Marwey v The Queen

In order to discuss the important question thus raised I find no need to detail the facts of the case. Suffice it to say that the material before the jury could support the proposition that the death of the deceased resulted from a deliberate act of the applicant and that an occasion had arisen in which the accused might properly defend himself by the use of force against a violent and unprovoked attack upon him by the deceased. It was a case in which it could be found that the accused might reasonably have apprehended or feared that he might be killed or sustain grievous bodily harm. The remaining question was whether in the circumstances, the deliberate use of a knife to stop the deceased fell within the scope of reasonable self defence. I have stated the matter thus generally though, because of the terms of the Criminal Code Q., more particular statement will be necessary.

The question raised is whether the following passages in the summing up to the jury are in accord with the relevant law which is to be found in s. 271, s. 283 and, as it is submitted, s. 24 of the Criminal Code. I shall first set out those sections:

Mistake of Fact. 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.

Self-defence against Unprovoked Assault. 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.

183. Excessive Force. In any case in which the use of force by one person to another is lawful the use of more force than is justified by law under the circumstances is unlawful.

Having given the jury the benefit of the Code's provisions as to self defence, namely, that the accused might "use such force to the" deceased "as" was "reasonably necessary to make effectual defence against the assault", even in the case of apprehended death or grievous bodily injury to use such force as is likely to cause death or grievous bodily harm, his Honour proceeded:

A critical question is what is reasonably necessary. Of course, you take into account all the circumstances. What might be necessary in the case of a big man to defend himself against a small man might not be sufficient for a small man to defend himself against a big man, or for a woman to detend herself against a man. You look at the circumstances. You look at the weapons in the possession of one or the other or that might be available to one or the other.

In the ultimate result, of course, it is all a question of what is reasonable in all the circumstances, and the person who is assaulted can go the ultimate length of killing the other person if the circumstances are such to justify that along the lines which I have been discussing with you.

There is no requirement under our Code that a person who is assaulted must necessarily retreat. In general he may stand up and fight in self-defence. The question whether or not he might retreat may become relevant on the question whether the use of a particular amount of force or type of force is reasonably necessary.

The critical question, of course, is, if he did act in self-defence, how far he went, whether what he did was reasonable in all the circumstances.

So, members of the jury, assuming he deliberately stabbed the deceased, so far as his defence is concerned, the critical question, you might think, is whether he went beyond what was reasonably necessary in all the circumstances On the one hand, no doubt, you will consider that the use of a knife such as this on a fellow human-being is a very grave and serious matter indeed, having regard to the obvious consequences which might ensue from the use of a knife such as that. On the other hand, you have to consider the situation from the point of view of the accused, if he found himself in the situation in which he says he found himself, if the knife was the only thing he thought was available, then it is a question for you as to whether what he did went beyond what is authorized by the Code. You might also bear in mind, of course, that it is easy enough for us here in a cool and calm atmosphere, after sorting everything out and not sorting everything out - over a few days - considering what may or may not have been done, or what you say may or may not have been done. You must consider the situation in which the man finds himself, in a stormy atmosphere, with things happening quickly; a person facing him with what could be a substantial weapon, according to his account. Those are, I would think, the two prevailing considerations which you would have to bear in mind, and you have to look at all the other considerations if you consider this case of self-defence, and it is for you in the end result to decide what is the correct conclusion because this is a question of fact.

You bear in mind, of course, that the onus is on the Crown. It is not for the accused to satisfy you that he had a piece of wood, that the man had a piece of wood, and that he was hitting at him with it. If you thought that is relevant, it is for the Crown to satisfy you that the circumstances relied on by the accused did not occur. The burden of proving that what he did was not justified in the terms of the Code is on the Crown. Members of the jury, the Crown suggests that considering everything, considering the whole of the circumstances, what the accused did on this occasion went beyond what was justified by the terms of the Code. The Crown submits that you will be satisfied beyond a reasonable doubt of that, and that, therefore, you should find the accused guilty of manslaughter.

At the conclusion of the summing up, the following exchange took place between counsel for the accused and the trial judge:

Mr. Greenwood: Your Honour went further and said to the jury on a couple of occasions that, really, what their considerations of self-defence boiled down to were whether or not the force used by the accused was reasonably necessary. I might be wrong, but it occurs to me that the specific drafting of s. 271 takes away from the concept of retaliatory force the reasonableness of that force in the second limb because it specifically drops the adverb "reasonable" in its second limb.

His Honour: I am aware of that. I think the two things mean the same. What is the difference between "necessary" and "reasonably necessary"?

Mr. Greenwood: I think the difference is this: once a man is in fear for his life, or in such fear as he apprehends grievous bodily harm to himself, the absence of the word "reasonably" to qualify "necessary" in the second limb of s. 271 brings about a result that the law recognizes that a man in that situation should not be later judged as to whether or not his conduct has been reasonable in so far as the force and retaliation is concerned.

His Honour: You say he can use whatever retaliation he feels like?

Mr. Greenwood: He can use retaliation which is necessary to save his skin, whether that retaliation is reasonable or not, once he is in fear for his life, once he is in fear that he might well suffer grievous bodily harm.

His Honour: It is a very briefly put expression in the second paragraph. It says, "such force as is necessary for defence". It does not say what sort of defence. It does not qualify "necessary". Surely if you go back to the first paragraph which says, "such force as is reasonably necessary to make effectual defence", you would have to imply "reasonable".

Mr. Greenwood: Why, with respect? It does not seem to me to follow.

His Honour: What is the difference between something that is necessary and something that is reasonably necessary?

Mr. Greenwood: "Something that is necessary to defend" might be, in those circumstances, to stop completely - to blow a man's head off with a shotgun for instance.

His Honour: But it is not reasonable if you could do that. You should not have been able to do it.

Mr. Greenwood: Yes, you should be able to do it once you are put in a general fear for your life or a general fear of grievous bodily harm. That is why the qualification goes to "what is necessary". A man in fear for his life, in my submission, is not expected to behave reasonably.

His Honour: I will not have that. Take the example I gave of a man who is in fear of his life, with another man coming at him with a knife. He can quite easily step behind a gate and lock it. But instead of doing that, he unreasonably shoots the man. You say the second paragraph protects him?

Mr. Greenwood: Yes, because the law requires that a man in those circumstances is not expected to act reasonably.

His Honour: it is not necessary in those circumstances to shoot a man, because he could save himself in another way.

It will be observed that two points may seem to have been taken, though not clearly distinguished from each other. But, in reality, I think but one point emerged, namely, that the absence of the word "reasonably" before the word "necessary" in the second paragraph of s. 271 resulted in the elimination of any objective test of reasonableness, leaving the accused to determine for himself whether in the circumstances what he in fact did was necessary for his defence against the deceased's attack upon him.

Before the Court of Criminal Appeal, the question for consideration seems to have become merely whether the insertion by the trial judge of the word "reasonably" before the word "necessary" in the second paragraph of s. 271 involved a departure from the provisions of the Code. The majority of the Court of Criminal Appeal thought it did not.

But the matter argued here goes much deeper than the question whether the word "necessary" can properly be qualified in its context by the word "reasonably". It is submitted here that the trial judge has erroneously committed to the jury the determination of whether, as an objective fact, the act or acts by which the deceased died were necessary for the defence of the applicant from the attack of the deceased. It is said that, in doing so, he departed from the accepted view evidenced by Reg. v. Muratovic [2] .

In that case, the jury could have concluded on the material before them that the attack in fact made by the deceased was such as to cause in the accused a reasonable apprehension of death or of grievous bodily harm. They could further have concluded on that material that the accused in dealing the fatal blow believed on reasonable grounds that he could not otherwise "preserve" himself from death or grievous bodily harm. But, none the less, the trial judge withdrew self defence from the jury. The Court of Criminal Appeal ordered a new trial, deciding that self defence ought to have been left to the jury.

In his reasons for judgment my brother Gibbs, then a member of the Supreme Court of Queensland, said of the second paragraph of s. 271 of the Code [3] :

There are only two remarks as to the effect of this paragraph that it seems to me to be necessary to add. In the first place, the word "otherwise" must in my opinion in the context of the section mean "otherwise than by using the force which he in fact used" (cf. R. v. Keith [4] ). Secondly, if the two conditions specified in the paragraph are satisfied, it does not become necessary for practical purposes to consider a third question, whether the force used was in fact necessary for defence. If the accused person had an honest and reasonable, although mistaken, belief that the force in fact used was necessary for defence, he is no more criminally responsible than if that force was in fact necessary for defence - s. 24 of the Code. Moreover, if the nature of an assault was such as to cause reasonable apprehension of death or grievous bodily harm, and the accused believed (which must mean honestly believed) on reasonable grounds that he could not preserve the person defended from death or grievous bodily harm otherwise than by using the force that he did in fact use, it must follow that the force in fact used was no more than the accused honestly and reasonably believed to be necessary for defence. In other words, if the jury consider that the nature of the assault was such as to cause reasonable apprehension of death or grievous bodily harm, and that the accused believed, on reasonable grounds, that he could not otherwise preserve the person defended from death or grievous bodily harm, or if they are left in doubt on those matters, the issue must be decided in favour of the accused and a verdict of acquittal must be entered, since on that hypothesis the jury could not be satisfied that the force used was more than the accused reasonably believed to be necessary to preserve the person defended from death or grievous bodily harm. 1. [1967] Qd R., at pp. 18-19. 2. [1934] Q. S. R. 155, at p. 176.

Except for the reference to s. 24 I would agree entirely with this passage. I would not find it necessary, in order to reach the conclusion expressed by his Honour, to have resort to the provisions of s. 24. I take leave to question whether the necessity of doing the fatal act can properly be said to be a state of fact for the purose of applying s. 24. Resort might, of course, be had to that section if the reasonable grounds for the necessary belief included the accused's erroneous understanding of some fact which, had it been as the accused understood, would have supported the existence of reasonable grounds.

Further, what the second paragraph of s. 271 calls for is the actual belief by the accused on reasonable grounds of the necessity of the fatal act for his own preservation. That paragraph, it seems to me, when the occasion is appropriate makes the belief of the accused the definitive circumstance. As that belief must be based on reasonable grounds, there is no point in repeating the word "reasonably" before the word "necessary". That word - necessary - in the context of s. 271 bears the sense ascribed to it by the Shorter Oxford English Dictionary of "requisite" or "needful". What the second paragraph requires is that the accused believes on reasonable grounds when he does the fatal act that it must be done if he is to survive the assault made upon him. The element of reasonableness is supplied by the need for the belief to be founded on reasonable grounds. If there are such reasonable grounds - a matter for the determination of the jury - the self defence will itself have been reasonable. In this respect, the Code, in my opinion, reflects in some part the common law, though, in my opinion, the common law did not distinguish, as does the Code, between the extent of justifiable self defence in the case of what I might call a minor assault and in the case of a major assault, the latter involving an apprehension or fear of death or grievous bodily injury: and at common law it is sufficient, in my opinion, that the accused could have believed in the circumstances on reasonable grounds that his act was necessary for his survival. Perhaps in practical terms there is little difference between the two positions because if there were reasonable grounds for believing - and therefore deciding - that what was done was necessary for the accused's defence, such a belief would be attributed to the accused who did the fatal act in intended self defence.

The textual distinction s. 271 makes in this respect should be observed. In the first paragraph of that section, the belief of the accused as to the need to do as he in fact did is not mentioned. The permission of the paragraph is to use "such force as is reasonably necessary to make effectual defence against the assault, provided that the force used is not intended to cause death or grievous bodily harm". In that case, the determination of the extent of the permissible force is directly committed to the jury as an objective fact. But, of course, as I have already indicated, if it be accepted that the accused believed on reasonable grounds that what he did was necessary for his defence against the deceased's attack, it could scarce be denied that what he did was in fact reasonably necessary for his effectual defence. But, because the section throws on the jury the determination of a question of fact, the word "reasonably" must be used to ensure the width of the question for them. Further, the terms of the first paragraph remove the possibility that a blow dealt with an intent to kill, or of a kind likely in its circumstances to cause death, can be regarded as reasonably necessary for defence against an assault which does engender a reasonable apprehension or fear of death or of grievous bodily harm.

On the other hand, the second paragraph makes the belief of the accused the definitive circumstance. But, because the belief must be on reasonable grounds - and it is for the jury to judge whether in fact such grounds existed - the difference between the two paragraphs so far as concerns the function of the jury is not great. As I have indicated, the structure of the second paragraph does not require the qualification of the word "necessary" in that paragraph.

In considering the summing up, it is important to observe that the trial judge withdrew from the jury the charge of murder. Evidently he did so because he felt that there was not sufficient evidence of an intent to kill or to do grievous bodily harm accompanying the stabbing of the deceased. The case proceeded, it seems to me, on the footing that the stabbing may have been deliberate as distinct from accidental but not done with the intent requisite for murder.

Thus, if the jury were to think the attack of the deceased not to be such as to have engendered in the accused a reasonable apprehension of death or grievous bodily harm, they could act under the first paragraph of s. 271: the stabbing could be regarded as reasonably necessary, if they thought the stabbing not likely to cause death or grievous bodily harm.

On the other hand, if they accepted the accused's account of the attack, they could well think it of an order likely reasonably to engender a fear of death or grievous bodily harm, in which event the likely effect of the stabbing would not assume the importance it might in a case only within the first paragraph.

Although in my opinion the word "reasonably" ought not to be used to qualify the word "necessary" in the second paragraph of s. 271, I do not think its use by the trial judge in this case was prejudicial to the accused. It did no more than emphasize to the jury that the necessity was not absolute but merely a necessity as in the ordinary affairs of life. The summing up did not place the emphasis on the belief of the accused in that necessity on reasonable grounds which is necessary in a case to which the second paragraph applies and did place emphasis on the jury's satisfaction that the stabbing was reasonably necessary. But the distinction between finding reasonable grounds for a belief in the necessity of the fatal act and finding that that act was reasonably necessary for effective self defence is not such - certainly not in the circumstances of this case - to warrant any interference with the verdict of the jury. The trial judge was not in error in refusing to accept the submission of counsel that, given an occasion qualifying under the second paragraph of s. 271, the accused was at large and the jury had no function in relation to his acts. They had to decide whether there were reasonable grounds on which the accused could believe his act necessary for his survival.

I would grant special leave to appeal but dismiss the appeal for the reasons I have given.

The Chief Justice has stated in his reasons for judgment all the relevant circumstances and has set out the material provisions of the Criminal Code Q.. For my purposes I need therefore repeat only the second paragraph of s. 271 of the Code:

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.

Of the difficulties of construction which that paragraph presents, the chief is whether or not each of its three references to "force" refer to one and the same thing. If they do, and if it is the force in fact used by the accused in defending himself to which they all refer, then the word "otherwise", appearing in that paragraph, will also refer to the force in fact used. "Otherwise" is thus elliptic and bears some such meaning as "by means other than that act of force". That part of the paragraph in which it appears will then refer to the accused's belief, on reasonable grounds, that he cannot, by means other than that act of force, preserve himself from apprehended death or grievous bodily harm.

On such a view, the third reference to "force", that which it is lawful to use, will call for no adverbial qualification, such as "reasonably" but can be described simply as such "as is necessary for defence". There will be no need for any qualification because this has already been supplied by the requirement that the accused should have reasonable grounds for believing that he cannot "otherwise" - that is, by means other than that act of force - preserve himself from death or grievous bodily harm.

In Reg. v. Muratovic [5] a majority of the Full Court understood "otherwise" in much this sense - per Gibbs J. [6] , with whose reasons Lucas J. agreed, and compare per Hart J. [7] . Their Honours must also have regarded each of the three references to "force" as referring to the accused's particular act of force. Adopting, as I do, a similar view, it follows that that act of force must be one in respect of which the accused possesses a belief based upon reasonable grounds, the belief being that unless he performs it "he cannot otherwise preserve" himself.

1. [1967] Qd R. 15. 2. [1967] Qd R., at p. 19. 3. [1967] Qd R., at p. 29.

The judge, in his charge to the jury in the present case, told them on several occasions that their task was to determine whether the stabbing by the accused was reasonable in all the circumstances. This was clearly enough a departure from the words of s. 271, but was it prejudicial to the accused? I think not; if anything it favoured the accused.

Had the judge charged the jury in terms of the second paragraph of the section he would have told them that if they thought this was a case of reasonable apprehension of death or grievous bodily harm falling within that paragraph of s. 271 they would then have to go on to consider two questions: whether there was a belief on the part of the accused that the force he used was necessary and whether there existed reasonable grounds for that belief. The former inquires as to the state of the accused's mind; the latter is an objective question in the sense that it does not at all involve the accused's belief but is exclusively concerned with the jury's view of the grounds, whether they constitute reasonable grounds for the accused's belief. The proper direction requires of the jury, in essence, a decision whether they are satisfied beyond reasonable doubt that the accused did not possess the requisite honest belief on reasonable grounds.

The jury's task will thus involve a subjective element followed by an objective element. The form of question which deals with the objective element "Are we satisfied that the accused did not have reasonable grounds for believing that stabbing was necessary?" cannot, I think, produce an answer different from that which would be given to the question, "Are we satisfied that his belief that stabbing was necessary was not a reasonable one?" If reasonable grounds existed then the belief was itself reasonable. To ask "Had he a reasonable belief?" is not different in substance from asking "Had he reasonable grounds for belief?"

The critical question is, then, whether it is a different matter if what is asked is "Was the stabbing reasonable in all the circumstances?", that being the way in which the question was predominantly posed to the jury. The "circumstances" referred to in this form of question will involve all those matters going to the formation of the accused's "belief upon reasonable grounds". The only relevant difference which I detect in this last form of question is that it omits, or perhaps only slurs over, the first and subjective element, the possession by the accused of an honest, of an actual, belief. It may do no more than slur it over because possession of that belief is no doubt one very important "circumstance", all of which the jury were told to consider.

To direct the jury as the judge did is to emphasize the objective at the expense of the subjective. But the section prescribes both as necessary and distinct elements of self defence and all that such a direction does is, if anything, somewhat to aid the accused by obscuring the need for the subjective element, the actual possession of a belief, thus tending towards an acquittal based only or substantially upon the objective element. Thus a jury so charged may tend to acquit if not satisfied that there were not reasonable grounds for belief as to the need to stab, and may do so without paying as much attention as they otherwise might to the subjective element which the section calls for, whether they are not satisfied that the accused did not also hold the requisite exculpatory belief in that necessity. The fact that the onus is on the prosecution, so that what is in question is lack of satisfaction concerning the absence of a particular belief on the accused's part, does not, I think, affect this conclusion.

What occurred in the present case clearly calls for no interference with the verdict. If special leave is to be granted the appeal must then be dismissed. I am personally in some doubt as to whether there should be special leave but am content to join with the Chief Justice in the order which he proposes: that special leave should be granted and the appeal dismissed.

The effect of s. 271 of the Criminal Code Q. was correctly expressed by Gibbs J. in Reg. v. Muratovic [8] though I doubt whether it was necessary or correct for his Honour to rely on s. 24 in arriving at the interpretation which he expressed. This interpretation can be sustained, as Gibbs J. there indicated and as the Chief Justice has pointed out in this case, by reference to the terms of the second paragraph of s. 271 itself.

The members of the Court of Criminal Appeal accepted the correctness of Gibbs J.'s observations in Reg. v. Muratovic. Indeed, the accuracy of his Honour's remarks was not questioned in the Court of Criminal Appeal [9] . What was questioned was whether the primary judge in this case erred in telling the jury as he did, in more than one passage of his summing up, that a critical question was what was "reasonably necessary" in all the circumstances of the case. This direction, it was submitted, was a departure from the second paragraph of s. 271 according to its proper construction and the departure was of such significance as to warrant the grant of special leave.

When the whole of the trial judge's summing up is read it becomes apparent that his Honour was using the word "reasonably" in conjunction with "necessary" to modify the force the latter word might have had, had it stood on its own, in order to convey the impression to the jury, as his Honour was at pains to point out on several occasions, that it was all a question of "what was reasonable in all the circumstances". By this means his Honour sought to avoid putting to the jury as a separate and distinct issue the objective necessity of what the appellant did in fact. Reading the directions in their entirety I do not think they went beyond what was appropriate to an exposition of the need for the existence of reasonable grounds to sustain the appellant's belief, though it would have been preferable had his Honour directed his observations to this precise question.

On my understanding of the exchange which took place between the appellant's counsel and the judge at the conclusion of the summing up, counsel's only complaint was as to the use of the expression "reasonably necessary" instead of the word "necessary" and to the statement that the jury should have regard to whether what was done was reasonable in the circumstances. Although the judge asked counsel whether he was submitting that the appellant's belief was all that mattered, counsel did not take up this suggestion.

As I see it, then, the summing up was sufficient. But whether this be so or not, the sufficiency of the summing up is a very particular question depending upon a proper understanding of it in its entirety. The circumstances of the case are, accordingly, not in my opinion such as to justify the grant of special leave.

A number of passages in the summing up are consistent with the view that it was objective necessity and not the applicant's belief on reasonable grounds in the necessity of using the force which he in fact used which was the essential requirement of a defence of self defence under the second part of s. 271 of the Criminal Code Q.. These passages are set out in the reasons for judgment prepared by Barwick C.J. which I have had the advantage of reading. I am not satisfied that the trial judge actually intended so to direct the jury, for in another passage in the summing up he stated:

However, members of the jury, the effect of the onus of proof is that it is not for him, provided the possibility is raised by evidence, to satisfy you that he did believe that he would have to use the knife to protect himself. It is for the Crown to satisfy you that that was not his belief, and if you think that it is a reasonable hypothesis upon the evidence, even though he has not been able to swear to it that he believed that he could not escape except by using a knife, then you give him the benefit of the doubt on that. This last direction, even though it omitted reference to reasonable grounds for his belief, was substantially in accordance with the interpretation and application of the second part of s. 271 which had been enunciated by Gibbs J. in Reg. v. Muratovic [10] , in a passage which I shall not repeat as it has already been set out in the reasons of the Chief Justice. In my respectful opinion Gibbs J. correctly stated the effect of s. 271. 1. [1967] Qd R., at pp. 18-19.

It appears to me that all the members of the Court of Criminal Appeal proceeded on the basis that the dicta of Gibbs J. in Reg. v. Muratovic correctly stated the law. Hanger C.J. [11] drew particular attention to the passage in the summing up which I have set out above. Generally Hanger C.J. agreed with the reasons of Andrews J. whose reasons proceeded on the basis that the relevant matter was the belief of the accused.

The summing up was defective in that some passages were so phrased that they could suggest a test of objective necessity, the defect arising largely from the addition of the word "reasonably". The addition of this word would have been meaningful if the test of necessity were an objective one. It added nothing and was practically meaningless when the question was the applicant's belief in the necessity. In the context of self defence against an assault causing apprehension of death or grievous bodily harm the belief on reasonable grounds that the force used is necessary is not really distinguishable from the belief on reasonable grounds that the force used is reasonably necessary.

Nevertheless the trial judge quite specifically in the passage which I have set out put the defence of self defence as one depending upon the applicant's belief and the summing up must be read as a whole. The question whether the direction in these terms outweighed the possible effect of the defective directions is not in the circumstances a question which would justify the grant of special leave to appeal. I would refuse the application.

I express no opinion on the question whether any kind of objective test of reasonableness is introduced by the different phraseology of the first part of s. 271.

I agree with the judgment of the Chief Justice and have nothing to add.