The conviction appeal
22Coulter has pleaded a single ground of appeal against conviction, as follows:
"The trial judge erred in failing to leave to the jury the partial defence under s 421 of the Crimes Act 1900."
Senior counsel for Coulter acknowledged that, as no submission was put to the trial judge that the "partial defence" should be left to the jury, he needs leave to be permitted to argue the point: Criminal Appeal Rules, r 4. The point is without merit, and, for the reasons that follow, leave should be refused.
23Section 421 provides for the so-called "partial defence" shortly known as "excessive self-defence". It is called a partial defence because, if the necessary conditions are met, a person who would otherwise be convicted of murder is to be found guilty of the lesser crime of manslaughter. The section is in the following terms:
"421 Self-defence-excessive force that inflicts death
(1) This section applies if:
(a) the person uses force that involves the infliction of death, and
(b) the conduct is not a reasonable response in the circumstances as he or she perceives them,
but the person believes the conduct is necessary:
(c) to defend himself or herself or another person, or
(d) to prevent or terminate the unlawful deprivation of his or her liberty or the liberty of another person.
(2) The person is not criminally responsible for murder but, on a trial for murder, the person is to be found guilty of manslaughter if the person is otherwise criminally responsible for manslaughter."
The reference to "the person" is clear when s 421 is read in the context in which it appears. Section 421 appears in Pt 11 of the Crimes Act, which is headed "Criminal responsibility - defences". Division 3 of Pt 11 is headed "Self-defence", and commences with the sub-section:
"418(1) A person is not criminally responsible for an offence if the person carries out the conduct constituting the offence in self-defence."
It will be observed that, unlike s 421, s 418 is of general application, encompassing offences that do not result in death.
24The "partial defence" for which s 421 provides is not, in reality, a true defence. That is made clear by s 419. Section 419 provides:
"In any criminal proceedings in which the application of this Division is raised, the prosecution has the onus of proving, beyond reasonable doubt, that the person did not carry out the conduct in self-defence."
25Read literally, s 421 applies only to the person who uses the force that causes death. Taken in those terms, the section cannot be applicable to Coulter, as she did not inflict the force that caused the death of Jeffrey Ryan. However, senior counsel who appeared for Coulter argued that the protection afforded by the provision can extend, in a derivative way, to a person who aids and abets the person who inflicts the fatal force.
26It is unnecessary, in this case, to reach any conclusion as to that proposition. The Crown accepted that it is conceivable that some circumstances might give rise to such an interpretation. For example, a person who handed a gun or a knife to another person who was under immediate threat of being killed or injured might be able to claim the benefit of the section. Whether that is so does not arise for determination in the present case. Even if Coulter, as a person responsible for the death of Jeffrey Ryan, while not the person who used the force that caused his death, could avail herself of the benefit of the provision, the conditions necessary before the jury could have been invited to consider the defence were not met.
27The substance of s 421 is to be found in sub-s (2). Put simply, if the relevant conditions are met, then a person who would otherwise be convicted of murder, is to be convicted of manslaughter.
28The relevant conditions are:
(i)that the person accused used force that caused death;
(ii)that that use of force was not a reasonable response in the circumstances as the accused person perceived them.
If those two facts are established (and they must be proved beyond reasonable doubt by the prosecution) then, ordinarily (absent the availability of some other defence or partial defence, such as mental illness, provocation, or substantial impairment), s 421 appears to provide for the reduction of the offence from murder to manslaughter in circumstances where:
(iii)the person accused believed that the use of force was necessary for one of the purposes specified in sub-para (c) and (d) - to defend himself or herself or another person (against what is not stated) or to prevent or terminate unlawful detention. It is of some note that there is no requirement that any such belief be reasonable, or be held on reasonable grounds.
I said that s 421 "appears" to provide for that reduction in circumstances where the person holds the stated belief. In fact, that is not quite correct. That is because of s 419. Although s 419 was not mentioned in either the written submissions or the oral argument advanced on behalf of Coulter, it is an important provision in understanding s 421. Section 419 provides:
"Self-defence-onus of proof
In any criminal proceedings in which the application of this Division is raised, the prosecution has the onus of proving, beyond reasonable doubt, that the person did not carry out the conduct in self-defence."
29Accordingly, the third necessary condition for s 421(2) to operate is that the Crown fails to prove that the person did not (subjectively) hold the relevant belief.
30It is, therefore, a misnomer to call the protection afforded by s 421(2) a "defence" or "partial defence". Disproof that the accused person held the belief is an essential element in the Crown case. But it becomes an essential element in the Crown case only when "the application of [Div 3] is raised". That can only mean "raised by the accused person" or "raised on the evidence". It is not in every case in which murder is charged that the Crown must set out to negative the belief. That obligation arises only where the provisions of Div 3 "are raised".
31What must be negatived by the Crown, where Div 3 issues are raised, is the state of mind of the accused person. That can be done, as well as through direct evidence of that accused person, by inference or by circumstantial evidence: see, for example, Braysich v The Queen [2011] HCA 14; 243 CLR 434 per Bell J (in dissent) [101].
32The issue in Braysich was whether a true defence - that is, a response to the Crown case in which both the legal and evidential onus was cast on the accused ([36], [101]) ought to have been left to the jury. In that context, the plurality said:
"35 Where, as in the present case, a statute creating an offence provides for a defence and imposes the legal burden of establishing that defence on the accused, then the accused also bears the evidential burden. For that evidential burden to be met there must be evidence upon which the trial judge can properly direct the jury that the defence is open as a matter of law.
36 If a trial judge has to consider whether, at the close of the evidence in a criminal trial, a particular defence should be left to the jury, the question which the trial judge will have to ask himself or herself will be:
1. In a case where the legal burden is on the prosecution and the evidential burden on the accused - is there evidence which, taken at its highest in favour of the accused, could lead a reasonable jury, properly instructed, to have a reasonable doubt that each of the elements of the defence had been negatived?
2. ...
..."
33The defence in question in Braysich involved the purpose of the accused in conducting himself as he did. In that context, the plurality went on to say:
"37 The appellant was not required to produce evidence of his subjective purpose or purposes in order to meet the legal burden of establishing the statutory defence. The legal burden on him was to prove on the balance of probabilities that he lacked the proscribed purpose. One way of doing that was to adduce or point to evidence inconsistent with the proposition that he had that purpose. He did not have to point to evidence of his actual purpose in order to invoke the defence. Any evidence that could support an inference that the appellant did not have the proscribed purpose was relevant to the statutory defence. The question whether he had discharged the 'evidential burden' was to be answered accordingly." (italics added)
34Here, by reason of s 419, no legal burden rested on Coulter. One question that arises is whether, by reason of the words "is raised" in s 419, she bore an evidential burden. I incline to the view that she did not. That is because issues concerning Div 3 can be, and often are, raised in the prosecution case. However, it is unnecessary to resolve that question.
35It is well established that where a defence or possible defence (whether complete or partial) is capable of arising on the evidence, a trial judge is obliged to leave that defence or partial defence to the jury, even where that defence or partial defence is not being relied upon by the accused, and even if it has been disclaimed: Pemble v The Queen [1971] HCA 20; 124 CLR 107; Fingleton v The Queen [2005] HCA 34; 227 CLR 166.
36Important words in that formulation are "on the evidence". They hark back to the passages in Braysich, in [35] and [36] extracted above.
37For application in Coulter's case, the test stated in [36] of Braysich may be paraphrased and adapted as follows:
"Was there evidence which, taken at its highest in favour of Coulter, could have led the jury, acting reasonably and properly instructed, to have considered that there was a reasonable possibility that she believed that her conduct in participating in the murder of Jeffrey Ryan was necessary in order to defend Helen Ryan or CR against Jeffrey Ryan?"
38What is now put is that there was evidence sufficient to raise the question whether Coulter believed that her participation in the murder was necessary in order to protect her daughter Helen Ryan, and Helen Ryan's daughter CR, against Jeffrey Ryan. Given that Coulter's evidence was that she did not know what Helen Ryan intended to use the money for, she did not give evidence of any belief that it was necessary for her to do what she did in order to defend Helen Ryan or CR. However, on her behalf, it was argued that there was, in the evidence in the Crown case, sufficient to meet the Braysich test as reformulated to take in the circumstances of the present case.
39Reliance was placed upon those passages in the conversation with Shane of 12 January 2010, in which Coulter said that Jeffrey Ryan was giving Helen Ryan "a terrible time ..."; and "he was going to bury her alive and he was going to get somebody in Tamworth to do it, kill her and all this. It was just terrible ... She was in a terrible position". Reference was also made to evidence that, when CR's school proposed an Apprehended Violence Order against Jeffrey Ryan, Helen Ryan responded that she would not do that because "it would only make him worse".
40In this context, mention was also made of Latham J's characterisation of the accounts given by Helen Ryan to Coulter of Jeffrey Ryan's conduct as "grossly exaggerated", and Coulter's belief in those grossly exaggerated accounts.
41It is one thing to say that the evidence of Coulter's conversation with Shane went some way to providing an explanation for her conduct. It is a very different thing to characterise an explanation for participating in a crime as a belief that that conduct was necessary - necessary for the stated purpose, or one of the stated purposes. The evidence of what Coulter said to Shane is capable of throwing some light on why Coulter did what she did. It falls far short of even having the capacity to constitute evidence that Coulter had the requisite belief - that the murder of Jeffrey Ryan was necessary in order to defend Helen Ryan and/or CR.
42The notion that a court might be called upon to direct a jury that a contract killing, if motivated by a (subjective) belief in its necessity for defensive purposes, ought to result in a conviction for manslaughter rather than murder is both repugnant and abhorrent. Yet the language of s 421 appears to comprehend just that - provided that its benefit can fall upon a person other than the person who uses actual force. Subject to that question, if Coulter had given evidence that she held the requisite belief, or if there had been evidence in the Crown case that she held that belief, Latham J would have been obliged to leave the question to the jury.
43However, it is not necessary to grapple with the implications of s 421. Put simply, there was no evidence that would have supported leaving the s 421 issue to the jury. That, no doubt, is why the question was not raised in the trial.
44I would refuse leave to argue the only ground advanced. I would dismiss the appeal against conviction.