R v Woodward[2017] QCA 165

SUPREME COURT OF QUEENSLAND

1. HOLMES CJ:  I agree with the reasons of Philippides JA and with the order she proposes.
2. FRASER JA:  I agree with the reasons for judgment of Philippides JA and the order proposed by her Honour.
3. PHILIPPIDES JA:

Background

The appellant appeals against her conviction after a trial on 15 June 2016 of one count of wilful damage (count 1) and one count of assault occasioning bodily harm while armed (count 2).  The complainant in count 2 was Sandra Broadfoot.

4. The grounds of appeal as stated in the notice of appeal are twofold; namely that in respect of each of the counts the trial judge erred in not accepting that there was no case to answer.  The appellant also provided a written outline raising further matters not referred to in the notice of appeal.
5. Additionally, an application to adduce evidence was brought.  It concerned CCTV footage, medical evidence relating to the complainant and a letter under the hand of Amelia McLarnon.  The application was refused on the basis that the CCTV footage had been put in evidence and, as to the other matters, that the evidence sought to be adduced was either available at trial or irrelevant to the determination of the issues on appeal.

Crown case at trial

6. The witnesses called by the Crown at the trial were the complainant, her husband, Barry Broadfoot, the complainant’s granddaughter, Mickaela Castle-Broadfoot, and her boyfriend, Robert Avenelle.  Also called were other eye witnesses Katie Griffin and Nathan Boslem.  The appellant did not give or call evidence.  It is fair to say that, at trial, the central issue for the jury was not so much whether the appellant had committed the acts but whether her actions were unlawful.

Evidence of Barry Broadfoot

7. Mr Broadfoot, who was 74 years of age at the time of the trial,^[1] gave evidence that on 2 January 2014, he was driving his car, a silver Mitsubishi Aspire with the registration number 453 TNX, along the Bruce Highway towards Hervey Bay.  Also present with him in the car were his wife (who was in the front passenger seat), his granddaughter, Mickaela Castle-Broadfoot, and Robert Avenell (who were in the rear passenger seats).
8. As he was approaching Tiaro, he stopped his car at a set of lights located just before a police station.  When the light turned green, he drove off.  Out of the corner of his eye, he saw a car heading towards him from the opposite side of the road.^[2]  He tried to move slightly to the left but was not fast enough.  The other car, which was a green coloured Ford Falcon, clipped the back end of his car in the area of the rear right hand mudguard.  The car was not hit very hard but he felt the car “shake” from the impact.  It had not been damaged prior to the incident.^[3]
9. Mr Broadfoot drove on until just past the police station where he was able to pull over to the side of the road.  He waited there, expecting the other car to stop behind him, but instead it continued past him.  He then followed the green car, making a number of turns until both vehicles were back on the Bruce Highway and ended up at the set of lights where he had previously stopped.^[4]  The other car then turned left, proceeded past the police station and drove into the yard of a house (which was the appellant’s residence).
10. Mr Broadfoot parked his car on the footpath in front of the house.  The appellant got out of her car and he got out of his car.  While standing on the footpath, near the gate, he said to the appellant “you hit me”.  The appellant denied that she had hit his car and responded saying “you hit me” and “it’s your fault”.  The appellant started screaming for the police.  Mr Broadfoot said that he was still on the footpath, not in the yard.
11. The appellant came toward him, picked up a brick and pushed the front gate against the right hand mudguard area of his car.  Mr Broadfoot put his hand on the gate to push it away from his car and the appellant backed off.  The appellant walked around the front of her car.  Mr Broadfoot followed her and saw the keys in her car and pulled them out,^[5] then returned to the footpath.^[6]
12. The appellant moved between the two cars, “waving the brick around” and threatening to throw it at the windscreen of Mr Broadfoot’s car, yelling for the police.  She then threw the brick at the windscreen, and continued yelling for the police.^[7]
13. The appellant’s son came out of the house, yelling at Mr Broadfoot to leave his mother alone.  The appellant’s son started throwing punches at Mr Broadfoot.  One “clipped” Mr Broadfoot’s ear.  Mr Broadfoot told the appellant’s son that he was going to the police, and the appellant’s son responded that he was going to the police.  Mr Broadfoot handed the appellant’s car keys to her son.  Mr Broadfoot then returned to his own vehicle and, after speaking to two persons across the street, drove to the police station.^[8]
14. Mr Broadfoot denied having touched the appellant in any way or having hit her vehicle at any time.^[9]
15. In cross-examination, Mr Broadfoot accepted that, after he had taken the keys, the appellant told him to get out of the yard and that he had gone back to stand outside the gate.^[10]  Mr Broadfoot said his reasoning in going into the yard was that he had wanted to get the appellant’s insurance details.^[11]  He said that he went about four paces into the yard^[12] and took the appellant’s keys from her car “to try and stop her in case she does it again” (backing up her vehicle into his).^[13]  He also accepted that his original statement to police indicated that he had reached into the car and taken the keys before the appellant threw the brick at his windscreen.^[14]  In response to questions from the trial judge, Mr Broadfoot stated he could not be “exactly sure” if he had the keys when the brick was thrown.^[15]  He said that at that stage he was standing near the driver’s side door of his car when the brick was thrown.^[16]

Evidence of Sandra Broadfoot

16. Mrs Broadfoot, who was 70 years of age at the trial, also gave evidence of stopping at the lights in the centre of Tiaro and that the car was “just taking off” when she felt a bump on the back of the car.  She gave an account similar to that of her husband as to his pulling over to the side of the road, then following the appellant’s vehicle and coming to park outside the appellant’s address.^[17]
17. Her evidence was that her husband got out of the car and asked the appellant words to the effect of “why didn’t you stop”.  The appellant started screaming and the appellant’s son rushed out and tackled her husband to the ground.  She said that she saw the appellant bend to pick something up, and then slam the gate into the front of their car, at which stage she saw the appellant had a brick in her hand.  Her husband was knocked to the ground by the appellant’s son.  The appellant then came around the front of their car, threw the brick at the windscreen of the car and then at Mrs Broadfoot’s side of the windscreen.  The appellant then scraped the brick down the bonnet and threw it again.  Around this time, Mr Broadfoot got up off the ground.^[18]  The appellant walked around to Mrs Broadfoot’s side of the vehicle, opened the car door and lifted the brick above her head.  Mrs Broadfoot said she put her arm up to protect her head.  The appellant struck her twice on the arm with the brick.^[19]  Mr Avenell started to get out of the car.  The appellant yelled at him saying, “Do you want some of this too?” and then went to the other side of the car and smashed the glass quarter-panel next to where her granddaughter was seated.^[20]  She did not think Mr Broadfoot had seen the appellant assault her.^[21]  When he had first tried to get off the ground, he had been knocked to the ground again.^[22]  Mrs Broadfoot gave evidence that her granddaughter tried to phone the police and that she saw two people on the other side of the road to whom she spoke.
18. In cross-examination, Mrs Broadfoot accepted that the struggle between her husband and the appellant’s son took place in the appellant’s yard.^[23]  Although Mrs Broadfoot’s evidence in chief was that she did not see her husband remove the keys from the ignition of the appellant’s vehicle,^[24] she accepted, when referred to her earlier statement in cross‑examination, that she may have seen Mr Broadfoot take the keys.  However, she placed that as possibly happening after her husband was knocked to the ground a second time.  She denied that the struggle between her husband and the appellant’s son took place after her husband had taken the keys.^[25]
19. Mrs Broadfoot initially denied, when cross-examined, that she got out of the car at any stage.  After being referred to an earlier statement, she accepted that she may have opened her door to try to get out of the car, but she maintained that she was still wearing her seatbelt when the assault occurred.^[26]  In cross-examination, Mrs Broadfoot also accepted that Mr Avenell may have tried to get out of the car before the appellant hit her with the brick.^[27]

Evidence of other passengers in the vehicle with the complainant

20. Mickaela Castle-Broadfoot, who was sitting in the back driver’s side passenger seat, gave evidence consistent with that of Mr and Mrs Broadfoot concerning the incident at the traffic lights and following the appellant after she failed to pull over.  She gave evidence of her grandfather pulling up in the driveway and saying, “you hit our car”.  She said that there was arguing and that her grandfather took the keys out of the appellant’s vehicle and that that was when “all the stuff started happening”.  She heard the appellant at one point screaming out for help and then saw the appellant get a brick and hit the windscreen.  Someone came out of the house and her grandfather was on the ground.  Her grandmother tried to get out of the vehicle but was stopped and hit by the appellant.  Her boyfriend tried to get out but the door was shut on him and then the appellant came over to her side of the vehicle and hit the back window.^[28]  As to the sequence of events, she said that she was not sure “which order it was in”.  She also later said that her grandfather took the keys out after the initial screaming and that there was then screaming again.^[29]  In cross‑examination, she accepted that she had said in her police statement that the appellant had shut the gate, hitting their car, and that her grandfather “then opened the gate and [she] saw the [appellant] pick up a brick”.  Although she did not recall having made the statement, she accepted that the events may have happened that way.^[30]
21. Robert Avenell gave evidence of having stopped at the traffic lights in Tiaro.  They changed to green and there was a sudden “jolt” in the car.  Mr Broadfoot said they had been hit.  The other car did not pull over as they had done.  They followed the other car to the house.  The appellant got out and started screaming.  Mr Broadfoot said to her at the front gate that his car had been hit.  She continued to scream.  The appellant’s son came out of the house and tackled Mr Broadfoot to the ground.  The appellant then came to the front of their car and broke the windscreen with a brick.  He said that this was after he saw Mr Broadfoot fall to the ground.  The appellant then went to the side of the car where Mrs Broadfoot was sitting and attacked her with the brick.  He tried to get out of the car to help Mrs Broadfoot but the appellant pushed his door back.^[31]  The appellant then went to the other side of the car where his girlfriend was seated and broke the back window.  He did not see Mr Broadfoot go into the front yard or take car keys from the appellant’s car.^[32]

Other eye witnesses

22. Katie Griffin was walking along the street with Nathan Boslem at the time of the altercation at the appellant’s house.  She heard yelling and saw a green car parked in the yard and a silver car behind it.  She saw Mr Broadfoot get out of his car and the appellant standing in front of his car with a brick in her hand, which she threw at the windscreen of the silver car.  She continued walking but crossed to the other side of the street.  She looked back and saw Mr Broadfoot and the appellant’s son fighting.  She looked back again and saw the appellant at the passenger side door of the silver car.  The appellant was “throwing” her hand with the brick in it toward Mrs Broadfoot in the car.^[33]
23. Mr Boslem also gave evidence of seeing two cars.  The appellant’s car went into the driveway of the house and the other car, a silver one, was parked on the grass in front of the house.  The appellant got out of her car first and was yelling.  Mr Broadfoot also got out of his car and walked into the yard and to the driver’s side of the green car.  There was yelling.  Suddenly, the appellant’s son came out of the house “and it was on”.  He was throwing punches at Mr Broadfoot, who ended on the ground against the fence.  Mr Broadfoot was ‘‘pretty much pinned down” while the appellant’s son was punching him.^[34]  The appellant then threw a brick onto the windscreen.  She picked up another brick.  Mrs Broadfoot opened her door and the appellant struck her with the brick.^[35]  She was struck to the wrist/forearm area.^[36]

Video footage

24. Officer Roberts gave evidence of having obtained CCTV footage (Exhibit 1) from a camera situated on the Bruce Highway, mounted on the pedestrian crossing near the Tiaro police station, after the complainant and her family and the two other witnesses attended at the police station.^[37]  The camera that recorded the footage recorded both the northbound and southbound traffic at that location.^[38]
25. Because of technical difficulties with the Court equipment required to play the CCTV footage, an alternative arrangement was agreed upon between the parties and the trial judge.  It was that Officer Roberts would identify relevant features on the security footage on the laptop from the witness box and then stand in front of the jury and point out the same feature.  That process would be repeated for each feature of the footage.^[39]  The portion of relevant footage was shown to Officer Roberts and then the relevant footage was replayed to the jury.^[40]
26. The first portion of the footage identified by Officer Roberts depicted, as the judge stated, the southbound lane on the right hand side of the image and the northbound lane to the left.  The two lanes are separated by a painted median strip.  This footage was also played in front of the jury.^[41]  As to the second portion of the footage, Officer Roberts was requested to pause the footage when the silver Mitsubishi was shown appearing from the bottom left of screen.  The timestamp on the video was 10:56:18.  Officer Roberts confirmed^[42] this was a car he had later seen at the police station (when the Broadfoot family attended at the police station with the vehicle).  This was then shown to the jury.  The record, as the respondent properly accepted in its written submissions, does not expressly clarify if only the still at 10:56:18 was shown to the jury or if the second portion of footage up to this point was played to the jury.^[43]  In the next portion of the footage played, Officer Roberts gave evidence identifying where the Mitsubishi vehicle had travelled (pointing to the right-hand corner of the screen where the crossroads could be seen).  There was also a green Ford Falcon depicted crossing from the southbound lane into the northbound lane.  This footage was paused at 10:56:25^[44] but the jury were shown the footage from 10:56:15 to 10:56:25.^[45]
27. Officer Roberts was then requested to play the footage from 10:56:25 to10:58:15.  He referred to the silver Mitsubishi pulling over to the left and the green Falcon not having done so.  The Falcon turned to the right and was followed by the Mitsubishi and out of screen.  The next relevant image depicted the Falcon again in the northbound lane at 10:58:06, followed by the Mitsubishi entering the screen at 10:58:08.  Both cars then turned from the left hand lane into Mungar Road.  The footage was stopped at 10:58:16.  The footage from 10:56:25 to10:58:16 was then played twice to the jury.^[46]
28. Later in the evidence of Officer Roberts, the jury were sent out while an objection was heard and returned with a note requesting to view “Footage of green car entering behind silver car again, referring to difficulties seeing the footage clearly on the small screen.^[47]  When the jury returned, the footage was again played in front of the jury.  The laptop was then provided to jurors in the back to move the footage back and forth for themselves to watch the relevant portions.^[48]  A laptop was provided to the jury with a copy of Exhibit 1 so that they could look at it in the course of their deliberations.^[49]

The vehicles

29. A series of photographs were also tendered through Officer Roberts.  They depicted the complainant’s silver Mitsubishi and the damage to it.^[50]  The damage included damage to the windscreen, bonnet, the rear driver’s side quarter glass, the metalwork under the rear window and the area of the driver’s side rear mudguard and bumper.
30. Officer Roberts gave evidence that he attended at an address at Mungar Road and saw the appellant, her son and a green Falcon with the registration number 012 CGK.^[51]  That vehicle belonged to the appellant.^[52]  There was a mark on the front bumper in an area of the car that did not appear dusty, whereas there was dust on the back of the car.^[53]  Similar evidence was given by a second police officer who attended, Officer Coleman.^[54]  A series of photographs of the green Falcon taken by Officer Coleman were tendered.^[55]

Bricks

31. Officer Roberts and Officer Coleman gave evidence that there were bricks in the lawn area and by the driveway of the address he attended at Mungar Road.^[56]  One brick was located just inside the gate to the property.  Officer Coleman also reported an imprint in the grass near to the gate consistent with a brick having been moved from that position.^[57]  A series of photographs taken by Officer Coleman, depicting the general location of the bricks and the gate, were tendered.^[58]

Injuries

32. Officer Coleman’s evidence was that, when he saw Mrs Broadfoot on 2 January 2014, he observed that she had injuries, referring to marks on her left wrist and arm with dried blood visible.^[59]  He arranged for Police Scenes of Crime to take photographs of her injuries.  The photographs were tendered at trial.^[60]  In her evidence, Mrs Broadfoot confirmed the injuries were from being hit with the brick and said that the photographs were taken the following morning at her son’s house.  Mrs Broadfoot gave evidence of having severe bruising that took nine months to heal and tingling in her fingers until the swelling subsided.^[61]  She also had an abrasion to her arm.^[62]
33. Officer Coleman gave evidence of observing injuries to Mr Broadfoot’s left leg.  His shirt was also ripped all down the left hand side.  Photographs of Mr Broadfoot were tendered.^[63]  Mr Broadfoot stated in his evidence that his shirt was ripped during the altercation with the appellant’s son.^[64]

Ground of appeal

Error in not accepting the no case submissions

34. There is no substance in the ground raised in the notice of appeal that the trial judge erred in not accepting that there was no case to answer in respect of each count where the Crown had not led evidence of a lack of consent.  As the respondent submitted, while the Crown did not elicit an express statement from Mrs Broadfoot that she did not consent to being assaulted, or direct evidence from a witness that there was no consent given to the vehicle being damaged, the evidence was such as to permit the jury to draw inferences as to an absence of consent from the factual circumstances.  This was particularly so given the absence of any suggestion to the contrary being raised by the evidence.  The trial judge was correct to reject the no case submissions.^[65]

Other contentions in the written submissions

35. As to the matters pressed by the appellant in her outline of submissions, but not referred to as grounds of appeal, the respondent submitted that the appellant had failed to identify how each matter, even if established, gave rise to a miscarriage of justice.

The CCTV footage of events of 2 January 2014

36. The appellant complained that the relevant CCTV footage was not played to the jury because of technical difficulties at the courthouse.  Instead, three still images were shown on a laptop in lieu of the footage being played.
37. The discussion above of the CCTV evidence led at trial reveals that this complaint lacks substance.  The jury were not merely shown stills in the course of the trial but were given the opportunity to watch the footage again when they requested to do so.  Of particular importance is that the jury were also provided with a laptop to watch a copy of Exhibit 1 in the course of their deliberations.

The photographs of the complainant’s injuries

38. The appellant complained that the photographs taken of the complainant’s injuries were not taken by police or forensic or medical professionals.
39. The evidence of the police was that the photographs were taken by police and scenes of crime officers.  Officer Coleman could not recall what day the photographs of Mrs Broadfoot were taken and did not speak to where they were taken.^[66]  The respondent submitted that this was not inconsistent with the evidence of Mrs Broadfoot that the photographs tendered were taken at her son’s house the following day.  Further, Officer Roberts gave evidence of the existence of the injuries.  This complaint is without merit.  It was not necessary to obtain medical evidence concerning the injuries.  The evidence that was led concerning the injuries was sufficient for the jury’s consideration that the injuries occurred and caused pain.  There was evidence from the two passers-by to support the evidence of the infliction of the injuries.

The appellant disputed the evidence of the complainant and the witness Mickaela Castle-Broadfoot

40. At the hearing of the appeal, the appellant indicated that she had not seen the CCTV footage.  The appellant submitted that the footage would, when viewed, reveal the truth.
41. The respondent submitted that the CCTV evidence generally accorded with the evidence of the witnesses in the Broadfoot’s vehicle and also the summation of what was depicted on the video footage in the evidence of Officer Roberts.  Further, it was submitted that the CCTV footage was not critical to the determination of the issues at trial.  The acceptance of the evidence of the witnesses was otherwise a matter for the jury, who also had access to the CCTV footage.
42. The Court adjourned so that the appellant could view the relevant footage.  Having viewed the footage, it is, in my view, abundantly clear that the footage supported the evidence given by the prosecution witnesses that the appellant’s car came into contact with Mr Broadfoot’s car.

The trial judge erroneous assumption

43. The trial judge made rulings in relation to the defences sought to be relied upon by the appellant’s counsel.  His Honour ruled that in relation to the assault count (count 2) a defence under s 277(1) (defence of premises against trespassers) would be left to the jury but refused to leave provocation and self-defence.  The trial judge also refused in respect of the wilful damage count (count 1) to leave defence of property under s 458(4).^[67]
44. The appellant argued that, in so ruling, the trial judge acted on an assumption that Mr Broadfoot was entitled to assault the appellant, trespass onto her property and steal her keys.  Quite simply, in my view, there is no basis to argue that trial judge acted on any such assumption.  There were various scenarios discussed concerning Mr Broadfoot’s conduct in the course of the appellant’s counsel’s submissions^[68] but they formed no basis for his Honour’s rulings, which were not premised on a view concerning Mr Broadfoot’s rights or entitlements.  Rather, in summing up, the trial judge referred to the issue of the lawfulness or otherwise of Mr Broadfoot’s actions^[69] and did so in terms of the jury’s need, in considering whether the defence in s 277(1) applied, to decide “if the prosecution has satisfied you beyond a reasonable doubt that Mr Broadfoot was lawfully on the premises”.^[70]  It was left to the jury to determine that issue (whether his purpose on being on the premises was other than to make inquiries as to insurance and the like).
45. Central to the trial judge’s other rulings in respect of count 2 was that the complainant in count 2 was not Mr Broadfoot but Mrs Broadfoot, and on any view of the evidence, she was seated in the vehicle at the time of, and prior to, the assault.  On the evidence at its highest, Mrs Broadfoot had, at most, merely opened her car door.^[71]  His Honour’s conclusion in relation to the applicability of a s 458(4) defence for count 1 proceeded on the proper view that, in relation to the damage caused to Mr Broadfoot’s car by the appellant using the brick, there was an insufficient factual basis for the defence to be reasonably open.^[72]

The allegation as to a member of the jury

46. The appellant also alleged in her written outline that one of the members of the jury was a person who did not like her and with whom the appellant submits she “had a considerable dispute” with “some years ago”.  There are a number of difficulties with this contention.
47. The issue raised was based on assertions, as opposed to evidence, that a juror was unable to be impartial.  Significantly, although the appellant had the opportunity through counsel to challenge the individual in question as a juror at the time of empanelment, that did not occur, nor was any issue as to any juror raised with the trial judge at any stage subsequently.  Moreover, the jury were given the traditional direction at the time of empanelment that:^[73]

“… it is essential that every member of the jury be and by all fair minded people, be seen to be, completely impartial in criminal trials between the prosecution and the [appellant]. Sometimes a juror knows a witness or something about him or her or knows the [appellant] … or something about her... and on that account, the juror may feel that he or she cannot be and be seen to be completely impartial... If, for any reason whatsoever, any one of you feels that you cannot be and by all fair minded people, be seen to be, completely impartial, please raise your hand.”

48. In response to this direction, no juror raised any concern as to their ability to be, and be seen to be, completely impartial, and there is no cause to conclude that any member of the jury did not comply with their oath.^[74]  Nor is there any basis for concern that the jurors did not heed the following orthodox directions by the trial judge in opening remarks and in the summing up:^[75]

• “[P]ay careful attention to the evidence and ignore anything that you may hear or read about the case out of court”;^[76]
• “It’s inherently unjust for you to act on information which is not in evidence and the prosecution and the defence don’t know you’re acting on it ... If any member of the jury brings in such information to your deliberations, please inform the bailiff of that”;^[77]

• “You should dismiss all feelings of sympathy or prejudice, whether it be sympathy for or prejudice against the defendant, or anyone else.  No such emotion has any part to play in your decision.  You must approach your duty dispassionately, deciding the facts upon the whole of the evidence.”

The complaint about the victim impact statement

49. As the appellant accepted, she did not seek leave to appeal against her sentence.  Accordingly, the matters raised in the Victim Impact Statement are of no relevance to the appeal conviction.^[78]

Failure to play the 000 call made by her son to police after the incident at trial

50. The complaint concerning the failure to play the 000 call has no substance and would not have been a matter of relevance.

Matters related to conduct of counsel

51. While there was no ground of appeal in the Notice of Appeal alleging that the conduct of counsel gave rise to a miscarriage of justice, the appellant made a number of complaints concerning her counsel in her outline.  These included his failure to “intervene on her behalf” as concerned the juror whom she had recognised and also the failure to call any witnesses.  In her outline of submissions, the appellant stated that she had witnesses on standby to give evidence but that they were told by the appellant’s legal counsel that they could not give evidence.  It was also contended that her solicitor and barrister refused to meet with her to discuss how the trial would proceed.  In a further letter accompanying her outline, the appellant states, “I felt bullied and most suppressed by my legal Counsel on the day who refused to call my witnesses to give evidence.”
52. Following the Crown closing its case shortly before lunch, the appellant’s counsel asked that the appellant not be called upon until after lunch.^[79]  She was then called on at around 3.10 pm.  Her counsel answered on her behalf, after “checking” with the appellant and stated that she would neither give nor call evidence.^[80]
53. No sworn evidence as to these allegations was put before the Court.  Given the absence of sworn evidence, there can be no reason or opportunity for the Court to be provided with a version of events by the appellant’s legal representatives.  The Court cannot make determinations on the basis of mere accusations.
54. In any event, from a reading of the transcript of proceedings, no basis from which to consider that a miscarriage of justice occurred from the way the trial was conducted is apparent.

The direction as to s 277(1) of the Criminal Code

55. The respondent raised, quite properly, a further matter for the Court’s attention.  It seems that the trial judge directed the jury in relation to s 277(1) of the Criminal Code by reference to that section but by modifying the suggested Benchbook direction in relation to s 267.^[81]  As the respondent submitted, where the other requirements are established, s 267 authorises a person to use force where the person “believes on reasonable grounds … it is necessary to use that force”, whereas s 277 authorises a person to “use such force as is reasonably necessary”.  The effect of the modification to the direction was that the trial judge directed the jury with regard to the s 267 requirement as opposed to that required by s 277.  The respondent submitted that, in the circumstances of this case, the consequence of the modified direction was favourable to the appellant, because the prosecution were required to exclude beyond a reasonable doubt the possibility that the assault occurred in the use of force which the appellant “genuinely believed” was necessary to prevent unlawful entry by Mrs Broadfoot, being a “belief on reasonable grounds.”^[82]  This was as opposed to the prosecution only needing to satisfy the jury that the assault occurred in circumstances where the force used by the appellant was not reasonably necessary.
56. In advancing that submission, reliance was placed on the discussion by Applegarth J in R v O'Neill^[83] as to the relationship between s 267 and s 277.  His Honour accepted the submission made by counsel for the respondent in that case^[84] that there had been no miscarriage arising in circumstances where the jury had been directed as to the need for the defence under s 267 to be negatived but had not been directed as to availability of the defence under s 277.  Counsel’s submission was that the negativing of s 267 was more onerous, since it contained an element which was more difficult to negative.  Applegarth J accepted that submission, observing:^[85]

“Under s 267 the prosecution had to prove that the appellant did not believe on reasonable grounds that it was necessary to use the force. Under s 277 the prosecution had to prove that the force used was more than was reasonably necessary. This imported an objective standard as to the force that was necessary, whereas the defence under s 267 depended upon the state of the accused’s belief. The accused’s belief that it was necessary to use that force had to be based on reasonable grounds. However, s 267 allowed for the possibility that reasonable people in the accused’s situation might have held a variety of beliefs, perhaps even diametrically opposed beliefs, about the relevant state of affairs.”

57. The respondent submitted, referring to Weiss v The Queen,^[86] that it should be accepted that the jury, having rejected the availability of the defence under s 277 in the way they were in fact directed as to that defence, which was more onerous for the Crown to discharge, would have rejected the defence had the objective aspect of this element been identified to the jury.  The factual basis for leaving the defence for the consideration of the jury was slender, but it was for the jury to determine if it was open, as the trial judge recognised.  In my view, the respondent’s submission as to the consequences of the manner in which s 277(1) was left to the jury should be accepted.  They were required to be satisfied that the defence was negatived on the basis of a consideration of whether the appellant had used force which she believed, on reasonable grounds, was necessary.  Consequently, no miscarriage of justice has arisen.  Alternatively, as the respondent submitted, no substantial miscarriage of justice has been occasioned from the misdirection so that the appeal should be dismissed pursuant to s 668E(1A).^[87]  As mentioned, the defence was left on slim evidence.  On my own review of the evidence, I am satisfied that no substantial miscarriage has occurred.
58. In the circumstances, I would dismiss the appeal against conviction.