Harafias v R

Ground of appeal

1. The appellant appeals against his conviction under s 5(1)(a) of the Criminal Appeal Act 1912 (NSW). The only ground of appeal is that the trial miscarried "as a result of the learned trial judge misdirecting the jury as to an element of self defence". The Crown accepts that there was a misdirection. The issue is whether it should result in the conviction being quashed, and a new trial ordered.

Self-defence

1. Under the common law, conduct involving the infliction of force or harm was carried out in self-defence if the person believed on reasonable grounds that it was necessary in self-defence to engage in that conduct. If the person had that belief, and there were reasonable grounds for it, or if the jury was left in reasonable doubt about that matter, the accused was entitled to be acquitted: Zecevic v Director of Public Prosecutions (Victoria) (1987) 162 CLR 645 at 661 (Wilson, Dawson and Toohey JJ) (Mason CJ agreeing at 654 and Brennan J agreeing at 670).
2. It follows that had that common law test applied to the appellant, to eliminate there being any reasonable possibility that he was acting in self-defence, the Crown would have had to prove either that he did not believe that it was necessary in self-defence to do what was done or that there were no reasonable grounds for that belief. The first matter was concerned with the accused's actual belief based on the circumstances as he perceived them. The second was concerned with whether there were reasonable grounds for that belief, based as it was on those circumstances: see, for example, R v Hawes (1994) 35 NSWLR 294 at 305-306 (Hunt CJ at CL, Simpson and Bruce JJ agreeing).
3. In New South Wales the common law (and the existing statute law, to the extent that it had partially codified that law) was altered in February 2002. Section 418, which was inserted by the Crimes Amendment (Self-defence) Act 2001 (NSW), relevantly provided: 418 Self-defence - when available (1) A person is not criminally responsible for an offence if the person carries out the conduct constituting the offence in self-defence. (2) A person carries out conduct in self-defence if and only if the person believes the conduct is necessary: (a) to defend himself or herself or another person, … … and the conduct is a reasonable response in the circumstances as he or she perceives them.
4. As was the position under the common law (Zecevic at 657), where self-defence is raised, the prosecutor has to prove beyond reasonable doubt that the accused did not carry out the relevant conduct in self-defence: Crimes Act, s 419.
5. Accordingly, to eliminate self-defence in this case, the Crown was required to prove beyond reasonable doubt that the appellant did not believe his conduct in biting Mr Zervas' nose was necessary in order to defend himself (again a question directed to the appellant's actual belief) or that the appellant's conduct was not a reasonable response to the circumstances as he perceived them (a question requiring an objective assessment of the proportionality of that response to the situation which the appellant actually believed he faced): R v Katarzynski [2002] NSWSC 613 at [22]-[23] (Howie J), cited with approval in R v Oblach (2005) 65 NSWLR 75 at [50]-[54] (Spigelman CJ).
6. The common law test as formulated in Zecevic, and the test provided by s 418(2) first inquire whether the accused believed that it was necessary in self-defence to do what was done. The difference between those tests is in relation to the second condition for the availability of the defence which each then addresses. Under the common law the further inquiry was as to whether the accused had reasonable grounds for that belief; and included whether there were reasonable grounds for the accused's belief that the conduct was necessary in self-defence, as well as whether there were reasonable grounds for the accused having responded with the degree of force used. Under the statute, the further inquiry is limited to whether the accused's conduct was a "reasonable response" in the circumstances as he or she perceived them.
7. The Attorney-General, Mr Debus, noted in the second reading speech for the Crimes Amendment (Self-defence) Bill (New South Wales Legislative Assembly, Parliamentary Debates, (Hansard), 28 November 2001 at 19094) that the statute removes the "objective element of the test as to what the defendant perceived the danger to be … [and] means that a person who really thought he was in danger, even if he was mistaken about that perception, may be able to rely on self-defence for his action". In Katarzynski at [24], Howie J described a difference between the common law and statutory tests as being that under the statutory provision the accused "need not have reasonable grounds for his or her belief that it was necessary to act in the way he or she did in order to defend himself or herself. It is sufficient if the accused genuinely holds that belief".

The evidence and issues in the trial

1. As defence counsel accepted at the commencement of his closing address, there were two critical issues left to the jury. The first was whether the Crown had established beyond reasonable doubt that the appellant intended to cause grievous bodily harm. The second was whether the Crown had proved beyond reasonable doubt that the appellant's conduct did not constitute self-defence (Crimes Act, s 419).
2. It is convenient at this point to summarise the evidence relevant to the issue of self-defence. As will become apparent, whether this Court can be satisfied that the proviso to s 6(1) of the Criminal Appeal Act applies, and requires that the appeal be dismissed, depends on a consideration of that evidence.
3. Mr Zervas did not give evidence at the trial. The only other witness, apart from the appellant, who gave evidence as to what happened inside the apartment was Mr Gilbert. There was a conflict between his evidence and that of the appellant. Mr Gilbert's evidence was that he had entered Mr Zervas' apartment and gone straight to use the toilet. When he emerged from the toilet he saw Mr Zervas struggling with another man in the hallway. He described them as holding each other "and [that] blood was everywhere". He broke up that fight and the other man left. At that point he saw that the front part of Mr Zervas' nose was missing.
4. The appellant's evidence (summarised below) was that Mr Gilbert entered the apartment a few minutes after he had arrived, and then sat near Mr Zervas. Later he and Mr Zervas moved to the hallway to speak privately. A confrontation and scuffle then developed. At the point in time when he was struggling with Mr Zervas, and standing with his back to a wall, Mr Gilbert came up and threw a punch at him, missing.
5. The following paragraphs are taken from the Crown's summary of the trial, and are accepted as fairly setting out the effect of the appellant's evidence concerning the relevant events: 73. Upon arriving in Leichhardt, the appellant telephoned Zervas to let him know that he was there. The front door to Zervas' unit was open and he went inside. Zervas' unit was set up like a mini office with a desk and three chairs. Zervas was seated by his desk and the appellant sat down, making small talk. The appellant said Zervas took a telephone call, then said he could not remember if he got a telephone call. About two to three minutes after he arrived, Gilbert came into the unit, sitting down on the appellant's right. He did not see Gilbert walk into another area of the apartment. After speaking for some time, the appellant asked Zervas if they could speak privately in the hallway. Zervas agreed and they walked to the end of the hallway, close to the entrance to the unit block. [T 173-175] 74. At the entrance, the appellant got straight to the point, saying that he had heard that they were being extorted by bikies. Zervas responded, "Are you serious? Who? Which bikies?" The appellant told Zervas that he did not know but had heard they were being extorted and asked if he could help. He told Zervas he had heard he might know something. Zervas said that he did not know anything and the appellant responded, "Yeah, as if you don't know. You know everything around here. Talk to me." He was a bit edgy. He was anxious because he wanted to know about what he had heard. He was not as calm as he was in giving evidence, but was not aggressive. He did not yell. [T175] 75. Zervas said that he did not know anything and the appellant said, "Think. Come on. I heard you know something. Talk to me. Tell me something." Zervas then "clutched" his face and started to look around. Zervas started to fidget and becoming agitated, asking the appellant if he was accusing him of extortion. The appellant said he was not accusing him of extortion and Zervas responded, "You're fucking accusing me of extortion. What the fuck." Zervas was loud and aggressive. In a normal tone of voice, the appellant asked whether Zervas was extorting them, to which Zervas replied loudly, "How about fuck you and your family". The appellant told Zervas to "watch it". [T 176-177] 76. Zervas was very close to the appellant's face, "bridging up", like he wanted to fight. His hands were out with fists clenched and his head was up. [T 177-178] 77. After telling Zervas to watch it, Zervas said, "Or what there? Or what? Or what? Or what? Or what? What are you gonna do? Or what? Or what?" When Zervas said this, the appellant tried to push him off him, because he was coming so close. Their hands "tangled and jumbled in the middle". He did not push him hard, pushing only to create some distance. Zervas and the appellant were both trying to grab each other's hands and Zervas grabbed his hands and pinned them against the wall, by his side (demonstrated). Zervas then gave him a "semi forceful head butt to the jaw". It did not hurt. Gilbert then came from the direction of Zervas' unit and threw a punch at him. The appellant moved his head and the punch missed. [178-179,187, 192,193-194,208,209] 78. The appellant was wriggling to free his arms but Zervas held onto them. The appellant then leaned in, closed his eyes and bit Zervas. He could not believe when Zervas' nose came off. They all went into shock. There was a lot of screaming. Zervas let go and clutched his face and the appellant wriggled his way out and left. Someone held him by the back of his shirt and pulled at him. It was a bit of a blur after that. [T 179-180, 188, 240] 79. He was in fear and in shock. He could not believe how Zervas was acting. Zervas' aggression shocked him. The appellant thought that he was being attacked by two men with links to the Hells Angels and did not know what to do. He wanted the fight to stop and bit Zervas as a last resort. He did not intend to bite his nose off. [T 179-180] … 84. In cross-examination, the appellant agreed that he bit Zervas' nose, applying significant force to remove part of it. It happened quickly. He did not remember pulling away with the nose in his mouth or spitting it out. He was in shock. He did not intend to target Zervas' nose. He was not holding Zervas when he bit him. He could not remember if he was still struggling with Zervas after he bit him. He denied slamming Zervas against the wall of the corridor. [T 185-186, 188, 209,210,238] 85. In cross-examination, the appellant said that even though Zervas was much shorter than him Zervas hit him in the jaw with the semi-forceful head butt. He was bigger and stronger than Zervas but Zervas was acting aggressively and had someone with him, both of whom were associated with bikies. The appellant was not aggressive. Later in cross-examination, the appellant said Zervas was taller than his chin. The appellant was not a professional boxer although he taught people how to "throw their first punch". [T 186-187, 238-239] 86. In cross-examination the appellant said that after he bit Zervas, Gilbert had his arm "cocked" as though he wanted to throw another punch. Gilbert was not trying to break up the fight. [T 194, 209,210,235] … 88. … The appellant agreed that he had pushed Zervas before he bit him, but said that it was not a forceful push; he was trying to create distance between them. He did not push Zervas against the wall. He could have pushed Zervas a lot harder but did not. [T 189-190, 191-192, 205, 206] … 92. In cross-examination, the appellant said he felt threatened. He was in a bad situation, the only thing he could do at the time was bite Zervas. He could not throw punches or kick and could not yell for help as there was no-one there. Later in cross-examination, the appellant said he had been hit, head butted and punched by a very large man. He said he was being attacked from both angles. He said he had no option but to bite Zervas' nose. He was being attacked and was in fear for his life. He knew that biting someone would cause an injury. He did not intend to take a chunk of Zervas' flesh or to cause him grievous bodily harm. [T 199, 208, 213-214, 239, 240]
6. In its closing address, the Crown urged the jury to reject the appellant's evidence as to the circumstances in which the charged conduct had occurred as "totally unreliable". The matters referred to in support of that submission included that the appellant had in text messages to his brother denied that he had bitten Mr Zervas; that he had also made false statements to the police in his first record of interview which included that he did not have a fight with Mr Zervas or know anything about the circumstances in which his nose had been bitten off; and Mr Zervas' hearsay statements to the police which included that he had "invited the accused inside and during the conversation Zervas went to hug him and the accused then said to Zervas 'you fucked my family' and bit him".

The misdirection

1. The Crown also submitted in its closing argument that even if the jury was to accept the appellant's evidence, the circumstances did not warrant the biting off of a man's nose. Referring to the appellant's version of events, the jury was asked: Does it warrant placing teeth beneath, teeth above the nose and biting, enduring a crunch and removing the nose from a person's face? In my submission even if entertaining that version it was not a necessary action, it could be no way deemed to be a necessary action and it could not have been reasonably on reasonable grounds believed by the accused to have really been a necessary thing to do in those circumstances. Indeed it just was not a reasonable response.
2. As the appellant observes in his written submissions to this Court, this passage is somewhat confused, suggesting that the jury had to consider whether the accused had reasonable grounds for believing that it was necessary in self-defence to bite Mr Zervas' nose, as well as their having also to consider whether what he did was a reasonable response in the circumstances. Defence counsel did not, however, seek any direction with respect to that statement and in his concluding remarks to the jury focussed on the second condition for the availability of the defence: I would also ask you to find that … [the appellant's] response was not disproportionate because he believed that his welfare was in very serious jeopardy and even though the injury itself is a grisly one to look at if you think about his actions and what he did, he was entitled to defend himself.
3. Before commencing her summing up, the trial judge provided the jury with a two page document (MFI 9) that included a statement of the elements of the offence charged, and of the alternative offence of recklessly causing grievous bodily harm (Crimes Act, ss 33(3), 35). In relation to the offence charged, the document noted that "the Crown must also prove beyond reasonable doubt that the accused did not act in self defence". It then included the following under the heading "DEFINITIONS": A Person Acts in SELF DEFENCE if a) He believed the action he took was necessary; and b) There were reasonable grounds for holding that belief.
4. Early in the summing up her Honour described self-defence as arising "where the person believes that in this case biting down on the nose was necessary in order to defend himself and what the accused did was a reasonable response to the circumstances as he perceived them at the time". The trial judge also told the jury that although "self-defence is referred to as a defence, it is actually for the Crown to negate or to eliminate it as an issue by proving beyond reasonable doubt that the acts taken by the accused do no fall into that category". Her Honour continued: To do this, the Crown must prove either that Mr Harafias did not believe at the time he bit Mr Zervas on the nose that it was necessary to do what he did in order to defend himself. … or they have to prove that the action by Mr Harafias, the bite, was not a reasonable response in the circumstances as he perceived them to be.
5. Thus far the trial judge had correctly directed the jury as to what the Crown was required by Crimes Act, s 419 to prove in order to eliminate self-defence as an issue. However it was at this point that the difficulty of which the appellant complains arose. Her Honour returned to what the Crown had to prove in order to negate self-defence. Referring to MFI 9 and the formulation of self-defence, the trial judge continued: [The Crown] does not have to prove them both. If you decide that the Crown has failed to prove either of them, then the appropriate verdict is not guilty. I think I have a summary of what I have said at the bottom of the definitions on the elements of the offence. That is a matter for the Crown to prove beyond reasonable doubt that he did not act in self-defence either by proving that the accused did not believe the action he took was necessary or by proving that there were no reasonable grounds for holding that particular belief. [Emphasis added]
6. That direction, and MFI 9, did not correctly describe to the jury the second of the conditions necessary for self-defence to be available to an accused under Crimes Act, s 418(2). Each wrongly describes that condition by reference to the position as it was under the common law.
7. The question for this Court is whether in the context of the whole of the summing up there is a "real possibility" that these directions misled or confused the jury in relation to their task in dealing with the issue of self-defence. The appellant was entitled to a trial in which the "relevant law is correctly explained to the jury" (Mraz v The Queen (1955) 93 CLR 493 at 514 per Fullagar J). That could not be said to have occurred where there is such a possibility.
8. The appellant particularly relies on the fact that there is an error in the written direction which was emphasised in the summing up, and not subsequently corrected or qualified. For the reasons explained by Simpson J (as her Honour then was) in Justins v The Queen (2010) 79 NSWLR 544; [2010] NSWCCA 242 at [242] it is submitted that the jury were likely to have been guided by the written direction and to have proceeded on the basis that one of the ways in which the Crown would have eliminated self-defence as an issue was if they were satisfied beyond reasonable doubt that the appellant did not have reasonable grounds for a belief that it was necessary in self-defence to do what he did. In Justins, in a passage cited with approval by this Court in Abdallah v R [2016] NSWCCA 34 at [75] and H v R [2016] NSWCCA 63 at [70], her Honour said: …… [It] must also be remembered that a jury will have the written directions in the jury room long after the oral directions have concluded. It will be written directions to which the jury will have resort, perhaps repeatedly. And the force of the written word will be likely to override the recollection the jury has of the oral directions.
9. The Crown does not contest these propositions. It accepts that MFI 9 and the reference to it in the summing up were not correct and that it is open to this Court "to conclude that error in the trial judge's summing up has been established". I agree and am satisfied that there is at least a real possibility that the jury deliberated by reference to that error, or were at least confused as to one of the elements of self-defence.

Criminal Appeal Rules (NSW), r 4

1. The question then arises whether the appellant should have leave to raise and rely on this misdirection in circumstances where there was no complaint by his counsel as to any aspect of the trial judge's summing up. The appellant contends that leave should be granted because the direction misstated one of the matters which the Crown could prove to eliminate self-defence where that was an issue in the trial. For that reason the misdirection was not trivial and a substantial miscarriage of justice may have occurred. In response, the Crown accepts that this Court "might consider that leave should be granted". In my view, for the reasons advanced by the appellant, leave under r 4 should be granted.

The proviso

1. Section 6(1) of the Criminal Appeal Act provides: The court on any appeal under section 5(1) against conviction 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, or that the judgment of the court of trial should be set aside on the ground of the wrong decision of any question of law, or that on any other ground whatsoever there was a miscarriage of justice, and in any other case shall dismiss the appeal; provided that the court may, notwithstanding that it is of opinion that the point or points raised by the appeal might be decided in favour of the appellant, dismiss the appeal if it considers that no substantial miscarriage of justice has actually occurred. [Emphasis added].
2. As the evidence raised the possibility of self-defence, the Crown bore the onus of disproving beyond reasonable doubt the existence of one or other of the two conditions necessary for the availability of that defence. The need to consider the second of those conditions arose if the jury could not be satisfied beyond reasonable doubt that the appellant did not believe that biting Mr Zervas was necessary in self-defence. The misdirection had the consequence that in order to eliminate the availability of self-defence by disproving that second element, the Crown had the less onerous obligation of proving to the requisite standard that the appellant did not have reasonable grounds for some part of that belief rather than that his conduct in biting Mr Zervas was not a reasonable response in the circumstances as he perceived them.
3. Whether this misdirection is characterised as involving a "wrong decision on any question of law" (Krakouer v The Queen (1998) 194 CLR 202; [1998] HCA 43 at [23]) or as being "on any other ground … a miscarriage of justice" (Filippou v The Queen (2015) 256 CLR 47; [2015] HCA 29 at [14], [85]) it is not one which can be dismissed as trivial or as being of no relevance to the jury's determination of the guilty verdict.
4. This makes it necessary for this Court to consider the application of the proviso and whether "no substantial miscarriage of justice has actually occurred". The Court cannot be satisfied that no "substantial miscarriage of justice" actually occurred, so as to engage the application of the proviso (Baiada Poultry Pty Ltd v The Queen (2012) 246 CLR 92; [2012] HCA 14 at [25]; Lindsay v The Queen (2015) 255 CLR 272; [2015] HCA 16 at [43], [65]), unless it is persuaded that it would not have been open to the jury, properly instructed, to entertain a reasonable doubt as to the appellant's guilt: Weiss v The Queen (2005) 224 CLR 300; [2005] HCA 81 at [43]; Baini v The Queen (2012) 246 CLR 469; [2012] HCA 59 at [33]; Lindsay v The Queen at [86]. If this Court is satisfied as to the inevitability of conviction, it must then consider whether there has been "some other departure from a trial according to law" which warrants the description "substantial miscarriage of justice": Filippou at [15].
5. In addressing the inevitability of conviction this Court must make its own assessment of the evidence and determine whether, making due allowance for the "natural limitations" that exist in the case of an appellate court proceeding wholly or substantially on the record, the appellant was proved beyond reasonable doubt to be guilty of the offence.
6. As was emphasised in Baini at [32], that inquiry is "whether a guilty verdict was inevitable not whether a guilty verdict was open". It is to be undertaken by reference to the "whole of the record of the trial including the fact that the jury returned a guilty verdict". That is to take account of the possibility that the appellate court can conclude that the error made at trial would, or at least should, have had no significance to the verdict returned by the jury: Weiss at [41], [43] and Baiada at [27]-[28].
7. There can be no doubt that in biting Mr Zervas' nose the appellant caused him grievous bodily harm. The remaining and critical questions for the jury (taking account of the prosecutor's onus) were whether they were satisfied beyond reasonable doubt that he intended to do so and that, in doing so, he did not act in self-defence. To return their verdict of guilty the jury must have been satisfied as to each of these matters. The misdirection only has significance for the way in which the jury approached and dealt with self-defence, and specifically as to the absence of the second of the two conditions that were necessary for its availability. It was sufficient for the Crown to disprove either of those conditions to negate the availability of that defence.
8. Although the guilty verdict necessarily involved the rejection of the appellant's evidence that he did not intend to bite Mr Zervas' nose, it did not follow that he did not or could not have believed that it was necessary to do so in self-defence. Taking account of the misdirection, the jury's guilty verdict is consistent with their being satisfied that the appellant did not believe that the charged conduct was necessary in self-defence, or that he did not have reasonable grounds for such a belief. The jury's decision on one or both of these questions depended to a significant extent on their assessment and evaluation of the appellant's evidence.
9. That evidence, taken at its most favourable, was that the appellant was being attacked by two men who he believed had links with the Hell's Angels, that Mr Zervas had head-butted him and Mr Gilbert had thrown a punch, that his arms were pinned by his side, that he could not throw a punch or kick and that he was in fear of his life. I am not satisfied that it was not open to a jury on that evidence to entertain a reasonable doubt as to whether the appellant did not believe that biting Mr Zervas was necessary to defend himself. Although the Crown did not concede that to be the position, it made no submission arguing otherwise.
10. Assuming that it was open to a jury to have such a reasonable doubt, it is necessary also to consider the second condition that the Crown was required to disprove. Taking account of the limitations which arise in dealing with evidence on the record, I also am not satisfied that it was not open to a jury to have entertained a reasonable doubt as to whether the appellant's conduct was not a reasonable response in the circumstances as he perceived them. His arms were pinned and he did not consider that he could throw a punch or kick in response to the immediate threat which he perceived to be presented by Mr Zervas and Mr Gilbert. Aside from the three men involved, no other person witnessed the events.
11. Whilst a reasonable jury properly instructed was entitled to be and would have been sceptical of the appellant's evidence, I cannot say that having the benefit of hearing that evidence and the evidence of Mr Gilbert, such a jury inevitably would have convicted the appellant. That is so notwithstanding that, as the Crown submits, the appellant's response to the threat perceived was undoubtedly extreme. Thus the present case is one in which the nature of the misdirection by the trial judge prevents this Court from reaching the conclusion that the appellant must have been convicted if the error had not been made because of the "natural limitations" that attend the appellate task: Baini at [29], [32].
12. It follows that I cannot conclude that no substantial miscarriage of justice actually occurred as a result of the trial judge's misdirection.

Conclusion

1. The appellant accepts that the evidence was capable of negating that he acted in self-defence, with the result that there should be a new trial: Pollock v The Queen (2010) 242 CLR 233; [2010] HCA 35 at [70]-[71]. That being the position I propose the following orders:
2. Grant leave to appeal.
3. Appeal against conviction allowed.
4. Quash the appellant's conviction of the offence charged in the indictment dated 29 June 2015.
5. Order that there be a new trial.
6. ROTHMAN J: I agree with Meagher JA.
7. BUTTON J: I agree with Meagher JA.

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