R v Vidler [2000] QCA 63

Director of Public Prosecutions (Queensland) for the respondent

[1] THE COURT: This is an appeal against a conviction of murder.

[2] The appellant late on the afternoon of 2 May 1998 shot the deceased (Edwards) by discharging a .22 rifle. Differing accounts were given as to the circumstances of the shooting and of the antecedent events.

[3] The events took place in and around Daintree. There was evidence that the appellant in the early hours of 2 May came to Edwards' house where he abused and threatened his girlfriend Dianne who was staying there following some unpleasantness elsewhere the previous night. There was evidence of resentment on the appellant's part against Edwards because he suspected him of having a sexual relationship with Dianne. The appellant left after behaving in a generally violent and disorderly manner but returned and slept in his car nearby until daybreak.

[4] The following day at the house of a man named Parker the appellant made aggressive statements to Dianne including "I want you out of town tonight". The evidence shows that by this time there were two identifiable "camps" or groups, one of them supportive of Dianne and the other supportive of the appellant. The appellant's supporters included persons named Veress and Cooke. The other group included Edwards, Parker and Wilson. The appellant made threats that if Dianne was not out of town by 6.00 pm that night she'd be dead and so would anyone else that helped her. Earlier the appellant had indicated to Edwards that he was moving his gear "out of your place". This was a reference to Edwards' farm property at which the appellant had been staying.

[5] The evidence fairly clearly demonstrates that the appellant and some associates then went to the farm property and stole a .22 rifle belonging to Edwards and clips of ammunition. Edwards, Parker and Dianne went to the farmhouse, discovered that the firearm was missing and in consequence Edwards armed himself with a 30-30 rifle which had also been stored at the farmhouse. Edwards returned to his home and sent his daughter to the house where the appellant was to see if she could discover the firearm. She was unsuccessful but noticed that the appellant and his companions were drinking and that the appellant made the comment that her father was probably sleeping with Dianne.

[6] Edwards, Parker and Wilson then drove to the house where the appellant and his companions were drinking. They armed themselves with pick handles or wooden implements. Edwards and Parker alighted and commenced to strike the appellant with their weapons. This unjustifiable activity was motivated by their desire to retrieve the firearm, and they determined to subdue the appellant before he could use it.

[7] The appellant was seriously bashed before his attackers desisted. His injuries, while significant, did not disable him.

[8] There are four principal versions of the critical events that followed. Two of these, on review of the evidence, are inconsistent with important details that would seem to have been independently established. These versions will be briefly described.

[9] The appellant managed to get away from his assailants and called out "fight me one out, you dogs". Edwards then went to the passenger side of his car, pulled out a 30-30 gun and pointed it at the appellant. At this point Cooke lost sight of events for a time but heard one or two shots from a gun that was not a 30-30. (Other evidence shows that the appellant had by then retrieved the stolen .22 rifle from his own vehicle and fired a number of shots, none of which, until the last one, harmed Edwards). After hearing these shots Cooke saw the appellant and Edwards arguing in front of the passenger side of the vehicle. The appellant was then carrying a gun but Cooke did not think that Edwards was. Cooke was again distracted for a moment and when he returned saw Edwards and the appellant at the driver's side of the vehicle. Edwards was not then armed. (Other evidence suggests that Edwards had discarded his rifle and placed it in the passenger's side of the vehicle before moving around to the driver's side[1]). At this point the two men were a couple of feet apart, facing one another and yelling and screaming. Edwards was saying "Put the gun down" and the appellant was saying "Why did you do it? Why did you do it?" The appellant was holding the .22 rifle in one hand pointed to the ground. He then raised the muzzle of the gun pointing it at Edwards. A shot discharged hitting Edwards who walked six steps and collapsed on the patio.

[10] Police forensic evidence showed that the 30-30 rifle had been placed apparently just inside in the passenger door of the vehicle. A spent .22 cartridge was found on the driver's side of the vehicle, but none on the passenger's side. During the fracas neighbours saw the appellant collect the firearm from his car, later dispose of it in a paddock and still later retrieve it.

[11] There was a pause after the initial bashing with the wooden implements. A fight then started between the appellant and Edwards. The appellant moved to where his car was parked. Parker then heard gunshots from the direction in which the appellant had run. He saw the appellant emerge carrying a gun and firing towards Edwards who was then on the passenger side of his vehicle. Edwards then pulled his 30-30 gun out through the window of his vehicle. Parker yelled to Edwards to put the gun down and he did so. When Parker last saw Edwards, Edwards was still on the passenger side of his car, unarmed. Other events then overtook Parker. He later saw the appellant run around the side of the house still carrying the gun. It may be inferred that this later observation was at a time after the fatal shooting.

[12] On Parker's account the only time Edwards armed himself was after the appellant had emerged with a firearm, and Edwards then afterwards discarded that firearm.

[13] During the initial bashing of the appellant someone was calling out "kill him, kill him". Veress was then distracted. When he looked back Edwards had gone to his car, had picked up a gun and was resting it on the car window and pointing at the appellant. The appellant was at that time picking himself up off the ground. Edwards "tracked" the appellant with the rifle all the way as the appellant went to his own car, and returned with the .22 rifle. The appellant was swinging it around, firing it into the ground and screaming at Edwards "Why did you do this to me Dave? Why did you do this to me?" In the course of swinging the gun around and firing it, it went off when it was pointed at the deceased although Veress expressed the opinion that it was not deliberately aimed. Edwards dropped the 30-30 gun in his vehicle, walked to the patio and fell over. The appellant then attempted to resuscitate him.

[14] A number of difficulties attend this particular account. Veress maintained that the appellant was never on the driver's side of the vehicle and confirmed that the shooting was not across the vehicle. This is inconsistent with the finding of the discharged cartridge. A further difficulty arises from Veress's earlier account to the police, exculpatory of the appellant. In it he claimed that the appellant did not have a gun at all, but had gone over to Edwards and was trying to wrestle Edwards' gun from him when it discharged. This was the story that both he and the appellant first told police. Veress later gave a statement (which he later repudiated as having been made under duress) that while waiting for the ambulance to arrive he and the appellant had agreed to make up a story to this effect. He agreed in evidence that that story was a complete lie.

[15] The appellant denied taking a firearm from Edwards' farm. He said that after the bashing Edwards went to Parker's car and obtained a gun. The gun had a scope on it (this could only relate to the .22 weapon). The appellant then charged at the deceased resulting in a struggle in the course of which the weapon discharged. He denied ever having a rifle in his own car or of going to his car during the events or of taking a rifle and dumping it in a paddock afterwards or of subsequently retrieving it.

[16] The appellant's account seems unsustainable and counsel at trial apparently made no attempt to promote it, and sought to explain it away as a result of "confusion". No reliance was placed upon it on appeal as constituting any viable version upon which directions ought to have been given.

[17] There is evidence from other witnesses who saw segments of the events. It is however unnecessary to detail the evidence further.

[18] The following grounds were raised by amendment on the appeal and are the only grounds relied on.

"(i) The learned trial judge misdirected the jury with respect to self defence by:

(a) failing to correctly state the requirements of s 271(2) Criminal Code; and

(b) effectively restricting a consideration of the defence to acceptance of the evidence of Michael Veress.

(ii) The learned trial judge misdirected the jury with respect to the defence of provocation by introducing a "reasonable person" test."

"If the nature of the assault is such as to cause reasonable apprehension of death or grievous bodily harm, and the person using force by way of defence believes, on reasonable grounds, that the person cannot otherwise preserve the person defended from death or grievous bodily harm, it is lawful for the person to use any such force to the assailant as is necessary for defence, even though such force may cause death or grievous bodily harm".

[20] The learned trial judge's summing-up on the question of self-defence commenced with a statement virtually in those terms. His Honour then proceeded to deal with the various elements that are involved in the concept of self-defence. One of these was whether the nature of the assault upon the appellant was such as to cause reasonable apprehension of death or grievous bodily harm. His Honour then referred to the assault with the wooden implements, commenting:

"You may well think that a reasonable person in the position of the accused may have thought that during that initial attack, there was some apprehension of death or grievous bodily harm, then that person may lawfully use such force as is necessary to defend against attack".

Later, in dealing with the question whether the prosecution had negatived a necessary element his Honour stated:

"What the prosecution in broad terms say here is that you would be satisfied beyond reasonable doubt that there was no basis for the accused believing that the only reasonable way in which he could defend himself from death or grievous bodily harm was by shooting the deceased".

[21] Both passages, on the appellant's submission contained misdirections. The statements are said to have introduced a "reasonable person test" and it is further objected that his Honour erred in stating that "that person may lawfully use such force as is necessary to defend against that attack".

[22] The first passage quoted above was really an invitation to the jury to take the view, favourable to the appellant, that at least during or immediately following the initial attack there would have been the necessary apprehension of death or grievous bodily harm. Of course standing alone it fails to state the appropriate test. In practical terms however it is difficult to see any difference between a belief of a reasonable person in the position of the accused and a belief of the accused person based on reasonable grounds. It is true that a reversal of position is involved but it is impossible to think that any jury could have been induced thereby to apply different considerations to the case than those required by s 271(2). Its potential for vice is so tenuous that we would not characterise it as a "wrong decision on any question of law" or as a ground indicating a miscarriage of justice under s 668E(1) of the Code. Furthermore his Honour expressed the matter quite correctly before and after this passage. If it had to be characterised as an error we would hold that no substantial miscarriage of justice actually occurred under s 668E(1A).

[23] The second passage quoted above in our view is unobjectionable. We see no misleading distinction between a belief on reasonable grounds that the appellant could not otherwise preserve himself and a belief by him that this was the only reasonable way in which he could defend himself. There is no merit in that objection.

[24] The next objection is that the statement first quoted above also contains the now allegedly objectionable words "such force as is necessary to defend". Inasmuch as those words restate precisely the words of s 271(2) the objection seems strange. However it is founded upon Gray[2], a decision in this Court. The vice identified in Gray is the imposition of an additional objective requirement over and above that of the appellant's actual belief based on reasonable grounds.

[25] That statutory requirement ("lawful to use such force as is necessary for defence") is treated in Gray as covered by the earlier requirement in s 271(2) that the defender must believe that the force he uses is the only way he can save himself from the assault. Gray did not shrink from the fact that this produces the effect of writing out from s 271(2) the requirement of "such force ... as is necessary for defence". In effect it has replaced those words with "such force ... as the defender actually used".

[26] The effect of Gray is that the critical point for the jury to consider is whether the defender's actual state of belief, based on reasonable grounds, was that the defender could not preserve himself otherwise than by doing what he did. If that is made clear to the jury, Gray considers that further directions on the question whether the force was necessary for defence are otiose, and worse still, positively erroneous if they are seen as creating a further requirement of objective necessity. Other contrary views had earlier been expressed in this court[3] which were acknowledged in Gray. Mr Martin, for the Crown, submitted that there remains in s 271(2) an element of objective necessity. At this point it is enough to say that other views than that taken in Gray are reasonably open[4] and that reconsideration of Gray may be desirable. In the meantime however it should be recognised that the ratio in Gray is binding.

[27] The immediate question then is whether the learned trial judge's summing-up, looked at overall, infringes the principles enunciated in Gray. The requirement of an objective standard by which community standards are maintained by juries of course remains. The section requires that the defender's belief must be on reasonable grounds.

[28] There was no request for redirections on any of the above points. That of course does not mean that an appeal should be refused if there is sufficient substance in the complaint. It does however tend to suggest that experienced trial counsel did not perceive that the jury would be addressing false issues or applying any wrong test in consequence of his Honour's directions. The defence was clearly left, and the relevant element was clearly enough identified as whether the appellant believed on reasonable grounds that he had no other options.

[29] In the context of this particular direction - a suggestion by his Honour that the jury might well think that during the initial attack they would find this element in favour of the defence - we do not consider that the inclusion of the above words infringes the principles of Gray. The use of the words "such force as is necessary to defend" do not amount to a misdirection unless they expose the vice of an additional objective requirement over and above the need for the defender's belief to be based on reasonable grounds. We do not think that these directions have that effect. If, contrary to this view, they must be characterised as a misdirection, it was not such as could have led to a substantial miscarriage of justice, and we would apply the proviso.

[30] We turn to the second objection on the subject of self-defence, namely that his Honour effectively restricted consideration of the defence to acceptance of the evidence of Mr Veress.

[31] It was submitted that the directions to the jury effectively confined the defence to the version that had been given by Mr Veress. Having mentioned the seriousness of the initial assault with the wooden implements his Honour pointed out to the jury that that assault had come to an end and suggested that the jury might well think that at that point of time there was no longer any threat or reasonable apprehension of death or grievous bodily harm from that attack. His Honour then adverted to events after the initial assault, and took the evidence of Veress, as an example. His Honour discussed the implications of Mr Edwards pointing the 30-30 rifle at the appellant and indicated the way in which the section might apply if the jury considered that particular scenario. In short, Veress's account was expressly mentioned as a basis for considering self-defence, but only as an example.

[32] His Honour presented to the jury an adequate summary of Cooke's version. With respect to that version, his Honour commented:

"There was some arguing over some short period of time probably a minute or two, some arguing on the driver's side of the vehicle before the shot was fired, then that may well result in you thinking that this was not a situation where the accused was acting in self defence. That is entirely a matter for you".

[33] No objection was raised to this and there was no request for any redirection. It is now submitted that self-defence arose for consideration on the evidence of Cooke and that his Honour should have assisted the jury with a discussion of that version in relation to the elements of s 271(2).

[34] In the absence of any suggestion at trial that his Honour should have undertaken a s 271(2) analysis of Cooke's version we can see no error in his Honour's failure to do so. It is impossible for a trial judge in a case (like this) where there are multiple versions and possible combinations of facts, to give a separate discussion of each possibility. Moreover, his Honour's view that Cooke's version was an unpromising basis for the defence would seem to be justified having regard to the lapse of time over which it shows Mr Edwards to have been unarmed, and the lack of any aggressive movement by Mr Edwards for some time before he was shot. The situation had by then degenerated into verbal abuse. His Honour however did not rule out Cooke's version as a possible source upon which the jury might find the killing to be an act of self-defence, but commented adversely on the possibility. His Honour was entitled to do so. Proper directions were given in relation to self-defence, and the version of it most favourable to the appellant was discussed as an example. The submission that his Honour was under a duty to present a similar analysis in relation to Cooke's version is without merit.

[35] On this subject his Honour's directions included the following:

"The test here is whether or not a reasonable person having the ordinary power of self-control would have reacted in that way to the alleged provocation. So here it is an objective test in the first place that we are looking at. Would a sober, reasonable ordinary person, having ordinary power of self-control, have reacted in this way?

So far as the provocation is concerned, there is no sort of simple definition that I can give you. But any conduct which is capable of causing an ordinary, reasonable person to lose self-control in this context may amount to provocation".

[36] The submission is that the use of the word "reasonable" in those passages renders the directions erroneous. The correct test of course is whether the conduct is capable of provoking an ordinary person.

[37] It is to be noted that on each of the three occasions when the words "reasonable person" was used it was part of a phrase limited by "having the ordinary power of self control". The first phrase was "reasonable person having the ordinary power of self control"; the second was "reasonable ordinary person having ordinary power of self control"; and the third was "conduct ... capable of causing an ordinary reasonable person to lose self control".

[38] It is of course well established since Stingel[5] and Masciantonio[6] that the "ordinary person" test prevails. It is also to be taken as established in Queensland that provocation, for the purpose of considering reduction of murder to manslaughter, takes its meaning from the common law, not from section 268 of the Code[7]. The vice identified in using the "reasonable person in the law of negligence" as a touchstone for conduct following provocation is that it may signify a higher level of control than might be expected from the ordinary person. The function of the hypothetical ordinary person is "to provide an objective and uniform standard of the minimum powers of self control which must be observed before one enters the area in which provocation can reduce what would otherwise be murder to manslaughter"[8].

[39] The risk primarily identified by the High Court was of equation with the "reasonable man in the law of negligence"[9].

"The function of the "ordinary person" in s 160(2) should not be confused with the role of the "reasonable man" in the law of negligence.

To make what the reasonable man of the law of negligence would have done in the circumstances the controlling standard of what might constitute a defence of provocation to a charge of murder would in effect be to abolish the defence since it is all but impossible to envisage circumstances in which a wrongful act or insult would so provoke the circumspect and careful reasonable man of the law of negligence that, not acting in self-defence, he would kill his neighbour in circumstances which would, but for the provocation, be murder ...".

[40] The notion of the hypothetical reasonable person who always observes due care towards his or her neighbour would not normally be conveyed to a jury by a passing and unextrapolated use of the words "reasonable person". Even so, passing references in this context to a "reasonable man" or "reasonable person" are to be discouraged because of their capacity to enhance the qualities of the ordinary person, although for most purposes (outside of the neighbour concept in the law of negligence) most people would regard the concepts as virtually interchangeable. Directions including reference to a "reasonable person" have been upheld when it was considered that the jury could not have been misled. For example in Julian[10] a "reasonable person" direction in the context of two other directions expressing the "ordinary person" test was not regarded as erroneous.

[41] Stingel recognises a two level approach as necessary in assessing provocation. In the first place an assessment is required of the gravity of the provocation to the particular accused. In the second place an assessment is required whether an ordinary person reacting to that level of provocation would suffer a similar loss of control. It is only the second aspect which introduces the concept of the ordinary person. That concept is directly concerned with the question of self control.

"The test involving the hypothetical ordinary person is an objective test which lays down the minimum standard of self-control required by the law. Since it is an objective test, the characteristics of the ordinary person are merely those of a person with ordinary powers of self-control"[11].

This second aspect of the concept of provocation was referred to by McHugh J in Masciantonio as "the self control issue".

[42] With this in mind it can be seen that on each occasion when his Honour used the potentially dangerous word "reasonable" it was tied to a person of ordinary self control. In context no separate or objectionable higher standard than that of the hypothetical person with an ordinary level of self-control could have been conveyed.

[43] Whilst the word "reasonable" should be avoided in such directions, it cannot be said that these particular directions amounted to an error in law.

[2] [1998] QCA 41; (1998) 98 A Crim R 589.

[3] Allwood (CA No 151 of 1997, 22 August 1997).

[4] Cf. Julian [1998] QCA 119; (1998) 100 A Crim R 430.

[5] [1990] HCA 61; (1990) 171 CLR 312, 325.

[6] [1995] HCA 67; (1994-1995) 183 CLR 58, 66-67 and 72-73.

[7] R v Callope [1965] Qd R 456; R v Young [1957] St R Qd 599; R v Pangilinan [1999] QCA 528; CA No 73 of 1999, 24 November 1999, par [33].

[10] [1998] QCA 119; (1998) 100 A Crim R 430, 437.

[11] Masciantonio above at pp 66-67 per Brennan, Deane, Dawson and Gaudron JJ; cf McHugh J at pp 72-73.