Claim of acting in self-defence - Contradictory evidence of eye witnesses - Open for jury to rely on one witness - Evidence of one blow which felled the victim before blows continued - Verdict of not guilty but guilty of wounding not unreasonable or insupportable.

Criminal law - Appeal and new trial - Appeal against sentence -Grounds for interference - Sentence manifestly excessive or inadequate - Wounding - Multiple blows to victim with a hammer. - Claim of self-defence - Evidence only permitted finding of one blow in excessive use of force which caused a wound - Head wound but uncertainty in evidence about its extent - Term of imprisonment of two years and three months with eligibility for parole after one year and three months manifestly excessive.

Judgment Number: [2025] TASCCA 4

1. Leave to appeal against conviction granted but appeal dismissed;
2. Appeal against sentence allowed;
3. Sentence of imprisonment for two years and three months from 26 June 2023 imposed by Martin AJ on 21 June 2024 quashed;
4. Appellant re-sentenced to imprisonment for 18 months from 26 June 2023. Appellant not eligible for parole until having served 15 months of that term.

1. The appellant was found guilty by a jury of wounding contrary to the Criminal Code, s 172. He was acquitted of the more serious charge of committing an unlawful act intending to cause bodily harm under s 170, and guilty of wounding was returned as an alternative verdict. He was sentenced by Martin AJ on 21 June 2024 to imprisonment for two years and three months from 26 June 2023 with eligibility for parole after having served one year and three months of that term. This appeal concerns both the conviction and sentence. The appeal against conviction is on the ground that the verdict was "unsafe and satisfactory". Because an appeal on that ground involves questions of fact alone, or mixed questions of fact and law, the appeal may be brought only with the leave of the Court: Criminal Code, s 401(1)(b). The appeal against sentence is on the ground that the sentence was manifestly excessive. An appeal on that ground does not require leave.
2. On 28 May 2025, after hearing argument in the appeal, the Court immediately announced its decision that the ground of appeal challenging the conviction was not made out. However, the Court concluded that the appeal, as it concerned the sentence, should succeed. It made orders allowing the appeal on that ground, quashing the sentence and substituting a sentence of imprisonment for 18 months from 26 June 2023 with a non-parole period of 15 months. These are the reasons I joined in the making of those orders.

1. It was the prosecution case that just after 6.00 pm on Friday, 21 April 2023, in the car park of the Coles Supermarket in Mowbray, the appellant violently assaulted Dale Coleman by striking him with a hammer and kicking him. At trial there was no dispute that the appellant applied force to Mr Coleman, including by striking him with a hammer. However, the appellant claimed that his acts were justified by self defence. As will be explained, the overwhelming inference to be drawn from all the evidence was that Mr Coleman was the initial aggressor. The thrust of the prosecution case was that even if the appellant was justified in using some force to defend himself, the force he used was in excess of what was reasonable and continued after the need for self defence had passed.
2. The prosecution called five witnesses who were present or nearby at the relevant time: Mr Coleman, Mr Coleman's then partner Nicole Clark, Mr Coleman's friend Alex Knight, Nicole Bakes who was an employee of the supermarket and Kerryn Burton, who happened to be in the car park at the time. The appellant did not give or adduce evidence, and did not participate in a police interview.
3. Invermay Road is the main road through Mowbray, and runs roughly north/south. On the western side was a business called Shiploads, located in a large rectangular building, the longer side of which fronted directly on to the road. Immediately behind Shiploads, between the building and a fence, was a long driveway running between Joffre Street to the south and Haig Street to the north. This area was referred to as the Shiploads car park because, along the driveway, there was car parking against the back of the building. The Coles supermarket was also on Invermay Road, just south of Shiploads. The supermarket car park at the rear bounded Joffre Street near where the Shiploads car park also met Joffre Street.
4. Mr Coleman gave evidence that during that afternoon he and Ms Clark had been at the Mowbray Hotel. They left together on foot to go to the Coles supermarket to buy food for dinner. They had with them a young dog, a "staffy", which was on a lead. After leaving the supermarket they walked, carrying their bags, through the Coles car park, across Joffre Street and into the driveway and car park behind Shiploads. They intended to walk through the driveway, which Mr Coleman described as being about fifty metres long, to Haig Street at the other end. As Mr Coleman entered the Shiploads car park he ran into his friend Alex Knight. Mr Knight was driving but he stopped his car and they chatted through the passenger window. When Mr Knight drove off Mr Coleman and Ms Clark continued walking. Mr Coleman saw a man, which the evidence established was the appellant, walking towards them from the opposite direction. Mr Coleman claimed to not know this man but said that he could hear the man talking to himself. Mr Coleman's account was that, as they came close, his dog approached the appellant. Mr Coleman said that the dog was just "sniffing" but the appellant produced a hammer from his pocket. When Mr Coleman asked "what's going on mate", the accused "just started yelling and carrying on" and there followed an argument between them.
5. According to Mr Coleman, he did not walk past the appellant, because "he had a hammer in his hand". He said that he could not remember what happened after that except that "we ended up in the Coles car park". When asked how and why he ended up in the Coles car park Mr Coleman answered that he had chased after the appellant to "find out what was his problem". He claimed to then have no memory of what happened, except that he was "between two cars", "standing there yelling at this guy" and the man was "just jumping up and down". He said that his mate, Alex, had grabbed the dog from his partner. He did not explain how Alex had come to be present again. Mr Coleman also gave evidence that "at a later time" he had a small baseball bat, he thought a bit over a foot long, which Alex had passed to him, and he took a swing at the appellant with it. When asked if he made contact he answered "not that I know of, no". The next thing he remembered was waking up on the ground with people standing around. He saw blood on the ground and waited until the ambulance arrived.
6. When cross-examined, Mr Coleman denied that his dog had jumped up at the appellant. When it was suggested to him that the appellant was not holding a hammer at that stage he disagreed. However he accepted that after he and the appellant exchanged unpleasant words the appellant walked away towards Coles and he, that is Mr Coleman, grabbed the dog and chased after the appellant. When asked whether the only reason he followed the appellant was to confront him he repeated "I just wanted to know what his problem was, that's all". He maintained that it was him, not the appellant, who was standing between two cars in the Coles car park, but accepted that his friend Alex arrived back and gave him the baseball bat which he swung at the appellant. He denied striking the appellant in the back and ribs with the bat. He said he swung the bat because the appellant was holding a hammer, but agreed with the proposition that "you were chasing him and now you've got a baseball bat." He maintained that after swinging the bat at the appellant he gave the bat back to Mr Knight even though the appellant was still holding a hammer.
7. Ms Clark's evidence was that after she and Mr Coleman left the hotel and the supermarket they began to walk through the Shiploads car park towards Haig Street. They ran into Mr Knight who was driving in the same direction. Mr Coleman and Mr Knight chatted for a few minutes before Mr Knight drove off and she and Mr Coleman continued walking. Mr Coleman was, she said, leading their dog. She saw a man, who she said she did not know, walking towards them and, as they got close, the dog went close to him "sort of sniffing". She said that the man "got a little bit angry" and Mr Coleman said "Oh, what's your problem mate". She said that she could see that the man was carrying a hammer and was "waving it about". After this exchange, she said, "that's when they, the guy and Dale, sort of ran towards Coles way again". The substance of her evidence was that the two men moved together towards Coles. She said that she was "trying to run to try and keep up, saying that we've done nothing wrong", but when she got to the car park "I seen (sic) Dale on the ground unconscious with blood". By then, she said, there was a "fair lot of people there". She claimed to not have seen Mr Coleman with a baseball bat.
8. Alex Knight agreed that he met and spoke to Mr Coleman in the Shiploads car park. It was getting dark and he had his headlights on. He saw the appellant walking towards them but drove off when he was about 15 metres away. He said that the appellant was a person he "had seen ... around" and "knew of as Big Jim". He claimed to have, as he drove away from the end of the car park, heard yelling and seen the appellant through his rear view mirror pull something out of his pocket and wave it around, although he could not identify what it was. He drove to his unit in Haig Street, about thirty metres from the end of the car park. After going inside to speak to his partner, he returned to the boot of his car from where he removed his baseball bat, which he described as "like a children's baseball bat", about fifty or sixty centimetres long. That must have happened fairly quickly because when he then drove back through the Shiploads car park he saw Mr Coleman and the appellant, "over in Coles", moving between the cars. He left his car, heard the appellant and Mr Coleman yelling and moving backwards and forwards, all over the place, in the car park, and he "passed Dale the bat". By that time, he said, Ms Clark was standing "right next to" Mr Coleman, about a metre or so back. The only reasonable inference arising from that series of events is that Mr Coleman retrieved the bat from his car intending to return and give it to Mr Coleman. He claimed that when he returned to the car park, the appellant "had a weapon in his hand" and after he passed the bat to Mr Coleman he "was sort of swinging it to protect himself". Mr Knight said he then drove back to his house. He then walked or ran back to the car park where he saw the appellant yank the baseball bat out of Mr Coleman's hand and hit him over the head with the hammer. He said:

"Um, after he's grabbed it, he sort of - tried to swing it at Dale, a couple of times, and he's dropped it, and that's when he was hitting him in the head with the hammer."

1. According to Mr Knight, he saw the appellant hit Mr Coleman "about two or three times in the head" before "taking off". Mr Knight described the hammer as being a normal size ball point hammer. He noticed that Mr Coleman was bleeding a lot from the side of his head. He stayed for a minute or two before taking Mr Coleman's dog and groceries back to his unit. He did not see the baseball bat again until he found it later in the garden next to the cars in the car park, and he "got rid of it."
2. Mr Knight accepted, during an exchange with defence counsel and the trial judge, that when he returned to the Coles car park with the bat he saw the appellant between two cars which were facing out onto Joffre Street, and that the appellant was "moving backwards" with Mr Coleman coming toward him. It was then that he handed Mr Coleman the baseball bat. At that time he saw nothing in the appellant's hand. He agreed that he only saw the appellant with the hammer after Mr Coleman was given the bat and "taken a swing" with it. He then qualified his earlier answer by saying that "even before the bat", they "kept moving backwards and forwards towards each other." According to Mr Knight, Mr Coleman swung the bat at the appellant but did not strike him.
3. The jury was shown CCTV footage taken of the events in the Shiploads car park which cast considerable doubt on the evidence of Mr Coleman and Ms Clark. It contradicted their evidence in several important ways. The CCTV showed the initial exchange between the appellant and Mr Coleman, Ms Clark and their dog. This Court is in just as good a position as the jury to draw inferences from the CCTV. It seems to me to be abundantly clear that the confrontation was, for reasons not established by the evidence, initiated by Mr Coleman. Mr Coleman can be seen gesticulating towards the appellant. The appellant attempted to edge his way past with his back to the fence, but Mr Coleman made it difficult for him to do so. The appellant, as he approached, did not produce a hammer or wave anything around. He seemed to respond only when Mr Coleman persistently confronted him in what appears to be a very agitated way. Be that as it may, what the CCTV established beyond doubt was that the appellant withdrew from the confrontation and walked away from Mr Coleman through the Shiploads car park towards Coles. The appellant was already some distance away when Mr Coleman took the lead of the dog from Ms Clark and, with the dog, walked quickly after the appellant. As the appellant approached Joffre Street he paused again as Mr Coleman approached, but then kept walking away. Still Mr Coleman followed after him with the dog.
4. Kerryn Burton arrived in the supermarket car park just after 6.00 pm intending to pick her daughter up from work. She parked near Joffre Street across from the Shiploads entrance and saw three people, two men and a woman with a dog, coming across the road in her direction. One was bigger and more heavily set. The evidence establishes that man to have been the appellant. The other man she described as older and "a bit weathered looking". That was Mr Coleman. The two men were arguing. There was a lot of swearing, she said, and the two men came very close to her car. The larger man had a hammer in his hand. She said he was threatening the other man with it who was "goading him". She heard the men saying things like "I'll do this", "no you won't", "go on then" and "why don't you", back and forth to each other. Each man was moving forwards and then going back. As they continued arguing she left her car and went around the corner to call the police. She did not see either man strike any blow. As she was on the phone she saw the larger man run past her towards Invermay Road. When she returned she saw the other man lying injured in a pool of blood.
5. The final witness to give direct evidence of these events was Nicole Bakes. Her evidence was of crucial importance to the prosecution case, but before explaining it, reference should be made to the evidence of the injuries suffered by Mr Coleman. The evidence was relatively limited. Rodney Walker was a senior constable in forensic services, and took photographs of Mr Coleman at about 7.40 pm on 21 April 2023 at the hospital. It was before Mr Coleman had been seen by a doctor or cleaned up, and there was still a lot of blood on him. Nine photographs taken by Senior Constable Walker were in evidence. Mr Coleman complained of pain in his left arm. Senior Constable Walker took one photograph of the outside of that arm and one of the inside. The first showed blood on the forearm but did not depict an injury. The second depicted a reddened mark on the inside of the upper arm but no other injury and no breaking of the skin. There were photographs of circular red marks, consistent with the shape of the head of a hammer, on Mr Coleman's back. There were three such marks, one under the right shoulder blade, one in the mid back immediately to the left of the spine, and one on the upper right buttock. Although two of the marks were very red, it was not alleged by the prosecution that any amounted to wounds. Senior Constable Walker also photographed Mr Coleman's head. When describing the photographs he referred to an "injury" near the crown of Mr Coleman's head. There were three photographs of what appeared to be a laceration at the left rear of the crown of Mr Coleman's head. According to Senior Constable Walker's evidence, he checked all over Mr Coleman's head and there were "no other significant injuries", although his hair was quite stained with blood.
6. Senior Constable Walker's evidence, to the extent that it suggested that the injury near the crown of Mr Coleman's head was the only wound, was mistaken. The photographs he took depict one other laceration at the back of Mr Coleman's head and medical evidence established that there were at least three wounds on Mr Coleman's head. A report was prepared by a medical practitioner from the emergency department of the hospital dated 16 May 2023, accompanied by some agreed facts about the meaning of certain terms. The report, in part, read:

"Clinical examination showed open wounds to the right and left sides and back of the scalp. There were bruises with associated swelling and tenderness to the left shoulder, right hip and left lower back. Computerized tomography (CT) scans showed: minimally displaced fractures to 9th and 19th ribs, depressed fractures of the right and left parietal bones with corresponding open wounds, the right sided of which was also associated with minor subdural hemorrhage (sic) The report also acknowledges soft tissue swelling at the left shoulder and adjacent to the lower spine.

The clinical diagnosis was soft tissue contusion to the left upper arm and back, along with fractures of the 9th and 10th ribs, as well as two open depressed skull fractures with minor subdural hemorrhage (sic). Proposed treatment included urgent transfer to Hobart for neurosurgical intervention, along with medical prevention of infection and seizures using antibiotics and anticonvulsant medication. In accordance with patient wishes, he was instead treated as an outpatient with oral antibiotics and anticonvulsants, following a wound washout and closure in ED with sutures. Two of the wounds were left open in accordance with patient's wishes..."

1. The report disclosed that the only wounds suffered by Mr Coleman were on his head. To "wound" a person means to cause an injury whereby the skin is broken or cut and blood is caused to flow: Devine v R [1982] TASRp 16; (1982) 8 A Crim R 45; Tas R 155. The bruises and broken ribs described by Senior Constable Walker and in the medical report, did not amount to wounds. To me, it was not entirely clear from this report how many wounds were suffered by Mr Coleman. However, the reference to "open wounds to the right and left sides and back of the scalp" suggested that there were at least three, even though Senior Constable Walker saw only one such wound. The CT scan revealed that the two fractures of the parietal bones both had corresponding open wounds and, as has already been noted by reference to the report and the photographs, there was another wound to the back of the head. The presence of at least three wounds is also confirmed by the reference in the report to two wounds having been left open and another wound or wounds having been closed with sutures.
2. I return to the evidence of Mrs Bakes. She was a Coles employee. She had just finished her shift and, after purchasing a few items for herself, she made her way out to her car in the car park. As she approached she heard and saw two men near her car yelling at each other. She said that there was also a female there who was screaming or yelling at the same time. One of the men, who was a tall bald man, was close to the car park, waving a hammer around. The other man, who she described as having grey hair, a "weathered appearance" and shorter than the appellant, was nearby not waving anything but screaming at the bald man. Again, the evidence established that the taller bald man was the appellant and the weathered looking man was Mr Coleman. According to Mrs Bakes, after they stopped screaming at each other, the appellant walked away, turning into the car park as if he were going to Coles. Later in her cross-examination, Mrs Bakes repeated that after she first saw the appellant waving the hammer around, he turned and walked the other way, away from Mr Coleman. She then saw Mr Coleman run across the road towards the Shiploads car park and grab what she described as an "orange pole" from another man. She said that Mr Coleman ran back across the road, chased after the appellant, ran up behind him when his back was turned and, as Mrs Bakes described it:

"The grey haired man lifted the orange pole and went to hit him across the back I think and the he went to hit him again but the bald man turned around and blocked it with his arm".

1. When asked whether the first swing with the pole connected with anything she answered "I think it connected with his back. Yeah, either his back or arm but it did hit him, Yeah." In cross-examination she said that it appeared that the grey haired man struck the bald man with the pole "as hard as he could", and then, when the bald man turned to face him, he tried to hit the man again and "it looked like he was going towards his - like his face this time...". The second blow was blocked by the appellant with his arm. In summary, what she described as then happening was seeing the appellant strike Mr Coleman's head with the hammer. Mr Coleman fell to the ground after which the appellant continued to strike him with the hammer around his head six or seven times while Mr Colman tried to cover his face and head with his arms. The appellant then began to kick Mr Coleman.
2. In her evidence in chief Mrs Bakes explained that she was about 20 metres away as she observed these events. The relevant parts of her evidence should be set out in full. It continued as follows:

"Having blocked it with his arm what did you see after that?. ... .I saw the bald man retaliate by lifting the hammer that was still in his hand and hit him - hit him around the head and the grey-haired man then fell to the ground.

Okay?.....The bald man just kept swinging the hammer over and over I guess his head.

When - when the first blow hit the grey-haired fellow- ?.. ...Mm hm.

-did the grey-haired fellow - I assume he was standing at that stage was he?.. ...Yes.

Did he remain standing?.. ...No he fell to the ground, um, um, I think he - he fell onto his side."

"Um, from there, what, what did you notice?. ... .Um, I - he wasn't really fighting back, so, um, I think he had his -

Well, ... just tell us what you saw?.....Okay, um, he had his arms up, um, protecting himself.

Yeah, can you describe that for me?.....Ah, I think he was, like, trying to cover his face."

"Okay, what - what else, if anything, did you see?.....Um, I then saw ... the woman came across the road to the carpark and started screaming, ... telling the bald man to leave the grey haired man alone.

What was the bald man doing, prior to that?.....Um, so, um, after he had knocked the grey-haired man down to the ground -

Yep?..... he um, kept swinging the hammer onto the guy's head, the ...grey haired man's head.

Okay, can we be more accurate than several, are you able to remember how many?.... Um, it would have been between six and seven times.

Okay, all right, thank you. Um, did you see anything else?.....Ah after that, he started kicking the grey-haired man."

1. Mrs Bakes was asked to describe the kicks she saw:

"...did you see the contact between the foot and this person?.....Um, from where I was standing it appeared that he was kicking him ah - anywhere from the stomach to his face. He just was everywhere.

And again, I'm just trying to be careful. Did you actually see the contact between the feet and the body?.....Ah, yes, when he kicked the torso area, I saw that one. Um, yeah.

Okay. Did you hear anything said by anybody at this stage?.....Um, I remember the bald man saying things like , 'How do you like that?' That's probably the main one that's stuck out."

1. When cross-examined Mrs Bakes maintained that she had an unobstructed view. She agreed that it appeared to her that before Mr Coleman was struck he had struck the appellant in the back as hard as he could with the object he was holding. She agreed that, after the first blow was struck by Mr Coleman, the appellant turned around and was facing Mr Coleman when Mr Coleman attempted to strike him again. After the second strike, she said, "it took [the appellant] maybe not even two seconds to react." When it was suggested to her that Mr Coleman was not knocked to the ground but was "still on his feet, but ... crouched down a bit" she answered "I would have to disagree". Finally, it was put to her that the appellant did not strike the man while he was on the ground. She answered "I would respectfully disagree with you."

1. The assertion that a verdict is unsafe and unsatisfactory finds statutory expression in this State in the Criminal Code, s 402(1), which provides that the Court "shall allow the appeal if it is of opinion that the verdict of the jury should be set aside on the ground that it is unreasonable, or cannot be supported having regard to the evidence." The approach that an appellate court must take when addressing "the unreasonableness ground" was authoritatively stated in the joint reasons of Mason CJ, Deane, Dawson and Toohey JJ in M v The Queen [1994] HCA 63; 181 CLR 487 at 493. The court must ask itself:

"whether it thinks that upon the whole of the evidence it was open to the jury to be satisfied beyond reasonable doubt that the accused was guilty".

1. As explained in M, and restated in MFA v The Queen [2002] HCA 53, 213 CLR 606, and in Pell v The Queen [2020] HCA 12, 268 CLR 123 at [43], the question does not depend on whether, as a matter of law, there is evidence to support the verdict, but rather whether the evidence required the jury, acting rationally, to have entertained a doubt as to the appellant's guilt. An appellate court must conduct an independent review of the evidence, but making full allowance for advantages enjoyed by the jury, including from having seen and heard the witnesses. Because of the central role of the jury in the administration of criminal justice, this Court is not to substitute trial by an appeal court for trial by jury: R v Baden-Clay [2016] HCA 35, 258 CLR 308 at [65]- [66]. The court must proceed on the basis that issues of credibility and reliability of oral testimony are matters primarily for the jury. The function of this Court is then to examine the record to see whether, notwithstanding that assessment, either by reason of other evidence, inconsistencies, discrepancies, or other inadequacy, the court is satisfied that the jury, acting rationally, ought nonetheless to have entertained a reasonable doubt as to proof of guilt: Pell at 145 [39].
2. I have no hesitation in concluding that no jury, acting rationally, could have been satisfied beyond reasonable doubt that the appellant was not justified in using force against Mr Coleman in defence of himself. The Criminal Code, s 46, relevantly provides that a person is justified in using, in the defence of himself, such force as, in the circumstances as he believes them to be, it is reasonable to use. In Walsh v R [1993] TASSC 91, Crawford J (as he then was), with whom Cox J and Zeeman J agreed, explained at [16]:

"Self defence under s46 involves a subjective and an objective test. The subjective test can be said to involve two questions, whether the accused was acting in defence of himself when he used the force in question, and what were the circumstances as he believed them to be which might be taken into account for the purposes of the objective test. The objective test is whether the force used was, in the circumstances as the accused believed them to be, reasonable to use. Once the evidence raises self defence as an issue the jury should be directed that they must acquit unless satisfied beyond reasonable doubt that the accused was not acting with justification under s46."

1. The court must first consider whether an accused person, in the circumstances he or she believed them to be, believed that some force was necessary. If so, the further question, to be determined objectively, is whether the force used was, in the circumstances as the defendant believed them to be, reasonable to use. As to the second question, in the oft cited passage from Palmer v The Queen [1970] UKPC 2; [1971] AC 814 , Lord Morris speaking for the Judicial Committee said at 832:

"If there has been attack so that defence is reasonably necessary it will be recognised that a person defending himself cannot weigh to a nicety the exact measure of his necessary defensive action. If a jury thought that in a moment of unexpected anguish a person attacked had only done what he honestly and instinctively thought was necessary that would be most potent evidence that only reasonable defensive action had been taken."

1. In Connaire v Austin [1988] TASSC 42, Green CJ and Neasey J both referred to that passage with apparent approval. Green CJ added:

"The determination of [the second] question involves the making of a judgment which takes into account all the circumstances of the situation in which the appellant found himself. In making that judgment it must be recognised that the circumstances which entitle a person to act in self defence are not conducive to the making of a cool considered assessment of the amount of force which is appropriate particularly when there has been provocation and that therefore it is unrealistic to weigh such conduct on 'golden scales' per Richards J in Salor v Klingbiel [1945] SAStRp 43; [1945] SASR 171 at 172."

1. The evidence overwhelmingly established that Mr Coleman was the initial aggressor. There were many reasons to question the credibility and reliability of the evidence of Mr Coleman and Ms Clarke, and for that matter Mr Knight. The account given by those witnesses was not only contradicted by the CCTV but was also contrary to the evidence of Kerryn Burton and Nicole Bakes, the only two independent eye witnesses. The jury, acting reasonably, could not have failed to find that Mr Coleman initiated the confrontation with the appellant in the Shiploads car park, and then persistently followed the appellant who, until the moment he was struck by Mr Coleman in the back with the bat, had repeatedly walked away from him. The appellant was already some distance away when Mr Coleman first went after him. Mr Coleman deliberately took the dog. The only reasonable inference to be drawn from that circumstance is that he intended to induce fear or apprehension in the appellant, or to intimidate him. The appellant paused and turned at the end of the Shiploads car park. The only rational explanation for that movement was that it was an attempt to dissuade Mr Coleman from following him because then, again, the appellant kept walking away. Still Mr Coleman followed, despite knowing that the appellant was in possession of a hammer. If Mrs Bakes' evidence was to be accepted, the appellant was again trying to walk away immediately before Mr Coleman struck him from behind having armed himself with a baseball bat. Mr Coleman's evidence that he only followed the appellant to "find out what his problem was" was highly implausible. Mr Coleman baited and taunted the appellant and then put himself in possession of a weapon, the baseball bat given to him by Mr Knight, before deliberately and aggressively approaching the appellant and swinging the bat at him when the appellant's back was turned. Although the evidence of Mr Coleman and Mr Knight was that Mr Coleman did not strike the appellant with the bat, the unchallenged evidence of Mrs Bakes was that Mr Coleman hit the appellant with the bat from behind as hard as he could and then, when the appellant turned around, tried to strike him again, this time towards his face. In those circumstances, no reasonable jury could have rejected the proposition that the appellant had a genuine belief that some force was necessary to defend himself. Moreover, I do not think that a jury, acting rationally, could have been satisfied beyond reasonable doubt that the force which the appellant immediately applied to Mr Coleman was excessive or unreasonable, even though it involved use of a hammer. The appellant was faced with the imminent prospect of being struck by an aggressive man with a weapon. A hard blow with the baseball bat to his head, could have caused very serious injury or even death. He had little time to react and no time to calmly weigh the amount of force which was appropriate.
2. However, the evidence revealed a significant change in circumstances. Whether the jury should have found the appellant guilty depended very much on its assessment of the evidence of Mrs Bakes, considered with the evidence of the injuries suffered by Mr Coleman, about what happened after the appellant struck the first blow with the hammer. The jury was entitled to accept Mrs Bakes' evidence that, after Mr Coleman was first struck, he fell to the ground. According to Mrs Bakes, Mr Coleman was then no longer fighting back and was covering his head with his arms, but the appellant "kept swinging the hammer onto the ...grey haired man's head", several times, which she explained meant "between six and seven times". He then began to kick Mr Coleman. It was for the jury to assess the credibility of Mrs Bakes' evidence. There was nothing which arose either by reason of other evidence, or inconsistencies, discrepancies, or other inadequacy which should have raised a reasonable doubt in the minds of the jury about the truthfulness and accuracy of her account.
3. It is to be recalled that the appellant was found guilty of the alternative crime of wounding. There was no evidence from which the jury could have been satisfied that any of the kicks caused Mr Coleman to suffer a wound. CCTV captured of the appellant walking away from the scene showed that he was wearing socks and thongs. With that footwear the appellant may have broken Mr Coleman's ribs, but not wounded him. The blows with the hammer were a different matter. Mr Coleman suffered no wounds on his torso, but it was open to the jury to conclude that he suffered at least three wounds on his head. It was for the prosecution to exclude, as a reasonable possibility, that all of the wounds caused by the appellant were justified. However, the jury need only have been satisfied beyond reasonable doubt that one of the wounds was caused by a blow which was not justified by self defence, to find the accused guilty of the crime of which he was convicted. The evidence did not require the jury to have a reasonable doubt about that. Counsel for the appellant suggested that the wound to the back of Mr Coleman's head could have been caused when he fell to the ground following the infliction of the lawful blows, but, on all the evidence, the jury was correct to exclude that scenario as a reasonable possibility. The evidence strongly suggested that at least one of the wounds on Mr Coleman's head was inflicted while he lay on the ground. The jury was entitled to be satisfied beyond reasonable doubt that, by that time, he presented no continuing threat and that the appellant either no longer believed that force was necessary to defend himself, or alternatively that the force he used was more than was reasonable in the circumstances as he believed them to be. For those reasons appeal against conviction failed. I would grant leave but dismiss the appeal.

The trial judge's directions as to the crime of wounding

1. In the course of the preparation for this appeal, it became apparent to this Court that the directions given by the trial judge to the jury as to the elements of the crime of wounding were, with respect to his Honour, incorrect. The directions were given in the form of both a written memorandum and oral directions.
2. For the charge on the indictment of committing an unlawful act intended to cause bodily harm contrary to the Code, s 170, the jury was correctly directed that before it could find the appellant guilty it must have been satisfied beyond reasonable doubt that the appellant, by a voluntary and intentional act, unlawfully caused actual bodily injury, and, at the time he struck or kicked Mr Coleman, he intended to maim, disfigure, disable or cause grievous bodily harm. The jury was also correctly directed that to disable meant to "deprive a person of physical or mental ability by causing a serious or permanent disabling injury" and grievous bodily harm meant "any bodily injury of such a nature as to endanger or be likely to endanger life, or to cause or be likely to cause serious injury to health".
3. However, in the course of the trial, the issue of a possible alternative verdict was raised by the trial judge. The Code, by s 332 and s 334A, relevantly provided that upon an indictment for committing an unlawful act intended to cause bodily harm, the accused person may, if found not guilty of that crime, be convicted of wounding or causing grievous bodily harm, or assault. The following exchange occurred between the trial judge and counsel:

"HIS HONOUR: Mr Sherriff , s334A provides an alternative of wounding or causing grievous bodily harm or assault and s172 is the offence of wounding of causing grievous bodily harm. So that's the obvious alternative.

HIS HONOUR: Which alternative are you inviting me to leave - wounding or causing grievous bodily harm?

MR SHERRIFF: Certainly wounding and I don't we believe we can go to an assault unless the jury infer that the only evidence of an assault was the kicking for example, but I - it would be unlikely they'd get to that stage.

HIS HONOUR: Certainly the wounding is the obvious alternative.

MR TUCKER: No, I couldn't argue with that as an alternative your Honour."

1. Leaving aside the issue of whether both wounding and grievous bodily harm could have been left as alternatives, the submission made by counsel for the prosecution in the passage just quoted, dismissed the possibility that the jury could find the appellant not guilty of wounding but guilty of the further alternative of assault in respect to the wounds to Mr Coleman's head. No mention was made of a mental element for the crime of wounding and the possibility of an alternative verdict if the mental element was not established.
2. Perhaps it arose from the manner in which the trial was conducted, and the predominance which the parties attributed to the issue of self defence, but the directions given by the trial judge in the summing up when addressing the jury, both orally and in the form of the memorandum, similarly omitted mention of a mental element for the alternative crime of wounding. His Honour directed the jury that to find the appellant guilty of wounding the prosecution need only prove that the appellant, by a voluntary and intentional act, unlawfully struck Mr Coleman with a hammer, and that the application of force caused a wound. The direction, or absence of direction, was amplified when his Honour directed the jury:

"So, they are the elements that the Crown must prove to prove the crime of wounding which will arise if you find the accused not guilty of the first charge. And you will appreciate that in those elements, there's no question of intention to cause harm. There's a significant difference between the first charge, the major charge and the alternative. The alternative does not involve an intention to cause harm. They are objective questions."

1. No complaint was made by either counsel to the trial judge about the terms of his Honour's direction. No submission was made by counsel in their respective closing addresses about the need to prove a mental element for wounding. However, with great respect to the learned primary judge, the direction the jury was given was incorrect. As was explained by this Court in Read v Tasmania [2016] TASCCA 8, guilt of the charge of wounding requires proof of "actual intent to wound or subjective recklessness": Vallance v The Queen [1961] HCA 42; (1961) 108 CLR 56; R v Bennett [1990] TASRp 6; [1990] Tas R 72, per Neasey J at 81, with whom Underwood and Crawford JJ (as they then were) agreed at 85; Hurst v Tasmania [2011] TASCCA 12 at [11]- [14]. Subjective recklessness is based on what the accused in fact foresaw, not objective recklessness, which is based on what the accused ought to have foreseen. As explained by Zeeman J in Standish v R [1991] TASSC 83 at [22], 61 A Crim R 364 at 372:

"The expression 'subjective recklessness' is merely a shorthand way of expressing the requirement that in order to convict the appellant, the jury needed to be satisfied that at the time the appellant performed the relevant act he foresaw the likelihood that a wounding might be caused."

1. In the course of the hearing of this appeal these matters were expressly raised with counsel for the appellant. The issue does not arise from the sole ground of appeal against the appellant's conviction. Notwithstanding an invitation to consider doing so, no application was made to amend the grounds of appeal to assert error by the misdirection which was identified. It cannot be known why no application was made, and no criticism is made of counsel for not making it. The result is, however that there is no ground of appeal which asserts the error of law identified or any miscarriage of justice arising from it. Counsel for the respondent made some submissions about the issue, but at short notice and without the opportunity for reflection. The matter was not fully argued and the Court did not have the assistance of considered submissions.
2. However, to the extent that this Court has a duty to, for itself, prevent a miscarriage of justice, I would make the following observations. As was stated by the majority in Kalbasi v Western Australia [2018] HCA 7; (264) CLR 62 at [57], a misdirection upon a matter of law is always contrary to law and is always a departure from the requirements of a fair trial according to law. In the context of this case, however, it might be argued that the error was not fundamental and could not realistically have affected the reasoning of the jury to a verdict of guilty on the wounding charge. In my view it necessarily followed from the verdict of acquittal on the principal charge that the jury was not satisfied beyond reasonable doubt that the appellant struck Mr Coleman with an intention to cause the type of serious harm contemplated by s 170. There could have been no doubt that the appellant's acts were voluntary and intentional and that Mr Coleman suffered actual bodily harm. Had the acquittal been based on self defence then the appellant would also have been acquitted of the alternative charge of wounding. I think it also follows that the jury experienced a reasonable doubt that the appellant intended to wound Mr Coleman. Were it to have been otherwise, such was the nature of the wound which was unlawfully caused, the jury would likely have found him guilty of the principal charge.
3. However, it is difficult to accept that any jury could not have been satisfied beyond reasonable doubt that the accused realised that, having struck Mr Coleman to the ground with a hammer blow to the head, struck him again with the hammer to the head without a realisation that by doing so he may well have caused a wound. Alternatively, the nature of the direction may have left open the application of the proviso, in this State contained in the Code, s 402(2). The question in that case is whether there has been a substantial miscarriage of justice and the resolution of that question will depend on the particular misdirection and the context in which it occurred: Kalbasi at [57], Huxley v R [2023] HCA 40; 416 ALR 359 at [44], Hofer v R [2021] HCA 36, 274 CLR 351 at [41], Brawn v R [2025] HCA 20 at [11]. I am satisfied that the evidence properly admitted at trial proved beyond reasonable doubt the accused's guilt of wounding.
4. One other matter relevant to whether a miscarriage occurred concerns a possible further alternative verdict. Had the jury not been satisfied beyond reasonable doubt of subjective recklessness, it was, for reasons already stated, inevitable that it would have found the appellant guilty of assault. Contrary to the submission made by counsel for the prosecution to the trial judge, had the appellant been found guilty of assault he would have been criminally responsible for all of the force he unlawfully applied to Mr Coleman after the infliction of the first justified blow. That included not only the unlawful blow which caused the wound to his head but the blows with the hammer and kicks to Mr Coleman's torso which caused the other injuries. The level of criminal culpability for an assault of that nature was high. The same situation would apply if a verdict of guilty of assault were substituted in accordance with this Court's power to do so in the Code, s 403(2).
5. It should also be noted that the appellant was convicted and sentenced on 21 June 2024. He had already been in custody since 26 June 2023, almost a year earlier. He did not appeal within time. On 10 July 2024 he applied for an extension of time to appeal which was granted on 22 August 2024. The appellant became eligible for parole on 26 September 2024 but did not apply for parole. The appeal was not then ready for hearing until listed by the Court on 28 May 2025, by which time the appellant had served almost two years of the term. Amendment of the grounds of appeal would very likely have resulted in further delay.

1. The sole ground of the challenge to the sentence was that it was manifestly excessive. When sentenced the appellant was aged 45. He was a single man in receipt of a disability pension. His criminal record was a significant matter in sentencing. He had a long record of offending for a wide range of criminal conduct, including convictions for wounding, two for assault police and nine for assaults of various levels of seriousness. He had served many terms of imprisonment over the years. There was a history of non-compliance with community based orders. On 8 June 2022 the appellant was sentenced to a total term of imprisonment of two years and six months from 8 June 2020 (exactly two years earlier) with eligibility to apply for parole after having served one year and eight months of that term. That sentence was imposed for two serious assaults. The first was committed on 4 September 2019 when the appellant was in prison. He became angry and repeatedly punched, kicked and stomped on a fellow prisoner who was confined to a wheelchair. The second assault was committed against a female family friend on 24 February 2021. During an argument the appellant grabbed her around the throat, restricting her breathing, and bit her on the nose. The primary judge was informed that the appellant did not apply for parole and served all of the sentence. The crime which is the subject of this appeal must then have been committed only months after his release.
2. The primary judge was given a pre-sentence report prepared by a Community Corrections officer. It reported that the appellant had a history of problematic illicit substance abuse and significant "anger management concerns". It was reported also that the appellant "took minimal responsibility for his actions" and, although he had expressed awareness of his difficulty with anger management, he did not wish to address this through counselling. The primary judge was also informed by the report, and by the appellant's counsel, that the appellant had, about two years earlier, undergone surgery and radiotherapy for removal of a recurrent brain tumour, and had a history of low grade glioma and frequent seizures. It was submitted that the treatment which would be available to him for these conditions in prison was "less than optimal". There was no submission that the appellant suffered from any mental impairment which was relevant to sentence.
3. Although the first blow struck by the appellant was found by the primary judge to have been justified, his Honour also found that the subsequent blows were affected by anger and a wish to harm the victim. Consistently with the verdict of acquittal for the crime of committing an unlawful act intending to cause bodily harm, the appellant was not to be sentenced for intending to cause serious or disabling injury, but the unlawful blows were struck to the head with a weapon which may well have caused such injury. The sentencing judge doubted the explanation offered by the appellant for his possession of the hammer, that he needed it to help open a difficult door at his residence. However, whatever the reason for carrying the hammer, he demonstrated a preparedness to produce it in response to situations of potential violence and ultimately used it.
4. The appellant had demonstrated little insight into his violent conduct and the primary judge justifiably found that the appellant's prospects of successful rehabilitation in the foreseeable future were "dismal". The appellant was not entitled to the mitigation which would have arisen from a plea of guilty, although he was acquitted of the principal charge. His Honour's sentencing remarks continued:

"Personal deterrence, that is endeavouring to deter you from offending again, is a significant factor in sentencing. Previous sentences have not deterred you, but it is to be hoped that a further period of imprisonment will assist in achieving a degree of personal deterrence.

The primary function of this Court is to protect the public. In your case, protection of the public looms large, as does denunciation of your conduct and general deterrence.

Noting the importance of those matters, I also have regard to mitigating factors attending the commission of your crime. You were not looking for trouble. It was the victim who commenced the confrontation and who chased after you. He was looking for trouble and when he was unsuccessful in goading you, the victim attacked you with a baseball bat. You are to be sentenced for excessive force in self defence, that is, the additional blows you struck after the danger had passed.

It is apparent to me that you are a risk to the public, but you also need help to manage your ongoing physical and mental health concerns. Substance abuse is also an issue. As best I can assess the situation, however, it appears you are likely to resist attempts to assist you."

1. I am in general agreement with Honour's remarks. The submission of counsel for the respondent that the appellant's record pointed to continuing problems with anger, self-control and disproportionate reactions should be accepted, as should the submission, referring to Read v Tasmania [2016] TASCCA 8 at [16], that the principal sentencing considerations for the crime of wounding are "deterrence of the individual offender, deterrence of others who might be minded to commit similar crimes, retribution or denunciation of criminal conduct, and the safety and security of the public....". See also Director of Public Prosecutions v Cooper [2017] TASCCA 8 at [24]. In the vast majority of cases the crime results in the imposition of a custodial sentence: Director of Public Prosecutions v Chatters [2011] TASCCA 8, 21 Tas R 26 at 46 [66].
2. As counsel for the respondent also correctly submitted, past sentences can stand as a yardstick by which a sentencing court can achieve consistency in sentencing and application of relevant sentencing principles: R v Kilic [2016] HCA 48, 91 ALJR 131 at [22]; Hili v The Queen [2010] HCA 45, 242 CLR 520 at [53]- [54]. My examination of past sentences, combined with the data extracted by counsel for the respondent from the Tasmanian Sentencing Advisory Council website, suggests that, for a single count of wounding, this was a heavy sentence when compared with the median. The fact that this was a heavy sentence does not necessarily disclose error. It is not to the point that an appeal court may have exercised the sentencing discretion differently. It must be demonstrated that the sentence is so manifestly wrong that it could only be the result of undefinable error in the exercise of judicial discretion: Bresnehan v R (1992) Tas R 234 at 242.
3. Nevertheless, I concluded that a head sentence of imprisonment for two years and three months was, in all the circumstances, unjust and unreasonable and that the sentence was so harsh as to reveal error. The crime of wounding covers a wide range of criminal conduct. The view that I took about the appellant's challenge to the sentence was heavily influenced by the particular circumstances of this crime and the findings of fact made by the learned primary judge. Subject to consistency with the verdict, it was for the learned primary judge to determine the factual basis for sentence. His Honour found that the first blow struck by the appellant with the hammer was justified by self defence, but the remaining blows were not. His Honour's comments when sentencing the appellant included the following passages:

"You were faced with a dangerous and aggressive man who had struck you with an offensive weapon and, with the second blow, had aimed at your head. From your perspective and from the perspective of common sense, you were entitled to defend yourself. Notwithstanding the dangerous nature of the hammer, I am satisfied the Crown failed to prove that your first blow with the hammer amounted to excessive self defence. The Crown failed to prove that the first blow with the hammer was unlawful.

After the first blow, the victim fell to the ground and was lying on the ground on his side. He was not attempting to retaliate when you struck a further number of blows with the hammer. The jury was satisfied that at least some of those blows were unlawful because they amounted to excessive self defence. As you struck the further blows, the victim put his hands up to his face in an endeavour to protect himself. You may well have had in mind that you needed to put the victim out of action and prevent him from coming at you again. However, you also had anger in your mind. At that point I am satisfied you were not thinking of defending yourself, rather you were angry and you wanted to hurt the victim. By an objective standard, your conduct in striking the further blows was not reasonable and amounted to excessive self defence. Hence your conduct in striking the further blows was unlawful and one or more of those blows wounded the victim. This is the way in which the jury found you guilty of the alternative offence of wounding."

1. His Honour made reference to all of the injuries suffered by Mr Coleman but found that the two open depressed skull fractures described in the medical report of 16 May 2023 were caused by the first blow with the hammer which was struck in self defence. His Honour said:

"The victim suffered wounds to the right and left sides and back of his scalp, together with a number of areas of bruising. There were minimal displaced fractures to the ninth and tenth ribs, depressed fractures of the right and left parietal bones, corresponding with open wounds, and on the right side there was a minor subdural haemorrhage.

A medical report of 16 May 2023 describes two open depressed skull fractures. I am satisfied that those skull fractures were caused by your first blow with the hammer which was a blow struck in self-defence."

1. I confess to experiencing some hesitation about a finding that two skull fractures, each with corresponding wounds, could have been caused by a single blow, but there was no challenge by either party to his Honour's finding. The injuries which his Honour found were caused by that first blow did not, therefore, result from criminal conduct and were not relevant to sentence other than to provide context for the subsequent unlawful application of force.
2. It followed also, his Honour having found three wounds, two of which were not caused unlawfully, that the sentence for wounding imposed by the primary judge could only have been for the single wound which Mr Coleman suffered to the back of his scalp. That wound was not associated with either of the skull fractures. Nor, on the basis of a conviction for a single count of wounding, was the appellant to be punished for other injuries suffered by Mr Coleman, the bruising and broken ribs. For reasons already explained, the sentence imposed for wounding was to be considered on the basis that the appellant was subjectively reckless, not that he intended to wound.
3. Combined with those factors, Mr Coleman's conduct during the lead up to the violence was highly provocative. He initiated the original confrontation and then repeatedly followed the appellant despite the appellant's attempt to move away from him. He then armed himself and struck the appellant with a weapon from behind. Although the blows struck after the initial lawful application of force were not justified, the appellant was still likely in a heightened emotional state. The primary judge found that the blows were struck with anger, but the appellant's anger was readily explained. That did not, of course, excuse his criminal conduct, but was relevant to the level of his moral culpability.
4. The impact of the crime on the victim was also relevant to sentence. It is important to remember that the appellant was not to be sentenced for the most serious of Mr Coleman's injuries, the skull fractures and the corresponding head wounds, or for the injuries to his torso which did not amount to wounds. The injuries to the torso were also relevant to context, but the sentence was not to be increased on account of them on a conviction for wounding. In any event, there was little in the material before the primary judge which indicated that the unlawfully inflicted injuries had anything other than a transient impact. That single wound was likely stitched. The medical report about Mr Coleman indicated that urgent transfer to Hobart for neurosurgical intervention was recommended, but the injuries which gave rise to that recommendation were caused by a blow the primary judge found to have been justified. In any event, Mr Coleman asked to be treated as an outpatient. The sentencing judge's rejection of Mr Coleman's evidence, unless corroborated by other accepted evidence, extended to his victim impact statement. In that statement Mr Coleman complained of some ongoing leg and back pain, and some ongoing psychological effects, but there was no suggestion of any ongoing neurological impact despite the apparent seriousness of the initial head injury.
5. In all of those circumstances I concluded that a head sentence of imprisonment for two years and three months was manifestly excessive, that the sentence should be quashed and the appellant re-sentenced by this Court.
6. All of the matters relevant to sentence which have been canvassed in these reasons, inform the sentence this Court should pass in substitution for the sentence imposed by the primary judge. In my view, the appropriate sentence was a term of imprisonment of 18 months. A term of that length was a proper reflection of the level of the appellant's criminal responsibility and moral culpability, while also serving the need for punishment, general and specific deterrence, denunciation and protection of the public. The appellant's propensity for disproportionate violence, his ongoing lack of insight and failure to take responsibility for his actions pointed to a particular need for personal deterrence and protection of the public, and so a longer than usual non-parole period of 15 months was also appropriate.

1. Leave to appeal against conviction should be granted but the appeal dismissed. For the reasons given I joined in an order allowing the appeal against sentence, quashing the sentence imposed by the learned trial judge on 24 June 2024 and substituting a term of imprisonment for 18 months from 26 June 2023 with the appellant not being eligible for parole until having served 15 months of that term.

1. I have read the Reasons for Judgment of Pearce J with which I agree. They represent the reasons why I joined in the orders dismissing the appeal against conviction and an order quashing the sentence imposed by the learned trial judge and substituting a sentence of 18 months' imprisonment from 26 June 2023 with a non-parole period of 15 months.

1. I agree with the reasons for judgment of Pearce J. They represent the reasons why I joined in making the orders of the Court on 28 May 2025.