SUPREME COURT OF QUEENSLAND

1. DAVIES JA:  I agree that this appeal must be dismissed for the reasons given by Williams JA.

2. It is important to appreciate that s 271, unlike the common law, distinguishes between and applies different tests for determining whether self-defence is excluded in the cases of minor and major assaults.^[1]  In both cases, at common law, the question is "whether the accused believed on reasonable grounds that it was necessary in self-defence to do what he did".^[2]

3. In s 271(1), which deals with minor assaults, the question is whether the force used was reasonably necessary to make effectual defence against the assault. This can be seen to be an objective question only. It may be contrasted with the question at common law which, it can be seen, contains both a subjective element, the accused's belief, and an objective one, that it must be on reasonable grounds. However in s 271(2), which deals with major assaults, the question is, like that at common law, whether the person believes on reasonable grounds that he or she cannot otherwise preserve the person defended from death or grievous bodily harm.

4. Despite that self-evident distinction between these provisions, they apparently still cause some confusion. This may be because of a too ready willingness to seek guidance from common law decisions. However the distinction was adverted to by Barwick CJ in Marwey v The Queen^[3] and clearly stated by McPherson JA in Gray.^[4]

5. It may be that, in practice, as Barwick CJ thought in Marwey,^[5] there is little or no difference in result in the application of these two tests in most cases.  But that does not justify misstating what is a simple test under s 271(1) by introducing into it a subjective element.  The learned trial judge in this case, in my opinion, was correct in excluding that element from his direction on this subsection.

6. The appellant's counsel, Mr McLennan, relied, in his argument that the learned trial judge's direction on s 271(1) was wrong, upon a statement by Connolly J, in an otherwise exemplary judgment, in R v Lawrie^[6] in which his Honour said:

"So far as the first paragraph [now s 271(1)], the primary rule, is concerned, it is obviously objective in terms.  This is not to say however that what is reasonably necessary to make effectual defence will not depend on the circumstances as perceived by the defender.  An honest and reasonable belief that a blow is about to be struck may justify a pre-emptive blow."

7. That may be so but it is not because of an honest and reasonable belief that a blow is about to be struck but because, in such a case, it may objectively appear to the jury that the likelihood of a blow being struck was such as to make it reasonably necessary to make effectual defence against it. With great respect to his Honour I think that the last sentence in the above passage is likely to lead to the confusion of which I have spoken. Indeed it appears, again with great respect, to have done so in the judgment of Anderson J in Stanik.^[7]

8. The same is true, in my opinion, of the example given by Williams JA in this case of a defence against an assault with a replica weapon. Under s 271(1), putting on one side the question of the burden of proof, the jury should not be asked to consider whether the accused believed the weapon was a real weapon and whether that belief was on reasonable grounds. Rather they should be asked to consider whether, because of the weapon's appearance, it was reasonably necessary for the accused to use such force as he did to make effectual defence against the assault.

9. WILLIAMS JA:   The appellant was convicted after a trial in the District Court at Maryborough of the offence of doing grievous bodily harm to one Matthew John Philippi and sentenced to 18 months imprisonment.  At the outset of the hearing the appellant abandoned his application for leave to appeal against sentence.

10. Counsel for the appellant abandoned the grounds of appeal against conviction set out in the Notice of Appeal and was granted leave to argue the following grounds:

1. The learned trial judge misdirected the jury when elaborating upon the requirement that the force used in self-defence must be reasonably necessary to make effectual defence against the assault, under s 271(1) of the Code.

2. The learned trial judge erred in failing to leave to the jury the second limb of self-defence as set out in s 271(2) of the Code.

11. It should be noted at the outset that neither of those grounds was the subject of an application for re-direction at the instance of the appellant's trial counsel.

12. The incident in question took place at Hervey Bay on 6 October 2000. The complainant was then described as a slender 16 year old boy. The appellant was 25 years of age, of bigger build, and employed as a "crowd controller".  On the evening in question the complainant was with two friends, Jarad Birke and John Nable;  they were at a unit complex in Doolong Road, Pialba.  Over a period of approximately 1½ hours the complainant had been drinking a mix of Jim Beam bourbon and Coke;  he had apparently drunk about half of a mixture of about 300 mls of bourbon with about 600 mls of Coke during that period of time.  About 9.30 pm the three were standing in the vicinity of the carport of Birke's unit.  The complainant had the bottle of bourbon in his possession containing what was left of the mixture referred to above.

13. At that time a car being driven by Kym Bonke and having Scott Thompson and the appellant as passengers drove past along a driveway through the unit complex linking Doolong Road and Main Street. As it did so there was something in the nature of a verbal exchange between some or all of the people in the car and some or all of the three men near the carport; it would appear that Nable at least used an obscenity. The car proceeded a distance down the road and Nable started following it, but he "took off" in the opposite direction when the car stopped. Apparently Bonke stopped the car at the request of the appellant. The complainant and Birke advanced to a point near the road, with Birke behind the complainant. The appellant and Thompson alighted from the car and crossed the road towards those two male persons.

14. There is no dispute that the confrontation ended with the appellant punching the complainant once to the left side of his face. As a result of that blow the complainant sustained a fracture of the left inferior orbital margin with displacement. There were also fractures of the lateral and medial walls of the left orbit, and fractures of the lateral wall of the maxillary antrum and of the zygoma. After surgery the complainant has been left with double vision and numbness of the infra orbital nerve. It was formally admitted at the trial that the injuries amounted to grievous bodily harm.

15. The appellant contended (he gave evidence) that the blow was delivered in self defence. Thus it was of critical importance for the jury to have regard to the evidence of what occurred in the interval between when the car stopped and the punch was thrown. The relevant evidence can be summarised as follows.

Complainant Philippi

16. He was carrying the Jim Beam bottle as he walked from the carport to the verge of the road. He described the two men who came across the road as "big, bulky". There was some verbal argument and he heard one or other of the men say "leave him alone". After that the appellant grabbed the complainant by the t-shirt; then "I got pushed away and then I got punched". The appellant and his companion then returned to the car. In evidence in chief the complainant denied he made any movement to throw what he was carrying. He also denied that he or anyone else there tried to throw a punch at the appellant.

17. Under cross-examination the complainant denied that either he or his companions struck the car in which the appellant was a passenger with a bottle or some other objects. He also denied that any one of his group was near the driver's window of that motor vehicle. The complainant also denied that as the two men approached him he said "Come and try it". The complainant said that as the appellant approached him he was holding the bottle "around the large part". He expressly denied the allegation that he raised that bottle to shoulder height as the appellant approached.

Birke

18. He gave evidence of a verbal exchange between the two groups as the vehicle drove past. He then said that Nable went up to the front passenger side of the car when it stopped. He and the complainant were still back near the carport. He saw two men alight from the car and Nable started running off. He and the complainant then walked to the verge of the driveway to see where Nable had gone. The appellant came up to the complainant and hit him. He agreed that both he and the complainant had a bottle of alcohol in hand at the time. He said that the complainant had his bottle "in his hand, by his side". He said that the top of the bottle was coming out of the complainant's hand.

19. Under cross-examination Birke denied that anyone hit the side of the car with bottles. He maintained that Nable went to the passenger's side and not the driver's side of the vehicle. He denied he or the complainant called out something like "Come on, come and try it". He agreed he "didn't exactly see the precise grip that he (the complainant) had on the bottle, but I know he was holding it by his side by the neck next to his leg". He specifically denied the proposition that the complainant raised the bottle to about shoulder height. He said: "He had the bottle by his side at all times, and at the time that he was assaulted he had lifted the bottle towards the side as he was falling to the ground, which would have been roughly like that".

A S Otto

20. This witness was a resident in another of the units in the block. On the night in question she heard some voices and looked outside to see who was there. She saw "three guys" walking near the driveway. She then saw a car pull up on Main Street. She said it pulled up "pretty suddenly". She heard some "more yelling", but could not hear what was being said. She then saw two men get out of the car and "run across the road". The other three were "still standing on the side of the road". Her evidence then went on:

"There was sort of some arguing, which I didn't hear what was being said, and then I saw one of the guys from the car push one of the three guys on the shoulder area, and I think I heard them – one of the other three guys sort of saying, 'stop that' or something, and then I saw that same guy . . . sort of holding him on the shoulder and then punching him towards the head area".

She was then specifically asked whether she saw the person who was punched do anything towards the man who punched him, and she answered:  "I didn't see anything, no.".  She expressly said that she did not see the person punched raise anything in his hand as in a threatening manner.  She described the punch as "sort of forceful".  The two people who had come from the car then returned to it.

21. Under cross-examination she adhered to her evidence in chief. In particular she maintained she did not see the person hit raise the bottle in his hand to shoulder height just before he was punched.

W E Philippi

22. This witness was the complainant's father. He spoke to the appellant some hours after the incident. The appellant mentioned bottles being thrown at the car but made no mention of a threatened assault by the complainant.

Constable Buckman

23. She spoke briefly to the appellant in the early hours of the morning following the incident. The approach was essentially to obtain his particulars and to arrange a later time for an interview. In the course of that short discussion (which was not recorded) the appellant said words to the effect that "they were throwing bottles at the car", but the Constable had no recollection of his claiming that he had been assaulted or threatened with assault at the time.

Appellant – G J Hagarty

24. The appellant gave evidence that there were speed humps in the driveway through the complex and the vehicle was travelling at about 5 kms per hour as it passed the three men. His evidence was that as the vehicle went past, the three men divided so that at least one was on either side of the moving car. He said that he heard a bang on each side of the car, and heard Bonke say, "he just spat on me and he's tried to hit me through the window". Bonke continued driving a short distance before stopping. The appellant got out of the car and saw two small dents on the passenger side and a larger dent in the back door. He and Thompson then walked towards the group of three people and he heard one of them say, "come and have a go" or "come and try it". One person (the complainant) was holding a Jim Beam bottle by the neck. Relevantly his evidence continued:

"Did he do anything with that bottle?--  . . . I was a bit nervous going over there but after about maybe about 2 or 3 seconds after I asked them a couple of questions I noticed his fist was clenched and that the bottle that he had in his hand had been raised.

How far had it been raised?  To what position?—To about there, still holding the neck of the bottle.

You are describing an action where he raises the hand down by his side up to about shoulder height;  is that right?--  That's correct, yes.

What did you do then?--  I reacted by punching him in the face.

Why did you do that?--  Because I felt threatened and I thought that he was going to hit me with a bottle.

How many times did you hit him?--  Only the once.

Did you grab him by the front of the shirt prior to hitting him?--  I did not, no."

After that the appellant said he "then walked away back to the car".  He agreed that he did not tell Philippi Snr anything about what happened other than that the car had been hit with a bottle.

25. During cross-examination he said that he had got the car fixed up by a panel beater friend of his. He conceded he did not show the damaged car to police.

26. He said that Bonke stopped the vehicle because he told her to do so. In relation to the specific incident he said he was not angry and though the punch "was a hard one . . . I did not swing it back and then punch him".  He claimed that the Jim Beam bottle was empty.  There followed this exchange:

"See, you have to say that because it would seem silly for him to use a bottle that he was drinking from as a weapon, doesn't it?--  Well, I didn't really think of anything at the time.  I just seen him raise the bottle and [reacted] accordingly".

He agreed he did not mention self-defence when speaking either to Philippi Snr or Constable Buckman.

27. Finally, the following answer should be noted:

"And you had the option to move away but you didn't?--  Well, it happened so quickly.  It was just a reaction.  I mean like, he wasn't – my arm pulled back then punched.  It was just straight out – it was a reaction because I was – I wasn't that far away from him, no, but I wanted to know why they had done that to the car and to us".

K M Bonke

28. She was driving the car in which the appellant was a passenger. She saw three or four people near the driveway. When asked where they were she replied: "All around the car. Sort of just came from everywhere". They were yelling abuse. Her side of the car was hit. Someone lunged towards her window; he had a bottle in his hand. She "felt like somebody had spat on me". She stopped the car because the appellant told her to pull over. Then the appellant and Thompson "walked over and approached the other two guys on the side of the road". The third young bloke had run off into an allotment.

29. Her evidence about the specific incident in chief was as follows:

"What happened then?  What did you see then?--  I saw Grant hit one once and he fell to the ground.

The fellow that was hit, let's focus on him.  Did you see him do anything prior to Grant hitting him?--  No, I can't recall.

Do you recall whether the person who was hit was holding anything?--  No, I don't know."

Then under cross-examination the following evidence was given:

"You saw none of these two people that Scott and Grant approached – didn't see them do anything to Grant?--  No, I didn't.

No raising of a bottle?--  Did not see that.

No threatening like this?--  No, I didn't see that.

And you were looking that way?--  Yes, I was."

30. That was the state of the evidence in which the learned trial judge had to make rulings with respect to self-defence and sum up on that issue.

31. The learned trial judge told the jury that the onus was on the Crown, once an issue of self-defence arose, to disprove it beyond reasonable doubt. In dealing with self‑defence initially he told the jury that "the reaction of a person who is attacked has got to be reasonable in proportion to the attack upon them".  He then effectively read s 271(1) of the Code to them.  Thereafter the following passages appeared in the summing-up;  I have omitted some lengthy passages which are not of critical importance for present purposes:

" . . . so the first step that you have to think about in this case is whether or not Matthew Philippi unlawfully assaulted Mr Hagarty.  If you do not get past that step of course there is really nothing more to consider . . . .   . . . we are concerned about Matthew Philippi and his bottle of Jim Beam whiskey in this case.  The first step in considering whether or not there is self-defence in this case is for you to consider whether or not, in the sense I have explained to you, Matthew Philippi assaulted Mr Hagarty . . . .  The Crown says to you here, on the facts, that was not assault.  The Crown says, in effect, you should be persuaded beyond reasonable doubt that Mr Hagarty was not assaulted by Matthew Philippi by the use of the bottle.  Now, if you are persuaded to that effect, to the standard beyond reasonable doubt that there was no assault, well, that is the end of the matter because the first step has not been established for the defence of self-defence.   . . . you do not have to wait for someone to hit you to respond by self-defence".

There was no challenge to that part of the summing-up, and indeed there could not be.  It accurately set out the law and the approach which the jury had to adopt.  It is obvious, in the light of the summary of the evidence above, that the preponderance of evidence supported the prosecution contention that the appellant had not been assaulted by the complainant.  To find facts in favour of the appellant would have meant that the jury would have to accept the appellant's evidence notwithstanding that it was not supported by any other evidence, including evidence from the independent eye witness and his companion Ms Bonke.

32. But, as the learned trial judge recognised, it was open to the jury to conclude that the appellant was assaulted in the way he claimed, namely that the complainant raised the bottle of Jim Beam to shoulder height. In consequence the jury was given directions as to self-defence in those circumstances.

33. In that regard the learned trial judge said:

"the force used must be reasonably necessary to make effectual defence against the assault.   . . . the response you make to the person who attacks you has got to be reasonably necessary to make your defence an effective defence".

Shortly thereafter there is the passage which counsel for the appellant relies on in support of Ground 1 of the appeal, namely that there was a misdirection as to the requirement that the force used in self-defence must be reasonably necessary to make effectual defence against the assault.  The passage in question is in these terms:

"Now, that idea of reasonably necessary, of course, does not depend on what someone in Mr Hagarty's position thinks about himself, it is what you think about it.  This idea of reasonably necessary does not mean that what Mr Hagarty thinks is important.  It really means you, looking at these events in your mind's eye, saying to yourself, 'Do we think he acted reasonably necessary?'.  In other words, it is an objective standard – not what Mr Hagarty thinks, it is what you think about it;"

Later he referred to the fact that there was no direct evidence as to what the appellant actually thought nor any direct evidence as to what he intended.  It is clear that the test under s 271(1) is essentially an objective one:  Muratovic [1967] Qd R 15 at 28, Marwey (1977) 138 CLR 630, Lawrie [1986] 2 Qd R 502 at 504-505 and Gray (1998) 98 A Crim R 589.  Those authorities make it clear that the defender's state of mind as to the degree of force necessary is not relevant when considering the defence under s 271(1) and the learned trial judge here did not err in instructing the jury as he did. 

34. Passages in some of the authorities which indicate that the belief of the defender may be relevant should be expressed differently. Most of those statements are concerned either with the situation where a replica weapon was in the possession of the attacker or where the defender believed he was about to be attacked and responded with a "pre-emptive blow". Given the terms of s 271(1) the question in each case for the jury would be: "in all the circumstances confronting the defender at the time, applying objective tests, what was the likely attack and was the response reasonably necessary to make effectual defence against that attack". Approached in that way the "likely attack" is not that in the belief of the defender, but that which was "likely" when the facts were looked at objectively. In most factual situations where s 271(1) was relevant, there would be a coincidence between the defender's belief and what was held to be "likely" applying the objective test.

35. Looked at in that light there was no misdirection here with respect to the application of s 271(1).

36. Further, I am not persuaded that the learned trial judge erred in failing to leave a defence under s 271(2) to the jury. It is true, as the learned trial judge pointed out in his summing-up, that a glass bottle may break if used in an assault and cause very serious injury. But even if one accepted the evidence of the appellant in its entirety, that would not establish that the nature of the assault by the complainant was such as to cause reasonable apprehension of death or grievous bodily harm. The test here is a subjective one. There is nothing in the appellant's evidence as to his apprehension or belief at the time he threw the punch. However, the necessary belief can be inferred from the circumstances: R v Pangilinan [2001] 1 Qd R 56.   Of particular relevance for present purposes is the passage therein at 62:

"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."

37. Applying that test here, I am not persuaded that the appellant was in so serious a situation that he could not preserve himself from grievous bodily harm by acting otherwise than as he did.

38. It follows that neither of the grounds of appeal relied on has been made out.

39. The appeal against conviction should be dismissed.

40. MULLINS J:  I agree with the reasons for judgment of Davies JA and Williams JA and that the appeal again.