IN THE COURT OF APPEAL

SUPREME COURT OF QUEENSLAND

C.A. No. 439 of 1997

Brisbane

[R. v. Gray]

THE QUEEN

v.

DAVID JOSEPH GRAY Appellant

McPherson J.A.

Davies J.A.

Fryberg J.

Judgment delivered 13 March 1998

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

APPEAL AGAINST CONVICTIONS ALLOWED. CONVICTIONS QUASHED.  VERDICTS OF GUILTY SET ASIDE.  NEW TRIAL ORDERED ON COUNTS 1 AND 2 LIMITED RESPECTIVELY TO CHARGES OF MANSLAUGHTER AND DOING GRIEVOUS BODILY HARM.

CATCHWORDS: CRIMINAL LAW - MANSLAUGHTER - GRIEVOUS BODILY HARM - Self-defence - s. 271 Criminal Code - Whether jury properly directed on elements of ss. 271(1) and (2) - Whether conditions in s. 271(1) are cumulative upon those in s. 271(2) - Whether evidence of witness wrongly excluded.

Marwey v. The Queen (1977) 138 C.L.R. 630;

R. v. Muratovic [1967] Qd.R. 15

Counsel:  Mr Butler S.C. for the appellant

Mr P.F. Rutledge for the respondent

Solicitors:  Paul Richards & Associates for the appellant

Director of Public Prosecutions (Queensland) for the respondent

Hearing Date:  4 March 1998

REASONS FOR JUDGMENT - McPHERSON J.A.

Judgment delivered 13 March 1998

The appellant was brought to trial in the Supreme Court on an indictment charging him in count 1 with the murder of Phillip Goatley; in count 2, with doing grievous bodily harm to Rohan Tidswell with intent to do grievous bodily harm; and, in count 3, with unlawfully wounding Keith Jealous.  He was found not guilty of the offence charged in count 3 and those charged in counts 1 and 2; but guilty on count 1 of the manslaughter of Goatley and on count 2 of doing grievous bodily harm to Tidswell.  In substance, therefore, the jury acquitted the appellant of the offences in the first two counts involving in each case an element of intention. As to count 3, it is a permissible inference from the evidence at the trial, that the jury were left in doubt whether or not the wounding in question might not have been an accident within the meaning of s. 23 of the Criminal Code.

The substantial defence raised by the appellant at his trial was one of self-defence within the meaning of s. 271 of the Code of himself and his family.  The complainants named in each of the counts were members of a local “bikie” group known as the Rebels Club.  There was a history of mutual animosity, stretching back some months before the date of the alleged offences on 26 June 1996, between the appellant and members of the Rebel group.  The appellant is a retired former employee of the Department of Defence, almost 54 years of age at the time in question, who lived with his wife, children and grandchildren at a rented house at 343 East Street, Rockhampton.  He is an Aboriginal, and there is little doubt that racial disharmony played a part in bringing about the incident giving rise to these charges.  Insults had from time to time been traded between him and members of the Rebels Club.  He condemned them as “white trash”, and they, or some of them, used epithets in which his racial origins figured prominently.  There was evidence of threats against him and his family, including one that the house in which his daughter was living would be burnt down, and that the appellant’s throat would be cut.  Various encounters in the streets were marked by reciprocal insults, hostility and threats of retaliation.

It is not for present purposes necessary to investigate in precise detail the regrettable state of affairs leading up to the incident on 26 June 1996 or even the tragic events of that day.  Suffice to say that on the morning of that day the three persons mentioned in the indictment arrived by vehicles, which included a utility and a motor cycle, which they parked in the street in front of the appellant’s house.  Some of them were said to have been armed with baseball bats, pick handles, or the like, and, according to some of the evidence, threats were made to fix the appellant “once and for all” by killing him.  Those persons were joined by other associates including two women, who, according to one version of events, added to the atmosphere of the occasion by beating with sticks on the fence rail around the house.  Rocks, bricks or pieces of concrete were thrown at the house and a louvre was broken.  One of the missiles was thrown by Goatley, who was the man killed, who appears to have made his way into the neighbouring yard to a vantage point under a balcony from which to carry out the attack.

The appellant was, or so he claimed, acutely aware of the imminent personal danger to himself and to the children, ranging in age from about two to 12 years, who were in or about his house.  He armed himself with a .22 semi‑automatic rifle which he kept in the house.  His first shot was aimed at and struck the tyre of the utility and succeeded in deflating it.  Another bullet struck Jealous in the leg, possibly as the result of a ricochet off something more solid.  Having become aware of Goatley’s actions, he fired a shot, which struck him in the head and ultimately caused his death.  Tidswell was shot in the leg, when according to the appellant’s account, he charged at the appellant in a threatening manner.

There is little doubt that, according to the appellant’s account, which was supported in some respects by evidence of other witnesses at the trial, circumstances existed that were capable of giving rise on his part to a claim of self-defence under s. 271 of the Criminal Code.  It is, however, by no means certain that the jury accepted the evidence to that effect.  If they did, or (because the onus lay on the Crown) if they were left with a reasonable doubt about that question, the appellant ought to have been acquitted under that section.  As has already been mentioned, however, the substantial effect of the verdicts was that the appellant was found not guilty only of those offences in which intention formed an element, or, in the case of Jealous, where the offence might have been the result of accident within the meaning of s. 23.

On appeal, it was submitted by Mr Butler S.C., who appeared for the appellant before this Court, that the learned judge had misdirected the jury on the law relating to self-defence under s. 271, and that, in consequence, the appellant had been wrongly deprived of a fair chance of acquittal at the trial.  In the course of summing up, the matter of self-defence was put to the jury for their consideration on no fewer than six occasions, of which two were given in redirections.  In some of those instances the terms in which the direction was given diverged in certain respects from its form in other instances; but the complaint on appeal is directed particularly to those occasions (of which there was more than one) on which the learned judge included, as a distinct or additional element in the direction, a requirement that the use of force should have been “necessary”, suggesting by that objectively necessary apart from the existence of any state of actual belief on the appellant’s part, based on reasonable grounds, as to the need for such force.  As an example, after referring to the terms of s. 271(2) of the Code, his Honour at one point in the summing up explained to the jury:

“Now, there are then those three things that have to be considered, but if the Crown proves beyond reasonable doubt that one of those did not exist, well, then, the defence falls.  So, if the Crown can prove that nothing was done that could cause reasonable apprehension of grievous bodily harm to the accused or the members of his family, or if the Crown proves that there was no reasonable grounds for the accused to believe that what he was doing was necessary to preserve those people, or if the Crown can prove that it was not necessary to use the force he used in order to defend himself, but proves any of those, then it is proved that what was done was unlawful”.

In these circumstances, it was submitted on behalf of the appellant that the jury might, erroneously in law, have concluded that objectively one or more of the actions of the appellant were not necessary, although they were in fact not satisfied (or were left in reasonable doubt) that the appellant reasonably believed the force used was necessary to preserve himself or another.

To determine whether this and other instances in the summing up are open to the complaint now made against them, it is necessary to begin by setting out the whole of subs-s. (1) and (2) of s. 271 of the Code:

“271. (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 any such force to the assailant as is necessary for defence, even though such force may cause death or grievous bodily harm.”

As has been said on more than one occasion in the past, the provisions of s. 271 are by no means a model of clarity or simplicity.  In dealing with a case falling within the terms of s. 271(2), there is a tendency, observable in some of the reported cases, to read s. 271(1) as laying down a series of conditions which are to be treated as cumulative upon those specified in s. 271(2).  Thus, for example, in Marwey v. The Queen (1977) 138 C.L.R. 630, 633, the learned trial judge directed the jury that a “critical question is what is reasonably necessary ... whether he [the accused] went beyond what was reasonably necessary in all the circumstances”.  The expression “reasonably necessary” appears only in s. 271(1), which suggests that it was being incorporated in the direction under s. 271(2), where it is not mentioned.  Likewise in the present case, there was a point in the summing up where the learned judge referred to the question whether it was “necessary for effectual defence” for the appellant to have fired a shot at Tidswell.  The expression “necessary to make effectual defence” appears in s. 271(1), but it forms no part of s. 271(2).

It is not difficult to understand how these requirements, or some of them, of s. 271(1) may sometimes be carried over into the summing up in s. 271(2).  Because at the time of summing up it is not known whether or not the jury is disposed to find that the first condition in s. 271(2) is satisfied, a trial judge is sometimes bound to give directions relating to the application of both subsections.  Generally speaking, it is only where death or grievous bodily harm has in fact been caused that an issue arises whether the nature of the assault is such as to cause reasonable apprehension of death or grievous bodily harm within the meaning of s. 271(2); but a case may be complicated by the need to refer to elements deriving from s. 271(1)where there is also a separate charge of a distinct offence in which the force used was alleged to have caused an injury falling short of grievous bodily harm, and was not intended or likely to do so.

What is clear about sub-ss. 271(1) and (2) is that, although their provisions share some common elements, the conditions for self-defence that are prescribed by each of those subsections are differently stated and, for the purpose of applying s. 271(2), ought not to be combined or treated as imposing requirements that are cumulative.  The only ground common to both subsections is that described in the opening words of s. 271(1), which are “When a person is unlawfully assaulted, and has not provoked the assault ...”.  That element is also made a pre‑condition for the application of s. 271(2) by the introductory words, which are: “If the nature of the assault is such as to cause reasonable apprehension ...”.  The reference to “assault” in s. 271(2) must mean such an assault as predicated in s. 271(1), and so is to be regarded as importing the same initial requirement as prescribed in that subsection, which is that there be an unlawful assault that was not provoked by the person against whom it was directed.

Beyond that point, however, the two subsections diverge in specifying the conditions under which self-defence is made available to the accused as a defence to a charge arising from the use of force to repel the assault.  The point of divergence is marked in each subsection by the presence of the expression “it is lawful ....”, which is the relevant part of the provision that in each instance operates to make self-defence available in answer to the charge.  In the case of s. 271(1), three conditions are specified.  They are that the force used (1) must be “reasonably necessary to make effectual defence against the assault”; and (2) that it must not be intended, and (3) must not be such as is likely to, cause death or grievous bodily harm.

None of those three conditions is repeated in s. 271(2).  Assuming an unlawful and unprovoked assault, only two conditions need be satisfied for self-defence to be available under that subsection.  The first is (1) that the nature of the assault must be “such as to cause reasonable apprehension of death or grievous bodily harm”; the second is that the person using force by way of defence must be someone who (2) “believes on reasonable grounds” that he or she “cannot otherwise preserve” the person being defended from death or grievous bodily harm.  If those two requirements are satisfied (or, more accurately, if the prosecution fails to disprove them beyond reasonable doubt), then the accused is entitled to be acquitted.  In substance, therefore, a person is, by virtue of s. 271(2),  justified in killing or doing grievous bodily harm to an assailant if he [or she] reasonably believes that doing so is the only way in which he [or she] can save himself [or herself] or someone else from an unprovoked and life-threatening assault by that assailant.

Approached in this way, there is plainly a difference between the mental condition predicated of a defender under s. 271(1) and under s. 271(2).  In the case of s. 271(1), the degree of force used must be “reasonably necessary” to make “effectual defence” against the assault.  The criterion in that instance is objective and does not concern itself with the defender’s actual state of mind.  In the case of s. 271(2), it is, at least in part, subjective.  The defender must believe that what he is doing is the only way he can save himself or someone else from the assault.  He must hold that belief “on reasonable grounds”; but it is the existence of an actual belief to that effect that is the critical or decisive factor.  There is no additional requirement that the force used to save himself or someone else must also be, objectively speaking, “necessary” for the defence.

If this has the effect of writing out of s. 271(2), by excluding from it any requirement which at first sight appears to be imposed by, the words “necessary for defence” in that subsection, then it is a result that is dictated by authority which is binding on this Court.  In R. v. Muratovic [1967] Qd.R. 15, 19, in giving a judgment with which Lucas J. agreed, Gibbs J. said:

“Moreover, if the nature of an assault was such as to cause reasonable apprehension of death or grievous bodily harm, and the accused believed (which must mean honestly believed) on reasonable grounds that he could not preserve the person defended from death or grievous bodily harm otherwise than by using the force that he did in fact use, it must follow that the force in fact used was no more than the accused honestly and reasonably believed to be necessary for defence.  In other words, if the jury consider that the nature of the assault was such as to cause reasonable apprehension of death or grievous bodily harm, and that the accused believed, on reasonable grounds, that he could not otherwise preserve the person defended from death or grievous bodily harm, or if they are left in doubt on those matters, the issue must be decided in favour of the accused and a verdict of acquittal must be entered, since on that hypothesis the jury could not be satisfied that the force used was more than the accused reasonably believed to be necessary to preserve the person defended from death or grievous bodily harm.”

His Honour’s statement in Muratovic of the effect of s. 271(2) (or, as it then was, the second paragraph of s. 271) was, with a qualification or exception which is not material here, adopted and approved by Barwick C.J. in Marwey v. The Queen (1977) 138 C.L.R. 630, at 636‑637.  In explaining his own reasons for arriving at that conclusion, his Honour proceeded (138 C.L.R. 630, 637):

“Further, what the second paragraph of s. 271 calls for is the actual belief by the accused on reasonable grounds of the necessity of the fatal act for his own preservation. That paragraph, it seems to me, when the occasion is appropriate makes the belief of the accused the definitive circumstance.  As that belief must be based on reasonable grounds, there is no point in repeating the word ‘reasonably’ before the words ‘necessary’.  That word  --- necessary --- in the context of s. 271 bears the sense ascribed to it by the Shorter Oxford English Dictionary of ‘requisite’ or ‘needful’.  What the second paragraph requires is that the accused believes on reasonable grounds when he does the fatal act that it must be done if he is to survive the assault made upon him.  The element of reasonableness is supplied by the need for the belief to be founded on reasonable grounds.  If there are such reasonable grounds - a matter for the determination of the jury - the self defence will itself have been reasonable.”

Aickin J. agreed with the reasons for judgment of Barwick C.J.  After referring to R. v. Muratovic [1967] Qd.R. 15, 18-19, both Mason J. and Jacobs J. in their reasons in Marwey (138 C.L.R. 630, 642, 643) also said that in that case Gibbs J. had correctly stated the effect of what is now s. 271(2).

It follows from this that, as Barwick C.J. said, when the occasion is appropriate, “the belief of the accused is the definitive circumstance” under s. 271(2).  There is, as is shown by the passage in his Honour’s reasons from which that excerpt is taken, no separate or independent requirement in s. 271(2) that the killing or grievous bodily harm done by the accused should have been “necessary” for defence when tested by objective standards.  What his Honour said is that s. 271(2) requires that “the accused believes on reasonable grounds when he does the fatal act that it must be done if he is to survive the assault upon him”.  It is, of course, essential in that context that there be reasonable grounds for that belief; but that is not the same as saying that doing the act that causes death or grievous bodily harm must be objectively necessary.  To the extent that some of the  statements in R. v. Allwood (C.A. 151 of 1997) suggest a different view of s. 271(2), they should not be regarded as authoritative.  Indeed, the question now under consideration did not call for decision in that case.

No doubt the distinction between these two competing concepts of s. 271(2) will in practical terms not always be significant; but it is nevertheless essential that the jury be directed in conformity with the requirements of the provision as it has been authoritatively interpreted by the High Court in Marwey v. The Queen.  In the present case there is, at the very least, a serious question whether throughout the summing up his Honour did consistently direct the jury in those terms; or, what is perhaps more important, whether the impact of the decision in Marwey was brought home to them in sufficiently clear terms to ensure that they fully appreciated that it was the appellant’s actual state of belief, based on reasonable grounds, that was critical.  On a question so fundamental to the proof of guilt, the fact that no specific redirection was sought by counsel at the trial cannot be regarded as decisive against the appellant or against his appeal in this case.

It follows that the convictions must be set aside and a new trial ordered.  Partly because of that, it is necessary to refer to another ground of appeal which it was sought to add at the hearing of the appeal: see Jones v. The Queen (1989) 166 C.L.R. 409.  It was that the trial judge had refused to permit counsel for the appellant to cross-examine Det. Sgt. Muirson about what he saw of the conduct of a man named Brendan O'Brien at or shortly after the police arrived at the house at 343 East Street on the morning in question. O'Brien was the president of the Rebels Club who, on reaching the scene of the shooting, attempted unsuccessfully to wrest a firearm from a police officer evidently with a view to retaliating against the appellant.  By that time, however, the violent conflict was at an end, and the police were sufficiently in control of affairs to restrain O'Brien and to remove the appellant out of harm’s way.  It was nevertheless submitted that counsel for the appellant at the trial ought not to have been prevented from cross-examining O'Brien with a view to eliciting evidence of his aggressive behaviour towards the appellant.  It is, however, difficult to appreciate what possible relevance his attitude on that occasion could have had to the matter of the appellant’s claim under s. 271(2) to have been defending himself against the earlier assault, by three other persons, to which O'Brien was not a party and during which, when it happened, he was not even present.

It was urged upon us that there was evidence that the Rebels Club was an association with a constitution and rules whose affairs were conducted with all due formality, and that O'Brien had been summoned to and attended at the scene in his capacity as president of the Club. Why this should be thought to make a difference is by no means apparent.  The most that could be said in favour of allowing the questioning is that O'Brien’s conduct afforded a further illustration of the hostile attitude of some Club members toward the appellant.  But the only natural and rational inference from the circumstances is that, having seen what had happened to his fellow members and friends, O'Brien was provoked to such a state of outrage that he set about trying to avenge the injuries inflicted by the appellant.  His reaction was quite separate from and subsequent to the events in issue and the evidence properly before the jury under s. 271(2), and it was quite incapable of elucidating the actions or beliefs of any of the participants at the relevant earlier time.  O'Brien’s behaviour at that later time was not logically probative of any matter in issue at the trial and could only have served to distract the jury from their duty.  His Honour was therefore correct in rejecting the tender of that evidence.

For the reasons already given, the appeal should be allowed and the convictions and verdicts of guilty set aside.  There should be a new trial of counts 1 and 2 limited respectively to charges of manslaughter and doing grievous bodily harm.

IN THE COURT OF APPEAL

SUPREME COURT OF QUEENSLAND

C.A. No. 439 of 1997

Brisbane

Before McPherson J.A.

Davies J.A.

Fryberg J.

[R. v. Gray]

THE QUEEN

v.

DAVID JOSEPH GRAY

 Appellant

REASONS FOR JUDGMENT - DAVIES J.A.

Judgment delivered 13 March 1998

 I agree with the reasons for judgment of McPherson J.A. and with the orders he proposes.

IN THE COURT OF APPEAL

SUPREME COURT OF QUEENSLAND

C.A. No.  439 of 1997

Brisbane

Before  McPherson J.A.

Davies J.A.

Fryberg J.

[R.  v.  Gray]

T H E      Q U E E N

v.

DAVID JOSEPH GRAY

 Appellant

REASONS FOR JUDGMENT - FRYBERG J.

Judgment delivered 13 March 1998

I agree with the orders proposed by Mr Justice McPherson and with his Honour’s reasons for those orders.