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[1998] QCA 41
Court of Appeal (Qld)
1998-03-13
Before McPherson J, Davies J, Fryberg J, Mr P, Pherson J
Original judgment source is linked above.
For the reasons already given, the appeal should be allowed and the convictions and verdicts of guilty set aside. There should be a new trial of counts 1 and 2 limited respectively to charges of manslaughter and doing grievous bodily harm.
I agree with the reasons for judgment of McPherson J.A. and with the orders he proposes.
I agree with the orders proposed by Mr Justice McPherson and with his Honour's reasons for those orders.
R
Gray [1998] QCA 41
As has been said on more than one occasion in the past, the provisions of s.271 are by no means a model of clarity or simplicity. In dealing with a case falling within the terms of s.271(2), there is a tendency, observable in some of the reported cases, to read s.271(1) as laying down a series of conditions which are to be treated as cumulative upon those specified in s.271(2). Thus, for example, in Marwey v. The Queen [1977] HCA 68; (1977) 138 C.L.R. 630, 633, the learned trial judge directed the jury that a "critical question is what is reasonably necessary ... whether he [the accused] went beyond what was reasonably necessary in all the circumstances". The expression "reasonably necessary" appears only in s.271(1), which suggests that it was being incorporated in the direction under s.271(2), where it is not mentioned. Likewise in the present case, there was a point in the summing up where the learned judge referred to the question whether it was "necessary for effectual defence" for the appellant to have fired a shot at Tidswell. The expression "necessary to make effectual defence" appears in s.271(1), but it forms no part of s.271(2).
It follows that the convictions must be set aside and a new trial ordered. Partly because of that, it is necessary to refer to another ground of appeal which it was sought to add at the hearing of the appeal: see Jones v. The Queen [1989] HCA 16; (1989) 166 C.L.R. 409. It was that the trial judge had refused to permit counsel for the appellant to cross-examine Det. Sgt. Muirson about what he saw of the conduct of a man named Brendan O'Brien at or shortly after the police arrived at the house at 343 East Street on the morning in question. O'Brien was the president of the Rebels Club who, on reaching the scene of the shooting, attempted unsuccessfully to wrest a firearm from a police officer evidently with a view to retaliating against the appellant. By that time, however, the violent conflict was at an end, and the police were sufficiently in control of affairs to restrain O'Brien and to remove the appellant out of harm's way. It was nevertheless submitted that counsel for the appellant at the trial ought not to have been prevented from cross-examining O'Brien with a view to eliciting evidence of his aggressive behaviour towards the appellant. It is, however, difficult to appreciate what possible relevance his attitude on that occasion could have had to the matter of the appellant's claim under s.271(2) to have been defending himself against the earlier assault, by three other persons, to which O'Brien was not a party and during which, when it happened, he was not even present.