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[1997] QCA 257
Court of Appeal (Qld)
1997-08-22
Pincus JA, McPherson JA, Williams J
Original judgment source is linked above.
For the reasons which I have already expressed s.24 is of limited relevance to a defence based on s.271. Section 24 has no relevance to the question whether or not a pre-emptive strike is permissible. That must be answered by considering s.271(2): Is there such a reasonable apprehension of death that the person using force by way of defence believes on reasonable grounds that he cannot otherwise preserve his life than by immediately causing the death of the other. It is not in the context of s.271 really helpful to speak of a pre-emptive strike. If the test is phrased as I have indicated it then there will undoubtedly be occasions when the person whose life is threatened may strike first. But as would have been clear to the jury from the illustration given in the summing up such a pre-emptive strike will not be justified unless the elements of s.271(2) are established. The summing up clearly directed the jury to the correct issues, and the reference to "pre-emptive strike" in the body of the summing up did not constitute an error.
The final ground of appeal argued was that the verdict was unsafe and unsatisfactory and that in consequence the conviction should be set aside and a verdict of acquittal entered.
Primarily this submission on behalf of the appellant was based on the proposition that no reasonable jury could believe the evidence of Doherty. Certainly there were serious doubts about Doherty's credibility, but the jury were at least entitled to consider his evidence on the basis that he was present at the time and place of the events giving rise to the charge. But total rejection of his evidence does not significantly weaken the prosecution case; he was not a critical witness. If his evidence was entirely rejected then it would have been easier for the jury to draw the inference that Doherty and Robinson were approaching the appellant's camp with a view to doing him some injury. That led to the real question for the jury; whether or not they could negative beyond reasonable doubt the defence based on s.271. In that regard it was the evidence from the appellant himself which was of critical importance; Doherty's evidence could not have materially assisted the jury in reaching a conclusion on that question.
Counsel for the appellant also referred to a number of specific matters in support of this ground. There was the body of evidence from Thomson and the appellant as to the threats on the appellant's life made prior to the events in question. When he first spoke to the investigating police the appellant gave a false account of his movements at the material time. That may have been regarded by the jury as having some prejudicial effect outweighing its probative nature. Because the appellant's rifle was sawn-off it was difficulty to aim accurately, and the deceased was some 62 metres away from the appellant when shot.
All such matters which were particularly within the province of the jury and whether looked at in isolation or collectively they do not constitute grounds for concluding that the verdict of the jury was unsafe and unsatisfactory.
A consideration of all material in the records does not raise such doubts about the conviction as would lead to the conclusion that it was unsafe and unsatisfactory.
For all of the above reasons the appeal should be dismissed.
R
Allwood [1997] QCA 257
"In view of the incorporation of the belief in s. 271 the second paragraph no reference to s. 24 is called for in cases within the second paragraph, at least where the belief relied on is that stated in the paragraph: Marwey v. The Queen [1977] HCA 68; (1977) 138 C.L.R. 630. In such a case s. 24 may still be resorted to and must be the subject of a direction by the trial judge if the accused had an erroneous understanding of some fact which, if true, would have supported the existence of reasonable ground for his belief: ibid. per Barwick C.J. at p. 637."
I note, also, that in Beckford [1987] UKPC 1; [1988] 1 A.C. 130 at 144, the Privy Council accepted as consistent with the common law of self-defence that:
(1977) 138 CLR 630