Lackner v R [1999] WASCA 145

Court of Appeal (WA)|1999-08-23|Before: Scott J, Steytler J, Pidgeon J, Anderson J

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA

CITATION : LACKNER -v- R [1999] WASCA 145

Criminal law - Jurisdiction practice and procedure - Summing up - Self defence - Jury misdirected on second limb of Criminal Code 1913 (WA) s 248 - Jury also directed as to possibility of mistake under s 24 - No miscarriage of justice in the circumstances

Respondent : Acting State Director of Public Prosecutions

Australian Coal & Shale Employees Federation v Commonwealth [1953] HCA 25; (1953) 94 CLR 621

Garlett v Dillon, unreported; SCt of WA (Scott J); Library No 960353; 5 July 1996

Krakouer v The Queen [1998] HCA 43; (1998) 155 ALR 586

Pemble v The Queen [1971] HCA 20; (1971) 124 CLR 107

R v Brand, unreported; CCA SCt of WA; Library No 980590; 9 October 1998

R v Dickson, unreported; CCA SCt of WA; Library No 990203; 23 April 1999

R v Dinsdale, unreported; CCA SCt of WA; Library No 990021; 2 February 1999

R v Liddington (1997) 18 WAR 394

R v Magoutas (1985) 2 MVR 66

R v Repacholi (1990) 52 A Crim R 49

Sindel v R, unreported; CCA SCt of WA; Library No 990110; 16 March 1999

Tan v R, unreported; CCA SCt of WA; Library No 960188; 1 April 1996

Wilde v The Queen [1988] HCA 6; (1988) 164 CLR 365

1 PIDGEON J: I agree with the reasons to be published by Steytler J.

2 ANDERSON J: I agree with Steytler J that this appeal should be dismissed, for the reasons given by him. I do not wish to add anything to those reasons.

3 STEYTLER J: This is an appeal against conviction. An appeal which had been lodged by the appellant against sentence was abandoned prior to the commencement of the hearing.

4 The appellant was, on 3 December 1998, convicted by a jury of the offence of assault occasioning bodily harm.

5 The offence is alleged to have occurred on 1 June 1997. On that night the appellant was at the Navigators Nightclub in Sorrento. At about 3.00 am an argument developed between the appellant and a Mr Glenn McCallum. Not long after that each left the nightclub separately, the appellant being in the company of his friend Shane Evans. However the three met up outside the nightclub and their argument continued. It reached a stage where they were separated by security staff employed by the nightclub. The appellant and Mr Evans thereupon left in a taxi but the taxi stopped and Mr McCallum approached the appellant. The appellant then got out of the taxi, as did Mr Evans. The appellant at first armed himself, he said, with a stick but then threw it away. A scuffle developed involving the appellant, Mr McCallum, Mr Evans and a fourth man, a friend of Mr McCallum. In the course of the scuffle the appellant and Mr McCallum fell to the ground. The appellant got up and dragged Mr McCallum some five to seven metres and then kicked him, causing injuries to Mr McCallum's head in the form of a fracture to the right cheek bone and other facial fractures.

6 The appellant raised a defence of self defence at his trial. He said in evidence that when he kicked Mr McCallum in the head he did so in order to protect himself. He said that his friend, Mr Evans, was "not very strong" and that he regarded himself as being "under a huge threat at the time". This was so, he said, because he had already been knocked down and did not want to be attacked again. He said that he did not want Mr McCallum "to hurt ... [him] again". When asked whether there was anything else he could have done in order to get out of the situation he said that he did not think that there "was much really ... [he] could have done". He said that if he did not "stop" Mr McCallum "then and there" he thought that he "would have been the one in hospital". He said that he was "just scared for ... [his] well-being". Later in the course of his evidence-in-chief he said that Mr McCallum was strong enough "to beat the both of us up by himself" so he feared more for Mr Evans than himself and feared "enough for me to kick him to stop him".

7 It was put to the appellant in the course of cross-examination, that when he dragged Mr McCallum "it was all over then". He denied this and said:

"As I was dragging him backwards he was trying to attack me. He was swinging and kicking, trying to grab my legs and trip me up. He wasn't on the ground. He was basically on his hands and knees trying to get up the whole time because I was moving backwards so quick he couldn't get to his feet."

8 At another point in the course of his cross-examination the following exchange took place:

"It wasn't necessary to kick him to get away. You were dragging - you say you were dragging him along the ground? You dragged him 5 to 7 metres? - It was a reaction. It [sic] didn't intentionally kick him. It was a reaction. He come up. All I saw was a set of head and shoulders charging for me again. I was scared, he's bigger, he's stronger than me and I put my foot out to stop him."

9 Shortly thereafter the following further exchange took place:

"Whilst he was down on the ground. You had him, you were dragging him along? - He was not down on the ground. I just explained to you that he was getting up. He was on his hands and knees. I could not drag - can you imagine the friction of someone's whole body laying on a pavement? There was only the friction of his knees or elbows or whatever he was trying to get up. I was dragging him.

But you had got him away from the fight then, hadn't you? --- Yes.

Why was it necessary to kick him? --- Because he was attacking me. He was still holding onto my friend. He was still holding onto me. He was still attacking us. He had just knocked me down like a raging bull and he hadn't stopped. He was in a frenzy. His arms and legs were going crazy. He was trying everything to hurt me and my friend. He didn't stop. When I pulled him away it all happened within five minutes. It was all - it wasn't like I stopped, walked back over, dragged him over there and then kicked him or something. It wasn't like that. It all happened so quick. When you have got a big guy that's crazy - he was a lot bigger than he is now - he's going crazy, I'm panicking. I didn't want to get hurt. It was either going to be me or him."

10 Before directing the jury in respect of the elements of the offence with which the appellant was charged and the law with respect to the defence raised by him the learned trial Judge discussed with counsel the question whether there should be any direction with respect to the second limb of s 248 of the Criminal Code (WA) ("the Code"). That section reads as follows:

"248. When a person is unlawfully assaulted, and has not provoked the assault, it is lawful for him to use such force to the assailant as is reasonably necessary to make effectual defence against the assault, provided that the force used is not intended, and is not such as is likely, to cause death or grievous bodily harm.

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

11 The learned trial Judge said that he took the view that the evidence did not establish a fear on the part of the appellant or any issue sufficient to go to the jury whether the appellant "thought that he could not otherwise preserve himself or his friend, for that matter, from death or grievous bodily harm by himself using grievous bodily harm".

12 His Honour consequently declined to direct the jury on the second limb of the section.

13 The learned trial Judge's failure so to direct the jury is raised as the sole ground of appeal.

14 It seems to me, with due respect to the learned trial Judge, that the evidence led at the trial was such as to raise an issue for the jury, not only whether or not the appellant had himself been unlawfully assaulted by Mr McCallum in circumstances in which he had not provoked that assault but also whether the assault by Mr McCallum (if the jury found that there was one) was such as to cause reasonable apprehension of death or grievous bodily harm and, if so, whether the appellant believed, on reasonable grounds, that he could not otherwise preserve himself (or his friend, Mr Evans) from death or grievous bodily harm than by kicking Mr McCallum on the head, as he did, it being plain that this measure involved sufficient force to cause grievous bodily harm.

15 There was enough in the evidence of the appellant to which I have referred above to enable a reasonable jury to decide that issue in favour of the appellant if, of course, it accepted that evidence. That being so the issue should have been left to the jury to determine even if, as might be inferred, the learned trial Judge believed the defence to be weak or tenuous. As was said by Gibbs J in R v Muratovic [1967] Qd R 15 at 20:

" ... [T]he plea of self defence may seem to a judge to be weak and tenuous, but it is for a jury not a judge to decide upon a plea of this kind, as upon any other question of fact, provided ... that there is evidence on which a reasonable jury could decide the issue favourably to the accused."

16 However this conclusion is not enough to dispose of the appeal. After the learned trial Judge had completed his charge to the jury he was asked, by the then counsel for the appellant, to address the jury with respect to s 24 of the Code. That section reads as follows:

"24. A person who does or omits to do an act under an honest and reasonable, but mistaken, belief in the existence of any state of things is not criminally responsible for the act or omission to any greater extent than if the real state of things had been such as he believed to exist.

The operation of this rule may be excluded by the express or implied provisions of the law relating to the subject."

17 The jury was thereafter recalled by the learned trial Judge who proceeded further to direct it. Having told the jury that it was for the Crown to establish that the appellant did not act in self defence which, his Honour said, in the context of the case meant that it was for the Crown to establish that the force used was more than was necessary and that it was likely to cause grievous bodily harm, the learned trial Judge went on to say:

"There is another aspect to the matter that I should also bring to your attention. The law is that a person who does an act under an honest and reasonable but mistaken belief in the existence of a state of things is not criminally responsible for the consequences of that act. So if you mistakenly believe that it is necessary to do something and that it is not unlawful, you are not criminally responsible for the consequences of the act.

A person who does or omits to do an act under an honest and reasonable but mistaken belief in the existence of any state of things is not criminally responsible for the act. That principle does have an application to play, an application in a case such as this. You see, the accused says he only used such force as was reasonably necessary to make effectual defence against Mr McCallum's attack on him, but having considered the evidence, you could, members of the jury, come to the conclusion - it is a matter entirely for you - that the accused did use more force than was reasonably necessary; he did use more force.

That, however, isn't the end of the matter because of the principle I have just referred to, the principle that someone who does something under an honest and reasonable but mistaken belief as to a state of things is not criminally responsible for what he did. And so that principle applies in this way in this case: if the accused, even though he used more force than was reasonably necessary, honestly and reasonably believed that he had to use that degree of force to make effectual defence against Mr McCallum, he would be not guilty because he would be acting under an honest and reasonable but mistaken belief that he had to use that degree of force.

And so that principle comes into play here and again it's a principle to be applied having regard to where the onus of proof is and the burden of proof. It is for the crown to establish then not only in the context of this case that the accused used more force than was reasonably necessary to make effectual defence, but also that he did not have an honest and reasonable belief that it was necessary to use the degree of force that he in fact used. It is for the crown to establish that the accused did not have an honest and reasonable but mistaken belief that he had to use the degree of force that he in fact used.

And as to that, again the evidence that I have taken you to and the evidence you have heard and seen is there for you to consider, the evidence as to the kicking and whether it was a kick, the force of the kick, the results of a kick and the circumstances in which the kicking was delivered, whether there was a struggle still going on, whether it had come to an end and the like. So, members of the jury, it is necessary for you to consider then not only whether in fact reasonable force was used but also whether, even if the force was more than was reasonably necessary, whether the accused nevertheless had an honest and reasonable but mistaken belief that the force he used was necessary."

18 It seems to me that this direction (and I should say that I very much doubt whether it was open to the learned trial Judge to give it, having regard for the second paragraph of s 24 of the Code read with the provisions of s 248 thereof, although it is unnecessary to decide this point as it was not raised on the hearing of the appeal) was more favourable to the appellant than one in respect of the second limb of s 248 of the Code.

19 Any direction under that second limb would have been premised upon the assumption that the jury might have been prepared to find that there was an unprovoked assault upon the appellant which was such as to cause reasonable apprehension of death or grievous bodily harm and would have been to the effect that the appellant could, in those circumstances, only lawfully use force of a kind which might cause death or grievous bodily harm if he believed, on reasonable grounds, that he could not otherwise preserve himself, or his friend, from death or grievous bodily harm.

20 The effect of his Honour's direction in respect of s 24 of the Code, quoted above, was that if the appellant had used more force than was reasonably necessary "to make effectual defence", the jury should nonetheless acquit him if it found that he honestly and reasonably believed that it was necessary for him to use that degree of force to make effectual defence against Mr McCallum. It is consequently difficult to see how the appellant could claim to have been prejudiced by the failure of the learned trial Judge to direct the jury under the second limb of s 248 of the Code.

21 The direction under s 24 was, as I have said, more favourable to the appellant than any which might have been given under the second limb of s 248. In either case the jury had to find that the appellant had been assaulted by Mr McCallum. However the second limb of s 248 was only applicable if, as I have said, the jury found that the assault on the appellant was such as to cause a reasonable apprehension of death or grievous bodily harm. No such requirement pre-conditioned the operation of s 24 as outlined by the learned trial Judge. In the case of the second limb of s 248 the jury had to find, if the defence there provided for was to be available to the appellant, that the appellant believed, on reasonable grounds, that he could not, otherwise than by using the degree of force used by him, defend himself or his friend from death or grievous bodily harm. If a defence under s 24 was to be available the jury had, on the direction given by the learned trial Judge, to find that the appellant mistakenly but honestly and reasonably believed (and there is, I think, no sensible distinction between a belief on reasonable grounds and an honest and reasonable belief) that the degree of force used by him was necessary to make effectual defence. The learned trial Judge told the jury that the relevant mistake, in this context, would be one which related to the appellant's belief that, unless he used the degree of force in fact used, he could not make an "effectual" defence. It is difficult to imagine that the jury could conceivably have thought, in the light of a direction of this kind, that if the appellant was not mistaken in his belief (that is to say, if he did in fact need to use the degree of force used by him to make effectual defence) then he should be convicted. It would be quite absurd for the members of the jury to have thought that they should acquit him if he was mistaken in that belief but that they should convict him if he was not. They would, no doubt, have thought that they should acquit him in either case.

22 There is consequently no basis upon which it might be said that the failure to give the direction contended for could have resulted in the loss of a chance of an acquittal. The appellant having been convicted notwithstanding the learned trial Judge's direction on the operation of s 24 of the Code it is inconceivable that he might have been acquitted had the jury been directed in terms of the operation of the second limb of s 248 of the Code.

23 It follows that no miscarriage of justice has resulted from the learned trial Judge's refusal to give the direction contended for.

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