SUPREME COURT OF QUEENSLAND

1. McMURDO P:  The facts and issues are set out in Jerrard JA's reasons so that my own reasons can be relatively briefly stated.

2. The principal ground of appeal concerns the learned trial judge's directions to the jury as to self‑defence.

The relevant law

3. The Criminal Code 1899 (Qld) relevantly provides:

"271Self-defence against unprovoked assault

(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.

272Self-defence against provoked assault

(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."

4. In Gray^[1] McPherson JA agreed with the approach of Gibbs J in Reg v Muratovic^[2] (approved in Marwey v The Queen^[3]):  s 271(2) requires that if the jury consider the nature of the assault on the defendant was such as to cause reasonable apprehension of death or grievous bodily harm and the defendant believed, on reasonable grounds, that they could not otherwise defend themselves from death or grievous bodily harm, or if the jury are left in doubt on those matters, the defendant must be acquitted;  s 271(2) does not require the defendant's act causing death or grievous bodily harm to be objectively necessary.

5. In Vidler^[4] this Court considered:

"The effect of Gray is that the critical point for the jury to consider is whether the defender's actual state of belief, based on reasonable grounds, was that the defender could not preserve himself otherwise than by doing what he did.  If that is made clear to the jury, Gray considers that further directions on the question whether the force was necessary for defence are otiose, and worse still, positively erroneous if they are seen as creating a further requirement of objective necessity."

Whilst recognizing that Allwood^[5] and Julian^[6] demonstrate that other views may be reasonably open, until the matter is reconsidered the ratio in Gray is binding on this Court so that s 271(2) requires that the defender's belief set out above must be on reasonable grounds but does not require that force used by the defender be reasonably necessary.^[7]

The relevant directions to the jury

6. The judge's directions to the jury on self-defence included the following:

"The law does not punish someone for reasonably defending himself or herself …

You will not be surprised to know that if the violence of the attacker is great and that the person defending himself reasonably fears for his life or safety then the violence that might be justified will also be great.

The level of justifiable self defence depends very much on the level of danger created by the attacker and the reasonableness of the defendant's reaction.

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 defendant does not have to prove or establish that his response was reasonable.  The prosecution has to satisfy you that the defendant 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 serious injury.

Now, one important factor is the level of physical menace which you think that Mr Norman was actually presenting immediately before the fatal blow or blows.

When considering whether the prosecution have excluded beyond reasonable doubt a defence under this section you should understand that the important issue is the state of mind or belief of Mr Wilmot.

The question you must ask is, has the prosecution proved beyond reasonable doubt that Mr Wilmot did not actually believe on reasonable grounds that it was necessary for him to act as he did to save himself from death or grievous bodily harm.

…

You may think that if a reaction was instinctive and not grossly out of proportion to the danger that confronted him he may have done what he believed, on reasonable grounds, necessary to save himself.  So, there's a question of degree involved.  So, if the defendant reasonably feared death or grievous bodily harm and thought on reasonable grounds that he couldn't otherwise save himself except by responding as he did then as a matter of law it was lawful for him to do what was necessary for defence even if he might cause the death of the other person.  A defendant does not have to prove that his response was reasonable and the prosecution has to satisfy you either that he did not have such a belief or that there were no reasonable grounds for it.  Well, if that's the way you see the case Mr Wilmot would be entitled to be found not guilty on the ground of self defence notwithstanding the drastic results of his actions.

…

Well, the issues for you then, are; whether Mr Wilmot had a reasonable apprehension of being killed or seriously injured by Mr Norman when Mr Norman had the pipe, whether Mr Wilmot believed on reasonable ground that to save himself from death or serious injury he had to use force, even though that force was likely to cause death [or] grievous bodily harm to Mr Norman.  And whether the force he used was reasonably necessary for his preservation." (my emphasis)

7. Later in re-directions in response to jury questions about a number of matters including self-defence his Honour relevantly added:

"There are three basic propositions for self-defence where this type of potentially deadly force is used.  The first is that the defendant must have a reasonable apprehension of suffering death or grievous bodily harm by the deceased so he must believe that he is in danger of himself being killed or seriously injured.

Second, the defendant must believe on reasonable grounds that it's necessary to use force to save himself from death or grievous bodily harm so he has to have a reasonable belief that he must himself use force to prevent himself being killed or suffering a serious injury;  and third, the force the defendant uses must be reasonably necessary for his own preservation so the force used must be reasonably necessary.

What that means is this.  Having considered all the evidence, are you left with the view that it is at least reasonably possible that when he hit Mr Norman the defendant believed on reasonable grounds that he could not otherwise preserve himself from grievous bodily harm.  If the prosecution has not excluded such a reasonable possibility to your satisfaction beyond reasonable doubt then you find him not guilty of murder and not guilty of manslaughter because the killing was not unlawful.

Just remember when considering this that in the stress of the moment, a person defending himself can't be expected to make accurate or sophisticated judgments about how far it may be necessary to go.  You might think that if a reaction was instinctive and not grossly out of proportion to the danger that confronted the defendant he may have done what he believed on reasonable grounds to save himself so there's a question of degree involved in that."

A misdirection?

8. The italicized parts of the directions are the subject of complaint in this appeal. I will also refer shortly to those parts in dark print. The italicized words in the introductory portion of the direction on self-defence are, under the present law binding on this Court, a misdirection as they wrongly focus on the objective necessity of what was done by the defender rather than the defender's reasonable belief. The directions in dark print immediately following these introductory observations, however, made clear to the jury their real task under s 271(2).  Were that the appellant's only complaint this ground of appeal would fail:  cf Vidler, R v Corcoran^[8] and R v Greenwood.^[9]

9. Unfortunately later in the quoted directions and re-directions his Honour repeated the earlier misdirection by stating that the issues for the jury as to self-defence included whether the force used by the appellant was reasonably necessary for his preservation.

10. The evidence set out by Jerrard JA shows that both the defence under s 271(2) and that under s 272 were capable of being raised on the evidence, depending on the view the jury took of the facts.  It was a jury question whether the appellant's blows causing the death were as a result of an unprovoked assault by the deceased (in which case s 271(2) was raised) or whether any assault by the deceased upon the appellant was provoked (so that s 272 was raised).  The judge did not explain to the jury that the threshold questions before s 271(2) could apply were whether the appellant had been unlawfully assaulted by the deceased and whether the appellant had not provoked that assault.  This omission could, however, only have favoured the appellant.  The directions given by his Honour as to self-defence, which at times included the requirement that the force actually used by the appellant be reasonably necessary for his preservation, were appropriate to self-defence under s 272 but, for the reasons I have given and as the respondent rightly concedes, were a misdirection in respect of self-defence under s 271(2).  This means that his Honour did not clearly and fairly leave the issues under s 271(2) to the jury according to law.

Section 668E(1A) Criminal Code

11. As a result the conviction for murder must be set aside unless after reviewing the whole of the evidence this Court decides the evidence establishes the appellant's guilt of murder beyond reasonable doubt so that no substantial miscarriage of justice has actually occurred (s 668E(1A) Criminal Code):  Weiss v The Queen.^[10]  The prosecution case was strong but I am not persuaded a reasonable jury properly instructed as to self-defence under s 271(2) would inevitably have concluded beyond reasonable doubt that the appellant was not acting in self-defence to the deceased's unprovoked assault on him or that the deceased's assault was not such as to cause reasonable apprehension of death or grievous bodily harm to the appellant or that the appellant did not believe on reasonable grounds that he could not have otherwise preserved himself from death or grievous bodily harm.  The appellant is entitled to have these facts determined by a jury properly instructed according to law as to self-defence under s 271(2).  It follows that in my view s 668E(1A) Criminal Code cannot be applied.

12. The appeal must be allowed and the verdict of guilty set aside.

Was the verdict unreasonable?

13. A retrial must be ordered unless the appellant's other ground of appeal, that the jury verdict was unreasonable on the evidence, is successful. As I have already noted, the evidence set out by Jerrard JA demonstrates a strong prosecution case. Although not inevitable, it was well open to the jury to be satisfied beyond reasonable doubt of the appellant's guilt of either murder or manslaughter, despite some evidence raising self-defence, provocation and intoxication. There must be a retrial on murder.

Conclusion and Order

14. I would allow the appeal, set aside the conviction for murder and order a retrial.

15. JERRARD JA:  On 1 November 2005 Clinton Wilmot was convicted by a jury of having murdered Robert Norman on 9 August 2003 at Gin Gin, and Mr Wilmot was sentenced to imprisonment for life.  He has appealed against that conviction, principally on the ground of misdirection by the learned trial judge with respect to a defence of self-defence against an unprovoked assault.  He also contends that the verdict of the jury should be set aside as unsafe and unsatisfactory, a ground which should be understood as arguing that the verdict was unreasonable or cannot be supported having regard to the evidence.^[11]  That ground requires that this Court ask itself whether it thinks that upon the whole of the evidence it was open to the jury to be satisfied beyond reasonable doubt that Mr Wilmot was guilty of murder.

The evidence

16. The evidence the Crown led (Mr Wilmot neither gave nor called evidence) can be summarised as follows. Mr Wilmot and the Crown witness Mitchell Stevens were working in the Gin Gin area pruning fruit trees, and finished work at about 2.30pm on 8 August 2003. They then spent 2 hours at a hotel, left, and returned there at 6.30pm. They stayed until closing time at 1.00am. By then Mr Wilmot had consumed a quite considerable number of cans of rum and cola, as well as beer. Mr Stevens had drunk slightly less. When they left Mr Stevens was carrying a carton containing cans and bottles of rum and cola, brought by Mr Wilmot. They set off for a caravan park where Mr Wilmot was living with his girlfriend.

17. Mr Stevens described himself in evidence as “fairly drunk” at that time, and said Mr Wilmot was “staggering as well”;^[12] that description is consistent with the effect of the substantial body of evidence called by the Crown from persons, who were also at that hotel that evening, either drinking or officiating as staff.  Most of those witnesses described Mr Wilmot, either in the statements they originally gave to police, or at the committal hearing, or in evidence before the jury, as considerably affected by alcohol, but able to be understood in speech and when singing.  Before he started singing karaoke, and some time around 11.30pm, one bar attendant at that hotel told Mr Wilmot that she felt he had had enough alcohol, and declined to serve him more; she could not say whether he was given alcoholic drinks thereafter by anyone else.  She had been concerned at his capacity to get himself home safely.  An expert’s estimate of his blood alcohol concentration at 1.00am, based on the alcohol Mr Stevens said he had seen Mr Wilmot drink, was that it would have been at least .19; additionally, Mr Stevens said that he had seen Mr Wilmot consume some cannabis after 4.30pm and before going back to the hotel at 6.30pm.

18. As the two men made their way along the street after 1:00am, Mr Wilmot attempted to open the door of a white car. He failed, and he then attempted to open the door of a utility, which was owned by Mr Norman. Mr Norman’s semi-trailer was parked behind that utility, and because of some circumstances in his personal life, Mr Norman was sleeping in his truck that night, rather than at his daughter’s home. Mr Norman alighted from his truck and pushed Mr Wilmot backwards and away from the utility. To misquote Lord Denning,^[13] Mr Norman, when doing that, used a very common and emphatic Australian form of the expression “you be off”.   Mr Norman then went back to the truck.  Mr Wilmot then attempted to open the door of the truck, apparently offended by Mr Norman’s defence of the latter’s quiet possession of the utility.  Mr Wilmot grabbed the truck door handle, and banged on the truck door while attempting to open it.  Eventually Mr Norman opened the door and kicked out at Mr Wilmot, not making contact with him, and then Mr Norman closed the truck door again.  Undeterred, Mr Wilmot continued to attempt to open the door handle, inviting Mr Norman to get out of the truck, and apparently offended and confused by the circumstance that Mr Norman had pushed him when claiming protective possessory rights about the utility, yet had then gotten into the truck.

19. Eventually the truck door opened again and Mr Norman got out for the second time, this time carrying a piece of hollow but heavy metal piping about three feet long. He chased Mr Wilmot towards the back of the trailer, with Mr Wilmot running past Mr Stevens, whom Mr Norman then also chased with the metal bar. Mr Stevens ran, tripped over, and spilled his box of alcohol. He got up and ran again, and Mr Norman then began throwing the cans and bottles at Mr Wilmot and Mr Stevens. None of them hit either man.

20. Mr Stevens’ evidence was that that was then followed by Mr Wilmot and Mr Norman meeting in the middle of the road, while Mr Stevens watched Mr Norman swing the metal bar at Mr Wilmot, who grabbed Mr Norman; and the two men wrestled. Mr Wilmot got possession of the metal pipe, and when Mr Norman was on his hands and knees Mr Wilmot raised it above his head and swung it downwards towards Mr Norman, swinging it as if it were an axe. Mr Stevens heard Mr Norman scream, although he did not actually see the bar make contact with Mr Norman, as Mr Stevens said he then turned away and began walking away. He looked back only when he heard Mr Wilmot call or scream out “I’ve killed him”.

21. He then saw Mr Wilmot walking away from where Mr Norman was lying on the ground, and saw Mr Wilmot hit the metal bar into the ground a number of times. They both left. Mr Wilmot dropped the metal bar, and Mr Stevens heard a truck pull over and saw its driver go over to where Mr Norman was lying. Mr Wilmot and Mr Stevens arrived back at the caravan park, and Mr Wilmot told his partner that he had killed a man and that he was going to prison, and told her that the man had hit him (apparently with the bar), pointing to some red marks on his shoulder. Mr Wilmot then went back and retrieved the metal bar (later found near the caravan site by police); and next morning the two men agreed – at Mr Wilmot’s suggestion – that they would deny any knowledge of an attack on Mr Norman. During the day they drove to Bundaberg, and other evidence disclosed that the clothes each man had worn that night were thrown out the car window on a dirt road leading to Bundaberg. That did not assist them, because the police were waiting at the caravan park when they returned.

22. The truck driver, whom Mr Stevens saw come to Mr Norman’s aid, and who knew him, found Mr Norman lying in a pool of his own blood and called for assistance on CB radio. That truck driver had a torch, and when he used it to illuminate Mr Norman’s unconscious body, some others who then saw the torch also came to Mr Norman’s aid, as did an ambulance. At that time Mr Norman was still alive, deeply unconscious, and had left a very significant amount of his blood on the roadway. He arrived at the Bundaberg Hospital at about 1.54am that morning, and was declared dead at 2.30am. Medical opinion called by the Crown was to the effect that death had been brought about by brain damage due to blunt trauma to the head, perhaps significantly contributed to by the degree of blood loss.

Injuries to Mr Norman

23. There had been considerable blunt trauma to his head. The evidence of the pathologist, not challenged on this point, identified six quite discrete injuries visible on the head or skull, each of those being consistent with being caused by a single, separate, blow from the metal pipe. Any of those at least six blows would have been capable of rendering Mr Norman unconscious, and if not unconscious then at least significantly stunned. One of those injuries was to the left side and front of the face, probably given when the assailant (Mr Wilmot) was in front of Mr Norman; another was to the right ear and that side of the head, a third to the back of his neck when it was more probable Mr Wilmot was behind Mr Norman, and delivered when Mr Norman was either falling or coming close to being on the ground; a fourth was on the back of the head to the right of the mid-line, probably delivered from behind; a fifth was on the vertex or top of the head, consistent with the end of the pipe coming down on top of the head, with the pipe being held and being used somewhat like a driver being used to force a steel post or star picket into the ground; and the last was to the back of the head. Each of those six discrete wounds was consistent with impact from a heavy blunt object, and further pathological examination showed that Mr Norman had suffered multiple skull fractures from the attack on him. It had resulted in what the pathologist described as extensive fracturing of the vault and base of the skull,^[14] such that the pathologist did not even attempt to give a count on the total number of fractures.  He opined that it was more probable than not that death was a result of the combination of two or more of those blows. 

24. Because Mr Wilmot gave no evidence, direct evidence of his own belief about self-defence was limited to what he told the police when interviewed. In essence, that was that Mr Norman had come running at him swinging the iron pipe, which Mr Wilmot had seized with both hands, and that Mr Wilmot had hit Mr Norman once only, on the head, with the pipe. The medical evidence showed that that account simply could not be true. (There was no suggestion in the cross-examination of Mr Stevens that he had played any part in causing Mr Norman’s injuries).

25. Quite a number of witnesses were called who had either heard or seen, or both, some of what went on the road between Mr Norman and the other two men. The witnesses, who heard the commotion in the street, consistently described hearing one apparently very aggressive male voice saying “Fuck you” and “I’m going to fucking kill you, you fucking cunt”, and another less aggressive voice saying “Come and get me” or, more significantly “Come on, come on you bastards”. The significance of the latter evidence^[15] is that the use of the plural strongly implies that it was Mr Norman who was saying “Come on, come on”, and not Mr Wilmot.  On the other hand, one witness certainly heard a bottle being thrown, and that witness accepted it was possible that the man threatening to kill was the one who threw the bottle.  On the evidence that would have been Mr Norman, but at least one witness specifically identified the male wearing the white singlet – Mr Wilmot – as the person threatening to kill. 

Provocation for an assault

26. It was Mr Norman who produced the metal pipe, a significant weapon, and Mr Norman who pursued two other men and threw cans and bottles at them. That conduct constituted assaults by Mr Norman. What happened after that was partly revealed by Mr Stevens’ evidence, and was partly a matter of inference. Mr Wilmot would certainly have had grounds to fear for his own safety had Mr Norman succeeded in landing any significant blows on him with that metal pipe. Mr Wilmot had earlier behaved in a provocative way towards Mr Norman, both by apparently trying to gain unlawful access to the utility and also by his drunken and persistent attempts either to get into Mr Norman’s truck cabin, or get Mr Norman out of it. Mr Wilmot so behaved when apparently intending to assault Mr Norman in retaliation for being pushed away from Mr Norman’s utility. That conduct by Mr Wilmot was capable of being provocation to Mr Norman for an assault, and Mr Norman would have been justified in understanding that Mr Wilmot was threatening to use force on Mr Norman, if and when Mr Wilmot could get into the truck cabin or get Mr Norman out of it.

Self-defence directions

27. On the appeal, counsel for the Crown conceded that the learned judge had twice misdirected the jury as to the relevant elements of a defence of self-defence. Mr Wilmot’s counsel on the appeal, Mr Rafter SC, also criticised two other passages of the summing up as containing misdirections, but those directions were defended by the Crown. The directions defended by the Crown on the appeal occurred at the introductory part of the directions by the learned judge on self-defence, and were in these terms:

“You will not be surprised to know that if the violence of the attacker is great and that the person defending himself reasonably fears for his life or safety then the violence that might be justified will also be great.
The level of justifiable self defence depends very much on the level of danger created by the attacker and the reasonableness of the defendant’s reaction.”^[16]

28. The complaint about the first underlined words is that they are not quite in accordance with s 271(2) of the Criminal Code 1899 (Qld), on which Mr Wilmot relied.  Instead, that section relevantly requires that the nature of the assault cause a reasonable apprehension of death or grievous bodily harm.  Mr Rafter SC submitted that such a reasonable apprehension can arise where the violence of the attacker is not great.

29. The point is valid, but the explanation by the judge, at that introductory part of the direction to the jury, summarised adequately enough the relevant requirements of s 271(2). So too did the direction in the second set of underlined words about which the complaint is made.

30. Section 271 of the Criminal Code is in these terms:

“271Self-defence against unprovoked assault

(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.”

31. The complaint made about the second underlined words is that the relevant issue is a defendant’s belief on reasonable grounds that he cannot otherwise preserve himself from death or grievous bodily harm, and not the reasonableness of the defendant’s reaction. I consider the jury could not have been misled by those parts of the learned judge’s summary of the relevant requirement in s 271.

Authoritative construction of s 271(2)

32. In R v Keith [1934] St R Qd 155, both Blair CJ and Webb J treated the expression “otherwise preserve the person defended from death or grievous bodily harm” in s 271(2) as meaning, in the circumstances of that case, “except by (killing the deceased)” (at 168 and 179).  Consistently with those views, in Reg v Muratovic [1967] Qd R 15 Gibbs J, with whom Lucas J agreed, held that “otherwise” in s 271(2) meant, in context, “otherwise than by using the force which (the defendant) in fact used” (at 19).  Hart J at 28-29 had suggested there were at least four possible constructions of “otherwise”:-

■otherwise than by using force;

■otherwise than by using any such force as is necessary for defence;

■otherwise than by using force which may cause death or grievous bodily harm; and

■otherwise than by using the force which the defendant in fact used.

33. Hart J thought, and I agree, that the most favourable meaning (for a defendant) was that the defendant must simply think that the use of force was necessary; so “otherwise” meant “otherwise than by using force”; but that view was decisively rejected by the majority in Muratovic.  Gibbs J went on to hold that if the two conditions specified in paragraph 271(2) were satisfied, it did not become necessary for practical purposes to consider a third question, namely whether the force used was in fact necessary for defence.  The effect of his judgment was that if the nature of the assault was such as to cause reasonable apprehension of death or grievous bodily harm, and if the defendant 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 the defendant did in fact use, it followed that that force in fact used was no more than the defendant honestly and reasonably believed to be necessary for defence; and its use was lawful.  That construction has been applied ever since in this State, and in essence the critical question for a defendant, who used lethal force and who had faced an assault which caused a reasonable apprehension of death or grievous bodily harm, is whether that defendant believed on reasonable grounds that the force used was necessary for defence.  That construction has made the law applied in this State the same as the common law declared in Zecevic v DPP (Vic) (1986-1987) 162 CLR 645.

34. In Marwey v The Queen (1977-1978) 138 CLR 630 the High Court unanimously approved the construction Gibbs J had placed on s 271(2).  Barwick CJ wrote that what that second paragraph called for was the actual belief by the defendant on reasonable grounds of the necessity of the fatal act for his own preservation (at 637).  His Honour held the section made the belief of the defendant the definitive circumstance, which belief must be based on reasonable grounds.  He held that in contrast, in s 271(1) the determination of the extent of the permissible force was directly committed to the jury as an objective fact.  Stephen J considered s 271(2) raised two questions: whether there was a belief on the part of the defendant that the force he used was necessary, a subjective belief; and whether there existed reasonable grounds for that belief (an objective question, exclusively concerned with the jury’s view whether there were reasonable grounds for the defendant’s belief).

35. In Zecevic the common law position approved by the majority was in these terms (at 661 and 662):

“The question to be asked in the end is quite simple.  It is whether the accused believed upon reasonable grounds that it was necessary in self-defence to do what he did.  If he had that belief and there were reasonable grounds for it, or if the jury is left in reasonable doubt about the matter, then he is entitled to an acquittal.”; and

“If the response of an accused goes beyond what he believed to be necessary to defend himself or if there were no reasonable grounds for a belief on his part that the response was necessary in defence of himself, then the occasion will not have been one which would support a plea of self-defence.”  

36. That direction is relevantly the same as the construction of the Criminal Code approved in Marwey.

37. In R v Gray (1998) 98 A Crim R 589 the trial judge had directed the jury on s 271(2) in these terms:

“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 fails.  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.”

38. The complaint on appeal in that case was that the jurors might wrongly have thought that objectively one or more of the appellant’s actions were not necessary, although satisfied that the appellant reasonably believed the force used was necessary. McPherson JA, delivering the judgment of this Court, concluded that where there was an unlawful and unprovoked assault, only two conditions needed to be satisfied for self-defence to be available under s 271(2). The first was that the nature of the assault must be such as to cause reasonable apprehension of death or grievous bodily harm; the second that the person using force by way of defence must be someone who believed on reasonable grounds that what he was doing was the only way he could save himself or someone else from the assault. There was no additional requirement that the force used to save the defendant or someone else must also be, objectively speaking, necessary for the defence.

39. That ruling was entirely in accord with the decisions in Muratovic and Marwey, and as McPherson JA held, if that construction had the effect of writing out of s 271(2) the words “necessary for defence” in that sub-section, it was a result dictated by authority binding on this Court.  In particular, Barwick CJ in Marwey had made clear that there was no separate or independent requirement in s 271(2) that the killing or grievous bodily harm done by a defendant should have been “necessary” for defence, when tested by objective standards.  McPherson JA further noted that it was essential that a jury be directed in conformity with the requirements of the provision as authoritatively interpreted by the High Court in Marwey.  That appeal was allowed; the directions had not brought home to the jury in sufficiently clear terms that it was the appellant’s actual state of belief, based on reasonable grounds, that was critical.

40. That construction was confirmed, if confirmation was necessary, in R v Vidler (2000) 110 A Crim R 77, where this Court referred to the “vice”, identified in Gray, of the imposition of an additional objective requirement over and above that of the appellant’s actual belief based on reasonable grounds; noting that, as a result of earlier decisions, the requirement in s 271(2) of “such force… as is necessary for defence” has effectively been replaced with “such force...as the defender actually used.”  In Vidler this Court held that the effect of Gray is that the critical point for the jury to consider is whether the defender’s actual state of belief, based on reasonable grounds, was that he could not preserve himself otherwise than by doing what he did.  The Court held in Vidler that if that is made clear to the jury, further directions on the question whether the force was necessary for defence are either otiose, or, worse still, positively erroneous if they create a further requirement of objective necessity over and above the need for a defendant’s belief to be based on reasonable grounds. 

41. In R v Greenwood [2002] QCA 360 the judgment of this Court accepted that a defence relying on s 271(1) calls for an objective test, whereas the test pursuant to s 271(2) is subjective, but with an objective component; and suggested that the question for the jury was either “whether the [defendant] reasonably believed that the only way in which he could save himself from death or grievous bodily harm was by acting as he did?” [28], or “whether the [defendant] actually believed on reasonable grounds that it was necessary to act as he did to save himself (or another) from death or grievous bodily harm?” [38].

The misdirections given in the trial

42. Consistently with that imposing body of authority, the Crown conceded that the following two passages in the directions contained misdirections:

“Well, the issues for you then, are; whether Mr Wilmot had a reasonable apprehension of being killed or seriously injured by Mr Norman when Mr Norman had the pipe, whether Mr Wilmot believed on reasonable ground [sic] that to save himself from death or serious injury he had to use force, even though that force was likely to cause death or grievous bodily harm to Mr Norman.  And whether the force he used was reasonably necessary for his preservation.”^[17]

At AR 450 the learned judge directed the jurors in the following terms:

“There are three basic propositions for self-defence where this type of potentially deadly force is used.  The first is that the defendant must have had a reasonable apprehension of suffering death or grievous bodily harm by the deceased so he must believe that he is in danger of himself being killed or seriously injured.

Second, the defendant must believe on reasonable grounds that it’s necessary to use force to save himself from death or grievous bodily harm so he has to have a reasonable belief that he must himself use force to prevent himself being killed or suffering a serious injury; and third, the force the defendant uses must be reasonably necessary for his own preservation so the force must be reasonably necessary.”

The last sentence from the direction quoted from AR 427, and the specified third proposition in the direction at AR 450, are misdirections as identified in Vidler.  Those directions contain the “vice”^[18] of an additional objective requirement the force used be reasonably necessary, over and above the need for Mr Wilmot’s belief to be based on reasonable grounds.

43. The conceded misdirections actually apply the terms of s 272(1), which deal with self-defence where a defendant is responding to a lawful or provoked assault from another. The Crown readily agreed on the appeal that the third requirement specified in the direction was wrong, because the requirement that the force used be reasonably necessary for Mr Wilmot’s defence was put to the jury as a further requirement for self-defence to be available, additional to whether or not Mr Wilmot believed on reasonable grounds that it was necessary for him to use force in self-defence. Although the Crown did not concede the following matter, in my opinion it would equally have been a misdirection if the third of the specified requirements put to the jury by the learned trial judge had omitted the word “reasonably” before the word “necessary”. A direction which put as a specified separate requirement that the jury consider whether the Crown had established the force Mr Wilmot used was not necessary for his preservation would be a misdirection, in accordance with Vidler, Gray, Marwey, and Muratovic.  But, oddly, simply reading s 271(2) to a jury who followed what was said would result in a direction very similar to the one conceded to be a misdirection, other than by the use of the term “reasonably necessary” in the third requirement, as opposed to “necessary”. 

How did it happen?

44. Mr Rafter SC suggested on the appeal, and I respectfully agree, that the probable explanation for the learned trial judge having misdirected the jury as described was simply that the learned judge had been following and repeating the directions in the Queensland Supreme and District Courts Benchbook suggested for self-defence against unprovoked assault, (s 271), and had inadvertently added to those the contents of a further page identifying the elements of a s 272(1) defence. 

45. The learned judge did not make any reference in the directions to the jury to the preliminary requirement in s 271(2) that, for self-defence under that section to apply, it was necessary that the jury find, or that the Crown not disprove, that Mr Wilmot was unlawfully assaulted by Mr Norman, and had not provoked that assault. A comparison of the suggested direction appearing in the Benchbook with the directions given to the jury reveals that the learned judge omitted any direction on that preliminary question.

46. That preliminary question distinguishes the circumstances in which s 271(2) applies from those in which s 272(1) does. That latter section reads:

“272  Self-defence against provoked assault

(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.”  

This was a s 272 case

47. On the facts described herein, it would have been open to the jury to consider that s 272 applied, in that Mr Wilmot did provoke an assault upon him by Mr Norman, who assaulted Mr Wilmot with sufficient violence or threats of violence as to cause a reasonable apprehension of at least grievous bodily harm. I consider Mr Norman’s assault with the metal bar constituted by Mr Norman’s producing it and threatening to use it on the aggressive and alcohol fuelled Mr Wilmot was an assault which a jury would properly consider lawful. That was why s 272 applied, if self-defence was available, when Mr Wilmot later brutally bludgeoned Mr Norman to death with the bar. Whether s 271(2) was available, or only s 272(1), it is significant in rebuttal of either defence that Mr Wilmot’s subsequent explanation for what happened, given to the police, only attempted to justify one blow and not the six that were delivered, and that he attempted to prepare a false account of events and did dispose of the clothing he was wearing. That conduct was inconsistent with a belief on reasonable grounds that the force he had used was necessary for his own self-defence.

48. The remaining questions for the jury on a s 272(1) defence were whether Mr Norman’s behaviour had caused Mr Wilmot to believe on reasonable grounds that it was necessary for him to use force in self-defence to preserve himself from death and grievous bodily harm, and whether the force Mr Wilmot actually used was reasonably necessary for his self-preservation. The learned judge actually put those very propositions to the jury, in the passages conceded to be misdirections for a defence relying on s 271(2), self-defence against unprovoked assault. The learned judge did not direct the jury on any of the requirements in any s 272(2) which limit the availability of the plea of self-defence to a provoked assault.

49. I consider the third obligation specified in s 272(2), namely that before the necessity for using potentially lethal force in self-defence the person using such force declined the conflict and quitted it or retreated from it as far as was practicable, applies only to the circumstances described in the two preceding clauses in that paragraph. That is, I agree with the view suggested by Hart J in Muratovic^[19] that those two earlier clauses, respectively describing a person who used murderous violence in the first place or else before it was necessary, and who is thereby disqualified from the protection given by s 272(1), can re-qualify for that protection if that person has retreated before using lethal force.  I therefore disagree with the suggestion by Stanley J in Reg v Johnson [1964] Qd R 1 at 14 that s 272(1) applies only if the defendant has declined further combat or retreated.  Whichever view is correct, a view of the facts was open to the jury which would have entitled Mr Wilmot to plead s 272(1), namely that he had declined further conflict with Mr Norman and attempted to retreat from Mr Norman’s assault before ultimately using lethal force.  That view would depend upon accepting Mr Stevens’ account of events. 

The Crown agreed it was a s 271 case

50. The directions that were given accordingly gave Mr Wilmot the benefit of the defences available under s 271(2), and s 272(1), without distinguishing between those defences or describing the circumstances limiting the occasions on which either defence was applicable. Directing the jury both in terms of s 271(2) and s 272(1) would only have disadvantaged Mr Wilmot if the Crown could not exclude a defence based on s 271(2), namely that Mr Wilmot himself had been unlawfully assaulted by Mr Norman and had not provoked that assault, to which Mr Wilmot had responded. On the appeal it was common ground between counsel that the Crown had not argued at the trial that Mr Wilmot’s plea of self-defence should be limited to one of self-defence against a provoked assault; that is, the Crown accepted on the appeal that it had not argued at the trial that Mr Wilmot’s defence should be limited to s 272(1) and that the provisions of s 271(2) were not available to him. Counsel for the Crown on the appeal disavowed any attempt now by the Crown to argue that s 272(1) was the only defence which arose on the evidence.

51. Despite that position by the Crown, in my opinion this was always a s 272 case, and only a s 272 case, and it was always a case in which it was very unlikely that a jury would uphold a plea of self-defence and acquit. But on the position taken by the Crown at the trial, as described on the appeal, the directions actually given impermissibly restricted a defence under s 271 which the Crown conceded at trial was available. It seems likely from that concession apparently made at the trial that it was by agreement that the learned trial judge omitted all reference to the first qualifying circumstance in s 271, namely that that defence arose only where Mr Wilmot had been the subject of an unlawful and unprovoked assault by Mr Norman. The learned judge had no doubt been attempting to simplify the issues for the jury. It also seems likely that, by agreement between counsel and the learned judge, the judge had not intended to direct the jury at all on s 272(1), self-defence against a provoked assault; and that part of a direction about that defence was given inadvertently, and simply because of the manner in which the Benchbook was set out.

52. It has not been suggested that s 272(1) does not contain as a specific element that the force used in self-defence against a provoked assault is limited to such force as is reasonably necessary for that self-defence. That discrete element, imposing an additional requirement that the force used be objectively assessed by the jury as reasonably necessary, distinguishes a defence against a provoked assault from one against an unprovoked assault. It follows that the directions the learned trial judge gave to the jury both had the capacity to confuse them as to the requirements of self- defence, mis-stated the requirements of a s 271 defence, but put those of a s 272(1) defence as favourably as was possible for Mr Wilmot. That the directions were capable of confusing the jury is demonstrated by the fact that, on the occasion of the second misdirection – given when the jurors had asked that the judge “define the point of law on provocation, self-defence, diminished state of mind re intoxication”^[20] – the directions continued immediately thereafter as follows:

“What that means is this.  Having considered all the evidence, are you left with the view that it is at least reasonably possible that when he hit Mr Norman the defendant believed on reasonable grounds that he could not otherwise preserve himself from grievous bodily harm.  If the prosecution has not excluded such a reasonable possibility to your satisfaction beyond reasonable doubt then you would find him not guilty of murder and not guilty of manslaughter because the killing was not unlawful.”

53. That further direction, which correctly focused (for s 271(2)) on whether the prosecution had excluded that Mr Norman believed on reasonable grounds that he could not otherwise protect himself, correctly put the issue to the jury as one based on Mr Wilmot’s state of mind, whereas it was immediately preceded by a direction which told the jury that as the third requirement, the force Mr Wilmot used must be reasonably necessary for his own preservation. The result is that the jurors may have dismissed the defence of self-defence because they were satisfied beyond reasonable doubt that the force Mr Wilmot used was not (objectively considered) reasonably necessary for his own self-defence, a matter which was not necessarily determinative of the defence under s 271(2) that Mr Wilmot relied on, and which the learned judge mistakenly thought was being explained to the jury.

Did the trial miscarry because of the directions?

54. On the appeal the Crown argued that no miscarriage of justice had occurred, because, applying the decision in Weiss v The Queen (2005) 80 ALJR 444, this Court, making its own independent assessment of the evidence, should have concluded that Mr Wilmot was proved beyond reasonable doubt to be guilty of murder.^[21]

55. Weiss requires that this Court itself decide whether a substantial miscarriage of justice has actually occurred.  I am satisfied that any jury would find that the force Mr Wilmot used was not reasonably necessary for his own self-defence, so a defence based on s 272(1) would always fail.  That is, I think there were two errors made at the trial.  One was in not requiring that the jury consider only s 272(1), and the second was the misdirection on s 272(1). 

56. I consider it is not possible to conclude that the second error would have had no significance in determining the verdict of guilty to murder, since the learned judge did not intend to direct the jurors on s 272(2).

57. I also consider with respect that Mr Wilmot may have been disadvantaged by the jury not learning of the provisions in either s 271 or s 272 which restricted the availability of a defence of self-defence. Absent knowledge of those restrictions declared in each section, and absent directions on them, it may have appeared to the jury that the plea of self-defence was curiously readily available to any person using lethal force. In the result there are simply too many ways in which the verdict of the jury on self-defence was given without the jury being directed to the issues relevant to that defence. This case accordingly provides an example of one in which there had been a significant denial of procedural fairness, even though it is one in which this Court can be satisfied to the requisite degree of Mr Wilmot’s guilt. Accordingly, I would uphold the appeal on the misdirection ground, although I would certainly reject it on the ground contending that the verdict could not be supported having regard to the evidence, and would set aside the conviction for murder and order a new trial. Whether that trial ever takes place will depend on whether the Crown considers that the evidence of Mr Wilmot’s extensive consumption of alcohol that night justifies accepting a plea of guilty to manslaughter, rather than conducting a re-trial.

58. agree with the orders that the President proposes.

59. MUIR J:  I am satisfied that, for the reasons given by Jerrard JA and McMurdo P, the jury was materially misdirected.  Although I entertain some reservations as to whether, on the facts lucidly stated in Jerrard JA’s reasons, any substantial miscarriage of justice has actually occurred I agree with the orders proposed by the President.