Jurisdiction : SUPREME COURT OF WESTERN AUSTRALIA

Criminal law - Appeal against conviction - Murder - Self-defence - Proper construction of s 248(4) of the Criminal Code (WA) - Whether the trial judge misdirected the jury on the elements of self-defence - Whether no substantial miscarriage of justice occurred

Criminal law - Appeal against sentence - Murder - No intention to kill the victim - Life imprisonment with a minimum of 15 years - Whether sentence manifestly excessive

Sentencing Act 1995 (WA), s 90(1)(a)

Atherden v The State of Western Australia [2010] WASCA 33

Austic v The State of Western Australia [2010] WASCA 110

Bugmy v The Queen [1990] HCA 18; (1990) 169 CLR 525

Deakin v The Queen [1984] HCA 31; (1984) 58 ALJR 367

Griffiths v The Queen [1989] HCA 39; (1989) 167 CLR 372

Heijne v The State of Western Australia [2010] WASCA 86

Johnston v The State of Western Australia [2012] WASCA 18

Marwey v The Queen [1977] HCA 68; (1977) 138 CLR 630

Pedersen v The State of Western Australia [2010] WASCA 175

Power v The Queen [1974] HCA 26; (1974) 131 CLR 623

Quaid v The Queen [2011] WASCA 141; (2011) 210 A Crim R 374

Raux v The State of Western Australia [2012] WASCA 1

Taiapa v The Queen [2009] HCA 53; (2009) 240 CLR 95

Wongawol v The State of Western Australia [2011] WASCA 222; (2011) 42 WAR 91

1 MARTIN CJ: For the reasons given by Buss JA, with which I agree generally, the appellant should be granted an extension of time within which to appeal against conviction and sentence, but each appeal should be dismissed. My reasons for concluding that the appeal against conviction should be dismissed follow.

2 The essence of ground 1 of the appeal against conviction is the proposition that s 248(4) of the Criminal Code, properly construed, does not require that the apprehended threat to which the accused responds be based on grounds which are objectively reasonable. That proposition, and the aide-memoire provided by the trial judge to the jury suffer from the same fundamental flaw - namely, the misconception that s 248(4)(a) involves two discrete and divisible components, that is, a belief as to the apprehended threat, and a belief as to whether a particular act is necessary to defend against that threat. As Buss JA points out, s 248(4) refers to only one belief - namely, that the act committed by the accused is necessary to defend the accused or another person from a harmful act. That belief must be held subjectively by the accused, and, by reason of s 248(4)(c), there must be reasonable grounds for that belief.

3 However, in the way in which s 248(4) has been structured, it is impossible to segregate the existence of objectively reasonable grounds for a subjective belief that the act of the accused was a necessary response to the apprehended threat from the existence of objectively reasonable grounds for the apprehended threat. Put another way, the way that the section has been structured, it is logically impossible to conceive of a circumstance in which a subjective belief that the act of the accused was a necessary response to an apprehended threat could be based on objectively reasonable grounds unless there were objectively reasonable grounds for the apprehension of a threat which justified the response of the accused.

4 However, although the trial judge did not direct the jury in conformity with the language of s 248(4) of the Code, the terms in which the direction was given did not give rise to a miscarriage of justice.

5 Ground 2 of the appeal against conviction focuses attention upon the use of the expression 'reasonably necessary' in points 3 and 4 of the aide-memoire provided by the trial judge to the jury. This terminology does not conform to the terminology of s 248(4). The belief that the act of the accused is a necessary response to the apprehended threat is not qualified by the term 'reasonably' in the section. The question posed by ground 2 is whether the use of the adverb 'reasonably' by the trial judge gave rise to a miscarriage of justice.

6 The expression 'reasonably necessary' first appears in point 3 on page 2 of the aide-memoire which provides:

1. The person believes that the act he does is reasonably necessary to defend himself or another person from a harmful act.

7 It is clear from the terminology used, read as a whole, that the belief to which reference is made in this point is a subjective belief. That conclusion is reinforced by the context in which the point appears, as the points which precede and succeed it are clearly referring to objective grounds for belief, whereas point 3, by contrast, is clearly expressed in terms of the subjective belief of the accused.

8 In that context, it is inconceivable that any member of the jury would have thought the expression 'reasonably necessary' somehow imported an objective element to the subjective belief to which reference is being made in point 3. It would be clear to any juror that in the context in which it is used in that point, 'reasonably' bears the meaning to which Buss JA has referred - namely, 'moderately' or 'fairly'. Given this meaning, the use of the term 'reasonably necessary' had a tendency, if anything, to increase the State's burden of disproving the existence of the subjective belief to which reference is made, by lowering the threshold of that belief from belief that an act was necessary, to a belief that an act was moderately or fairly necessary.

9 The expression 'reasonably necessary' appears again in point 4 of the aide-memoire, which is in the following terms:

1. There are reasonable grounds for such a belief that the act he does is reasonably necessary.

10 This point is plainly dealing with the existence of objectively reasonable grounds for the subjective belief to which the previous point referred. As such, it seems likely that the jury would have viewed the expression as merely reinforcing the requirement that the objective grounds for the belief must be reasonable. Alternatively, if the jury applied the same meaning as I have suggested the expression would have been given when used in point 3, for the reasons I have given, that meaning would, if anything, have increased the State's burden of

disproving the existence of objective grounds for the belief, by reducing the standard of belief for which there must be objectively reasonable grounds from a belief that an act was necessary, to a belief that an act was moderately or fairly necessary.

11 For these reasons, the erroneous terminology used by the trial judge did not give rise to any miscarriage of justice.

12 BUSS JA: On 17 May 2012, the appellant was convicted, after a trial in the Supreme Court before Commissioner Sleight and a jury, on one count in an indictment which alleged that on 17 April 2010, at Coolbellup, the appellant murdered Jodi Edward Henderson, contrary to s 279 of the Criminal Code (WA) (the Code).

(a) the appellant intended to cause Mr Henderson's death (s 279(1)(a) of the Code);

(b) alternatively, the appellant intended to cause a bodily injury of such a nature as to endanger, or be likely to endanger, Mr Henderson's life (s 279(1)(b) of the Code).

14 His Honour took a special verdict, namely whether the jury was satisfied beyond reasonable doubt that the appellant intended to kill Mr Henderson. The jury found that the appellant did not intend to kill him.

15 On 4 July 2012, the trial judge sentenced the appellant to life imprisonment with a minimum of 15 years before becoming eligible for parole.

16 The appellant has applied to this court for an extension of time to appeal, and leave to appeal, against conviction and sentence.

The applications for an extension of time to appeal

17 The last date for appealing against conviction and sentence was 25 July 2012. The appellant did not file his appeal notices until 1 August 2012. The State does not oppose the grant of extensions of time. The delay is very short and has been explained adequately. Extensions of time should be granted.

18 The critical issue at trial was whether the appellant had stabbed Mr Henderson in self-defence or in defence of his brother, Luke Goodwyn.

19 The State's case was that the appellant had become enraged and had stabbed the deceased with a knife in an act of aggression.

20 The appellant's case was that Mr Henderson, who had bipolar disorder and was significantly intoxicated, began acting aggressively. He violently attacked the appellant's brother, and then the appellant, in such circumstances that the appellant was justified in defending himself and his brother by stabbing Mr Henderson with the knife.

21 Mr Henderson suffered five stab wounds, three in the left shoulder and two in the back.

22 Dr Gerard Cadden, a forensic pathologist who examined Mr Henderson, gave evidence that the fatal stab wound was at least 14 cm in depth. This wound penetrated the left chest cavity. According to Dr Cadden, moderate to considerable force would have been required to inflict the wound.

23 The State called a number of witnesses in relation to the circumstances of the offending, including Calley Roberts.

24 On 16 April 2010, being the day before the alleged murder, the appellant went to Ms Roberts' home. They had previously been in a relationship and had two children together. Although separated, the appellant and Ms Roberts were still friends. Their children were young.

25 The appellant spent the night of 16 April 2010 at Ms Roberts' home.

26 Mr Henderson and Ms Roberts had been childhood sweethearts. They had recently resumed contact through Facebook. Ms Roberts agreed to Mr Henderson coming to her home on 17 April 2010.

27 On 17 April 2010, Ms Roberts collected Mr Henderson and his young son, Cruz, and drove them to her home. She introduced Mr Henderson and Cruz to the appellant. Ms Roberts gave evidence to the effect that initially there appeared to be a good rapport between the men.

28 During the afternoon of 17 April 2010, other people came to Ms Roberts' home. They included the appellant's brother, Luke Goodwyn, and another of Ms Roberts' friends, Gerald Koning. According to Mr Koning, there appeared to be some tension when Mr Henderson and the appellant discussed their respective relationships with Ms Roberts, but there appeared to be no underlying hostility between them.

29 On 17 April 2010, the appellant, Mr Henderson and Ms Roberts drank heavily.

30 Professor David Joyce, a medical practitioner who specialises in clinical pharmacology and toxicology, gave evidence that on the day in question Ms Roberts' blood alcohol level may have been as high as 0.27% (ts 315).

31 Early in the evening of 17 April 2010, Ms Roberts prepared a meal for her children, Mr Henderson and the appellant. She gave evidence to the effect that in the early evening the appellant's eyes 'started getting ... red' (ts 64). She said this happened when the appellant became angry. At about this time, Mr Henderson became 'kind of silly' (ts 64). She was slightly offended by some comments he made (ts 141).

32 According to Ms Roberts, in the early evening the children were inside the house watching a video. At one point, Mr Henderson went inside and 'mucked around with the kids a little bit' (ts 65). Ms Roberts reprimanded him for swearing in front of the children.

33 Some time later, while Ms Roberts was attending to the children in the house, Mr Henderson and the appellant were in the backyard. She heard the appellant say 'the guy's a dick' (ts 66).

34 About 10 minutes later, Ms Roberts heard a knock at the front door. She opened the door and the appellant was there. She said the appellant was very angry. He told her to 'get the kids in the bedroom' (ts 67). She told the appellant to go away. Ms Roberts shut the door, smoked a cigarette and went to the toilet.

35 When Ms Roberts left the toilet she heard Mr Henderson and the appellant arguing in the backyard. She said they were 'really angry' (ts 69). Ms Roberts went outside and saw Mr Henderson holding his son, Cruz, in one arm on his hip. Mr Henderson, the appellant and Luke Goodwyn were standing in an area near some swings. All of the men were using raised voices to such a degree that it caused her fear.

36 Ms Roberts removed Cruz from Mr Henderson's arm. She went into the house and put Cruz and her two children in the bathroom.

37 Ms Roberts went outside again. Mr Henderson, the appellant and Luke Goodwyn were standing in the same area. She saw Mr Henderson and the appellant shove each other. She stepped between them, but someone knocked against her and, as a result, she stumbled backwards. Ms Roberts noticed that her son, Sol, had come outside. She put him back in the bathroom. All of the children were very upset and she attempted to calm them.

38 Shortly after, she heard a 'big crash' and other noises (ts 73). She went outside immediately and saw Mr Henderson lying on the grass. There was 'blood everywhere' (ts 76). Ms Roberts called an ambulance. Later, a neighbour found a knife on his property. The knife, which came from Ms Roberts' home, had Mr Henderson's blood on it.

39 Professor Joyce gave evidence that an analysis of Mr Henderson's blood revealed the presence of therapeutic doses of a medication prescribed for the treatment of bipolar disorder. Professor Joyce also said that in the early evening of 17 April 2010 Mr Henderson's blood alcohol level may have been as high as 0.25% (ts 313).

40 The State adduced forensic evidence to the effect that Mr Henderson's blood was on:

(d) other clothing recovered from Luke Goodwyn's home.

41 A medical practitioner who examined the appellant found numerous minor injuries, predominantly lacerations. The most significant injuries were a haematoma on the appellant's lower lip and a 4 - 5 cm superficial laceration on his right elbow.

42 The appellant gave sworn evidence in his defence at trial.

43 The appellant said that the afternoon of 17 April 2010 had passed without incident. Relations between him and Mr Henderson were good. They had been socialising in the backyard of Ms Roberts' home.

44 At some point, Mr Henderson went inside and played with the children. The appellant claimed he heard Mr Henderson using foul language towards one of the children. He also heard Ms Roberts reprimanding Mr Henderson about his language.

45 Mr Henderson returned to the backyard. The appellant said he heard Mr Henderson say that 'if she [Ms Roberts] keeps talking to me like that I'll punch her in the fucking head too' (ts 543). The appellant claimed he told Mr Henderson to calm down. Mr Henderson responded by grabbing the appellant's shirt and saying, 'Do you want to go too? I'll knock you out'. The appellant said he told Mr Henderson to relax (ts 543).

46 The appellant gave evidence that he tried to talk to Ms Roberts about Mr Henderson's change in behaviour. He told her that Mr Henderson was 'flipping out' and she needed to talk to him, but she said that she did not have time to deal with the matter and he should 'chill out' (ts 545 - 546). The appellant denied that Ms Roberts had told him to leave.

47 The appellant went outside and spoke to his brother, Luke. By this stage, Mr Henderson appeared to have calmed down and was nursing his son, Cruz.

48 The appellant then went inside the house to get a beer. As he did so, he heard Mr Henderson say, 'Fuck off. Get the fuck outta [sic] here, who are you?' (ts 549). The appellant saw Mr Henderson attacking his brother. Luke Goodwyn had his hands up and was moving backwards. Luke Goodwyn told Mr Henderson that he did not want to fight and that Mr Henderson should stop. Mr Henderson was holding his son with one hand and was punching and grabbing at Luke Goodwyn with the other. He was 'throwing punches with his right hand and also grabbing at Luke's neck' (ts 550).

49 According to the appellant, Ms Roberts attempted to separate Mr Henderson and Luke Goodwyn. She succeeded only in removing Cruz. Luke Goodwyn was pinned against a pole and Mr Henderson was poking his eye with one hand and punching him with the other (ts 550).

50 The appellant took a knife from a sink in the house and ran into the backyard. He pushed Mr Henderson away from his brother and said, 'Fuck off, Jodi, just stop it' (ts 555).

51 According to the appellant, Mr Henderson said, 'Fuck you' and ran towards him and punched him. The appellant said he had taken the knife to scare Mr Henderson. He had no intention of using it (ts 557).

52 The appellant said Mr Henderson punched him and tried to grab the knife. Mr Henderson also grabbed him by the larynx. The appellant said he could not breathe. He tried 'poking' Mr Henderson with the knife. Mr Henderson said to him, 'You're dead, cunt' and attacked him again. Mr Henderson charged at him, throwing punches. The appellant fell to the ground on his back. Mr Henderson stood over him and punched him. The appellant said he did not want to hurt Mr Henderson, but he reached over and stabbed him in the back (ts 570).

53 According to the appellant, Mr Henderson stood up and retreated. Shortly after, Mr Henderson grabbed the appellant and swung him across a table and against chairs. This caused the appellant to fall on his back and hit his head on the concrete. Mr Henderson attempted to stomp on the appellant's face. Mr Henderson then fell to his knees.

54 The appellant said he told Ms Roberts to call an ambulance. He did not, however, believe that Mr Henderson was badly hurt. He knew Mr Henderson was injured to some degree, but he also knew that an ambulance would arrive soon.

Appeal against conviction: s 248 of the Code: self-defence

55 Section 248 of the Code, as currently enacted, was inserted by s 8 of the Criminal Law Amendment (Homicide) Act 2008 (WA). It commenced operation on 1 August 2008.

56 Section 248(1) provides that, in s 248, the term 'harmful act' means an act that is an element of an offence under pt V other than ch XXXV.

57 Section 279 creates an offence under ch XXVIII of pt V.

58 By s 248(2), a harmful act done by a person is lawful if the act is done in self-defence under s 248(4).

If -

(a) a person unlawfully kills another person in circumstances which, but for this section, would constitute murder; and

(b) the person's act that causes the other person's death would be an act done in self-defence under subsection (4) but for the fact that the act is not a reasonable response by the person in the circumstances as the person believes them to be,

the person is guilty of manslaughter and not murder.

A person's harmful act is done in self defence if -

(a) the person believes the act is necessary to defend the person or another person from a harmful act, including a harmful act that is not imminent; and

(b) the person's harmful act is a reasonable response by the person in the circumstances as the person believes them to be; and

(c) there are reasonable grounds for those beliefs.

61 It is unnecessary to refer to s 248(5) or s 248(6).

Appeal against conviction: the trial judge's directions on self-defence

62 Soon after commencing his summing up, the trial judge gave the jury three documents which he had prepared to assist the jury in its deliberations (ts 830). His Honour had previously given drafts of the documents to the prosecutor and defence counsel, who had made submissions in relation to them. Neither the prosecutor nor defence counsel objected to the final form of the documents (ts 720 - 722, 824 - 826).

63 The first document set out the elements of the offence of murder and the elements of the offence of manslaughter.

64 The second document purported to enumerate the '5 components of self-defence'. It reads:

1. A person believes that he or some other person will be subjected to a harmful act.
2. There are reasonable grounds for such a belief.
3. The person believes that the act he does is reasonably necessary to defend himself or another person from the harmful act.
4. There are reasonable grounds for such a belief that the act he does is reasonably necessary.
5. The act done in self defence is a reasonable response by the person in the circumstances as he believed them to be.

65 The third document was a flow chart in relation to the jury's decision-making process. It provides in relation to self-defence:

Are you satisfied beyond reasonable doubt that one of the following is excluded:

1. [the appellant] believed that he and/or his brother were being assaulted by Mr Henderson;
2. there were reasonable grounds for this belief;
3. [the appellant] believed the stabbing of Mr Henderson which caused his death was necessary to defend [the appellant] and/or his brother;
4. there were reasonable grounds for this belief;
5. the stabbing of Mr Henderson was a reasonable response in the circumstances as [the appellant] believed them to be.

66 The trial judge instructed the jury that the three documents were not a substitute for and did not supplant his oral directions (ts 830). He added that 'hopefully they'll provide some assistance to you in the jury room by reflecting on what I've said and also they may assist you while I'm speaking' (ts 830).

67 His Honour directed the jury in relation to self-defence, by reference to the second document, as follows:

At law, self-defence has five components to it and if you go to page 2 of the handout I've given you, the five components are listed there. The five components are: (1) A person believes that he or some other person will be subjected to a harmful act. I'll explain to you what a harmful act means in a moment. (2) There are reasonable grounds for such a belief. (3) The person believes that the act he does is reasonably necessary to defend himself or another person from the harmful act. (4) There are reasonable grounds for such a belief that the act he does is reasonably necessary. (5) The act done in self-defence is a reasonable response by the person in the circumstances as he believed them to be. The State can prove that [the appellant] was not acting in self-defence if it proves beyond a reasonable doubt that any one of these five components, which make up self-defence at law, is excluded in this case (ts 832).

68 As to the flow chart relating to self-defence in the third document, the trial judge told the jury:

And what I've just told you is summarised there in the first block in the flow chart. Are you satisfied beyond reasonable doubt that one of the following is excluded in this case? And then I've listed the five components of self-defence that I've just gone through (ts 833).

69 His Honour then elaborated on each of the five components he had identified:

The first way the State can prove that [the appellant] was not acting in self-defence is to prove beyond reasonable doubt that [the appellant] did not believe that he or his brother were subject to a harmful act ... Now, this first component of self-defence focuses on [the appellant's] belief at the time. A person's belief or lack of belief relates to the person's state of mind ... The State, to negative self-defence ... by proving to you that this first component is excluded, will need to satisfy you that [the appellant] had no such belief and that his evidence that he did is false. It will need to satisfy you of that beyond reasonable doubt.

The second way the State can prove that [the appellant] was not acting in self-defence is to prove that, if [the appellant] had such a belief, that he and/or his brother were being assaulted by Mr Henderson ... that belief was not based on reasonable grounds. This ... component, involves an objective test. A belief that is fanciful and is not based on reasonable grounds cannot form the basis of doing something in self-defence. On this component you need to examine the evidence and decide [whether the State] has proved beyond reasonable doubt that there are no reasonable grounds for [the appellant] to have such a belief. The assessment of whether there were reasonable grounds is an assessment made by you as sober people based upon the circumstances, that you find as a matter of a fact, confronted [the appellant], that night.

Now, the third way the State can prove that [the appellant] was not acting in self-defence is to prove that [the appellant] did not believe that what he did was reasonably necessary to defend himself or any other person from a harmful act. Again, this component focuses on [the appellant's] belief at the time ... You are being asked, in relation to this component, to consider whether [the appellant] believed, at the time of the incident, that what he did was necessary to defend himself. The law says that people are not required to wait until they are injured or killed, or other persons are injured or killed, before defending themselves or that person. They are entitled to use force before that situation arises. As I've said, the threat need not be imminent. It is sufficient if the person believes that his act is necessary to defend himself from such a threatened assault. The State, therefore, must prove beyond reasonable doubt that [the appellant] did not believe that the act he did was necessary to defend himself or another person from Mr Henderson. The State's case is that the stabbing was of such a nature that the only inference reasonably available on the evidence is that [the appellant] stabbed Mr Henderson out of an act of aggression and it was not because he believed that what he was doing was necessary to defend himself. The defence case is that you should accept that [the appellant] had a belief that what he did was necessary to defend himself and his brother from the attacks that they had experienced from Mr Henderson.

The fourth way the State can prove that [the appellant] was not acting in self-defence is to prove that there [were] no reasonable grounds for [the appellant] believing, at the time, that what he did, by stabbing Mr Henderson, was necessary to defend himself and his brother. Again, this ground involves an objective test. Again, I stress to you that a belief that forms the basis of self-defence must be based on reasonable grounds, not on something fanciful or made up. On this component you need to examine the evidence and decide whether the State has proved beyond reasonable doubt that there were no reasonable grounds for [the appellant] believing that it was necessary for him to stab Mr Henderson in order to defend himself and his brother. Again, that assessment as to whether there were reasonable grounds is made by a sober person based upon the circumstances as you find them as a matter of fact confronting [the appellant] that night.

Now, the fifth way and final way that the State could prove that [the appellant] was not acting in self-defence is to prove that the act of stabbing Mr Henderson in the back, as he did, was not a reasonable response in the circumstances as [the appellant] believed them to be. In judging this issue you need to consider the case from the circumstances of what [the appellant], believed them to be. The State's case is that even if you accept that [the appellant] had a belief that the deceased was attacking him and his brother, his response was not a reasonable response in the circumstances. The State's case is that the risk to the deceased's life, that is Mr Henderson's life and health, was such that the use of the knife to stab Mr Henderson in the back with sufficient force to go through a rib and puncture his lung when Mr Henderson was unarmed was not a reasonable response to the circumstances as [the appellant] believed them to be. You decide the issue of reasonable response applying a common sense approach. You should take into account that a person under attack, or in the presence of someone else being attacked, may have to react on the spur of the moment and cannot be expected to exactly explore all the alternatives available and how much force he should apply to the use of a weapon that he may decide to use. On the other hand if a person uses force, and quite clearly out of proportion to the anticipated ... attack he's being subjected to, then it's likely that the response would not be a reasonable response in the circumstances ... The question of whether the response of [the appellant] was a reasonable response is a matter for your assessment taking into account all of the circumstances as [the appellant] believed them to be at the time. The defence case is that the use of the knife, by [the appellant], was a reasonable response given the circumstances as [the appellant] believed them to be (ts 833 - 837).

70 Neither the prosecutor nor defence counsel sought any additional direction or redirection from the trial judge in relation to self-defence (ts 845, 860, 878 - 880).

Appeal against conviction: grounds of appeal

71 The appellant relies on two grounds in his appeal against conviction.

72 Ground 1 alleges that the trial judge erred in law by directing the jury that the law of self-defence required that the accused's belief that he or some other person will be subjected to a harmful act must be based upon reasonable grounds.

73 Ground 2 alleges that his Honour erred in law by directing the jury that the law of self-defence required that the accused believes that the act he does is reasonably necessary to defend himself or another person from the harmful act.

74 On 27 October 2012, Mazza JA granted leave to appeal on each of these grounds.

Appeal against conviction: ground 1: the appellant's submissions

75 Counsel for the appellant submitted that the trial judge, in directing the jury, confused the subjective and objective elements of s 248(4)(a).

76 The written submissions assert that the subjective elements of s 248(4) are:

(a) the accused believes the act is necessary to defend the accused or another person from a harmful act, including a harmful act that is not imminent; and

(b) what the accused believes the circumstances to be.

77 The written submissions assert that the objective elements of s 248(4) are:

(a) there are reasonable grounds for the accused's belief that the act is necessary to defend the accused or another person from a harmful act, including a harmful act that is not imminent; and

(b) the accused's harmful act is a reasonable response by the accused in the circumstances as the accused believes them to be.

78 However, at the hearing, counsel for the appellant argued that the 'reasonable grounds' in s 248(4)(c) relate solely to whether the accused believes the act is 'necessary' within s 248(4)(a). Counsel also argued that the subjective belief required by s 248(4)(a) is confined to a subjective belief by the accused that the harmful act is 'necessary' (appeal ts 2 - 5, 10).

79 According to counsel for the appellant, his Honour misdirected the jury in stating that the 'reasonable grounds' in s 248(4)(c) relate to whether the accused believes 'that he or some other person will be subjected to a harmful act'.

Appeal against conviction: ground 2: the appellant's submissions

80 Counsel for the appellant submitted that the trial judge erred in his directions to the jury by introducing an additional test in relation to s 248(4)(a), namely that the accused must believe that the act he does is reasonably necessary to defend himself or another person from the harmful act.

81 Counsel complained that his Honour used the expressions 'reasonably necessary to defend himself' (ts 835) and 'the act he did was necessary to defend himself or another person' (ts 835) interchangeably. Counsel argued that these expressions 'are not the same thing'.

(a) the only requirement is that the accused must believe the act is 'necessary';

(b) there is no requirement for the accused actually to consider the reasonableness of his or her actions; and

(c) the test as to whether the act is in fact reasonably necessary is the objective test contemplated by s 248(4)(b), namely that 'the [accused's] harmful act is a reasonable response by the [accused] in the circumstances as the [accused] believes them to be'.

83 Counsel submitted that the absence of a requirement that the accused must consider the act 'reasonably necessary' is supported by the fact that 'in terms of whether [the accused's] belief that what he did was necessary', the test to be applied is 'in the circumstances as the [accused] believes them to be'.

Appeal against conviction: the proper construction of s 248(4)

84 Section 248(4)(a) specifies, as an element of self-defence, that 'the [accused] believes the act is necessary to defend the [accused] or another person from a harmful act, including a harmful act that is not imminent'.

85 Section 248(4)(a) prescribes a single subjective requirement, namely the accused must, subjectively, believe that his or her harmful act is 'necessary to defend the accused or another person from a harmful act, including a harmful act that is not imminent'.

86 By s 248(4)(a), therefore, the accused must, subjectively, believe that his or her harmful act is necessary to defend the accused or another person from a harmful act (including a harmful act that is not imminent).

87 Section 248(4)(a) incorporates a single concept in relation to the accused's belief. The concept is not divisible. It is not concerned with two separate beliefs.

88 Section 248(4)(b) specifies, as an element of self-defence, that 'the [accused's] harmful act is a reasonable response by the [accused] in the circumstances as the [accused] believes them to be'.

89 Section 248(4)(b) incorporates two concepts. First, the concept of the accused's belief as to the circumstances. Secondly, the concept of whether the accused's harmful act is a 'reasonable response'. The composite requirement embodied in s 248(4)(b) from these concepts is that the accused's harmful act is a reasonable (objective) response by the accused in the circumstances as the accused (subjectively) believes them to be.

90 By s 248(4)(b), therefore, the accused's harmful act must be, objectively, a reasonable response by the accused in the circumstances as the accused, subjectively, believes them to be.

91 Section 248(4)(c) specifies, as an element of self-defence, that 'there are reasonable grounds for those beliefs'.

92 The beliefs to which s 248(4)(c) refers are the beliefs of the accused as stated in s 248(4)(a) and s 248(4)(b).

93 By s 248(4)(c), there must be, objectively, reasonable grounds for each of the subjective beliefs of the accused stated in pars (a) and (b).

(a) reasonable grounds for the accused's subjective belief, within s 248(4)(a), that the harmful act is necessary to defend the accused or another person from a harmful act, including a harmful act that is not imminent; and

(b) reasonable grounds for the accused's subjective belief, within s 248(4)(b), as to the circumstances.

95 So, it is apparent that s 248(4) enumerates four elements. First, the accused (subjectively) believes the harmful act is necessary to defend the accused or another person from a harmful act, including a harmful act that is not imminent (s 248(4)(a)). Secondly, the accused's harmful act is a reasonable (objective) response by the accused in the circumstances as the accused (subjectively) believes them to be (s 248(4)(b)). Thirdly, there are reasonable (objective) grounds for the accused's (subjective) belief that the harmful act is necessary to defend the accused or another person from a harmful act, including a harmful act that is not imminent (s 248(4)(a) read with s 248(4)(c)). Fourthly, there are reasonable (objective) grounds for the accused's (subjective) belief as to the circumstances (s 248(4)(b) read with s 248(4)(c)).

96 If the accused satisfies the evidential onus in relation to self-defence then the burden is on the State to negative the defence by excluding at least one of its elements beyond reasonable doubt.

(a) the Law Reform Commission of Western Australia's report in Project No 97, entitled Review of the Law of Homicide, published in September 2007, pages 158 - 172;

(b) the second reading speech of the Attorney General, Mr JA McGinty, on the Bill which upon enactment became the Criminal Law Amendment (Homicide) Act 2008 (Western Australia, Parliamentary Debates, Legislative Assembly, 19 March 2008, 1209c - 1212a); and

(c) the Model Criminal Code, 1st ed, 28 May 2009.

98 However, s 248 is not ambiguous or obscure. The ordinary meaning conveyed by the text of s 248, taking into account its context in the Code and its underlying purpose or object, does not lead to a result that is manifestly absurd or unreasonable. In any event, the extrinsic material referred to by counsel for the appellant does not assist in ascertaining the meaning of s 248. See s 19 of the Interpretation Act 1984 (WA).

Appeal against conviction: the merits of ground 1

99 Counsel for the appellant's argument that the subjective requirement in s 248(4)(a) is confined to whether the accused believes the act is 'necessary', begs a critical question, namely 'necessary' for what purpose? The notion that an act is 'necessary' is, without elaboration, meaningless.

100 It is plain, as a matter of basic grammar and from the ordinary meaning conveyed by the statutory text, that the subjective belief of the accused, within s 248(4)(a), is a single belief that the harmful act is necessary to defend the accused or another person from a harmful act, including a harmful act that is not imminent.

101 Counsel for the appellant's submissions in support of ground 1 are without merit.

102 Nevertheless, the trial judge's formulation of the element of self-defence in s 248(4)(a) was in error in that he divided the concept into two separate subjective components or beliefs.

103 The separate subjective components identified by his Honour in the second document given to the jury were:

(a) the accused believes that 'he or some other person will be subjected to a harmful act': component 1; and

(b) the accused believes that 'the act he does is reasonably necessary to defend himself or another person from the harmful act': component 3.

104 This dichotomy also appears in pars 1 and 3 of the third document (that is, the flow chart) given to the jury.

105 However, there is a difference between the second and third documents. In par 3 of the third document his Honour referred to the harmful act being 'necessary' whereas in component 3 of the second document his Honour referred to the harmful act being 'reasonably necessary'.

106 After identifying, in the second and third documents, the two separate subjective components (see components 1 and 3 and pars 2 and 4), the trial judge stated a separate and additional objective component in relation to each of those separate subjective components, namely, that there were 'reasonable grounds' for each subjective belief.

107 Further, in his oral directions to the jury, his Honour repeated, in substance, the separate subjective components or beliefs, based on his construction of s 248(4)(a), which he identified in the second document (ts 832 - 835).

108 Although the trial judge's formulation of the element of self-defence in s 248(4)(a) was in error, I am satisfied, for the reasons I give at [114] - [117] below, that no substantial miscarriage of justice has occurred.

Appeal against conviction: the merits of ground 2

109 The trial judge stated in the second document given to the jury that it is a component of self-defence that the accused believes that his harmful act is 'reasonably necessary to defend himself or another person from the harmful act' (component 3) and that there must be reasonable grounds 'for such a belief that the act he does is reasonably necessary' (component 4). (emphasis added)

110 However, his Honour omitted the word 'reasonably', and merely referred to 'necessary', in his statement of the components in pars 3 and 4 of the third document (that is, the flow chart).

111 In his oral directions to the jury, the trial judge repeated, in substance, components 3 and 4 (in particular, the expression 'reasonably necessary') as stated in the second document (ts 832 - 835). (emphasis added)

112 His Honour was in error in adopting the expression 'reasonably necessary'. Section 248(4)(a) stipulates a wholly subjective requirement: the accused must, subjectively, believe that his or her harmful act is necessary (not reasonably necessary) to defend the accused or another person from a harmful act, including a harmful act that is not imminent. Section 248(4)(c) stipulates, as an additional requirement, that, relevantly, there must be, objectively, reasonable grounds for the subjective belief of the accused as stated in s 248(4)(a).

113 Despite this error, I am satisfied, for the reasons I give at [114], [118] - [123] below, that no substantial miscarriage of justice has occurred.

Appeal against conviction: no substantial miscarriage of justice

114 It is well-established that it is open to an appellate court, as a matter of law, to decide that no substantial miscarriage of justice occurred at a criminal trial even though the trial judge omitted to direct, or made an error in directing, the jury on an element of the offence charged. See Quaid v The Queen [2011] WASCA 141; (2011) 210 A Crim R 374 [237] (Buss JA) and the cases there cited. This principle applies by analogy where the trial judge has omitted to direct, or has made an error in directing, the jury on an element of a defence which the State must negative. The question remains whether, in the particular circumstances, the appellate court considers that no substantial miscarriage of justice has occurred.

115 As to ground 1 of the appeal, and the trial judge's error in dividing the element of self-defence in s 248(4)(a) into two separate subjective components or beliefs, I am satisfied that, in the circumstances of the present case, no substantial miscarriage of justice has occurred.

116 If the appellant did not subjectively believe that he or his brother was being or would be subjected to a harmful act by Mr Henderson, there was no room for any subjective belief by the appellant that his harmful act against Mr Henderson was 'necessary' to defend the appellant or his brother from a harmful act (including a harmful act that was not imminent) by Mr Henderson. The State would have excluded, beyond reasonable doubt, the element of self-defence embodied in s 248(4)(a), properly construed.

117 Similarly, if there were no objectively reasonable grounds for the appellant subjectively believing that he or his brother was being or would be subjected to a harmful act by Mr Henderson, there was no basis for the existence of objectively reasonable grounds for any subjective belief by the appellant that his harmful act against Mr Henderson was 'necessary' to defend the appellant or his brother from a harmful act (including a harmful act that was not imminent) by Mr Henderson. The State would have excluded, beyond reasonable doubt, the element of self-defence embodied in s 248(4)(a), properly construed, read with s 248(4)(c), properly construed.

118 As to ground 2 of the appeal, and his Honour's error in adopting the expression 'reasonably necessary', in directing the jury that the accused must believe that his harmful act is 'reasonably necessary to defend himself or another person from the harmful act', I am also satisfied that, in the circumstances of the present case, no substantial miscarriage of justice has occurred.

119 The adverb 'reasonably' (like the words 'reason' and 'reasonable') has numerous shades of meaning. Its meaning, in a particular case, depends on the context.

120 The dictionaries define 'reasonably' to mean, in substance, in a reasonable manner, consistently with reason, not extravagantly or excessively, moderately, fairly. See Macquarie Dictionary (5th ed) p 1380; Shorter Oxford English Dictionary (5th ed), p 2482.

121 The High Court has accepted, in the context of self-defence and the defence of compulsion, that to ask whether a person has a reasonable belief is not different in substance from asking whether a person has reasonable grounds for belief. See Marwey v The Queen [1977] HCA 68; (1977) 138 CLR 630, 641 (Stephen J); Taiapa v The Queen [2009] HCA 53; (2009) 240 CLR 95 [29] (French CJ, Heydon, Crennan, Kiefel & Bell JJ). The observations in those cases concerned a statutory provision (s 271 of the Criminal Code (Qld)) which imported an objective requirement (the existence of reasonable grounds) in relation to an accused's belief.

122 In the present case, the term 'reasonably necessary' must be construed in the context of the trial judge's statement that the accused must 'believe' that his harmful act is 'reasonably necessary to defend himself or another person from the harmful act'. In my opinion, the word 'reasonably', in that formulation, would have been understood by the jury as connoting a subjective belief by the accused that his harmful act to defend himself or another person was proportionate and not excessive.

123 If the appellant did not subjectively believe that his harmful act was 'reasonably' necessary (in the sense I have explained) to defend himself or his brother from a harmful act (including a harmful act that was not imminent) by Mr Henderson, there was no room for any subjective belief by the appellant that his harmful act was 'necessary' to defend himself or his brother from a harmful act (including a harmful act that was not imminent) by Mr Henderson. The State would have excluded, beyond reasonable doubt, the element of self-defence embodied in s 248(4)(a), properly construed.

125 The sole ground relied on by the appellant in his appeal against sentence alleges that the trial judge erred in law by imposing a sentence that was manifestly excessive.

126 On 27 October 2012, Mazza JA referred the application for leave to appeal on this ground to the hearing of the appeal.

127 Counsel for the appellant clarified in his submissions that the allegation of manifest excess is confined to the minimum term of 15 years, before eligibility for parole, fixed by his Honour.

Appeal against sentence: the applicable legislative framework

128 The appellant was sentenced under the legislative scheme introduced by the Criminal Law Amendment (Homicide) Act 2008 (WA).

129 A non-parole period is the minimum period of imprisonment that justice requires the offender to serve. It mitigates the offender's punishment in favour of rehabilitation through conditional freedom after imprisonment for the minimum period. See Power v The Queen [1974] HCA 26; (1974) 131 CLR 623, 628 - 629; Deakin v The Queen [1984] HCA 31; (1984) 58 ALJR 367, 367; Griffiths v The Queen [1989] HCA 39; (1989) 167 CLR 372, 396; Bugmy v The Queen [1990] HCA 18; (1990) 169 CLR 525, 531.

130 In Pedersen v The State of Western Australia [2010] WASCA 175, I made a number of observations (McLure P & Mazza JA agreeing) concerning the determination of the non-parole period where an offender is to be sentenced to life imprisonment for the offence of murder, and the sentencing court has decided to proceed under s 90(1)(a) of the Sentencing Act 1995 (WA) and fix a minimum period. It is unnecessary to repeat those observations.

Appeal against sentence: the appellant's submissions

131 Counsel for the appellant submitted that in light of:

(a) the jury's finding that the appellant did not intend to kill Mr Henderson; and

(b) the findings of fact made by his Honour in his sentencing remarks,

the non-parole period of 15 years was plainly unreasonable or unjust.

132 A ground of appeal which alleges that a sentence (including a minimum term) is manifestly excessive asserts the existence of an implied error.

133 It is necessary, in determining whether a minimum term is manifestly excessive, to examine it from the perspective of the maximum sentence prescribed by law for the offence, any upper or lower limits on the available minimum term, the standards of sentencing customarily observed with respect to minimum terms for that offence, the place which the criminal conduct occupies on the scale of seriousness of offences of the kind in question, and the personal circumstances of the offender.

134 In the present case, the trial judge accepted, consistently with the jury's special verdict, that the appellant had no intention to kill Mr Henderson. His Honour imposed sentence on the basis that the appellant's intention was to cause a bodily injury of such a nature as to endanger, or be likely to endanger, Mr Henderson's life (ts 906).

135 His Honour found that the appellant's offence was less serious than if he had intended to kill, but 'only marginally given the use of the knife five times and the nature of the injuries inflicted' (ts 907). His Honour added that it was 'a clear case that Mr Henderson would suffer serious injury and objectively those injuries were of a nature as to be likely to endanger life' (ts 907).

136 The trial judge said that what occurred between the appellant and Mr Henderson was 'an angry exchange between two drunken men' and 'in the heat of the argument [the appellant] went and obtained a knife and stabbed Mr Henderson' (ts 905).

137 The seriousness of the appellant's offending is demonstrated by the following:

(a) The appellant decided to obtain a knife from the kitchen, and this showed an element of premeditation (ts 906).

(b) The appellant applied considerable force in inflicting the fatal wound (ts 906).

(c) The appellant used the knife against Mr Henderson even though he was unarmed.

(d) The offence was committed at premises where three young children, including Mr Henderson's young son, were present (ts 906).

(e) The appellant demonstrated a callous disregard for Mr Henderson after stabbing him with the knife. He made no effort to provide any real assistance for Mr Henderson. He did not remain at the premises to ensure that Mr Henderson received medical treatment. His Honour found that the appellant's departure, immediately after the incident, reflected a consciousness of guilt (ts 906).

(f) After committing the offence, the appellant deliberately parked his motor vehicle some distance from his house to give the impression he was not at home; no doubt, so he could hopefully avoid the police (ts 906).

138 The victim impact statements of Mr Henderson's parents, and a victim impact statement prepared on behalf of his young son, indicated, as would be expected, that they have suffered a significant and tragic loss. The nature and extent of the loss occasioned to the son will be profound.

139 The appellant was born on 6 March 1975. He was aged 35 at the time of the offending and was 37 when sentenced. Accordingly, he was not youthful or inexperienced for sentencing purposes.

140 The appellant did not have the mitigation that a plea of guilty would have brought. Although he regretted that Mr Henderson had died, he did not acknowledge his culpability for the offence and he continued to maintain that Mr Henderson was responsible for what occurred. The appellant, to his credit, facilitated the expeditious conduct of the trial by making various admissions.

141 The appellant was intoxicated when he murdered Mr Henderson, but self-induced intoxication is not, of course, a mitigating factor.

142 The appellant's prior criminal record is relatively minor. It comprises, principally, traffic and property offences. He has a conviction for possession of cannabis (which occurred about 15 years before the offence in question) and a conviction for possession of an offensive weapon. However, he has no prior convictions for offences involving violence.

143 The information before the trial judge included a pre-sentence psychological report dated 27 June 2012 prepared by Ms Sarah Ballantyne, a senior counselling psychologist.

144 The appellant had a disrupted childhood. His parents separated when he was aged 8. He has some history of drug abuse which commenced when he was about 14. The appellant has used various drugs including cannabis, LSD and amphetamines. He was involved in selling cannabis. However, when he was about 21 he ceased selling illicit drugs and travelled throughout Australia before forming a relationship in 2001 with Ms Roberts. He has a son and a daughter from his relationship with her. They were aged 11 and 9 respectively at the time of sentencing.

145 At all material times, the appellant has been in stable employment. He was the manager of an Aboriginal art gallery in Fremantle for about nine years until he was remanded in custody upon being charged with Mr Henderson's murder.

146 The appellant does not suffer from any significant psychological disorder. Since the offending he has participated in an alcohol and drug rehabilitation programme. There was no evidence before his Honour that the appellant would be a special danger to the community upon release.

147 Since the commencement of the Criminal Law Amendment (Homicide) Act 2008, very few cases have been considered by this court where lower minimum terms than 15 years have been imposed for murder. I have read and considered Atherden v The State of Western Australia [2010] WASCA 33, Heijne v The State of Western Australia [2010] WASCA 86 and Wongawol v The State of Western Australia [2011] WASCA 222; (2011) 42 WAR 91, where lower minimum terms than 15 years were imposed. I have also had regard to the cases listed in my reasons in Austic v The State of Western Australia [2010] WASCA 110 and to other cases referred to by counsel for the appellant including Pedersen and Johnston v The State of Western Australia [2012] WASCA 18.

148 In my opinion, the minimum non-parole period of 15 years did not exceed the sentencing range reasonably open to the trial judge on a proper exercise of the sentencing discretion. After examining the minimum term

of 15 years in the context of the sentencing framework under the Criminal Law Amendment (Homicide) Act 2008, the rationale for the imposition of a non-parole period (as explained by the High Court in the authorities to which I have referred), the customary standards of sentencing, the circumstances of the commission of the offence (including the vulnerability of Mr Henderson), the aggravating factors and the mitigating factors, I am satisfied that the minimum non-parole period was not unreasonable or plainly unjust. No error is to be inferred from the sentencing outcome.

149 The ground of appeal is without merit. I would refuse leave to appeal against sentence. The appeal must therefore be dismissed.

150 MAZZA JA: This is an appeal against conviction and sentence. Extensions of time for both appeals are required and should be granted. The appellant was charged and convicted after trial of the murder of Jodi Henderson. The primary issue at trial was whether the State had excluded self-defence. Plainly, by its verdict, the jury was satisfied that it had. His Honour took a special verdict from the jury. The jury found the appellant guilty on the basis of an intention to inflict an injury on the deceased which endangered or was likely to endanger life: 279(1)(b) Criminal Code.

151 The appellant was sentenced to life imprisonment with a minimum term of 15 years.

152 The appellant complains that the learned trial judge misdirected the jury as to self-defence.

153 He further alleges that the minimum term was manifestly excessive.

154 In my opinion, both appeals must be dismissed for the reasons that follow.

155 It is unnecessary for me to relate in detail the relevant facts of the case. They have been accurately and comprehensively dealt with by Buss JA.

156 It was not disputed at trial that the appellant stabbed the victim with a knife, inflicting five wounds. The fatal wound was 14 centimetres deep

into the chest of the victim and was described by the forensic pathologist, Dr Cadden, as requiring moderate to considerable force (ts 244 - 247).

157 The appellant, who testified in his own defence, said that the victim physically attacked the appellant's brother, Luke Goodwin. The appellant said that, upon seeing this, he grabbed a kitchen knife and went outside, where he confronted the victim.

158 A struggle then ensued between the victim and the appellant in which the appellant fell to the ground and the victim continued to attack him. The appellant said that during this altercation he 'poked' the victim in the arm with the knife (ts 562). A short time later, with the victim still attacking the appellant, the appellant stabbed him in the back. The appellant testified that he thought that he inflicted only one stab wound (ts 570). He said that he did so because the victim was trying to get the knife from him and he feared that he would be stabbed himself. The appellant testified that he did not intend to hurt or kill the victim and that he only acted in self-defence.

159 The trial judge's directions with respect to self-defence are to be found in Buss JA's reasons between [66] and [69]. The handouts which are relevant to this appeal are entitled, 'Annexure 2' and 'Annexure 3'. Annexure 2 is headed, 'Five components of self-defence'. Annexure 3 is a decision tree. The first box in Annexure 3 outlines the questions the jury needed to answer with respect to self-defence. I have set out at [175] of these reasons the text of Annexure 2. The text of Annexure 3 is set out at [64] of Buss JA's reasons.

1. The learned trial Judge erred in law by directing the jury that pursuant to s 248(4)(a) of the Code the law of self-defence required that a person's belief that he or some other person will be subjected to a harmful act must be based upon reasonable grounds.
2. The learned trial Judge erred in law by directing the jury that pursuant to s 248(4)(a) of the Code the law of self-defence required that the person believes that the act he does is reasonably necessary to defend himself or another person from the harmful act.

161 The criminal law has always recognised that a person has a right to defend him or herself (or another) from an unjustified attack and that it would be unfair and unjust for a person who acts in legitimate self-defence to face criminal prosecution and sanction. Of course, there must be limits on a person's right to act in self-defence. The criminal law does not protect the actions of those who are hypersensitive to any threat, no matter how minor, or who act purely out of anger, hatred, retaliation or revenge. Nor does it protect those who act disproportionately.

162 Following the Law Reform Commission of Western Australia's final report on the review of the law of homicide, significant amendments were made to the self-defence provisions in the Criminal Code. Sections 248 - 250 were repealed and were replaced with a new s 248. The section is now in these terms:

(1) In this section -

harmful act means an act that is an element of an offence under this Part other than Chapter XXXV.

(2) A harmful act done by a person is lawful if the act is done in self-defence under subsection (4).

(3) If -

(a) a person unlawfully kills another person in circumstances which, but for this section, would constitute murder; and

(b) the person's act that causes the other person's death would be an act done in self-defence under subsection (4) but for the fact that the act is not a reasonable response by the person in the circumstances as the person believes them to be,

the person is guilty of manslaughter and not murder.

(4) A person's harmful act is done in self-defence if -

(a) the person believes the act is necessary to defend the person or another person from a harmful act, including a harmful act that is not imminent; and

(b) the person's harmful act is a reasonable response by the person in the circumstances as the person believes them to be; and

(c) there are reasonable grounds for those beliefs.

(5) A person's harmful act is not done in self-defence if it is done to defend the person or another person from a harmful act that is lawful.

(6) For the purposes of subsection (5), a harmful act is not lawful merely because the person doing it is not criminally responsible for it.

163 I note these important differences between the current provisions and the repealed provisions. The current provisions do away with the distinction between self-defence against unprovoked assaults (s 248 as it was) and provoked assaults (s 249). They also do away with any distinction between force that was intended or likely to cause death or grievous bodily harm, and force that was not intended or likely to cause those results.

164 The law as it previously stood assumed that self-defence would only arise in a case of immediate threat which was required to be met with an immediate response. The current provisions contemplate a person acting in respect of a harmful act which is not imminent.

165 Although the current provision commenced operation in 2008, it has attracted little appellate attention. As far as I can see, the only case in which its operation was considered is Raux v The State of Western Australia [2012] WASCA 1 [144] (Buss JA):

166 The grounds of appeal raise for this court's consideration the proper interpretation of s 248.

167 In my opinion, the statutory text is clear. The language is unambiguous and there is no need to resort to extrinsic materials to interpret it.

168 The section concerns the harmful acts of the offender and the victim. The definition of 'harmful act' is the same in each instance. A harmful act is defined as any act which is an element of any offence contained in pt V of the Criminal Code, save for criminal defamation (ch XXXV). Part V deals with a large number of offences including, but not restricted to, assaults, threats, murder and attempted murder. Thus, the number and scope of the harmful acts to which s 248 potentially applies is substantial.

169 Self-defence is not available where a victim's alleged harmful act is lawful. For example, a person who assaults a police officer in response to being touched by the officer in the course of a lawful arrest, could not claim self-defence.

170 Section 248(4) contains a number of subjective and objective components.

171 The belief set out in s 248(4)(a) is plainly subjective. The relevant belief is that the harmful act done by the accused is necessary to defend the accused or another person from a harmful act. I do not accept Mr Levy's submission that the relevant belief is only that the accused believed the act to be necessary. This submission ignores the words in the subsection 'to defend the person or another person from a lawful act'. The word 'necessary' must relate to something; in other words, 'necessary to do what?' It is clear from the statutory text that the answer to this question is: 'necessary to defend the person or another person from a harmful act'.

172 Section 248(4)(b) requires that the accused's harmful act be a reasonable response in the circumstances as the accused believes them to be. What the fact finder is required to do is:

(a) determine what, in the accused's mind, were the circumstances surrounding the doing of the harmful act by the accused; and

(b) having regard to the circumstances as the accused believed them to be, decide if the accused's harmful act was a reasonable response.

173 Section 248(4)(b) is thus a combination of objective and subjective considerations. The objective consideration is whether the accused's harmful act was a reasonable response, but that has to be viewed from the perspective of the accused's subjective beliefs as to the circumstances.

174 I turn to s 248(4)(c). That subsection requires that there be reasonable grounds for those 'beliefs'. The 'beliefs' (plural) referred to in s 248(4)(c) must refer to the beliefs contained in 248(4)(a) and (b). Section 248(4)(c) thus imports an objective assessment of each of the subjective beliefs in (a) and (b). This means that there must be reasonable grounds for the accused's belief that the act is necessary to defend the accused or another person from a harmful act, and there must be reasonable grounds for the accused's belief of the circumstances surrounding the doing of his or her harmful act.

175 I now turn to the grounds of appeal. The grounds focus very much on Annexure 2, which states:

1. A person believes that he or some other person will be subjected to a harmful act.
2. There are reasonable grounds for such a belief.
3. The person believes that the act he does is reasonably necessary to defend himself or another person from the harmful act.
4. There are reasonable grounds for such a belief that the act he does is reasonably necessary.
5. The act done in self defence is a reasonable response by the person in the circumstances as he believed them to be.

177 Mr Levy's main submission was that nowhere in s 248(4) is there a requirement that the accused must believe that he or some other person will be subjected to a harmful act. Nor does it explicitly say in s 248(4) that such a belief must be based on reasonable grounds.

178 What Mr Levy says is literally true, but an accused's belief that he or some other person has or will be subjected to a harmful act is part and parcel of the belief in s 248(4)(a). This is because in order for the accused to believe that his or her harmful act is necessary to defend the accused or another person from a harmful act by the victim, there must be a belief that the accused (or another person) will be subjected to a harmful act.

179 Therefore, although component 1 of Annexure 2 is arguably unnecessary, it could not give rise to any miscarriage of justice. Component 2 flows logically from s 248(4)(c). Again, although arguably unnecessary, it could not give rise to any miscarriage of justice.

180 If I am wrong in my conclusion that the belief set out in component 1 arises from the belief referred to in s 248(4)(a), it would seem to me that any belief the offender has that he or some other person will be subjected to a harmful act is one of the circumstances referred to in s 248(4)(b). Of course, the circumstances as the accused believed them to be is, by virtue of s 248(4)(c), one of the beliefs upon which there must be reasonable grounds.

181 Mr Levy's argument appears to be that his Honour, in effect, instructed the jury that it needed to consider a belief not required by s 248(4) of the Code, and therefore a miscarriage of justice has occurred. As I have explained, the belief set out in component 1 of Annexure 2 and (in the first box in Annexure 3), arises from the subjective requirements in s 248(4)(a) or (b). The requirement in component 2 imports the objective considerations onto those beliefs as required by s 248(4)(c).

182 In the circumstances, there has been no miscarriage of justice and I would dismiss ground 1.

183 I now turn to ground 2. In oral argument, Mr Levy seemed to accept the force of the respondent's submissions with respect to ground 2, but did not abandon the ground.

184 Component 3 in Annexure 2 misstates the requirement in s 248(4)(a). The requirement in that subsection is that the accused believes that his or her harmful act is necessary. The word 'necessary' is not qualified by the word 'reasonably' and so component 3 of Annexure 2 is wrong. It follows that the wording of component 4 of Annexure 2 is also erroneous by virtue of the inclusion of the word 'reasonably' before the word 'necessary'.

185 Mr Levy's submissions were to the effect that the written directions, which went with the jury into the jury room, by virtue of the word 'reasonably' may have misled the jury to consider whether the appellant himself objectively believed that his harmful act was necessary. At the very least, Mr Levy submitted, components 3 and 4 of Annexure 2 were confusing, especially as the word 'reasonably' is missing from the decision tree in Annexure 3. He has also pointed out in the written submissions that his Honour did not consistently use the word 'reasonably' when directing the jury on s 248(4)(a).

186 I accept the respondent's submissions as to this ground. First, although components 3 and 4 in Annexure 2 refer to the word 'reasonably', it is in the context of the appellant's subjective belief. This can be seen in component 3 by the introductory words 'the person believes' and in component 4 by the use of the words 'such a belief'.

187 Second, in context, the expression 'reasonably necessary' was far more likely to be interpreted by the jury as meaning 'quite necessary' or 'moderately necessary'. In other words, something less than necessary.

188 Clearly, it would have been better if the learned trial judge had adhered to the statutory text, but again, as with ground 1, I do not think there has been a miscarriage of justice.

189 Of course, it is relevant when considering both grounds of appeal to note that there was no objection by defence counsel. This is especially significant with respect to ground 2, where counsel may very well have thought that the use of the word 'reasonably' watered down the word 'necessary' in a manner advantageous to the appellant.

190 It is worthwhile noting that his Honour provided counsel with the handouts that were given to the jury some days before the summing up was delivered and no one picked up the obvious errors. This case highlights the need for handouts to be correct and for counsel, when they are given drafts of handouts, to carefully examine them. Fortunately, in this case, I do not consider that the handouts have given rise to a miscarriage of justice.

191 It follows from what I have said that I would dismiss both grounds of appeal and thus dismiss the appeal against conviction.

192 If either or both grounds had been upheld, I would have invoked the proviso for the reasons given by Buss JA.

193 I agree with Buss JA's reasons in respect of the appeal against sentence.