Criminal law and procedure - Appeal against conviction - Liberato direction - Self-defence - Application of the first limb of s 248 of the Criminal Code - Relevance of state of mind

Latham v The Queen [2000] WASCA 57

Miles v The Queen [2000] WASCA 364

R v Middleton [2000] WASCA 200; (2000) 114 A Crim R 141

Zecevic v The Director of Public Prosecutions [1987] HCA 26; (1987) 162 CLR 645

1 STEYTLER J: I have had the advantage of reading the judgment of Wheeler J. I agree with it and with her Honour's conclusion that leave to appeal should be granted but that the appeal should be dismissed. There is nothing I wish to add.

2 This is an application for leave to appeal against conviction. The appellant was tried and convicted by a jury in the District Court of Western Australia on 3 and 4 April 2003 on an indictment alleging that he unlawfully assaulted Michael Peter Nicolaou thereby causing him bodily harm. It was not in dispute at the trial that the complainant was assaulted by the appellant.

3 Nor was it in dispute that the complainant's injuries constituted bodily harm. The medical evidence was to the effect that the three main injuries to the complainant were a swollen deformed nose on the left side of his face, infraorbital bilateral black eyes, and a laceration to the bridge of the nose cutting through all layers of the skin. The nose had been broken.

4 The direct evidence of the assault was that of the complainant and the appellant respectively. The view of events most favourable to the appellant was that arising from his own evidence. It was broadly in the following terms. He operated a shop in the area of Barrack Street and Murray Street. During the month leading up to the incident the subject of the indictment, "trouble" had been caused by young people approaching his shop. Nothing had been damaged, but people had banged on his windows, and on occasion Nicolaou had been a member of that group. In cross-examination, he clarified that there had been four prior incidents during one of which Nicolaou was present.

5 On the day in question, he said that there had been "several" boys pounding severely on the glass of his window. It was very noisy. He described himself as being "white with fear". He said he had never been as frightened in his life before. He said three of the boys "barged their way" through the door. At that stage he said there were possibly eight or ten outside (including the three who had just entered).

6 He yelled at them to go out. Two of the bigger boys left, but the complainant asked in an abusive fashion why he had been asked to leave. He then left.

7 One or possibly more members of the group were banging on his front door when the complainant re-entered the shop. The complainant "took a swing" at the appellant. That blow hit him on the shoulder and "glanced off" the top of his head. At the same time, he punched the complainant. The complainant went backwards out of the shop and the appellant shut the door. At this point he was in a state of "total panic". The appellant agreed that the complainant was not a particularly big man.

8 The complainant's evidence was to the effect that he had been in the city with friends and had entered the appellant's shop with a drink in his hand, when the appellant told him that no drinks were allowed in the shop. He left and finished the drink. He then went to re-enter the shop and the appellant asked him to leave. When he asked why he was being asked to leave, the appellant punched him to the face. He denied being aware of any trouble in the past between his friends and the appellant and denied that he or his friends had been banging on the shop windows.

9 A friend of his gave evidence to similar effect and gave evidence of seeing the appellant both punch the complainant, and knee him in the face. A more independent witness, a part-time service manager in the arcade, said that he had heard a noise which could have been banging on glass before the incident. He arrived shortly after the incident to see a group of people standing around the door of the shop abusing the appellant. The appellant was holding the shop doorway open with his foot, saying to the group things which included that they should come back in 10 minutes when his friends would arrive and "sort them out". He said that the appellant had told him that the complainant had tripped and hit a door handle.

10 There are effectively three grounds of appeal. The first relates to what is said to have been a failure to give a direction in the terms suggested by Brennan J in Liberato v The Queen [1985] HCA 66; (1985) 159 CLR 507 at 515. Ground 2 does no more than suggest that as a result of the absence of a Liberato direction the appellant lost the chance of an acquittal. Ground 3 asserts that her Honour erred in directing the jury on the question of self-defence "by instructing the jury that the belief of the accused as to the level of force necessary for his defence was irrelevant". The final ground is to the effect that her Honour erred in directing the jury in terms of the first limb of s 248 of the Criminal Code instead of the second limb.

11 The answer to this ground is that her Honour did give a direction which dealt with the matters referred to by Brennan J in Liberato. As well as giving the usual direction as to the burden and onus of proof, she said that in applying those principles to the evidence of the accused:

" ... it may be that you believe all of his evidence. In that case you clearly would have to consider the issues of provocation and defence and the removal of a disorderly person, and it may well be, believing all his evidence, that you would then acquit him. Even if you were not to believe all his evidence you cannot find an issue against the accused contrary to his evidence if his evidence has given rise to a reasonable doubt on that issue.

Even if you were not to accept the accused's evidence at all, even if you rejected all of it and said, 'We don't believe it', it doesn't mean that you automatically convict the accused. If you reject his evidence and say 'No. We don't believe it. We're not going to rely upon it', you still need to look at the remainder of the evidence in the trial ... and decide whether on the basis of that evidence you were satisfied beyond reasonable doubt of the guilt of the accused.

Merely rejecting the accused's evidence isn't sufficient to lead automatically to a verdict of conviction."

12 That direction clearly deals with the way in which the jury should approach the evidence of the accused, and the course which the jury should take if they were left in doubt as to its truthfulness and as to the course which the jury should take if they rejected it entirely. As I understand this ground, it was submitted that, because there were effectively only two alternative "scenarios" - that put forward by the appellant and that put forward by the complainant - her Honour should have repeated this direction at a number of stages during which she explained to the jury what the competing evidence had been. I do not accept that submission. Her Honour's direction as to the onus and standard of proof and the way in which the jury was to approach the accused's evidence was very clearly and fully given at the outset. Her discussion of the evidence did not, in my view, in any way detract from or obscure that direction. Grounds 1 and 2 cannot be made out.

"When a person is unlawfully assaulted, and does not provoke the assault, it is lawful for him to use such force to the assailant as is reasonably necessary to make effectual defence against the assault ...

If the nature of the assault is such as to cause reasonable apprehension of death or grievous bodily harm, and the person using force by way of defence believes, on reasonable grounds, that he cannot otherwise preserve the person defended from death or grievous bodily harm, it is lawful for him to use any such force to the assailant as is necessary for defence ..."

14 It is now contended that her Honour should have directed the jury in terms of the second paragraph of s 248, as well as in terms of the first paragraph. The problem with this proposition is that there was no evidence which could have provided the foundation for the application of that paragraph.

15 There was, of course, evidence from the appellant to the effect that he was in a state of extreme fear during the incident. His evidence as to that related particularly, it seems, to the time preceding his assault upon the complainant, when a number of people were banging on the glass of the window and, perhaps, to the time when three members of that group entered his shop. He did not specifically state that he had an apprehension of death or grievous bodily harm, nor did he suggest that the extreme fear which he felt was an emotion which he experienced at the time of the assault on the complainant. That would not necessarily determine the issue, since, if there was some evidence fit for the jury's consideration which could have led them to have a doubt as to whether the appellant had a reasonable apprehension of death or grievous bodily harm, the trial Judge should leave that issue to the jury even if the appellant did not expressly say so: Van Den Hoek v The Queen [1986] HCA 76; (1986) 161 CLR 158 at 161.

16 However, there was in this case nothing capable of giving rise to a conclusion that a person in the appellant's position could have had a reasonable apprehension of death or grievous bodily harm. Taking his evidence at its highest, he was at the relevant time in his shop with one other person, since the other two members of the group of three who had entered had by then left. That person, the smallest member of the group, "took a swing" at him to punch him. Whatever the appellant's fears might have been about the way in which the situation could ultimately have developed, the totality of the threat which he faced at the relevant time could not on any view have given rise to a reasonable apprehension of death or grievous bodily harm.

17 Further, it should be noted that when her Honour asked the appellant's counsel at trial which of the relevant paragraphs of s 248 was in issue, he confirmed, no doubt on instructions, that "there is no apprehension of death or grievous bodily harm". I should add that, in my view, defence counsel in following the course of clearly electing the paragraph of s 248 which might be applicable to the appellant's case, was appropriately ensuring that the difficulties associated with multiple alternative defences, some of which are tenuous or inapplicable, did not obscure the more arguably meritorious alternatives open to the accused person: see R v Bojovic [1999] QCA 206; (1999) 113 A Crim R 1, R v Craig [1998] QCA 277.

18 Turning then to the first paragraph of s 248, the passage in her Honour's direction to the jury which is the subject of ground 3 is as follows:

"You are the judges of the facts as to what happened and as to whether the force used by the accused was reasonable in self-defence. The test here is not what the accused thought was reasonably necessary for his defence but what you think was reasonably necessary having regard to all the circumstances as you find them to be. If you have a reasonable doubt as to whether the Crown has proved that the force used by the accused was not reasonably necessary then you would acquit the accused if you have a reasonable doubt about that.

On the other hand if you're satisfied beyond reasonable doubt that the force used was not reasonably necessary for his effective defence there's one further matter you must consider before you can dispose of this matter of self-defence, and this is because a person who is defending himself cannot be expected to weigh up exactly what extent of defensive action is necessary. Indeed in the moment he may be mistaken as to the extent of the threat against him, so it may seem to him in all honesty and reasonably that the threat against him was much greater than in fact you find it was." (emphasis supplied)

19 Her Honour then briefly explained the law in relation to mistake, and observed that "... [w]hat is reasonable by way of self-defence depends on the nature of the attack that the accused honestly and reasonably believed he was facing".

20 In redirecting the jury, in answer to a question, her Honour used very similar terms.

21 In oral argument, it was submitted, first, that on the authority of R v Stanik [2001] WASCA 333; (2001) 125 A Crim R 372, the direction which her Honour gave was erroneous. It was further submitted that the direction as to the relevance of mistake was liable to confuse the jury, this not being a case of mistake.

22 I do not accept the submission that this was a case in which there was no room for mistake. The appellant's evidence as to precisely what harm he apprehended and how he apprehended that harm might arise, was extremely unclear. On any objective view, the threat which he faced at the time at which he assaulted the complainant was not a significant one. There had been no violence offered to him on the earlier occasions on which disturbances had taken place outside or in the vicinity of the shop. On this occasion, while there were numerous other persons about, the only person offering any violence was the complainant, and that violence was a punch. There was some evidence, which the jury might well have accepted, suggesting that the appellant's conduct went well beyond that required to respond to a threat of that nature: the medical evidence suggested that he inflicted significant injury on the complainant; the evidence of Mr Thompson, the complainant's friend, suggested that the appellant's retaliation or defence involved not only punching the complainant but also kneeing him in the face; while on the complainant's account he was punched when he personally had made no threat and offered no violence to the appellant. In those circumstances, it seems to me that it was prudent for her Honour to leave to the jury the possibility that in the state of "panic" which he said had been engendered by the banging on the glass of his shop, the appellant had perceived a greater threat from the complainant than had actually been offered to him.

23 As to the direction in relation to the appellant's state of mind, her Honour was, in my respectful view, entirely correct in what she said. The question posed by the first paragraph of s 248 is not what the accused person thought was reasonably necessary for his defence; it is what, objectively, the jury find to have been reasonably necessary having regard to all the circumstances as they find them to be. It cannot, in my view, be an error to point out to a jury that this paragraph requires an objective rather than a subjective test.

24 The direction which was complained of in Stanik was one which told the jury that "... [i]t doesn't matter what the accused thought was reasonably necessary or what his actual state of mind is". In its context, Malcolm CJ considered that there was no misdirection when the entirety of the trial Judge's direction was read in that case (at 382).

25 However, Anderson J, with whom McKechnie J agreed as to this matter, considered that the direction raised the question whether, in a case falling within the first paragraph of s 248, it was wrong to tell the jury that "the extent of permissible force is to be determined without any regard for the accused's state of mind". His Honour considered that to be an error because, as he put it (at 391), "what was reasonably necessary for an effectual defence must be judged in the light of the situation confronting the accused; and his state of mind engendered by that situation may not always be entirely irrelevant".

26 There are a number of things to be noted about his Honour's observations in that case. First, the accused's state of mind is plainly of limited relevance, where it is relevant at all; his Honour was only prepared to find that the accused's state of mind "may not always be entirely irrelevant".

27 To the extent that an accused's state of mind is relevant, Anderson J explained its relevance by reference to Marwey v The Queen [1977] HCA 68; (1977) 138 CLR 630, per Barwick CJ at 638. I do not set out the entirety of the observations of Barwick CJ, because they are lengthy. His Honour's reasons were directed primarily to the Queensland equivalent of the second paragraph of s 248. However, to the extent that his Honour dealt with the first paragraph, his observations are to be understood, in my view, as suggesting that although there is a textual distinction between what is required by each paragraph, there will in many cases be a practical convergence of the sorts of questions which the jury has to ask itself. Anderson J also referred to a passage from R v Lawrie [1986] 2 Qd R 502, in which Connelly J said (at 505):

"So far as the first paragraph, the primary rule, is concerned, it is obviously objective in terms. This is not to say however that what is reasonably necessary to make effectual defence will not depend on the circumstances as perceived by the defender. An

honest and reasonable belief that a blow is about to be struck may justify a pre-emptive blow."

28 Anderson J also referred to the need to consider what might be the position if an accused may have done what was honestly and instinctively thought to be necessary "in a moment of unexpected anguish" (see R v Whyte [1987] 3 All ER 416).

29 As I understand the observations of Anderson J in Stanik, the state of mind of the accused will be potentially relevant for a number of reasons in relation to the first paragraph of s 248. That potential relevance arises partly out of the need to consider, in an appropriate case, what was the accused's belief about the circumstances as they existed at the relevant time (and whether it was reasonable), and partly out of the difficulty of judging, in hindsight, what may have been reasonably necessary in a "moment of anguish". In my view, her Honour made all of these considerations plain to the jury. She expressly directed them in terms of mistake, and she expressly drew to their attention the fact that a person who is defending himself cannot be expected to weigh up exactly what extent of defensive action is necessary. In my view, her Honour's direction was correct in law and fairly and appropriately dealt with the potential significance of the appellant's state of mind in the circumstances of this case.

30 I would grant leave to appeal but would dismiss the appeal.

31 MILLER J: I have had the opportunity of reading in draft the reasons for judgment of Wheeler J. I agree with those reasons and agree that leave to appeal should be granted, but the appeal should be dismissed.

• The appeal - background
• The grounds of appeal
• Liberato direction
• Self-defence - Grounds 3 and 4