R v Bennett [1998] QCA 393

The interview of the appellant Lindsay Bennett was resumed by Snr. Const. Browne, in the presence of Sgt. Aboud and Mr Edmonston J.P., at 3.30 p.m. on 27 June 1997, which was the afternoon of the day after the incident. Lindsay confirmed that the dispute began in the residence at 1 Gidyea Street; that the Facers were told to leave the house; and that they went outside. Lindsay followed them out and heard Facer say or ask something about a gun. Lindsay received what he described as a "bloody big shove and I sort of went up against his car somewhere or other" injuring his thumb in the process. By that time George had come into it and had a stick or something in his hand. Lindsay himself grabbed a stick or piece of wood, and hit Facer "a few times" with it. Suddenly he heard "a bloody big shot". His father Jack Bennett had fired the shot from a rifle, and was shouting "Get off him", or something like that. They then just went back into the house.
Neither George nor Lindsay Bennett gave evidence, but the electronic recordings of their interviews were admitted in evidence at the trial. They contained evidence of full admissions by each of them of having struck the complainant with the pieces of wood described in their interviews. On the strength of those admissions alone, the jury were entitled to conclude beyond reasonable doubt that each of them had assisted the other in inflicting the injuries on the complainant of which Dr Manning gave evidence at the trial. Under s.7 of the Criminal Code, each of them was consequently criminally responsible for the grievous bodily harm sustained by Barry Facer.
In their respective records of interview, both George and Lindsay said that they had taken the action they did after hearing the complainant ask or say something about a gun, or about getting a gun, after he left the house. Mr Facer has, it seems, a widespread and impressive reputation as a boxer or fighter, and those two appellants said in effect that they thought it necessary to act quickly to prevent him from getting a gun and using it. "When people talk guns", George told the police, "they mean serious bloody business ...". Having been in many fights at school, he knew it was "just whoever bloody is quickest and acts first sort of thing ...". Lindsay said he thought that, if Barry Facer got a gun, he might shoot someone, and he got "sort of frightened". He thought that Facer might get the upper hand on George, so he gave his brother a hand. At the trial, self-defence was relied on by both appellants; that is to say, that each had acted in his own defence (Code s.271), or in the defence of his brother (s.273), against an assault by Facer, or what they mistakenly but honestly and reasonably believed (s.24) to be such an assault. The learned trial judge instructed the jury accordingly, and there was and is no challenge by the appellants to his summing up on that or any other matter. In the case of each of the appellants George and Lindsay Bennett, the jury returned verdicts of guilty of doing grievous bodily harm to Barry Facer.
For the reasons explained, no basis has been shown on appeal for setting aside those verdicts on grounds associated with the quality of the testimony of the Crown witnesses. On the evidence contained in the records of interview with the two appellants George and Lindsay, the jury were entitled to be satisfied beyond reasonable doubt that Barry Facer had not assaulted either of those two appellants; that he had not intended to do so; and that neither of the appellants George and Lindsay believed or had reasonable grounds for believing, that forcefully beating Barry Facer in the way they did was necessary to defend themselves against any actual or threatened assault.
Self-defence was also raised on behalf of Jack Bennett in response to the charges against him in count 1 of doing grievous bodily harm to Barry Facer, and possibly also in relation to count 2 of doing bodily harm to Mrs Facer, in respect of both of which he was found not guilty. His acquittal on one or both of those two charges was said to be inconsistent with the verdicts of guilty against his two sons George and Lindsay. There is, however, no foundation for regarding those verdicts as inconsistent, logically or otherwise, with the acquittal of Jack Bennett on counts 1 and 2. The evidence against him of the prosecution witnesses on those counts, which was to the effect that he had helped his two sons assault Barry Facer by jamming his rifle into his face or body and that he had kicked Mrs Facer while she was lying on the ground, consisted of the testimony of the two complainants, together with that of the other witnesses in the Facer camp who gave evidence for the prosecution. The presence of inconsistencies in the evidence of those witnesses has already been noticed. It may well have been why the jury were not satisfied beyond reasonable doubt of much or anything said by any of those prosecution witnesses at the trial. Their evidence was, however, not necessary to sustain verdicts of guilty against George and Lindsay Bennett on the charges of doing grievous bodily harm to Barry Facer. Quite independently of that evidence, the jury would have been fully entitled to find them guilty on a combination of what was said by Dr Manning about the injuries, and the express admissions made by each of the two appellants George and Lindsay in their recorded interviews with the police. Indeed, it may fairly be predicated that it was precisely because of those admissions that the jury returned verdicts of guilty against George and Lindsay Bennett. Far from being unsafe or unsatisfactory, such a basis for those verdicts was perfectly rational and is readily explicable. Jack Bennett made no admission of having assaulted either Mr or Mrs Facer.
It was nevertheless submitted that the conviction of Jack Bennett on count 3 (going armed so as to cause fear), when taken with his acquittal on count 1, was inconsistent with the verdicts of guilty against George and Lindsay. There is, however, no justification at all for apprehending any such inconsistency in those verdicts if it is accepted that the jury acted, as they were entitled to do, on the contents of the records of interview with George Bennett and, in particular, with Lindsay Bennett. What Lindsay said in his interview was that their father Jack Bennett had fired a shot and shouted "Get off him". It was not suggested that the shot had been fired at or in the direction of anyone who was present, but rather that the gun had been discharged in order to stop the fight. Someone recalled seeing the flame of the discharge go up in the air. On that footing, the inference was plainly open to the jury that in firing the shot Mr Jack Bennett was attempting to break up the fight rather than trying to assist his sons in their assault on Barry Facer. That his intention was to stop the fight is supported by Jack Bennet's own informal statement to the police when they arrived the scene on the evening of 26 June 1997. Senr. Const. McPhail's recollection was that, when asked what had happened, Jack Bennett's answer was "My sons were in an argument and I fired my rifle in the air to break it up". According to Const. Graham, it was that "Lindsay and George ... were in a fight and I couldn't stop them, so I got my gun and fired a shot in the air to break it up".
In the light of this evidence at the trial, the jury were entitled to entertain a reasonable doubt whether, in discharging the rifle in that way and for the limited purpose that he did, Jack Bennett was, within the meaning of s.7 of the Code, doing an act to assist his sons' assault on Barry Facer. Not having, as it must be assumed, accepted the evidence of the prosecution witnesses about Jack Bennett's part in the fight, they were nevertheless entitled to be satisfied that he had been armed with a rifle, and had fired the shot described.
On that footing, it was open to the jury, on the instructions given to them by the trial judge in summing up, to find Jack Bennett guilty of the offence charged in count 3, without also finding him guilty on either count 1 or count 2 against him. It is, however, to my mind another question whether the conviction on count 3 is capable of being sustained as a matter of law. On appeal, Mr Jack Bennett appeared in person to argue his appeal against his own conviction, a task which he undertook with vigour and at some length, but throughout with unfailing politeness. He is, if he will permit me to say so, one of a class of Queenslanders from the west, of whom too few now remain, and his grasp of legal principles and at times of relevance is naturally not extensive. Shortly after arriving in Brisbane to pursue the appeal, his briefcase containing his prepared submissions was stolen. Despite or perhaps because of that misfortune, it is incumbent on this Court to scrutinise the basis for his conviction on count 3.
The offence of which Mr Jack Bennett was convicted is expressed in s.69(1) of the Criminal Code in the following terms:

Evidence from Senr. Const. McPhail about his visit to the place was that he found a spent cartridge case from a Winchester 243 rifle in the area which, according to ex.27, approximates to the road at a spot marked in that photograph by a police hat. On the assumption, which may be justified, that that was where Mr Bennett was when he fired the shot, it may suffice to prove that, at least in "going" to that point, he was both armed and in public. The section does not require the offence to be committed in a public place, but only that the offender go armed "in public": see R. v. Hildebrandt [1964] Qd.R. 43, 65. Even so, in order to sustain the conviction on count 3, it was and is incumbent on the prosecution to establish the other elements of the offence under s.69(1), and, in particular, that the alleged going armed in public was "without lawful occasion".
It is at this point that the Crown's principal difficulty arises. There appears to be little, if any, direct authority on the meaning of that expression in s.69(1). In R. v. Anderson [1910] Q.W.N. 19, Chubb J. directed the acquittal of a man who drew a revolver which he pointed at someone, who had initially threatened him in a public street and then struck him a blow on the chest. In Inowye v. R. [1921] WALawRp 28; (1921) 24 W.A.L.R. 52, merely carrying a stick in public in Broome in 1920 was, without more, held not to amount to an offence under the corresponding s.68 of the Western Australian Criminal Code. The decision in R. v. Anderson appears to suggest that a person may (subject, of course, to later statutes on the matter) carry a concealed firearm for his own protection; cf. also R. v. Hildebrandt [1964] Qd.R. 43, 53; but none of these cases is of any real assistance here. The same is true of Dearnley v. The King [1947] St.R.Qd. 51, where the accused fired a shot after his pursuer chased him through Turbot Street to Little Roma Street, following an attempt by the accused to commit a robbery at a residential building in George Street. In his case, there was plainly no "lawful occasion" for going armed in public.
In the 1897 draft of the Queensland Criminal Code, the source of the current s.69 is given as 2 Edw.3, c.3, which, as a number of authorities have noticed, is the Statute of Northampton 1328. A translation of the original text of this ancient statute is given by Chubb J. in R. v. Anderson [1910] Q.W.N. 19, and also by Palles C.B. in R. v. Smith [1914] 2 I.R. 190, 192, where the meaning and effect of the original statutory provision, as well as some later versions of it, are helpfully discussed both in the reported judgments and the argument of counsel. According to the authorities referred to there, the statute was originally passed to deter armoured knights errant from riding about the country armed in a manner that was apt to terrify people. It is a description not readily applicable to Mr Jack Bennett of Gidyea Street, Barcaldine. In Queensland, Sir Samuel Griffith took the model for s.69 of the Criminal Code almost verbatim from Sir James Fitzjames Stephen's earlier English draft. It was that draft which first supplied the words "without lawful occasion". According to Stephen's Digest of the Criminal Law (5th ed. 1894), art.73, note 3, the model section represented the text of the old statute 2 Edw.3, c.3 "paraphrased with reference to the explanations given in 1 Hawk. PC 488-9". On going to Hawkins Pleas of the Crown (8th ed. 1824) at 488-489, the assurance is offered that "persons of quality" are in no danger of offending against this statute "by wearing common weapons ... for their ornament or defence" or even by being armed with "privy coats of mail" to defend themselves against adversaries. If that is what Stephen meant by paraphrasing, the credit for rendering it as "without lawful occasion" is certainly due to him.
This 650 year history is useful only to show how little assistance it provides in elucidating the meaning of that expression in s.69(1) of the Code. Still, what Hawkins mentioned in his treatise, which was first published in 1716, does at least suggest that going armed in public is not necessarily an offence if there is good and lawful reason for it. In England, the old statute has since been replaced by a series of other statutory provisions, beginning most recently with the Prevention of Crime Act 1953, which prohibits the carrying of offensive weapons in public without lawful authority or "reasonable excuse". See Halsbury, vol.11(1) (4th ed.), para. 167, n.2, where the authorities on that expression are referred to. It is a relief to discover that going to a fancy-dress ball may be a reasonable excuse for wearing a truncheon in public as part of a police uniform donned for the occasion. See Houghton v. Chief Constable of Greater Manchester (1986) 84 Cr.App.R. 319.
Transposing s.69(1) into terms appropriate to life in central western Queensland, it seems to me that it cannot be right to say that simply carrying and discharging a firearm in a street outside one's own residence is necessarily an offence against the section unless it is done in self-defence. That is, however, essentially the form in which the matter was presented to the jury for decision in the present case both by counsel and by the trial judge in his summing up. In relation to "lawful occasion" in s.69(1), his Honour instructed the jury that they should acquit Jack Bennett on count 3 as well as count 1 if either the defence of aiding in self-defence of a provoked assault, or aiding in self-defence of an unprovoked assault, were to succeed. Judging by the jury's request for redirections, they were puzzled by the possible combination of alternative verdicts open to them in relation to counts 1 and 3. They asked whether those two counts could support different verdicts. His Honour redirected in terms that confined the question to the "lawfulness" of the conduct proved under count 3. At one point he spoke of the possibility of the accused having "had an excuse, as it were, for having the rifle on the occasion in question"; but his remarks on that topic were limited to the context of self-defence in which he was engaged in directing the jury.
To be fair, self-defence was the matter on which everyone at the trial was then concentrating attention. But, in my view, confining it to self-defence adopted too narrow a view of the expression "without lawful occasion" in s.69(1). Other lawful reasons or excuses for going, at least temporarily, armed in public on the outskirts of towns in western Queensland can readily be imagined. Using a rifle to shoot a rabid dog or a wild pig that presents a threat to the safety of people in the area would surely not under s.69(1) be "without lawful occasion" simply because it takes place in public and causes fear. Here it was not dogs or pigs that Mr Bennett was seeking to restrain, but his own sons, who were engaged in a serious attack on another person. Firing a shot harmlessly in the air in order to bring them to their senses was not only a legitimate reason or lawful excuse for his going armed in public (if that is what he did) but a thoroughly effective one. On hearing the shot fired, Lindsay decided to "cut it out", as he said, and leave his victim go. Both he and George stopped hitting Barry Facer and returned to the house.
On behalf of the Crown on appeal, Mr Meredith objected that this was not the way in which count 3 went to the jury at the trial. What was relied on was self-defence, which failed. But that is no answer if, in the circumstances disclosed by the evidence, the section called for a broader summing up on the matter and the meaning of "lawful occasion". In some of the authorities cited in the notes to Halsbury, it is said that, as regards reasonable excuse, the proof lies on the accused. The English legislation may possibly contain a specific statutory provision to that effect. In Queensland, however, the expression "without lawful occasion" appears as an element in the statement in s.69(1) of the offence itself. In accordance with the general rule adopted in applying exculpatory provisions in the Code, it would ordinarily be for the prosecution to establish that element beyond reasonable doubt. At least that would be so once it appeared in evidence that the act of going armed in public was in the circumstances of the case fairly capable of being regarded as being not "without lawful occasion".
As to that, Mr Meredith also objected that statements in the recorded interviews with George and Lindsay could not properly be relied on to aid Mr Jack Bennett. It is true that, as far as he was concerned, they were hearsay and could not be used to his detriment. On the other hand, having been tendered by the prosecution and received in evidence, those statements were, according to established authority, available not only against the accused person who made them, but also, for what they were worth, in his favour. See R. v. Higgins [1829] EngR 429; (1829) 3 C. & P. 603, 604; [1829] EngR 429; 172 E.R. 565. Granted, said Mr Meredith; but not in favour of some other accused person, who, even though being jointly tried, had not made those statements himself. In Queensland, however, the view adopted has generally been that, once a party puts in evidence a statement containing admissions made by the other party, the whole of the statement becomes evidence of the truth of what was stated. See the authorities mentioned by Gibbs J. in Lopes v. Taylor (1970) 44 A.L.J.R. 412, 421-422; and in New South Wales, Waterhouse v. Gilmore (1988) 12 N.S.W.L.R. 270, 284, and the decisions cited there, including particularly the reasons of Glass J.A. in Cole v. Evans (C.A. 125 of 1974; 2069 of 1971, 2 May 1975, unreported). If by this means such statements become evidence of the truth as against the party tendering them, then there is to my mind no compelling reason why any other party opposing the proceedings should not also be entitled to rely on them, for what they are worth, as evidence of the truth of the statements in question.
The question is, however, not the subject of any direct authority that I have been able to trace, and it is not necessary here to reach a final conclusion about it. In what Mr Jack Bennett said to Police Officers McPhail and Graham, of which they gave evidence at the trial, there is ample evidence that the fight was still proceeding when he fired the shot in the air, and that he fired it to break up the fight with Barry Facer and stop his two sons going on with it. In my opinion, that state of affairs was fairly capable of being considered a lawful occasion, within the meaning of s.69(1) of the Code, for his going armed in public so as to cause fear, if that is what he did, to those involved in the fight, who included George and Lindsay Bennett as well as Barry Facer. If he had not fired that shot and the fight had gone on, even more serious injuries might have been sustained by those involved in it.
I would allow the appeal (C.A. 212 of 1998) by John Leslie Bennett against his conviction on count 3 in the indictment against him. In respect of that count, I would set aside the conviction and verdict, and enter a verdict of acquittal. I would, however, dismiss the appeals by George Edward Bennett (C.A. 211 of 1998) and by Lindsay James Bennett (C.A. 213 of 1998) against their convictions.

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