R v Calafati [2005] VSCA 93

"He tried to hit me in the head and I blocked with my right hand. He is saying he tried once again and I succeed to block with my left. I was actually cornered and I tried to take a step back but I couldn't because there was no way to. In that moment two chefs, actually two cooks, they came ... and they grabbed him from the back and they pull him out."

Anicic said that he recognised the knife as one used in the pizza section. Anicic sustained cuts to his wrists. He was taken to hospital and his wounds were stitched.

4 In cross-examination Anicic denied that after the argument with the applicant as to making pizzas he attacked the applicant in a laneway beside the restaurant. He also denied that he approached or hit the applicant in the kitchen with a wooden pizza paddle.

5 The applicant gave evidence that he assisted Anicic when orders for pizzas came from the restaurant. Anicic told the applicant to get away from his section, saying that he could handle it by himself. The manager heard them arguing and told them to get on with their work. The applicant and Anicic continued arguing. The manager began making pizzas and told the applicant to go outside for a cigarette. The applicant said he went out into the laneway. Anicic also left the restaurant. He ran up to the applicant, who said he "... put me in a bear hug, pushed me to the ground and hit me in the head and on the ribs ... and he ran back in to the restaurant." When Anicic attacked the applicant, Anicic said, "I kill you, I kill you."

6 The applicant went to the kitchen looking for Anicic. When the applicant entered the kitchen Anicic, who was standing by the washing machine, picked up a pizza paddle the size of an A4 sheet of paper with a handle about 10 cm. long. He lifted the paddle as the applicant advanced upon him, yelling. The applicant went right up to Anicic. They grappled, Anicic pushed the applicant away and hit him on the shoulder with the paddle "quite hard". The applicant picked up a knife and cut Anicic's wrists. In answer to the question "Why did you grab the knife?" the applicant said:

"Well he had hit me and he was holding onto me and he had been, he had threatened me, he said to me he was going to kill me and I was in fear of him up to that point, you know. He had bashed me in the alley just five minutes before ...".

7 The applicant was charged with alternative counts of intentionally and recklessly causing serious injury. The jury returned a verdict of guilty on the former count. After a plea the applicant was sentenced to be imprisoned for a term of two years. A period of one year was fixed before the applicant was to be eligible for parole.

8 The applicant sought leave to appeal against his conviction. The only ground which was pressed at the hearing of the appeal was as follows:

"1. The learned trial judge erred in her directions on self-defence, including by:

(b) failing to adequately relate those directions to the factual issues in the trial."

9 Pursuant to ground 1(a) counsel for the applicant submitted that the directions given by the trial judge to the jury unduly emphasized proportionality and created a real risk that the jury would have understood that proportionality was a separate test.

10 In Zecevic v. DPP[1] Wilson, Dawson and Toohey, JJ. said:

"When upon the evidence the question of self-defence arises, the trial judge should in his charge to the jury place the question in its factual setting, identifying those considerations which may assist the jury to reach its conclusion. In attempting to identify those considerations in any abstract manner here, there is a danger of appearing to elevate matters of evidence to rules of law. For example, it will in many cases be appropriate for a jury to be told that, in determining whether the accused believed that his actions were necessary in order to defend himself and whether he held that belief on reasonable grounds, it should consider whether the force used by the accused was proportionate to the threat offered. However, the whole of the circumstances should be considered, of which the degree of force used may be only part."

11 In the present case, in her charge to the jury, the trial judge said that the question which the jury was required to decide in order to determine the issue of self-defence was whether the applicant used the knife because he believed on reasonable grounds that it was necessary in order to defend himself from actual or threatened violence by Anicic or for another purpose such as to retaliate for a past attack. Her Honour said there were four considerations bearing upon this question. Proportionality was the third factor. The trial judge told the jury:

"Thirdly, did the accused use unnecessary force? Although a man who is attacked is not required to weigh to a nicety the extent of force required to resist the attack, the use of force plainly disproportionate to the attack may also indicate a use of the occasion for aggression, or retaliation, rather than for self-defence. Put another way, has the Crown proved that what the accused did was out of proportion to the danger to be guarded against, that is, was it disproportionate to the danger he reasonably believed he faced?"

"In the circumstances of this case the Crown must establish that the force in fact used by the accused was out of all proportion to any attack which the accused could reasonably have believed was threatened by the victim ...."

12 Counsel for the applicant contended that the jury may well have reasoned that, if the Crown had demonstrated that the degree of force used by the applicant was disproportionate to the attack by Anicic with the pizza paddle, self-defence had been negatived.

13 In my opinion the trial judge did not unduly emphasize the issue of proportionality so that there was a danger that the jury would decide the question of self-defence by reference to that factor alone. On the first day of her charge the trial judge placed proportionality in the context of one of a number of factors which the jury were told to consider. Immediately after the impugned direction given on the second day, her Honour said:

"In the end you must consider the whole of the circumstances, the degree of force being used being only part of the whole picture."

14 A related criticism of the charge was that her Honour failed to heed the advice of the High Court in Zecevic v. DPP, that:

"... [I]t will often also be desirable to remind the jury that in the context of self-defence it should approach its task in a practical manner and without undue nicety, giving proper weight to the predicament of the accused which may have afforded little, if any, opportunity for calm deliberation or detached reflection."[2]

15 In my opinion the trial judge did adequately convey to the jury that the question of proportionality was not to be judged in a precise manner but rather with due regard to the sudden crisis which the applicant faced. Her Honour said:

"... [A] man who is attacked is not required to weigh to a nicety the extent of force required to resist the attack ...."

"As directed also yesterday, a person defending himself cannot weigh precisely the exact action which should be taken to avoid the threat, which he reasonably believed he faced at the time."

I think that nothing more needed to be said.

16 At the conclusion of her directions as to the law relating to self-defence and before recounting the evidence of the witnesses, her Honour told the jury:

"In summary, the accused said to the effect that he was threatened and taunted by Mr Anicic. Whilst attempting to help him he was physically assaulted in the laneway, when he went to Mr Anicic in the kitchen he was further assaulted with a wooden pizza paddle. He said he was in fear of Mr Anicic and thought he might hit him again. It was in this context that he responded, he said, in self-defence."

17 The complaint made on behalf of the applicant was that the trial judge failed to relate the issues which she told the jury they were to consider to the evidence. For example, it was said, her Honour did not refer to the applicant's evidence of the speed at which the danger arose in giving her direction that the applicant was not obliged to weigh his response to a nicety and should have dealt with the evidence of Anicic's hostility to and provocation of the applicant..

18 In my view, having regard to the narrow compass of the facts, the brevity of the evidence and the stark contrast between the accounts of the protagonists, the jury would have encountered no difficulty identifying the factual issues or correctly applying the law to those issues. I do not consider that the jury required a more elaborate description of the defence case or an assignment of each legal principle to particular parts of the evidence. Later in her charge the trial judge fully recounted the evidence of the applicant of his arguments with Anicic and the latter's aggression. Counsel for the applicant also pointed out that the trial judge's summary was inaccurate in that the assault in the laneway was not said by the applicant to have occurred while he was attempting to help Anicic. In my view the slip did not occasion any injustice to the applicant.

19 Another complaint was that the trial judge introduced the topic of self-defence by saying that it had "been raised as a specific defence by the accused ..." Counsel for the applicant referred to the observation of Hunt, J. in R. v. Dziduch[3] that, "It is very unwise ever to refer to the issue of self-defence as a 'defence', unless it is only to point that it is not really a defence at all."

20 In the present case I do not consider that any harm was done by the appellation "defence", for that was immediately succeeded by the words:

"I will be explaining to you in a moment what the Crown must prove to your satisfaction beyond reasonable doubt, in order to rebut this defence, that is, before you may find the accused guilty of either charge you must be satisfied that he was not acting in self-defence."

The trial judge's directions as to self-defence did emphasize the burden of proof borne by the Crown in dealing with the considerations relating to the issue. I do not think that there was any danger that the jury may have thought that there was any onus on the applicant to prove that he acted in self-defence. No exception was taken to the trial judge's use of the words "defence".

21 Following the book of standard charges used in the County Court the trial judge completed her directions as to the law relating to self-defence by telling the jury that:

"[I]rrational fear, or belief formed without reasonable grounds for it does not justify violent activity by the accused."

22 R. v. Portelli[4], an appeal decided after the charge was given in the present case, Ormiston, J.A. referred to this passage in the charge book and said:

"The suggested charge leaves the question of rationality as the last matter to be considered by the jury and it also has the potential for diverting them from the single issue which has to be resolved as to whether an accused believed on reasonable grounds that what he or she did was necessary to defend himself or herself (or another). It appears that on this occasion irrationality of belief was clearly not such a significant issue as a lack of proportion ... The distraction posed by the final observation in the present case, consequently, may be seen to be just as significant."

23 While I think that it was unnecessary to canvass the question of the rationality of the appellant's fear in this case, in the light of the relative simplicity of the issues I do not consider that there was any real risk that the jury would have been distracted from the issue they were required to determine.

24 For the foregoing reasons I would refuse the application.

25 I agree that, for the reasons advanced by Buchanan, J.A., the application for leave to appeal against conviction should be dismissed.

[1] [1987] HCA 26; (1987) 162 C.L.R. 645 at 662.

[2] Above at 162-3 per Wilson, Dawson and Toohey, JJ.

[3] (1990) 47 A.Crim.R. 378 at 380.

[4] [2004] VSCA 178.