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R v Dayney

 

[2020] QCA 264

SUPREME COURT OF QUEENSLAND

CITATION:

R v Dayney [2020] QCA 264

PARTIES:

R

v

DAYNEY, Mark Vincent

(appellant)

FILE NO/S:

CA No 107 of 2018

SC No 882 of 2017

DIVISION:

Court of Appeal

PROCEEDING:

Appeal against Conviction

ORIGINATING COURT:

Supreme Court at Brisbane – Date of Conviction: 1 May 2018 (Douglas J)

DELIVERED ON:

1 December 2020

DELIVERED AT:

Brisbane

HEARING DATE:

24 August 2020

JUDGES:

Sofronoff P and Fraser and McMurdo JJA

ORDERS:

  1. Appeal allowed.
  2. Set aside the conviction on count 2 on the indictment.
  3. Re-trial ordered.

CATCHWORDS:

CRIMINAL LAW – APPEAL AND NEW TRIAL – GENERAL PRINCIPLES – MISCARRIAGE OF JUSTICE – where the appellant was convicted by a jury after a trial of one count of murder – where the appellant and his partner planned to steal drugs and money from the deceased’s home – where the deceased was the appellant’s partner’s former lover – where the appellant’s partner was contacted by the deceased for her sexual services as a sex worker, for which she used a pseudonym, and the deceased was unaware that he had contacted his former lover – where the appellant and his partner’s plan involved the appellant’s partner “distracting” the deceased with her sexual services while the appellant would covertly enter the home and steal from the deceased – where their plan immediately went askew – where the appellant went into the deceased’s home to see that his partner and the deceased were sitting on the couch smoking methylamphetamine – where the appellant appeared in the same room as them dressed in black like a burglar should be dressed and he was masked – where there was a violent struggle between the appellant and the deceased – where the appellant beat the deceased with a baseball bat, which broke in two, and a tennis racket, the head of which broke – where the fatal blow was a blow across the face which rendered the deceased unconscious, fractured bones which obstructed his airway and stopped his breath – where the Crown case at trial alleged that the appellant had launched a savage unprovoked attack against an unarmed man using two weapons in succession intending to kill him – where the appellant in his evidence said that the deceased had produced a silver pistol from between his legs when the appellant entered the home – where his defence counsel submitted to the learned trial judge that the jury should be directed about the potential applicability of defences under ss 271 and 272 of the Criminal Code – where the learned trial judge declined to put s 271 before the jury but gave directions about the application of s 272 – where the appellant now appeals on two grounds, firstly, that the learned trial judge erred in refusing to leave for the jury’s consideration self-defence under s 271 of the Code and, secondly, that the learned trial judge misdirected the jury on the application of s 272(1) of the Code – whether the jury was misdirected – whether a miscarriage of justice has occurred

Criminal Code (Qld), s 267, s 268, s 271, s 272, s 668E

GBF v The Queen [2020] HCA 40, cited

Kalbasi v Western Australia (2018) 264 CLR 62; [2018] HCA 7, cited

R v Johnson [1964] Qd R 1, cited

R v Keith [1934] St R Qd 155, cited

R v Lacey; Ex parte Attorney-General (Qld) (2009) 197 A Crim R 399; [2009] QCA 274, cited

R v Muratovic [1967] Qd R 15, considered

R v Wilmot [2006] QCA 91, considered

Randle v The Queen (1995) 15 WAR 26, considered

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

COUNSEL:

D P Jones for the appellant

J A Wooldridge for the respondent

SOLICITORS:

MacDonald Law for the appellant

Director of Public Prosecutions (Queensland) for the respondent

  1. [1]
    SOFRONOFF P:  The appellant was convicted of murder.  He now appeals against his conviction on two grounds:
    1. (a)
      That the learned trial judge erred in refusing to leave for the jury’s consideration self-defence under s 271 of the Criminal Code (Qld); and
    2. (b)
      That the learned trial judge misdirected the jury on the application of s 272(1) of the Criminal Code.
  2. [2]
    The Crown case relied principally upon the evidence of Ms Lorang-Goubran who was, at the time, in relationship with the appellant.  Both she and the appellant were methamphetamine addicts.  The appellant was unemployed and they both relied upon Ms Lorang-Goubran’s income as a sex worker to live on and for ordinary expenses and, more importantly for them, to buy the drugs they needed.  On the night of the murder alleged by the Crown, she and the appellant were short of money.  Ms Lorang-Goubran’s intended client for that night had reneged and she went to bed.  The appellant woke her angrily, showing her that somebody had contacted her on her phone.  This person was the deceased, Mr Spencer.  Ms Lorang-Goubran advertised her sexual services on the internet under a pseudonym.  He was trying to engage her sexual services, not knowing that she was his former lover with whom he had once had an affair.  The appellant knew about this and he was jealous.  The appellant said, “Is this that Zeb cunt?”  Ms Lorang-Goubran admitted that “Zeb” was Mr Spencer’s nickname.
  3. [3]
    Ms Lorang-Goubran had told the appellant that Mr Spencer dealt in drugs, that he always had drugs and money on his premises and that he also kept firearms.  The appellant encouraged her to accept Mr Spencer’s invitation and while she distracted him, he would enter his home and then find and steal Mr Spencer’s drugs.  Ms Lorang-Goubran made the necessary appointment and, together with the appellant, she drove to Mr Spencer’s house.  The plan immediately went askew.
  4. [4]
    Ms Lorang-Goubran went into the house where Mr Spencer greeted her in a friendly way.  They sat together on his couch cuddling, and Mr Spencer produced a pipe to smoke methylamphetamine instead of the planned “distraction”, being Ms Lorang-Goubran’s sexual services in another part of the deceased’s home.  Instead of the appellant sneaking into the house unobserved, he suddenly appeared in the same room as Mr Spencer and Ms Lorang-Goubran.  He was dressed in black like a burglar should be dressed and he was masked.  Ms Lorang-Goubran did not see him at first but she felt Mr Spencer’s shoulder bump into her “really hard”.  The appellant had hit Mr Spencer, who stood up, and the two men began to wrestle.  Ms Lorang-Goubran said that she ran outside and hid.  She could hear shouting inside the house.  The fight then moved outside.
  5. [5]
    Mr Spencer’s housemate, Mr Daniel McNally, was woken by the noise.  He found the appellant standing over Mr Spencer, who was on the ground.  The appellant was “hitting an object down in front” of him in a “swinging hit, like downwards like that” using both hands. The appellant was using what looked to Mr McNally like a metal pole.  The appellant noticed Mr McNally and said, “it’s not for you” and then used his weapon to deliver another blow to Mr Spencer.
  6. [6]
    Ms Lorang-Goubran owned a small baseball bat that she used to keep in her car.  This was her personal defence weapon which she said that she carried to protect herself on her professional visits.  She had forgotten where it was.  As it later appeared from the appellant’s own evidence, he used this bat to hit Mr Spencer.  The force that he applied was so severe that it broke the bat in two.  Part of the bat, stained with Mr Spencer’s blood along its length, was later found near his body.  So too was a wooden tennis racket that the appellant found and then used to hit Mr Spencer after the bat had given way.  He hit Mr Spencer so hard with the tennis racket that its head broke.
  7. [7]
    Mr McNally had armed himself with a long metal crow bar and he threw this at the appellant.  Mr McNally said that it hit the appellant as he was running away.
  8. [8]
    Ms Lorang-Goubran had told the appellant where Mr Spencer used to hide his drugs.  Now she waited outside until the appellant called out to her.  He gave her a black backpack and told her to put it in the car.  She took it and got into the car and the appellant joined her.  He was carrying a long metal bar, no doubt the one Mr McNally had hurled at him, which he put in the back seat and he instructed Ms Lorang-Goubran to drive off.  A little later the appellant told her to pull over and he got out of the car and threw the metal bar away.  Police later found it.  It was indeed the crow bar that Mr McNally had thrown at the appellant.
  9. [9]
    The appellant’s counsel put to Ms Lorang-Goubran that she had not seen Mr Spencer armed with a gun at any stage during the fight.  She accepted this proposition.
  10. [10]
    A pathologist, Dr Beng Beng Ong, gave evidence.  He said that Mr Spencer had suffered numerous blows from a blunt instrument to his back and chest and nine blows to the top and back of his head.  There were also defensive injuries on his hands and arms.  However, what killed him was a blow across the face which rendered him unconscious, fractured bones which obstructed his airway and stopped his breath.
  11. [11]
    The Crown, therefore, alleged that the appellant had launched a savage unprovoked attack against an unarmed man using two weapons in succession intending to kill him.  The jury could infer from the savagery and persistence of the assault that the appellant intended to kill Mr Spencer or to do him grievous bodily harm.
  12. [12]
    The appellant gave a different story in his evidence.  He said that he knew from Ms Lorang-Goubran that Mr Spencer was a drug dealer who kept guns at his house, including a shotgun and a pistol with an attached silencer.  Ms Lorang-Goubran had told him so.  He said that it was Ms Lorang-Goubran who suggested that they go to Mr Spencer’s home to steal his drugs and money.  She had told the appellant how he could sneak into the house to do this while she distracted Mr Spencer.  He said that he went into the house as planned but he then unexpectedly found himself in the same room as Mr Spencer and Ms Lorang-Goubran.  He said that he saw Mr Spencer sitting on a couch with Ms Lorang-Goubran and he saw Mr Spencer take a small silver gun from between his legs.  The appellant said that he immediately jumped forward and punched Mr Spencer as hard as he could.  Mr Spencer dropped the gun.
  13. [13]
    They began wrestling.  He saw that Ms Lorang-Goubran was holding the baseball bat.  She hit Mr Spencer with it and “he just collapsed”.  Mr Spencer was not holding a weapon.  The appellant said that he didn’t run away then because he “didn’t want to get shot”.  When Mr Spencer went limp he “just slipped away, and he fell back into a seated position on the couch”.  The appellant saw a tennis racket and picked it up and, “without really thinking of anything, sort of started hitting Zeb on the head with it”.  He hit him “maybe three or four times” and “maybe [on] the top or towards the back of the head”.  Mr Spencer was trying to block the hits.  The appellant thought that the tennis racket “didn’t really seem to do anything to him” and so he took the bat from Ms Lorang-Goubran and “swung it at him”.  Mr Spencer was “still sort of hopping back up off the couch” and he was “almost in a seated position”.  He was picking himself up off the couch “with his head down, his hands up around his head” but he “wasn’t stopping coming forward”.
  14. [14]
    The appellant did not know where the gun was or where any other of Mr Spencer’s other guns might be.
  15. [15]
    He was pretty sure that he hit Mr Spencer in the mouth with the baseball bat.  Once, he “chopped it down on the top of his head”.  These blows did not seem to slow him down.  When he hit him “the baseball bat snapped” and he dropped the handle.  The appellant said that he picked up the other broken piece and used that “to sort of slow him down more”.  He “might have maybe got him once more” with this broken piece.
  16. [16]
    He said that his sole intention was “to make sure that me and [Ms Lorang-Goubran] both got out of there alive”.  He said that at one point the appellant and Mr Spencer both fell to the ground.  They were now outside the house on the patio.  The appellant kept hitting Mr Spencer who was “sort of kicking himself up off his left elbow and covering his head”.  The appellant hit him on the back of the head.  He said that he “wasn’t really aiming the blows” and that he “was just sort of trying to stop him from getting to another gun”.
  17. [17]
    The appellant said that at this point Mr McNally appeared and accosted him and threw the crow bar but it missed him and hit Mr Spencer on the head and “knocked him out cold”.  He said that Mr McNally threw a footrest at him and hit him on the right shoulder.  Mr McNally was able to retreat into the garage but the appellant followed him.  The appellant said that he picked up the crow bar and passed through the garage and he then saw Mr McNally running away down the driveway.  The appellant said that he noticed an air rifle on a bench in the garage and he took it.  He then went back the way he had come into the lounge room.  Ms Lorang-Goubran was still there.  She told the appellant that she had collected the broken handle of the bat, “the gun”, a black backpack and a gun case that “she believed had more guns in it”.  She had already put these things into the car.  Together they went out the front door to the car.  The appellant put the crow bar and rifle into the back seat and they drove off.
  18. [18]
    The appellant said that at home he had a shower.  He had blood over him.  He put on fresh clothes and examined the contents of the backpack.  It contained a gun case and “the silver handgun”.  On the following day the appellant and Ms Lorang-Goubran went to a friend’s house where they burned the backpack, the clothes which the appellant had worn, the jacket that Ms Lorang-Goubran had worn, Mr Spencer’s wallet as well as the piece of broken baseball bat.  Later, said the appellant, he threw the contents of the black bag taken from Mr Spencer’s house into the Logan River.  These included the silver handgun and other weapons parts.  He also threw the air rifle into the river.
  19. [19]
    The appellant’s trial counsel submitted to the learned trial judge, Douglas J, that the jury should be directed about the potential applicability of defences under ss 271 and 272 of the Code.  Douglas J declined to put s 271 before the jury but gave directions about the application of s 272.  Section 271 provides as follows:

271 Self-defence against unprovoked assault

  1. (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.
  1. (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.”
  1. [20]
    On the appellant’s case, he had entered Mr Spencer’s house disguised but unarmed, in order to steal drugs and money and, upon confronting Mr Spencer, the latter immediately produced a silver pistol.  In response to this, the appellant picked up a tennis racket that was handy and began his assault.  In the course of that assault, Mr McNally threw an iron crow bar at the appellant but instead hit Mr Spencer.  That blow might have been the lethal blow.
  2. [21]
    The appellant did not say that Mr Spencer pointed the pistol his way but, in the circumstances, it was open to conclude that Mr Spencer had, by gesturing with the pistol, threatened to apply force to the appellant without his consent under such circumstances that he had actually or apparently a present ability to effect his purpose in terms of the definition of assault in s 245 of the Code.  So, on the appellant’s case it was reasonably arguable that Mr Spencer assaulted the appellant by bringing into view the pistol.
  3. [22]
    The question is whether this raised s 271 for the jury’s consideration.  In order for that provision to be engaged, there had to be evidence that:
    1. (a)
      the accused was unlawfully assaulted;
    2. (b)
      the accused did not provoke the assault;
    3. (c)
      the nature of the assault was such as to cause a reasonable apprehension of death or grievous bodily harm; and
    4. (d)
      the accused believed, on reasonable grounds, that he could not preserve himself from death or grievous bodily harm otherwise than by using the force that he in fact used.
  4. [23]
    The appellant’s case was that Mr Spencer assaulted the appellant with the pistol and that this assault was unlawful and unprovoked.  This was controversial for two reasons.
  5. [24]
    First, s 267 of the Code provides a defence in cases in which a person uses force to defend a home.  It provides:

267 Defence of dwelling

It is lawful for a person who is in peaceable possession of a dwelling, and any person lawfully assisting him or her or acting by his or her authority, to use force to prevent or repel another person from unlawfully entering or remaining in the dwelling, if the person using the force believes on reasonable grounds—

  1. (a)
    the other person is attempting to enter or to remain in the dwelling with intent to commit an indictable offence in the dwelling; and
  1. (b)
    it is necessary to use that force.”
  1. [25]
    Under that provision, Mr Spencer would have been acting lawfully in pointing his pistol at the appellant if:
    1. (a)
      he was in peaceable possession of his home;
    2. (b)
      Mr Spencer believed that the appellant was there intending to commit an indictable offence;
    3. (c)
      Mr Spencer had reasonable grounds for that belief;
    4. (d)
      Mr Spencer believed that it was necessary to use the gun in the way in which he did in order to prevent or to repel the appellant from remaining;
    5. (e)
      Mr Spencer had reasonable grounds for that belief; and
    6. (f)
      He pointed the gun at the appellant for that purpose.
  2. [26]
    Unlike a case of self-defence, the force used by Mr Spencer did not have to be no more than was reasonably necessary to make an effectual defence against the appellant’s intrusion, nor did Mr Spencer have to be in fear of his life or in fear of grievous bodily harm.[1]  However, s 267 does not render the question wholly subjective.  Although the householder need not be acting in a way in which a hypothetical reasonable person would have acted, the householder must have acted in a way in which he or she reasonably believed was necessary in the circumstances.[2]  Thus, in order to prove that Mr Spencer’s act of producing the gun was lawful, the Crown had to prove to the satisfaction of the jury that Mr Spencer believed on grounds that were reasonable to him that the appellant was in his house to commit an indictable offence.  It seems that, on the evidence, such a belief would have been reasonable for that is exactly what the appellant’s presence implied and, in fact, that was why the appellant was there.  As to whether the Crown had proved that Mr Spencer believed, on grounds that appeared reasonable to him, that it was necessary to produce the pistol, that was a question for the jury because, while on the one hand Mr Spencer was physically disabled to some degree and, even on the appellant’s evidence, his assault was limited to making a threatening gesture with the pistol, on the other hand the appellant was unarmed and had made no physically threatening moves apart from entering the house in the way described.
  3. [27]
    If the Crown had provedthat Mr Spencer’s assault with the pistol came within s 267, then the Crown would have excluded s 271 because Mr Spencer’s assault was lawful.  There is no self-defence against a lawful assault because self-defence should not entitle “an accused to create a situation of emergency and to provoke an attack upon himself, and yet claim the right to defend himself against that attack by shooting or killing his assailant”.[3]
  4. [28]
    Second, the appellant might have provoked Mr Spencer’s assault with the pistol.
  5. [29]
    As to provocation, in the application of s 271 the term is to be construed in accordance with the definition of “provocation” in s 268.[4]  That section provides:

268 Provocation

  1. (1)
    The term provocation, used with reference to an offence of which an assault is an element, means and includes, except as hereinafter stated, any wrongful act or insult of such a nature as to be likely, when done to an ordinary person, or in the presence of an ordinary person to another person who is under the person’s immediate care, or to whom the person stands in a conjugal, parental, filial, or fraternal, relation, or in the relation of master or servant, to deprive the person of the power of self-control, and to induce the person to assault the person by whom the act or insult is done or offered.
  1. (2)
    When such an act or insult is done or offered by one person to another, or in the presence of another to a person who is under the immediate care of that other, or to whom the latter stands in any such relation as aforesaid, the former is said to give to the latter provocation for an assault.
  1. (3)
    A lawful act is not provocation to any person for an assault.
  1. (4)
    An act which a person does in consequence of incitement given by another person in order to induce the person to do the act, and thereby to furnish an excuse for committing an assault, is not provocation to that other person for an assault.
  1. (5)
    An arrest which is unlawful is not necessarily provocation for an assault, but it may be evidence of provocation to a person who knows of the illegality.”
  1. [30]
    Provocation is the result on the mind of the provoked person of what has moved from the provoker to the provoked.  The consequent act of the provoked person, namely the assault, moves from him to the provoker.[5]  The task is to look at the relevant action and ask whether it would have deprived an ordinary person of the power of self-control and so induce such a person to assault the provoker.   The defence of provocation conferred by s 269 requires two things.  First, the action that is said to be provocative must satisfy the definition in s 268.  Second, the person claiming the defence must in fact have lost self-control and must have acted “upon it on the sudden and before there is time for the person’s passion to cool”.  The definition itself in s 268 contains no subjective element but the defence in s 269, which is founded upon the definition, does so.
  2. [31]
    It must also be noticed that s 271 speaks of “the assault”.  To exclude the operation of the defence, the defendant’s provocation must not merely have been capable of provoking an assault; it must have provoked the assault that was actually made.[6]  It might be accepted that the defendant’s actions might have provoked an assault by Mr Spencer, although that was a jury question; however, the ultimate issue was whether his actions provoked the assault which Mr Spencer actually made on the appellant’s account.
  3. [32]
    Provocation, as used in ss 268 and 269, contemplates loss of control both objectively and subjectively.  That must also be the nature of provocation referred to in s 271.  Otherwise, self-defence would be unavailable to protect a person against an assault by someone who assaulted the accused person with cold deliberation and without having been induced to do so in the relevant sense by the provocative act.  That cannot be the law.
  4. [33]
    It follows, that to exclude a defence under s 271 for this reason, the Crown had to prove that the appellant provoked Mr Spencer to assault the appellant in the way in which, on the appellant’s account, he actually did.  The Crown had to prove that an ordinary person would have been deprived of the power of self-control by the appellant’s provocative act and that Mr Spencer in fact lost self-control and that he was induced by the provocative act to commit the assault with the pistol.  Those were jury questions.
  5. [34]
    Because the force which the appellant used was lethal force, it was necessary for the jury to consider the application of s 271(2).  The appellant’s evidence was that he believed that his life was in peril because of Mr Spencer’s evidenced willingness to use a pistol.  It was relevant to his state of mind that, on his evidence, he believed that Mr Spencer habitually kept firearms and that he kept more than one firearm.[7]  This was because what the appellant reasonably believed about Mr Spencer was capable of constituting reasonable grounds to support his belief.  The Crown could exclude the defence by proving that Mr Spencer’s assault did not cause reasonable apprehension of death or grievous bodily harm on the part of the appellant.  As to this, the jury would have had to consider the appellant’s circumstances when he first attacked Mr Spencer but also his circumstances during the course of the fight and before the lethal blow was delivered (if the jury accepted that the appellant killed Mr Spencer) for, if the lethal threat had disappeared to the appellant’s knowledge, after that the continuation of a lethal assault by way of defence was no longer justified.
  6. [35]
    The word “otherwise” in the expression “can not otherwise preserve the person defended from death or grievous bodily harm” in s 271(2) is important.  The word “otherwise” means “otherwise than by using the force which he in fact used”.[8]  It follows that if the appellant applied lethal force instead of retreating when there was an opportunity for him and for Ms Lorang-Goubran to do so, for example after he had initially disarmed Mr Spencer, the defence would not be engaged.  He could “otherwise” have preserved himself and Ms Lorang-Goubran.
  7. [36]
    If the jury accepted that the appellant held that requisite belief and that it was reasonably grounded, or had a reasonable doubt about both those matters, then it does not matter whether the force used was actually necessary or not.[9]
  8. [37]
    For these reasons, in my respectful opinion, the learned trial judge ought to have instructed the jury to consider the applicability of s 271.
  9. [38]
    Section 272 provides as follows:

272 Self-defence against provoked assault

  1. (1)
    When a person has unlawfully assaulted another or has provoked an assault from another, and that other assaults the person with such violence as to cause reasonable apprehension of death or grievous bodily harm, and to induce the person to believe, on reasonable grounds, that it is necessary for the person’s preservation from death or grievous bodily harm to use force in self-defence, the person is not criminally responsible for using any such force as is reasonably necessary for such preservation, although such force may cause death or grievous bodily harm.
  1. (2)
    This protection does not extend to a case in which the person using force which causes death or grievous bodily harm first begun the assault with intent to kill or to do grievous bodily harm to some person; nor to a case in which the person using force which causes death or grievous bodily harm endeavoured to kill or to do grievous bodily harm to some person before the necessity of so preserving himself or herself arose; nor, in either case, unless, before such necessity arose, the person using such force declined further conflict, and quitted it or retreated from it as far as was practicable.”
  1. [39]
    Section 272 provides for a defence in cases in which an accused person has initiated combat, either by being the first to commit an assault, or by provoking the other to assault the accused.  It should be noticed that, unlike s 271, this section speaks of the defendant having provoked an assault, and not the assault.
  2. [40]
    The defence can be broken down into the following.[10]
  3. [41]
    The accused assaulted the deceased using non-lethal force or has provoked the deceased to assault the accused.  It is assumed that neither of these two possible acts of the accused could justify the deceased’s use of lethal force in response.  That is why the provision uses the indefinite article with respect to the deceased’s assault in response.  The accused’s responsibility for an assault is assumed; there is not the same responsibility for the actual lethal assault that followed.
  4. [42]
    By way of response to the accused’s assault or provocation, the deceased assaulted the accused with such violence as to cause reasonable apprehension of death or grievous bodily harm.  This requires an objective test.
  5. [43]
    The deceased’s assault was such as to induce the accused to believe on reasonable grounds that, to preserve himself or herself from death or grievous bodily harm, it was necessary to use force in self-defence.  This ingredient concerns the accused’s state of mind about what is required to meet his or her own response to the lethal assault.  The accused must actually hold the belief and the belief must be reasonable.  This requires consideration of the facts upon which the belief was based.
  6. [44]
    The force actually used in retaliation was reasonably necessary for preservation from death or grievous bodily harm.  This last ingredient must be contrasted with the apparently similar, but fundamentally different, provision in s 271.  In the case of an accused who did not initiate deadly combat, s 271 renders lawful the use of “any such force to the assailant as is necessary for defence”.  Thus, the force that it is lawful to use under s 271 is not limited only to the the degree of force that could actually have effectuated a preservation.  As Hart J observed in R v Muratovic,[11] if that were so, a defence under s 271 would seldom be successful because in many cases, perhaps even in most cases, a lesser degree of force might, in hindsight, have been adequate, such as rendering the deceased unconscious instead of killing.[12]
  7. [45]
    That is not so under s 272(1) which limits the force that can lawfully be used in self-defence to “such force as is reasonably necessary for such preservation”.
  8. [46]
    Subsection 272(2) is different.  It is concerned to constrain the operation of the defence offered by subsection 272(1) if the accused’s initiating assault, with which the first subsection deals, was a lethal assault from inception; or if that initiating assault, non-lethal at first, became a lethal assault before the victim had used any lethal force in self-defence.[13]  The provision posits these as two “cases”:
    1. (a)
      “a case in which” the accused began an assault against the deceased with the intention to kill or to do grievous bodily harm; and
    2. (b)
      “a case in which” the accused assaulted the deceased in the first place and then endeavoured to kill or to do grievous bodily harm.[14]
  9. [47]
    Subsection (2) provides that “[t]his protection”, namely the protection offered by subsection (1), does not apply in the first case or in the second case.  That must be so for these two cases are ones in which it is the accused who first brought the risk of lethality into play so that it is the deceased who, being the victim of a lethal assault, is alone justified under s 271(2) to use lethal force in self-defence.
  10. [48]
    Is there any case in which an accused who has in this way initiated the use of lethal force might still justify the use of lethal force for self-preservation?  As its final limb, s 272(2) provides:

“ … nor, in either case, unless, before such necessity arose, the person using such force declined further conflict, and quitted it or retreated from it as far as was practicable.” (emphasis added)

  1. [49]
    The expression “the person using such force” in the final limb refers to the “person” referred to twice in subsection (2) as “the person using force which causes death or grievous bodily harm” in relation to each case.  The expression “such necessity” is a reference to the necessity to use lethal force in self-defence which is the basal hypothesis in both subsection (1) and subsection (2).
  2. [50]
    The final part of s 272(2) thus directs attention to the moment “before such necessity arose”, namely the moment in time before the victim began to use lethal force in response to the accused’s attack.
  3. [51]
    The effect of s 272(2) is to deny an accused, whose case fits into the two kinds of cases referred to in the subsection, a legal excuse for killing unless the accused first removes the necessity (which the accused created) for the deceased to use lethal force.  Once the deceased has employed lethal force in response to the accused’s lethal force, the time for avoidance of legal consequences is over.  However if, having been the first to use lethal force, the accused has declined further conflict or has “quitted it or retreated from it as far as was practicable” before the deceased had to employ lethal force, there can no longer be any reason for the deceased thereafter to resort to a lethal degree of violence.  Mortal combat is over before it has gone too far.  If, then, despite the accused’s voluntary elimination of any need for the deceased to use lethal force before the deceased used it, the deceased still attempts to kill the accused, then the accused is in the same position as if he or she had never used such force in the first place.  The accused can rely upon subsection (1).
  4. [52]
    In R v Johnson[15] Stanley J offered the obiter dictum that retreat, as a condition of justified self-defence, applied to the whole of s 272.  Thus, even an accused who had not used lethal force until necessity compelled it would be denied reliance upon the defence unless the accused first attempted retreat before the necessity arose.[16]  In R v Muratovic[17] Hart J was of the opinion that the retreat condition did not apply to s 272(1) and that it applied to permit an accused to rely upon self-defence even if that accused had been the first to use lethal force in one of the two ways referred to in s 272(2).
  5. [53]
    There is only any doubt about the meaning of s 272(2) because the drafting of the provision is peculiar.  On the one hand, the words “in either case” strongly indicate a reference to the two uses of the same word in s 272(2) to describe each “case”.  On the other hand, the use of the word “nor” to introduce the whole expression “nor, in either case, unless” is capable of being read so that the retreat condition is to apply as an additional exclusion to the two instances in s 272(1), namely to the case of the first assaulter or the provoker.  However, in my respectful opinion the final qualification in subsection (2) has no work to do in subsection (1).  There is no reason consistent with the principles of self-defence enunciated in the Code why an accused who has assaulted a victim by the use of force which threatens neither death nor serious injury should have to retreat before trying to save his or her life in the face of a disproportionate lethal response.
  6. [54]
    This question was the subject of a decision by the Court of Criminal Appeal of Western Australia.  In Randle v The Queen[18] Malcolm CJ held that the effect of the retreat condition was to bring both of the two “cases” referred to in (the Western Australian provision[19] that was identical to) s 272(2), and which are otherwise excluded from the protection of the first subsection, back within the defence.[20]
  7. [55]
    In Western Australia the self-defence provisions have been amended so that Randle is no longer a relevant authority in that State.  For that reason, the restraining effect that it would otherwise have as an authority of a coordinate appellate court does not exist.  However, I respectfully see no reason to doubt the correctness of that decision and, indeed, for the reasons given, I have reached the same conclusion.
  8. [56]
    On the Crown case neither s 271 nor s 272 had any application.  The prosecution alleged that the appellant entered the house dressed and armed for robbery.  It was the appellant who first assaulted a seated and unarmed Mr Spencer and the appellant killed him for reasons having nothing to do with self-defence against a lethal assault.  If the jury disbelieved the appellant’s evidence the defences did not apply.  It was only if the jury accepted the appellant’s version of events, or had a doubt about that version, that these provisions had to be considered.
  9. [57]
    It will be remembered that, according to the appellant’s story, he was unarmed and Mr Spencer was the first to commit an assault by pointing a pistol at him.  The appellant’s immediate response was to punch Mr Spencer and, on the appellant’s account, this served to disarm him.  On the appellant’s account, his punching of Mr Spencer was lawful because of the application of s 271.  That is by the way, because the issue for the jury was not the lawfulness of the first punch; it was the assault that followed.
  10. [58]
    Under circumstances in which Mr Spencer had produced a gun, and in which the appellant believed that Mr Spencer had other weapons available, the appellant said that he needed to subdue Mr Spencer entirely if he was to effect a safe escape.
  11. [59]
    On the appellant’s account, even if his appearance in the house dressed for robbery constituted an implicit threat of violence and was, therefore, an assault, the defence in s 272(1) could apply.  Section 272 required that, after an initial assault by the appellant, there be an assault upon the accused “with such violence as to cause reasonable apprehension of death or grievous bodily harm”.  I have no doubt that, for the purposes of the section, an assault constituted by a threat to inflict violence accompanied by the evident means to inflict it and the immediate willingness to do so, would satisfy that requirement.[21]
  12. [60]
    There are two possibilities.
  13. [61]
    First, the jury might accept that the appellant entered Mr Spencer’s house with an intent to steal but without any intention to engage in violence.  Section 245 of the Code defines “assault” to mean, relevantly, “a person who … by any bodily act or gesture attempts or threatens to apply force of any kind to the person of another … 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”.  The jury might conclude that Mr Spencer pointed a gun at the appellant.  The jury might be satisfied that Mr Spencer’s use of the gun in that way as a householder was “necessary” under s 269 and, it would follow that Mr Spencer did not “unlawfully assault” the appellant within the meaning of s 271 rendering the appellant’s subsequent assaults unlawful.  Self-defence is excluded.
  14. [62]
    Second, the jury might conclude that the appellant’s presence in the house was, under the circumstances, an assault upon Mr Spencer to which he was entitled to respond with force.  However, the jury might not be satisfied that Mr Spencer’s assault with the pistol, as a homeowner defending his home, was justified by s 269.  The jury might act upon the footing that the use of the pistol was an unlawful lethal assault and, under s 271, the appellant lawfully used the necessary force to disarm Mr Spencer.  Of course, this first use of force to disarm Mr Spencer was not the critical issue.
  15. [63]
    If this second view of the facts is taken, it was the appellant’s case that Mr Spencer’s initial use of the pistol and his subsequent resistance to the appellant’s application of force, coupled with his access to other firearms, operate as a continuing “bodily act or gesture” by which Mr Spencer “attempted or threatened to apply” lethal force to the appellant.
  16. [64]
    On the appellant’s case, he was trying to stop Mr Spencer from killing him with an available weapon.  On that basis, the appellant claimed to be justified to meet this continued lethal force with his own lethal force.  To put it into strict terms, although the appellant was, by his unlawful presence in Mr Spencer’s lounge room, the first to commit an assault, his was not a lethal assault and it was Mr Spencer who first assaulted the appellant with such violence as to cause reasonable apprehension of death or grievous bodily harm and induced him to believe, on reasonable grounds, that it was necessary for his self-preservation to use force and that the appellant only used such force as was reasonably necessary for such self-preservation.  To exclude this defence the Crown had to prove:
    1. (a)
      Either that Mr Spencer did not assault the appellant with lethal force with a pistol; or
    2. (b)
      That Mr Spencer’s use of the pistol was neutralised by the appellant and thereafter Mr Spencer did not continue to assault the appellant; or
    3. (c)
      That Mr Spencer’s use of force after being disarmed was not an assault “with such violence as to cause reasonable apprehension of death or grievous bodily harm”; or
    4. (d)
      That there were no reasonable grounds that could have induced the appellant to believe that it was necessary for him to use lethal force in self-defence; or
    5. (e)
      That the force which the appellant used against Mr Spencer was not such force as was reasonably necessary for the appellant’s self-preservation.
  17. [65]
    Whether a jury would think that there was any merit in the appellant’s case based upon s 272 is another matter but it was a case which arose for consideration.
  18. [66]
    On the Crown case, ss 271 and 272 were both irrelevant.  If the jury rejected the appellant’s account then this was not a case about the appellant’s self-defence.  It was a case about the brutal murder of a seated man whom the appellant bludgeoned to death for no good reason.
  19. [67]
    On the defence case, the appellant was defending himself against Mr Spencer’s initial unprovoked lethal assault which Mr Spencer then continued.  On the defence case subsection 272(2) is immaterial.  On the Crown case the provision is potentially material if the jury accepted that Mr Spencer produced a firearm but only by way of self-defence in response to the appellant’s first lethal assault.  The finding of a gun on the floor of the lounge room could support such a conclusion.  On this view, the jury could conclude that the appellant assaulted Mr Spencer with intent to kill him or to do him grievous bodily harm before any firearm was brought to bear or that the appellant endeavoured to kill Mr Spencer or do him grievous bodily harm before Mr Spencer produced a firearm.  Section 272(2) would then exclude self-defence.
  20. [68]
    Neither party suggested in argument that the qualification at the end of subsection 272(2) had any role to play.
  21. [69]
    That is not to say that the practicability of retreat was immaterial to the jury’s consideration.  It was a question for the jury whether, in the context of considering the necessity to use force, escape was possible without resort to lethal force.[22]
  22. [70]
    The learned trial judge directed the jury in this case as follows:

“Matters for consideration are, firstly, whether the defendant had unlawfully assaulted the deceased or had provoked an assault from the deceased. Did the defendant have a reasonable apprehension of death or grievous bodily harm? Did the defendant believe on reasonable grounds that it was necessary in order to preserve himself from death or grievous bodily harm to use force and self-defence? Was the force used by the defendant such as was reasonably necessary to preserve him from death or grievous bodily harm? If the prosecution exclude any of those four matters beyond reasonable doubt, then that excludes that possible defence. Additionally, that defence does not apply where the defendant first began the assault with intent to kill or to do grievous bodily harm to the deceased, nor where the defendant endeavoured to kill or to do grievous bodily harm to the deceased before the necessity of so preserving himself arose, nor in either case unless before such necessity of so preserving himself arose the defendant declined further conflict and quitted it or retreated from it as far as was practicable.

So if the prosecution satisfy you beyond reasonable doubt of the six matters now listed on this slide before you, which is, in effect, an amalgamation of what I’ve been talking about, the defence is excluded. Those six matters are whether any assault by Mr Spencer was not of such violence as to cause reasonable apprehension of death or grievous bodily harm. Secondly, that the assault did not induce the defendant to believe on reasonable grounds that it was necessary for his own preservation from death or grievous bodily harm to use the force used in self-defence. Or, thirdly, that the force used was more than was reasonably necessary to save the defendant from death or grievous bodily harm.  Or, fourthly, that the defendant first began the initial assault with intent to kill or to do grievous bodily harm to Mr Spencer. Or, fifthly, that the defendant endeavoured to kill or do grievous bodily harm to Mr Spencer before the necessity of so preserving himself arose. Or that, sixthly, in either case unless before such a necessity for self-defence arose the defendant declined further conflict and quitted it or retreated from it as far as practicable, then the defence is excluded.

So if the prosecution satisfies you of any one of those issues it excludes the defence of self-defence.”

  1. [71]
    So far as that direction restated the terms of s 272, it is unimpeachable.  The extent to which merely restating this provision was of any use to the jury in this case is another matter.
  2. [72]
    Both counsel endorsed this direction in their closing addresses and made submissions about the need for the appellant to have “declined further conflict or quitted or retreated from it as far as was practicable.”  Neither submission related this issue to the provisions of the Code.  The jury retired to consider their verdict at 3.07 pm on day nine of the trial. At 5.29 pm that day, the jury sent a note.  They asked, amongst other questions:

“In relation to self-defence, section 272 notes that “before such necessity arose, the person using such force declined further conflict.” In relation to this case, does this mean before a gun was pulled out?”

  1. [73]
    His Honour’s response was:

“…If you conclude that Mr Dayney’s appearance about 3.30 am in Mr Spencer’s house, dressed in dark clothes, with his head wrapped in a dark shirt, amounted to provocation of an assault from Mr Spencer, and that Mr Spencer pulled out a gun, then the defence does not apply unless, before Mr Spencer pulled out the gun, Mr Dayney declined further conflict and quitted it, or retreated from it, as far as was practicable.”

  1. [74]
    The appellant submits that the direction which Douglas J gave in response to the jury’s question was erroneous.  He submits that the direction had the effect of requiring a retreat by the appellant as a precondition to the engagement of s 272 as a whole.  He submits that the provision should instead be construed so that the requirement that there be a retreat is only referrable to a defence based upon s 272(2).
  2. [75]
    For the reasons that have been given, that submission should be accepted.
  3. [76]
    Having instructed the jury by citing the content of s 272, in his redirection his Honour instructed the jury that the retreat condition applied to govern s 272(1).  In my respectful opinion that was an error.  The redirection meant that, although on the appellant’s account his very presence in the house might have constituted the first assault which resulted in Mr Spencer’s lethal assault against him, and although he had not himself used lethal force before then, before he could justify the use of lethal force to preserve himself against the threatened death or grievous bodily harm, he had first to attempt to retreat.  That is not in accordance with s 272.
  4. [77]
    It follows that there has been a miscarriage of justice because the jury may have convicted the appellant on the basis that, although he was not the first to use lethal force, his failure to attempt to retreat immediately upon being confronted by Mr Spencer’s pistol denied him the right to save his own life.
  5. [78]
    It follows that this appeal must be allowed, the conviction must be set aside and there must be a re-trial.
  6. [79]
    FRASER AND McMURDO JJA:  We have had the benefit of reading a draft of the judgment of Sofronoff P.  His Honour’s discussion of the evidence at the trial makes it unnecessary for us to do so.  We have reached a different view as to the correct construction of s 272(2), and we would reject the ground of appeal which relates to it.  However we agree with the orders proposed by the President, substantially for the reasons which he has given in relation to the first ground of appeal, which involves s 271.
  7. [80]
    The evidence which raised any issue of self-defence came from the appellant.  If the jury excluded his evidence there was no path to an acquittal, on the ground of self-defence, from other evidence.  He testified that he and Ms Lorang-Goubran went to Mr Spencer’s house with a plan that she would distract Spencer, whilst the appellant stole drugs and cash from the house.  On his evidence, if things went according to that plan, Spencer would not know that he was there.  However the plan went awry when he encountered Lorang-Goubran and Spencer, sitting together on a couch.
  8. [81]
    The appellant described what then happened as follows.  The appellant was surprised to see them in that part of the house, and he “sort of froze”, not knowing what to do next.  Spencer saw him and almost immediately reached down between his legs and lifted up a hand gun.  The appellant’s reaction then was to jump towards Spencer and punch him as hard as he could.  He said that he did not want to get shot and he was trying to make sure that he and Lorang-Goubran escaped alive.
  9. [82]
    A struggle then took place, during which, the appellant thought, Spencer dropped the gun.  From that point, there was a sustained assault on Spencer by both the appellant and Lorang-Goubran.  The appellant explained that he did not run away at this point, because he was mindful of the fact that there was that gun in the vicinity and that there was a likelihood Spencer had other guns in the house.  Eventually, after considerable violence being inflicted upon the deceased, and the intervention of Mr McNally (who launched a metal pole which hit the deceased in the head), the appellant and Lorang-Goubran fled the scene.
  10. [83]
    In essence, the appellant’s case was that he had responded to an assault upon him by Spencer, constituted by the production of the gun.  That was an assault, it was argued, which was such as to cause a reasonable apprehension by the appellant of death or grievous bodily harm, and caused the appellant to believe, on reasonable grounds, that he could not otherwise preserve himself from death or grievous bodily harm other than by assaulting Spencer as he did.
  11. [84]
    The appellant’s argument to the trial judge was that this evidence raised a case of self-defence under s 271(2) or, alternatively, under s 272(1) of the Code.  The trial judge ruled that it did not raise a case under s 271(2), because upon the appellant’s testimony, if asked the question, the jury would conclude that the appellant had provoked the assault by Spencer, namely the threat by the deceased at the point when he produced the handgun.  His Honour held that the case which the jury should consider was whether there might have been self-defence against a provoked assault, in the terms of s 272(1).
  12. [85]
    The appellant says that the alternative case, under s 271, should also have been left for the jury’s consideration.  He further argues that the jury was misdirected about s 272(2).  It is convenient to consider first the ground concerning s 272.

The directions about s 272

  1. [86]
    Some of the judge’s directions to the jury were made by reference to documents which, with the agreement of counsel, his Honour had distributed to the jury.  On the subject of self-defence, the jury was given a document which contained the terms of s 272, another document which identified some six “elements” of self-defence under that provision, and a third document setting out six questions, corresponding with those elements, as a “possible course of [the jury’s] deliberations”.  The third document was as follows:

“Has the prosecution satisfied you beyond reasonable doubt that:

  1. (a)
    Any assault by Mr Spencer was not of such violence as to cause reasonable apprehension of death or grievous bodily harm; or
  1. (b)
    That the assault did not induce the defendant to believe, on reasonable grounds, that it was necessary for his own preservation from death or grievous bodily harm to use the force used in self-defence; or
  1. (c)
    That the force used was more than was reasonably necessary to save the defendant from death or grievous bodily harm; or
  1. (d)
    That the defendant first began the initial assault with intent to kill or to do grievous bodily harm to Mr Spencer; or
  1. (e)
    The defendant endeavoured to kill or do grievous bodily harm to Mr Spencer before the necessity of so preserving himself arose; or that
  1. (f)
    In either case, unless, before such a necessity for self-defence arose, the defendant declined further conflict, and quitted it, or retreated from it as far as practicable?”
  1. [87]
    It can be seen that questions (a), (b) and (c) were derived from the terms of sub-section (1) of s 272, and that questions (d), (e) and (f) were derived from sub-section (2).  The “elements” document listed six matters, in the same terms, with the statement that the proof of any of them would exclude the defence.  Again, the sixth element was in these terms:

“6. In either case, unless, before such a necessity for self-defence arose, the defendant declined further conflict, and quitted it, or retreated from it as far as practicable”.

  1. [88]
    In his summing up, the judge repeated these directions.  His Honour was not asked to direct the jury that they should consider question (f) only as a qualification to either of the provisos represented by questions (d) and (e).  In other words, the jury was not told to consider question (f) in the event that it answered (d) or (e) in favour of the prosecution case.  Consequently, if s 272(2) is to be construed as the appellant contends, the jury was misdirected.
  2. [89]
    In his closing address to the jury, the prosecutor argued that the jury should reject the appellant’s evidence.  Clearly, if that argument was accepted, self-defence would be excluded.
  3. [90]
    The prosecutor further argued that the appellant had made no attempt to retreat from the conflict.  In that respect the prosecutor said:

“There was no gun inside the house that was produced by Mark Spencer and you might recall that the evidence pointed out to you by Mr Edwards about the location of the items said to support Mark Dayney’s version, they were said to be when they were last seen in the garage. Ladies and gentlemen, I’d suggest this to you. That you would have no doubt whatsoever – withdraw that. I’ll go back a step. That you would reject entirely Mark Dayney’s account of Mark Spencer producing a gun within the lounge room. You’d reject it. Once you do there’s no evidence of that gun.

From there, I’d suggest that all of the forensic evidence points against any sort of struggle in self-defence and points inexorably towards a struggle where Mr Spencer is trying to get away from his attacker. Remember too at no stage was there any attempt by Mr Dayney to avoid confrontation or to retreat. When he first went into the house and knew the back of the house was open, knew his way outside and back to the car. When he first came across Peta Lorang-Goubran and Mark Spencer didn’t look and withdraw even though he had the jump. He was standing. They were seated. At no stage did he withdraw. At no stage did he retreat. At every point he pressed his advantage, he pressed his attack. An attack that led to Mark Spencer’s death.

No gun, no self-defence. But in any event, Mr Dayney never tried to retreat. He never gave Mr Spencer a chance. Mr Spencer never went to reach for the weapons and everything else in the case points to him moving away from them and trying to move away from the attacker. On no view of the whole of the evidence of this case I’d suggest do you get even in the inkling of a fight involving a fight for Mr Dayney’s life; quite the opposite.”

  1. [91]
    After the jury had retired, they sent a number of questions to the judge, which his Honour discussed with counsel in their absence.  The questions were as follows:

“1. In relation to self-defence, section 272 notes that ‘before such necessity arose, the person using such force declined further conflict’.  In relation to this case, does this mean before a gun was pulled out?

  1. Does this mean that after a gun is pulled on someone it is no longer relevant that the person declines further contact or retreats?
  1. Is it still self-defence if Spencer drops the gun, declining contact, and retreats down the hall?
  1. Does self-defence still apply if he is pursuing him down the hall, not wrestling?”
  1. [92]
    In that discussion, the prosecutor suggested, and the judge and defence counsel seemed to agree, that upon the premise that the suggested assault by the deceased was the “pulling of the gun”, self-defence was unavailable if the appellant had taken no step to retreat up to that point.  After some discussion, the jury returned and the judge gave further directions.  In response to the jury’s first question, the judge said:

“Let me answer it this way. If you conclude that Mr Dayney's appearance about 3.30 am in Mr Spencer's house dressed in dark clothes with his head wrapped in a dark shirt amounted to provocation of an assault from Mr Spencer, and that Mr Spencer pulled out a gun, then the defence does not apply unless before Mr Spencer pulled out the gun Mr Dayney declined further conflict and quitted it or retreated from it as far as was practicable. In that context, you will need to focus on what was practicable for Mr Dayney to do in between his seeing Mr Spencer and Mr Spencer pulling out the gun. You should not judge the actions of the defendant as if he had the benefit of safety and leisurely consideration.”[23]

As he had discussed with counsel, the judge answered questions 2, 3 and 4 together.  He directed the jury first by again reading to them the terms of s 272(1), which he said raised the issues which were involved in his questions (a), (b) and (c).  The judge said:

“Those three questions which you have raised, your second, third and fourth questions, are, it seems to me, relevant to the issue of Mr Dayney’s belief on reasonable grounds that it was necessary for his preservation from death or grievous bodily harm to use force in self-defence.”

Notably, his Honour did not direct the jury to his questions (d), (e) and (f), which involved issues under s 272(2).

  1. [93]
    At this point it is convenient to set out s 272:

“272 Self-defence against provoked assault

  1. (1)
    When a person has unlawfully assaulted another or has provoked an assault from another, and that other assaults the person with such violence as to cause reasonable apprehension of death or grievous bodily harm, and to induce the person to believe, on reasonable grounds, that it is necessary for the person’s preservation from death or grievous bodily harm to use force in self-defence, the person is not criminally responsible for using any such force as is reasonably necessary for such preservation, although such force may cause death or grievous bodily harm.
  1. (2)
    This protection does not extend to a case in which the person using force which causes death or grievous bodily harm first begun the assault with intent to kill or to do grievous bodily harm to some person; nor to a case in which the person using force which causes death or grievous bodily harm endeavoured to kill or to do grievous bodily harm to some person before the necessity of so preserving himself or herself arose; nor, in either case, unless, before such necessity arose, the person using such force declined further conflict, and quitted it or retreated from it as far as was practicable.”
  1. [94]
    Section 272 can provide a protection from criminal responsibility in a case where the conflict has been initiated either by the accused person’s unlawful assault upon the ultimate victim, or by an assault by the victim which was provoked by the accused person.  The protection is dependent upon the circumstances being as prescribed in s 272(1), subject to the exceptions which are prescribed in s 272(2).
  2. [95]
    One exception within sub-section (2) relates to a case where the accused person “first began the assault with intent to kill or to do grievous bodily harm to some person”.  Another exception relates to a case where the accused person “endeavoured to kill or to do grievous bodily harm to some person before the necessity of so preserving himself or herself arose.”  In the first, “the assault” is the assault (if any) which initiated the conflict.  In a case such as this one (on the appellant’s version of events) there had been no assault by him, at least by actual force, before the victim assaulted him by producing the gun.  If the presence of the appellant in the victim’s house, at that hour of night and dressed as the appellant was, was an assault by a threat of violence, then (on the appellant’s version), it was not an assault with an intention to kill or do grievous bodily harm.  As to the second exception, on his version, the appellant did not endeavour to kill or do grievous bodily harm before the necessity of preserving himself arose.  Consequently, on the appellant’s version, there was no basis for the application of the first or second exceptions within sub-section (2).  And importantly, the prosecutor did not argue otherwise to the jury.
  3. [96]
    Nevertheless, by his questions (d) and (e), the judge did direct the jury that they should consider whether self-defence was excluded by either of these exceptions.  The jury were not told how those questions might be related to the evidence, and as we have just said, they could not have been related to the addresses of counsel.  And nothing was said about them in the re-directions which were given with the concurrence of counsel.
  4. [97]
    In our view therefore, the jury need not have been asked questions (d) and (e), and it would have been better that they not be left.  However, there is no complaint here in that respect.
  5. [98]
    By the judge’s question (f), the jury was directed as if there was a third exception to the protection under s 272(1).  No objection was made to this direction by trial counsel, but that is not fatal to this ground of appeal.

The competing constructions of s 272(2)

  1. [99]
    The issue of construction involves the effect of the concluding words of sub-section (2):

“[N]or, in either case, unless, before such necessity arose, the person using such force declined further conflict, and quitted it or retreated from it as far as was practicable.”

  1. [100]
    The effect of the judge’s directions to the jury was that these words qualify the operation of s 272(1), independently of the exceptions provided by the balance of sub-section (2).  If self-defence could not be excluded by one of those exceptions, it could be excluded by proof that, as far as was practicable, the accused person did not decline further conflict, and quit it or retreat from it, before it became necessary to preserve himself or herself.
  2. [101]
    The alternative construction, for which the appellant contends, is that this is not a third exception to the operation of sub-section (1).  Rather, these words modify the effect of the first and second exceptions.  In a case where the accused person began the assault with an intent to kill or do grievous bodily harm, or in a case where he or she endeavoured to kill or do grievous bodily harm before it was necessary to preserve himself or herself, self-defence would still be available, unless the prosecution proved that the accused person did not decline further conflict and quit it or retreat from it, before it was necessary to defend himself or herself.
  3. [102]
    The difficulty in construing this last clause of sub-section (2) is created by the words “either case”.  Absent those words, the first construction (which we will call the respondent’s construction) could not be doubted.  However those words cannot be disregarded, and it is necessary to identify the two “cases” to which they refer.  In that respect, there are two possibilities.
  4. [103]
    The first of them, for which the appellant contends, is that they are the two cases which are respectively the subjects of what we have called the first and second exceptions within sub-section (2).
  5. [104]
    The other possibility is that the two “cases” are, firstly, the use of force which causes death, and, secondly, the use of force which causes grievous bodily harm, which is consistent with the respondent’s construction.
  6. [105]
    In R v Muratovic,[24] Hart J, without expressing a concluded view, considered that “literally, the last clause [of what is now sub-section (2)] only purports to refer to a person who has used murderous violence in the first place or before it is necessary”.[25]
  7. [106]
    His tentative view was approved by a Full Court of the Supreme Court of Western Australia in Randle v The Queen,[26] when s 249 of the Criminal Code of that State was in substantially identical terms to s 272.[27]  The principal judgment was given by Malcolm CJ, who said:[28]

“The requirement that the person using the force which causes death or grievous bodily harm declined further conflict and quitted it, or retreated from it as far as was practicable, is a qualification on the proviso in the second paragraph of s 249. The proviso withdraws the protection of self-defence in two sets of circumstances. The first is where the accused first began the assault with intent to kill or do grievous bodily harm to some person. This would necessarily be before the necessity of preserving himself arose. The second is when the accused endeavoured to kill or do grievous bodily harm to some person before the necessity of preserving himself arose. In either of these two cases the protection of self-defence will not apply:  unless before such necessity arose the person using such force declined further conflict, and quitted it or retreated from it as far as practicable.”

The necessity” referred to is the necessity for self-preservation from death or grievous bodily harm referred to in the first paragraph of s 249.

Neither of the two sets of circumstances which granted the application of the proviso was present in this case. The proviso had no application. The case fell to be determined by reference to the first paragraph of s 249. It is apparent, therefore, that the direction given by the learned judge that there was a fourth and final element in the defence of self-defence was in error, unless the case was one or the other of those referred to in the second paragraph which it was not. It follows that the contention in ground 1(a) is made out.

In my opinion, the direction regarding the issue of retreat which was given was a misdirection. It had the effect of adding an additional circumstance to constitute the defence which was not required as a matter of law. In another sense, however, it introduced an additional matter which the Crown was required to negative beyond a reasonable doubt. As will appear below, the question of retreat was relevant, in any event, to the belief of the appellant and the existence of reasonable grounds for that belief.

Under the first paragraph in s 249, where the proviso did not apply, the existence of an opportunity to retreat from the conflict, either where the accused had unlawfully assaulted another or had provoked an assault by another would be relevant to the existence of a reasonable apprehension of death or grievous bodily harm inducing a belief on reasonable grounds that it was necessary for self-preservation to use force in self-defence. That, however, is an entirely different point.

In R v Muratovic Hart J did not consider it necessary to determine the proper interpretation of the final passage commencing in either case” in the second paragraph of s 272. In my opinion, that passage, as it appears at the end of the second paragraph in s 249 of the Criminal Code (WA) adds a qualification which will bring both cases referred to in the first two clauses of the second paragraph, which are otherwise excluded from the protection of the first paragraph, back within that protection. Thus, where the accused initiated an assault on another or provoked an assault from another, he will not be excused from the use of force which causes death or grievous bodily harm to that other, unless before the necessity for self-preservation arose, he declined further conflict, and quitted it or retreated as far practicable.

In my opinion, despite the fact that the first two clauses of the second paragraph of s 249 state cases where the protection would not be available in any event, the effect of the final clause is to qualify that absence of protection by stating particular circumstances under which the defence will nonetheless be available in either of those two cases.”

  1. [107]
    The same view was expressed by Jerrard JA, although without reference to Randle, in obiter dicta in R v Wilmot.[29]  In that case, a conviction for murder was set aside and a re-trial ordered for a misdirection, because the judge instructed the jury that the force used by the appellant had to be reasonably necessary for his preservation, and that this imported an element of objective necessity which was contrary to the authorities.[30]  Although the present question did not appear to arise, Jerrard JA said:[31]

“[49] I consider the third obligation specified in s 272(2), namely that before the necessity for using potentially lethal force in self-defence the person using such force declined the conflict and quitted it or retreated from it as far as was practicable, applies only to the circumstances described in the two preceding clauses in that paragraph. That is, I agree with the view suggested by Hart J in Muratovic that those two earlier clauses, respectively describing a person who used murderous violence in the first place or else before it was necessary, and who is thereby disqualified from the protection given by s 272(1), can re-qualify for that protection if that person has retreated before using lethal force. I therefore disagree with the suggestion by Stanley J in Reg v Johnson [1964] Qd R 1 at 14 that s 272(1) applies only if the defendant has declined further combat or retreated. Whichever view is correct, a view of the facts was open to the jury which would have entitled Mr Wilmot to plead s 272(1), namely that he had declined further conflict with Mr Norman and attempted to retreat from Mr Norman’s assault before ultimately using lethal force. That view would depend upon accepting Mr Stevens’ account of events.”

(Footnotes omitted.)

A separate concurring judgment was given by McMurdo P, and Muir J (as he then was) agreed with the reasons given by the other judges, although his agreement may not have extended to the obiter of Jerrard JA which we have set out.

  1. [108]
    A few other cases in this Court should be noted.  The first is R v Keith,[32] where Henchman J employed what we have described as the respondent’s construction, without adverting to the alternative construction.  In the second case, R v Johnson,[33] Stanley J adopted the respondent’s construction, again without adverting to an alternative.  In the third case, R v Lacey,[34] the joint judgment set out the terms of s 272, without adverting to any question of construction, let alone indicating a preference.
  2. [109]
    At first sight, the expression “in either case” might well appear to refer to the two cases which are respectively the subject of the first and second exceptions.  However, on closer analysis, the respondent’s construction is also consistent with the text of s 272(2).
  3. [110]
    An immediate difficulty with the appellant’s construction is that by the terms of the two preceding clauses, no defence is available anyway in a case to which either relates.[35]  The appellant’s construction requires this third clause to operate as a means of restoring the protection of self-defence, which, according to one or both of the preceding clauses, was to be denied.  In Randle,[36] Malcolm CJ described this third clause as “a qualification which will bring both cases referred to in the first two clauses … , which are otherwise excluded from the protection of the first paragraph, back within that protection.”
  4. [111]
    The operation of the third clause, in that way, seems at odds with the structure of sub-section (2).  The structure of sub-section (2) is to deny the protection of self-defence, otherwise conferred under sub-section (1), in three sets of circumstances, the second and third of which are defined by text which commences with the word “nor”.  The structure suggests that there are not two, but three exceptions to the protection conferred by sub-section (1).  The appellant’s construction would have the third clause read as if it commenced:

“Unless, in either case, before such necessity arose …”.

  1. [112]
    The respondent’s construction leads to an effect of s 272 which, in our opinion, was more likely to have been intended.  It is logically consistent with the distinction between cases within s 271 and those within s 272, that this final clause of s 272(2) should qualify the protection afforded by s 272 in every case.  In cases of both unprovoked and provoked assaults, it may be relevant to consider whether the accused person sought to withdraw from the conflict, because that may be relevant to a consideration of whether he or she reasonably believed that it was necessary to use force in self-defence.  But the absence of a withdrawal, when that would have been practicable, has a particular relevance where the accused person was the instigator of the conflict.
  2. [113]
    That particular relevance is recognised under the common law.  For example, in Viro v The Queen,[37] Gibbs J said:

In my opinion, in Australia the fact that the person raising self-defence was the aggressor is an important consideration of fact, but not a legal barrier to the success of the plea. The matter may be regarded in a similar light to a failure to retreat. It is obvious enough that a person cannot rely upon the plea of self-defence unless the violence against which he sought to defend himself was unlawful. If, therefore, one man makes a violent attack upon another with intent to rob him, and the man attacked defends himself, using no more force than is reasonably necessary, the original assailant cannot be said to be acting in self-defence in trying to overcome the other's resistance, since that resistance was lawful. However, if the original assailant has desisted from his attack, and his intended victim no longer needs to defend himself, and can not reasonably believe that he is still in danger, but nevertheless takes the offensive and out of anger or revenge himself becomes the attacker, the original assailant is not obliged to let himself be killed or injured without any attempt at resistance. Nevertheless, in such a case it is difficult to see how, as a matter of fact, the conduct of the aggressor, which commences as a criminal assault with an intent to commit a serious crime, can become transmuted in split seconds into lawful self-defence, unless the aggressor has clearly broken off his attack. In such circumstances the fact that he did not retreat when he had the opportunity to do so assumes a special significance.”

(Emphasis added.)

Similarly, in Zecevic v Director of Public Prosecutions,[38] Wilson, Dawson and Toohey JJ said:

There is, however, one situation which requires particular mention. It should, we think, be regarded as raising only evidentiary matters to be considered in arriving at an answer to the ultimate question, although in the code States it is treated as raising matters of law: see s. 272 of the Criminal Code 1899 (Q.); s. 249 of the Criminal Code 1913 (W.A.); s. 47 of the Criminal Code  1924 (Tas.). Where an accused person raising a plea of self-defence was the original aggressor and induced or provoked the assault against which he claims the right to defend himself, it will be for the jury to consider whether the original aggression had ceased so as to have enabled the accused to form a belief, upon reasonable grounds, that his actions were necessary in self-defence. For this purpose, it will be relevant to consider the extent to which the accused declined further conflict and quit the use of force or retreated from it, these being matters which may bear upon the nature of the occasion and the use which the accused made of it.”

  1. [114]
    It is less likely that the intended operation of this third clause should apply only to cases within the first and second clauses, and not to other cases (where death or grievous bodily harm was caused) when the accused person was the instigator of the conflict.
  2. [115]
    Sir Samuel Griffith acknowledged that what became s 272 was derived from cl 57 of the English Criminal Code Bill of 1880, which was in these terms:[39]

“57 Self-defence against provoked assault.

Every one who has without justification assaulted another, or has provoked an assault from that other, may nevertheless justify force subsequent to such assault, if he uses such force under reasonable apprehension of death or grievous bodily harm from the violence of the party first assaulted or provoked, and in the belief on reasonable grounds that it is necessary for his own preservation from death or grievous bodily harm:  Provided that he did not commence the assault with intent to kill or do grievous bodily harm, and did not endeavour at any time before the necessity for preserving himself arose, to kill or do grievous bodily harm: Provided also, that before such necessity arose he declined further conflict, and quitted or retreated from it as far as was practicable.

Provocation within the meaning of this and the last preceding section may be given by blows words or gestures.”

  1. [116]
    It could be said that what became s 272 was a deliberate departure from the effect of cl 57, but in our view that is not clearly indicated by the text, and nor is it indicated by Griffith’s notes to his draft of the Code.
  2. [117]
    On the other hand, it is an unremarkable consequence of the provision that a person who has caused death or grievous bodily harm, having begun the assault on the victim with that intent or having endeavoured to do so before it was necessary to preserve himself or herself, should not have the protection of self-defence.
  3. [118]
    And on the appellant’s argument, there could be very few cases where the third clause could matter.  It would be a very unusual case where the accused person, having used murderous violence on the victim before it was necessary to do so, abandoned his or her intent, and declined further conflict and retreated from it.
  4. [119]
    For these reasons, the respondent’s construction should be preferred, and the second ground of appeal, which complains of a misdirection about s 272, should be rejected.

Section 271

  1. [120]
    With the benefit of the thorough analysis of the President of the first ground of appeal, our reasons on this ground can be shortly stated.  In substance, we agree with what the President has written, but wish to add only a few observations.
  2. [121]
    The first is in relation to s 267 of the Code, and its relevance to the question of whether Spencer could be said to have unlawfully assaulted the appellant, before the appellant assaulted him.  Section 267 makes it lawful for a person in possession of a dwelling to use force to prevent or repel another person from unlawfully entering or remaining in the dwelling, if the person believes, on reasonable grounds, that the other is there to commit an indictable offence and that it is necessary to use that force.  On the appellant’s version, the assault by Spencer was the production of the gun.  It was an assault by a threat to use force, rather than an assault by the use of force.  Nevertheless, a threat to use lawful force would not constitute an unlawful assault.  The question then is whether the force which was threatened, by the production of the gun, would have been a lawful use of force.
  3. [122]
    Section 283 of the Code provides that in any case in which the use of force by one person to another is lawful, the use of more force than is justified by law under the circumstances is unlawful.  Further, by s 267, the lawfulness of the use of force is limited to a case where it is necessary to use “that force”.  In R v Cuskelly,[40] it was said that s 267 affords a separate, and more extensive, ground of defence to an accused than self-defence under s 271 and s 272.[41]  But it was also said that under s 267, the force which was used had to be “the legitimate use of force”.[42]  On the appellant’s version, he was dressed in black and masked, when he appeared, in the middle of the night, in Spencer’s house.  However (again on his version) he was unarmed.  The use of force by a firearm, in those circumstances, very arguably would have been more than was justified by law.  This was a question for the jury.
  4. [123]
    The other matter which we wish to discuss is the respondent’s argument that no miscarriage of justice resulted from a s 271 case being withheld from the jury’s consideration.
  5. [124]
    The respondent’s submission here is not that the proviso should be applied, upon the basis that, in the terms of s 668E(1A), no substantial miscarriage of justice has actually occurred.  Rather, the submission addresses the ground of appeal within s 668E(1), that the verdict should be set aside on the ground that there was a miscarriage of justice.  On the premise that this is the relevant basis for the appeal, in relation to the s 271 question, the respondent submits that there will have been no miscarriage of justice unless it was reasonably possible that the failure to direct the jury about s 271 may have affected the verdict, citing Dhanhoa v The Queen.[43]  However, if that were the relevant ground of appeal, any irregularity of this kind is likely to have been a miscarriage of justice within s 668E(1).[44]
  6. [125]
    In any case, that is not the power, within s 668E(1), which this ground of appeal would have the Court exercise.  The ground is that the trial judge erred in not leaving self-defence to the jury under s 271(2).  The judge was asked to decide whether he should do so, and he decided the question in favour of the prosecution.  Whether the evidence did engage s 271 involved questions of fact.  But whether the evidence was capable of engaging s 271 was a question of law.  The complaint under this ground of appeal is that the trial judge wrongly decided a question of law, in that he decided that the evidence was incapable of engaging s 271.
  7. [126]
    The respondent did not argue for the application of the proviso in this case.  The error of law having been demonstrated, the appeal should be allowed and a re-trial ordered.

Footnotes

[1]R v Cuskelly [2009] QCA 375 at [27] per Keane JA, as his Honour then was.

[2]cf. Zecevic v Director of Public Prosecutions (Vic) (1987) 162 CLR 645 at 673 per Deane J.

[3]Per Ormiston J in R v Lawson and Forsythe [1986] VR 515 at 580 cited with approval by Brennan J in Zecevic, supra, at 670.

[4]R v Dean [2009] QCA 309 at [25] and [30] per Fraser JA with whom McMurdo P and Cullinane J agreed.

[5]Per Stanley J in R v Johnson [1964] Qd R 1 at 16.

[6]R v Muratovic [1967] Qd R 15 at 26-27 per Hart J; approved in Randle v The Queen (1995) 15 WAR 26.

[7]R v Keith [1934] St R Qd 155 at 177 per Webb J, which was approved in Muratovic, supra, at 19, 20, 29, 30.  cf. the direction given by the trial judge in Randle, supra, at 41-42.

[8]Muratovic, supra, per Gibbs J at 19; cf. Marwey v The Queen (1977) 138 CLR 630 at 637 per Barwick CJ (with Aickin J agreeing) and at 640 per Stephens J.  Mason J and Jacobs J did not consider the meaning of “otherwise” in their Honour’s judgments;  see also Sreckovic [1973] WAR 85.

[9]Marwey v The Queen, supra, at 637 per Barwick CJ; R v Muratovic, supra, per Gibbs J; this is in contrast to s 271(1), the use of non-lethal force, where the test of necessity is objective, a crucial difference.

[10]For convenience, the person claiming the defence will be referred to as “the accused” and, because this appeal and these provisions are being considered in the context of a conviction for murder, the other person will be referred to as “the deceased”.

[11]Supra, at 29.

[12]Ibid.

[13]“before the necessity of so preserving himself or herself arose”; this slight but crucial difference explains the syntax by which the latter expression is unnecessary to qualify “begun the assault with intent”.

[14]The provision speaks of the accused having that intent with respect to, or endeavouring to kill or do grievous bodily harm to, “some person”.  This will usually be the victim of the assault but it need not be.  This discussion will assume the existence of only two relevant persons, the accused and the deceased victim of the lethal assault.

[15][1964] Qd R 1 at 14; see to the same effect obiter dictum of Henchman J in dissent in R v Keith, supra, at 184.

[16]The case was concerned principally with the nature of provocation that might reduce murder to manslaughter.

[17]Supra, at 28.

[18]Supra.

[19]Section 249 of the Criminal Code (WA), since repealed and replaced by entirely different provision.

[20]Randle, supra, at 36, 37; Pidgeon J agreed with Malcolm CJ and Kennedy J delivered reasons to the same effect: see 48 of Randle in relation to ground 1(a) of that appeal, set out at 28.

[21]R v Oliver [2019] 3 Qd R 221 at [31]-[35].

[22]cf. Muratovic, supra, per Gibbs J at 19; cf. Johnson, supra, per Stanley J in at 14.

[23]Which was then immediately repeated by the judge.

[24][1967] Qd R 15.

[25][1967] Qd R 15 at 28.

[26](1995) 15 WAR 26.

[27]Section 249 of the Code was repeated and replaced in different terms in 2008 by the Criminal Law Amendment (Homicide) Act 2008 (WA), under which the present question could not arise.

[28](1995) 15 WAR 26 at 33-37.

[29][2006] QCA 91.

[30]See, most recently, R v Saxon [2020] QCA 85.

[31][2006] QCA 91 at [49].

[32][1934] St R Qd 155 at 184.

[33][1964] Qd R 1 at 14.

[34][2009] QCA 274 at [35].

[35]As observed by R S O’Regan in Self-Defence in the Griffith Code [1979] 3 Crim LJ 336 at 347.

[36](1995) 15 WAR 26 at 36.

[37][1978] HCA 9; (1978) 141 CLR 88 at 116-117.

[38][1987] HCA 26; (1987) 162 CLR 645 at 663.

[39]In his letter to the Attorney-General of Queensland accompanying the draft Code in 1897: see the note to this effect in O’Regan (supra) at [1979] 3 Crim LJ 336.

[40][2009] QCA 375.

[41][2009] QCA 375 at [30].

[42]Ibid.

[43][2003] HCA 40; (2003) 217 CLR 1 at 13 [38] per McHugh and Gummow JJ.

[44]Kalbasi v Western Australia [2018] HCA 7; (2018) 264 CLR 62 at 69; GBF v The Queen [2020] HCA 40 at [24].

Close

Editorial Notes

  • Published Case Name:

    R v Dayney

  • Shortened Case Name:

    R v Dayney

  • MNC:

    [2020] QCA 264

  • Court:

    QCA

  • Judge(s):

    Sofronoff P, Fraser JA, McMurdo JA

  • Date:

    01 Dec 2020

  • Selected for Reporting:

    Editor's Note

Appeal Status

Please note, appeal data is presently unavailable for this judgment. This judgment may have been the subject of an appeal.
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