The Queen v Allwood[1997] QCA 257

IN THE COURT OF APPEAL

SUPREME COURT OF QUEENSLAND

Brisbane C.A. No. 151 of 1997

[R. v. Allwood]

THE QUEEN

v.

GRAHAM ALLWOOD

Appellant

Pincus JA

McPherson JA

Williams J

Judgment delivered 22 August 1997

Separate reasons for judgment for each member of the Court, each concurring as to the orders made.

APPEAL AGAINST CONVICTION DISMISSED.

CATCHWORDS: CRIMINAL LAW - Appeal against conviction - murder - self-defence  - appellant shot victim when he was approached by victim and his friend carrying a rifle - previous statements by victim to third party that he would kill appellant - appellant feared he would be killed - whether approach by victim and friend with rifle could constitute assault - whether victim needed to see appellant to constitute assault - whether adequate directions in relation to ss. 24 and 271 Criminal Code - directions on "pre-emptive strike" - whether verdict unsafe and unsatisfactory.

   Lean (1989) 42 A Crim R 149

   Marwey v. R (1977) 138 CLR 630

   McCullough (1982) 6 A Crim R 274

   R v. Lawrie [1986] 2 Qd R 502

Counsel: Mr M Johnson for the appellant.

  Mr D Bullock for the respondent.

Solicitors: Legal Aid Queensland for the appellant.

  Director of Public Prosecutions (Queensland) for the respondent.

Hearing date: 22 July 1997

REASONS FOR JUDGMENT - PINCUS J.A.

Judgment delivered 22 August 1997

I have had the advantage of reading the reasons of Williams J in which the evidence is summarised.  There was no dispute that the appellant shot and killed Robinson;  the appellant’s case was in essence that he shot Robinson because he thought Robinson was about to fire at him.  Mr M E Johnson for the appellant argued that the judge’s summing‑up to the jury, relating to s. 24 of the Code, was inadequate.  Counsel advanced four other submissions, but in my view the complaint about the judge’s directions concerning s. 24 of the Criminal Code was the most substantial contention. 

It is a little surprising that so long after the Code was enacted the relationship of s. 24 with the self-defence provisions is not clearly settled.  The critical part of the passage in Lawrie [1986] 2 Qd.R. 502 at 504, which was discussed before us, is as follows:

"In view of the incorporation of the belief in s. 271 the second paragraph no reference to s. 24 is called for in cases within the second paragraph, at least where the belief relied on is that stated in the paragraph:  Marwey v. The Queen (1977) 138 C.L.R. 630.  In such a case s. 24 may still be resorted to and must be the subject of a direction by the trial judge if the accused had an erroneous understanding of some fact which, if true, would have supported the existence of reasonable ground for his belief:  ibid.  per Barwick C.J. at p. 637."

I find this a little difficult to follow and it may conceivably have been mistyped;  the first sentence says that no reference to s. 24 is called for where the belief relied on is that stated in s. 271(2);  the second sentence says in such a case s. 24 "may still be resorted to . . . ".  But rather than attempting to reconcile these expressions, I prefer to examine the problem afresh.

A s. 271(2) defence involves four elements;  if any of them is absent then the defence fails;  that is, the prosecution will succeed, on a s. 271(2) issue, if it manages to satisfy the jury that any one of the four elements is absent.  They are, first, unlawful, and in particular unprovoked, assault on the accused;  second, that the assault caused the reasonable apprehension mentioned in the subsection;  third, that the accused believed on reasonable grounds the matter there mentioned;  and, fourth, that the force used was, although it caused death or grievous bodily harm, necessary for defence against the assault.  It is not difficult to envisage a case in which, for example, the defence fails on the fourth element only.

As to the second and third elements, s. 271(2) itself imports a requirement of reasonableness;  as to the second element, the apprehension must be reasonable and as to the third, the belief must be on reasonable grounds.  This prompts the thought that perhaps the intention was that, as to these two elements, the Crown does not have to exclude s. 24 (where mistake is raised), but merely to prove that any apprehension of death or grievous bodily harm held by the accused was not, in all the circumstances, reasonable, or that any belief relied on as satisfying the third element was not in all the circumstances a reasonable one.  One advantage of this approach would be simplicity.  If s. 24 applies with respect to, say, the third element - the belief on reasonable grounds - then a rather complicated direction might have to be given with respect to mistake, dealing with the question of honest and reasonable but mistaken belief under s. 24(1) and, separately, with belief on reasonable grounds under s. 271(2).

As to the other two elements, the first and the fourth, there would seem to be no logical reason to exclude s. 24.  The problem is the application of s. 24 to the second and third elements.  In Marwey, Barwick C.J. quoted from a judgment of Gibbs J, then a member of the Supreme Court of Queensland, which included this sentence:

"If the accused person had an honest and reasonable, although mistaken, belief that the force in fact used was necessary for defence, he is no more criminally responsible than if that force was in fact necessary for defence - s. 24 of the Code." (636)

Barwick C.J. remarked:

"Except for the reference to s. 24 I would agree entirely with this passage.  I would not find it necessary, in order to reach the conclusion expressed by his Honour, to have resort to the provisions of s. 24.  I take leave to question whether the necessity of doing the fatal act can properly be said to be a state of fact for the purpose of applying s. 24.  Resort might, of course, be had to that section if the reasonable grounds for the necessary belief included the accused’s erroneous understanding of some fact which, had it been as the accused understood, would have supported the existence of reasonable grounds". (637)

His Honour doubted whether the ultimate question posed in the fourth element - the necessity of the force used - can itself be within s. 24.  Barwick C.J. accepted, as to the second element, that s. 24 could be called in aid by the defence.  The two Code cases now to be mentioned support the view that s. 24 can be used by the defence in relation to the second and third elements;  I adopt that view.  In McCullough (1982) 6 A.Crim.R. 274, although no reference was made to the High Court decision in Marwey, a rather similar approach was taken to the application of the section of the Tasmanian Code (s. 14) corresponding to s. 24 of our Criminal Code. The Court remarked:

"An apprehension that a person is about to cause one death or grievous bodily harm is not a belief in a state of facts, nor is a belief that one cannot preserve oneself otherwise than by causing death or grievous bodily harm to the assailant.  Both are exercises of judgment or opinion . . . The concept of honest and reasonable but mistaken belief in a state of facts can of course have a place in respect of whether there has been a justified use of force in self-defence . . . For example, if a person is advancing upon another with apparent aggressive intent, pointing a pistol at him and threatening to shoot, an honest and reasonable but mistaken belief held by the apparent victim that the pistol is loaded might provide, together with other facts stated, the ground of the reasonable apprehension and the belief on reasonable grounds to which [the Tasmanian self-defence provision] refers." (282) 

Then under the West Australian Code in Lean (1989) 42 A.Crim.R. 149, following Marwey, Brinsden J held that the -

" . . . accused’s honest and reasonable but mistaken belief that it was necessary for him to use force to defend himself is not an honest and reasonable but mistaken belief in the existence of a state of things . . ."  (152)

The judge went on to hold that the question, if the accused believed that he had been attacked by a person wielding a knife or weapon, was whether:

" . . . in those circumstances it was a reasonable judgment for him to have formed an apprehension of death or grievous bodily harm, and whether there existed reasonable grounds for him to have formed the view that he had, that it was necessary for his preservation to use force in self-defence". (152, 153)

I note, also, that in Beckford [1988] 1 A.C. 130 at 144, the Privy Council accepted as consistent with the common law of self-defence that:

"if the defendant may have been labouring under a mistake as to the facts, he must be judged according to his mistaken view of the facts".

Here, the evidence gave rise to the possibility that the appellant thought he was being assaulted in that Robinson looked as if he were aiming a rifle at him.  In my opinion the appellant was entitled to have the jury directed under s. 24 in relation to the existence and character of an assault by Robinson.  If they thought that the appellant shot Robinson under an honest and reasonable, but mistaken belief that Robinson was pointing a rifle at the appellant with a view to firing at him, then the case of self-defence had to be considered as if Robinson had been doing just that. 

The authorities to which I have referred and in particular Marwey and McCullough support the making of a distinction between a mistake of judgment by the accused about the apprehension, belief and necessity with which s. 271(2) deals, that not being a s. 24 matter - and a mistake about the underlying facts on which the apprehension, belief or supposed necessity is based, which is a s. 24 matter.  This may be thought to be excessively subtle and perhaps there is no need to belabour a jury with it, in every case.  It appears to me that the key to a proper direction in this area is to emphasise to the jury that where mistake arises, the accused is entitled to have all the elements of the s. 271(2) defence considered as if the basic facts were as the accused erroneously believed them to be - for example, as if the basic facts, in a case such as the present, were that the supposed assailant was in the process of aiming at the accused with a view to shooting him.  In the present case Mr Johnson argued that the judge’s direction on s. 24 was not sufficiently detailed.  It is true that his Honour might have gone into more detail than he did;  but doing so might have over-complicated the matter.  The judge explained to the jury clearly what was the question of mistake involved, on the facts of the case, told them where the onus of proof lay and, repeatedly, explained that the effect of mistake would be to require the facts to be considered as the accused believed them to be.  What his Honour did not do was to refer, in discussing mistake, to the impact of mistake on any particular requirement of s. 271(2).  In some circumstances, for example, where the critical issue is the application of one of the four elements in s. 271(2), it would be advantageous and perhaps necessary for the judge to deal with the effect of mistake on that element, particularly.  But in the present case it does not appear to me that the defence lost any advantage because the judge did not direct the jury’s mind more particularly to the application of the defence of mistake to any of the elements of s. 271(2).  Nor, in my view, was it necessary for the judge to postulate a variety of possible mistakes;  his Honour told the jury in effect that the question of mistake involved was whether the appellant believed Robinson to have raised his gun and pointed it at the appellant and that was in my view a reasonable and simple way to explain the nature of the defence.

It is my conclusion, therefore, that the primary judge’s explanation of the operation of mistake, although not very elaborate, was sufficient in the circumstances.  As to the other questions raised, I am in general agreement with the reasons of Williams J, and I also agree that the appeal should be dismissed.

REASONS FOR JUDGMENT - McPHERSON J.A.

Judgment delivered 22 August 1997

Section 271 is one of a group of sections of the Criminal Code on which it is difficult to instruct a jury in terms that are at once simple, accurate and readily comprehensible.  Merely to read the provisions out is seldom of much help to them.  It takes close study for even a trained lawyer to understand how those provisions operate in particular circumstances.

Section 271(1) provides an excuse to a person who uses force to defend himself against an unlawful and unprovoked assault, meaning by that an attack or a threatened attack.  He may use such force against his assailant as is reasonably necessary to defend himself against that attack or threat.  By doing so, he commits no criminal offence, so long as the force he uses is not intended, or likely, to kill or inflict bodily harm on his assailant or attacker.

If he does use force that kills or inflicts grievous bodily harm on his attacker, he has no excuse under s. 271 for what he did unless the requirements of s. 271(2) are satisfied.  Taking only the straightforward case of someone who believes he is the target of an attack, the first requirement is that the attack, or threatened attack, must be such as to create a belief that he is going to be killed or grievously harmed. The second is that the use of such force must be necessary to defend himself from the attack or threat. The third is that he must believe that killing or grievously harming his attacker is the only way he can preserve himself from being killed or grievously harmed.

The belief of the person using such force to defend himself must be a belief that is reasonable in the circumstances.  That being so, there is, as the decisions referred to by Williams J. point out, little scope for the operation of the doctrine of mistake under s. 24 in relation to s. 271(2). At least, that is so as regards the first and the third of the requirements specified above: see R. v. Lawrie [1986] 2 Qd.R. 502, 504. That is because, as Connolly and Williams JJ. recognised in that case, the expressions “reasonable apprehension” and belief on “reasonable grounds” in s. 271(2) themselves cover the same ground as s. 24.  They do not need to be supplemented or duplicated by the provisions of s. 24.

The requirement of s. 271(1), and consequentially of s. 271(2), that there be an “assault” (which I have been referring to here as an attack or threatened attack) is an instance in which s. 24 is capable of having an operation.  A person claiming the benefit of s. 271 may mistakenly believe that he is being assaulted by being threatened, when in fact he is not.  A belief in the existence of a state of things like that is, so long as it is reasonable, capable under s. 24 of relieving that person from criminal responsibility to the same extent as if the things had been as he believed they were.  In other words, even if there was in fact no assault as required by s. 271, his mistaken but reasonable belief that he was being assaulted places him in the same position under s. 24 as if that requirement in s. 271 had been fulfilled.

To my mind, the present case fell to be considered in that way.  The appellant claimed that Robinson was aiming a rifle in his direction.  He believed, or so he said, that Robinson was intending to shoot him.  So he fired first, and killed Robinson.  His criminal responsibility for killing Robinson did not depend on whether Robinson was in fact intending or threatening to shoot him.  Under s. 24 he was entitled to be placed in the same position as if such an attack or threat of it had been made, provided always that his belief to that effect was reasonable.  It was not essential for the jury to decide whether Robinson was in fact threatening to shoot the appellant.  It was enough if the appellant reasonably believed that that was what Robinson was threatening to do. Once that requirement was satisfied, the appellant was entitled to rely on s. 271 to the same extent as if there had in fact been an assault.

That would not, however, have been enough to secure the benefit of s. 271(2).  For a claim of self‑defence to a charge of killing or doing grievous bodily harm, it was also necessary to satisfy the other three requirements specified in that subsection.  In that connection it is necessary to stress that, if the jury were left with a reasonable doubt about those matters, the appellant was entitled to the benefit of that doubt.  The prosecution was required to prove the charge against the appellant beyond reasonable doubt, which in a case like this meant that the prosecution had to that standard to prove that at least one of those requirements was not satisfied.  It might succeed in persuading the jury beyond reasonable doubt that the appellant under s. 24 had no reasonable belief that Robinson was threatening him at all; or that there were no reason to believe that the appellant was going to be killed or grievously harmed by Robinson; or that it was not necessary to use such force to defend himself at all; or that there were no reasonable grounds for believing that killing Robinson or grievously harming him was the only way in which the appellant could have preserved himself from death or grievous harm.  If the prosecution succeeded in satisfying the jury beyond reasonable doubt of any one of these matters, the excuse provided by s. 271 would not avail the appellant.

In my respectful opinion, for the reasons given by Williams J., the directions and the redirections given by the learned trial judge adequately brought all these matters fairly before the jury for their determination.  The reference by his Honour to a “pre-emptive” strike seems to me, considered in the context in which that expression was used, no more than a shorthand method of saying that s. 271 would not be available if shooting Robinson first was not the only way in which the appellant could defend or preserve himself from death or grievous harm, or, alternatively, that the appellant had no reasonable grounds for believing that to be the case.

I agree with what Williams J. has said in his reasons in relation to s. 31(1)(c).  In so far as there is an area of common ground between that provision and s. 271, the latter is specific and must in circumstances like these be treated as dominant.

I would dismiss the appeal.

REASONS FOR JUDGMENT - WILLIAMS J

Judgment delivered 22 August 1997

The appellant, Graham Allwood, was convicted in the Townsville Supreme Court of the charge of murdering one Ronald Alexander Robinson on 31 January 1996 near Wallaman Falls.  He appeals against that conviction on a number of grounds.

It is not irrelevant to also note that when arraigned the appellant pleaded guilty to a charge that between 31 August 1995 and 1 February 1996 at Wallaman Falls he unlawfully produced a dangerous drug namely cannabis sativa, the quantity of which exceeded that specified in the Third Schedule.  He was convicted and sentenced to imprisonment for three years with respect to that charge.  No challenge to that conviction and sentence was raised on this appeal.

It was not disputed at the trial that the appellant fired the shot which caused the death of Robinson.  The appellant's case, primarily raised by evidence which he gave at the trial, was that he acted in self-defence and in the circumstances was justified in killing Robinson.  If accepted by the jury that would have resulted in a finding of not guilty with respect to both murder and the alternative charge of manslaughter.  In addition counsel for the appellant at trial raised s. 31(1)(c) of the Code as a defence to the alternative charge of manslaughter.  Little, if anything, was said about that latter defence during argument on the hearing of the appeal, and it is difficult to see how on the facts it was relevant; it is not necessary to say more about that.

The notice of appeal as filed contained seven grounds of appeal, but counsel for the appellant abandoned any reliance on those grounds numbered 1 and 6.

The relevant evidence can be summarised as follows.

Prior to January 1996 the appellant had a lengthy criminal record which included offences involving firearms.  He had spent time in prison and through his criminal activities had become acquainted with the deceased Robinson and the prosecution witness Doherty.  For at least some months prior to January 1996 he was cultivating marijuana in the Wallaman Falls district, and that conduct was the subject of the charge to which he pleaded guilty.

In very broad terms it can also be accepted that the appellant knew of, or at least believed he knew of, instances of other marijuana crops in the area and instances of such crops and campsites associated with them being raided by persons either for the purpose of stealing the crops or scaring off the cultivators.

Doherty, who was present with Robinson when he was shot, had also been involved in marijuana cultivation.  He had served at least one 3 year term of imprisonment for such an offence.  There were at least suggestions in the evidence that he "ripped off drug crops".

Not a lot is revealed by the evidence about Robinson's background.  The appellant did say that he first met Robinson at Doherty's place and subsequently met him in Lotus Glen, a prison.  He mentioned that Robinson was in jail for about a year.  Apparently Robinson usually carried a gun wherever he went.

PJ Thomson gave evidence that a few days before the Australia Day weekend in 1996 he was approached by Robinson near Doherty's house and in the ensuing conversation Robinson threatened to kill the appellant.  According to Thomson the words used were "Bluey's finished".  A few days later Thomson travelled to the appellant's camp near Wallaman Falls and informed him that Robinson "came to my place and he said he was going to blow you away."  The appellant's version was that "Paul came up with a message that Jim Doherty wanted to know where everything was and that wasn't our original agreement and he said he was going to shoot me."  As a response to that the appellant said that he went to Doherty and put it to him that Thomson had been told "that they were going to come up and shoot me".  According to the appellant Doherty then "got a bit agro, like he normally does".

The accounts of those events, and the recollections of witnesses as to the precise words used, varied somewhat from witness to witness, and from evidence in chief to cross-examination.  But in general the broad effect of the evidence remained as I have recorded it.

Doherty was called as part of the prosecution case, but it is fair to say that a reasonable jury could well have had serious doubts as to his overall credibility.  For example, his evidence contradicted police evidence on a number of issues where the jury could well have concluded that the police evidence was more reliable.  But, with that qualification, Doherty's evidence was of some importance because he was present at the time and place of the killing.

Doherty's evidence was that he went with Robinson to the Wallaman Falls area on 30 January 1996.  They had gone there to pick up a stove and some tractor parts and had travelled in a Landrover motor vehicle to an area near the Rin Tin Tin Mine.  They called at a campsite on the way but the occupant was not there.  They camped overnight in the Landrover near where the tractor parts were.  The following morning they could not start the vehicle.  Doherty suggested they walk to another camp which he knew where there probably was a vehicle which could given them a tow.  They both set off walking towards that camp.  Robinson had a rifle with him which was fitted with a silencer.  He also had a pair of binoculars.  Doherty maintained in the face of suggestions to the contrary that he was not armed.  According to Doherty they arrived at a point from which they could see the other camp; that was in fact the appellant's camp.  Robinson used his binoculars and announced that there was nobody there.  They walked a bit further on and Robinson, according to Doherty, had another look at the camp through binoculars and whilst doing so his gun was propped against his leg.  As Robinson lowered the binoculars Doherty heard a shot and saw Robinson fall.  Two more shots were fired and Doherty decided to leave the area.  He ultimately reached a telephone from which he called police.

The appellant's evidence was that the day before the shooting he had seen and heard a Landrover travelling through the area.  He saw two people in the vehicle but was unable to recognise them.  He kept out of sight whilst observing the vehicle.  From the noise he was able generally to determine the area to which the vehicle travelled.  It was apparently unusual for a vehicle to be in that area and the appellant thought it might have been Robinson and Doherty in it.  The following morning the appellant woke early and went to inspect two small marijuana crop sites about a mile away from his campsite.  The appellant had with him at the camp a sawn-off rifle; he took that with him when he went to inspect the crop sites.  Having watered the plants he walked back towards his camp.  Somewhere along the way he stopped for a cigarette; he was sitting next to a tree.  After about twenty minutes his dog began growling and "for some reason I looked over me right shoulder and the next minute Doherty and Robinson started walking down the hill".  The appellant went behind the tree and grabbed his dog.  He says he thought to himself "I'm gone I'm dead".  He said he thought that because his weapon was no good and he "could see that Robinson had a rifle".  His evidence went on:  "I thought, 'well, I can't sit here all the time', because that track led right down, right - practically next to where I was.  ... So I looked around again and I sort of half - I suppose half - I wasn't fully up, but half up, and Robinson just looked like he was aiming a - putting a rifle in my direction.  So I just fired. ... I think when I first looked around he looked like he was looking at something."  A few answers later on he said that Robinson "looked like he was aiming the rifle.  Well, I knew he wasn't there to have a cup of tea, so I just fired."

Other evidence established that the appellant and Robinson were 62 metres apart when the shot was fired.

The appellant said that he fired three shots in all, the last two being "to make sure Doherty got away - got out of the area."  He also spoke of Robinson and Doherty parting - Doherty peeled off one way and Robinson just kept coming for me - shortly before the fatal shot.  He mentioned hand signals between Doherty and Robinson at that time.

Whilst those accounts given by Doherty and the appellant varied somewhat under cross-examination the above summary broadly reflects the evidence as to the critical events.

As already noted the appellant's case was that he fired the shot which killed Robinson because he feared for his own life.  The defence relied on s. 271 of the Code, self-defence against unprovoked assault.  That section provides

"(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 cannot otherwise preserve the person defended from death or grievous bodily harm, it is lawful for the person to use such force to the assailant as is necessary for defence, even though such force may cause death or grievous bodily harm."

The defence case at trial was put in the alternative.  Either the facts established by the evidence gave rise to the defence under s. 271, or alternatively, the appellant honestly and reasonably believed, though mistakenly, that such were the facts.  That alternative proposition was based on s. 24 of the Code.  Undoubtedly taking the lead from defence counsel the learned trial judge in his summing up referred to both propositions.

If anything the summing up was more than favourable to the accused because it gave s. 271 an apparently wider operation than strictly it had.  The relevance of s. 24 to a defence under s. 271 was the subject of consideration by the High Court in Marwey v. The Queen (1977) 138 CLR 630.  Barwick CJ (with the concurrence of Mason and Aickin JJ) said at 637:

"I take leave to question whether the necessity of doing the fatal act can properly be said to be a state of fact for the purpose of applying s. 24.  Resort might, of course, be had to that section if the reasonable grounds for the necessary belief included the accused's erroneous understanding of some fact which, had it been as the accused understood, would have supported the existence of reasonable grounds."

That was taken up by the Court of Criminal Appeal in R v. Lawrie [1986] 2 Qd. R. 502.  Connolly J (with the concurrence of Williams J) speaking of s. 271 said at 504:

"The primary rule permits the use of such force as is reasonably necessary to make effectual defence, provided that the force used is not intended to and is not such as is likely to cause death or grievous bodily harm.

If this were an exhaustive statement, effective self-defence would on occasion be impossible within the law.  The only effective defence against an assailant armed with a deadly weapon may well be the use of disabling force (by which I mean force calculated to cause death or grievous bodily harm).  The second paragraph recognises this type of situation by permitting the use of such force where 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 he cannot otherwise preserve the person defended from death or grievous bodily harm.  It is a qualification of the primary rule justifying what would otherwise be excessive force.  A similar result might have been achieved by omitting reference to the belief of the defender and expressing an objective requirement that the person defended cannot otherwise be preserved.  Such a formulation would have required, in an appropriate case, resort to s. 24 to enable the defender to rely on honest and reasonable belief that the person defended could not otherwise be preserved.  In view of the incorporation of the belief in s. 271 [of] the second paragraph no reference to s. 24 is called for in cases within the second paragraph, at least where the belief relied on is that stated in the paragraph:  Marwey v. The Queen (1977) 138 CLR 630.  In such a case s. 24 may still be resorted to and must be the subject of a direction by the trial judge if the accused had an erroneous understanding of some fact which, if true, would have supported the existence of reasonable ground for his belief:  ibid per Barwick CJ at p.637."

If those authorities had been drawn to the attention of the learned trial judge then probably some of the difficulties raised in the course of argument on appeal would not have arisen.  There was strictly no need to refer to a reasonably mistaken belief that harm to the appellant could only be avoided by shooting at Robinson.  But speaking in those terms in the summing up was, if anything, more favourable to the accused because it apparently widened the scope of operation of s. 271.

The first ground of appeal argued was that the "learned trial judge ought to have directed the jury that the act of the deceased and Doherty of approaching the appellant's camp in the early morning whilst armed with a loaded weapon or weapons, in circumstances where those two persons had made utterances that they were going to kill the appellant, together with the nature of the approach itself, could constitute an unlawful assault for the purposes of s. 271 of the Criminal Code".  In the principal summing up the learned judge only specifically referred to the "pointing of a gun by the deceased at the accused" as the relevant assault for purposes of s. 271.  But in response to requests from the jury for redirections he elaborated on that on two occasions.  It is sufficient to refer to what was said on the first of those occasions:

"Members of the jury, there is, of course, no doubt, and you will understand this I am sure clearly enough, that if a person aims a gun at another he assaults that other because there is involved in that the threat to apply force by someone having apparently a present ability to effect his purpose.  In the case of someone walking towards another, in the general direction of another carrying a rifle, then the question of an assault has to be considered in this way, and it is entirely a matter for you:  an assault could be constituted if in the circumstances, including the background of any threats made by the person carrying the rifle against the person towards whom he is walking, if a reasonable person would have understood having a regard to that background, the manner in which the person approached, the holding of the rifle, the way in which he held the rifle and the circumstances generally is conveying a threat to use that rifle, then that would amount to an assault and it is for you to decide whether those circumstances are such as would give rise to a reasonable person to understand that by the conduct of that person, viewed in the background I have spoken of any background of threats have been made to kill or anything else, as conveying a threat to use the rifle, that is, a threat to apply force by someone having apparently a present ability to do so."

That (and if necessary taken in conjunction with the later redirection) constitutes a sufficient direction to the jury as to what may have constituted the assault for purposes of s. 271.  The learned trial judge did in fact direct the jury in accordance with what is stated in ground 2 of the notice of appeal, and in consequence there is no substance in the ground taken.

Ground 3 challenged the statement in the summing up that a "person cannot threaten someone unless they know they are there, so it would not amount to an assault as such".  That statement was made in the course of the first redirection to the jury in response to questions raised by them.  The third question put to the judge by the jury was:  "If the victim has not seen the defendant would this constitute an assault?"  It is important to put the words quoted above from the summing up in the total context of the answer to the jury's question.  What his Honour said was:

"Now, obviously a person cannot threaten someone unless they know they are there, so it would not amount to an assault as such, but again the question of s. 24 arises and you have to consider this matter by reference to any honest and reasonable belief that the accused might have had if you thought that they were the facts, that the man was in fact was assaulting him in the sense that I have just explained in terms of an approach of that kind with a gun."

The learned trial judge was referring to the extract quoted above from that first redirection when he mentioned the "approach ... with a gun."

In my view read as a whole there is nothing objectionable about that passage; indeed it puts the position at best for the appellant.  The term "assault" is defined in s. 245 of the Code and relevantly speaks of a person who "attempts or threatens to apply force of any kind to the person of another" with "a present ability to effect the persons's purpose".  A man practising a golf swing with a club in his hands, or waving an unfurled umbrella about in order to attract the attention of another will not be assaulting other persons in the immediate vicinity.  The same physical acts would, however, constitute an assault if done with the intention of threatening to apply force to some person in the vicinity.  To that extent intention is relevant to the issue whether or not the physical acts constituted an assault; that appears to be confirmed by observations in R v. McIver (1928) 22 QJPR 173 and Hall v. Fonceca [1983] W.A. R. 309.  But this is the very situation adverted to in Marwey and Lawrie.  A person in the immediate vicinity of the man practising his golf swing or waving his umbrella to attract attention may well reasonably believe that he is being threatened and in consequence would be entitled to act on that mistaken belief in order to defend himself.

Here, if Doherty's evidence is accepted, Robinson was not aware of the appellant's presence near the camp immediately before the shooting.  It was that which probably gave rise to the question from the jury.  What, in effect, his Honour directed the jury to consider was whether or not the appellant reasonably believed that the approach of the two men, one armed, constituted an assault.  If he did then there was a basis on which s. 271 could operate.  Of course, the holding of the reasonable belief that the approach in the circumstances constituted an assault was not the end of the matter; it was then for the jury to consider the other elements of s. 271.

Ground 4 raised for consideration the general directions in the summing up with respect to ss. 24 and 271 of the Code.  As the argument on appeal was developed it came down to the proposition that the learned trial judge should have separated out the individual facts on which s. 24 could have operated.  The learned trial judge did refer in general terms to the fact that s. 24 was relevant both to the question of self-defence and the issue of compulsion (s. 31), but did not deal in any detail with the latter.  As already noted I have real difficulty in seeing how s. 31(1)(c) adds anything if the defence of self-defence is rejected.  Further, as already pointed out, s. 24 has only a very limited operation so far as issues raised by s. 271 are concerned.  In my view the learned trial judge in his summing up dealt adequately with the proper scope of operation of s. 24 and that is what is critical.  In the end result I have come to the conclusion that the summing up was not confusing to the jury and that, particularly after the redirections, the jury's mind was directed to the real issues for their consideration.

Ground 5 of the notice of appeal asserts that the learned trial judge erred in his directions as to a "pre-emptive strike by not explaining such an action in relation to s. 24 of the Criminal Code".  What the learned trial judge in fact said was this:

"The defence of self-defence, members of the jury, as I think would be obvious to you, does not allow a pre-emptive strike on the part of a person.  It does not allow somebody to make a pre-emptive strike on the basis that, for example, although a person whom he might believe has a murderous intent towards him has not yet seen him but he will or might, and that if - that is the first person does not act and shoot the other man, then the other one will at some time when he finds his presence do so, and try to kill that man."

For the reasons which I have already expressed s. 24 is of limited relevance to a defence based on s. 271.  Section 24 has no relevance to the question whether or not a pre-emptive strike is permissible.  That must be answered by considering s. 271(2):  Is there such a reasonable apprehension of death that the person using force by way of defence believes on reasonable grounds that he cannot otherwise preserve his life than by immediately causing the death of the other.  It is not in the context of s. 271 really helpful to speak of a pre-emptive strike.  If the test is phrased as I have indicated it then there will undoubtedly be occasions when the person whose life is threatened may strike first.  But as would have been clear to the jury from the illustration given in the summing up such a pre-emptive strike will not be justified unless the elements of s. 271(2) are established.  The summing up clearly directed the jury to the correct issues, and the reference to "pre-emptive strike" in the body of the summing up did not constitute an error.

The final ground of appeal argued was that the verdict was unsafe and unsatisfactory and that in consequence the conviction should be set aside and a verdict of acquittal entered.

Primarily this submission on behalf of the appellant was based on the proposition that no reasonable jury could believe the evidence of Doherty.  Certainly there were serious doubts about Doherty's credibility, but the jury were at least entitled to consider his evidence on the basis that he was present at the time and place of the events giving rise to the charge.  But total rejection of his evidence does not significantly weaken the prosecution case; he was not a critical witness.  If his evidence was entirely rejected then it would have been easier for the jury to draw the inference that Doherty and Robinson were approaching the appellant's camp with a view to doing him some injury.  That led to the real question for the jury; whether or not they could negative beyond reasonable doubt the defence based on s. 271.  In that regard it was the evidence from the appellant himself which was of critical importance; Doherty's evidence could not have materially assisted the jury in reaching a conclusion on that question.

Counsel for the appellant also referred to a number of specific matters in support of this ground.  There was the body of evidence from Thomson and the appellant as to the threats on the appellant's life made prior to the events in question.  When he first spoke to the investigating police the appellant gave a false account of his movements at the material time.  That may have been regarded by the jury as having some prejudicial effect outweighing its probative nature.  Because the appellant's rifle was sawn-off it was difficulty to aim accurately, and the deceased was some 62 metres away from the appellant when shot.

All such matters which were particularly within the province of the jury and whether looked at in isolation or collectively they do not constitute grounds for concluding that the verdict of the jury was unsafe and unsatisfactory.

A consideration of all material in the records does not raise such doubts about the conviction as would lead to the conclusion that it was unsafe and unsatisfactory.

For all of the above reasons the appeal should be dismissed.