Criminal Code Act Compilation Act 1913 (WA), s 249, s 23, s 248

Azzadin v The Queen [1999] WASCA 265

Fletcher v The Queen [1999] WASCA 18

Gavin v The Queen (1992) 6 WAR 195

Leary v The Queen [1975] WAR 133

Marwey v The Queen [1977] HCA 68; (1997) 138 CLR 630

Mraz v The Queen [1955] HCA 59; (1955) 93 CLR 493

Narkle v The Queen, unreported; CCA SCt of WA; Library No 6108; 2 December 1985

R v Dziduch (1990) 47 A Crim R 378

R v Falconer [1990] HCA 49; (1990) 171 CLR 30

R v Ireland [1970] HCA 21; (1970) 126 CLR 321

R v Storey [1978] HCA 39; (1978) 140 CLR 364

Randle v The Queen (1995) 15 WAR 26

Shepherd v The Queen [1990] HCA 56; (1990) 170 CLR 573

Simic v The Queen [1980] HCA 25; (1980) 144 CLR 319

Thomas v The Queen [1960] HCA 2; (1960) 102 CLR 584

Ugle v The Queen [2000] WASCA 381

Van Den Hoek v The Queen [1986] HCA 76; (1986) 161 CLR 158

Wedd v The Queen [2000] WASCA 273

Wilde v The Queen [1988] HCA 6; (1988) 164 CLR 365

Zecevic v Director of Public Prosecutions (Vict) [1987] HCA 26; (1987) 162 CLR 645

1 TEMPLEMAN J: This is an application for leave to appeal out of time against the applicant's conviction for murder and unlawful wounding. Until the completion of all submissions the appeal was limited to the murder conviction but the Court has given leave, in circumstances to which I will refer shortly, to add the appeal against the unlawful wounding conviction to the application.

2 The applicant was charged on an indictment containing three counts. Count 1 was that "on 4 April 2001 at Parmelia the applicant wilfully murdered Wayne Robert Lawrence". The second count was that further on the same date and at the same place the applicant attempted unlawfully to kill Gregory Colin Lawrence". The third count was an alternative to count 2 that "on the same date and at the same place the applicant unlawfully wounded Gregory Colin Lawrence with intent to do him some grievous bodily harm". The applicant was convicted on count 3 and convicted of murder on count 1.

3 The incident which led to the charges arose out of what the prosecutor, in his opening address to the jury, described as a senseless argument and altercation between those men for which the prosecutor said there appeared to be no meaningful explanation.

4 The crown case may be summarised in this way: that on that date and at that place there was some argument or altercation between the applicant and Wayne Lawrence and between Gregory Lawrence and Wayne Lawrence, may have knocked the applicant down in the course of that altercation.

5 The applicant went into the house, these events having taken place outside the house in question and he armed himself with a kitchen knife. He came out of the house and made some indiscriminate threats to kill, those threats apparently being directed at least to Wayne Lawrence to whom I shall refer as the deceased, and to Gregory Lawrence.

6 In response to that threat the deceased knocked the applicant down and there was some struggle during which the applicant stabbed the deceased in the neck, inflicting a fatal wound from which the deceased died quite shortly afterwards. The applicant then stabbed Gregory Lawrence and that was the unlawful wounding of which the applicant was ultimately convicted.

7 The evidence at trial was somewhat confused. The applicant gave evidence that he had not known that he had a knife in his hand when he caused the fatal injury to the deceased or the injury to Gregory Lawrence. The applicant also said that he had acted in self-defence. Those defences were, of course, inconsistent and they were not only mutually inconsistent but clearly entirely inconsistent with the crown case.

8 There are a number of grounds of appeal arising from the charge directions given by the learned trial judge to the jury. I will deal first with the second ground of appeal which is that the learned trial judge erred in his direction to the jury on self-defence to an unprovoked assault in that the direction had the effect of reversing the burden of proof.

9 The judge's approach to his charge to the jury emerged before he commenced during the course of the discussion with counsel. His Honour said:

"If the jury accepts the defence case, he's got a range of defences, unwilled act, self-defence, provocation and provocation limited only to count 1 -"

that being the wilful murder charge. His Honour continued:

"So what I'm going to say to the jury is, 'You have got to find the facts first. If you find the facts the crown way you don't have to worry about unwilled act, which is the same as accident in this case and there's not two separate ones, it's the same issue. You don't have to worry about self-defence, you look only at the question of intention,' and I suppose I will put provocation to be safe."

The prosecutor assented to that and his Honour then said:

"That seems to be the way, so the first thing is a fact-finding mission for the jury."

The prosecutor again assented to that. His Honour then said:

"If they are not satisfied beyond a reasonable doubt on your version of the facts then of course obviously they have got to look at the version most favourable. If there is any ambiguity, it's got to be resolved in favour of him. Are we all agreed on that then? Are we? Do you agree with that, Mr Bowden, that approach? You don't have to say so now."

10 Mr Bowden was counsel for the defence. Mr Bowden then answered, "No," but whether he was saying that he didn't agree with that approach or assenting to the proposition that he didn't have to say so now, is not clear. In any event, his Honour's intention was then put into effect. I refer to his Honour's direction in which he first summarised the crown case in a slightly expanded version of the very short summary which I have already given. His Honour then said:

"If that's what you find, or a version close to it, it seems to me there is no room for any defence of self-defence or any act independently of the exercise of the will, because on that version he went for Wayne with the knife and there was no suggestion that he was in danger himself and therefore acting in self-defence. All that happened was that he had been stopped by Wayne with a fist, nothing more. He hadn't been set on or hadn't been attacked. The only issue, it seems to me, would then be whether the accused intended to kill Wayne."

Then after expanding on that a little his Honour said:

"However, if you find the facts according to the accused's version then this seems to be the potted summary of his version."

11 And his Honour then summarised the applicant's evidence. Having dealt with that, his Honour said:

"So fact-finding is your first task, I think. When you go to the jury room I think you have got to find the facts first to know what law you are going to apply to the case. If you can't find the facts, if you say, 'We just don't know. We can't work it out. We don't know who is telling the truth,' then you have to consider the accused's version and apply the law on all points, because if you are not satisfied beyond a reasonable doubt of the crown's version then you have got to resolve the matter in the most favourable terms to the accused and consider the application of the defence as to his version.

I think it is essential that you decide which version you accept, remembering always that the crown has to prove its version beyond reasonable doubt. The accused does not have to prove his version at all. He doesn't have to prove anything, but they are the rival versions which have been put up and I think you really therefore need to decide what happened and if you can decide what happened clearly then you know where you are going."

12 It must be said that the learned Judge did direct the jury quite properly about the onus of burden of proof and the need to be satisfied beyond a reasonable doubt of guilt, before the jury could convict. However, in my view, the very clear impression which one gets from reading the charge to the jury is that his Honour directed the jury that they had to choose which of the competing versions they should accept.

13 In the respondent's submissions it is acknowledged that there is always a danger when a trial Judge refers to the version of the accused; the critical question being whether, examining the directions as a whole, there was a misdirection as to the burden of proof. The crown submits that the trial Judge made repeated references to the onus throughout his charge and the jury were not misled.

14 In particular, apart from passages which I have read, the crown relies on a passage towards the end of his Honour's charge, which was a lengthy and complex charge, in which his Honour said:

"So it all depends on how you find the facts and that's why I say to you, when you retire you have got to sit down and say, 'Now, the 12 of us, what version do we accept beyond reasonable' - 'Do we accept beyond reasonable doubt,' not 'What version do we accept' but 'Do we accept beyond reasonable doubt the crown version?' That's the first question. If you are not satisfied beyond reasonable doubt as to the crown version then the accused's version has to be the version by which you apply all the law."

15 I accept that within that paragraph his Honour gave what was, with respect, a correct direction. But his Honour also said that when the jury sat down they had to say, "What version do we accept" albeit beyond reasonable doubt. That, in my view, with the greatest of respect, might well have confused the jury who had been instructed quite firmly much earlier in the charge, in the way that I have already recited, that in effect they had to choose which version they accepted.

16 The law is well settled and, in particular, in Murray v The Queen [2002] HCA 26; (2002) 76 ALJR 899, Gummow and Hayne JJ, Gaudron and Callinan JJ each said, in effect, that notwithstanding proper directions on the burden of proof in relation to the elements to be proved by the prosecution, a trial judge who invites the jury to decide which version of events they accept, and in so doing suggests that they may assist in reaching their ultimate conclusions, is likely to mislead the jury as to what their proper function is.

17 Equally a judge who invites the jury to consider whether they should accept the accused's evidence or version or who invites the jury to prefer one version of events over another, is also likely to confuse the jury and that may preclude them from considering whether the crown has established each matter that it is required to do. That in my opinion is the result of his Honour's directions taken as a whole and, as I have said, despite quite proper directions as a matter of impression.

18 In Liberato v The Queen (1985) 195 CLR 507, Brennan J at page 515 said this:

"When a case turns on a conflict between the evidence of a prosecution witness and the evidence of a defence witness it is commonplace for a judge to invite the jury to consider the question: who is to be believed, but it is essential to ensure by suitable direction that the answer to that question which the jury would doubtless ask themselves in any event, if adverse to the defence is not taken as concluding the issue whether the prosecution has proved beyond reasonable doubt the issues which it bears the onus of proving.

The jury must be told that even if they prefer the evidence for the prosecution, they should not convict unless they are satisfied beyond a reasonable doubt of the truth of that evidence. The jury must be told that even if they do not positively believe the evidence for the defence, they cannot find an issue against the accused contrary to that evidence if that evidence gives rise to a reasonable doubt as to that issue."

19 In my view, although it is not mandatory to give a direction in those terms to a jury, this was very much a case in which the jury should have been directed in that way. In my view, again taking the charge as a whole, the jury was not directed sufficiently clearly in those terms and I therefore consider that on that ground alone the trial has miscarried and that the convictions, and I say convictions, ought to be quashed.

20 I include the conviction in relation to the unlawful wounding because in my view his Honour did not deal separately with those two offences when he directed the jury. Since the issue of self-defence arose in relation to both of them, it seems to me that the charge in relation to the unlawful wounding or attempted murder counts is infected with the same problem as that arising in relation to the wilful murder count. It is for that reason that I consider that it was appropriate to allow leave to amend, albeit at this very late stage, and permit the amendment which has been formulated very recently.

21 I turn now to the first ground of appeal which was that the learned trial Judge erred in law by directing the jury that self-defence only arises where the assault being defended was not provoked. That is the course taken by the learned trial Judge. It is common ground that his Honour did not direct the jury in relation to s 249 of the Criminal Code which deals with self-defence against a provoked assault.

22 Put very shortly, my view is that there was evidence on which it was open to the jury to find that the applicant had provoked the assault, but had nevertheless acted in self-defence within the provisions of s 249. The evidence was that during the course of the assault, or at least arguably during the course of the assault which led to the death of the deceased, the applicant believed that it was necessary for his preservation from death or grievous bodily harm to use force in self-defence, even though that force might have caused, as it did, death or grievous bodily harm.

23 That being so, it seems to me that the matter should have been left to the jury and, as I say, it is common ground that the jury was not directed in the terms of that section. Counsel for the Crown referred to the provisos to s 249 and in particular the final proviso that the section does not protect the person charged with the offence unless he has declined further conflict, quitted it or retreated from the conflict as far as was practicable.

24 The difficulty, I think, with that submission is that if self-defence against a provoked assault arises at all, then the question whether provisos apply ought also to be left with the jury and they were not in this case. I would therefore allow the appeal in relation to ground 1 as well.

25 I turn to ground 3 in which it is said that the learned trial Judge erred in law in his charge under s 23 by directing the jury whether the question had arisen as to whether the Crown had negatived the proposition that the death of the deceased was an event which occurred independently of the exercise of his will. That ground arises out of a passage in his Honour's charge to which I have already referred in which his Honour in effect directed the jury that it was essential that they decide which version they accepted.

26 That of course was not the appropriate approach in relation to this aspect. It was for the Crown to prove beyond a reasonable doubt that the death of the accused was an event which did not occur independently of the exercise of the applicant's will. It seems to me, therefore, that that ground is made out also.

27 There is also a question of the act which was the relevant act for the purpose of s 23 of the Criminal Code. The point being that a person is not criminally responsible for an act or omission which occurs independently of the exercise of his will. The complaint is made about his Honour's charge in that his Honour referred to the applicant having struck the deceased in the neck rather than having stabbed him. At least part of the applicant's evidence being of course that he had not known at the material time that he had a knife in his hand. His Honour said:

"In this case the issue is whether the act of striking Wayne in the neck and Greg senior in the chest occurred independently of the exercise of his will and in that sense was an accident."

28 The point is made that it was not the striking in the chest of itself which was the relevant act, but the act of striking in the chest with the knife. It was not put to the jury, it is submitted, that that was the act which had to be considered. However, in my view it is important to put what his Honour said in context and when one goes to his Honour's directions immediately before that passage, it is clear that when his Honour was referring to the striking of the deceased and Greg senior, he was referring to the applicant striking with a knife in his hand. I would not therefore myself allow the appeal on that ground.

29 There is a cumulative ground 6 which is that alternatively cumulative or aggregate errors of law, misdirections and failure to direct result in the conclusion that the trial as a whole has miscarried. I am of the view for the reasons that I already indicated that the trial has miscarried.

30 This is an application for leave to appeal out of time. There is a very inadequate explanation of the delay of some 5 months by the applicant's solicitor and we are told by counsel that he has forcefully brought home to the solicitor that the explanation is inadequate. That is a view which I very much endorse. However, given the view I take of the merits of the appeal, it would, I think, result in an injustice to the applicant if leave were not given, despite the delay and despite the inadequate explanation. I would therefore grant leave to appeal and allow the appeal on the grounds that I have referred to.

31 MCKECHNIE J: I agree with the reasons given by Templeman J and with the orders he proposes. I desire to add some further comments, limited to ground 1. The genesis for the events which ultimately caused the death of the deceased, and the injury to the other person, seems to have been an argument between the applicant and the deceased about the applicant's de facto, Pansy Mills.

32 The evidence led at trial was confusing to a degree due, in part, to the intoxication of the participants and witnesses on the day of the incident. A fight started and the applicant was hit to the ground. He then went into the house and armed himself with a knife. An eyewitness gave evidence as to what occurred when the applicant came out of the house armed with a knife:

"When Uncle Wayne '(the deceased)' picked up that piece of timber, did Neville say anything?---He started shouting.

What was he shouting ... So you tell us, please?---He said, 'Come on, you black cunts. I'll kill youse all.'

When he said that, did Uncle Wayne do anything with the piece of timber?---Hit him with it.

Hit him where?---On the head.

On the head. Did anything happen to Neville when he got hit with the piece of timber?---He fell to the ground."

33 Describing what happened when the accused got up:

"He rushed Uncle Wayne."

He had the knife "Up his hand still."

"... What did you see happening between Neville and Uncle Wayne at that location?---Neville stabbed him."

34 Then the witness describes the stabbing in more detail. In my judgment it was open for a jury to consider that the applicant's words and actions were capable of amounting to provocation which caused the deceased to respond by hitting the applicant with a piece of wood with nails embedded in it.

35 The trial Judge directed the jury about Code s 248: Self-defence against unprovoked assault

"When a person is unlawfully assaulted and has not provoked the assault it is lawful for him to use such force to the assailant as is reasonably necessary to make effectual defence ..."

The trial Judge was concerned about the issue of unlawfulness and after advising the jury about s 248 said:

"You will note the requirement of an unlawful assault. That's the first big question in this case. Was there, by Wayne, and Greg senior for that matter, an unlawful assault on the accused? The accused says there was because he was mobbed when he went out, first off, and that he was also struck by Greg senior later, and even on the crown case, there's no doubt there was an assault because when he came out it seems, on the crown version of events, that Wayne hit the accused first off. It's looks like he struck him.

But, of course, it has to be an unlawful assault and that in itself involves an important question. The assault has to be unlawful. There's not much doubt. Obviously if the accused was struck, he would have been assaulted. The question is whether it was unlawful. If he came roaring out, it depends really how you find the facts. If he came out and went at Wayne, for example, because he misunderstood and misread the situation about his de facto and Wayne stopped him with a punch, you would have to consider for a start whether that was an unlawful assault on Wayne's part."

36 However, it is to be noted that under s 249, which is entitled "Self-defence against provoked assaults," there is no requirement for the assault responsive to the provocation to be unlawful. This is consistent with other Code provisions, for example, s 246.

37 The applicant gave evidence about the incident outside:

"Did you notice if any of the three that were surrounding you had anything in their hand?---Yeah, it looked like Greg Lawrence had a knife on him."

"When you went back inside, what did you do?---I grabbed a knife. ... From the kitchen. ... To defend myself. ... I went back outside then. ... Towards them three blokes. ... That's when Wayne punched me, you know. ... He punched me in the jaw."

"Did you have anything in your hands at that time?---I think a knife handle.

Did you know that you had the knife handle in your hand?---No.

What was going through your mind when you were, as you have just said, punching out? What were you thinking?---I was thinking I might have got killed myself.

Why were you thinking that? What made you think that?---Well, three of them were rolling me.

Did you continue to punch out?---Yes.

What happened then?---I turned my focus on Greg junior, who had the stick in his hand."

40 It is perhaps unclear at what point the applicant formed any belief that he might have been killed himself. In the course of cross-examination he was asked:

"What did you have the knife for?---Self-defence.

Self-defence. So you were going to defend yourself with the knife?---Yes."

"By poking anybody who came in front of you, I suppose, with it?---Yeah, most probably."

42 He then repeated his evidence that it looked like Greg Lawrence had a knife on him and had something in his hands. He gave further evidence about defending himself. In cross-examination:

"You had the knife there to defend yourself against three blokes according to you. Isn't that right?---Yeah.

So you would have been using the knife to defend yourself, wouldn't you, Mr Stack?---Yeah, yes.

How did you use the knife to defend yourself? You tell us?---I don't know.

One way would be to stab Wayne Lawrence in the neck, wouldn't it?---Yes.

That's one way to keep him away and I suppose another way to defend yourself would have been to stab Greg Lawrence senior in the chest?---Yes.

That was what the knife was for, wasn't it? To use on them?---Yeah.

Because you were angry, weren't you?--- By that time, yeah.

I suggest to you, Mr Stack, that you misread, misunderstood what was said to your missus by Wayne, that you overreacted to that, got decked a couple of times, more than a couple, in front of your missus, which was embarrassing, wasn't it, and you went inside and got yourself a knife to settle the score? What do you have to say about that?---I went inside and got the knife to defend myself."

"And was Wayne using that piece of timber to try and keep you away with the knife?---No."

44 He said, "He probably wanted to try and hit me with it."

"And you were advancing on him because you had the knife. Is that right?---Yeah.

He tried to block you with that piece of timber, didn't he?---No.

What was Wayne doing with this piece of timber, to you? What was he doing to you with the timber?---Nothing.

He was just standing there holding it, was he?---Yeah."

45 The evidence was, to a degree, confusing but, in my opinion, there is evidence that the accused acted with a belief that he needed to use force to preserve himself from death or grievous bodily harm and that this is not necessarily inconsistent with his other testimony that he had forgotten or did not know that he had the knife in his hand. That evidence being

available, it was for the jury to give consideration to the question whether the Crown had negatived the relative elements of Code s 249.

46 The difficulty with the trial Judge's directions is that by asserting that the accused had provoked the situation right from the start, his subsequent directions on self-defence, under Code s 248, may have been regarded by the jury as inapplicable. In the circumstances, I consider the trial Judge was obliged to direct the jury on self-defence pursuant to the provisions of Code s 249.

47 The Crown has raised the question whether the last part of the proviso to Code s 249 applies, that is, before such necessity to defend himself arose, the person using such force declined further conflict or quitted it or retreated from it as far as was practicable.

48 I am not sure that the protection arises in this case. It is, however, a matter for the jury. The relevant events giving rise to a possible Code s 249 defence occurred very quickly. In my view, it is a question of fact whether in the circumstances the protection extended or not. Once there was evidence, that a person unlawfully assaulted another or provoked an assault and that other assaulted him with such violence as to cause reasonable apprehension of grievous bodily harm or inducing him to believe that it was necessary for him to use force in self-defence, then that was an issue which the Crown had to negative. It was an issue about which the Judge had to direct the jury.

49 For that reason, in addition to the matters set out by Templeman J, I consider the applicant has established an error of law by the trial Judge and accordingly, notwithstanding the delay in applying for leave, I would grant leave and allow the appeal in accordance with the orders proposed by Templeman J.

50 MCLURE J: I agree with the reasons of both Templeman and McKechnie JJ. I would grant orders for an extension of time in which to appeal. I would grant leave to appeal, allow the appeal and order that the convictions for murder and unlawful wounding be quashed and that there be a retrial on those matters.