R v Portelli [2004] VSCA 178

7. The applicant seeks leave to appeal against both conviction and sentence arising out of a verdict of guilty on one count of recklessly causing serious injury brought in by a jury in the County Court. The learned judge sentenced him on this one count (for which the maximum penalty was 15 years' imprisonment) to a term of imprisonment of 2½ years or 30 months. Her Honour directed that 22 months of this sentence, i.e. all but eight months thereof, be suspended for a period of three years. A number of grounds have been relied upon on the application relating to conviction. I summarise those four grounds of the original six contained in the original notice of application that were argued before this Court before mentioning the additional ground which counsel sought to add by leave in the course of the application. The first ground contained in the notice complained that the verdict was unsafe and unsatisfactory. The second asserted that the learned judge erred "in failing to properly direct the jury upon "self-defence"[1]

, in particular by ... failing to give adequate directions on the issue of proportionality ...". (A second particular relating to retreat was not pursued.) The third ground asserted that the judge erred in admitting into the trial evidence of "prior conflict between the applicant and the complainant". Finally (by ground 4) it was asserted that the judge erred in failing to give correct directions to the jury as to how they might use evidence of the prior conflict referred to in ground 3. The ground counsel sought to add was that the judge erred in directing the jury that they could use evidence of consciousness of

guilt "as evidence of the applicant's actual guilt". As to sentence the sole ground in the notice was that the sentence was manifestly excessive "in particular having regard to the applicant's youth and lack of prior convictions".

14. The applicant was tried along with a friend Michael Bonnici on a presentment containing two counts, the first charging them with intentionally causing serious injury and the second, by way of an alternative, charging them with recklessly causing serious injury. The essence of the prosecution case was that they were acting in concert in attacking the victim, Paul Bryans (the so-called "complainant"), an acquaintance who was said to owe them $50, with the result that Mr Bryans was savagely beaten around the head by a baseball bat wielded by the applicant. Each denied any agreement to attack Mr Bryans and in addition claimed that they were acting in self-defence or, more precisely in the case of the applicant, in defence of Mr Bonnici. At a trial in which neither gave evidence, the jury brought in verdicts acquitting Mr Bonnici on both counts and acquitting the applicant on the count of intentionally causing serious injury, but finding him guilty of recklessly causing serious injury. The events which led to the trial and those verdicts were, in summary, as follows.

17. About a fortnight before the charged attack took place the applicant and Mr Bonnici had met Mr Bryans and had given him $50 in order "to score for them", i.e. to obtain for them some drugs. Mr Bryans did not get them the drugs, nor did he return the money. A couple of days later he was asked to return the money but said he would produce it in a short but unspecified time. The same evening the applicant and Mr Bonnici came to Mr Bryans' place again asking for the money, but he repeated that he could not give it to them then but said he would have it by Sunday. There was a short fight in which Mr Bryans received a cut to his head, but the fight was broken up by another person. The money remained unpaid.

20. About a fortnight later, on 8 March 2002, Mr Bryans with a friend Paul Eason and a small boy, were walking along a suburban street. At the same time a car, in which the applicant was a passenger, came along the street driven by Mr Bonnici which stopped a little ahead of Mr Bryans' group. Mr Bonnici jumped out and approached Mr Bryans. Mr Bryans was expecting to be asked about the money and thought he was about to be attacked. It seems more likely than not that Mr Bryans was the first to deliver a blow which caused Mr Bonnici to fall against the car and then to the ground, where a struggle occurred between them. At first the applicant remained in the car but, on seeing the struggle develop, the applicant grabbed a baseball bat which happened to be on the back seat of the car. He stepped out and swung the bat at Mr Bryans' head and hit him with the bat at least twice. Mr Bryans fell to the ground and the applicant and Mr Bonnici fled the scene in their car. An ambulance and the police were called shortly afterwards. The injuries were described by a doctor as life-threatening and an emergency craniotomy and evacuation of the haematoma were carried out. Residual injuries include permanent loss of hearing of the left ear and intense headaches.

24. At the trial counsel then appearing for the applicant raised first the admissibility of the evidence relating to the earlier dealings between Mr Bryans and the two accused, including the applicant. It was said that evidence relating to the loan of $50 and the brief fracas at Mr Bryans' residence was irrelevant, and, even if it were relevant, it was so prejudicial that it should be excluded on the exercise of the judge's discretion to do so. Although the argument on this appeal concentrated on the evidence relating to the exchange of blows between the three men, the dispute before the trial judge objected generally to all aspects of the earlier dealings. The judge found that, although reference to the fighting would be prejudicial, as would any reference to the purchase of drugs, the evidence was both generally relevant to the relationship between the parties and to the accused's motives and that, moreover, it was just to admit the evidence in accordance with s.398A of the Crimes Act 1958. Moreover her Honour held that in all the circumstances the probative value of the evidence outweighed the potential prejudicial effect of it, though she proposed to give certain warnings to the jury as to the use of the evidence, which in fact she gave. A little later counsel then appearing for the applicant sought a further ruling in relation to the admission of the evidence concerning the purchase of cannabis, but she maintained her earlier ruling that the subject matter was relevant.

27. The trial then proceeded before the jury with Mr Bryans giving evidence, as well as the other witnesses to the events both at the earlier stage and at the time of the charged attack on Mr Bryans. Both of the accused chose not to call any evidence.

30. After addresses by counsel the learned judge gave a most extensive charge to the jury, directing them in detail as to the legal considerations which should guide them and summing up the evidence and contentions. Her Honour gave comprehensive directions as to the use the jury might make of the evidence of the prior conflict between the parties, such that counsel on this appeal accepted that in form it complied with authority, although contending that in part it was inappropriate to the issues at the trial. I shall turn to that later. Secondly, the judge gave conventional directions as to the use by the jury of evidence given as to certain matters which were relied upon as evidence of consciousness of guilt, but said that they "could use that evidence of consciousness of guilt as evidence of actual guilt". Again that will be examined later.

33. Finally for present purposes, the judge gave a very detailed direction as to self-defence. Some exception was taken to it but the judge refused to redirect. However the jury in fact asked for a further explanation of self-defence which caused her Honour to repeat substantially, although with some variations which might be seen of consequence, the directions earlier given on that subject. Since what was said by her Honour was criticised in general terms by counsel and, in particular, because he has contended that the use of an expression relating to proportionality of response misled the jury as to their general approach to the issue as raised at the trial, it is (regrettably) necessary to set out the whole of that direction (as it was first given to the jury), and it is convenient to do so at this stage:

"I was about to turn to the element of acting without lawful excuse, which is an element of both of the counts. A lawful excuse exists when the acts of an accused were done by him as a result of his believing upon reasonable grounds that they were necessary to be done in order to defend himself or another from the actual or threatened violence of another. Now it is both good law and good sense that a person who is attacked may defend himself and this applies equally to defending another from attack. However, it is neither the law nor is it sensible that a person should be permitted under the pretence of defending himself or another, to attack a third person. The ultimate question for you is has the prosecution proved beyond reasonable doubt that Portelli was acting unlawfully because he did not believe on reasonable grounds that what he did was necessary to defend Bonnici. So it is necessary to consider the actions of Portelli and all of the surrounding circumstances in order to determine whether he acted in defence of Bonnici or a pursuit of some other purpose and whether the prosecution has proved beyond reasonable doubt that he was not acting in defence of Bonnici. Now these considerations may bear upon this question or those questions I have just posed. Consider first of all was the action, from which Portelli argues he was defending Bonnici, the kind of action which called for his action of defence of Bonnici or was it something that a sensible person would ignore? Consider this. Was it an action, the consequences of which could easily have been avoided? If you find that there was a common purpose, could it have been avoided by not stopping the car and continuing on or could it have been avoided by Bonnici retreating from the situation that was created when he stepped out of the car? Now there is no obligation on a person to retreat and indeed, it may be, in certain circumstances and you may consider this one of them, that it would be a dangerous thing to attempt to retreat. However, a failure to take obvious evasive action might well indicate an intention in both accused to use the occasion for aggression or retaliation in keeping with the alleged common purpose, rather than acting in defence of one's self or another. Consider also did Portelli use unnecessary force? Now although a person who is defending another is not required to weigh up specifically the extent of force required to resist an attack, the use of force which is plainly disproportionate to an attack, may also be an indicator of the occasion being used for aggression or retaliation, rather than for self defence or defence of another. Consider this. If you come to the conclusion - and it is always a matter for you - that Bonnici was the person who began the confrontation by stepping out of the car and acting in the way you find that he acted, was the original aggressor in that or any other sense or was otherwise acting pursuant to a common purpose as alleged, acting in common purpose with Portelli, it is necessary to have regard to the course of events that followed thereafter. So if you have come to the conclusion that Bonnici was the original aggressor or the person who began the confrontation, did Bryans increase the level of aggression or increase the kind of aggression so as to cause a need for Bonnici to protect himself and a need for Portelli to come to his defence? Now it might be that for example a person who answers a push in the chest by producing a knife, is doubted in the assertion that they were acting in self defence or defence of another. Now it is obviously not the situation here, but that's the sort of example when you consider the level of the threat or the actual violence that was faced in the attack and the response to it. Further, if you came to the conclusion that Bonnici was the original aggressor or began the confrontation in the ways that I have outlined and always remembering it is for you to decide whether you do, you should have regard to the course of events that followed in order to determine whether Bonnici ceased to be the aggressor, either by quitting the fight or by being defeated in it and then independently of his original intention or aggression, defended himself against a new attack and then being joined by Portelli in facing that new attack; Portelli defending Bonnici against that new attack. Those are the sorts of considerations and illustrations of questions that you should examine in order to determine that ultimate question that I posed before. Has the prosecution proved beyond reasonable doubt that Portelli was acting unlawfully, that is without lawful excuse, because Portelli did not believe on reasonable grounds that what he did was necessary to defend Bonnici? Another way of putting it is, has the prosecution disproved that Portelli was acting in defence of Bonnici? It is for you to examine all the circumstances as you find them to have been and to consider both the actual belief of Portelli and the reasonableness of his forming such a belief. An irrational fear or a belief formed without reasonable ground for it, does not justify violent activity by an accused. It is also not for you to say what you would have done in the same position. The question is whether Portelli believed on reasonable grounds that it was necessary in defence of Bonnici to do what he did. If you find that he had that belief and there were reasonable grounds for it or if you have a reasonable doubt about the matter, then you would and indeed must, find Portelli not guilty and that would be subject to your finding on the issue of whether the use of force was out of proportion to the attack faced by Bonnici." (Emphasis added.)

37. As I have said, the judge returned to the issue of self-defence (and defence of another) in response to a request by the jury. As a result her Honour went through the issue again by repeating the whole of her original directions but with some variations and, in fact, some expansion. It is not necessary to set that redirection out in full for it substantially followed the pattern of the original direction. The opening four paragraphs were virtually identical, as was her exposition of most of the relevant "considerations" that followed. There was some further explanation of some of those considerations, for example, by making clear that the evidence was accepted by all parties as showing that Mr Bryans struck the first blow. Then the issue of proportionality was, arguably, explained in somewhat different terms, such that it should be set out:

"The other considerations were the consideration of whether Portelli used unnecessary force and I told you that although a man who is defending another is not required to weigh to a nicety the extent of force required to resist the attack, the use of force which is plainly disproportionate to the attack which is faced, may also indicate a use of the occasion for aggression or retaliation, rather than for self-defence or defence of another. So again you must weigh up yourselves the extent of force required to resist the attack and whether in the circumstances that Portelli found himself in, that was an unnecessary use of force."

The example given of using a knife in response to a push was repeated, but in brief terms not suggesting specifically that it related to proportionality. The judge's directions as to actual belief and the reasonableness of that belief were repeated in almost identical terms but with less repetition, before she concluded her redirection with these observations:

"The question is whether Portelli believed on reasonable grounds that it was necessary in defence of Bonnici to do what he did. If you find that he had that belief and that there were reasonable grounds for it or if you have a reasonable doubt about whether he had that belief or that there were reasonable grounds for it, then you would find Portelli not guilty, subject to your finding on the issue of whether the use of force was out of proportion to the attack faced by Bonnici. Now remember that you are considering these matters in the calm light of reflection. That is to say here in the jury room, whereas the time at which Portelli says that he was forming the belief and looking at the grounds that he based that belief on, they are said to be on the spur of the moment in the course of the activities on 18 March, on the spur of the moment when he said his friend was attacked. So when you come to consider the actual belief and the reasonableness of his forming that belief, you will consider of course what his situation actually was. To sum up, lawful excuse exists when the acts of an accused were done by him as a result of believing upon reasonable grounds that they were necessary to be done in order to defend in this case, another person from the actual or threatened violence of another." (Emphasis added.)

44. The matter primarily raised on this application was whether the learned judge gave appropriate directions in relation to the claimed lawful excuse of the applicant, namely that he was acting in defence of another inasmuch as he asserted that he went to the defence of his friend Mr Bonnici while he was being attacked by Mr Bryans. Technically the concept of defence of another has had a somewhat different history and may raise some slightly different considerations, although not significantly so in the present case, and I shall deal with those differences shortly. The complaint made was, however, that her Honour's directions, although not otherwise necessarily attracting criticism, were misleading and unfairly so in that they made the primary issue as to belief upon reasonable grounds of the relevant kind subject to a further (and unjustified) test as to whether the force used was out of proportion to the actual attack, as appears in the emphasised passages in those parts of the charge quoted above. There is no doubt that the passages in question do not conform to what is thought to be a conventional charge on the subject of self-defence but it is said on behalf of the Crown that the passages merely emphasise an issue which was squarely before the jury and could not have been misunderstood by them, nor would they have applied the wrong test because of the judge's references to the apparent qualification in the two emphasised passages.

47. As to the preliminary question whether the principles relating to the law of self-defence apply, with suitable adaptations, in circumstances such as the present, it should be noted that no argument was originally thought necessary, each side assuming that the principles, especially those laid down in Zecevic v. The Queen[2], applied equally to defence of another person unrelated in any way to the accused. The view taken for many years was that a party might be excused from the consequences of an attack on an assailant only when it was a reasonable response to an attack on that person or upon one who was in a husband-wife, parent-child or master-servant relationship to that person. So the limits of "self-defence" in homicide were stated as late as 1964 in the last (12th) edition of Russell on Crime[3], "the act of the relative assisting being considered the act of the party himself". When the issue was raised in a number of cases about a half century ago where the accused claimed to come to the defence of a person not relevantly related to him, judges were prepared to allow the matter to go to the jury but on a rather more limited basis. Thus in R. v. Spartels[4] Sholl, J., in a ruling at trial, said that he had not been able to find a great deal of authority on this specific issue (indeed no relevant case is cited in the report), but that he was prepared to extend the class beyond "the case of a close relative" because of "other authorities which say that, to prevent a violent felony, even a stranger may, in a sufficiently extreme case, kill the malefactor".[5] For reasons there stated he thought it desirable to add to the conventional test based on an honest belief on reasonable grounds that it should be a belief "in the absolute necessity for the course taken"[6], but in R. v. Redman[7] it seems that qualification was disapproved[8]. Then when a similar issue raised itself in England in R. v. Duffy[9], Edmund-Davies, J. speaking on behalf of the Court of Criminal Appeal appeared, while acknowledging the technical restrictions formerly imposed, to take a broad approach in the case involving a wounding in response to an attack on the accused's sister[10]. While saying that he was not concerned to consider what the "technical limitations" on the plea of self-defence might be, the Court should not be trammelled by them, for, as he explained,[11]:

"Quite apart from any special relations between the person attacked and his rescuer, there is a general liberty even as between strangers to prevent a felony. That is not to say, of course, that a newcomer may lawfully join in a fight just for the sake of fighting. Such conduct is wholly different in law from that of a person who in circumstances of necessity intervenes with the sole object of restoring the peace by rescuing a person being attacked. That, credible or otherwise, was the basic defence advanced by the appellant. She herself tied no lawyer's label to her tale."

51. Since that time only a few brief references have been made to "defence of another" in the case-law. In Zecevic itself Deane, J. makes constant insertions, largely parenthetical, into his discussion of self-defence[12], but the reason for this is unclear, as there seems to have been no argument on the subject. Again in Beckford v. The Queen[13] the issue did not arise directly but Lord Griffiths (for the Board) considered a test (different from that laid down two weeks later in Zecevic) relating to the accused's honest belief on reasonable grounds "that his or another's life was in peril"[14], derived, so it seems, from the test for justifiable homicide in the 3rd edition of Halsbury[15]. His Lordship later spoke[16] in these general terms:

"The common law recognises that there are many circumstances in which one person may inflict violence upon another without committing a crime ... The common law has always recognised as one of those circumstances the right of a person to protect himself from attack or to act in the defence of others and if necessary to inflict violence on another in so doing."

No other authorities were cited for the proposition.

56. So far as this Court is aware, little new on this issue has been said by the courts since the time those cases were decided. More recent textbooks appear either to ignore the relevant distinctions or to treat those cases as having settled the law. Archbold: Criminal Pleading Evidence and Practice 2004, for example, treats the matter as resolved partly by an application of Duffy and partly by reference to the more recently passed Criminal Law Act 1967, s.3 of which permits persons to use "such force as is reasonable in the circumstances in the prevention of crime ...".[17] In Australian texts little regard seems to have been paid to the distinctions drawn in those authorities except in the Laws of Australia: Criminal Law para.9.3.66 and in Bronitt and McSherry: Principles of Criminal Law (2001) pp.295-296 and cf. Gillies: Criminal Law (4th ed.) p.325 and Bourke's Criminal Law in Victoria, para.3.95.3. See also Howard's Criminal Law (5th ed.) at pp.98 and 157. Unfortunately some of the cases cited in the various texts come from jurisdictions in which the relevant criminal code specifically gives a right to act in defence of another or from South Australia where there has been a statutory amendment to that effect for a number of years.[18] The only additional decision referred to comes also from South Australia but was based on the judge's understanding of common law rules: Saler v. Klingbiel[19]. In a claim for assault which was dismissed because the magistrate held that the defendant was justified in attacking the drunken complainant to prevent further injury to persons present at a large birthday gathering, as well as himself, Richards, J. referred to passages in early criminal textbooks (including Hawkins' Pleas of the Crown[20] and Russell on Crime[21] and to statements in several textbooks on tort to reach the conclusion that acts in defence of strangers may be justified in claims for assault. It is to be noted that the judge carefully used the word "justify" and founded it on a person's right "to prevent crimes of a serious personal nature" by taking acts to prevent or stop injury to third persons.[22]

59. On the face of it, therefore, there seems to have been a superficial acceptance by the majority of textbook writers that the right or privilege to act in self-defence, whether applicable to homicide or to lesser offences, is equally applicable to persons asserting a right or privilege in similar circumstances to come to the aid of persons whether or not they form part of their family or have some other connection with them. This superficial conformity is, however, founded on an untidy collection of authorities, none of them recently decided (so far as I am aware), in most of which the judges have been prepared to concede that the right or principle is based on principles of justification and not on general principles of self-defence. Since justification involves a claim to enforce or uphold the law, there is a strong argument that the relevant test, at least so far as juries are concerned, ought to be differently, and very probably more stringently, expressed, at least so far as it might find expression in the form of directions to juries. On the other hand, when considering a claim of self-defence or defence of others as a proper basis for excusing criminal liability, whether for murder or for lesser offences, the terms of presently accepted charges to juries concentrate on the personal reactions of the accused in the particular emergency and permit his or her perceptions of what is necessary to preponderate: see Zecevic and compare the more generous test imposed in England and reflected in cases such as Beckford v. The Queen.

62. Remarkably this issue raises again the distinction between justifiable and excusable acts of self-defence which arose and was considered over seventeen years ago in Zecevic[23] and in R. v. Lawson and Forsythe[24]. The history of the two strands of the "defence" described in those decisions showed that the apparent stated condition precedent of an "unlawful" attack related only to the plea of justification and was irrelevant to cases of excusable homicide: Zecevic[25]. Here, on the other hand, it would seem that the rules relating to "excusable self-defence" have been the more narrow and that the right of a person to attack or otherwise control someone who is assaulting a stranger derived from principles of great importance in earlier times allowing felonious attacks to be brought to an end by citizens.

65. For example, in perhaps the most detailed exposition of the early law relating to justifiable homicide[26] "in the necessary saving of the life of a man assaulted by the party slain", Hale in his History of the Pleas of the Crown[27] says of the right ("in the nature of se defendendo") to take the life of an assailant of a mere acquaintance, that it existed at that time -

"because every man is bound to use all possible lawful means to prevent a felony, as well as to take the felon, and if he doth not, he is liable to a fine and imprisonment, therefore if B. and C. be at strife, A. a by-stander, is to use all lawful means that he may, without hazard to himself, to part them; and the very relation of acquaintance, and mutual society between A., B. and C. seems to excuse the fact of A. in the necessary safeguard of the life of B. from the crime of simple homicide; tamen quaere."[28]

The law enforcement aspects of justification may be seen, therefore, to have had a broader foundation based on public policy and not merely on fairness to those prosecuted for murder (or other offences against the person) who seek to be excused by reason of a necessary and reasonable response to a threat to life and limb.

70. The question remains whether it is desirable that these differences of approach should be perpetuated. In my opinion they should not. The conclusion reached in Zecevic (and in my judgment in Lawson and Forsythe) was that it is undesirable that the law of self-defence should rest on two different bases producing different results depending on which is called in aid. The distinctions, the most significant of which were abolished in the first part of the nineteenth century, have no place in the modern criminal law. As was said in the joint judgment in Zecevic[29]: "Any practical distinction between justifiable homicide and excusable homicide disappeared with the abolition of forfeiture by statute in 1828 and today it is no part of the law of Australia to differentiate between the two ...". Thereafter "there was no reason why the rules as to self-defence should not in practice, if not in theory, merge"[30], although certain rules as to justification not directly referable to self-defence still continue to apply.

73. If that be the correct approach, then there is no reason why the law should not apply the broader test, that applicable to "justifiable self-defence", to self-defence generally.[31] In other words, any apparent limitation to the right or privilege of a person to respond to the attack of another should not be confined to attacks directed at the accused or a person in some defined relationship to the accused, but should be equally applicable whenever response is made to an attack upon any person, whether relative, friend or stranger, so long as it is understood that the claimed right, the exercise of which the Crown must negative, remains based on what is perceived to be reasonably necessary by the accused in all the circumstances which may, but not necessarily will, be affected by the possible lack of immediacy of that threat. Nor should there be any difference if the offence charged (as in the present case) is less than homicide.

77. Turning then to the principal question argued on this application, counsel for the applicant concentrated essentially on only one issue, namely the judge's directions as to what has been called proportionality. In the end complaint was made solely about the addition made to the presently accepted test by the use of the words emphasised in the passages of the charge previously set out[32]

, namely, the rider expressed on two occasions that the jury's findings as to the applicant's belief "would be subject to your finding on the issue of whether the use of force was out of proportion to the attack faced by Bonnici".[33] It was argued that, by adding the qualification on each occasion, the fundamental question raised in the case was qualified in a way which suggested that it might be determined by the jury along objective lines confined essentially to proportionality of response.

82. If that be so, then it was unfortunate inasmuch as the judge otherwise gave a careful and detailed charge on this issue, one which followed in order and detail the one given in the charge book for use in the County Court. Of course, the fact that a charge along those lines appears in the charge book does not make it immune from criticism and it should be noted that no other aspect of the charge was subjected to criticism, nor was any aspect significantly raised in the course of the trial. For that reason alone I would warn against following the charges on self-defence in the charge book slavishly or without regard to what has in fact been said in Zecevic and elsewhere.[34] Secondly, it is possible to discern the germ of the present difficulty in what in fact appears as the last paragraph in each of those charges. After posing the conventional question, which appears in the second last sentence (essentially) in the charge delivered by her Honour[35], the charge book continues:

"It is for you, the jury, to examine all the circumstances as you find them to have been and to consider both the actual belief of the accused and the reasonableness of his forming such a belief. Any irrational fear or a belief formed without reasonable ground for it does not justify violent activity by the accused."

In the present case the learned judge very properly moved the observation about irrational fear or belief back into her general discussion of the circumstances and the issues which had to be considered by the jury. The suggested charge leaves the question of irrationality 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 the lack of proportion, as the Crown contended, between the nature of the attack on Mr Bonnici and the response of the applicant with the swinging baseball bat. The distraction, posed by the final observation in the present case, consequently, may be seen to be just as significant.

87. It is often said on these occasions that it is necessary to read the whole of the judge's charge, at least on the relevant question, to see whether words picked out by assiduous counsel really have the effect claimed by them and were likely to cause a miscarriage of justice. On the present occasion, it can fairly be said, the judge not merely went through the relevant considerations, treating them properly as only considerations in the deliberations of the jury on the issue, but she also repeated the true test on three occasions, even if one were to ignore the fact that she went through virtually the same exercise a second time at the request of the jury.[36] The difficulty is that the charge which the High Court by a majority required in Zecevic is one which has to be understood as a whole and not as a series of discrete parts. Any attempt to weigh one factor more heavily than another runs the risk of causing an imbalance, especially if the judge chooses to emphasise the objective issue of reasonableness of response.

90. One should therefore turn to what the High Court in fact said in Zecevic. The critical passage appears at 661 of the joint judgment[37] wherein it is asserted that the direction as to self-defence "requires no set words or formula" and the question to be asked "is quite simple", namely:

"It is whether the accused believed upon reasonable grounds that it was necessary in self-defence to do what he did. If he had that belief and there were reasonable grounds for it, or if the jury is left in reasonable doubt about the matter, then he is entitled to an acquittal."

As the joint judgment then stated, the question is one of general application not limited to homicide and, if I may add, it is likewise appropriate, with suitable alterations, to cases where the lawful excuse raised is the necessity of defending another person, as was raised at the present trial.

95. The joint judgment then proceeded to examine a number of considerations which ordinarily arise, particularly on a murder trial such as the one with which they were then dealing. The first is the question of reasonableness of the accused's belief. It has been said that, bearing in mind that the prosecution bears the burden of disproving the claimed excuse, the test involves a mixture of enquiries both subjective and objective. It was here necessary to ascertain, and for the Crown to disprove, whether the accused himself had a belief that it was necessary to go to the aid of Mr Bonnici in the way that he did, but the test of reasonableness is directed not to the applicant's belief generally (which is tested on a subjective basis) but whether that belief, whatever it was, provided reasonable grounds for the applicant believing that it was necessary in defence of his friend to do what he did. What the majority of the High Court held, nevertheless, was expressed in the following terms.[38] The joint judgment on this point commenced by observing that a person who kills with the intention of killing or doing serious bodily harm "can hardly believe on reasonable grounds that it is necessary to do so in order to defend himself unless he perceives a threat which calls for that response". That certainly is concentrating on the objective test of reasonableness. They continued:

"A threat does not ordinarily call for that response unless it causes a reasonable apprehension on the part of that person of death or serious bodily harm. If the response of an accused goes beyond what he believed to be necessary to defend himself or if there were no reasonable grounds for belief on his part that the response was necessary in defence of himself, then the occasion will not have been one which would support a plea of self-defence."

It may be observed that this passage again concentrates very much on the reasonableness of the belief that the accused in fact held. That conclusion is entirely consistent with the conclusion reached a little earlier that the element of reasonableness remained part of the test for self-defence and that it was not a test which, as counsel had argued, depended solely on the subjective belief of the accused.[39]

100. In the present case no aspect of the judge's charge as to reasonableness is attacked save for that which inferentially flows from the claimed error relating to proportionality. The first thing to note about the majority view in Zecevic[40] is that they treat proportionality as one of the considerations which the jury might properly take into account in reaching conclusions as to the reasonableness of the accused's actions. That discussion consequently commences by stating that the judge in charging the jury should place the question of self-defence[41] "in its factual setting, identifying those considerations which may assist the jury to reach its conclusion". They warn that in attempting to identify considerations abstractly there is a danger of elevating matters of evidence into rules of law. Their particular example is particularly pertinent to the present case[42]:

"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. There is no rule which dictates the use which the jury must make of the evidence and the ultimate question is for it alone."

They continued by suggesting that the judge should offer assistance by way of comment as is appropriate to the particular case and that it will "often also be desirable" to tell the jury that 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."[44] Doubtless their Honours were thinking of that succinct and pointed aphorism of Holmes, J. in Brown v. United States[45], as reiterated by Dixon, C.J. in R. v. Howe[46]: "Detached reflection cannot be demanded in the presence of an uplifted knife."

107. It can be seen from this why it has been said from time to time that there is no separate requirement for the response of the accused to be proportionate.[47] It is not that proportionality is insignificant, indeed in some cases, particularly one like the present, which started as a fist fight, it may be seen to be critical. Nevertheless, as the High Court has pointed out, proportionality is simply one of a number of factors which may be considered by the jury in coming to a decision whether the accused's response has been reasonable. Finally it may be seen that a simple requirement that responses in these situations should be "proportionate" overlooks the emergencies of the moment. It might suggest that a blow with the fist can only be answered with another blow of the fist, but that is not what is meant. It requires that the prosecution prove that the acts of the accused are plainly disproportionate or, as has sometimes been said, "out of all proportion" to the nature of the attack to which response is being made.[48] Indeed, it will often be the extent of the disproportion of response which will be critical to a determination of what is reasonable in all the circumstances. It is, however, but an aspect of the accused's behaviour which goes to the ultimate decision of the jury whether the prosecution has shown the unreasonableness of the accused's acts such as to establish, in the present case, a want of lawful excuse.

110. What is required by way of directions in cases of self-defence and the like has not often been the subject of detailed analysis since Zecevic was decided, at least in States applying the common law rules, except on a relatively small number of occasions.[49] This has largely been the result of the simple test suggested in the joint judgment in Zecevic and the observation that any explanation to the jury "requires no set words or formula".[50] Nevertheless Hunt, J. in both R. v. Alpagut[51] and Dziduch[52] said that the appropriate way to explain how the burden lies on the Crown is to state the fundamental question taken or adapted from Zecevic and then to say that "the offence is proved only if the Crown has established either that the accused had no belief that it was necessary in self-defence intentionally to wound the victim with intent to cause him really serious bodily injury or that there were no reasonable grounds for such a belief."[53] Hunt, J. was there dealing with the offence of wounding with intent to occasion grievous bodily harm but the words need only minor adaptation for the purposes of a count charging the intentional causing of serious injury in this State.[54]

113. There also arose in Dziduch a real issue as to whether the accused's response was or was not proportionate, in the relevant sense of the term, to the attack the accused believed he was undergoing. As to that Hunt, J., correctly in my respectful opinion, emphasised that the question of proportionality was not a separate issue but one only of a number of considerations which the jury had to take into account in determining the principal issue at the trial. Of course, the accused's response in any given situation is always important and the extent of that response may assist the Crown in denying one or other of the conditions of the present test. Proportionality is not, however, something to be looked at independently, but merely as a factor assisting the jury in determining what the accused in fact believed was necessary in the circumstances and whether the accused's perception could fairly be described as reasonable. Although reasonableness remains part of the test, it is not a test based on "that of a hypothetical reasonable man"[55], but that of the accused as subjectively perceived. The test laid down in para.1(b) of the propositions approved in Viro v. The Queen[56] remains untouched by the other criticisms of the tests in Zecevic. It read: "By the expression `reasonably believed' is meant, 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." That this "not completely objective" test has survived Zecevic may be seen from decisions such as R. v. Conlon[57] and R. v. Hawes[58]. As I would see it, it is thus dangerous to treat the question of proportionality as some independent question objectively to be assessed by the jury. It must remain part of the overall consideration of the accused's conduct and therefore as one of the various considerations to be taken into account, as described by the High Court in Zecevic.

116. Thus it is not surprising that Hunt, J. in Dziduch[59] expressed this opinion as to the way in which proportionality should be dealt with in the judge's charge:

"Where, as in the present case, an issue does arise as to whether the force used by the accused was proportionate to the threat offered, that issue is relevant to the fundamental question as I have stated it, but it is not a separate question. The jury should be directed that the Crown must establish that the force in fact used by the accused was out of all proportion to any attack upon him which he could reasonably have believed was threatened by the victim."

Hunt, J. used the words "out of all proportion" but I do not see that as inconsistent with the expression used by the judge in the present case, namely, "plainly disproportionate". In each case the test denies that there is any question of imposing an obligation on an accused to act in some precisely proportionate way and makes allowance for any difficulty an accused such as the applicant may have found himself in in weighing "precisely the exact action"[60] which should have been taken to avoid the threat which he reasonably believed Mr Bonnici faced at the time. Again an accused's dilemma reflects why it is that the reasonableness of such actions is not to be determined on a wholly objective basis.

121. Counsel also relied upon a statement appearing at 383 of Dziduch by Hunt, J. in relation to the direction given by the judge in that case. The language used by the trial judge there was convoluted and the direction took a far different form from that in the present case. There was, so it seems, an attempt by the judge to pose the question of the proportionality of the accused's response as forming only part of the issue as to reasonableness. As to that, Hunt, J. said that the direction would still have been wrong "because, as I have already pointed out, the question of proportion is relevant to the first question which he posed; it is not a separate question at all."[61] Counsel on the present application conceded that the circumstances here were not exactly the same and I do not see it useful to examine precisely what was said and criticised in Dziduch. It is sufficient that the Court reiterated the need to have proportionality considered as one of the various considerations going to the issues raised in the test propounded in Zecevic. It is not a separate question and it should not be posed in a way which suggests that it is.

124. Doubtless all the judge was trying to tell the jury in the present case was that the principal aspect of the applicant's behaviour which was in issue was whether his actions were out of all proportion to the threat posed to Mr Bonnici. To do so may have been justified if it came as part of the judge's summary of the arguments put on each side. Here, however, her Honour was attempting to give directions as to the relevant law. To pick out one relevant consideration, namely proportionality, and to add a question based on it to a test which has been said now on many occasions to be a single test, was playing with fire. If the correct single question had just been asked and if the jury had given the correct answer to that, then what purpose was being served by asking a further question? The judge, knowing that proportionality was critical to the jury's decision may well have thought that they had to return to it, albeit that they had concluded (hypothetically) that the applicant's conduct had been reasonable. They were then asked, as the last consideration to be taken into account, whether objectively the applicant's response was out of proportion to the attack faced by Mr Bonnici. To do so was to emphasise one aspect alone and in a way which made it both entirely objective and too limiting, in that it suggested the applicant's response must have been precisely proportionate to the threat. The latter approach has been frowned on for many years and it was, clearly enough, merely a shorthand by the judge who had early spoken of the relevant test being based on what was "plainly disproportionate". As she had earlier said, precision of response cannot be expected in the emergency of the moment, but it was not a matter where an objective assessment was the whole answer. The jury was obliged to assess what the applicant believed was both the risk faced by Mr Bonnici and what the applicant believed was necessary to do in response. In the end, bearing in mind the onus resting on the prosecution, that belief had to be considered by the jury to have been reasonable, but it was not merely a question of asking what was reasonable from the viewpoint of an outside observer. Unfortunately the rider took the question of proportionality beyond the subjective beliefs of the applicant and left it solely for objective assessment by the jury, or so it may have appeared. Such an approach placed an undue and inappropriate emphasis on one issue alone. It should not have been added to the correct test in the way that it was.

127. It was said, in answer, that the rest of the judge's directions were entirely adequate, so that no wrong approach could result from this simple addition. As I have already said, no objection could have been fairly levelled, nor was it in fact levelled at the rest of her Honour's charge on the subject. If it were to be criticised, then it might be said that the particular issues raised by the considerations, now held to be relevant, could have been the subject of some greater explanation. Indeed more may have been said of the issue of proportionality, at the correct stage of the charge, in the sense that it was relevant both to the applicant's perceptions of the risks faced, as well as the reasonableness of his reactions to those perceptions. Nevertheless, even assuming that every other aspect of the charge was in accordance with authority, the addition of the rider on two occasions at the end (or effectively the end) of the charge on the issue of lawful excuse added an unexplained question by way of apparent addition to the accepted test which had just been correctly set out. Regrettably, the lack of explanation and the possibility that the jury might have misunderstood this factor, which so clearly must have been relevant to their deliberations in this particular case, means that the Court cannot overlook what was added by the judge in this way. There was clear potential for misunderstanding. An answer to the primary question in favour of the applicant may have been seen as subjected to some further objective test which was clearly inappropriate. As a result the jury may have misunderstood what their function was on this issue and the circumstances were such that the possibility of misunderstanding cannot be overlooked. There was a miscarriage of justice which requires that there be a new trial on this count.

130. In the light of my conclusions as to the principal ground argued, ground 2, it is strictly unnecessary to deal with the other grounds but grounds 3 and 4 raise a question which will remain relevant on any retrial of the applicant. Complaint was made of the judge's admitting into the trial evidence of the prior conflict between Mr Bryans and the applicant and Mr Bonnici, and in failing to give correct or adequate directions to the jury as to how they should use that evidence. At trial objection was taken both to the evidence of the alleged payment to acquire drugs, as well as its non-repayment, and as to the evidence of the brief fight between the parties about a fortnight before the events charged. On this application counsel appeared to concentrate almost exclusively on the evidence as to the fight, saying that its prejudicial effect outweighed its probative value. I cannot agree with counsel's contention. There were several reasons why the evidence was pertinent, indeed highly relevant to what took place later. It is hard to see how evidence of the later events could satisfactorily have been given without some description of what preceded it. Counsel suggested that only the loan and its non-repayment might have been led but that would have omitted a great deal of what was relevant to the parties' relationship at the time the later conflict took place. It might even be thought that the evidence could have assisted the applicant, for arguably it tended to show why the applicant had reason to fear that the attack on Mr Bonnici may have been more serious than it otherwise appeared. At all events it provided relevant evidence of the relationship between the parties, sufficiently close in time to explain how on one view the later encounter began. Moreover, it provided evidence of motive which was certainly relevant to the prosecution case and might again have been relevant to the defence case. In all, therefore, the evidence was such as to have made it highly probative of matters directly connected to the events charged. As to prejudice, no doubt there was an element of prejudice, possibly quite considerable prejudice, but that was properly held not to have outweighed its probative value in

134. As to the judge's direction, counsel for the applicant conceded that an adequate direction in accordance with R. v. Grech[62] had been given, but he contended that the judge was wrong to direct the jury that it was relevant to intent. He said there was no dispute that the applicant had assaulted Mr Bryans in the manner alleged and had caused serious injury, and this may be said to be true. Curiously, however, the jury did not accept that the injuries were caused intentionally but only recklessly, so that it is hard to say there was no issue of intent at the trial, in that the seemingly prejudicial evidence did not persuade the jury that there was an intent to cause serious injury. It is unlikely that the difficulty will arise in precisely the same manner again, but there is equally no dispute that some direction must be given to the jury as to misuse of potentially prejudicial evidence.

137. An additional ground was sought to be added relating to a direction relating to evidence of consciousness of guilt, which it is unnecessary to set out. For my own part I doubt that the relevant direction can be criticised on the basis that counsel sought to construe it, and otherwise there seems to have been no objection to the way in which the jury was directed on the subject. The final ground argued relating to the unsafety of the verdict is no longer relevant.

140. For the reasons stated, I would grant the application, allow the appeal and order that there be a new trial on count 2 of the presentment.

145. I have had the considerable advantage of reading the reasons for judgment prepared by Ormiston, J.A. in this matter. I agree that the appeal should be allowed and a new trial on count 2 of the presentment ordered, for the reasons given by his Honour.

[1] This was the term used in the ground. For convenience' sake I shall continue to use it (applicable only to the co-accused), although technically the applicant relied on his right to come to the defence of another who was being attacked. See below [[]ff.

2] [1987] HCA 26; (1987) 162 C.L.R. 645.

[3] Vol. 1 at pp.441-442 (but cf. pp.680-681 on assaults). Similar statements appeared also in Blackstone Commentaries on the Laws of England (1st ed. 1769) Vol. 4 at p.186 and Archbold: Criminal Pleading Evidence and Practice, e.g., in the 35th ed. (1962) s2497.

[4] [1953] VicLawRp 33; [1953] V.L.R. 194.

[7] [1978] VicRp 16; [1978] V.R. 178.

[9] [1967] 1 Q.B. 63.

[10] At 67. His Lordship referred to the reason given in the passage cited above from Russell on Crime, but gave its source (correctly) as Hale's Pleas of the Crown, Vol. 1 p.484.

[12] At least seven appear at 675-678 of his judgment.

[13] [1987] UKPC 1; [1988] A.C. 130 (P.C.). Although decided by the Privy Council on appeal from Jamaica, the judgment was said also to state English Law.

[15] Vol. 10, p.723, para.1382. The paragraph had earlier been cited with approval in R. v. Chisan (1963) 47 Cr.App.R. 130 at 133, per Lord Parker, C.J. The discussion in the relevant paragraphs of Halsbury is muddled. Para.1382 seems confined to justifiable homicide: "excusable homicide" is dealt with in para.1384 and, possibly, 1383. For lesser offences the test is limited to members of the household: see para.1429. Cf. the discussion in the 4th ed. (reissue).

[18] The only other English case generally cited, R. v. Rose (1884) 15 Cox C.C. 540, related to a son defending his mother.

[19] [1945] S.A.S.R. 171.

[20] 1st ed. (1716) Book 1 Chapter 60 Section 23 (relating to non-forfeiture of sureties for keeping the peace) incorporated by reference in Chapter 62 Section 3, defining circumstances in which assaults and batteries may be "justified".

[21] 9th ed. Vol. 1 p.582 (12th ed. pp.680-681).

[24] [1986] VicRp 53; [1986] V.R. 515 (only in my judgment) at 549ff.

[25] At 663-664, per Wilson, Dawson and Toohey, JJ. with whom Mason, C.J. agreed with some minor qualifications: at 654.

[26] 1st ed. completed 1676 but published 1736 (though the quotations are taken from the "new" 4th edition of 1800) Vol. 1 pp.484-485: see also at pp.487-488.

[27] Hale's reluctance to use the expression "justifiable homicide" is described and arguably explained in Lawson and Forsythe at 557-559.

[28] Any doubt about the breadth of this formulation for justifiable homicide as such was denied by East's Pleas of the Crown (1803) Vol. 1 pp.289-290 and may be thought to have been dispelled by later textbooks and authorities, which are best summarised and discussed in the judgments of Smith, J. and Lowe, J. in R. v. McKay [1957] VicRp 79; [1957] V.R. 560, see esp. at 571-573 and at 562.

[31] The same conclusion seems to have been reached in most jurisdictions of the U.S.A.: see Perkins and Boyce: Criminal Law (3rd ed. 1982) pp.1144-1148.

[32] See at the end of para.[[] and towards the end of para.[].

33] The words used on the second occasion were almost, but not quite, identical.

[34] The form of the charge here given, immediately before the emphasised passages, may also be preferred, concentrating, as it did, on the onus of proof.

[35] And in the first of the quoted directions in the last passage taken from her redirection.

[36] The fact that the critical question was asked three times by her may be thought preferable to the form in the charge book which asks it once or arguably twice.

[37] Per Wilson, Dawson and Toohey, JJ. Mason, C.J. expressed his concurrence at 654.

[39] See at 656-657. See also at 658-659 after discussion of the history of self-defence.

[45] [1921] USSC 117; 256 U.S. 335 (1920) at 343; [1921] USSC 117; 65 L.Ed. 961 at 963.

[46] [1958] HCA 38; (1958) 100 C.L.R. 448 at 463.

[47] Cf. Laws of Australia: Criminal Law para.9.3.71.

[48] See R. v. Dziduch (1990) 47 A.Crim.R. 378 at 380 per Hunt, J.

[49] Most of those which are relevant to this appeal have been cited in this judgment. The case itself has, however, been cited in excess of 100 cases.

[51] New South Wales Court of Criminal Appeal, unreported, 27 July 1989 (BC 8901906) at 6.

[54] Some further adaptation will of course be necessary if the only relevant count is recklessly causing serious injury.

[55] R. v. Hawes (1994) 35 N.S.W.L.R. 294 at 305 per Hunt, C.J. at C.L.

[56] [1978] HCA 9; (1978) 141 C.L.R. 88 at 146 per Mason, J.

[57] (1993) 69 A.Crim.R. 92 at 98-99, 101.

[62] [1997] 2 V.R. 609.