SUPREME COURT OF QUEENSLAND

[1]  MUIR JA: I agree that the appeal should be dismissed for the reasons given by Fraser JA.

[2]  FRASER JA: The appellant was charged with murdering Mr Darren Atkinson, unlawfully wounding Mr Damian Smith, and unlawfully assaulting Ms Jennifer Schoer.  The jury returned a directed verdict of acquittal on the wounding charge.  The jury found the appellant not guilty of common assault and not guilty of murder but guilty of manslaughter.

[3] The ground of the appellant’s appeal against his manslaughter conviction is that the jury verdict cannot be supported having regard to the evidence.  That ground raises the question whether it was open to the jury to be satisfied beyond reasonable doubt that the appellant was guilty.[1]  It was submitted on behalf of the appellant that it was not open because the evidence in general was of an unsatisfactory nature, with discrepancies and inadequacies plain on the record, and because no reasonable assessment of the evidence allowed the exclusion of the defences in the Criminal Code 1899 (Qld) (“the Code”), s 267 (defence of dwelling) and s 271(2) (self-defence against unprovoked assault). 

[4] I will discuss the issues after first summarising the relevant evidence in the Crown case.

The evidence

[5] It was not in issue at trial or on appeal that the deceased died as a result of a single stab wound in his chest inflicted by a knife held by the appellant.  The doctor who conducted the autopsy of the deceased agreed in cross-examination that the mechanism of injury was consistent with the deceased standing still and a person thrusting the knife at him, or with the knife being held in a fixed position and the deceased rushing forwards onto it, or with the knife being thrust forward as the deceased moved towards it.  The deceased was found to have had a high level of alcohol. 

[6] Mr Shane Cameron gave evidence that he and his son, Mr Ben Cameron, and Ms Rhonda Beaumont and her child, Michael, resided at the house at Eucalypt Street where the relevant events occurred.  The appellant also resided there on a short term basis.  In the evening Ms Jennifer Schoer arrived at the house looking for some property.  She smelt of alcohol, was rude, and behaved fairly aggressively.  Mr Shane Cameron told his son to call the police if Ms Schoer returned because of his concern about her behaviour.  Mr Shane Cameron subsequently left the house. 

[7] Ms Schoer gave evidence that on an earlier occasion she had seen Ms Beaumont and the appellant at the Bribie Island Hotel.  Ms Beaumont was wearing a shirt that belonged to Ms Schoer who asked for it to be returned.  There was a discussion about the shirt being washed before it would be returned.  She subsequently visited Ms Beaumont’s house to pick up the shirt.  Ms Schoer was told that the shirt had been stolen from the washing line.  On the day of the incident she dropped in to the residence to look for some property.  Later on the same day she returned to the residence in the company of Ms Jodie-Ann Wynn, who stayed in the car at first.  Ms Schoer said that she was invited in and exchanged words with Ms Beaumont.  The appellant told her to leave.  She recalled that she was grabbed by the shirt and turned around by the appellant.  Ms Wynn was at the door by that time.

[8] Ms Schoer went with Ms Wynn to the latter’s residence.  Ms Schoer said that she consumed two beers before returning to the appellant’s residence.  Ms Wynn suggested that Mr Darren Atkinson (the deceased) and Mr Damian Smith go on the drive with Ms Schoer.  Ms Schoer said that just before arriving at the appellant’s residence she was asked whether there was “anything we should expect”.  She told the men that she did not want any trouble.  Her recollection was that when she arrived at the residence she told the two men to remain in the car.  She was invited into the residence and accused the occupants of having lied to her.  She stated that the appellant became aggressive and abusive and “turned [her] around” again.  Ms Schoer then went to the door.  The two men who had come with her were standing on the verandah.  Once she was outside the door, she turned around and saw the appellant facing towards her, holding a knife in his right hand.  She recalled the deceased asking the appellant to put the knife down.  The appellant did so.  The appellant then became aggressive again.  He came outside and grabbed an aluminium crutch from the verandah and assaulted herself and Mr Smith with the crutch.  Ms Schoer said that she was also grabbed by the hair and dragged some distance.  The appellant then drew her attention to the deceased.  She noticed blood on the deceased.  The appellant gave her a tea towel and told her to “[c]ompress it”.

[9] Under cross-examination, Ms Schoer denied that the exchange at the Bribie Island Hotel some days earlier was aggressive.  She denied suggesting to Ms Beaumont that she would have to remove the shirt immediately and give it to her.  Ms Schoer denied that her behaviour on her first visit to the residence on the day in question was aggressive or that she had consumed alcohol before that visit.  She said that the first visit was calm and pleasant.  She had been invited to stay for coffee.  Ms Schoer said that she could not recall saying, in a statement recorded by Senior Constable Eaton, that the Camerons had said that they were going to call the police.  Ms Schoer said that she may have had a drink before returning on the second occasion in the company of Ms Wynn.  She denied being angry or aggressive when she arrived at the house on that occasion.  She denied that she entered without being invited, but agreed that she accused Ms Beaumont of having lied to her.  She agreed that she engaged in a shouting exchange, but she denied having pushed Ms Beaumont.  Ms Schoer agreed that the appellant had asked her to leave the house and that she had replied that it was not his house.  She agreed that Mr Ben Cameron also asked her to leave.  She did not recall anyone calling Ms Wynn to the door but accepted that she was escorted to the door by the appellant.  She denied that she resisted leaving.  She denied that any threats were made at that point in time.

[10]  Ms Schoer said that before returning to the residence on the third occasion, she had suggested that she would be all right without the company of the deceased and Mr Smith, but they came at Ms Wynn’s request.  She denied there was discussion in the car on the way to the residence about getting into a fight.  Ms Schoer denied that the two men came to the front door with her on the third occasion.  She maintained her account regarding the events that occurred on this occasion.  She denied that she had not entered the residence.  She denied that any threats were made by her or the two men.  Ms Schoer agreed that the appellant had put the knife down when asked.  She agreed that she had given evidence on a previous occasion that Mr Smith was the first person to use the crutch in an assault, but said that she was confused when she gave that evidence.  She maintained her evidence at trial that it was the appellant who first used the crutch in an assault.

[11]  Ms Wynn gave evidence that she had been in a de facto relationship with the deceased.  On the day in question she had a couple of beers while preparing for a barbeque and then went with Ms Schoer to the residence so that Ms Schoer could collect some clothes.  Ms Wynn remained in the car whilst Ms Schoer went into the residence.  Ms Wynn left the car and went to the residence when the appellant called out for her to “[g]et out of the fucking car” in an angry manner.  She saw the appellant grab Ms Schoer by the shirt and “throw her”, and grab her again and throw her out the door.  Ms Wynn recalled an argument between Ms Schoer and Ms Beaumont about clothing.  Ms Wynn returned to her house with Ms Schoer and observed Ms Schoer later leave the residence in the company of the deceased and Mr Smith.  She did not recall any discussion before they left.  She became aware of the incident when Mr Smith returned and took her back to the residence.  She recalled that the deceased had consumed six or seven beers over a few hours.  She was unable to recall how much alcohol Mr Smith had consumed, but said that he “didn’t have many”.  Ms Schoer had consumed between two and four beers.  In cross-examination Ms Wynn agreed that there had been yelling from within the house “not long” after Ms Schoer arrived at the house.  She agreed that Ms Schoer had been told to leave the residence and refused to do so.  She did not see Ms Schoer hit the appellant but agreed that may have happened.  Ms Wynn said that after they returned to her house, she did not pay particular attention to how much alcohol was consumed by Ms Schoer.  She did not want anyone to return to the house.  She told Ms Schoer to “leave it”.  She did not suggest that Ms Schoer should take the deceased or Mr Smith with her on her return to the house.

[12]  Mr Smith, who was in custody on remand for unrelated matters, gave evidence that he was at Ms Wynn’s residence on the evening of the incident.  He said that Ms Schoer asked him and the deceased to come to the house at Eucalypt Street to help her get her possessions back.  The three of them got out of the car when they arrived at the house.  He recalled a person coming outside, telling Ms Schoer that she was not getting her property back, and telling them to go away.  Mr Smith said that the deceased went to a window and told them to come out and give Ms Schoer the clothes so they could go.  Mr Smith then said a man came out of the house with a knife.  Mr Smith’s evidence was that the man went to stab the deceased with the knife.  That was when Mr Smith hit the man with a crutch.  He said that the man then stabbed the deceased twice and attacked him and Ms Schoer.  Mr Smith thought that the man said he would stab them if they did not leave.  He hit the man with the crutch so he would drop the knife, but that did not work.  The man then stabbed the deceased and then stabbed him (Smith) in the arm and the back.  Mr Smith had at least 10 or 12 cans of beer that day before accompanying Ms Schoer to the house.

[13]  In cross-examination Mr Smith agreed that at the time of the incident he was on medication to treat schizophrenia.  He denied that he had been told he should not drink alcohol whilst taking that medication.  Mr Smith recalled that Ms Schoer asked that he and the deceased accompany her to the house.  He thought that she might have said something about being assaulted earlier at the house, but he did not pay attention to it.  He recalled the deceased saying words to the effect that there would probably be a fight and asking if he would be ready to fight.  He told the deceased that he hoped there would not be fighting.  Mr Smith agreed that all three of them got out of the car at the house.  The deceased and Ms Schoer went to the front door together.  He went near the front door but was a little distance from them.  He said that it was the same man who came out and initially told them to leave who then came out again holding a knife.  He agreed that the deceased was knocking his hand on the window and yelling out.  He said that he was not sure whether the deceased said something about smashing the window, but he then said he was positive the deceased did not say anything about smashing the window.

[14]  Mr Smith agreed that the man who came to the door was telling everyone to leave.  He agreed that the deceased said to put the knife down.  He denied that the man did then put the knife down.  He agreed that he (Mr Smith) was the first person to use violence.  He swung the crutch from over his shoulder and struck the man in the head.  He agreed that after he struck the man the deceased began moving towards the man.  It was at that point that the deceased was stabbed.  Mr Smith agreed that neither he, the deceased, or Ms Schoer had entered the house.  He recalled that all three were together around the front door.  He initially denied that there was a struggle between him and the man over the crutch after the deceased was stabbed, but he later agreed that the man grabbed the crutch and stabbed him in that order.  He did not see Ms Schoer assaulted at all, other than possibly being pushed when she was crouched down.

[15]  Ms Beaumont gave evidence that she recalled an occasion shortly before the incident when she was at the Bribie Island Hotel with the appellant.  Ms Schoer had an angry discussion with her regarding the shirt she was wearing.  She said that some time after that confrontation, the appellant destroyed the shirt.  Ms Beaumont recalled being at the park with her child and the appellant on the day of the incident.  She was then using crutches.  One crutch was left in the house and one was left on the verandah.  Ms Beaumont said that she was told about an incident earlier in the day when Ms Schoer had attended the Eucalypt Street house.  She remembered Ms Schoer subsequently arriving at the house and accusing her of lying.  The appellant and Mr Ben Cameron were also in the house at the time.  Because Ms Schoer was being verbally aggressive Ms Beaumont took her child into a bedroom.  Ms Beaumont heard the front door close.  When she went to go to the lounge room she heard some yelling and then it became quiet again.  Ms Beaumont returned to the living area.  There was a knock at the door.  She retreated down the hallway with her child and then heard the door open and Ms Schoer saying “you lied”.  Ms Beaumont took her child into the bedroom, returned to the living area, and saw Ms Schoer come into the house.  Ms Beaumont said that the appellant grabbed Ms Schoer with both arms and took her to the door because she was not leaving.  Ms Beaumont returned to the bedroom where her child was.  Ms Beaumont said that she heard voices from outside the house about 10 minutes later.  She could hear Ms Schoer’s and the appellant’s voice.  Mr Ben Cameron later came into the bedroom and told her something, after which she tried to contact the police.  The police and ambulance subsequently attended.

[16]  In cross-examination Ms Beaumont agreed that Ms Schoer had been verbally aggressive at the Bribie Island Hotel and that the incident was humiliating.  She confirmed that the appellant had periodically lived at the residence over the six to seven months before the incident, helping her out after she had injured her foot.  She confirmed that one crutch was left inside the house and one was left on the verandah.  Ms Beaumont said that she was confused about the times that Ms Schoer came to the house on the day of the incident.  She agreed that after she had come home from the park with the appellant Ms Schoer had entered the house and immediately called her a liar in an aggressive manner.  She agreed that Ms Schoer may have pushed her, but she was not sure.  She may have just lost her balance.

[17]  Ms Beaumont recalled that Ms Schoer was asked to leave by both the appellant and Mr Ben Cameron, but had refused to leave and continued to yell.  The appellant physically moved Ms Schoer to the door.  Ms Schoer was swinging her arms but Ms Beaumont did not see Ms Schoer hit the appellant.  She also recalled another woman was at the door at some stage.  Later, Ms Beaumont heard voices outside.  She took her child to the bedroom again and stayed there.  She heard Ms Schoer’s voice and male voices but did not recall hearing the appellant’s voice.  Mr Ben Cameron came into the room and told her something about what was going on.  Her child may have left her sight when she was on the phone to the police, but otherwise was in her presence throughout the duration of the events.

[18]  Mr Ben Cameron gave evidence that Ms Schoer came to the house around lunch time on the day of the incident when he was home with his father.  The atmosphere of that visit was pleasant.  Later that day, after his father had left, Ms Schoer returned to the house.  The appellant, Ms Beaumont, and her child were present.  Ms Schoer became agitated.  She was asked to leave.  The appellant grabbed her from behind and pushed her out the door.  There was another lady present on that occasion.  Mr Ben Cameron recalled that later that evening Ms Schoer returned to the house with two other men.  They came to the door and there was a conflict between the appellant and the two men outside.  He saw the appellant get hit with the crutch “to the left side towards the head.”  The appellant retaliated by stabbing the deceased and chasing the other man.  The police and ambulance were contacted.

[19]  In cross-examination Mr Ben Cameron agreed that he had some difficulty recalling the events.  He agreed that when Ms Schoer first came to the house he did not have much to do with her, but he did hear her raised voice.  He vaguely recalled his father saying something about calling the police if she returned.  When Ms Schoer came to the house on the second occasion, she entered the house uninvited and yelled at Ms Beaumont.  Mr Ben Cameron could not recall what was said.  He agreed that he had previously stated that when Ms Schoer was being physically removed from the house she had struck the appellant in the face with a fist at least twice.  He said that what he had put in his statement would have been correct.  He could not recall whether he had gone to the door when Ms Schoer arrived with the two men.  He could not recall what was said.  He agreed that he had previously given evidence that the appellant had put the knife down whilst at the door, by sticking it into the back of the couch.  He also agreed that he had previously stated that the appellant was not holding the knife when he was struck with the crutch.  He said that evidence would have been correct but he could not now remember.

[20]  The evidence of the child Michael Beaumont was played to the jury.  His evidence, was that a woman he called “Joanne” ran in to the house and threw his mother on a chair.  Some time after that she returned with at least one other man.  Mr Ben Cameron went out the door first and then the appellant intervened.  The appellant had two knives.  At one point the child suggested that he saw the appellant “get the knife out the couch”.  He also referred to the man who came with “Joanne” picking up the “walking stick”.  He “heard” the stabbing, and afterward the appellant came back into the house and washed the knives.  In cross-examination the child stated that “Joanne” was in fact “Jennifer” (Ms Schoer).  He recalled Ms Schoer having an argument with his mother about a shirt.  Ms Schoer was asked to leave but she would not.  Ms Schoer then left and returned with some other people, but he did not see them.  He was in his bedroom at the time.  He could hear the people outside, including men’s voices.  He then heard the appellant’s voice and another male voice he did not know.  He did not remember telling the police that the appellant had two knives.  He could only recall the appellant having one knife.  The child agreed that he had told the police that he saw another man hit the appellant with a crutch.  He remembered that happening.  He came out of his bedroom when he heard the appellant talking with the other man, and he saw the appellant get hit with the crutch.  The appellant was holding the knife when he was hit with the crutch.  He did not see what happened after that.

[21]  The appellant did not call or give evidence but his several statements to the police were in evidence.  Senior Constable Christopher Bird was one of the first police officers to attend at the residence.  He spoke to the appellant shortly after arriving.  He recalled the appellant saying that “two blokes in a black car pulled up here and did this.” (In a later recorded conversation with Detective Goriup the appellant denied that he said that.) Senior Constable Bird said that when the appellant was accused of the stabbing by another man the appellant said “[w]ell, you’re the pricks who hit me in the head with the crutch, so I fucking stabbed him.”  Senior Constable Bird then asked the appellant whether he stabbed the deceased.  The appellant agreed and said that he was defending a little boy.  The appellant was later interviewed at the residence by Senior Constable Bird.  In that recorded interview the appellant said that there had been an earlier incident when someone was pushed around and the lady had to be escorted out of the house.  He said they came back to the house and grabbed the crutch, he indicated that he had been hit, and said that he then grabbed the knife and struck out as there was “three against one”.  He also said he was “defending a child.”

[22]  The appellant’s initial account in his recorded interview with Detective Goriup was that he had been told of an incident earlier in the day involving Ms Schoer coming to the house.  He was present when Ms Schoer arrived at the house again.  He recalled her pushing Ms Beaumont into a chair and Ms Beaumont’s child being upset.  He called out to a girlfriend of Ms Schoer’s to come inside.  Ms Schoer refused to leave and had to be physically removed.  She returned later in the company of two men.  He recalled Mr Ben Cameron trying to talk to them and then he went and got a knife as he was concerned for Ben’s safety.  He told them to leave and then put the knife down.  He was then struck in the head with the crutch, and so picked up the knife and stabbed out at the first person in front of him.  He again repeated that he did it “to defend the house and defende [sic] children and Rhonda”.  Later in the interview the appellant said:

“No the door wasn’t shut, the door was open, that’s when Ben said, ‘Oh look out, here they are, they’re back again’. So I basically, with me foot from the chair, kicked the front door shut and told them to f off, I said, ‘I’m calling the police, you want to leave now’ and Ben said, ‘No, no, there’s no need for that, I’ll talk to them and, you know, sort this out’ sort of thing. So he then went outside and that’s when I’ve seen like the other bloke standing around the corner and that’s when I thought I’d better go out, ‘cause that’s when Jennifer started on him and she was then trying to get in the door to get at Rhonda again. And in the meantime Michael was screaming, so I went out there to, you know, I thought well if they just want to talk, that’s fine, but then it didn’t go from talking, he started to come up into my face and then all of a sudden that’s when the bloke’s whacked me with the crutch on the back of the head.

…

Basically tried to knock me out and then he tried to hit me again with it. And that’s when I ended up, I grabbed the knife and I lunged.”

[23]  The appellant said that when he lunged out with the knife he was not even thinking who he was going for, he just knew there was danger, three people were being abusive and violent, and he was not going to let them in the door to hurt Ms Beaumont or her child.  He did not use any force and the deceased basically walked into the knife.  The appellant said that he wrestled with Mr Smith over the crutch and chased Mr Smith away from the house because he was a threat.  He considered that Ms Schoer was also a threat, but that Mr Ben Cameron would be able to manage her.

[24]  Dr Kenneth Morrison gave evidence that when he examined the appellant after the incident, the appellant indicated an area of his head, just above and in front of the left ear, that was tender and swollen.  There was a little soft tissue swelling with no observable underlying injury to the skin or bruising.  The injury was consistent with moderate blunt trauma.  There was also a three centimetre diameter area of reddening on the appellant’s right shoulder.  In cross-examination Dr Morrison agreed that a blow to the head of the type described by the appellant could cause short-term disorientation or dizziness.  He said that it would be possible to cause permanent injury or death by assaulting someone with the aluminium crutch.

The  arguments

[25]  Counsel for the appellant argued that the evidence of most of the witnesses was of a generally unsatisfactory and unreliable nature, with many irreconcilable discrepancies.  It was submitted though that the following facts were established:

“4.2.1.Ms Schoer had confronted Ms Beaumont, in the appellant’s company, in an aggressive manner, regarding a shirt being worn by Ms Beaumont;

4.2.2. Sometime after that day, Ms Schoer had been told that the shirt had been stolen;

4.2.3.On the day in question, Ms Schoer attended the residence at Eucalypt St when Shane and Ben Cameron were present.  She conducted herself in an aggressive manner, and subsequently left;

4.2.4. Ms Schoer attended the residence on a second occasion in the company of Ms Wynn.  She again conducted herself in an aggressive manner, assaulted Ms Beaumont and the appellant, and had to be forcibly removed;

4.2.5.Ms Schoer attended the residence on a third occasion in the company of Mr Smith and the deceased.  There was some aggression in their manner.  The appellant confronted the group at the front door whilst holding a knife;

4.2.6.The group were told to leave the premises and they refused - demanding the return of property and (probably) threatening property;

4.2.7.The appellant (most probably) put the knife down;

4.2.8.Mr Smith struck the appellant with an aluminium crutch;

4.2.9.The deceased was stabbed once only by the appellant.”

[26]  The appellant’s counsel argued that it was not in dispute that the appellant was struck with the aluminium crutch before he stabbed the deceased, and there was some evidence that the deceased might have moved forward as he was stabbed.  The defence under s 267 did not require that the force used by the appellant was no more than was reasonably necessary to make an effectual defence, or that the appellant reasonably apprehended death or grievous bodily harm, or that the appellant retreated from a threat if retreat were reasonably available (here the immediacy of the threat prevented retreat).  Bearing those matters in mind, there was no factual basis upon which the jury could exclude the application of that defence.  It was submitted that even if the jury completely rejected the appellant’s account to police, the defence under s 267 was available on the only reasonable objective view of the evidence.

[27]  The appellant’s counsel also submitted in his written outline of submissions that no reasonable jury could have found that the defence under s 271(2) was excluded beyond reasonable doubt, but it was unnecessary to rule on that point because the defence under s 267 was broader than that under s 271(2).  This point was not pursued in oral argument.

[28]  It was contended that the appellant’s argument was consistent with the following observations made by the trial judge in the course of sentencing the appellant:

“As to the factual basis upon which I should proceed it appears to me that the jury should be taken to have concluded that you had at least the intent to do grievous bodily harm, but that there was sufficient provocation to reduce the verdict from murder to manslaughter. I must say that this case falls into the category of the type referred to by Justice McPherson in Whannell where his Honour said that the case had troubled him because it was not altogether easy to see why self-defence did not succeed. He said he thought it was explicable only on the basis that the force used by the appellant to defend himself was regarded by the jury as excessive. 

I think that is probably the case here and although the contents of a question from the jury should not be used as a basis for coming to a conclusion as to the facts held by the jury to exist, I think that the question asked by the jury in MFI6 is at least consistent with a finding that the action that you undertook that night was disproportionate to the harm you were facing and therefore self-defence was not available.

…

She returned with two men. On the blood alcohol content reading of the deceased he was quite intoxicated and I expect the other would have been of the same order. They made threats of violence to persons and damage to the house.

You came to the door. I think it is right to accept that you came to the door with the knife, but that you put it down either because you were asked to by Smith or for your own reasons. You were then hit over the head and back by Smith when he was wielding the aluminium crutch, which had been left close to the front door. You then picked up the knife and stabbed the deceased. This was at the end of a day on which there had been an increase in the level of concern that you had about the activity of Schoer and the friends she brought to the house.”

[29]  The respondent’s senior counsel accepted that the appellant should be regarded as having been a person in peaceable possession of the house at which the deceased arrived in company with Ms Schoer and Mr Smith.  All of the relevant events occurred in the “dwelling”, which (as the trial judge directed the jury) included the roofed verandah.[2]  He also accepted that the deceased, Mr Smith, and Ms Schoer were “in the dwelling” during the final confrontation because they were on the verandah.  The respondent’s senior counsel contended in written submissions that it was reasonably open to the jury to accept the argument advanced at the trial by the prosecutor that one or other or both limbs of s 267 had been negatived.  It was reasonably open to the jury to be satisfied beyond reasonable doubt that the appellant did not then believe on reasonable grounds either that the deceased was attempting to enter the house with intent to commit an indictable offence, or that it was necessary for the appellant to use the force he employed to prevent or repel that entry.  In the course of oral submissions, the respondent’s senior counsel did not press the argument that it was reasonably open to the jury to be satisfied that the appellant did not believe on reasonable grounds that the deceased was at the house intending to commit an indictable offence.

[30]  Senior counsel for the respondent argued that on the appellant’s version it was open to the jury to conclude that the appellant could have telephoned the police after kicking the front door shut when the car arrived.  That was suggested by the appellant’s statements that he intended to call the police, thereby acknowledging that such a course of action was available, and his statement that he did not ring the police because Mr Ben Cameron asked him not to do so.  If the jury accepted Mr Smith’s evidence, the jury could conclude that the appellant might have telephoned the police after he shut the door.  On Mr Smith’s version, no one attempted to break into the house when the door was shut, and the appellant opened the door when he was armed with the knife.  It followed that it was open to the jury to conclude that the appellant did not believe on reasonable grounds that it was necessary to use the force which he employed. 

[31]  As to the contention that it was open to the jury to find that the appellant did not believe on reasonable grounds that the deceased was attempting to enter the house with intent to commit an indictable offence in the house, senior counsel for the respondent referred again to the argument advanced by the prosecutor at the trial.  There was no evidence which suggested that the deceased or anyone else demanded or asked that they be let into the house.  In the appellant’s second interview he spoke of someone in the group calling out for the appellant to go out, which was submitted not to be consistent with the appellant attempting to prevent someone from entering the house.  The prosecutor referred to evidence that someone banged on a window and argued that that would not have happened if the group was trying to break it.  No one in the group outside the house took advantage of the appellant’s absence when, as he asserted in his version, after he was hit on the head he retreated back into the house to get a knife.  The prosecutor also relied upon the appellant’s statement to police that after he had stabbed the deceased he put the knife in the sink, leaving the entrance to the house unguarded, and then went out unarmed to chase Mr Smith up the road, leaving Ms Beaumont and her son in the house unguarded.

[32]  In the respondent’s outline of submissions, it was submitted that self-defence under s 271(2) of the Code was capable of being excluded on the evidence, since it was open to find that the more liberal exculpatory provision in s 267 was negatived. 

Consideration

[33]  Section 267 of the Code provides:

“Defence of dwelling

It is lawful for a person who is in peaceable possession of a dwelling, and any person lawfully assisting him or her or acting by his or her authority, to use force to prevent or repel another person from unlawfully entering or remaining in the dwelling, if the person using the force believes on reasonable grounds—

(a)the other person is attempting to enter or to remain in the dwelling with intent to commit an indictable offence in the dwelling; and

(b)it is necessary to use that force.”

[34]  Section 271 of the Code provides:

“Self-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 can not 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.”

[35]  The critical issue is whether the prosecution negatived any application of s 267 beyond reasonable doubt.  On a reasonable view of the evidence as a whole, Ms Schoer’s intention was to seek to recover property which she believed was inside the house and she had enlisted the deceased and Mr Smith to assist her in that attempt.  Furthermore, if s 267 were otherwise applicable, the mere fact that it was Mr Smith, rather than the deceased, who assaulted the appellant would not necessarily exclude its application in the volatile situation revealed by the evidence.[3]  It must also be accepted that s 267 might apply even if the accused used more force than was reasonably necessary to make an effectual defence of his person or of others in the house against Ms Schoer and her companions on the verandah.[4]

[36]  Ultimately, the question is whether, on all of the evidence, it was reasonably open to the jury to be satisfied beyond reasonable doubt that the appellant did not believe on reasonable grounds that, in order to prevent the deceased, Mr Smith and Ms Schoer from entering the house, or in order to repel them from the verandah, it was necessary for the appellant to use the force that he did.  That question was raised by the evidence emphasised in the submissions for the appellant, but it was the jury’s function to assess the evidence.  It was not submitted that there was any deficiency in the trial judge’s directions to the jury, and the presence of conflicts in the evidence on important matters does not mean that the jury’s verdict was not reasonably open.

[37] The jury was not bound to accept the appellant’s version in his police interview that he grabbed the knife only after he had been hit with the crutch.  On the basis of Mr Smith’s evidence, the jury could find beyond reasonable doubt that: the appellant opened the door; walked out on to the verandah holding a knife; appeared to threaten to stab the deceased; and, after Mr Smith hit the appellant with the crutch as a result of being provoked by the appellant’s apparent threat, stabbed the deceased.  I have summarised Mr Smith’s evidence, but it is useful here to set out a critical passage:

“-- And I just got out of the passenger side door and then they had walked - [the deceased] and Jen walked up to the door and some fella - I don’t know, I was just standing out near the car.

Yes?-- And then some big - big person, just like fairly tall person, come outside and said that - just said that you’re not getting - said to Jen that she’s not getting her stuff back.

Yes?-- And pretty much he’s - he said he’s pretty much just got kids there and told us to go away.

What happened then?-- And then - and then he went back inside and we were just still standing there and then Jen - I mean [the deceased] started - went to the window and just said, ‘Come out and give us the clothes so we can go.’

Yes?-- Or that’s what he - I’m pretty sure he said, and then he just come outside with a knife and-----

All right. Now, this person you say come out with the knife-----?-- Yeah.

-----is that the person you were talking about earlier?-- Yeah.

You say he came out?-- Yeah.

Was the door open or shut?-- The door was - well, he opened the door when he walked out.

Sorry, he opened the door?-- Yeah.

You say he came out with a knife?-- Yeah.

Are you able to describe the knife? What did it look like?-- No, I just seen a knife. I’m not sure what type of knife.

Was anything said by this person?-- He just said - he didn’t say much, he just walked out with the knife. I don’t think he said anything.

What happened then?-- Just he was - my friend was standing in the front next to Jen and he was standing in front of [the deceased] and I was standing behind [the deceased], pretty much sort of like behind [the deceased], and then he went to stab [the deceased] and that’s when I hit him with - I’m pretty sure it was a crutcher.

Yes?-- And then he just stabbed [the deceased] twice and then he just collapsed and then went to come for me and just pretty much sure he stabbed me in the arm and the back and then I went up the street and then walked - run up the street so he couldn’t get me and then come back and he was trying to get Jen with the knife, or something, yeah.

…

And then you’ve then described what this man has done with the knife?-- Yeah, he just - he was saying - I’m pretty sure he said he will just stab you - us if we don’t leave. I’m pretty sure he might have said that. I’m not sure if he did say that but I think he might have.”

[38]  The appellant’s counsel submitted that Mr Smith was uncertain about his evidence on that topic.  Mr Smith conceded that he was not sure whether or not the appellant did say that “he will just stab you - us if we don’t leave”, but he did not resile from his evidence that when the appellant walked out on to the verandah with the knife “he went to stab [the deceased] and that’s when I hit him…”.  Mr Smith gave similar evidence in cross-examination.  He said that the appellant “started getting really angry and then went - he had the knife in front of him in his hand…”.  Even if the jury concluded that the appellant simply walked through the door and held the knife in front of him as he moved towards the deceased, it was open to the jury to find that the appellant must have appreciated that Mr Smith merely acted in an unsuccessful attempt to disarm him.

[39]  The appellant’s counsel submitted that attention must necessarily be confined to the period after the appellant was hit with the crutch and that it was irrelevant to consider whether it was reasonable for the appellant to have armed himself with the knife prior to opening the door.  I do not accept that s 267 requires such a narrow focus.  The effect of Mr Smith’s evidence was that violence was only offered to the appellant after he appeared on the veranda armed with a knife with the apparent intention of stabbing the deceased.  On this view of the evidence, it was reasonably open to the jury to find that the prosecution had proved beyond reasonable doubt that Mr Smith’s use of the crutch had no bearing upon the appellant’s purpose in using the knife.

[40]  As was emphasised for the appellant, it was necessary for the jury to bear in mind the earlier events, including the conduct of the three people on the verandah, their demands for property within the house, the volatility of the situation, the presence of a child and others within the house, and the relatively limited time within which the appellant reacted.  However, those were not the only relevant matters.  Although Ms Schoer had returned to the house with two men, the jury could find that appellant had no reasonable ground for believing that any of them were armed.  The jury could also take into account the appellant’s statement to Detective Goriup that, after the appellant kicked the front door shut and told the three people on the verandah to leave, he said that he was calling the police.  The appellant was not obliged to retreat and the issue is not whether the appellant should have called the police, but the jury could take this evidence into account as an indication that the appellant did not consider that it was necessary to resort to the use of a knife to repel the people on the verandah.  Furthermore, on the appellant’s version, he made no objection when Mr Ben Cameron said there was no need even to call the police.  The evidence also allowed the jury to conclude that none of the three on the verandah broke into the house or attempted to do so whilst the door was shut, and there was no suggestion that any violence was offered to Mr Ben Cameron when he went on to the verandah.

[41]  Bearing those matters in mind, on all of the evidence it was open to the jury to find beyond reasonable doubt that the appellant did not believe on reasonable grounds that it was necessary for him to use the knife in the way he did in order to repel the three people on the veranda or to prevent them from entering the house.

[42]  As to self-defence, for the reasons I have given it was even more clearly open to the jury to be satisfied that the appellant’s use of the knife was an excessive reaction to the situation and not necessary for his defence or the defence of others in the house.

Proposed orders

[43]  I would dismiss the appeal.

[44]  CHESTERMAN JA: The consideration of this appeal has caused me some anxiety.  The circumstances in which Mr Atkinson met his death give rise to the distinct possibility that his homicide was authorised by s 267 of the Criminal Code.  It was common ground that if that defence were negatived the more limited defence provided by s 271 would have no application.

[45]  In the end the appeal turns on whether the evidence supported a finding that the deceased was not unlawfully entering Ms Beaumont’s dwelling, in which the appellant also resided, and/or that the appellant did not believe that it was necessary to stab the deceased in order to prevent him entering the dwelling, and/or that there were no reasonable grounds for such a belief.

[46]  The relevant facts have been comprehensively set out by Fraser JA and it is not necessary for me to repeat any of them.  The evidence reveals that the jury could well have found that neither the deceased nor Mr Smith entered or attempted to enter Ms Beaumont’s house.  They came to the verandah certainly and the deceased rapped loudly on a window but did not break it.  Neither the deceased nor Smith attempted to force entry into the house, or enter the open door when the appellant came onto the verandah.

[47]  The jury could reasonably have found that the factual pre-condition of the application of s 267 had not been established. 

[48]  The jury could also have taken the view that it was the appellant who first used, or at least threatened, violence with a weapon.  The evidence allows a finding that neither the deceased nor Mr Smith (nor Ms Schoer) was armed.  As well the only violence offered by the visitors occurred after the appellant had walked from the house onto the verandah armed with a knife with which he gestured towards the deceased.  It was open to the jury to find that Mr Smith struck the appellant with a crutch only after and as a consequence of him coming onto the verandah so armed. 

[49]  Although the visitors were unwelcome and obstreperous, and no doubt intoxicated, the jury could find on the evidence that they offered no violence towards the occupants of the house except, as I have mentioned, in response to the appellant threatening them with a knife. 

[50]  In those circumstances it was open to the jury to find that the appellant did not believe, on reasonable grounds, that it was necessary to stab the deceased in order to prevent him entering the dwelling. 

[51]  The conviction is not therefore unreasonable and the appeal should be dismissed.