SUPREME COURT OF QUEENSLAND

[1]  McPHERSON JA:  I agree with what Keane JA has written. There were, in all, three sections of the Code which had a potential to apply to or in the circumstances disclosed in the evidence. They are s 271(1), s 271(2) and s 272.

[2]  The learned trial judge directed the jury at some length on the requirements of s 271(1). However, it applies only if the force used by the accused in self defence “is not such as is likely, to cause death or grievous bodily harm”. Here the force used by the appellant was not only likely to cause death or bodily harm to his victim Hingst; it did in fact do so. Hingst was killed. Section 271(1) did not, therefore, afford the appellant any justification or excuse for his act in killing Hingst.

[3]  The trial judge also directed the jury on s 271(2). As to it, he said that “there is another provision of the Criminal Code which in certain circumstances justifies a person using very serious or even deadly force”. That is true so far as it goes; but it failed to grapple with the fact that both s 271(2) and s 271(1) are, as the section heading shows, both directed to Self-defence against unprovoked assault.  Section 271(1) is introduced by the words “When a person is unlawfully assaulted, and has not provoked the assault, it is lawful …” to use force in certain circumstances to repel the assailant. Section 271(2) incorporates that part of s 271(1) in speaking of “the nature of the assault”, which is a reference to an unprovoked assault of the kind specified in s 271(1). The effect was perhaps clearer at the time when the two subsections of s 271 were separate paragraphs of a single s 271, as they were until they underwent some redrafting in the 1990s.

[4]  Both subsections of s 271 are therefore predicated on the act of self defence by the accused being done in response to an assault that is “not provoked”. The fundamental difference between them is in the nature or extent of the force that is authorised in repelling the assailant. In s 271(2), it may include life-threatening force, whereas under s 271(1) it may not.

[5]  The matter of self defence against a provoked assault is the subject of a separate provision altogether. It is in s 272 of the Code. Like s 271(2), subsection (1) of s 272 authorises the use of even life-threatening force subject to certain specified conditions, which include a requirement that the accused be led to believe on reasonable grounds that it is necessary to use such force “for [his] preservation from death or grievous bodily harm”. In the events so specified, he is “not criminally responsible” for using any such force although it causes death or grievous bodily harm. I am attempting here to simplify rather than to state exhaustively the conditions for applying s 272(1), which are further circumscribed by the express provisions of s 272(2).

[6]  The critical question for the jury in the present case was whether the operation of s 272 was attracted. On any view of his second statement to the police, the appellant may be thought to have assaulted and so provoked the assault by Hingst which he claims took place. He went in the middle of the night to the address where Hingst lived, entered his house and went to his room at a time when Hingst was apparently asleep. He did it he said to “scare” Hingst and “just warn him off”. Hingst jumped up and “had a go” at him. A struggle ensued in which Hingst  “got cut and he just kept coming at me”. Hingst was stabbed and later died. The case was therefore one that, if anything, attracted the operation of s 272(1), and not (for reasons I have given) either limb of s 271.  However, his Honour did not direct the jury on s 272 or on the possibility of self defence to a provoked assault, but only on s 271(1) and s 271(2).

[7]  There is therefore substance in the submission of Mr Callaghan SC that the direction on those two subsections of s 271 was “all but useless” to the appellant, in that the Crown would inevitably exclude the operation of both branches of provisions that apply only to self defence to unprovoked assaults. The Crown was in a position to do so by showing, from what the appellant himself had told the police, that he had approached Hingst in a threatening manner and so assaulted him. Hingst had not provoked that assault on him in any relevant way. In what he did according to the appellant’s account, Hingst was reacting to a provoked assault by the appellant himself, which took the case out of s 271 and into s 272.

[8]  It was therefore not correct to say that if the appellant provoked or commenced the assault, that was the end of his claim of self defence. Section 272 deals specifically with a case of that kind, and provides exculpation from criminal responsibility in the circumstances it specifies. This ground of defence or exculpation was never put to the jury, and the appellant’s trial therefore miscarried. On behalf of the Crown, Mr Copley of counsel submitted that there was simply no evidence capable of justifying a belief on reasonable grounds on the part of the appellant that he was confronted by the use of lethal force from which it was necessary to save himself.  However, there was, in my opinion, enough in what the appellant said to the police to require the matter to be left to the jury as something for them to decide. See R v Muratovic [1967] Qd R 15, at 20, per Gibbs J, whose remarks were indorsed in Zecevic v Director of Prosecutions (Victoria) (1987) 162 CLR 645, 665, and other cases to which Mr Copley helpfully referred us.

[9]  Some attempt was made to rely on the proviso, as it is still called, in s 668E(1A).  I do not consider it is available to the Crown in the circumstances of this case. It is, of course, not the rule that everyone charged with a criminal offence is presumed to have a defence to the charge even though none exists. However, it is a fundamental principle that everyone charged with a crime is, on pleading not guilty, entitled to a trial at which his guilt is established according to law to the satisfaction beyond doubt of a jury, and not of three judges on appeal. In the present case, the problem is that the only claim to a defence that on the evidence the appellant might have had to the charge of murder against him was never presented to the jury at the trial.  That being so, I do not see how the proviso can be invoked on this appeal. No jury has, after considering the evidence, such as it is, of self defence against provoked assault, yet decided or been asked to decide that the appellant was guilty of murder. For these reasons, it is not possible to say that no substantial miscarriage of justice has actually occurred or that the conviction should be affirmed.

[10]  Like Keane JA, I consider that the appeal against conviction should be allowed.  A new trial of the appellant should be ordered on the charge of murder.

[11]  KEANE JA:  The appellant was convicted of the murder of Robert Hingst ("the deceased") on 26 March 2002.  He appealed against that conviction on the ground that the verdict was unsafe and unsatisfactory in all of the circumstances.  The appellant sought, and was given, leave to amend the notice of appeal by the deletion of that ground, and the substitution of the following ground:

"The learned trial judge erred when he failed to direct the jury as to the existence and application of s 272 of the Criminal Code."

Background

[12]  The appellant had formed a relationship with his co-accused, Lori Smith ("Smith"), who had formerly been in a relationship with the deceased.  Apparently acting upon a perception that the deceased had behaved badly towards Smith, the appellant entered the deceased's dwelling at around 1.00 am to 1.30 am on 26 March 2002 armed with a knife and a meat cleaver.  The appellant killed the deceased.

[13]  It is conceded that the evidence as a whole was capable of establishing the charge of murder; and there is no longer any contention that the jury's verdict was unreasonable.

The issue

[14]  The appellant's case is that a defence under s 272 of the Criminal Code was sufficiently raised on the evidence to entitle him to have it put to, and considered by, the jury.

[15]  The learned trial judge directed the jury that it should consider whether a defence of self-defence against an unprovoked assault under s 271 of the Criminal Code could not be excluded beyond reasonable doubt.  He did not, however, advert to s 272 of the Criminal Code, which provides for a defence of self-defence against provoked assault.

[16]  Section 272 is in the following terms:

"(1)When a person has unlawfully assaulted another or has provoked an assault from another, and that other assaults the person with such violence as to cause reasonable apprehension of death or grievous bodily harm, and to induce the person to believe, on reasonable grounds, that it is necessary for the person's preservation from death or grievous bodily harm to use force in self-defence, the person is not criminally responsible for using any such force as is reasonably necessary for such preservation, although such force may cause death or grievous bodily harm.

(2)This protection does not extend to a case in which the person using force which causes death or grievous bodily harm first began the assault with intent to kill or to do grievous bodily harm to some person;  nor to a case in which the person using force which causes death or grievous bodily harm endeavoured to kill or to do grievous bodily harm to some person before the necessity of so preserving himself or herself arose;  nor, in either case, unless, before such necessity arose, the person using such force declined further conflict, and quitted it or retreated from it as far as was practicable."

[17]  In an interview with the police on 3 April 2002, the appellant said that he had gone to the deceased's residence with the intention of scaring him and warning him against making any further threats against Smith.  He said that he had taken a knife with him.  This was said to have been concealed up his sleeve.  He said that his purpose was to let the deceased know that the deceased was "not the only one out there who can be scary".  He said that he felt that he had to do this because he was seeing Smith at the time and she was "offended by" the deceased.  The appellant said that the meat cleaver was concealed down the side of his trousers.

[18]  The appellant said that, when he first confronted the deceased, the deceased was sitting up in bed.  The appellant said that:

"things got a bit ugly because he jumped up and had a go at me and that.  Um in the struggle a knife that I had on me that I didn't want to use but er it slipped out from up in my sleeve.  I was more worried about him getting it off me and attacking me with it.  I heard about this bloke before, how dangerous he can be, and um things just got out of hand.  In the struggle, he got cut and he just kept coming at me so I striked [sic] at him."

[19]  The appellant said that the deceased "made the first moves on me and that's - I didn't retaliate or anything I just more defended myself".  The appellant said that he used the knife because it had fallen out of his sleeve:  "otherwise I would probably have been beaten up".

[20]  The learned trial judge gave counsel for the Crown and the accused a draft of his summing up which was duly delivered and which did not deal with the possibility of a defence under s 272 of the Code.  It contained a direction on self-defence in which both limbs of s 271 of the Criminal Code were carefully explained to the jury.  There was no complaint by either counsel as to the terms of the summing up.  These circumstances would not matter if the appellant was, in truth, denied a fair chance of acquittal.[1]

[21]  The learned trial judge directed the jury that if the Crown proved "that Corry provoked or commenced the assault … then that's the end of this particular defence:  it couldn't apply".  The point of the appeal is that, under s 272 of the Criminal Code, Corry may have been acquitted, notwithstanding that he was thought by the jury to have provoked the assault by the deceased or to have initially commenced the assault on the deceased, because the jury may have thought that the elements of the excuse provided by s 272(1) had not been negatived by the Crown.

[22]  This is said to be on the footing that the appellant had said in his interview that he had begun the assault only with the intent to scare, not to kill or to do grievous bodily harm to the deceased;  and that he struck at the deceased with the knife because the deceased kept coming at him.  From this evidence, it is said that the jury might have concluded that the Crown had not negatived beyond reasonable doubt the hypotheses that the appellant had a reasonable apprehension of death or grievous bodily harm at the hands of the deceased, and that the appellant's use of the knife to strike at the deceased was reasonably necessary for the appellant's self-preservation.

[23]  There is force in the contention of the appellant that it is possible that the failure to direct the jury in relation to s 272 of the Criminal Code "may have affected the verdict"[2] in the sense that the jury may have simply taken the view that, because the appellant provoked or commenced the assault, he was not entitled to the benefit of any excuse of self-defence.  It is certainly difficult to see how the jury, if it were minded to accept the appellant's version of the fatal incident, would not have regarded the deceased's assault on the appellant as one provoked by the appellant's uninvited intrusion into his bedroom in the middle of the night.

[24]  On the basis of the contents of the appellant's statement to the police, it is possible that a jury might take the view that the appellant could not withdraw from the situation in which he had placed himself and that he was constrained to defend himself, and to continue to do so, against the reaction of the deceased so that he was excused from criminal responsibility for the death of the deceased by virtue of the operation of s 272 of the Criminal Code.

[25]  The Crown submitted that the learned primary judge's direction to the jury in relation to s 271(2) of the Criminal Code was apt to convey to the jury an instruction that, even if the assault by the deceased upon the appellant (against which the appellant claimed to have been defending himself) had been provoked by the appellant, the appellant was entitled to be acquitted if the jury were not satisfied by the prosecution beyond reasonable doubt that the appellant did not believe on reasonable grounds that he had to do what he did in order to preserve himself from death or grievous bodily harm, and that there was no reasonable apprehension by the appellant of suffering death or grievous bodily harm at the hands of the deceased.  In order to appreciate this submission, it is necessary to set out at length the relevant passage from the learned trial judge's summing up to the jury.  His Honour said:

"The onus remains on the Crown at all times to prove that Corry was not acting in self-defence, and it must do so beyond reasonable doubt before you may find Corry guilty.  If the Crown satisfies you beyond reasonable doubt of any of the following facts, it has effectually excluded self-defence.  They are first, that Corry was not unlawfully assaulted by Hingst;  or second, that Corry gave provocation to Hingst for Hingst's assault upon Corry;  or third, that the force used by Corry was more than reasonably necessary to make effectual defence;  or fourth, that the force used by Corry was either intended by him, or objectively likely, to cause death or grievous bodily harm.  If the Crown has satisfied you of any of those matters, then the Crown will have satisfied the onus which rests upon it to exclude self-defence.

The first question arising is whether Corry was unlawfully assaulted by Hingst, and did not provoke that assault.  As to unlawfulness, the occupier of a house is entitled, under the law to use reasonably necessary force against a wrongful intruder, to prevent that intrusion, provided it doesn't amount to grievous bodily harm.  Depending on your assessment, Hingst's reaction against Corry and/or Smith that early morning may have been justified on that basis.  If so, Hingst's 'assault' was not unlawful and self-defence doesn't arise.

What, furthermore, as to provocation?  You've heard of Hingst jumping up and having a go at Corry:  but was it provoked by Corry's own entry without invitation into Hingst's private home in the middle of the night?  If you conclude that Corry provoked the assault from Hingst, or that he actually started it, there being no unlawful precedent assault by Hingst, then this defence is ipso facto excluded.  Otherwise, you'd go on to consider these further points. The next way the Crown would seek to exclude the defence is this.  It would contend that the force Corry used was more than reasonably necessary to make effectual defence against Hingst's assault.  In considering this, bear in mind that a person defending himself cannot be expected to weigh precisely the exact amount of defensive action necessary.  Instinctive reactions and quick judgments may be essential.  It's at the point where things go wrong that juries are asked to decide whether someone has gone too far, that is to say whether or not in this case what Corry did was or was not reasonably necessary for effectual defence.  If you conclude in the end that Corry's response was not reasonably necessary for that purpose, then that's the end of this particular question and the defence has been excluded.

You've heard evidence from which you could draw inferences as to the ferocity of the attack following Hingst's having a go at Corry and any struggle.  When considering whether the Crown has excluded beyond reasonable doubt a defence under this section, you should understand that whether the degree of force used was reasonably necessary to make effectual defence against the assault is a matter for your objective consideration, and doesn't depend, for example, on Corry's personal state of mind - although Corry didn't at any stage in the interviews claim that he acted as precisely as he did for his own protection.  He said some things that hinted at that perhaps but he didn't actually make that direct assertion, to the best of my recollection. Well, if the Crown has satisfied beyond reasonable doubt on any of those issues, that is, that Corry provoked or commenced the assault, or that Corry used more force than was reasonably necessary to make effectual defence, or that any assault by Corry was not unlawful, then that's the end of this particular defence:  it couldn't apply.  On the other hand, if the Crown has not satisfied you on any of those points then it would not have proved that the actions of Corry were unlawful and you would have to find him not guilty of murder. There is another provision of the Criminal Code which in certain circumstances justifies a person using very serious or even deadly force.  That may apply when the accused has good reason to believe he is in serious danger of losing his own life or suffering very serious injury.  The provision reads:

'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 defendant from death or grievous bodily harm, it is lawful for the person to use such force to the assailant as it necessary for defence even though such force may cause death or grievous bodily harm.'

In general terms, you can use force, even extreme force, if you believe on reasonable grounds that you cannot otherwise defend yourself from death or grievous bodily harm.  The accused doesn't have to establish or prove that his response was reasonable.  The Crown has to satisfy you that the accused did not believe on reasonable grounds that he had to do what he did, in order to save himself from being killed, or at least to save himself from very serious injury.

A critical factor is the level of physical menace you think Hingst was actually presenting, immediately before any inflicting of the stab wounds by Corry.  Has the Crown proved beyond reasonable doubt, as necessary by inference, that Corry did not actually believe on reasonable grounds that it was necessary to act as he did in order to save himself from death or grievous bodily harm?

Now there is no evidence, directly, that Corry reasonably feared death or grievous bodily harm, and there is, on one view, the disproportion between Corry's having been armed as he was, and, so far as we know, Hingst's lack of a weapon - although there is, as I've said, mention of the baseball bat and the pool cue, but nevertheless this is an area for inference and I must leave the defence to you.

As to any apprehension on the part of Corry, he did say in the 3rd April interview that he knew how dangerous Hingst could be, and said all his intentions were to get away from Hingst.  In the end, having considered all the evidence, are you left with the view that it is at least reasonably possible that when Corry ferociously stabbed and otherwise assaulted Hingst, as some of the evidence has him doing, he believed on reasonable grounds that he couldn't otherwise preserve himself from death or grievous bodily harm?  If the Crown has not excluded such a reasonable possibility to your satisfaction beyond reasonable doubt, you would have to find Corry not guilty of murder."

[26]  In my opinion, the Crown's submission on this point must be rejected.  It is clear that when his Honour referred to "another provision of the Criminal Code which in certain circumstances justifies using very serious or even deadly force", he was referring to s 271(2).  An "assault" referred to in s 271(2) is an assault of the kind referred to in s 271(1), ie an unprovoked assault.  The direction did not expressly or impliedly suggest that the defence was available in the case of an assault provoked by the appellant.  If the jury had formed the impression that they were being instructed to that effect, it would have been a mistaken impression;  and in the absence of a clear disjunction between the direction as to self-defence under s 271(1) (which was expressly predicated upon an unprovoked assault) and that given in relation to s 271(2), it is not possible for this Court to hold that the jury were, serendipitously, directed to a consideration of self-defence against a provoked assault.

[27]  To the appellant's argument that it was open to a jury to infer from the appellant's statement to the police that he did entertain a reasonable apprehension of death or grievous bodily harm and that the force used by the appellant was no more than was reasonably necessary to protect himself against the deceased, the Crown's response is that the evidence relied on by the appellant strains credulity too far.

[28]  It cannot be denied that there are circumstances which render the appellant's version of events highly improbable.  But it is well-established that once it is accepted that there is evidence, however weak or tenuous it may be, on which the jury might find the plea of self-defence to be made out, it is for the jury to resolve any questions of fact arising in relation to that evidence.[3]  This is in contrast to cases[4] in which there is no evidence which might establish a foundation for a reasonable apprehension of death or bodily harm in the appellant or for the proposition that the force used by the appellant was reasonably necessary for his preservation from death or bodily harm.

[29]  In my opinion, on the basis of the statement of the appellant to which reference has been made, there is a possibility that the appellant might be excused from criminal responsibility, notwithstanding the nature and extent of the force used by the appellant against the deceased and the suspicious circumstances in which the deceased was killed.  The absence of a direction to the jury raising the possibility of a defence under s 272 may, therefore, have led to a miscarriage of justice.

[30]  The Crown sought to sustain the conviction by invoking the proviso, ie s 668E(1A) of the Criminal Code.  The Crown's submission was that, on the evidence, a jury would inevitably have convicted the accused.  This submission necessarily involves the contention that the jury must inevitably have rejected the appellant's version of events as incredible.  The Crown invoked the decision of the High Court in Festa v The Queen[5] in support of this submission.  In that case, McHugh J, with whom Hayne J agreed, said:

"[121]The question whether a jury, acting reasonably, would inevitably have convicted an accused ultimately falls to be determined by the relevant court according to its assessment of the facts of the case. [Wilde v The Queen (1988) 164 CLR 365 at 372.]  The prevalence of dissenting views in cases dealing with the application of the proviso [See, eg, R v Miller (1980) 25 SASR 170; Liberato v The Queen (1985) 159 CLR 507; Green v The Queen (1997) 191 CLR 334; Farrell v The Queen (1998) 194 CLR 286.] illustrates the largely subjective nature of the inquiry, resting as it does on factors such as the error alleged, the relative strength of the prosecution and defence cases and the court's characterisation of the hypothetical jury, 'acting reasonably' and properly directed.  As Brennan, Dawson and Toohey JJ stated in Wilde [(1988) 164 CLR 365 at 373.  See also Simic v The Queen (1980) 144 CLR 319 at 331.]:

'In the end no mechanical approach can be adopted and each case must be determined upon its own circumstances.'

[122]But one important development has occurred since this Court decided Mraz, Storey, Driscoll and Wilde. Courts of criminal appeal are now required to examine and analyse the evidence in criminal trials to a much greater extent than previously.  This Court has interpreted the 'miscarriage of justice' ground of appeal as entitling a court of criminal appeal to examine the whole of the evidence and form its own opinion as to whether there is a reasonable doubt as to the accused's guilt.  Even thirty years ago, such an approach would not have been contemplated.  In M v The Queen [(1994) 181 CLR 487 at 494, cited and applied by Gaudron, McHugh and Gummow JJ in Jones v The Queen (1997) 191 CLR 439 at 451.] Mason CJ, Deane, Dawson and Toohey JJ said:

'In most cases a doubt experienced by an appellate court will be a doubt which a jury ought also to have experienced. It is only where a jury's advantage in seeing and hearing the evidence is capable of resolving a doubt experienced by a court of criminal appeal that the court may conclude that no miscarriage of justice occurred.  That is to say, where the evidence lacks credibility for reasons which are not explained by the manner in which it was given, a reasonable doubt experienced by the court is a doubt which a reasonable jury ought to have experienced.'

[123]Although the term 'miscarriage of justice' appears both as ground of appeal and as part of the criterion for determining whether a conviction should stand, the issue under each provision is different.  In one, the issue is whether the jury must have had a reasonable doubt; in the other, it is whether the jury must have convicted.  But that said, there is no reason why the role of a court of criminal appeal should differ in deciding these issues.  In examining the evidence for the purpose of applying the proviso, the court should assume that ordinarily if it thinks that the accused must be convicted, so would a reasonable jury.  Speaking generally, the court's view of the evidence should prevail except where the error has so affected issues of credibility that the court cannot determine what are the primary facts of the case.  In cases of circumstantial evidence, for example, the court's view of the evidence should be regarded as the view of the reasonable jury unless proof of one or more circumstances has been affected by an error relating to credibility.  Even when a particular circumstance involves a credibility issue, other circumstances may be admitted or proved which are sufficient to permit the court to sustain the conviction."

[31]  In my view, these observations do not support the application of the proviso in the robust way urged by the Crown.  The question is whether the appellant's version of events is to be believed.  That question is one for the jury.  That is so, even though the appellant did not give evidence.  It is not possible for this Court to say that the jury must inevitably have rejected the appellant's evidence as to the primary facts of the case.  Further, the jury simply did not have the opportunity of considering the credibility of the defence raised by the appellant.  For these reasons, this is not a case in which the conviction can be sustained by the application of the proviso.

Conclusion

[32] I would order that the conviction be quashed and that there be a re-trial of the appellant on the charge of murder.

[33]  HOLMES J:  I agree with the reasons of McPherson JA and Keane JA and with the orders they propose.