SUPREME COURT OF QUEENSLAND

[1]  McMURDO P: On 15 September 2009 at the conclusion of the hearing of this appeal, this Court made orders allowing the appeal, setting aside the conviction and ordering a re-trial.  The Court stated that it would publish its reasons for those orders later.  I agree with Fraser JA's reasons for those orders, subject to the following reservation as to whether s 272(1) Criminal Code 1899 (Qld) (Self-defence against provoked assault) was raised on the evidence at trial.

[2] Defence counsel told the judge that he was not relying on s 272(1).  When the judge stated in the absence of the jury, prior to counsel's addresses, that he was not intending to direct the jury on s 272(1), defence counsel did not attempt to dissuade the judge from that view.  Nor did defence counsel ask for any re-direction on s 272(1) at the conclusion of the judge's directions to the jury. 

[3] Despite the approach of defence counsel, the judge was obliged to direct on s 272(1) if there was any evidence capable of fairly raising the defence: Stevens v The Queen;[1] Stingel v The Queen.[2]  In Stevens, Callinan J said in the somewhat analogous context of setting out the directions which should have been given to the jury in that case on accident (s 23 Criminal Code): "… it is not necessary for an accused in order to be acquitted, to establish any facts, matters or inferences from them."[3]  This Court in R v Pollock,[4] relying on Callinan J's observations and in considering the adequacy of judicial directions as to provocation, stated:

"The jury did not have to conclusively find any facts or draw any inferences before considering provocation. In determining whether the prosecution had disproved provocation beyond reasonable doubt, the jury was required to consider the version or versions of the facts and inferences most favourable to the appellant that were reasonably open from the evidence. … ."

[4] That approach should be applied to the question in this case: whether s 272(1) was raised on the evidence.  The question then becomes whether s 272(1) was raised on the version of the facts, and inferences which may be reasonably drawn from those facts, most favourable to the appellant.

[5] Section 272(1) provides:

"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."

[6] The evidence most favourable to the appellant was contained in his record of interview with police and the inferences that may be reasonably drawn from the questions and answers in that interview.  The transcript of that interview included the following relevant conversations:

"DEAN [the appellant]:  And ah he [indistinct], I didn't hit him first, I just shoved him. 

SCON KENT:  Ok.

DEAN:  And then he, he did start throwing Punches then.

SCON KENT:  Ok.  So he.

DEAN:  [indistinct] swinging and like I threw a punch back and it connected and I saw him hit the floor like and I just couldn't believe what happened to be honest, like.  I was scared to be honest, I swear I was.

SCON KENT:  Yep.  So you shoved him away after he walked towards you?

DEAN:  Yep.

SCON KENT:  And how close would he have got like?

DEAN:  Oh he was here, pretty in my face, like.

SCON KENT:  Oh. ok, so right, right up close?  And, when you say shoved him, you motioned like that?

DEAN:  Yep.

SCON KENT:  Just sort of in the chest --

DEAN:  In the chest --

SCON KENT:  Like that --

DEAN:  Yep.

SCON KENT:  Ok and did, what happened he stumbled back or just sort of --

DEAN:  No just sort of stumbled back and then he came back towards me again with his hands up [indistinct]

SCON KENT:  Ok.  And when you say throw like with his face –

DEAN:  [indistinct] --

SCON KENT:  Did he connect with you at all?

DEAN:  I'm not, I'm not really sure to be honest.  [indistinct] I got a fat lip but I'm, I'm not picky of that.

SCON KENT:  Ok.  Um.

DEAN:  I got a sore [indistinct] to be honest.

…

SCON KENT: So throw some punche[s], you can't remember if they connected? Um, then what did you do?

DEAN: [indistinct] punches, like I said.

SCON KENT: Did you throw a lot of punches or just one?

DEAN: Oh might have been a couple, might have been a couple, all I know is I was throwing back.

SCON KENT: Yep.  With your fists?

DEAN: Yeah with my fists.

SCON KENT:  You, do you remember hitting him or?

DEAN:  Ah --

SCON KENT:  Or connecting --

DEAN: I know I hit him, I know I connected.

SCON KENT: Ok? Do you remember where?

DEAN: No idea.

SCON KENT: Face, chest,

DEAN: Maybe, maybe near his mouth, maybe 'cause I got like a cut there --

SCON KENT: Ok.  Um what would you say like, just a couple or like ten or twenty or?

DEAN: No, not ten or twenty, mate.

SCON KENT: Just a couple?

DEAN: Just, yeah.

SCON KENT: So.  And you remember when he went down to the ground?

DEAN: yep I can remember he dropped on the floor and as soon as he did that, I turned around and walked, I walked straight away.

SCON KENT: Was that after one of the punches?

DEAN: It was after one of the punches yeah.

SCON KENT: Ok.  And you, you don't remember which actual punch made him fall to the ground?

DEAN: [indistinct] so at least one connected [indistinct] --

SCON KENT: [indistinct] --

DEAN: [indistinct] that one punch and hit the floor.

SCON KENT: Only a couple of punches thrown.  Um, at least one connected.  And so the punch that you threw that connected caused him to fall on the ground.

DEAN: Yep.  I must have [indistinct] tripped up [indistinct] punched him?

SCON KENT: Do you think he tripped?

DEAN: Oh I'm not sure, I'm not sure.

SCON KENT: Do you know if there was anything on the ground that cause him to fall over or?

DEAN: Just well, just where the stairs, where the sails are stood on, just at the corner post [indistinct].

SCON KENT: Ok.  Alright, fall on the ground.  What happened, then did you?

DEAN: I just turned away and walked away.

…

SCON KENT: Ok.  Um, did [the deceased] um, just going back to the, the fight, did he provoke in any way or?

DEAN: Did he provoke me? We were just arguing, he what like, just an argument.

SCON KENT: Ok.  Um were you um like in fear that he was going to do anything to you like?

DEAN: Well yeah, I thought, I thought he were, he were coming for me.  He was getting closer and closer, he was like, he came close to me so I didn't know what he was doing so that's why I shoved him, I shoved him away from me.

…

SCON KENT: Yep.  I, I haven't met [the deceased], ah I haven't seen him but is he a big guy, a small guy, a medium guy?

DEAN: Oh bout maybe a bit taller than me, same height as me.

SCON KENT: How, how tall are you?

DEAN: Oh in feet or centimetres?

SCON KENT: Oh either way.

DEAN: About five, five nine I reckon.  Five foot nine.

SCON KENT: Ok.  Alright.  Ok and class yourself as medium build.

DEAN: Yeah I think.

SCON KENT: Just sort of normal And so you think [the deceased's] about the same, same as you?

DEAN: Same no because I think he's slightly [indistinct].

CON KENT: Um were you scared of him?

DEAN: Was I scared?

SCON KENT: Yeah.

DEAN: [indistinct] well I was scared that he was coming towards me.

SCON KENT:  Yep.  Ok.  When you um, when you punched him, were you, did you intend to cause him any permanent --

DEAN: No --

SCON KENT: Injury?

DEAN: No, no oh no.

SCON KENT:  Ok did you intend to kill him at all?

DEAN:  No.

SCON KENT:  Ah what was your intention?

DEAN: Just to get him away from me?

SCON KENT: Ok.

DEAN:  He was swinging and I was swinging and as soon, as soon as he hit the floor, I walked off, I was scared but he did it before, [indistinct] I walked off.

SCON KENT: Yep.  Alright so at no time, did you intend to cause him any --

DEAN: [indistinct] --

SCON KENT: Injury? Alright.  Um I know [indistinct].

DEAN: [indistinct] what sort of person [indistinct].

…

SCON KENT: Um, do you know um, actually I'll ask you first.  Do you have any skills like boxing um karate or anything like that?

DEAN: Nah.

SCON KENT: No you haven't been trained in any of that sort of stuff.

[portion of tape indistinct]

…

SCON KENT:  Ok.  Um, and you said that your intention by punching Mark was just to get him away from you?

DEAN:  Yep.

SCON KENT: Ok.  Alright, Besides um, walking you said you possibly could have walked away from the, the fight? Um was there anymore that you think you could have done as far trying to reason with him?

DEAN: Did I think I could have reasoned with him?

SCON KENT: Yeah.

DEAN: No, nothing.

SCON KENT: [indistinct] --

DEAN: We were just arguing and like he got closed and I just shoved him away.

SCON KENT: Yep.

DEAN: And it, he like, pretty much all on from then he was swinging punches so I swung, I swung a couple and hit the floor and just turned around and walked straight away."

[7] The tragic death of the deceased in this case is another all too common example proving the sad truth of the recent campaign in our community publicising the fact that "one punch can kill".  The transcription of the appellant's interview with police does not suggest he was especially articulate.  The transcription, however, provides evidence of the following.  The appellant and the deceased, who was slightly bigger than the appellant, had been arguing.  The deceased approached the appellant aggressively and came "right up close".  The appellant shoved him away but the deceased came back towards the appellant, this time swinging punches.  The appellant was unsure whether the punches actually connected although he later had some soreness.  He was scared of the deceased at this time and was trying to get him away.  He reacted to this situation with a retaliatory punch or punches.  The deceased fell to the ground.  The appellant, having achieved his objective of getting the punch-swinging deceased away from him, walked away.  A possible rational inference open from the appellant's version of events recounted to police was that the appellant feared that the deceased might punch him to the head causing serious injury or perhaps even death.  If follows that in my view the evidence at trial was sufficient to fairly raise s 272(1). 

[8] It was a question for the jury whether, on the evidence, the prosecution established beyond reasonable doubt that the deceased's assault on the appellant was not such "as to cause [the appellant] reasonable apprehension of death or grievous bodily harm, and to induce [him] to believe, on reasonable grounds, that it was necessary for [his] preservation from death or grievous bodily harm to use force in self-defence." It was also a question for the jury whether, on the evidence, the prosecution established beyond reasonable doubt that the force the appellant used was not "reasonably necessary for such preservation, although such force may cause death or grievous bodily harm". 

[9] The trial judge should have directed the jury in this case on s 272(1) and his failure to do so may have resulted in a miscarriage of justice.  Whether s 272(1) is raised in any re-trial will depend on the evidence at that trial.

[10]  FRASER JA: On 19 February 2009 the appellant was convicted after a three day trial of one count of manslaughter.  At the hearing of his appeal against that conviction on 15 September 2009 the Court gave the appellant leave to substitute the following grounds of appeal for the grounds originally contained in the Notice of Appeal:

"(1) There was a miscarriage of justice because -

(a)The jury were not directed as to the existence and application of s 272 of the Criminal Code.

(b)      The learned trial judge erred in wrongly directing the jury on the application of s 271 (1) of the Criminal Code by misdirection and by failing to direct on the meaning of provocation.

(c)The learned trial judge erred in admitting evidence of the appellant's aggressive behaviour towards others, which was unrelated to the deceased and amounted to disposition or tendency evidence.

(d)If the evidence in ground (c) was admissible, the learned trial judge erred by failing to properly direct the jury as to what use they could make of the evidence and by failing to direct the jury of the dangers of propensity reasoning."

[11] During the hearing of the appeal the respondent’s counsel accepted that the trial judge erred by failing to direct on the meaning of provocation, as ground 1(b) contended.  The respondent’s counsel also brought to the Court’s attention the further point that the trial judge had omitted to direct on the meaning of the term “assault” which the trial judge used in the directions about provocation.  He also accepted that the guilty verdict could not be sustained by application of the proviso in s 668E(1A) of the Criminal Code 1899 (Qld).

[12]  After the conclusion of argument the Court allowed the appeal, set aside the conviction, and made an order for a new trial.  The Court indicated that reasons for those orders would be published in due course.  These are my reasons for agreeing with those orders.

Background

[13]  Defence counsel formally admitted that Mr Urch died on 1 June 2008 as a result of a brain injury sustained as a consequence of hitting the back of his head on the bitumen surface of a hotel carpark at Shute Harbour, Airlie Beach when he fell backwards on the afternoon of 24 May 2008.  There was no challenge to the evidence adduced in the Crown case that the deceased’s fall was caused by the appellant punching the deceased in the face.

[14]  I will summarise the evidence only in so far as is necessary to understand the issues in this appeal.

[15]  On 24 May 2008 the appellant, who was 25 years old, and the deceased, who was 28 years old, played poker in a tournament at the hotel.  Events in the hotel were recorded by closed circuit television.  A copy of that recording was contained on a memory stick which was made an exhibit at the trial.  By reference to that recording the times of various events during the poker tournament described in the evidence could be fixed with unusual precision, but the subsequent confrontation in which the deceased received his fatal injury in the carpark was not recorded.  Nine Crown witnesses gave evidence about the behaviour of the appellant after he arrived at the hotel at about 2.00 pm, including his interaction with the deceased during the poker tournament and shortly after 4.37 pm in a smoking area.  Three of those witnesses also gave evidence that, from varying estimated distances of between 15 to 25 metres away, they saw the confrontation between the appellant and the deceased in the carpark.  Their evidence in chief was generally to the effect that the appellant made the first aggressive move and that he also ended the confrontation when he punched the deceased once or twice to the head, causing the deceased to fall backwards onto the bitumen surface of the carpark.  One of those three witnesses, Mr Webster, said that the appellant first pushed the deceased, the deceased reacted by swinging a punch which did not hit the appellant, and the appellant retaliated with a punch to the deceased’s face.  In cross-examination, however, Mr Webster conceded that the physical confrontation started when the appellant pushed the deceased “back out of his face”.

[16]  The appellant did not give or call evidence, but his version was contained in a video recording of a police interview on 25 May 2008.  The appellant’s version was, in summary, that the deceased, perhaps on some slight verbal provocation, had vigorously abused the appellant whilst they shared a table where the deceased was playing cards; the appellant had later re-activated that argument in the smoking area; they went outside together by common consent to continue the argument in the carpark because neither wished to argue in front of the other people present; the deceased moved very close to the appellant and the appellant shoved him away; the deceased then swung a punch at the appellant, which may or may not have connected; the appellant defended himself by punching the deceased; although that punching floored the deceased and indirectly caused his death, the appellant had intended no harm by it – the appellant had intended only to get the deceased away from him.

[17]  The recorded interview included the following questions and answers:

"SCON KENT: Ok.  Um were you um like in fear that he was going to do anything to you like?

DEAN: Well yeah, I thought, I thought he were, he were coming for me.  He was getting closer and closer, he was like, he came close to me so I didn't know what he was doing so that's why I shoved him, I shoved him away from me.

. . .

SCON KENT: Um were you scared of him?

DEAN: Was I scared?

SCON KENT: Yeah.

DEAN: [indistinct] well I was scared that he was coming towards me.

SCON KENT: Yep.  Ok.  When you um, when you punched him, were you, did you intend to cause him any permanent --

DEAN: No --

SCON KENT: Injury?

DEAN: No, no oh no.

SCON KENT: Ok did you intend to kill him at all?

DEAN: No.

SCON KENT: Ah what was your intention?

DEAN: Just to get him away from me."

[18]  In summing up, the trial judge gave the jury directions about accident and self-defence.  This appeal relates only to self-defence.  In that respect, the Crown case was that it had negatived self-defence.  The prosecutor submitted to the jury that it would be satisfied that the appellant was the aggressor; he first assaulted the deceased by delivering a heavy blow.

(b) The learned trial judge erred in wrongly directing the jury on the application of s 271(1) of the Criminal Code by misdirection and by failing to direct on the meaning of provocation

[19]  Section 271(1) of the Code provides:

"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."

[20]  In the same chapter of the Code (which is headed “Chapter 26 Assaults and violence to the person generally – justification and excuse”), sections 268 and 269 provide:

"268(1)The term provocation, used with reference to an offence of which an assault is an element, means and includes, except as hereinafter stated, any wrongful act or insult of such a nature as to be likely, when done to an ordinary person, or in the presence of an ordinary person to another person who is under the person’s immediate care, or to whom the person stands in a conjugal, parental, filial, or fraternal, relation, or in the relation of master or servant, to deprive the person of the power of self-control, and to induce the person to assault the person by whom the act or insult is done or offered.

269(1)A person is not criminally responsible for an assault committed upon a person who gives the person provocation for the assault, if the person is in fact deprived by the provocation of the power of self-control, and acts upon it on the sudden and before there is time for the person’s passion to cool, and if the force used is not disproportionate to the provocation and is not intended, and is not such as is likely, to cause death or grievous bodily harm.

(2)Whether any particular act or insult is such as to be  likely to deprive an ordinary person of the power of self-control and to induce the ordinary person to assault the person by whom the act or insult is done or offered, and whether, in any particular case, the person provoked was actually deprived by the provocation of the power of self-control, and whether any force used is or is not disproportionate to the provocation, are questions of fact."

[21]  Before I discuss the particular points in issue under this ground of appeal I should mention two other matters.  The first is that the Crown did not argue that the evidence supported an argument that s 271(1) was inapplicable on the ground that the appellant had willingly participated in a fight with the deceased rather then retreating.[5]  The second point concerns the last condition of s 271(1) that the force used is not intended, and is not such as is likely, to cause death or grievous bodily harm.  During the hearing of the appeal, in the different context of the possible application of s 272(1), there was discussion about the recent campaign to publicise the fact that one punch can kill.  Whilst that fact should be widely known that does not mean that self-defence under s 271(1) is not a potentially available defence where death in fact results from a punch.  The question whether self-defence is available as a defence to manslaughter depends upon the evidence in the particular case, including evidence which touches upon the question whether the punch was in fact not intended and was not such as was likely to cause death or grievous bodily harm.  In this case, whilst the prosecutor asked the jury to find that the force of the appellant’s punch was such that death was reasonably foreseeable, it was common ground at the trial and in the appeal that it was open to the jury to find that the evidence satisfied all of the conditions of self-defence under s 271(1) of the Code.

The meaning of provocation in s 271(1)

[22]  The Crown case, so far as is relevant to the issue under this ground of appeal, was that it had proved beyond reasonable doubt that the appellant had provoked the punch by the deceased which the appellant alleged and relied upon to invoke self-defence under s 271(1).  The trial judge gave appropriate directions to the jury to the effect that the onus was on the Crown to negative self-defence beyond reasonable doubt.  After directing the jury about the question whether the appellant was first assaulted by the deceased, the trial judge directed the jury about provocation under s 271(1) in the following terms:

"If that was the situation, you would have to ask the second question; that is, 'Was that first assault by the deceased provoked by the accused?'

What you have to do here is to have regard to the lead-up to the situation that brought the two men within striking distance of each other in the carpark. The Crown have led evidence of the meeting between Mr Dean and Mr Urch in the poker room at about 4 o'clock. You recall the fight occurred at about 4.40 to 4.45; in that range.

Mr Thusberg told you of a conversation at the poker table when Mr Dean joined the table where he was not a player. He recalls Mr Dean saying to Mr Urch, 'You probably had an ace. I reckon you had an ace' or words to that effect and Mr Urch replying, 'Can you piss off and leave me alone?' He says that Mr Dean then said, 'You tell me to 'fuck off' again, and I'll smack you in the head.'

Mr Callaghan, you recall him – the Irish Scotsman – he recalled Mr Urch saying, 'Fuck off. You're not on the table' or similar words. Mr Thusberg claims, and it may be he's supported by the video, it's a matter for you, that the tournament director asked the accused to leave the table at about that point.

The accused's version, I think the transcript was reasonably accurate as I heard it, is at page 7 of the notes, and he said he came to the table. He said, 'He' meaning the deceased, 'didn't want me sitting there. I was talking to another friend called Mike Carlisle. I was just – I was talking to that friend sitting beside me and he just – he just started shouting telling us to 'Fuck off' basically. Told me just to 'Fuck off. Get out of my face.' So, yeah, I left it anyway. I've gone outside.'

Now, this is all really background, to the events that happen 40 or so minutes later. It's led possibly to explain the later altercation that occurred and the possible states of mind of the two men and the influences on them. You have to determine what evidence you accept, what the nature of the conversation was, and whether, if you accept there was some such conversation, whether that had anything to do with the two men going outside about 40 minutes later, and you have to determine whether it gives any assistance in determining who the aggressor was.

You recall that 40 or so minutes later, the two men do go to the carpark. Webster and Bailey each said that the accused asked the deceased to come outside to the carpark. He wanted to have a word with him, or something to that effect. The version given by the defendant in the record of interview you might recall, was to the contrary.

Was the accused or the deceased the one who was continuing the argument? Does that shed light on who is the aggressor a few moments later? Hines and Bailey say that the accused attacked the deceased. Webster said, there was a push by the accused when Mr Urch was right up in his face; a swing or the first punch by the deceased missed and then two punches from the accused.

The accused's version after saying that when they met up outside, that he didn't want to have this argument. 'We walked off, so we didn't have an argument in front of everybody else. They walked over pretty casual-like and then just started arguing. I asked him if he's got a problem. He said, 'Well, yeah - like I mean, you shouldn't have sat at the table, all that' and swearing and arguing and that, but he - he were coming closer to me, sort of I shoved him away like and he's just started throwing, and he said' - the policeman asked a question. He said, 'Yeah. I've got a problem. You know what I mean.' It's just an argument. I didn't hit him first. I just shoved him. Then he started throwing punches then, swinging and like I threw a punch back and it connected and I saw him hit the floor like. I just couldn't believe what happened to be honest like. I was scared to be honest. I swear I was.' At a later point he said, that there may have been more than one punch.

If you find the deceased did throw the first punch, and that was the first assault, you must determine whether or not the punch thrown by the deceased was provoked. If you conclude that the accused provoked the assault, then this defence of self-defence is not open to the accused."

[23]  The trial judge then gave directions about the question whether the force of the punch was reasonably necessary to make effectual defence (those directions are set out later in these reasons) and about the question whether the force was not such as was likely to cause death or grievous bodily harm.  The trial judge concluded this part of the summing up with the following direction:

“So, what you have to do in the circumstances of this case, is consider whether or not in acting as he did, whether in punching the deceased, the accused was acting in self-defence, having been first assaulted by the deceased, without the deceased having been provoked by conduct on the part of the accused."

[24]  Taking all of these directions together, the jury must have been left with the impression that the appellant was not entitled to invoke self-defence if the Crown had proved beyond reasonable doubt that he had provoked the punch by the deceased which the appellant alleged.  As the appellant contended, the trial judge did not give any direction to the jury as to the meaning of “provoked” which the trial judge used in directing the jury. 

[25]  In R v Prow,[6] in which the Court decided that s 271(1) may provide a defence to manslaughter, a majority of the Court also held that the word "provoked" in that paragraph derived its meaning from the definition of "provocation" in s 268.[7]  Accordingly, in cases where the application of s 271(1) is in issue it is conventional to direct juries about the meaning of “provoked” with reference to the definition of “provocation” in s 268.[8] 

[26] It is possible that the jury’s understanding of “provoked” in any event coincided with that in s 268, but there is a risk that the jury instead inappropriately applied a broader meaning and excluded self-defence for that reason.  The trial judge commenced his directions on this aspect of s 271(1) by telling the jury that it must “have regard to the lead-up to the situation that brought the two men within striking distance of each other in the carpark.”  The trial judge also directed the jury that its determination about the disputed conversation at the card table, where the deceased was playing in the poker tournament, some 45 minutes before the physical confrontation, might assist the jury in determining “who the aggressor was”.  No doubt the trial judge did not intend to convey that any words or conduct of the appellant during the poker tournament or in the smoking area might constitute provocation of the deceased, but the evidence brought to the jury’s attention in the summing up allowed for a variety of conclusions about what the appellant said and did to the deceased before the physical confrontation itself.  The jury might wrongly have thought that self-defence was excluded because the appellant provoked the deceased’s alleged punch by some words or conduct which, though provocative in the ordinary sense, were not such as to be likely to have deprived an ordinary person of the power of self-control and to induce such a person to throw a punch.

[27]  The argument advanced for the respondent in its written outline of submissions (which was not pursued in oral submissions) was that the trial judge's failure to explain to the jury the meaning of the term "provoked" in accordance with the definition in s 268 could not have contributed to a miscarriage of justice.  For that proposition the respondent’s outline cited a passage in Gray v Smith in which Pincus JA and Mackenzie J said:[9]

"But in truth, in determining whether s. 271 affords a defence, it does not matter whether one applies to the notion of provocation mentioned in that section what might be called the strict meaning derived from application of ss 268 or 269, or some other concept of provocation. This is so because, for the section to apply so as to afford a defence to the appellant, it must appear that [the victim] unlawfully assaulted the appellant and that would not be so, where provocation is in question, if the Code defence of provocation was proved to be available to [the victim]."

[28] In Gray v Smith the Court set aside a conviction on the ground that in considering self-defence under s 271 the magistrate “may not have directed his attention to the questions raised by s. 269, read with s. 268.”[10] Consistently with that decision and the fact that the quoted passage occurs in the course of discussion of an argument advanced for the appellant, the words "some other concept of provocation" may have been intended to connote only a concept of provocation which was narrower than the concept defined in s 268.  That is suggested also by the fact that the prevailing view, expressed for example by Williams J in R v Prow,[11] was that the meaning of “provocation” at common law was narrower than the definition in s 268.  Further, to treat self-defence as being unavailable where the victim’s assault on the accused was the result of “provocation” in some broader sense than the term bears in s 268 would be inconsistent with the proposition in the quoted passage that it does not matter what notion of provocation is adopted.  Under s 271(1) the defence is available only where the accused is “unlawfully assaulted” and has not “provoked” that assault.  If “provoked” is given a broader meaning than that which is derived from s 268, which R v Prow decided was the applicable meaning for the purposes of s 271(1), then self-defence will be available in a correspondingly narrower range of cases.

[29] Accordingly, Gray v Smith is not authority for the proposition that self-defence under s 271(1) is defeated merely by the circumstance that the victim’s assault upon the accused was “provoked” in some broader sense of the term than would constitute “provocation” as that term is defined in s 268.

[30] I accept the appellant’s argument that in the absence of guidance to the jury about the meaning of “provoked” there was a miscarriage of justice because of a risk that the jury applied some common understanding of the term “provoked” which might have been wider than or otherwise differed from the legal meaning of “provocation” in s 268.  The respondent pointed out that defence counsel did not seek any re-direction on this issue, but on more than one occasion the Court has found that a miscarriage of justice has resulted from the failure to leave self-defence to the jury, or to direct the jury in proper terms, where self-defence is raised on the evidence, regardless of whether or not defence counsel raised the issue.[12] Given the respondent’s appropriate concession at the hearing of the appeal that there was no room here for the application of the proviso in s 668E(1A) of the Code the conviction could not stand.

Other issues in the appeal

[31] In light of that conclusion it is not strictly necessary to consider the remaining issues.  Nevertheless I will say something about those other issues in case it is of assistance in any re-trial.  Because it is not necessary to decide these questions to dispose of this appeal and because the evidence may differ at a re-trial, what follows should not be regarded as binding upon the trial judge in any re-trial.

The objective test under s 271(1)

[32]  Under ground 1(b) the appellant also contended that there was a miscarriage of justice because the trial judge's directions concerning whether the degree of force used was reasonably necessary to make an effectual defence incorrectly imported into the necessary objective test a subjective component.  After the directions I quoted earlier, the trial judge continued:

"If you've answered those matters in favour of the accused, then you have to go on to the next question. 'Was the force of the punch reasonably necessary to make effectual defence?' Here, you do give weight to the fact that a person in such a situation acts instinctively and without giving careful consideration to the degree of force necessary. The law is realistic in this regard. It recognises that that can happen and that's why it's an objective test. You don't judge the accused's actions as if he had time and leisure to weigh things up carefully.

The question is, 'Was the force reasonably necessary to make an effectual defence?' The question's an objective one and dependent upon you, the jury, determining what was an appropriate use of force. In that regard, you consider the degree of threat that Mr Urch presented to the accused. The fact that death occurred does not necessarily mean that the force was excessive.

Remember, the defendant, doesn't have to prove that his response was reasonable. It's the prosecution that must satisfy you that the defendant did not actually believe on reasonable grounds, that he had to do what he did do to save himself from harm."

[33]  The phrase in s 271 “as is reasonably necessary to make effectual defence against the assault” does provide a wholly objective test.[13]  In my respectful opinion the challenged direction, in the last sentence quoted above, therefore involved an error.  The error though was not one which materially disadvantaged the appellant.  The trial judge first directed, and repeated the direction, that the relevant test was an objective one: "Was the force of the punch reasonably necessary to make effectual defence?" Furthermore, after the trial judge gave the directions I have quoted he provided the jury with a document, headed “Questions for the jury”, which defined the relevant condition of the defence in objective terms: “3. The force of the punch by the accused was reasonably necessary to make effectual defence.”  At the end of the summing up, the trial judge stressed that the onus was on the Crown to negative self-defence.  In this context the jury would have understood the challenged direction to impose the additional and unnecessary burden upon the Crown of proving that the appellant did not believe that the force he used was necessary to make an effectual defence.  Whilst that was an error, it was not productive of any miscarriage of justice.

The definition of “assault”

[34]  Although the appellant did not mount any challenge based upon the trial judge’s omission to direct the jury about the meaning of “assault” the respondent’s counsel responsibly brought that omission to the Court’s attention.  The term “assault” is defined in s 245 in terms which encompass a person by any bodily act attempting or threatening to apply force to another if the person has actually or apparently a present ability to effect the person’s purpose.  On the appellant’s version, he would contend that the deceased first unlawfully assaulted him by throwing a punch because the appellant’s first assault, shoving the deceased away, was a justifiable measure to keep the deceased at arm’s length.  On different versions of the events the deceased’s alleged punch might have hit or it might have closely missed the appellant.  Perhaps the jury might have rejected self-defence because it failed to appreciate that an attempted punch by the deceased might constitute an assault upon the appellant, although that seems an unlikely mode of reasoning.  Nevertheless I accept that it would have been prudent to direct the jury that “assault” included a punch thrown by the deceased at the appellant whether or not that punch hit the appellant.

(a)   The jury were not directed as to the existence and application of s 272 of the Criminal Code

[35]  Section 272(1) of the Criminal Code provides:

"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."

[36]  The critical question which arises on the appellant's argument is whether the statements in his recorded police interview, which gave the version of events most favourable to the appellant, left it open to a jury to infer that the deceased had assaulted the appellant with such violence as to cause a reasonable apprehension of death or grievous bodily harm and to induce the appellant to believe, on reasonable grounds, that it was necessary for his preservation from death or grievous bodily harm to respond by the punch which the appellant admitted throwing.  If so, the defence under s 272(1) was open and the trial judge was obliged to direct the jury accordingly, even if the evidence was weak and tenuous and though the appellant had not given any evidence of the relevant belief in terms of that provision.[14]

[37]  For present purposes, the critical evidence is contained in the questions and answers in the recorded interview which are set out in paragraph 17 of these reasons.  The appellant's statements fell short of any assertion that the punch the appellant alleged the deceased threw caused the appellant any apprehension of death or grievous bodily harm or induced him to believe that it was necessary to throw a punch for his preservation from death or grievous bodily harm.  One may compare this case with R v Corry,[15] in which the accused said in his police interview that he feared being beaten up by the deceased who the appellant thought to be dangerous.  In this case, the appellant did not even go so far as to assert that he feared injury of any degree from the deceased.  Although a fear of some injury might be inferred, s 272(1) specifically requires that attention be directed to the degree of violence of the particular (provoked) assault, which in this case was the punch which the appellant asserted that the deceased threw, and the belief thereby induced in the appellant.  No doubt the practicalities of the situation, including the very limited time for the appellant to make his assessment, must be kept in mind, but the highest point of the evidence on this topic was that the deceased punched the appellant and that caused the appellant some unspecified fear.  There was no evidence of the force, if any, in the deceased’s punch and no evidence of the belief described in s 272(1).  In my view, for reasons similar to those which I mentioned when I discussed the application of s 271(1), that gap in the evidence may not be filled by drawing an inference from some public understanding of the fact that one punch sometimes does cause death.  Here there was no evidence that the deceased assaulted the appellant with such violence as to induce the appellant to believe that it was necessary to use force to preserve himself from death or grievous bodily harm. 

[38]  Defence counsel did not ask the trial judge to give directions about s 272 of the Code.  Whilst this cannot be determinative of the question whether there has been a miscarriage of justice it should be taken into account: where experienced defence counsel has acquiesced in a trial judge leaving only one version of self-defence to the jury, the Court should pause before concluding that the trial should have been further complicated by the “difficulties associated with multiple alternative defences of self-defence [which tend] more often than not to obscure the more viable or arguably meritorious of the alternatives.”[16]  Section 271(1) did seem best suited for the evidence in this case.[17]  In my opinion no direction under s 272 was required.

(c) The learned trial judge erred in admitting evidence of the appellant's aggressive behaviour towards others which was unrelated to the deceased and amounted to disposition or tendency evidence

(d) If the evidence in ground (c) was admissible, the learned trial judge erred by failing to properly direct the jury as to what use they could make of the evidence and by failing to direct the jury of the dangers of propensity reasoning

[39]  The evidence referred to in these grounds of appeal was given by Ms Bryson, Ms Tissington, and Ms Hines.  At trial defence counsel objected to the admissibility of the evidence of Ms Tissington and Ms Hines, and perhaps also (counsel’s argument was ambiguous) Ms Bryson. The appellant now contends that all of this evidence was inadmissible. 

[40]  Ms Bryson was a friend of the deceased and she had also known the appellant for some six months.  She sat at the table with the appellant for about 25 minutes between 3.10 and 3.35 pm.  She described the appellant as being very drunk, slurring his words, and being agitated.  His tone of voice was loud and he swore a lot.  In cross-examination she accepted that an earlier statement she had given to police was an accurate version.  In that statement she said:

"When Danny sat down at my table he was very drunk, but he was not abusive to any persons on the table. He just sat there drinking and talking loudly."

At one point she agreed that the appellant seemed agitated but that he was not abusive to people.  In cross-examination she said that the appellant was not abusive to anyone on the table "at first", but she said that he was during the course of the poker game.

[41]  Ms Tissington gave evidence that the appellant was with her and her friend Ms Hines from between 3.37 and 3.55 pm.  She gave evidence that at the beginning of that period the appellant was quite calm but that after about 10 minutes he raised his voice and shook his hands at them.  The appellant left their company about two minutes after Ms Hines' boyfriend arrived.  In cross-examination Ms Tissington agreed that when Ms Hines' boyfriend arrived the appellant shook hands with him.  Ms Hines gave evidence to similar effect. 

[42]  The trial judge ruled that the evidence was admissible because it was relevant to the appellant's state of mind, that being an aggressive state of mind, close in time to the alleged offence.  In summing up the trial judge did not refer to the evidence of Ms Bryson and gave no direction about any of this evidence but commented as follows:

"Evidence was led of Mr Dean's behaviour with Ms Hines and Ms Tissington at an earlier point in time. It may support the Crown's contention that Mr Dean was affected by alcohol.

Again, its only possible relevance can be to the question of Mr Dean's frame of mind or whether Mr Dean was the aggressor in a fight that took place 45 or 50 minutes later. It's a matter for you, but you might think that that conduct didn't have much to do with the later events."

[43]  After the summing up, the prosecutor asked the trial judge, as a matter of "abundant caution" to warn the jury that they should not engage in reasoning that the accused had a propensity for aggressive conduct by virtue of the fact that evidence had been led of his aggressive conduct in the time immediately prior to the alleged offence.  Defence counsel submitted that no such re-direction should be given because it would serve to reinforce the evidence.  The trial judge declined to give the re-direction in light of the comment made in the summing up and because such a re-direction would tend merely to emphasise evidence that was not emphasised at all.  The trial judge considered that the risk of propensity reasoning was highly unlikely given the way the case had been conducted.  Neither counsel had advanced any argument to the jury which required such a re-direction.

[44]  The contentious evidence concerned events happening before the encounter between the deceased and the appellant at about 3.57 pm when the appellant sat down at the table at which the deceased was playing poker.  On one version, the appellant then responded to the deceased’s demand to “piss off and leave me alone” by saying to the deceased, “[y]ou tell me to fuck off again and I’ll smack you in the head”.  In this appeal the respondent argued that the evidence of Bryson, Tissington and Hines about events between 3.10 and 3.55 pm was capable of assisting the jury in evaluating the encounter which occurred between the deceased and appellant shortly afterwards at 3.57 pm.  The appellant argued that the evidence of the appellant's behaviour or demeanour towards others was irrelevant and inadmissible; that it was evidence of general disposition or tendency and did not possess any specific relevance to a fact in issue at the trial; and that it should have been excluded as it possessed no probative value, but was highly prejudicial to the fair trial of the appellant.

[45]  In O'Leary v The King[18] the appellant and his co-employees took part in a drunken orgy commencing on a Saturday morning and continuing until late on the same night.  Evidence was admitted at the appellant's trial for murder to the effect that the appellant had, at various times during the orgy, violently assaulted other employees.  Some of those assaults consisted of brutal blows at the head and some were unprovoked.  The evidence was held to be admissible by a majority (Latham CJ, Rich, Stark, Dixon and Williams JJ).  Latham CJ said:[19]

"But there is another ground on which, in my opinion, the evidence was admissible. All the assaults in question were incidents of a drunken orgy on the same day, begun at Penola, continued at Kalangadoo and at the camp where the man lived. Evidence that the accused had been drinking during the day and evening of 6th July and early hours of 7th July was admissible to show the prob­ability that he would attack another man in a fit of drunken fury. Evidence that, on the day and the night of the killing of Ballard, he actually attacked particular fellow employees without cause is also evidence which goes to show the probability that he would attack some other fellow employee. Such evidence puts the act of attacking Ballard in a setting which makes it possible for the jury to obtain a real appreciation of the events of the day and the night. It is evidence of 'facts and matters which form constituent parts or ingredients of the transaction itself or explain or make intelligible the course of conduct pursued.'[20] Upon this ground I am of opinion that the evidence was admissible."

[46]  Similarly, Dixon J observed:

"The evidence disclosed that, under the influence of the beer and wine he had drunk and continued to drink, he engaged in repeated acts of violence which might be regarded as amounting to a connected course of conduct. Without evidence of what, during that time, was done by those men who took any significant part in the matter, and especially evidence of the behaviour of the prisoner, the transaction of which the alleged murder formed an integral part could not be truly understood and, isolated from it, could only be presented as an unreal and not very intelligible event. The prisoner's generally violent and hostile conduct might well serve to explain his mind and attitude, and therefore to implicate him in the resulting homicide. Examples of the admission of evidence of connected incidents of one transaction will be found in R v Cobden;[21] R v Voke;[22] R v Rearden[23] and as to this case see per Cussen J in R v Herbert.[24] In my opinion, for the reasons given, evidence of his conduct was admissible for the purpose stated."

[47]  In R v Hocking[25] Williams J, with whose reasons Kelly SPJ and Ryan J agreed, referred to O'Leary[26] and decisions of this Court which had applied it,[27] and noted that all of the judges who were parties to the decision in O'Leary recognised that there had to be something exceptional about such evidence which took it beyond evidence of mere disposition.  Williams J regarded the contentious evidence in that case, of violent conduct and threats by the appellant to people in the hotel some two hours before the appellant shot in the direction of police cars, as not being relevant or probative of the appellant's state of mind when he fired those shots.  Adopting the analogy given by Bray CJ in R v Heidt,[28] Williams J regarded the episode at the hotel and the subsequent shooting as "separate episodes with different actors" and "like two successive scenes of a play with a curtain dropped between them . . . ".[29]

[48]  Whilst, in my opinion, the evidence of the interaction between the appellant and deceased at the poker table and later in the smoking area formed an admissible part of the transaction between them on that afternoon, the position is much less clear in relation to the contentious evidence of the earlier events where the deceased was not present.  Arguably the contentious evidence said something relevant about the appellant’s state of mind when he first spoke to the deceased, and perhaps even, though more tenuously, at later times, but I respectfully agree with the trial judge’s comment to the jury that it might think that the contentious evidence did not have much to do with the later events.  The contentious evidence did not suggest that the appellant behaved violently.  It went no higher than suggesting that he was, at times, loud and agitated and, more equivocally, occasionally verbally abusive.  In the end, whilst this evidence was not as remote from the critical events as was the impugned evidence in R v Hocking it seems to me to have shed no real light on the issues.

[49]  For these reasons, on the basis of the arguments advanced in this appeal and in light of the evidence adduced at the trial, I consider that this contentious evidence was inadmissible.

[50]  CULLINANE J:  I agree that the conviction should be set aside and a new trial ordered for the reasons given by Fraser JA.