R v Portelli [2004] VSCA 178

R v Portelli [2004] VSCA 178 - VSCA 2004 case summary — Zoe

[14]

"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.)

[20]

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]:

[25]

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]

[56]

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.

[58]

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

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