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- Notable Unreported Decision
SUPREME COURT OF QUEENSLAND
R v Saxon  QCA 85
SAXON, Jamie Douglas
CA No 292 of 2019
SC No 756 of 2019
Court of Appeal
Appeal against Conviction
Supreme Court at Brisbane – Date of Conviction: 31 October 2019 (Lyons SJA)
DELIVERED EX TEMPORE ON:
27 April 2020
27 April 2020
Sofronoff P and Boddice and Davis JJ
CRIMINAL LAW – APPEAL AND NEW TRIAL – MISCARRIAGE OF JUSTICE – PARTICULAR CIRCUMSTANCES AMOUNTING TO MISCARRIAGE – MISDIRECTION OR NON-DIRECTION – MISDIRECTION – where the appellant was found guilty by a jury of one count of murder – where the appellant appeals the conviction on the ground that a miscarriage of justice was caused when the jury was directed to consider whether the force used in self-defence was necessary – where self-defence was raised on the evidence – where there was error in a document given to the jury explaining the elements of self-defence – whether the error caused the trial to miscarry because there is a real danger that the jury regarded the objective necessity for the use of the force as an element to the defence of self-defence
CRIMINAL LAW – APPEAL AND NEW TRIAL – MISCARRIAGE OF JUSTICE – PARTICULAR CIRCUMSTANCES AMOUNTING TO MISCARRIAGE – IMPROPER ADMISSION OR REJECTION OF EVIDENCE – where the appellant was found guilty by a jury of one count of murder – where the appellant appeals the conviction on the ground that a miscarriage of justice was occasioned by the elicitation and use of inadmissible opinion evidence – where a witness gave evidence about the necessity of the force used by the appellant – where self-defence was raised on the evidence – whether the evidence could be used in relation to the objective necessity of the acts done in defence – whether admission of the inadmissible opinion evidence has contributed to the miscarriage
Criminal Code (Qld), s 245, s 271, s 291, s 293, s 302
Dhanhoa v The Queen (2003) 217 CLR 1;  HCA 40, cited
Marwey v The Queen (1977) 138 CLR 630;  HCA 68, followed
R v Gray (1998) 98 A Crim R 589;  QCA 41, followed
R v Muratovic  Qd R 15, followed
R v Vidler (2000) 110 A Crim R 77;  QCA 63, cited
R v Wilmot (2006) 165 A Crim R 14;  QCA 91, cited
M J Copley QC for the appellant
M A Green for the respondent
Legal Aid Queensland for the appellant
Director of Public Prosecutions (Queensland) for the respondent
- DAVIS J: The appellant appealed against his conviction for murder. This morning, the Court made the following orders: firstly, allow the appeal; secondly, quash the conviction; thirdly, order a retrial. I joined in the making of those orders for the reasons which follow.
- The indictment charged one count, namely, that on the sixth day of October 2017 at Brisbane in the State of Queensland, Jamie Saxon murdered Dominik Helmut Schulze. There are two grounds of appeal, and, as will appear, both points are narrow ones. It is, therefore, unnecessary to descend into a detailed analysis of the evidence. A broad description will suffice.
- On 6 October 2017, the appellant was in a car driven by his girlfriend, a Ms Wilkes. They were travelling through Milton. The deceased, Mr Schulze, and his friend, Mr Mennebroecker, had been drinking and were walking in Milton. Mr Schulze stood in the road, dropped his pants and fondled his genitals. Ms Wilkes accidentally knocked him over in her car. Mr Schulze was not seriously injured in the traffic incident, but, naturally, Ms Wilkes stopped the car. There was an altercation by the side of the road. During the altercation, the appellant stabbed Mr Schulze four times with a fishing knife that was in the car. He died from the injuries sustained from being stabbed.
- The principal witnesses to this event, apart from Mr Schulze, were the appellant, Ms Wilkes, Mr Mennebroecker and Mr Rigby, who lived adjacent to the spot where the altercation occurred. There were other witnesses who heard or saw some limited but relevant things, namely, Claire Lynch, Kate McLiskey and Angela Elbahy. All those people apart from the appellant gave evidence at the trial. Understandably, there were some inconsistencies between the accounts of the various witnesses.
- However, it is clear at least that: firstly, the deceased was a tall man, in fact, close to two metres tall, and, therefore, much bigger than the appellant. Secondly, Mr Schulze threw punches at the appellant. Thirdly, Mr Schulze was aggressive and clearly intoxicated. And, fourthly, Mr Schulze had a companion, Mr Mennebroecker, and in that sense, the appellant was outnumbered. Although the appellant did not give evidence at his trial, he participated in an electronically recorded interview with police. This was played to the jury as exhibit 16.
- There, this was said:
“SAXON: It wasn’t my intention to kill this bloke. No intention at all, but you’ve got a good point.
SGT COOPER: Jamie, we asked you earlier on um ah, I guess what level of danger that you thought you were in?
SAXON: I was scared. Terrified. Not terrified, like. Fuck is he coming to fight me?
SGT COOPER: Mmhmm.
SAXON: I’m going to help him.
SGT COOPER: Alright. What um, well if you hadn’t have stabbed him as you say -, what do you think would have happened?
SAXON: They would have kicked the shit out of me, I don’t know why else would have happened.
SGT COOPER: How badly do you think you know? At the time, how badly do you think you would have been hurt?
SAXON: A very bruised up face.
SGT COOPER: Yep. Anything else?
SAXON: I don t know.
SGT COOPER: Okay.
SAXON: They wanted to take the chance to fight me.
SGT COOPER: Okay.
SAXON: Was my impression.
SGT COOPER: So is that what you were thinking at the time?
SAXON: I was thinking they were both coming to fight me.
SGT COOPER: Mmhmm. Alright.
SAXON: One verse two, oh yeah.
SGT COOPER: Do you think it’s reasonable um, if you thought that you were going to get bruises to your face--
SGT COOPER: No listen up. We’re onto a new question.
SAXON: Sorry, I’m just
SGT COOPER: Do you think it’s, do you think it’s reasonable to stab someone to stop them from punching them.
SAXON: I think anything’s reasonable to defend myself and my missus.
SGT COOPER: Do you think anything’s reasonable--
SAXON: Or any of my family members. I’m sorry that might sound as cold as it does, I don’t know what kind of, I don’t know what it’s supposed to sound like, I don’t even know what youse are bloody thinking of me right now. I’m not a fucking mean bloke. I sit at home and do nothing unless I’ve got a job to go to.”
- The fairness of some of this questioning can be doubted. The appellant told police that he was terrified and that he thought the deceased and his friend would “kick the shit” out of him. When asked what type of injuries he anticipated, he offered “a bruised face” and that he did not know what else they may do, but they were taking the “chance to fight [him]”.
- The police officers conducting the interview then concentrated on the example of potential injuries offered by the appellant, namely, bruises to the face, ignored his other expressed concerns and then asked whether the potential for a bruised face warranted the appellant stabbing Mr Schulze. A sensible interpretation of that passage in the interview was that the appellant was telling police that he and Ms Wilkes were confronted with two aggressive males who seemed intent on attacking him, and he feared that he would be severely beaten. Self-defence was squarely raised.
- Turning, then, to the issues in the trial, there are four elements to the offence of murder: Criminal Code, section 302.
- That the deceased was dead was not in issue. That fact was the subject of a formal admission by the appellant. That the appellant killed the deceased was also not in issue. To kill, a person must do an act which is a substantial or significant cause of the death: Code, section 293. Here, the act was stabbing, and the uncontested medical evidence was that the wounds inflicted by the stabbing caused the death.
- The third element is that the killing was unlawful in that the killing was not authorised, justified or excused by law: Code, section 291. This was the real issue in the trial, and I shall return to it.
- The fourth and final element is that of intention. To prove murder, the Crown must prove that the appellant intended at the time he stabbed the deceased to cause his death or at least to cause him grievous bodily harm: Code, section 302(1)(a). Intention was in issue. However, it was clearly open to the jury to conclude that the intention behind four stabs to the torso of the deceased was at least to do him grievous bodily harm.
- As already observed, the real issue in the case was whether the Crown could prove that the killing was unlawful, and that issue raised self-defence. Provocation was also raised, but it was unnecessary to consider that on this appeal. There are several defences created by the Code based on the notion of an accused’s entitlement to defend either himself or another from physical injury. Here, the relevant provisions are section 271(1) and 271(2), which concern self-defence against an unprovoked assault. Both were put to the jury.
- Sections 271(1) and 271(2) provide as follows:
“271 Self-defence against unprovoked assault
- (1)When a person is unlawfully assaulted, and has not provoked the assault, it is lawful for the person to use such force to the assailant as is reasonably necessary to make effectual defence against the assault, if the force used is not intended, and is not such as is likely, to cause death or grievous bodily harm.
- (2)If the nature of the assault is such as to cause reasonable apprehension of death or grievous bodily harm, and the person using force by way of defence believes, on reasonable grounds, that the person can not otherwise preserve the person defended from death or grievous bodily harm, it is lawful for the person to use any such force to the assailant as is necessary for defence, even though such force may cause death or grievous bodily harm.”
- Section 271(1) authorises, in certain circumstances, force which “is not intended, and is not such as is likely, to cause death or grievous bodily harm”. Section 271(2) authorises lethal force but in different circumstances to those identified in section 271(1).
- As already observed, both species of self-defence were left for the jury’s consideration. However, given that the force used by the appellant was not only lethal but clearly likely to be lethal, the real issue for the jury was section 271(2).
- It has been clear since R v Muratovic  Qd R 15 at 19 and Marwey v The Queen (1977) 138 CLR 630 at 637 that there are four, not five, elements to the defence.
- Assuming an unlawful assault upon the person who made defence, and that is element 1, and assuming a lack of provocation by the person who made defence, and that is element 2, the two remaining elements are:
- the nature of the assault must have been such to cause reasonable apprehension of death or grievous bodily harm to the person who made defence; and
- the person who made defence must have believed on reasonable grounds that he could not otherwise preserve himself or another person defended from death or grievous bodily harm.
- Because the onus of proof of unlawfulness of the killing is upon the Crown, the Crown must disprove beyond reasonable doubt at least one of the four elements.
- It is not an element of the defence of self-defence created by section 271(2) that the force used was objectively necessary to make defence. See R v Muratovic  Qd R 15 at 19 and Marwey v The Queen (1977) 138 CLR 630 at 637. Therefore, a direction to the effect that the Crown will disprove self-defence by proving that the force was objectively unnecessary is a misdirection. See R v Gray (1998) 98 A Crim R 589, R v Vidler (2000) 110 A Crim R 77 and R v Wilmot (2006) 165 A Crim R 14.
- I turn now to the grounds of appeal. By amendment to the notice of appeal, there were two grounds: firstly, a miscarriage of justice was caused when the jury was directed to consider whether the force used in self-defence was necessary; secondly, a miscarriage of justice was occasioned by the elicitation of and use of inadmissible opinion evidence.
- It is convenient, firstly, to mention the evidence relevant to ground 2. It came during the evidence-in-chief of Ms Wilkes, who was called by the Crown. Ms Wilkes explained what she saw of the altercation, and then the Crown Prosecutor asked:
“Right. Did you see anything that made it appear that it was necessary for [the appellant] to use the knife?”
And the answer was:
I shall explain the significance of that answer later.
- Ground 1 arises in this way. The learned trial judge delivered to the jury a document for their assistance. The part which concerns self-defence is as follows:
“In relation to self-defence in s 271(2):
- (i)There must have been an unlawful assault on Mr Saxon by Mr Schulze.
- (ii)Mr Saxon must not have provoked that assault. “Provocation” means any wrongful act or insult of such a nature as to be likely, when done to an ordinary person, to deprive him of the power of self control, and to induce him to assault the person by whom the act or insult is done or offered.
- (iii)The nature of the assault must have been such as to cause reasonable apprehension of death or GBH by Mr Saxon.
- (iv)Mr Saxon must have believed on reasonable grounds the he could not otherwise preserve himself or another person defended from death or GBH?
- (v)The force used by Mr Saxon must be the force which was necessary for defence of himself or another even though such force may cause death or GBH?
Remember in relation to all of the above questions proof is always beyond reasonable doubt and the onus of proof is on the prosecution.
The prosecution will exclude the provisions of Section 271(2) if it disproves beyond reasonable doubt any one of (i), (ii), (iii), (iv) or (v) above.
“245 Definition of assault
A person who strikes, touches, or moves, or otherwise applies force of any kind to, the person of another, either directly or indirectly, without the other person’s consent, or with the other person’s consent if the consent is obtained by fraud, or who by any bodily act or gesture attempts or threatens to apply force of any kind to the person of another without the other person’s consent, under such circumstances that the person making the attempt or threat has actually or apparently a present ability to effect the person’s purpose, is said to assault that other person, and the act is called an assault.”
To exclude this defence, the prosecution must prove beyond reasonable doubt that:
- (1)Mr Saxon was not unlawfully assaulted by Mr Schulze OR
- (2)Mr Saxon gave provocation to Mr Schulze for the assault OR
- (3)That the nature of the assault was not such as to cause reasonable apprehension of death or grievous bodily harm OR
- (4)That Mr Saxon did not actually believe on reasonable grounds that he could not otherwise save himself from death or grievous bodily harm.
Remember in relation to the above question the standard of proof is beyond a reasonable doubt and the onus of proof is on the prosecution.” (emphasis in original)
- After that passage, there appeared in the jury document the full text of section 271 of the Code.
- The jury document contains an error. Contrary to Marwey and the cases that follow it, item (v) imports as an element of self-defence the objective necessity to use the force which was used in order to make defence. Her Honour summed up self-defence to the jury. The summing up did not contain the error. Her Honour said:
“The critical question is whether Mr Saxon believed on reasonable grounds that the force used was necessary for defence. The important issue is the state of mind or belief of Mr Saxon. The question is whether the prosecution has proved beyond reasonable doubt that Mr Saxon did not actually believe on reasonable grounds that it was necessary to do what he did to save himself or Jessica from death or grievous bodily harm.
Mr Saxon does not have to prove his response was reasonable. The prosecution must satisfy you that Mr Saxon did not actually believe, on reasonable grounds, that he had to do what he did to save himself from being killed or from a very serious injury, or Ms Wilkes from a very serious injury. You will need to assess, looking at the circumstances of the case, the level of physical menace which you think that Mr Schulze was actually presenting before the fatal force was used by Mr Saxon. Remember that a person defending himself cannot be expected to weigh precisely the amount of defensive action which is necessary. Instinctive reaction and quick judgment may be essential, and you should not judge the actions of Mr Saxon as if he had the benefit of safety and leisurely consideration.”
- Because there was no application by either counsel at the trial to correct the jury document, it was common ground that the appellant must establish a miscarriage of justice and that, in the context of this case, what must be shown is that the appellant has lost a reasonable chance of acquittal by the error. See Dhanhoa v The Queen (2003) 217 CLR 1 at paragraph 49.
- At least on the written outlines, the status of the jury document was open to some debate. In the Crown’s written outline, this was submitted:
“6. The document subject of this ground of appeal was given to the jury as a suggestion on how to approach the issues – they were advised they did not have to follow it, but it was a “logical way of working through the issues”. The trial Judge then proceeded to work through the document in giving directions to the jury.”
- That submission refers, clearly enough, to this passage in the summing up:
“As I said to you at the beginning of my summing up, there is a repetition of concepts. In part one, part two and part three, you will hear the same thing, but it does assist in your understanding. So I am now going to ask the bailiff to hand out a document, which is a suggestion about the way in which you might like to look at the issues. You do not have to follow it, but it is a way that is a logical way of working through the issues. Now, I will mark that with the letter F for identification, and I will let you just have a look at it.”
- I have not set out the whole of the jury document but only that part which is directly relevant to section 271. The jury document invites the jury to reason by considering a number of questions in a logical order. Her Honour directed the jury that they did not have to reason along the particular pathway suggested by her Honour. However, the jury would not have understood that they could ignore the legal principles in the document. The jury document was intended to be used as a reminder of the legal principles explained in the summing up.
- During the hearing of the appeal, Mr Green of counsel, who appeared for the Crown, made a number of appropriate concessions. They were, firstly, the jury document contained an error; secondly, self-defence under section 271(2) was squarely raised on the evidence; thirdly, unless the court could be satisfied that the error could not mislead the jury into understanding that they could exclude the defence by finding beyond reasonable doubt that the stabbing was not objectively necessary for the appellant to make defence, then the appeal must be allowed.
- Mr Green submitted that the summing up correctly stated the legal principles to be applied by the jury. I accept that. He then submitted that there was no error in that part of the jury document headed “To exclude this defence, the prosecution must prove beyond reasonable doubt that”. I accept that. What followed under that heading was a description of the four elements of self-defence consistently with the principles in Marwey. Mr Green then submitted that having regard to her Honour’s summing up to the jury and to the jury document as a whole, there was no danger that the jury would have understood that objective necessity of the acts done in self-defence was a consideration for them.
- I reject the Crown’s submission and find that there has been a miscarriage of justice. It is true that the jury document correctly identifies four facts, disproof of any one of which excludes the defence. However, earlier in the document, five elements of self-defence are identified, including the wrongly included element. Then the jury document refers to the onus of proof, and then this appears:
“The prosecution will exclude the provisions of Section 271(2) if it disproves beyond reasonable doubt that any one of (i), (ii), (iii), (iv) or (v) above.” (emphasis in original)
- As already observed, the text of section 271 appears in the jury document. Section 271(2) contains the words:
“It is lawful for the person to use any such force to the assailant as is necessary for defence.”
- On its face, section 271(2) raises the notion of the force being “necessary for defence”, and it is only with the benefit of the judgment of Chief Justice Barwick in Marwey that one gains an understanding that objective necessity is not an element of the offence under section 271(2).
- Although the complaint referred to in ground 2 was made as a separate and distinct ground of appeal, the two grounds are inextricably bound up together.
- Mr Copley QC, who appeared for the appellant, submitted in his written outline that the answer given to the question which is the subject of appeal ground 2 introduces inadmissible opinion evidence. I agree. Importantly, though, the answer provides evidence of Ms Wilkes’ opinion as to the lack of necessity of the force used by the appellant. Ms Wilkes also gave evidence that when the appellant went to get the knife from the car, she implored him not to. The Crown Prosecutor said this in his opening address about that evidence:
“At one point, she sees Jamie go to the car, get a knife that she knew was in the Mazda – it was a knife used for fishing – and she says:
Jamie. No. No. No. Jamie. Don’t. Don’t. Don’t.
Matter for you to decide whether the effect of her evidence is that Saxon’s actions were appropriate in the circumstances.”
- The Crown Prosecutor also referred to that evidence in his final address to the jury. He said:
“She says there’s pushing from the – from Mennebroecker – the other man – but she’s not concerned about it. At no stage does Schulze go towards her to strangle her. Has her hands out. No one strangles her; no one goes to do that. Now, the accused puts great [indistinct] in her. “I was defending her. I got the knife for that reason.” That’s not true. If anyone was going to say that was true, it would be Jessica Wilkes, and she denies it.
So the basic reason that the accused gives for getting the knife is not so. Jessica Wilkes had no reason to lie about that, no reason to downplay it. And what does Kate McLiskey say that she does? She’s screaming out, “Don’t, Jamie. Don’t, Jamie. Jamie, no.” That’s her response. One thing – another thing that comes from her evidence is that when she is aware that he goes to get the knife, she is away. She’s not with Schulze; she’s further away. And she says that Saxon goes to the back of the car where Schulze is, as opposed to going towards her, which was towards the front of the other on the other side to protect her.”
- That evidence of Ms Wilkes may be relevant but only for a limited purpose and certainly not in relation to the objective necessity of the acts done in defence of Mr Schulze’s attack. However, it could have been understood by the jury to be relevant to the false issue of the objective necessity of the acts done in self-defence. There was no direction asked for nor given as to how that evidence could or could not be used. There is also the police interview, containing the passage that I have set out earlier. That contains an implied assertion by the police that the stabbing was not a reasonable or necessary response to Mr Schulze’s attack.
- In my view, despite the learned trial judge’s careful and thorough summing up, the error in the jury document caused the trial to miscarry because there is a real danger that the jury regarded the objective necessity for the use of the force as an element of the defence of self-defence.
- For the reasons I have explained, ground 2 was also made out, and the admission of the inadmissible opinion evidence has contributed to the miscarriage.
- SOFRONOFF P: I agree.
- BODDICE J: I agree.
Appeal Record Book (“ARB”), pages 462-463.
ARB, page 195; transcript of trial, 24 October 2019, page 26.
ARB, pages 469-470.
ARB, page 87, lines 1-17; transcript of summing up, 30 October 2019, page 8.
ARB, page 81, lines 18-24; transcript of summing up, 30 October 2019, page 14.
ARB, page 469.
ARB, page 19, lines 39-40; transcript of opening addresses, 23 October 2019, page 9.
ARB, page 38, lines 26-31; transcript of closing addresses, 29 October 2019, page 13.
- Published Case Name:
R v Saxon
- Shortened Case Name:
R v Saxon
 QCA 85
Sofronoff P, Boddice J, Davis J
27 Apr 2019
- White Star Case: