R v GRAEME JOHN LEE

The factual findings of the magistrate

1. The appellant was charged under section 93G(1)(c) of the Crimes Act which provides as follows: Any person who possesses a loaded firearm or loaded spear gun in a public place, or in any other place so as to endanger the life of any other person, or fires a firearm or spear gun in or near a public place, or carries or fires a firearm or spear gun in a manner likely to injure, or endanger the safety of, himself or herself or any other person or any property, or with disregard for the safety of himself or herself or any other p erson, is liable to imprisonment for 10 years.
2. The Court attendance notice particularised the offence as being that the appellant "did fire a firearm…… with disregard for the safety of Mark Clay…".
3. The magistrate's reasons commence at transcript page 52 of 23 October 2020. The magistrate stated that the charge was "fire a firearm in a manner that was likely to injure either persons or property". As can be seen from the section and the Court attendance notice excerpted above the magistrate has misstated the charge. The relevant section under which the appellant was charged allows for the charge to be framed in more than one way. It may be the magistrate simply adopted the words he did as a shorthand way of referring to the relevant subsection as the words used are the beginning words of the subsection. The position is however that the appellant was charged with firing a firearm "with disregard for the safety of Mark Clay" and not with firing a firearm "in a manner that was likely to injure either persons or property". My view is that the initial statement of the charge by the magistrate actually works in favour of the accused appellant as those words require proof beyond reasonable doubt that the act "was likely to injure" rather than simply proving beyond reasonable doubt "disregard" for the safety of Mr Clay.
4. It may be that this is in fact a moot point because the magistrate immediately adds that the allegation is "further particularised" as set out in the Court attendance notice. No point was made of this issue by the appellant.
5. The facts seemingly found by the magistrate were as follows: 1. The appellant operates a rural property at Smiths Creek. This property is accessed from Smiths Creek Road. 2. The appellant's property is about 1.5 km from the property of a Mr and Mrs Hillman. The Hillman property is accessed from Smith Creek Road. This property is to the south of the appellant's property. 3. The appellant's property is about 2.5 to 3 km from Mr Clay's property. The Clay property is accessed from Wombat Creek Road. Wombat Creek Road is to the south of the Hillman property and runs in a easterly direction off Wombat Creek Road. 4. There existed some acrimony between Mr and Mrs Hillman and Mr Clay and to a lesser extent between the appellant and Mr Clay. The cause of this appeared to be cattle roaming onto Mr Clay's property, including cattle of the Hillmans. The magistrate described people's relationships with Mr Clay as "very tense". 5. The alleged offence occurred on 26 November 2019. On that day after Mr Hillman had left the Hillman property Mr Clay contacted Mrs Hillman who remained on the property with her niece, about cattle. This contact concerned Mrs Hillman leading her to contact her friend the appellant and leaving him a recorded message on his answering machine. This message later heard by the appellant was to the effect of Mr Clay "is going off his tree again". Mrs Hillman asked if she and her niece could come to the appellant's property until her husband came home. 6. The appellant drove to the Hillman property and Mrs Hillman told him Mr Clay had been threatening them. The appellant drove about and could not see Mr Clay in the area and returned to tell Mrs Hillman as much and to ring 000 if there were any problems. 7. The magistrate noted the nearest police station was 10 to 12 km away in Copmanhurst and is not manned on a 24-hour basis. The appellant returned home. Not long after he received a call from Mrs Hillman who said "he's driving past our place now yelling abuse. They're all yelling abuse." 8. The appellant went outside and could see a vehicle travelling on Smith's Creek Road which he considered was being driven by Mr Clay. The appellant got into his Toyota Landcruiser with the intention of following the assumed Clay vehicle along Smith Creek Road. The location of the two vehicles at this time was described by reference to Exhibit 30. Of note is that the Clay vehicle was at position number five on that exhibit which is at the northern end of Smith Creek Road beyond firstly the Hillman property and also secondly beyond the appellant's property. In the course of following Mr Clay an accident occurred between the Clay vehicle and the appellant's vehicle. There was a conflict in the evidence as to who was driving the Clay vehicle. It appears the accident occurred when the Clay vehicle attempted to turn so as to travel south, that is it was doing a U-turn and due, according to the appellant, to the suddenness of that turn, (or due to backing across the road in performing the three point turn) the appellant hit the Clay vehicle. Mr Clay maintained that he was driving. 9. The magistrate notes that more than once in a subsequent 000 call Mrs Clay said she had been driving. Neither party said anything to the other at the time of the accident with the Clay vehicle driving away. The appellant said this gave him cause for concern as to what Mr Clay may now do. 10. The appellant followed the Clay vehicle which turned into Wombat Creek Road. That means the vehicle passed firstly the appellant's property and also the Hillman property. Again, for a second time, the appellant went to Mrs Hillman's home and said Mr Clay had gone and it's fine and if there's further incidents telephone 000. 15 minutes later Mrs Hillman called the appellant again, making it the third call she had made to him including the first one where she left a message. This time she said Mr Clay had a bulldozer and that she was afraid he would come to her house and flatten her house. 11. The magistrate then refers to the first map of Exhibit 30 which is also marked "B" which depicts where the appellant says Mr Clay was in a tractor (position marked number one; and I would add which appears to be at the junction of Wombat Creek Road and Smiths Creek Road and therefore a position south of the Hillman property) and the location of the appellant on his property marked with the number two. This was described as a distance of 700 m which I was told in the appeal is by road and that it was somewhat less as the crow flies. There was no contest that the appellant heard abusive language being yelled by Mr Clay to the appellant. 12. The magistrate rejected Mr Clay's evidence that he did not ram the appellant's motor vehicle and found positively that he did do so three or perhaps four times. The magistrate preferred the appellant in this regard. 13. The magistrate found that by 26 November 2019 there was no prospect of a friendly relationship between Mr Clay and his neighbours, the appellant and Mrs Hillman. 14. Assuming it was Mr Clay driving the tractor, which the appellant assumed at the initial stage was a bulldozer, he retrieved a firearm from his property, and I note the appellant's evidence that he did this after hearing the abuse from Mr Clay located some distance away. The evidence was and the magistrate accepted that the appellant was experienced in the use of firearms and had been using them for over 40 years. The magistrate accepted that the appellant considered Mr Clay out of control based on what he had been told by Mr Hillman and his past experiences and presumably also the language referred to as being used. He drove to where the tractor was to try and de-escalate the situation. 15. The actual conduct founding the charges as found by the magistrate is set out at T57.35-.50. The appellant stopped his vehicle in proximity to the tractor and opened his door. Each vehicle was facing each other which I interpret as meaning the appellant's vehicle facing south and the Clay vehicle facing north. The Clay vehicle accelerated striking the Landcruiser forcing the appellant back into its cabin whereupon he grabbed his rifle and fired a warning shot. The tractor rammed the Landcruiser again. The appellant put the rifle which he conceded was very high powered "over the snorkel fitted to the Landcruiser, fired downwards into the radiator". The appellant said he did not think this was dangerous because the person was seated high up in the tractor and he was firing downwards into the radiator. 16. There was reference to the amount of alcohol consumed by both the appellant and by Mr Clay. There is no evidence as I understand it that the appellant knew how much alcohol Mr Clay had consumed and query any relevance of this in any event given he had already concluded that Mr Clay was "out of his tree". Mr Clay admitted in his interview with police to being "whipped up" and "agitated". 17. The magistrate found at T59.22 that Mr Clay wanted to right the perceived wrong of the earlier incident with the other vehicle. 18. The tractor that Mr Clay was now driving was found to be much heavier than the earlier vehicle of his which was damaged. It was equipped with a ballast at the front which is a very heavy weight to prevent its front wheels lifting off when towing something heavy. The magistrate proceeded, and this is not challenged, on the basis that it was significantly heavier than the Toyota driven by the appellant. 19. The magistrate found that the appellant fired 4 shots, 3 of which struck the tractor. At T59.35 the magistrate noted the evidence that Mr Clay said the bullets struck the radiator and the magistrate confusingly said "I think the final shot that struck the vehicle damaged the vehicle"; I say confusingly because if the finding is 3 shots hit the tractor, damage would occur each time. There was a broken headlight about which the magistrate said "but there is a reasonably compelling inference to my mind that one of the bullets fired by Mr Lee did strike the headlight of the vehicle. But I accept that I cannot be satisfied about that fact beyond reasonable doubt".
6. The magistrate then goes on to deal with the appellant's case. The findings as to the ultimate destination of the four bullets are not clear. From what I have recounted above it is plain that the first bullet was fired into the air. It is also plain that the remaining three were fired at the radiator which by reference to the photographs forming part of Exhibit 30 would be that black area directly beneath the red strip beneath the headlights; see photograph 34. I query whether the magistrate needed to be satisfied beyond reasonable doubt that the headlight was struck by the bullet. It is not essential to establishing the element of the offence though it obviously would assist. It may be sufficient that he was satisfied generally in the way that he has described it. However the case is not conducted on that basis and neither party challenged that approach of the magistrate.
7. Just where then did the bullets go? Exhibit 9 shows a mark in what appears to be the vicinity of the ballast. There is no finding as to where these three bullets actually hit. If it was the headlight with another bullet then hitting in the ballast area that would show that two out of the three shots fired, which were aimed at the radiator, missed the radiator. This is significant given that a large part of the appellant's case is his competency in firearms. The magistrate referred to Mr Clay's evidence of the radiator being shot, but did not state that he accepted that evidence and in other respects Mr Clay's evidence was rejected.
8. Another factor initially left undetermined by the magistrate was precisely how the shots were fired. The parties made submissions as to whether or not the appellant was in or out of his vehicle. A better reading of the evidence in my view is that he was inside the vehicle and somehow leaning around the snorkel of the four-wheel-drive and at the same time aiming downwards. That strikes me as a very precarious position to adopt when firing a high powered firearm; it has the appellant within the vehicle with the door open, his feet inside and leaning across so as to lean around the snorkel. Other factual matters
9. There was no challenge to the factual background set out by the magistrate as recounted above save by the Crown as to the position of the appellant when firing the rifle. I have reviewed the police interviews of both Mr Clay and the appellant and the transcript of the hearing and save for what follows can see no basis to query these findings. There is however some uncertainty as to the crucial aspects of precisely how the shots were fired (later resolved) and where in fact did the bullets go. On the above recounted findings there has been no determination as to where the bullets ended up save that it was not accepted beyond reasonable doubt that one hit the headlight and nothing was said about the photo and Exhibit 9 suggesting a bullet struck below the radiator. Nor is there any finding of any of the three bullets hitting the radiator. The rifle is described as a high-powered rifle. It is fanciful to suggest that if it had struck the radiator there would be no mark and I infer from the fact that there is no evidence of a mark that no bullet hit the radiator, being that black area below the red strip below the headlights. It seems to me on these factual matters open for the court in its appellate role to find that not all of the bullets struck the radiator if any at all. With respect that is not a surprising result given the apparent awkward position of the appellant in firing a high-powered rifle.
10. The case for the appellant was that he was within his vehicle at the time of firing the shots. The magistrate's description of the appellant firing "over the snorkel" suggests he accepted the appellant in this regard.
11. The evidence of Mr Clay was that the appellant got out of the Landcruiser, stood behind the open car door, leaned against the inside of the door, brought the gun to his shoulder to get proper aim and fired into the front of the tractor.
12. As to where the bullets went, Mr Clay says a bullet hit the light and that a bullet hit his "aircon"; T45. Mr Clay said a third bullet (which appears likely to be the third that hit the tractor, and the fourth overall given the initial shot in the air) "hit me tractor" down near the fuel tank on the side of the tractor and he was now going home.
13. Mr Clay admits to a phone call in which he swears at Mrs Hillman. Mr Clay denies driving the tractor so as to collide with the appellant's Landcruiser. The magistrate rejected Mr Clay's evidence in that regard.
14. The statement of Mrs Clay suggests she was driving the car in the first collision. Mr Clay says he was driving. Nothing turns on this. On either basis there was an incident that on the evidence overall was capable of agitating Mr Clay, and on one view, with some justification.
15. In his evidence in chief the appellant stated he considered himself a reasonable shooter and safety conscious; T12. At T19.27 the appellant corroborates the version of Mr Clay of the Clay vehicle going to look at fires, and that after the first collision the appellant followed the Clay vehicle back down to Wombat Creek Road, and then goes to Mrs Hillman and says if any trouble call 000.
16. The point at which the appellant gets the firearm is after returning home after following the Clay vehicle back to Wombat Creek Road after the first collision. Shortly after Mrs Hillman calls again and soon after the appellant comes out from his house and drives a short distance, stops and hears abuse and sees what is a tractor at near the Smith Creek Road / Wombat Creek Road junction. The appellant fears Mr Clay is going to the Hillman property and at that point he goes and gets his firearm. The appellant says Mr Clay is waiting for him at the turn off to the Hillman property, shown on the map exhibit by the number 3. This is not exactly as found by the magistrate but the differences are immaterial.
17. The appellant proceeds to where Mr Clay is. As he is about to get out and talk, his car is rammed / hit from 5 to 10 m away at speed of 10-15 kilometres per hour; see T23-24; then after the shots Clay reverses away. The appellant then goes to the Hillman property.
18. When the appellant was cross examined he said he saw Mr Clay clearly in the first collision; he agreed the rifle is a very high powered firearm; T38.33; he said he could not clearly identify the tractor; and that there could have been anybody on it; T40. He said his concern was for the Hillmans safety; T41.
19. These references to the evidence show the magistrate's findings to be sound, save for the lack of certainty as to the two crucial issues identified above. Curiously, the version of events contended for by the appellant is that the appellant was within the Landcruiser at the time of firing, a view consistent with the magistrate's reasons, and does not present an evidence backed view of where exactly the second, third and fourth bullets hit. I say curiously because in my view the argument for self defence is harder to make when the appellant is firing from the awkward position within his vehicle, and without being able to show the accuracy of his marksmanship upon which he relies. The magistrate's reasoning on self defence
20. At T59.46 the magistrate stated that the appellant's case was in terms of the statutory defence set out at section 93G(3) namely that he fired the weapon on all occasions for a lawful purpose. That lawful purpose was stated to be self defence. It seems to me that argument could be framed as falling within that part of subsection (3) which provides that it is a defence if the person had a reasonable excuse for firing a firearm which in my view is a broader basis for the argument than self defence. The case however was squarely framed as self defence and I will deal with it in those terms.
21. The argument below for the appellant was to say that he acted in self defence. The magistrate considered that the appellant had sufficiently raised that matter on the evidence and had satisfied the evidentiary onus he bears in that regard. As provided for by s419 of the Crimes Act it therefore remained for the Crown to prove beyond reasonable doubt that the appellant had not acted in self defence.
22. Section 418 of the Crimes Act provides as follows: A person is not criminally responsible for an offence if the person carries out the conduct constituting the offence in self-defence. A person carries out conduct in self-defence if and only if the person believes the conduct is necessary-- to defend himself or herself or another person, or to prevent or terminate the unlawful deprivation of his or her liberty or the liberty of another p erson, or to protect property from unlawful taking, destruction, damage or interference, or to prevent criminal trespass to any land or premises or to remove a person committing any such criminal trespass, and the conduct is a reasonable response in the circumstances as he or she perceives them.
23. At T60.05 the magistrate set out the terms of section 418, concluding with what is sometimes referred to as the second limb of the two aspects that need to be negatived, namely that "the conduct is a reasonable response in the circumstances as he or she perceives them". The magistrate in my view correctly identified that that was the central issue in the case.
24. The question therefore was whether the issue of self defence had been negatived by the Crown beyond reasonable doubt and more specifically the second limb.
25. His Honour then referred to the test in Katarzynski [2002] NSWSC 61 at [22] which he stated as being to ask "is there a reasonable possibility that the accused believed that the conduct was necessary in order to defend themselves?".
26. In considering this the magistrate determined that he was not satisfied the accused was intoxicated. He went on to say that the question requires an objective assessment of the proportionality of the accused response to the situation the accused believed they were facing (the use of the plural is either incidental, or a specific reference to Mrs Hillman and her niece). There seems to me here to be a conflating of the first and second limbs, however nothing turns on this.
27. The magistrate stated it was not difficult to accept the accused was very concerned as to the extreme unpredictability (presumably of Mr Clay) and a demonstrable mild disposition to believe that there was a real possibility that violence was brewing given the actions of Mr Clay and what the accused knew of him. Although not expressly stated, this appears to be an acceptance that the Crown had not negatived the first limb of self defence, that the appellant believed the conduct was necessary to defend himself or another. There was no challenge by the Crown to this as being the position.
28. Adverse to the accused the magistrate queried, given the accused had suggested earlier that 000 be called, why did he not do that when he saw Mr Clay on the tractor yelling abuse as opposed to arming himself and confronting him.
29. The magistrate expressed concern as to what the facts established as to where the appellant fired the weapon from, that is he was unsure of the situation. If I might interpolate here, and as noted above, the case for the accused is that he was in the Landcruiser, and to my mind the case for the accused is weaker if he remains in the Landcruiser because of the added difficulty that presents in safely discharging the weapon due to matters such as the awkwardness of positioning his body. Further to my comments above about this issue, the ultimate finding by the magistrate as to where the shots were fired from is at T62.16, where he accepts what is submitted for the appellant, namely, that he remained in the cabin, reached over the snorkel, and fired in a downward fashion.
30. The magistrate referred to what he considered "the most significant answer today" which was the concession that the accused could not see the driver of the tractor at the time he discharged the firearm; see T43.23, and in the next question I note he agreed he could not see what he was shooting at, though soon after he asserted he was shooting at a tractor.
31. Next the magistrate referred to the evidence that the accused stated "I let another shot go because I needed him to know I could protect Maureen and Tahlia and myself".
32. In what is effectively the ratio of the Magistrate's reasoning (at T62.40) he rhetorically asked "protect them from what"? Putting aside for one moment that this ignores the need for protection of himself, the Magistrate then said that there was no suggestion Mr Clay was armed and that the appalling behaviour demonstrated in the 000 calls was not evident at this time and thus self defence had been negatived so that the defence under section 93G (3) had not been made out.
33. I consider this reasoning whilst it may ultimately be arriving at the right decision, as to which see below, has the following problems: 1. The rhetorical question as noted ignores the fact that the appellant was also protecting himself from an approaching tractor that had just rammed his vehicle in which he was located. 2. The rhetorical question ignores the evidence that Mrs Hillman had stated earlier that she was fearful he would run his tractor (which she thought was a bulldozer) into her home. This criticism has the difficulty that at the time Mr Clay was not on the Hillman property but it does at least identify a matter that is potentially something to be protected from. 3. Thirdly, as I understand the evidence the sort of abuse being yelled out was consistent with the type of abuse being yelled out in the 000 calls, which are plainly threatening in nature if not also content. The arguments on appeal
34. It assists in considering the matter to set out the relevant direction that should be given concerning self defence. The following points are taken from the judgment of Meagher JA in Decision Restricted [2016] NSWCCA 268, with any reference to the facts deleted: 1. To eliminate self-defence, the Crown is required to prove beyond reasonable doubt that: 1. the appellant did not believe his conduct (here, in firing the firearm) was necessary in order to defend himself (a question directed to the appellant's actual belief) or 2. that the appellant's conduct was not a reasonable response to the circumstances as he perceived them (a question requiring an objective assessment of the proportionality of that response to the situation which the appellant actually believed he faced).
35. In stating this proposition, Meagher JA cited R v Katarzynski [2002] NSWSC 613 at [22]-[23] (Howie J), which the parties referred to in submissions.
36. In the present case the magistrate considered that the Crown had failed to show beyond reasonable doubt that the appellant did not consider his conduct necessary, the first limb. The Magistrate did consider that the Crown had proven beyond reasonable doubt the second limb, that "the conduct was not a reasonable response in the circumstances as he or she perceives them".
37. This is the point on the appeal. The Crown takes no issue as to the finding on the first limb of self defence being against the Crown. The Crown does maintain that the magistrate was correct to find that the Crown had negatived the second limb beyond reasonable doubt.
38. In the written submissions of the appellant on this appeal, it was submitted that the appellant was of the belief that he, Mrs Hillman and Tahlia were under imminent threat from Mr Clay who was in a 5 tonne tractor; at [5.6] of the appellant's submissions. This was plainly not the finding of the magistrate, as shown by the rhetorical question identified above. I agree with the magistrate in this regard. Whilst as indicated above there was evidence of some threat, the evidence does not show Mrs Hillman to be under imminent threat at all; Mr Clay was not on the Hillman property, let alone proceeding towards the house. As the appellant's submissions note at [5.7], the ramming of the Landcruiser by the tractor occurs after Mr Clay has passed the entrance to the Hillman property. Given the tractor and Landcruiser were facing each other by the time of the ramming, it appears Mr Clay has done a U turn or multipoint turn to attack the appellant, who has followed Mr Clay to a point beyond the entrance to the Hillmans, and to a point closer to the Wombat Creek road turnoff. Favourably to the appellant however, by the time the shots are fired, the appellant is facing the imminent attack from the tractor.
39. At [5.9] the appellant submits "three well aimed shots" were fired into the radiator. Whilst the first of the two factual matters I identified as being uncertain, the position of the appellant at the time of firing the shots, was determined to be as the appellant submitted (see above at [33]), there was no express finding as to where the bullets went. In my view, this submission of the appellant is not open on the facts. There was no evidence of the radiator being hit, apart from the assertion of Mr Clay who was otherwise rejected and was not said by the Magistrate to be accepted on this point. There was no evidence of damage to the radiator. There was evidence suggesting areas both above and below the radiator were hit, but not to the point where, at least in relation to the headlight, the magistrate was satisfied of that beyond reasonable doubt. There is no finding as to just where the other bullets, aimed at the radiator, went.
40. This is a significant matter. A large part of the appellant's argument was to rely on the response as reasonable due to his experience with firearms. Yet in firing from a distance of only a few meter's, there is no evidence of hitting what he was aiming at, and the competing evidence that the bullets went both below and above the target. It is enough to conclude the shots were off target, without determining if they were high or low.
41. The appellant submitted, at [5.16], that the appellant genuinely believed Mr Clay intended to "unlawfully enter property, demolish property, and possibly harm" Ms Hillman and Tahlia.
42. The difficulty with this submission is that it is arguing the first limb, which is where these terms are found in s418(2), and which the appellant succeeded on. What needs to be addressed is the reasonableness of the response. The submission does go in part to the second limb due to the need to assess the reasonableness of the conduct in the circumstances as the appellant perceived them.
43. The real gist of the appellant's argument is at [5.27] and following. Having just identified the events of the evening, namely the repeated verbal abuse of Mr Clay to Mrs Hillman, the third distressed phone call of Mrs Hillman, and her expressed concern that Mr Clay may damage the house, the verbal abuse of the appellant, the driving up the road for at least a second if not a third time, and the turning around at about the junction of Wombat Creek Road followed by the ramming the car, the submission is that each of the four shots was a reasonable response.
44. As to the first shot it is said that this was reasonable. This was the shot in the air. The magistrate did not consider this shot.
45. As to the second, third and fourth shots it is said that they are reasonable responses. To support this argument the appellant relied on answers given in his record of interview. Specifically reliance is placed on answers to questions 159, 160, 164, 165 and 267-276. The gravamen of that evidence was that the shots were well aimed in the opinion of the appellant, that he could get over the bonnet and down into the tractors radiator, that the two vehicles were close together and that the shots were well aimed with the intention of disabling the vehicle. Reliance is also placed on the appellant being an experienced shooter.
46. With respect to the magistrate, these are matters which the above review of his reasons shows were not expressly considered by him in reaching his conclusion adverse to the appellant.
47. In my view the evidence does not support these submissions for the reasons set out at [49]-[50] above. There is no evidence of any bullet hitting the radiator, and strong evidence suggesting a bullet, and possibly bullets, hit elsewhere. The evidence also shows that the stance of the appellant must have been awkward.
48. It is however important here to remember the onus is on the Crown to show beyond reasonable doubt that the appellant's conduct was not a reasonable response in the circumstances as he or she perceives them. The onus is not on the appellant.
49. The relevant test was stated this way by Santow J in R v Trevenna [2004] NSWCCA 43, a case involving a firearm, but also being distinguishable from the present as it was a case where the conduct caused death, so that s421 was relevant. Santow JA said: [38] The common law, as I have said, simply required an actual belief, upon reasonable grounds, that the conduct was necessary in self-defence. The new s 418 expands on the purpose required for conduct believed necessary in self-defence. Its purpose must be to defend a person (accused or third party), liberty or property; or else to prevent criminal trespass. The necessity at common law for objectively reasonable grounds for that belief is expressed in the statutory requirement that the response be reasonable. That objective reasonableness of response is to be assessed however "in the circumstances as he or she perceives them", perception being in that sense subjective. Compare R v Viro (1978) 141 CLR 88 where "reasonably believed" was held to mean, not what a reasonable man would have believed, but what the accused himself might reasonably believe in all the circumstances in which he found himself. Under s 418, like the Model Criminal Code, someone who really thought they were in danger, even if m istaken about that perception, may be able to rely on self-defence for their actions - unless the conduct in the circumstances so perceived was not "a reasonable response". Codification of what constitutes "self-defence" thereby refines and elaborates on the common law elements, but without introducing any major change. (underlining and bold added).
50. The argument of the Crown on the appeal was straightforward. The Crown argued that the appellant's response was not reasonable. To fire off bullets from a high powered rifle, in circumstances where the whereabouts of the attacker is not known, (see [34] above) and where the ultimate resting place of the bullets cannot be known with any certainty, simply cannot be a reasonable response to this neighbourhood style dispute, intense though it may have been. In support of this view the Crown relied on R v Cicekdag [2004] NSWCCA 357 at [35]. There it was stated in respect of a s93G(1)(b) offence that a sentencing judge did not seem to appreciate the rationale of parliament treating that offence as more serious than malicious wounding, and it was then said "The problem with a projectile weapon, such as a firearm, is that once the projectile has been released it will travel a considerable distance and the firer has no control over its ultimate destination. Death or injury can result. This is particularly so where the discharge is indiscriminate in a public place and as happened here, a number of shots are fired".
51. The present case can be distinguished on a number of bases from the foregoing; in our present case whilst it was a public place, it was remote; Cicekdag was a matter of sentence on a s93G matter, and was not considering self defence. Further, it overstates the appellant's conduct to consider the firing as indiscriminate. Yet in my view the passage is instructive in considering, in connection with self defence and the use of weapons, what is reasonable.
52. In addition to the above argument, the appellant argued in this appeal, but not below before the magistrate, that the element of the offence that the firing of the firearm be "with disregard for the safety… of any other person" was not made out. I was not taken to any authority by the parties or any particular facts of this case for that matter which would support the court considering on appeal this argument that was not put below.
53. One well-known case in which it was allowed to argue a point not raised at trial is the case of Fingleton v The Queen (2005) 227 CLR 166. In that case there was a statutory defence of immunity from suit available to the appellant that was not relied upon before the trial, at the trial, or on appeal to the intermediate appeal court, and was first raised in the High Court proceedings. In short the point was allowed to be raised because, as put by Justices Gummow and Heydon, "The essential point is that, as a matter of law, the appellant should not have been put to trial. In that circumstance, it will be inappropriate to enter upon any consideration of the other issues or of their merits".
54. The situation here is far different, though the argument sought to be put simply relies on the same facts and the appellant argues there is no disadvantage to the respondent in the sense the case would not have been conducted differently. That is, it is said to be just a matter of argument.
55. The Crown opposed allowing argument on this other basis. Yet the Crown did not identify any particular forensic disadvantage that the Crown would be at nor is it identified what further evidence the Crown may have led had it known this was an issue.
56. In my view the appellant was entitled not to outline the argument it now wishes to make to the Crown prior to the closing of the evidence before the magistrate. Viewed that way what is really being sought is simply to make a further argument that could have been made that was not made after the close of evidence in the court below. It is no relevant prejudice to a party that some further argument not be allowed just because it may be a particularly strong one. I gave leave to the Crown to make any further submissions they wished to make about this new argument as it appeared the Crown was somewhat unaware of it. No further submissions were made. In all the circumstances, whilst the argument could and should have been raised below, I propose to allow the argument. Determination
57. The issue boils down to whether the conduct of the appellant was reasonable in the circumstances as he perceived them to be. It is sobering to consider that if he had shot and killed Mr Clay, that would in my view on these facts, viewing Trevenna as a guide, be excessive self defence. Whilst that would reduce murder to manslaughter (if murder was alleged), it shows that in terms of s418 it is not reasonable.
58. The matter can be resolved without analogy to s421. The magistrate preferred the appellant to Mr Clay as a reliable witness. I query whether the magistrate properly took into account "the circumstances as the [appellant] perceived them to be", given the rhetorical question appearing in the judgment. I have identified above what those perceived circumstances appear to me to be. The magistrate should have made more clear to what extent he took those circumstances into account, if indeed he took them into account at all.
59. The question that arises is whether, taking into account those circumstances as perceived by the appellant, is the response reasonable?
60. There was no significant argument put by either party concerning whether or not the appellant should have retreated, that he should have driven off, either simply away or more helpfully onto the Hillman property, to give some comfort to Mrs Hillman and her niece. Not being in issue, it is not necessary for it to be considered, and I would also note the authorities suggest it is not necessary to retreat, though arguably it depends on the circumstances; see for example Hudd v R [2013] NSWCCA 57 at [95], and see also R v Howe (1958) 100 CLR 448, the case from which the appellant's quote of Justice Oliver Wendell Holmes, referred to below, comes from.
61. Ultimately, the view I take is that in all the circumstances the use of the firearm to fire in the direction of the tractor was not reasonable. The evidence shows that at the time of firing the appellant did not know where Mr Clay was; it shows that the shots were fired from an awkward stance, in stressful circumstances; and the weapon used was a high powered rifle, capable of inflicting serious injury or death; and it shows that it is likely the shots did not hit their intended target. On this last point I take the view the Crown does not have to prove beyond reasonable doubt where the bullets hit; it is enough if I am generally satisfied that they did not hit the target at which the appellant aimed, as part of the facts I rely on to determine whether the element of showing beyond reasonable doubt the conduct was not reasonable in the circumstances as perceived by the appellant, is made out. In any event, the evidence is that the radiator showed no signs of being hit by a bullet, which satisfies me beyond reasonable doubt that is so.
62. The case for the appellant emphasised the appellant's experience with firearms. Whilst that is a sensible point to make on his behalf, it is also an acknowledgement of how dangerous firearms are, which was and is a major concern as to the response of the appellant taken by both the court below and this court.
63. In reaching this conclusion I have considered the quote at [9.1] of the appellant's submissions, attributed to Justice Oliver Wendell Holmes that "detached reflection cannot be demanded in the presence of an upturned knife". There is some force in this submission. The initial response was to fire in the air. The likelihood of that shot in the remote surroundings doing harm is close to nil. The change of tactic to aim at the tractor, presumably because of the lack of immediate success in firing in the air, was possibly the only other form of self defence open to the appellant. The decision to take that course in my view, for the reasons stated above, was not a reasonable response in all the circumstances.
64. This conclusion also applies to the new argument that the appellant sought to make. For the reasons just stated I find that the firearm was fired by shots 2, 3 and 4 with disregard for the safety of Mr Clay.
65. These are perhaps regrettable conclusions, for the appellant has in my view acted in a well intentioned and honourable way. It is clear that Mr Clay's behaviour was well out of order, and the findings of both this Court and the magistrate are that he was correct to perceive the circumstances as threatening. Yet the law is that whilst the circumstances as perceived by the appellant are subjective matters, and are in this case accepted as being genuinely held by him, the response must be reasonable, and that aspect of the second limb retains an element of objectivity, as explained by Justice Meagher referred to at [39] above.
66. In terms of a s18 appeal, I consider that the appellant has established error on behalf of the Magistrate. The magistrate was wrong to suggest by his rhetorical question that there was no threat, and in doing so appears to have confused the two limbs of self defence. Further, with respect, his reasons are less than clear for why the second limb was negatived, though I hasten to add the conclusion reached is one I agree with. I suspect, again with respect, this criticism is somewhat unfair given the reasons were ex tempore and noting the workload of magistrates.
67. The conclusion I have reached is based on the view of the Magistrate so far as the credibility of the two key witnesses is concerned, acknowledging the advantage he has in observing them giving evidence. Ultimately the view of the matter I take is the same as that of the Magistrate for the reasons and facts stated at [40], [49], [50], [57] and [71] above. ORDERS:
68. Appeal dismissed.
69. Orders of the lower court confirmed.

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