Helmhout, John Michael v. The Queen [1980] FCA 138

2. TReat the verdict anc judgment of the Supreme Cour. of tar Australian Capital Ternitery wnercky Lue aprellarnl was cornvterced oF the crime of malicicusly wounding David Peter Heimhout with

ce That the sentence inpesed upon the evppellant consequent

4, Thet tre appellant be retried upen the counl of malicicus vy wcunding -eter David Helmnout witr intent to uo grievous bedily harm at a time to be flexed ly the Suprem: Court of the Australia Capital Territory.

S. That the appellant be remanded in Ns wuresent cusrody

pening his retrial cr the earlier com-lce~ien ot the proceediney uron th. ancictment upen which he vas ceomvi1otsd as apo esaid, suktecl toe such orcer as Lhe Saprem. Courl cf tne Australian

Capital Verritory may make with resveet te herling the apretlane.

IN THE FEDERAL COUFT OF AUSTRALIA ) ) No. F.C. & of 196¢ AUSTPALIAN CAPITAL TERRITORY REGIS'LRY 3 )

ON APPEAL FROM THE SUPFEME COURT OF SHE AUSTRALIAN CA-TTAL TONPTTORY

The appellant was charjed on indictment Ddetcre the

Supreme Court of the Australian Cazital Territorv on a ceunt oF felonrously wounding David Peter Helmhout with uncent to murder ena in tne alternative cn a count of maliciously wouncing TLevid Peter Helmhout with intent thereby to do grievous bodily harm.

After a tr1al befor. sleckburn C.J. and a jury he was ecqaittee on the first count and convicted on the seecnd. 4H

to imprisonment for threc years with a non-searole period of 1? months. He appeals to this Court against ais conviction and

yhe cincumstance® oul o* wher rhe crarse= arose showee chat Ae aopel rant and 7is sroTthe® > che David peter HeLThous menticnes tn the yreietmer" > qene ayinking in the compay ot others darin' tae arternoo? am evenias of } Novem 2r 197%. Dav yas & piggert man *han "uc apnetiant and is allexF= ne appe-iait» Rie prether and one patters or > ith hom tney hac pcan epinsints were Alki fowarce Civic centre when the appellant ance 2-5 protrer commen 2a arguing and Davic nit the aopeliant cn he 51de 57 wre head- perrerson's evidence as to wnel ons acd 6as chat tne appellant was pecking orf, David continues +O punc' a: hyins yhe appellant nrodaced @ yn fe > David snen gtcriee wackins at iM» and tre apoellan wan avey and wae cnased by javi18 ho caunte { and insu-t 2 him There was evidence? spat be _ spoThere were at seast rently gnzoxicated at the time- yne appeltare stanoet David yita the nite ana one of Whe ™ unde quiv/en he nade yerow> +xhnough portunately pavid survived: ,

Tne ap eLlart -sade an anevorn _tacemet + shicl +ne rearmnes trial Sage pepeated an ms cnavge zg ce jury In thet gratenent he apd sellan= pads inter celia, act pavyid vee call Lat yim obscene names a) aoat ne ly proportionate it eneuld aequis.

envilc be either Marsla water cz murder, depend*ng upen the amstve> to the liaal

che jury - iid the accused deliev- toa' which hz usec vas reacone ly pr danger which he bcelicved he taced"™

5. "f the Jurv i8 satislied we7on] reasonable deabt that mere Corea was used, then its veréict hat

li the furv *s satisfiei Leyord ro t ecuecd did not lave suer te tTurden. IC itas

"Vobp J. said (fihid, at p.1°8) that th_-3 staterenl shoule oe

& jury in a trial for aurcer where bho force used by an aceuss!

he facec, It 15 not directed to the task of a jar where the force used in sel- defence was ne more than proaportiomate ce th: actual danger faved by the accuseé. It is apparent

from the statement that the fact tnat the foree used by a

yw QQ fe) SS a lo fen x fu a Q I- g UC be} a 'UJ ie)ct° p itct Q

faezd dil not, in itseli, dispose oF the cefence of s:lf

detTence, if the accused night have Lelieved that rk

'ury to conclude that the appellant might have entertained an

evaggiratec beliel as to the canger which he Iocel by r2easen

g of his >rotner''s unlawful attack upon him. 'Tat Deng €%, LT was necessary that the jury be directed to consider wacther

tre Furce used by the appellant ma, Rave >oen propertionatle

to the danger wnich he belzeved he facec. In that regard, Hazon J's staterent oF the appropriate. dUfvection in a murder trial ncec2 to be adapted for ase where the relevant cherge

Taragrap 3 and € ot the statement are concerned wich

Paragraphs L to |} relate to the justification o7- grap J

In @ case where an accucea has v~1ited the Cerson attaer

threatening nix. As self deyere. may juslily cha use of revo g J

paragraprs 1 to 4 epplv, mutatis mutardis, to cases oLlher

25 an issue, paragraph 1(a) would be expre.sed to read:

"Te is for the jurv first to vonsidsr wrether wren the accused apelied Force to the person of another the accusce reasonably believed

The test of whether an accused's belief was mrasonasle

16 mot vthether an unlewfui attack wa. being made or was abeac

be mae cu hir. The test 1s whether the accused himself migit reascnebiv

thal an unlawlul attack was being or was abuut toe be mace uden

hin. Uniess the jury i tis-1ed hLeyond reasonakLle dou-t that

-aG being or was about to be made upon Alm, the yu2zslion oF the

prepertionali'y of tne foree actually user will arise Lor

force? actually uscd by the accusel was reasonably npoporcioncste pe cetarmined by referenes to the deugar which the accused

lelieved he faced. However, in cat view, Daracrapn 3% Coe. not roguive a positive finding by the jury es to the ~recise de of the agcused in thac regard. Wheres the Jury 18 not satisfied

beyend reecsonable douLt as to that preeaise belief of Lhe acoused,

the reievant question 13 whether the ~orce actually used "ias reasonaDdly propertionat? tu the gravest Ganger

in wiier, as a matter af reasonavlie doubt, the jure corsiders

qu2slicn in other words, whetaer che jury is cat-sfiel beyond

yeasonadls douLt that *he Foree actually ueec was 2

te tee danger in which the accused might have belseved himselt to he placed.

fné summing a of the learned trial judge drew the jury's altent_cn to tne eviderece of che actual cireurizttaress 'arreunc'ng the stabbing. E1s Nenour tola the jury trat there 'ras no doudt that there was Eoth actual ans threatened application ef force tc the appellant. As there vas little recon ~or toubtang that the 2ppellant pstioveld thal an utlavful aitack Was o2ang made upon hin, the vital pirt or his [Iuncur's suming

the tury .o corsider vhother the toree 1n fact used "y the

aepellant wae tustiztied. His Tencur did net, in terms

tie tury that it was relevant for them to consider whether the force which the appellant used was reasonably provortionets to

the danger which he believed he faced or which he might

Careful reading of the relevant sections of his Horour's summing up leads us to the conclusion that the overail effect was to invite the jury to say whether they were satis*iec that the apeellant had applied more force then was reasondbdly nevessary in the actual circumstances oF the case in order to prevent the actual or immediately threatened application of Force to himself. It was implicit in the summing up thet if the jury were satisfied beyond reasonable doubt that that was so, the de"ence of self defence failec. In this regard, hin Tunour 's

charge to the jury stopped short of the direction +

think, the views expressed by the majority of the High Court in

eum probeble that the nemoers of the jury did not address their minds to assessing the proportionality of the force usec by reference to the danger in wrich the accused mighzt reasonavly have betieaved himsclf to be Placed but confined Lhemselves to the obuective cuestion enunciated oy his Honour. That may well have resulted, in the

particular circumstances, 1n a view of the case lees favoureble

to the accused. In these circumstances, we cat Feel "no reasonable assurance Lhat tne blemish of the trial could not reascrably be supposed to have influenced the resulc"

(Duff v. R. (1979) 28 ALF 83 at 3.678). Subreot to the cf fact

the end cf the summing ur, the non-direction require: thic the verdict of wounding with intent thereby to co grievous bodily harn be set aside and would have requived the setting «sice of a

verdict of guilty of malicious wounding hae the jury reached tha

alternative verdict which was cpen to them on the indictment.

Counsel who appeared at the trias made ne suggestion, at

the conelision of his Eorour's summing up, that his Honour's directions on the issue of self defence were in any wey defro1enl. A failure Ly defence counsel may, in scmé cases, nave an

umpertant bearing on the question whether a miecarpiace or 1us' ce

nas occurred so as to entitle the aceused to a new trial

(The Sueen v. Lavery Clo.?) (1977) 20 S.A.5.F.439 ac p.'5i), -

secure as far as possible that Zuscice be done according to the

lav. In tue present case, as Ais Henour's cairections to the fury vere lrable to cause them to isnore an important aspect of

of self detence, the Latliure to reise the matter at tho

enc cf the summing up does not provide suftie1rent reason for refusing to set aside the verdict of gatity of wouncing "ith

uppellant, there is no basis upon which an aptellate court could

'J cperiv substitute for that verdict a verdtet of fullly on che

ser alternative charge of malicicis wounding. This Court should orcer a new trial on the count of malicious wounding "ith

it is unnecessary for tne disposal of this appeal tc Zeal with the two other substantive grounds of atseal which vere argued, In view «2 the orzer for retrial, however, it wouleé secm desirable

that we make some brief comment on the questions tunvolved in thos.

The evidence of intoxication in this case was relevert both to tne appellant's capacity to form the relevant intent ard to the question whcther in fact he forned it. It the evidene: on ary retrlal 1s to the same effect as on the trial, tne jury shoule Le directec in the manner defined in Varo's cese (supra); that is to say, that the Crown must prove beyond veasonable doubt tha' the appellant actually formed the 1autent to do grievous bodily harm and that the appellant's state of intoxication is rilevanc to thel 1ssue generaily. It 1s ansaffireiint end perhaps misleac-nz direct the jury in terms wnizh are reetricted to tne cavracity Tu ferm the relevant intent. We rote that, in the ergume..t betor: us

it vas unnecessary to develop the relationship between wnat

Sibts J. said in Viro's case (rupra, at p.111) ard whe qadenon

of the Figh Coupt in ¢'Connor v. The Jaueen (1960) 29 ALR 44g,

Insofar as provocation is concerned, we agree with his EHonour's ruling that the defence of provocation for whieh

s.23 of the Crimes Créinance provides has no applicaticn to th

cZfence cf maliciously wounding with intent to do grievous bodily

harm. We shoulc, however, wish to guarc against th of reasoning which 18 founded upon the Victorian cases of

Newman v. The Queen [1948] V.L.P.21 and Spartels v. The Queen

C1953] V.L.R.194 . Though it i3 unnecessary finally to decide

the question, the judgment of Pape J. in Falta v. The Queen [19¢éu]

V.R.78, veltusing to follow the earlier rulings in Victorie, appears consistent with principles which require the existence

of the special intent 1n murder before allowing for the eperation of prevocation tc reduce murder to manslaughter (see Johnson v. Reg. (1976) 51 A.L.J.R.57). But on any view, pruvocation is

inappliceble to the offence contained in the count upon which

The verdict and conviction appealed against should be

aside and a new trial should be ordered. Clearly enough, if

conviction be set aside, the sentence must alo fall, ané

the setting aside of the sentence would entitle the appellan

Lo be discharged rrom his former custody. Yer if there 15 to be a retrial the appellant must te remanded to stand trici before the Supreme Court and his presence DeTorse thet Court must 5e sécared. In other jurisdictions, a power is expressly conferred upon the

Court of Crimina} Appeal to place an appellant into his furmer

custedy or to adrit him ts bail pending his retrial, bat there 1s

aL Lsefore Mepretony., TT aD AT? OPW Le. aT 7eyer OF Nive san te T. 23 s..an220 3 Ts, the Tov wo ezdir a relriil. anh tn-s case, che rest TT? 5 8r 1s to r:amand tne é is verore the Sarreme Co DTCs LLP TS ineretriont a.3 earliar terminates. Unuir

ts ator \ dosocrate! fo j ca | bears 4. fe J aoti-4 - -