Court of Appeal (WA)|2000-12-05|Before: Wallwork J, Parker J, Wheeler J

Ugle v The Queen [2000] WASCA 381 (5 December 2000)

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA

CITATION : UGLE -v- THE QUEEN [2000] WASCA 381

Criminal law - Appeal against conviction - Murder - Self defence - No direction as to unwilled act and accident (s 23) or criminal negligence - Whether trial miscarried

Criminal law - Appeal against conviction - Murder - Whether error in direction as to grievous bodily harm

Aleksouski v R (1979) WAR 1

Bank of England v Vagliano Bros (1891) AC 107

Brennan v The King (1936) 55 CLR 2253

Mellifont v AG for the State of Queensland [1991] HCA 53; (1991) 173 CLR 289

Muratovic v The Queen (1967) Qd R 15

Randle v The Queen (1995) 15 WAR 26

Rogers v The Queen (1999) WASCA 239

Van den Bemd v R (1994) 68 ALJR 199

Walley v The Queen, unreported; SCt of WA; Library No 8894; 30 May 1991

1 WALLWORK J: The applicant in this matter was convicted of murder on 19 October 1999 after a trial by jury. He now appeals against that conviction on a number of grounds. The relevant facts sufficiently appear in the extracts from the summing up of the learned trial Judge which are set out in these reasons.

2 The first ground of appeal is that the learned trial Judge erred in law, when he directed the jury on self-defence. The submissions of the applicant on this ground of the appeal are summed up in the particulars of the ground which are:

"1.1 The law does not require the assault to be 'murderous'.

1.2 The reference to 'serious bodily harm' is a common law term and has no application to self-defence under the Criminal Code of Western Australia."

4 In the course of his summing up and amongst other things, his Honour told the jury:

"That's quite a mouthful, but probably you will think it's no more than commonsense. After all, if someone slaps you on the face and looks as if he is going to do it again, you are entitled to defend yourself by using reasonable force to prevent it happening again. But if a man assaults you with murderous intent of course you are entitled to defend yourself, even to the extent of killing him if there is no other reasonable way in which you can save your life."

5 It was submitted for the applicant that that direction was wrong because the notion of "murderous intent" put the standard higher than required. It is sufficient for self-defence if the Crown has not negatived that an accused person had a reasonable apprehension of grievous bodily harm being caused to him or her. That would not require a murderous intent.

6 The applicant had told the jury in his evidence that "When he came at me with the bat again, I thought he was going to kill me." It was submitted that the applicant's evidence had indicated that he had thought he was going to be hit in the head by the bat, as he had been with an earlier blow, although that first blow had been a glancing one with a cricket bat, hitting his arm and forehead at the same time.

7 It was submitted that the jury were not obliged to accept that the applicant had thought that he was going to be killed. That because of the directions they might have put the standard at a higher level than the definition of grievous bodily harm in the Criminal Code. Alternatively, the jury may have been left in either a state of confusion or not fully informed, concerning what they had to assess.

8 Grievous bodily harm is defined in the Criminal Code as:

"Any bodily injury of such a nature as to endanger, or be likely to endanger life, or to cause, or be likely to cause, permanent injury to health."

9 It was further complained that the learned Judge did not explain to the jury what "likely" meant. That the word means not a matter of probability, but something which is not fanciful or remote.

10 In essence, it was submitted that the jury may have been misled into thinking that before the doctrine of self-defence can come into play, the type of injury anticipated by an accused person would have to be of a higher degree than is required under the Criminal Code, pursuant to the definition of grievous bodily harm.

11 It was also complained that apart from the words "with murderous intent", his Honour had used the words "serious bodily harm", whereas the relevant words used in the definition of grievous bodily harm are "permanent injury to health". It was submitted that there was a difference between those two phrases and that the words used could result in a wrong test being applied by the jury.

12 In this regard reliance was placed upon the words of Gibbs J (as he then was) in Wacal Developments Pty Ltd v Realty Developments Pty Ltd [1978] HCA 30; (1978) 140 CLR 503 at 507 where his Honour said:

"The expression is given by the statute a special meaning which must be applied, whether or not it accords with the ordinary meaning."

See also Pollyanna Nungari Wayne v Michael Gerard Boldiston [1992] NTSC 42; (1992) 108 FLR 252; (1992) 85 NTR 8.

"The learned trial Judge erred in his direction to the jury on self-defence by failing to direct the jury that:

If they found the deceased had unlawfully assaulted Ugle with the cricket bat as alleged by Ugle, in assessing Ugle's response to the assault, they should bear in mind that a person defending himself cannot weigh precisely the exact action which should be taken to avoid the threat which he reasonably believed he faced at the time."

14 In Zecevic v Director of Public Prosecutions (Vict) [1987] HCA 26; (1987) 162 CLR 645 at 661, Wilson, Dawson and Toohey JJ said:

"... there is wisdom in the observation of the Privy Council in Palmer that an explanation of the law of self-defence requires no set words or formula. The question to be asked in the end is quite simple. It is whether the accused believed on 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."

"No doubt it will often also be desirable to remind the jury that in the context of self-defence 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."

"There is however no longer any rule that the accused must have retreated as far as possible before attempting to defend himself. It is a circumstance to be considered with all the others in determining whether the accused believed upon reasonable grounds that what he did was necessary in self-defence: Howe per Dixon CJ (1958) 100 CLR at page 462 to 464; Viro per Gibbs J (1978) 141 CLR at page 115 to 116."

17 Complaint was made that in this case, amongst other things, his Honour had said:

"One obvious reaction may be that he could have run away."

18 It was submitted that having said that, and for the purpose of balance, the learned Judge was obliged at that point to put the other side of the coin. That the jury should have been told that the circumstances in which they were considering the case were not those which had been confronting the applicant at the relevant time. That there seemed to be little doubt on the evidence that the deceased had previously wielded the cricket bat and that he was still wielding the cricket bat when the applicant and Haworth had returned to the scene. It was said that it was important in this case that the applicant's evidence had been:

"That the first blow was struck after he was bull-rushed, that as the man ran at him again he immediately attempted to strike again; that the applicant then tried to fend off the second blow, to use his words 'pushing away', and as soon as he had achieved that then he did run."

19 The learned Judge told the jury that the applicant had said in evidence that in order to distract the attention at least of the man with the bat (the deceased) from Haworth, the applicant had called out to him and said: "Why did you hit the boy for, or something to that effect?" His Honour then said:

"He said then that the man with the bat bull-rushed him and hit him. He tried to fend off the first blow. It hit him on his left arm and then on the left side of his face. He became unsteady, lost his balance. The man was going to hit him again. He put his left hand up to his face and then with his right hand he pushed at or fended off the other man.

Just pausing there, you might find it helpful to think about that and ask yourselves was Ugle being assaulted? Are you satisfied on the evidence that the deceased man was attacking him? Of course, if you accept Ugle's version, clearly there was this attack. Then you ask yourself, was Ugle acting in self-defence? Was he trying to save himself from that attack? You may think he was, and then you ask yourself, 'What did he do?' What did Ugle do by way of self defence? Does it fit within the law? And remember the test is that where the nature of the assault is such as to cause the person assaulted a reasonable apprehension of death or grievous bodily harm to himself, if he believes on reasonable grounds that he cannot otherwise save himself from death or grievous bodily harm, it is then lawful for him to use any degree of force which is necessary to repel the attack even if it involves death or grievous bodily harm to the assailant."

"Ugle told you that he pushed; he fended off. He said at another stage he actually hit the deceased on the arm. He told you that he did not know that he had stabbed him and in fact although you were not told when he realised that there was blood on the knife, he told you that he certainly did not know, while he was directly at the scene, that he had stabbed the deceased man."

"There is no evidence before you to the effect that he forgot that he had the knife in his hand at the time when he pushed or fended off. Perhaps it would depend upon the way he pushed and the way he fended off. It would depend upon the way he did that as to whether you would consider that it was a deliberate blow or not. He told you in effect that he did not intend to stab the other man and he did not know that he stabbed him, at least until some time later. That really is the substance of the version of the accused in relation to the matter of self-defence. It's upon their account, taken in conjunction with all of the other evidence as to the circumstances, that you must consider when deciding whether Ugle was acting in lawful self-defence against an assault, actual or threatened, which caused him to have a reasonable apprehension of death or grievous bodily harm to himself. As I have said, it is for the prosecution to prove that the killing was unlawful. It's for the prosecution to prove beyond reasonable doubt that self-defence has no application in this case. So if you are left in the reasonable (sic) as to whether or not it was a case of lawful self-defence, you must give the benefit of that doubt to the accused. In that event you would find the killing was not unlawful and, therefore, the appropriate verdict not only in relation to Ugle but also in relation to Haworth would be not guilty. By way of broad comment it seems to me that there are three major issues to be considered in relation to self-defence. First: was there a real and effective threat by the deceased which the accused Ugle believed on reasonable grounds might cause the death of (sic) grievous bodily harm to himself? As to that, the only direct evidence you have is the evidence of Ugle and to some extent, of course, the evidence of Haworth as to the nature of the assault by the deceased man which they say took place. Then you need to ask yourself: what did Ugle do? What was the nature of the force that he used? The third issue which you must consider is, if what Ugle says is true in this regard, whether he could nevertheless in the circumstances have saved himself without doing what it seems he did, that is, without stabbing the deceased man. You may think that an obvious way in which he could have saved himself would have been to run off, or to keep the deceased man at bay by using the knife as a scare tactic by threatening with the knife, making it clear that he had it and that the deceased man would be in danger if he persisted with the attack. That for the time being at least I think is all that I need say on the question of self-defence."

22 There are a number of things which could be said about that direction. The first is that, in my view, on the whole, it tends to put the onus on the accused, rather than on the Crown. The emphasis is wrong.

23 By contrast, in Dziduch v R (1990) 47 A Crim R 378, a decision of the Court of Criminal Appeal New South Wales, Hunt J said:

"The fundamental question which a jury has to determine in relation to the issue of self-defence is whether the Crown has established that the accused did not believe on reasonable grounds that it was necessary in self-defence to do what he did. The Crown may establish either that the accused had no such belief or that there were no reasonable grounds for such belief. If the Crown fails to establish one or other of these two alternatives the accused is entitled to be acquitted of the charge."

"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 you could reasonably have believed was threatened by the victim. The jury should also of course be reminded that a person defending himself cannot always weigh precisely the exact action which he should take in order to avoid the threat which he reasonably believed that he faced at the time. They should be directed to approach their task in a broad and practical manner, giving weight to the situation in which the accused found himself, with little (if any) opportunity - as the jury have - for calm deliberation or detached reflection. They should also be told that they must consider the whole of the circumstances, and that the degree of force used is only a part of the whole picture."

"It is vital to identify the issue which is to be decided as being whether the Crown has established that the accused was not acting in self-defence. To that direction should be added a reminder that the Crown bears the onus of proof that the accused did not act in self-defence. One way of explaining such a direction which makes the point correctly where the Crown has to prove an negative, is to say that the Crown must eliminate any reasonable possibility that the accused was acting in self-defence."

"That direction could hardly be said to have made it clear to the jury that the onus lay upon the Crown to establish that the accused was not acting in self-defence or that the Crown must eliminate any reasonable possibility that the accused was acting in self-defence. It was, if I may say so, positively dangerous to commence the direction on onus by speaking of proof that the accused was acting in self-defence instead of proof that he was not so acting."

27 In that decision, Enderby J and Sharpe J agreed with the reasoning of Hunt J.

28 As the appellant says in ground 4, the learned trial Judge said in the above passage:

"Are you satisfied on the evidence that the deceased man was attacking him? Of course, if you accept his version, clearly there was this attack. Then you ask yourself was Ugle acting in self-defence? Was he trying to save himself from that attack?"

29 That emphasis was repeated when a little further on in the above passage his Honour said:

"The third issue which you must consider is if what Ugle says is true in this regard, whether he could nevertheless in the circumstances have saved himself without doing what it seems he did, that is without stabbing the deceased man. You may think that an obvious way in which he could have saved himself would have been to run off or to keep the deceased man at bay by using the knife as a scare tactic...."

30 In my view, grounds 4 to 6 of the appeal are made out. The learned Judge erred in his direction to the jury on self-defence in that overall he did not put the onus of proof to the jury in a sufficiently clear manner.

31 Following the directions on of the question of self-defence, the learned trial Judge directed the jury on the question of intent. His Honour did not direct the jury with respect to the question of accident.

32 Section 23 of the Criminal Code (WA) says in part:

"Subject to the express provisions of this Code relating to negligent acts and omissions, a person is not criminally responsible for an act or omission which occurs independently of the exercise of his will or an offence which occurs by accident."

33 That paragraph of s 23 raises the possibility of the application to this case of s 266 of the Criminal Code which is as follows:

"It is the duty of every person who has in his charge or under his control anything, whether living or inanimate, and whether moving or stationary, of such a nature, that in the absence of care or precaution in its use or management, the life, safety, or health of any person may be endangered, to use reasonable care and take reasonable precautions to avoid such danger; and he is held to have caused any consequences which result to the life or health of any person by reason of any omission to perform those duties."

34 Towards the end of his Honour's direction to the jury he said:

"The version of the accused Ugle is that the fatal wound must have been inflicted when he was trying to defend himself against a life-threatening attack by a man wielding a cricket bat. He told you that that man, clearly the deceased, had bull-rushed him, had hit him once, landing a blow to his arm when he held it up to defend himself, and going so far as to hit the side of his head. Ugle told you that the man was about to land a second blow aimed at his head and in those circumstances it is put to you on his behalf, that Ugle had no choice but to do what he did. He had no choice but to defend himself. What did he do to defend himself? Ugle told you that he pushed the other man, he tried to fend him off, and he told you that as far as he was aware he had hit the other man's arm, so on his version - although it is quite clear that he had the knife in his hand at the time, on his version Ugle did not use the knife as a weapon. If that was so you would be entitled to take the view that the force which he used was not likely to cause death or even serious harm and was more than reasonable in the circumstances, so that what Ugle was doing was acting lawfully in self-defence. So, members of the jury, if you accept that version you will find that the killing was not unlawful and you will find not only Ugle but also the co-accused, Haworth, not guilty. Even if you don't accept that version, even if you don't believe Ugle positively, that's not the end of the matter, because you will remember the onus of proof in this trial rests upon the Crown. It is for the Crown to prove the case against each of the accused. Even if you don't necessarily believe Ugle you will not automatically find that the killing was unlawful. It is important that you look at all of the evidence in order to see whether the prosecution has proved beyond reasonable doubt that the killing was unlawful."

35 The question of accident is raised by ground 9 of the appeal and written submissions were accepted with respect to it.

36 In my view the passage quoted above raised fairly and squarely the defence of accident under s 23 of the Code. On the authority of the following passages from decided cases, the questions arising from the application of s 23 should have been put to the jury by the learned trial Judge.

37 In Zecvic (supra), Wilson, Dawson and Toohey JJ, when discussing the question of self-defence at 657, said:

"The jury must be instructed accordingly whether or not the plea is raised by the accused: Director of Public Prosecutions v Walker [1974] 1 WLR 1090 at 1094."

38 In Van Den Hoek v The Queen [1986] HCA 76; (1986) 161 CLR 158 at 161, Gibbs CJ, Wilson, Brennan and Deane JJ said:

"The question on which the learned members of the Court of Criminal Appeal disagreed was whether the learned trial Judge erred in failing to direct the jury on the issue of provocation. Neither the fact that the applicant did not expressly say in evidence that she had been deprived of the power of self-control, nor the fact that counsel in effect told the learned trial Judge that provocation was not an issue, absolved the learned trial Judge from the necessity of leaving that issue to the jury if there was some evidence fit for its consideration. In Bullard v The Queen [1957] AC 635 at 642 Lord Tucker, delivering reasons for judgment of the Judicial Committee said:

'It has long been settled law that if on the evidence, whether of the prosecution or the defence, there is any evidence of provocation fit to be left to a jury, and whether or not this issue is specifically raised at the trial by counsel for the defence and whether or not the accused has said in terms that he was provoked, it is the duty of the Judge, after proper direction, to leave it open to the jury to return a verdict of manslaughter if they are not satisfied beyond reasonable doubt that the killing was unprovoked.'

That statement is amply supported by authority: see Mancini v Director of Public Prosecutions [1942] AC 1 at p 7; Kwaku Mensah v The King [1946] AC 83 at pp 91-92; Lee Chun-Chuen v The Queen [1963] AC 220 at pp 232-233; Parker v The Queen [1964] UKPCHCA 1; (1964) 111 CLR 665 at p 681; [1964] AC 1369, at p 1392; Da Costa v The Queen [1968] HCA 51; (1968) 118 CLR 186 at p 213; Pemble v The Queen [1971] HCA 20; (1971) 124 CLR 107 at pp 117-118, 132-133; Sreckovic v The Queen [1973] WAR 85 at p 90."

39 Towards the end of his address in this case, after having discussed some of the facts, his Honour said:

"I suggest to you that you concentrate first on his role and decide whether he was really acting in self-defence at the time in order to decide whether the killing was unlawful."

40 Later in his summing-up the learned trial Judge said:

"It is important for you, members of the jury, to keep in mind that the real questions for you to decide are: was the killing of Mr Byrne unlawful and if it was unlawful, what was the role of each of the accused in that unlawful killing? What was in the mind of each of the accused when the fatal blow was struck?"

41 That last passage is inconsistent with any question of accident and assumes that a "fatal blow was struck". Additionally, s 23 of the Code is a significant section in the Criminal Code concerning criminal responsibility. It also brings in the question of criminal negligence.

42 In my view, as in the decided case of Dziduch which is referred to earlier in these reasons, the problems with the direction concerning self-defence should result in an order for a new trial. When combined with the lack of a direction concerning the question of accident and the possibility of a verdict of manslaughter arising from the negligent use of the knife, which was not left to the jury, in my view this case at its best for the Crown, falls within the words of Jackson CJ in Leary v R [1975] WAR 133 at 137 where his Honour said:

"It is submitted for the Crown that notwithstanding any defects and irregularities in the trial which we might consider had occurred, the verdicts should stand as there has been no substantial miscarriage of justice. I cannot agree with this. It is probably true that not each matter raised in the grounds of appeal would call for the convictions to be set aside; but taken together they lead to the conclusion, in my opinion, that the applicants have not had in all respects the fair trial to which the law entitles them. An 'aggregate of faults' may properly lead to a conclusion that a trial, as a whole, has miscarried: R v Ireland [1970] HCA 21; (1970) 126 CLR 321 at 331; [1970] HCA 21; [1970] ALR 727."

43 It is not necessary to discuss grounds 7 and 8 of the grounds of appeal.

44 I would set aside the conviction and order a new trial.

45 PARKER J: In October 1999 the applicant Mitchell James Ugle was jointly tried with Aaron James Haworth on a charge of wilfully murdering James Leonard Byrne. After a trial which lasted some five sitting days the jury deliberated at length before returning verdicts by which they found the applicant guilty of murder and Haworth guilty of manslaughter. The applicant was sentenced to life imprisonment as required by the Criminal Code and the trial Judge, Heenan J, fixed a minimum period of

10 years which the applicant must serve before being eligible for release on parole. Haworth was sentenced to 8 years imprisonment with eligibility for parole. Both sentences were backdated to 22 October 1998 when the applicant and Haworth were first charged with the wilful murder.

46 The deceased man, Mr Byrne, was aged 36 years when he was stabbed in the chest by the applicant in the street where he lived in Glendower Way, Spearwood. The stab wound was inflicted by a kitchen knife. The knife had cut across the seventh rib on the left hand side of Mr Byrne's chest and penetrated some 21 centimetres through the lung and heart. The track of the wound was upwards, towards Mr Byrne's back and across toward the centre of his body. He died shortly after he was stabbed.

47 At the time of the killing the applicant was in his mid twenties and Haworth was 18 years old.

48 A little earlier in the evening Haworth and another person had entered a property in Glendower Way on which a block of flats stood. Mr Byrne lived in one of these flats. There was an issue in the evidence whether Haworth's companion was his girlfriend or a male person which was the evidence of some others who saw them. Why they entered the property is not clear. It appears Haworth and his companion created some form of disturbance. As they walked away from the units Mr Byrne chased after them. He carried a cricket bat. Haworth's evidence at trial was that Mr Byrne had swung the cricket bat at him with force hitting him on his left elbow causing a great deal of pain. Haworth and his companion then made off. Other persons described Haworth calling back to Mr Byrne words to the effect "We're going to come back and fucking kill you, you bastard".

49 Haworth and his companion ran to the house of a friend in a nearby street. Haworth was one of a group of people which included Ugle who had spent much of the day and the evening at this house. Haworth was distressed by what had occurred. After a short time he set off to return to Glendower Way. Ugle had gone into the kitchen and picked up a kitchen knife. He then accompanied Haworth to Glendower Way. It was Haworth's evidence that on the way he had armed himself with a brick and perhaps later a piece of wood.

50 It was the evidence of Ugle at trial that he had gone with Haworth because he was concerned for Haworth's welfare. Haworth had already been hit by a man armed with a cricket bat and, on Ugle's evidence, Haworth was going back to confront the man again, but unarmed. Ugle said he decided to take the knife as a "scare tactic" just to show the man with the bat that "he had something there" so that the man wouldn't do any harm to Haworth.

51 The applicant Ugle said that he was following Haworth and as he ran into Glendower Way he could see Haworth approach two men, one of whom proved to be Mr Byrne who still held a cricket bat. The applicant said he called out "Why did you hit the boy for?" At this, it was his evidence that, the man with the cricket bat "just bull-rushed me", swinging the cricket bat as he did so.

52 It was the applicant's evidence that he then raised his arm to fend off the cricket bat as it was swung at him. He described the bat hitting his forearm and the side of his temple. As a consequence he said he lost his balance. Then, he said, the man with the bat went to hit him again and he put his hand up again "to push him off". The applicant said he was trying to push the man off with his right arm. He was holding the knife in his right hand. He said he did this "just to defend - just to push him back". It was his evidence that he hit the man in the arm.

53 When asked what he thought would happen if he hadn't hit the man in this way. His answer was "I thought he was going to kill me. Because of the brute force that he hit me first off." He described the second swing with the bat as being aimed at "my head again". It was the applicant's evidence that he had not wanted to fight the man.

54 Having pushed or hit the man in the arm in this way it was the applicant's evidence that he saw that the man was going to use the bat "again for the third time", so he "spun around and took off". Haworth, who said he had been engaged with the fourth man, ran with the applicant. They ran back to their friend's house. There, on the applicant's evidence, he walked straight into the bathroom and washed the knife "because it had blood on it". He then said he put the knife back in the kitchen drawer and he washed his hands in the kitchen.

55 In cross-examination the applicant reiterated that he went to fend off the man who was swinging the cricket bat. The applicant said "Well, I hit him in the arm. I didn't realise that I stabbed him at that time." The applicant's evidence did not disclose when he had first realised there was blood on the knife. He denied he had used the knife to stab the man. It was not suggested by the applicant, however, that he did not realise that he held the knife in his hand as he sought to push off the man with the cricket bat.

56 As mentioned earlier, the knife had in fact cut through some of a rib bone and penetrated Mr Byrne's lung and heart. The medical evidence was that a good deal of force would have been necessary to effect the wound. Mr Byrne collapsed and died within a very short time, not having been able to reach his nearby flat.

57 Ground 9 of the substituted grounds of appeal is primarily relied on. It raises the failure to direct on each of these matters.

58 Before charging the jury, in the course of discussions with the experienced counsel who represented the applicant at the trial, the trial Judge canvassed whether the jury should be directed as to s 23 of the Criminal Code, ie the issues of unwilled act and event occurring by accident. Counsel ventured in submission whether the view was open on the evidence, as a matter of inference, that the applicant was not aware that he had the knife at the time of the stabbing, but counsel did not pursue this after his Honour canvassed the evidence relevant to this issue including the applicant's evidence as to his deliberate decision to carry the knife with him, albeit as a "scare tactic", his evidence that he carried it in his right hand, and the complete absence of any suggestion that he did not realise he had the knife in his hand as he went to push off or hit the deceased with his right hand. Further, counsel specifically disavowed any reliance on accident. The defence case was one of self-defence.

59 In outlining the defence case to the jury in his charge, the trial Judge said that the case for the applicant was that the killing of Mr Byrne was not unlawful because it was done in self-defence, ie it was justified in law. In the alternative, if the killing was unlawful, nevertheless the applicant did not intend to kill Mr Byrne (wilful murder), or to do him grievous bodily harm (murder), so that if the killing was unlawful the appropriate verdict would be guilty of manslaughter.

60 Of course, the position of the other accused Haworth was much more complex in law and fact and much of the charge and, no doubt, the deliberations of the jury, were concerned with the position of Haworth. This appeal, however, concerns only the applicant Ugle.

61 It is contended on appeal that his Honour's charge to the jury was seriously deficient in that he failed to direct as to unwilled act and accident pursuant to s 23 of the Criminal Code and also as to criminal negligence in the use of the knife. It is the contention that by failing to do so the trial has miscarried. The inconsistency between what is now advanced and the position taken by the applicant's then counsel at trial is stark. At trial the strength of the defence case was seen to be self-defence. The evidence for the applicant and the conduct of his case was directed to that issue. The trial Judge charged the jury on the basis of the issues on which the trial had been fought. That approach to the applicant's defence having failed before the jury, there is now a materially different approach attempted on this application for leave to appeal.

62 It is clear, of course, that where an issue is properly raised by the evidence, especially where it is one which may assist the defence, the trial Judge needs to be astute to recognise that issue and to charge the jury about it, even if counsel does not specifically rely on it. An obvious example is an issue which is inconsistent with the primary case of the defence but which is properly raised by the evidence. Provocation may well be such an issue in some trials even though the defence case which is positively advanced is one of self-defence or accident; see for example Van Den Hoek v The Queen [1986] HCA 76; (1986) 161 CLR 158.

63 In this trial the prosecution case was one of a deliberate stabbing by the applicant. The prosecution did not even seek to rely on criminal negligence in the use of the knife. Relevantly, the evidence led at the trial admitted of only three possible views. The first was the applicant's account that, when attacked more than once by the deceased wielding the cricket bat toward his head, he raised his right arm and hand to fend off one of the blows. In doing this pushed or hit the deceased on his arm. While the applicant was then holding the knife in his right hand, he did not consciously use the knife to attack or wound the deceased and was not then aware he had done so. The second view which can be seen to have been reasonably open on the evidence was that, despite his evidence, the applicant when confronted with the deceased wielding the cricket bat had struck out with the knife in defence of his life or against grievous bodily harm. The applicant, of course, denied that he had deliberately used the knife. The third was the view on which the prosecution relied; that the applicant had deliberately attacked Mr Byrne with the knife and was not acting in self-defence at all. On this third view no possible question of unwilled act or accident arises.

64 Insofar as it is now contended that his Honour ought to have directed the jury as to the first limb of s 23 of the Criminal Code, the submission fails to have adequate regard to his Honour's approach to this issue, an approach which, in my respectful view, was designed to ensure that the jury's attention was directed to the real issues in the trial and not distracted by matters which his Honour regarded as of only theoretical relevance on the facts. His Honour said first,

"Ugle told you that he pushed, he fended off. He said at another stage he actually hit the deceased on the arm. He told you that he did not know that he had stabbed him and in fact although you are not told when he realised that there was blood on the knife he told you that he certainly did not know, while he was directly at the scene, that he had stabbed the deceased man.

So you need to consider perhaps, members of the jury, what degree of force did he use, and in particular, what was he thinking at the time? There is a world of difference, isn't there, between actually stabbing at someone with a knife and pushing that person although one is holding a knife. You will probably need to ask yourselves, was it actually a deliberate blow with the knife?"

And then returning to this issue later, his Honour went on to say,

"I suggest to you that your focus will have to be upon the final incident; that is, when the deceased man James Byrne was stabbed. That happened, obviously, fairly quickly and you have heard a good deal of evidence. That is what the case is all about. The main difficulty in this case, I suppose, is that the only direct evidence about what happened at that time is the evidence of the accused man Ugle. No-one else has told you that he or she saw a stabbing.

The version of the accused Ugle is that the fatal wound must have been inflicted when he was trying to defend himself against a life-threatening attack by a man wielding a cricket bat. He told you that that man, clearly the deceased, had bull-rushed him, had hit him once, landing a blow to his arm when he held it up to defend himself, and going so far as to hit the side of his head.

Ugle told you that the man was about to land a second blow aimed at his head and in those circumstances it is put to you on his behalf that Ugle had no choice but to do what he did. He had no choice but to defend himself. What did he do to defend himself? Ugle told you that he pushed the other man, he tried to fend him off, and he told you that as far as he was aware he had hit the other man's arm, so on his version - although it's quite clear that he had the knife in his hand at the time, on his version Ugle did not use the knife as a weapon.

If that were so, you would be entitled to take the view that the force which he used was not likely to cause death or even serious harm and was more than reasonable in the circumstances, so what Ugle was doing was acting lawfully in self-defence. So, members of the jury, if you accept that version you will find that the killing was not unlawful and you will find not only Ugle but also the co-accused, Haworth, not guilty.

Even if you don't accept that version, even if you don't believe Ugle positively, that's not the end of the matter because you will remember the onus of proof in this trial rests upon the crown. It is for the crown to prove the case against each of the accused. Even if you don't necessarily believe Ugle you will not automatically find that the killing was unlawful ..."

65 The applicant's account of the material facts, ie the first possible view of what occurred, was directly put to the jury in this passage of the charge. Leaving aside the issues relating to the burden of proof which are considered later, the effect of his Honour's express direction was that if the jury accepted the applicant's account, or if it was left with a reasonable doubt by it,

" ... You will find that the killing was not unlawful and you will find not only Ugle but also the co-accused, Haworth, not guilty."

What his Honour did, effectively, was to resolve the issue whether or not on the applicant's account his act in using the knife to wound the deceased occurred independently of the exercise of his will in the applicant's favour, by directing the jury to return verdicts of not guilty if they accepted the applicant's account or were left in reasonable doubt by it. It is not the case, therefore, that by failing to direct as to the first limb of s 23 the applicant has lost a chance of an acquittal founded on his own evidence of what occurred. By directing as he did his Honour has given the applicant the full benefit of the first limb of s 23 even though, if it were truly open on the facts, it is not at all clear that the jury would have been persuaded or left with a reasonable doubt that the applicant ought to be excused from criminal responsibility by virtue of it.

66 It is in this context that criminal negligence would have its relevance. Negligence to a criminal degree in the care and or use of a dangerous thing such as a knife is an exception from s 23. Hence, had his Honour directed the jury as to s 23, he would have needed to go on to direct the jury to consider criminal negligence. This is not another basis on which the accused might be excused from criminal responsibility for the death, which is the way the argument for the appellant sought to treat it. Rather, it is another basis on which the applicant might have been convicted even if the use of the knife in the circumstances was an unwilled act within the meaning of the first limb of s 23. The approach taken by his Honour also had the effect, therefore, that it entirely sheltered the applicant from any risk that the jury might have been persuaded, had first they accepted his account or been left with a reasonable doubt as to its veracity, that the applicant was guilty of unlawful killing by virtue of criminal negligence in his handling or use of the knife at the time.

67 The second limb of s 23 excludes from criminal responsibility an event that occurs by accident, ie the consequence of the act of an accused which is not only unintended but unlikely and unforeseen: see Vallance v The Queen [1961] HCA 42; (1961) 108 CLR 56; Mamote-Kulang v The Queen [1964] HCA 21; (1964) 111 CLR 62; The Queen v Falconer (1991) 71 CLR 30 at 38. In this case the event is clearly the death of Mr Byrne.

68 The relevant operation of the second limb of s 23, in the circumstances of this case, turns on whether there was a deliberate blow with a knife, or whether the applicant merely sought to fend off the attack on him with the cricket bat by raising or pushing off or hitting with his hand while holding a knife, but not consciously adverting to that fact. Any direction which sought to deal with this would, in the end, have required the Judge to direct the jury that in order to be satisfied that accident had been excluded they would have to be satisfied that the applicant had deliberately struck the deceased with the knife, rather than merely raising or pushing or hitting out with his hand to fend off the cricket bat or the assailant.

69 The applicant's version of what occurred, ie the first of the three views open on the evidence, provided a clear basis on which the question of accident was raised. His Honour did not direct the jury as to accident. But his Honour's express direction that, if the jury were satisfied or left in reasonable doubt by the applicant's evidence that he was merely fending off the deceased and did not use the knife as a weapon, then it should acquit the applicant and his co-accused, resolved by direction in the applicant's favour, by making irrelevant, any question whether, on the applicant's version, the death was unintended, unlikely or unforeseen.

70 Each of the other two possible views of what occurred that were open on the evidence involved the deliberate use of the knife by the applicant. It is difficult to see that, on either of these possible views, the question was open as a matter of fact that death was unlikely or unforeseen. While it was a live issue on the evidence, and one hotly contested, whether the applicant intended by his use of the knife to kill the deceased or to cause him grievous bodily harm, there was no specific evidence that the applicant did not foresee death or grievous bodily harm from what he did. It was his express evidence that at the time he was in fear of his own life from the attack on him with the cricket bat.

71 Given the express direction to acquit, if the jury accepted the appellant's own version of what occurred or were left in reasonable doubt by it, one can readily see why experienced defence counsel and the trial Judge did not see the need for a direction on accident in respect of the remaining possible factual versions which involved a deliberate use of the knife by the applicant.

72 In this respect it should be noted that not only the applicant but also the co-accused Haworth was represented by very experienced counsel. Haworth had a very close interest, of course, in the proper advancement of the applicant's case, because if the applicant was acquitted it would follow that Haworth must be. Neither defence counsel raised any objection to the omission of accident from his Honour's charge. There is every reason to be cautious, therefore, when it is now advanced that the trial Judge and all counsel quite misjudged the issues that were truly alive on the evidence at the trial (the applicant's version having had the benefit of an express acquittal direction).

73 In my view it is difficult to see that the issue of death occurring by accident was in reality open on the evidence on any possible view of what occurred, other than the appellant's version.

74 If I be wrong about this, however, as identified earlier, any direction as to accident would have required the jury to be directed that in order to be satisfied that accident had been excluded they would have to be satisfied that the applicant had deliberately struck the deceased with the knife rather than merely raising or pushing or hitting out with his hand to fend off the cricket bat and his assailant.

75 Even though his Honour did not direct as to accident, in the course of his direction as to intention his Honour did direct the jury:

"Was it merely a case of his being attacked, trying to defend himself and being concerned only to fend off the second blow that was coming or to push away the man who was attacking him? Did he intend to do more than that?"

His Honour then went on to direct that if the jury were not satisfied of either an intention to kill or an intention to do grievous bodily harm, then, the appropriate verdict would be one of manslaughter (providing they had first reached the view that there had been an unlawful killing).

76 In this direction the factual issue put to the jury by his Honour is precisely the factual issue which the second limb of s 23, accident, would have required the jury to decide. The jury were correctly directed that unless they were satisfied that the applicant actually intended to do more than merely fend off the blow or to push away the man attacking him, and to cause death or grievous bodily harm to Mr Byrne, they could convict only of manslaughter. The verdict returned by the jury was not manslaughter. It was guilty of murder. This verdict necessarily discloses, therefore, that the issue of fact on which any question of accident would turn was decided by the jury adversely to the applicant.

77 It follows that, in the particular circumstances of this case, the verdict of the jury reveals that the applicant did not lose any prospect of an acquittal even if accident ought to have been left to the jury. If the jury had been instructed as to accident, for the reasons given, it can be seen that the jury, nevertheless, would necessarily still have returned a verdict of guilty of murder.

78 In my view, and subject to the other grounds of appeal to which I now turn, even if there was error in the failure by his Honour to leave either or both of the limbs of s 23 to the jury, which is not the view to which I am persuaded, no substantial miscarriage of justice to the applicant resulted from any such omission.

79 The applicant contends by ground 2 of the substituted grounds of appeal that there was an error in law in the direction to the jury in that there was a failure to direct the jury as to the meaning of grievous bodily harm.

80 In this trial grievous bodily harm was relevant to two issues. The offence of murder, in the context of the circumstances of the case against the applicant, was constituted by an unlawful killing with an intention to do Mr Byrne some grievous bodily harm (Code s 279(1)). Secondly, with respect to self-defence, by s 248 of the Code force intended or likely to cause death or grievous bodily harm may not lawfully be used in self-defence unless the nature of the assault is such as to cause reasonable apprehension of death or grievous bodily harm and the person using the force by way of defence believes, on reasonable grounds, that he cannot otherwise preserve himself from death or grievous bodily harm. In such circumstances it is lawful to use any force necessary for defence.

81 When directing the jury as to the meaning of grievous bodily harm the trial Judge said it meant,

" ... Some physical harm which is likely to endanger life or to cause permanent injury to the health of the person harmed."

This is not a complete verbatim reproduction of the definition in s 1 of the Code which is in the following terms:

"The term grievous bodily harm means any bodily injury of such a nature as to endanger, or be likely to endanger life, or to cause, or be likely to cause, permanent injury to health."

It will be apparent that his Honour used the words physical harm rather than bodily injury but I cannot see that, in the context of a stabbing with a knife, this difference could mislead or confuse the jury. Further, his Honour did not spell out the distinctions in the definition between endangering or being likely to endanger life, and causing or being likely to cause permanent injury to health, referring only to harm likely to endanger life or cause permanent injury to health. In theory there could be harm or injury which proved to endanger life or to cause permanent injury to health even though they were not likely consequences of the harm. The present is not such a case. In terms of the offence of murder, relevantly, the jury were concerned whether the stabbing with the knife was intended to cause grievous bodily harm. Ugle could not have suffered an injustice if the jury were satisfied, as directed, that he intended by the use of the knife to cause harm likely to endanger life or to cause permanent injury to health.

82 With respect to self-defence the issue was the nature of the attack on him. It was uncontested on the evidence that Mr Byrne was armed with a cricket bat and earlier had used it with some vigour against Haworth. On that account Mr Byrne two or three times sought to hit him with the bat which, on the applicant's account, was aimed with some ferocity at his head. In the context of an attack using such a weapon with such evident purpose and determination there can, in my view, be no distinction which could favour the applicant between force which endangered his life and force likely to do so, or force which caused permanent injury to health and force likely to do so. The force used did not in fact endanger Ugle's life or cause permanent injury to his health. His Honour therefore confined his direction to those parts of the definition which were relevant to the evidence. The omission of the remainder could not, in my view, have disadvantaged the appellant in his defence.

83 It is also submitted that there was an error in law in that his Honour failed to tell the jury that the assessment of whether the harm was grievous was to be determined without regard to medical intervention. As I understand it, this is advanced in the context of the assault on the applicant by Mr Byrne with the cricket bat. In my view, any such direction would have been irrelevant to the evidence led as to the nature of the assault of which the applicant spoke in his evidence and there is no reason to consider that a direction was called for about medical intervention.

84 By ground 1 it is contended that his Honour, when dealing specifically with self-defence, twice misdirected the jury as to grievous bodily harm. First, the appellant points to a passage in which, after considering the relevant provisions of s 248 of the Code, a direction which he repeated in essence a little later, his Honour then said,

"That's quite a mouthful but probably you will think its no more than commonsense. After all if someone slaps you on the face and looks as if he is going to do it again, you are entitled to defend yourself by using reasonable force to prevent it happening again, but if a man assaults you with murderous intent of course, you are entitled to defend yourself, even to the extent of killing him if there is no other reasonable way in which you can save your life."

The appellant objects that by the reference in this passage to "murderous intent" the jury could have been seriously misled into applying such a high standard when considering the nature of the force used by Mr Byrne when he attacked the applicant with the cricket bat. This submission appears to me to place far too much weight and emphasis on this passage in the charge and to do so without regard to the context. It is clear, in my view, that in this passage his Honour in simple and obvious terms is giving two contrasting examples of the way s 248 of the Code applies in practice. In my view that is the way it would have been understood by the jury and it would have served to help them grasp the practical working of the provision. I am not persuaded that by this example his Honour would have confused the jury or led to them misunderstanding or misapplying the adequate direction which immediately proceeded it and which was repeated a little later as to the more precise operation of s 248.

85 It is further submitted that in another passage his Honour erred by reverting to common law terminology rather than the words of the Code when he said,

" ... If the deceased man hit out at Ugle with the bat, you may well think that he assaulted Ugle even if the bat did not actually hit him and if it were an assault which threatened life or even threatened serious bodily harm to Ugle and if he could not otherwise save himself, then he would be justified in using force against the deceased man even to the extent of killing him if necessary. ..."

It is submitted that by the words "serious bodily harm" his Honour lapsed into the common law and may have misled the jury. In my view, again this seeks to read too much into his Honour's words. It is apparent, in my view, that his Honour was using more everyday language, language which is quite often used in this context, to explain to the jury that Ugle need not have been actually struck a blow by Mr Byrne with the cricket bat, it was enough for the purposes of self-defence if Mr Byrne was threatening or attempting to do so and was in a position to give effect to his threat or to succeed in his attempt. The passage relied on appears in precisely that context in the charge. It follows on directly from a detailed explanation of the nature of an assault, especially that it need not involve the actual hitting or striking of another person. As such, the direction was a pertinent and important one from the point of view of the applicant as the view was well open on his own account that the blow with which he was being threatened at the time of the wounding with the knife was not carried through to the point of an actual hitting or striking of the applicant.

86 After the passage of which complaint is made his Honour went on almost immediately to remind the jury in some detail of the applicant's account, identifying for the jury as he did so particular issues relevant to s 248. In the course of this he came expressly to remind them again of the terms of s 248 and in particular that there must have been a reasonable apprehension of death or grievous bodily harm, following which his Honour posed the questions directly to the jury,

"What was the nature of the attack upon him if the deceased man did attack him? Was it of a nature to cause him death or grievous bodily harm?"

87 In my view, the reference in its context to "... threaten serious bodily harm to Ugle ..." would not have been understood by the jury to introduce a different test or standard, and the specific directions which preceded and followed the words relied for the applicant were adequate to ensure the jury were aware of the correct test or standard.

88 By ground 3 it is contended that the trial Judge erred in his directions as to self-defence by omission. It is argued that the jury should have been directed to the effect that, in assessing Ugle's response to the assault by Mr Byrne with the cricket bat, the jury should bear in mind that a person defending himself cannot weigh precisely the exact action which should be taken to avoid the threat which he reasonably believed he faced at the time. In this respect reliance was placed on observations in Dziduch v R (1990) 47 A Crim R 378 at 380.

89 In Dziduch v R the appellant was tried on a count of malicious wounding with intent to occasion grievous bodily harm. There was a serious issue in that case whether the force used by the accused was proportionate to the threat offered. There the accused had wounded an unarmed victim with a knife. The accused had stolen the victim's motor vehicle but, after a pursuit in another vehicle, the victim had confronted the accused. The victim said "You are coming with me". The accused refused. Tempers flared and the victim landed some punches. The accused drew a knife and the victim suffered a knife wound. Clearly, an issue in that case was the proportionality of the use of a knife against an unarmed assailant. In that context Hunt JA, Enderby and Sharpe JJ concurring, at 380 dealt specifically with the question of proportionality saying,

"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.

The jury should also, of course, be reminded that a person defending himself cannot always weigh precisely the exact action which he should take in order to avoid the threat which he reasonably believed that he faced at the time. They should be directed to approach their task in a broad and practical manner, giving proper weight to the situation in which the accused found himself, with little (if any) opportunity - as the jury have - for calm deliberation or detached reflection."

90 In the circumstances of that particular case and, indeed, more generally, such a direction will often be desirable but I do not understand Dziduch v R to be authority for the view that such a direction must always been given where self-defence is an issue.. Indeed in Dziduch v R Hunt JA expressly relied on Zecevic v Director of Public Prosecutions (Vict) [1987] HCA 26; (1987) 162 CLR 645 at 661 - 663 where Wilson, Dawson and Toohey JJ said at 661,

" ... There is wisdom in the observation of the Privy Council in Palmer (Palmer v The Queen [1970] UKPC 2; [1971] AC 814) that an explanation of the law of self defence requires no set words or formula. The question we ask in the end is quite simple. It is whether the accused believed upon reasonable grounds that it was necessary in self defence to do what he did."

"There is no rule which dictates the use which the jury must make of the evidence and the ultimate question is for it alone. The trial Judge should also offer such assistance by way of comment as is called for in the particular case. No doubt it will often also be desirable to remind the jury in the context of self defence 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." (emphasis added)

91 Given these observations it is not the position that a charge to the effect contended for had to be given. The question is what assistance to the jury was appropriate given the evidence and the live issues in this case. Proportionality was not a live issue. It was not the Crown case against the applicant that he used excessive force in self defence. It was the Crown case that Ugle was always the aggressor, that he set out with Haworth to revenge the use of the cricket bat on Haworth and for this reason he had armed himself with the knife and deliberately used it to attack Mr Byrne. It was the prosecution case that the applicant's account in evidence was not true; that he was not defending himself but attacking Mr Byrne. The applicant was not cross-examined on the basis that he had used more force than the circumstances justified but to establish the quite different proposition that he had attacked Mr Byrne, not defended himself. Hence, in my view, in the context of this trial a direction of the type contended for has not been shown to be necessary.

92 The absence of this same form of direction is raised again by ground 6 which contends that the trial Judge erred in law when he directed the jury as to the requirement of s 248 that the offender believe on reasonable grounds that he cannot otherwise preserve himself from death or grievous bodily harm. His Honour posed for the jury the question,

" ... If what Ugle says is true in this regard, whether he could nevertheless in the circumstances have saved himself without doing what it seems he did, without stabbing the deceased man. You may think that an obvious way in which he could have saved himself would have been to run off or to keep the deceased man at bay by using the knife as a scare tactic by threatening him with the knife, making it clear that he had it and that the deceased man would be in danger if he persisted with the attack."

93 The two matters specifically raised by his Honour, whether the accused might have run off or used the knife as a scare tactic, were two matters raised by the applicant's own evidence. It was the applicant's explanation for his taking the knife and having it in his hand when Mr Byrne attacked that his intention was to use the knife as a scare tactic to warn Byrne off any repeated attack with the cricket bat of the type experienced earlier by the co-accused Haworth. And it was the applicant's evidence that after fending-off the cricket bat by raising his right hand, he then turned and made off when another blow was threatened.

94 His Honour had identified three issues by way of broad comment on the issue of self defence. These reflected the issues that his Honour regarded as alive on the evidence. The first was to ask whether there was a real and effective threat by the deceased which the applicant believed might cause death or grievous bodily harm. The second was to ask what was the nature of the force the applicant then used. And the third is that quoted above, namely could the applicant have saved himself without stabbing.

95 This third issue is, of course, not one of proportionality. The three issues were posed in the context of a trial in which the prosecution and defence were in contest whether, in truth, the applicant was the aggressor or acting in self defence. The two specific possibilities raised by the trial Judge were those which the applicant in his own evidence had raised. The direction did not suggest, therefore, some alternative possible course which the applicant had failed to consider in the heat of the moment and which he did not specifically raise by his own evidence-in-chief.

96 Given these considerations, this does not appear to me to be a case where a direction of the type contended for was necessary to ensure that the jury adequately considered the application of s 248 of the Code.

97 The same passage in the charge is relied on in support of ground 5. This contends error in law on the part of the Judge in that it is said the effect of the direction was to pose for the jury the issue of retreat as a separate legal issue. What has been said with respect to the last ground is sufficient to indicate the context in which his Honour raised the question of the applicant running-off and the reason in the evidence for him doing so. In my view this was done in the context of the factual exploration of the issue posed by s 248 whether the accused in truth did believe on reasonable grounds that he could not otherwise save himself, to which it is properly relevant, especially in this case where the real issue was whether the applicant was the aggressor and not acting in self-defence. There is no reason, in my view, to think the jury would be led by this passage into error. What has been said is enough to explain why I am not persuaded that his Honour erred in law in the manner contended.

98 By ground 4 it is argued that the effect of two short phrases in his Honour's charge on self defence were likely to lead the jury into reversing the burden of proof.

99 The first of these phrases occurred in the context that his Honour was reminding the jury of the evidence of the applicant and his co-accused, Haworth. Having canvassed how and why, in accordance with the applicant's evidence and that of Haworth, he came to be in Glendower Street with Haworth and to confront the deceased, his Honour then reminded the jury of the applicant's evidence how he came to raise his right hand to fend off Mr Byrne as he attacked him with the cricket bat. His Honour then said,

"Just pausing there, you might find it helpful to think about that and ask yourselves, was Ugle being assaulted? Are you satisfied on the evidence that the deceased man was attacking him? Of course, if you accept Ugle's version, clearly there was this attack."

A little later, at the conclusion of this summary of the evidence of the applicant and Haworth, there was the passage in the charge which has been referred to earlier in which his Honour said,

" ... If what Ugle says is true in this regard ..."

It is contended that these directions could have led the jury to think that it was a requirement that they accept the applicant's version before they could find that Mr Byrne had first assaulted the applicant. It is objected that this fails to have due regard to the burden of proof.

100 The pattern of direction which his Honour chose to follow was one which did not, at every possible point, incorporate the question of reasonable doubt as to the evidence of the applicant and the co-accused into his direction. Instead, his Honour gave a clear general direction as to the burden at the outset and then at the conclusion of each material stage of his direction his Honour reminded the jury of the effect of the burden of proof on the matter as to which he had just given directions. Immediately after canvassing the evidence of the applicant and Haworth as to self defence, ie between the two phrases now relied on, his Honour expressly referred to the burden of proof concluding by saying that if the jury were left in reasonable doubt as to whether or not it was a case of lawful self defence they must give the benefit of that doubt to the accused in which event they would find the killing not unlawful and the appropriate verdict, not only in relation to Ugle but also Haworth, would be not guilty.

101 Further, later in the charge his Honour, by way of revision, reminded the jury again of the essential evidence of the applicant as to self-defence and he then again immediately reminded the jury of the burden of proof commencing his comments with the words,

"Even if you don't accept that version, even if you don't believe Ugle positively, that is not the end of the matter because you will remember the onus of proof in this trial rests upon the Crown. It is for the Crown to prove the case against each of the accused. Even if you don't necessarily believe Ugle you will not automatically find that the killing was unlawful. ..."

102 While the words used each time his Honour reminded the jury of the burden of proof may not, in isolation, have been sufficient as a complete direction as to the burden of proof they were not intended as such. They were intended merely to remind the jury after his Honour had dealt with an issue in terms which depended on a positive finding of fact in favour of the applicant that, by virtue of the burden of proof, if the jury were left with a reasonable doubt about that finding of fact the applicant should have the benefit of the doubt. In view of the positive directions as to the burden of proof I am not persuaded that the two phrases relied on give rise to any real reason for concern that the jury may have been misled by them into any misunderstanding that they could only find for the applicant on the issue of self defence if they positively believed his evidence.

103 Ground 7 contends that there was error of law in that his Honour directed the jury in a passage quoted more extensively earlier in these reasons "... You will probably need to ask yourselves was it actually a deliberate blow with the knife". The objection is that a direction as to self defence should assume that each of the ingredients of the offence charged have been made out.

104 The context in which this was said is material, however, as this passage in his Honour's charge was with respect to the fundamental factual issue whether the applicant used the knife to defend himself from attack or as an aggressor. Having just reminded the jury that no witnesses had described a stabbing blow by the applicant with the knife, and of the applicant's account of merely pushing or fending off Mr Byrne, his Honour went on to offer the comment,

"There's a world of difference, isn't there, between actually stabbing at someone with a knife and pushing that person although one is holding a knife."

There then followed immediately the sentence now relied on. This was, in my view, an entirely appropriate and sensible factual issue to identify for the jury's consideration, given the evidence and the cases for the prosecution and the defence which the jury was called on to evaluate.

105 When the passage is read in context I am not persuaded that any error is revealed or that the jury would have been led into error by it.

106 Ground 8 objects, in essence, that his Honour failed to remind the jury that the evidence of a witness Mr Sterc might have offered support for the evidence of the applicant. Sterc said that the victim had said to him that evening "Oh well, I got one of them".

107 His Honour spent some time in canvassing aspects of the evidence of Mr Sterc in particular because counsel had given some attention to parts of it. A problem with the evidence of Mr Sterc is that it apparently failed to differentiate between the earlier episode concerning Mr Haworth and the later episode when the applicant had the knife. The jury were well reminded of this difficulty. Because of this difficulty the potential force of it for the purpose now relied on is compromised. The statement may well, indeed is far more likely to, have been a reference to the blow with the bat to Mr Haworth's elbow. In any event, it has not been shown that the failure by his Honour, as opposed to counsel, to mention this piece of the evidence is likely to have had any effect on the jury's material factual findings. In this context, the lack of concern or specific objection by defence counsel at the conclusion of his Honour's charge as to the failure of his Honour to mention this particular part of Mr Sterc's evidence tells, with some force, against elevating this somewhat proliferal and ambiguous piece of evidence into a critical matter of fact which it was necessary to include in his Honour's direction.

108 For these reasons, in my respectful view, it has not been shown that his Honour's directions to the jury involved any error of law or omission which told against the applicant. If there was error in his failure to direct on the possible application of unwilled act, accident and criminal negligence, which is not the view I have reached, the effect of his Honour's charge was to favour the applicant and disadvantage the prosecution. Further, for the reasons given, in this particular case, even if there was any such error, no substantial miscarriage of justice has occurred.

109 I would grant the applicant leave to appeal, but I would dismiss the appeal.

110 WHEELER J: I have had the advantage of reading the reasons of Parker J. I agree with his Honour's reasons and have nothing further to add.

Ugle v The Queen [2000] WASCA 381

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Judgment (174 paragraphs)

Ugle v The Queen [2000] WASCA 381 (5 December 2000)

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Cases Cited (16)