SUPREME COURT OF QUEENSLAND

1. THE COURT:  The appellant was convicted of four offences arising out of an incident at the Gig Nightclub on 1 February 1998.  The offences were murder (of one Anderson), grievous bodily harm with intent (of one Owens), wounding (of one Pryer) and wounding (of one Johnson).  The deceased and the complainants were American marines of African origin of whom a considerable number were present at the nightclub at the time in question.  They were members of the crew of a United States naval vessel which was then docked in Brisbane.

Grounds of appeal

2. The grounds raise four principal bases of objection. Firstly it is said that his Honour erred in failing to permit the jury to consider defences of self defence under s 271(1) and 271(2) of the Criminal Code (grounds 1, 3 and 5); secondly that his Honour erred in excluding evidence of statements made by Mr Law shortly before the injuries were inflicted (ground 10); thirdly that his Honour ought to have directed the jury on issues of provocation and mistake (ground inserted by amendment); and fourthly that there was "flagrant incompetence" by the appellant's trial lawyers in advising the appellant that self defence was raised on the Crown evidence and that it was not necessary for the appellant to give evidence to raise that issue for consideration by the jury (ground 6).

The charges

3. The indictment contained six counts (of which two were alternatives) based on the appellant's actions in an incident in which four men were injured, one fatally. The appellant was convicted on count 1 which alleged murder of Kevin Anderson. Counts 2, 3 and 4 respectively alleged attempted murder of Hilton Owens, alternatively grievous bodily harm with intent to do grievous bodily harm, and alternatively grievous bodily harm. The appellant was acquitted of attempted murder but convicted of grievous bodily harm with intent. Count 5 alleged the unlawful wounding of Gary Pryer and count 6 the unlawful wounding of Darrin Van Johnson. The appellant was convicted on these charges also.

The trial

4. The Crown case was that the appellant assaulted the four marines using a knife in the course of an incident at a nightclub. The appellant was represented by a solicitor, Mr Boe. At the end of the Crown case, having been advised by Mr Boe that there was already sufficient evidence to permit the defence of self defence to be considered by the jury on all charges, the appellant elected not to give evidence. The learned trial judge then ruled that in the absence of evidence of the appellant's belief at the material time there was no sufficient basis for leaving a defence to the jury under s 271(2) or for that matter under s 24 of the Code.

5. Consequently in summing up on the charge of murder, the only issues left to the jury were whether an act of the appellant caused the death, and whether the appellant intended to cause death or grievous bodily harm. Of course the latter question only went to the question whether he was guilty of murder or manslaughter. His Honour specifically instructed the jury:

"I tell you as a matter of law there is no evidence before you capable of enabling you to consider any argument that Kevin Anderson's killing was not (sic) authorised, justified or excused by law, so this element is not in issue".

6. On counts 2 and 3, which are related to the stabbing of Mr Owens, namely the counts of attempted murder and grievous bodily harm with intent, his Honour declined to let the jury consider any question of self defence. However his Honour permitted the jury to consider the question of self defence on the limited basis of s 271(1) in relation to the further alternative count of grievous bodily harm if it became necessary to consider that count. The reasoning that led to that course was his Honour's satisfaction that there was no evidence of the appellant's belief, and accordingly that the evidence was not capable of raising a defence under s 271(2); his Honour recognised that the appellant's belief was however not an element of s 271(1), so a defence under that subsection might be available, but not on any charge of which intention to cause death or grievous bodily harm was an element. If the jury was satisfied that the force was intended to cause death or grievous bodily harm the defence under s 271(1) must fail; and if the jury was not satisfied that any such intent existed it could not convict the appellant on those particular counts in any event. As the charge of grievous bodily harm simpliciter involved no question of intention, his Honour therefore permitted s 271(1) to be considered in relation to that particular count, but not in relation to the others.

7. On the unlawful wounding counts his Honour again directed the jury on self defence under s 271(1), but not under s 271(2).

Summary of evidence

8. As is common when violence involving multiple persons occurs in a crowded area there is much inconsistency in the evidence and it is difficult to obtain a coherent view of the order of events. The need for a summary of evidence in this appeal is not so much to present the strongest or most likely case from the Crown point of view, but rather to assess whether the evidence raises the reasonable possibility that the appellant acted in self defence. Shortly stated, the central point is whether there is some evidence which, if accepted, reveals a sufficient level of violence directed against the appellant to support the inference of a reasonable belief on his part of very serious personal danger.^[1] 

9. A considerable number of African-American marines attended the nightclub on the occasion in question. It is not known how many were present, but 15 were named in evidence (Law, Anderson, Owens, Pryer, Johnson, Neal, Scaggs, Martinez, Williams, Butler, Wiggins, Palmer, Clements, McDonald and Randall) and the evidence shows that other unnamed personnel were also present. It is also clearly shown that there had been earlier tension and threatening words between the appellant and a number of the marines, particularly with Neal and Law. These earlier incidents are described in the evidence of Neal, Palmer and Wiggins. The evidence of Butler describes a point prior to confrontation in which the injuries were caused when Law broke his way through the crowd screaming that he was going to kill or get "that motherfucker". Law was pointing toward the appellant who was then standing with his hands at his sides. Butler and others sought to restrain Law but he refused to be restrained or calmed. Williams, who heard a commotion, saw Law, Owens and Pryer close to the appellant, confronting him. Randall saw Law assault the appellant, describing him as "swinging and kicking". Law himself confirmed that he punched the appellant and connected at least twice. There is conflicting evidence concerning the role played by Owens and Pryer, but there is evidence that they went to the immediate vicinity. Pryer weighed 225 pounds and was described as "husky". The appellant is of slim build and at the relevant time weighed 117 pounds. Butler describes Anderson, Pryer and Owens as trying to get Law out of the club. Neal however describes Law and the appellant as "in each other's face" and that when Law pushed the appellant away the appellant stumbled and "that’s when the fight started". The appellant then stood with his hands up in the air, probably in some sort of fighting pose, though his fists were not clenched. There is no suggestion that he was holding a knife at that stage. People on the dance floor backed away and something like an inner circle was formed. Neal saw that Pryer and Owens were with Law within a couple of seconds of the hostility commencing. He did not see the blows or stabs that produced the injuries but he later saw Owens with his hand on his neck and swinging his other arm. Pryer was at that stage "coming at the boy" (the appellant) and was "going to knock him out".

10. Williams describes Law, Pryer and Owens as forming an arc in front of the appellant. Randall saw two sailors punching or fighting the appellant and a third person join in shortly thereafter.

11. There is also evidence from McDonald that he saw Law with his arm drawn back and that another sailor then punched the appellant. At that time "Mr Anderson had slightly moved over". This other sailor started punching and swinging "and I would say he got maybe two hits in". He then saw Law leave and saw him no further. He described Johnson as coming in trying to stop the fight.

12. There is conflicting evidence concerning Owens' involvement in the fracas. He claims that he did nothing before he was stabbed and that he did not see Law or Pryer do anything either. Butler however says that he saw Owens come over and push Law away. Palmer says that he saw Owens swinging punches and that after a while Owens fell to the floor. There is evidence that Pryer responded to help Owens, that he swung a punch at the appellant, and that Johnson then responded to help Pryer, at one stage trying to get between Pryer and the appellant. There is some doubt as to the sequence in which the four marines were stabbed but some of the evidence suggests that the order was Anderson, Owens, Pryer and Johnson. Other evidence suggests a different order. Only a few persons saw a knife being used and the evidence on the whole suggests that the injuries were inflicted in quick succession during a relatively short flurry.

13. The above evidence comes from marines who were present. There was additional evidence from other patrons of the nightclub including from Ms Russell, Ms Steggink and Ms McKay.

14. Ms Russell saw some sailors behind the appellant who were "sort of pushing" him with the appellant throwing punches backwards "behind his shoulders". She could not see anything happening in front of him. Ms Steggink saw the people who were dancing spread out, and then saw four sailors on one side and the appellant with another person (Kawai) on the left. The appellant was abusing the sailors and making "come on" hand gestures and the sailors were yelling back. They moved towards the appellant and she saw punches thrown. She described the sailors as being on top of the appellant, surrounding him and leaning in, but was not able to say whether anyone was hit. She then saw the appellant with a knife in his hand. He "kind of lunged towards him [Anderson] and just ripped it up through his chest". She described the appellant as stepping towards the man with the knife in his hand out in front of him. The man held his chest and stepped backwards and was assisted by some of his friends. She also saw the appellant slash another man's throat causing injury to his neck "and down across"

15. This latter evidence is consistent with the medical evidence. Anderson received a stab wound to the heart, Owens to the neck, and Pryer and Johnson to the arms.

16. Ms McKay describes the appellant as going straight to a "group of black guys" who were dancing near her, pushing one of them who was in a mustard shirt (probably Anderson) and being pushed back by him into some other persons. This caused a "little brawl" with punching and shoving. She describes the appellant as then being joined by some other Asians so that there were about "four of each". She says that it settled down for about one and a half minutes, but that the appellant then put one hand down to his left ankle, followed by his becoming upright and with a swaying motion of his hand attack four sailors who were a metre back "trying to defend themselves". He got one man on the arm, and she later saw him strike another man in the head, and then strike a man's neck. Then she saw him stab the man in the mustard shirt in the chest.

17. The appellant's version given that night to the police was untrue in that he denied having used a knife or being responsible for the injuries that had been caused. However he claimed that inside the club he had been approached by a "Negro" who claimed to be in the Navy who had proceeded to punch the appellant in the face. He claims that he defended himself, "shaped up" and was punching back in defence. "Then another guy came, another African American so there was two of them at a time, and then I was boxing two of them off … All of a sudden I felt this big punch, … there was another guy jumped out and he punched me and then I fell back into the audience". He said "I see all this blood and I just panicked". He said that he had tried to back out of the situation but had been smacked in the mouth and then other very big Navy men had jumped in, that he was hit in the mouth again, that he was ducking and weaving and throwing jabs. He was unable to say how many times he was hit.

18. Many other versions, variations and snapshots of the overall series of incidents appear in the evidence of the many witnesses who were called. There is however adequate evidence that the material incident which led to the injuries being inflicted started as a fist fight between the appellant and Law, and that others readily identifiable as Law's comrades immediately approached, at least one of whom also commenced assaulting the appellant.

19. The evidence of Ms McKay and indeed of many other witnesses tends to suggest that the appellant was the aggressor both before and during the major confrontation. However there is other evidence that would allow quite contrary inferences to be drawn. It is not the trial judge's function to dismiss those other inferences out of hand. That is ultimately the province of the jury.

Self defence

20. Section 271 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.

3.  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."

21. In order to raise a defence under s 271(2) there is no necessity for an accused person to give evidence or for there to be direct evidence of statements made by him concerning his state of mind:^[2]

"When the violence of the attacker is sufficiently serious to support the inference of a reasonable belief on the part of the accused person of serious danger, s 271(2) might reasonably be left to the jury even in the absence of any statement by the accused person concerning his actual state of mind".^[3]

22. It may be noted that a defence under s 271(1) would not be likely to avail the appellant, particularly in relation to the charges involving Anderson and Owens, having regard to the degree of violence to which the appellant resorted, and the unavailability of s 271(1) when the violence is likely to cause death or grievous bodily harm. Both at trial and on appeal counsel for the appellant understandably sought consideration of a defence under s 271(2).

23. The critical question in the present case is whether the evidence in the Crown case permits the view that the appellant was placed in a sufficiently serious situation to support the inference of a reasonable belief on his part that he could not otherwise preserve himself from grievous bodily harm than by proceeding to defend himself as he did.^[4]

24. Muratovic[5] is an example of a trial judge erroneously refusing to allow self defence to go to a jury. It concerned the issue of reasonable apprehension of death or grievous bodily harm and whether the appellant believed that he could not otherwise defend himself.  It involved a hotel brawl in which the appellant drew a knife, "lost his head", and did not know what  happened next.  In fact he stabbed one man twice (fatally) and another man five times (non-fatally).  Muratovic gave evidence which included serious threats and assaults by the victims, but so far as can be seen he did not swear specifically to his state of mind beyond saying that he did not know what to do, and:

"He hit me with the head between the eyes.  Somebody take up my arms.  He don't know who.  I don't know who, and I don't know nothing after that.  I lost my brains, I lost my head.  I was all shaking.  I didn't know what I do … I lost myself.  I only try to save my life".^[6]

25. The existence of an appropriate "belief" of an accused person in the terms of s 271(2) is nearly always a matter of inference by the jury from all the circumstances. Even in cases when an accused person gives evidence, as Muratovic did, the defence is not defeated by his failure to swear a belief according to the terms of the section. Gibbs J's analysis of the potential application of what is now s 271(2) to the evidence in that case is instructive:

"… the plea of self-defence may seem to a judge to be weak and tenuous, but it is for a jury not a judge to decide upon a plea of this kind, as upon any other question of fact, provided, as I have said, that there is evidence on which a reasonable jury could decide the issue favourably to the accused.  In the present case, I am unable to say that a jury acting properly would be bound to be satisfied beyond reasonable doubt that the nature of the assault was not such as to cause reasonable apprehension of death or grievous bodily harm, or that the appellant could not reasonably have believed that to save himself it was necessary to stab Markovic.  It seems to me that the jury could have had a doubt as to whether the nature of the assault, committed by two men who had already assaulted the appellant and threatened him with death, was such as to cause the appellant reasonably to apprehend that his assailants might in some way kill him or do him grievous bodily harm, and as to whether the appellant, a Yugoslav, might not have believed, on reasonable grounds, that he was in the grip of violent and determined men, that the other persons in the bar would not wish to interfere in what might appear to be a brawl among migrants, and that his only hope was to use the knife that had been given to him for this purpose.  Although the view of the facts taken by the learned trial judge is very understandable, it seems to me that there was evidence on which a jury might have found the issue of self-defence in favour of the appellant, and that the issue should therefore have been left to the jury".^[7]

26. One difficulty confronting the appellant is that there is no evidence that Anderson personally offered any violence to the appellant.

27. Section 271(2) provides that "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".  There is evidence however that Anderson was part of a group who was assaulting the appellant, and at least one witness suggests that Anderson was the person who pushed the appellant into others thereby escalating the violence.  Where there is a group of assailants, we see no reason to confine "assailant" to a singular person. Consistently with s 32C of the Acts Interpretation Act 1954 it is lawful for an accused person to use "such force to the assailants" as is necessary for defence.  In such situations the evidence is rarely capable of identifying with appropriate precision the acts which each member of a group may have performed, and it would unduly limit the efficacy of s 271 were the defence to be limited to response merely to the individual actions which could be identified as those of a particular member.  We therefore think that independently of the rather more complex question whether Anderson may have been stabbed because the appellant mistakenly but reasonably believed him to be part of the attacking group of American sailors, a jury would be entitled to consider whether the appellant's response to what might reasonably have been perceived by him as a group attack was one which he might have believed on reasonable grounds was necessary to preserve him from death or grievous bodily harm.  It is not suggested that this is a strong or attractive example of the defence, but it is raised and it is a matter for a jury to determine.

28. The evidence referred to above would permit a jury to infer a reasonable belief on the part of the appellant that he could not otherwise preserve himself from grievous bodily harm than by proceeding to defend himself as he did.

Provocation

29. If there is evidence reasonably capable of raising provocation it should be left to the jury even though not raised by the defence and even though the accused has not given evidence of actual loss of self-control.^[8] 

30. In Stingel[9] the High Court^[10] stated that:

"[t]he question for a trial judge under s.160(3) can be summarized as being whether, on the version of events most favourable to the accused which is suggested by material in the evidence, a jury acting reasonably might fail to be satisfied beyond reasonable doubt that the killing was unprovoked in the relevant sense".

31. The trial judge should leave the issue to the jury if in the least doubt whether the evidence is sufficient.^[11]  The absence of testimony from an accused person is not fatal to the raising of such a defence, and a jury may infer provocation from evidence that suggests a possible loss of self control.^[12]  The judge's duty is to leave the question to the jury notwithstanding that the defence has not requested it and even when it is inconsistent with a defence that is raised.^[13]

32. The fact that the loss of self-control is contributed to by fear does not run counter to the defence of provocation.^[14]  "[I]t is too much to say that fear caused by an act of provocation cannot give rise to a defence of provocation".  Mason J in Van Den Hoek apparently approved the statement that it was sufficient to make out the defence "if there was circumstantial evidence of a loss of self-control due to a mixture of fear and anger".  What is necessary is that the provocative conduct (which might be found in threats, physical gestures and conduct by a group of persons of which the victim was reasonably thought to be a member) produces a temporary loss of self-control at the time when the act causing death is committed. 

33. Counsel for the Crown relied upon statements made in Roche v The Queen^[15] to the effect that the provocative act or insult must emanate from the victim.  The appellant's counsel, Mr Sofronoff QC, submitted that that decision appears to be based upon the proposition that the definition of "provocation" in s 245 of the WA Code (s 269 of the Queensland Code) governs its meaning in s 281 of that Code (s 304 of the Queensland Code).  He submitted that it is settled in Queensland that the s 269 definition has no application to the use of the word "provocation" in s 304.^[16]  Counsel for the Crown, Mr Rafter, rejoined that this proposition has not been authoritatively settled in Queensland, referring to R v Buttigieg[17] and to the fact that Mason J (as he then was) in Van Den Hoek v The Queen[18] referred to the different views in Western Australia and Queensland on this question without expressing a definite preference.  However Mason J noted that the Queensland view was endorsed in Kaporonovski v The Queen[19] by McTiernan ACJ and Menzies J, and possibly by Walsh J.  Moreover, in Buttigieg it was recognised that the common law meaning has been accepted in Queensland for a considerable time.  In our view the balance of authority supports that view.  Accepting then that the common law definition of provocation applies, a different view should be taken from that in the Western Australian decision of Roche.  In R v Porritt[20] it was held that provocation is a defence to a murder charge even when a person other than the provocateur is killed by mistake because he was standing next to the intended victim. On this basis it would be unnecessary for the defence to resort to the complicated alternative of reliance upon s 24, based on an inference that Anderson was stabbed because the appellant mistakenly but reasonably believed him to be part of the provocative group which was attacking him.

34. In our view the evidence was sufficient to raise the reasonable possibility of a loss of self control due to a mixture of fear and anger based on threats, physical gestures and conduct by a group of persons of whom the victim might reasonably be thought to have been a member. On the evidence that was given in this trial, the issue of provocation was raised with respect to all charges. It is true that no application was made by the defence for this issue to be considered by the jury, but where it is properly raised the Court has a duty to direct on the issue.

Conclusions

35. The learned trial judge erred in refusing to allow the jury to consider the issue of self defence under s 271(2) of the Code. His Honour further erred in failing to advise the jury to consider the question of provocation as a possible basis for reducing murder to manslaughter. There must be a retrial.

36. It is therefore unnecessary to consider the other grounds that have been raised. However as there will be a retrial it is desirable to say something about the admissibility of the evidence referred to in ground 10. In our view his Honour erred in excluding evidence of a statement made by Law to Owens just before the fight including "We'll get in a fight, let's go". Plainly this should have been received as direct evidence of Law's conduct at a material time and as evidence that he was enlisting the support of other persons in his group, including Owens for the purposes of a fight with the appellant.

37. It is unnecessary to canvass the extensive evidence given before this Court designed to support the ground of alleged incompetence of Mr Boe who appeared on behalf of the appellant at trial. It is enough to say that Mr Boe was essentially correct in advising the appellant that there was sufficient evidence in the Crown case to raise self defence and that it should be able to be considered by the jury in the event that the appellant elected not to give evidence. There is nothing in his advice to his client against giving evidence that could support the now popular ground of incompetence of trial counsel. The options were fairly explained to the appellant and the advice was unexceptionable.

38. The only aspect of ground 6 that would bear further examination arises from the fact that after the unfavourable ruling was received from the learned trial judge, Mr Boe did not advise his client of the possibility of re-election. Of course there is no right of re-election, and its grant would have depended upon an indulgence from the learned trial judge. However counsel for the Crown upon the appeal, Mr Rafter, has conceded that in the circumstances if such an application had been made it would have been an error on the part of the learned trial judge to have refused to grant it. It is unnecessary to pursue this point further, as the non-consideration by the jury of defences that were raised on the evidence means that there must be a new trial.

Orders

39. The appeal should be allowed and the convictions on all counts set aside. There should be a retrial limited to counts 1, 3, 4, 5 and 6.