R v Shields[2022] QCA 51

SUPREME COURT OF QUEENSLAND

1. [1]
   FRASER JA:  I agree with Morrison JA.
2. [2]
   MORRISON JA:  The appellant was convicted after a trial of one count of attempted murder.  He appealed that conviction on three grounds based on misdirections by the learned trial judge in the course of the summing up.
3. [3]
   The grounds of appeal were that a miscarriage of justice occurred because the learned trial judge:

   1. (a)
      Ground 1: misdirected the jury that the defence of self-defence need only be considered if they accepted the evidence of the appellant as truthful and reliable;
   2. (b)
      Ground 2: failed to adequately direct the jury in relation to the defence of self-defence under s 271(2) and s 272 of the Criminal Code (Qld):

1. by not directing the jury on the meaning of “assault”;
2. by not directing the jury that on the Crown case, the complainant was not provoked by the appellant;
3. by not adequately directing the jury about the definition of “grievous bodily harm” in the context of the issues to be determined in the case;
   3. (c)
      Ground 3: failed to adequately direct the jury on the use that could be made of prior acts of discreditable conduct by the appellant, and the need to avoid propensity reasoning.

4. [4]
   An application seeking leave to appeal against sentence was abandoned.

Background

5. [5]
   The appellant commenced a relationship in 2011 with the complainant’s former girlfriend.^[1]  Prior to the offending the subject of this appeal, the appellant and the complainant had been involved in hostile interactions, some of which resulted in each of them being charged with offences against the other.
6. [6]
   The appellant and complainant gave two different versions of events of what occurred.  The similarities between the two versions were that the appellant went to M’s house on 6 February 2019, where an altercation between the appellant and complainant occurred.  Both the appellant and complainant suffered injuries as a result.

The complainant’s evidence

7. [7]
   The complainant gave evidence that while at M’s house he heard wheelie bins being thrown and someone yelling outside.^[2]  The complainant came outside and saw the appellant,^[3] who was not then armed.^[4]  The appellant was yelling that the complainant had ruined his life.^[5]
8. [8]
   The complainant told the appellant to “fuck off”.^[6]  The appellant turned and walked towards his car, and the complainant turned back towards his house.^[7]
9. [9]
   The complainant heard the appellant running up from behind him, and he was struck in the back of the head.^[8]  The complainant turned around to see the appellant “stabbing at [his] underarm” with a machete.^[9]  The complainant picked up a nearby length of timber to block the machete.^[10]  A fight ensued with each man swinging his weapon at the other.  In the struggle, the complainant suffered a stab wound to the left armpit from the machete,^[11] and the appellant suffered a cut to his arm.^[12]
10. [10]
    The complainant grabbed the appellant’s arm and hand, and “laid straight down on top of the machete” to stop the appellant from getting it.^[13]  While the complainant was lying on the machete, the appellant was saying, “Give me the knife. I’m going to finish you off”.^[14]
11. [11]
    The complainant saw his son came out from the door of the house.^[15]  The appellant left,^[16] and the complainant received assistance from a neighbour who called an ambulance.^[17]
12. [12]
    The Crown case was that the appellant put some of the items in his car with the intention of using them as weapons against the complainant,^[18] and that he parked up the road from the house so not to alert the complainant of his presence.^[19]  Ultimately the Crown case was that the appellant’s attempt to murder the complainant was frustrated by the complainant lying on the machete.^[20]

The appellant’s evidence

13. [13]
    The appellant gave evidence.  He said that about three hours before the offence M told him that she had been unfaithful to him with the complainant.^[21]  M then left the appellant’s house.  The appellant put boxes of M’s belongings on the verandah.
14. [14]
    The appellant said that he went to the complainant’s house to tell M to collect the boxes that were on the verandah of his house.^[22]  He parked on the road,^[23] and threw a wheelie bin to the side as he “pretty hurriedly” entered the property.^[24]  He was then unarmed.
15. [15]
    The complainant ran towards him and said, “What are you fucking doing here, you fucking cunt?”, to which the appellant replied, “I am sick of you ruining my life”.^[25]  The complainant then picked up a lump of wood and started to “swing … [and] jab” it at him.^[26]
16. [16]
    The complainant followed the appellant back to his car,^[27] using the wood to “jab [him] through the door”.^[28]  The appellant swore that he was “pretty scared” that the complainant was going to “smash his face in”, “smash all his teeth out” and “smash” his nose and eyes.^[29]
17. [17]
    The appellant “grabbed something hard” from the back of his car.^[30]  The item was a machete, though unintentionally selected.^[31]  The appellant was “scared as fuck”.^[32]
18. [18]
    The appellant moved the complainant back to his driveway by swinging the machete.^[33]
19. [19]
    He said that he “blacked out for a second or two”,^[34] and then was “laying on top of [the complainant]” who was face down.^[35]  The complainant said, “Let’s leave it and let’s stop this”,^[36] and the appellant walked to his car and drove to the ambulance station.^[37]
20. [20]
    The appellant said that some of the weapons alleged by the Crown were tools he had earlier moved into his car for the purpose of relocating them to his mother’s house,^[38] or had been in his car for a number of years.^[39]  He swore that he did not take them for any violent purpose.^[40]

Ground 1

21. [21]
    This ground is that a miscarriage of justice occurred due to the learned trial judge misdirecting the jury that the defence of self-defence need only be considered if they accepted the evidence of the appellant as truthful and reliable.
22. [22]
    The learned trial judge directed the jury in unexceptional terms as to the burden of proof and that it lay on the prosecution at all times.^[41]  Further, the jury were told that the standard of proof was that beyond reasonable doubt, and that they must acquit if left with a reasonable doubt about guilt.^[42]
23. [23]
    The learned trial judge also gave an appropriate Liberato direction.^[43]  That included the following directions:^[44]

“Often enough, cases are described as ones of “word against word.” You should understand that, in a criminal trial, it is not a question of your making a choice between the evidence of the Prosecution’s principle witness or witnesses and the evidence of the defendant. The proper approach is to understand that the Prosecution case depends upon what you, the jury, accept in that evidence of the principles – the Prosecution’s principle witness was true and accurate beyond reasonable doubt despite the sworn evidence by the defendant. So you do not have to believe that the defendant is telling the truth before he is entitled to be found not guilty.

Where, as here, there is defence evidence, usually one of three possible results will follow. Firstly, you may think the defence evidence is credible and reliable and it provides a satisfying answer to the Prosecution’s case and if so, your verdict would be not guilty. Or you may think that although the Defence evidence was not convincing, it leaves you in a state of reasonable doubt as to what the true position was. If so, your verdict will be not guilty. Or you may think that the Defence evidence should not be accepted, however, if that is your view, be careful not to jump from that view to an automatic conclusion of guilt. If you find the Defence evidence unconvincing, set it to one side. Go back to the rest of the evidence and ask yourself whether on a consideration of such evidence as you do accept, you are satisfied beyond reasonable doubt that the Prosecution has proved each of the elements of the offence in question.”

24. [24]
    His Honour then dealt with topics such as evidence of bad character, flight and post-offence conduct, circumstantial evidence and the prior incidents of violence between the appellant and the complainant.
25. [25]
    Having referred to the elements of the offences, the learned trial judge then turned to the issue of self-defence and directed the jury in these terms:^[45]

“Now, it is important that you pay attention to what I am about to say now. You have been told this by the Barristers and it is correct. A Defence may arise for you to consider, but only if you accept [the appellant’s] evidence as being truthful and reliable. If you do not accept [the appellant’s] evidence, then you may disregard this direction. If you do accept [the appellant’s] evidence, then you must apply this rule. If you accept [the appellant’s] evidence, and his version of events, you need to consider whether [the appellant] has acted in self-defence to an unprovoked attack upon him.”

26. [26]
    Later in the summing up the learned trial judge, in summarising the case put to the jury, said:^[46]

“[Counsel for the Crown] reminded you that the issue of lawfulness only arises via the medium of self-defence, and that only arises if you accept [the appellant’s] evidence, and he urged upon you to reject [the appellant’s] evidence.”

27. [27]
    The appellant’s submission was that the “jury did not have to accept the appellant’s account as truthful and reliable … before they were entitled to consider self-defence.”^[47]  The misdirection effectively reversed the onus of proof and created a circumstance where the jury’s acceptance of the appellant’s evidence as truthful and reliable was a condition precedent to their consideration of self-defence.  There was a possibility that the jury, in considering the appellant not to be truthful and reliable, relied upon the misdirection by failing to further consider whether self-defence applied in the present case.^[48]
28. [28]
    In my respectful view, that submission must be accepted.  The relevant passage contained several aspects which plainly raised the risk that the jury ignored the issue of self-defence if they did not accept the appellant’s evidence:

    1. (a)
       first, even though the jury had been previously directed (see paragraph [23] above) that even if they doubted that the appellant’s evidence was truthful, he might still have a defence, this passage told them that self-defence would only arise for consideration if they accepted the appellant’s evidence as being truthful and reliable;
    2. (b)
       secondly, that was preceded by the opening words: “… it is important that you pay attention to what I am about to say now”; that can only have served to highlight the importance of what was to follow; and
    3. (c)
       thirdly, the jury were told that they “must apply this rule” but only if they accepted the appellant’s evidence.
29. [29]
    The directions in issue here were similar to those considered by this Court in R v Young.^[49]  There the directions included:^[50]

“So, let me recapitulate shortly in respect of the question of self defence. It arises for consideration if you take a certain view of the factual situation. That view of the factual situation essentially involves accepting the accused’s version of the events. On the evidence of Christova and Williams, no question of self defence arises.

…

The considerations essentially are what version of the events do you accept? If you accept the version of events that the accused gave you, you consider self defence.”

30. [30]
    This Court held that:^[51]

“[10] The defect in these directions is that they speak of accepting one version or the other, but fail to address the further possibility that the jury might not be disposed to accept either the version given by the complainants or that given by the appellant… Because the onus of displacing the application of s 271, once it is fairly raised, rests throughout on the prosecution, it was therefore also necessary to direct the jury appropriately in relation to the elements of self defence under the section.

…

[11] His Honour did in fact give directions concerning self defence … but the effect of what he said in the passages set out from the summing up was to remove from the jury consideration of the possibility that they might not be persuaded of either version of what had happened. In that event, the appellant would have been entitled to the benefit of any reasonable doubt that remained as to whether she had been the target of an unprovoked assault capable of giving rise to a claim on her part of having, in inflicting the injuries on the two complainants, been using force to defend herself. In that respect the present appeal resembles Murray v The Queen (2002) 76 ALJR 899, where the trial judge directed the jury to acquit or convict according to whether they “accepted” the accused’s version of events or the version put forward by the prosecution, without adverting to the possibility that neither version might be accepted, in which case the accused would have been entitled to an acquittal. In that instance, like this, the learned trial judge had given the conventional directions about burden of proof, and at some points had correctly stated the issue to the jury; but elsewhere had misstated it in a way that relieved the prosecution of the duty of proving its case beyond reasonable doubt. Here the Crown was bound to establish beyond reasonable doubt that the facts did not give rise to a claim of self defence, which was for the jury to determine.”

31. [31]
    That reasoning is applicable here.  The appeal must be allowed and a retrial ordered.
32. [32]
    Though it is not strictly necessary to do so some consideration of the remaining grounds is warranted.

Ground 2

33. [33]
    This ground of appeal concerns the learned trial judge’s failure to adequately direct the jury in relation to the defence of self-defence under sections 271(2) and 272 of the Criminal Code.
34. [34]
    Section 271 of the Criminal Code provides that:

“271 Self-defence against unprovoked assault

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

“272 Self-defence against provoked assault

1. (1)
   When a person has unlawfully assaulted another or has provoked an assault from another, and that other assaults the person with such violence as to cause reasonable apprehension of death or grievous bodily harm, and to induce the person to believe, on reasonable grounds, that it is necessary for the person’s preservation from death or grievous bodily harm to use force in self-defence, the person is not criminally responsible for using any such force as is reasonably necessary for such preservation, although such force may cause death or grievous bodily harm.
2. (2)
   This protection does not extend to a case in which the person using force which causes death or grievous bodily harm first begun the assault with intent to kill or to do grievous bodily harm to some person; nor to a case in which the person using force which causes death or grievous bodily harm endeavoured to kill or to do grievous bodily harm to some person before the necessity of so preserving himself or herself arose; nor, in either case, unless, before such necessity arose, the person using such force declined further conflict, and quitted it or retreated from it as far as was practicable.”

36. [36]
    Section 271(2) was relevantly considered by this Court in R v Young:^[52]

“Section 271(2) … authorises the use of more extreme force by way of defence extending even to the infliction of death or grievous bodily harm on the assailant. It is available where the person using such force cannot otherwise save himself or herself from death or grievous bodily harm, or believes that he or she is unable to do so except by acting in that way. The belief must be based on reasonable grounds; but, subject to that requirement, it is the defender’s belief that is the definitive circumstance.”

37. [37]
    There are three particulars of this ground: (i) that the learned trial judge did not direct the jury on the meaning of “assault”; (ii) that the learned trial judge did not direct the jury that on the Crown case, the complainant was not provoked by the appellant; and (iii) that the learned trial judge misdirected the jury, and did not adequately direct the jury, about the definition of “grievous bodily harm” in the context of the issues to be determined in the case.

Meaning of assault

38. [38]
    The Crown accepted that that the learned trial judge did not direct the jury as to the meaning of assault in the context of the defences under both sections 271(2) and 272 of the Criminal Code.^[53]
39. [39]
    The appellant’s submission on appeal was that in the context of the present case, where the circumstances included both actual and threatened violence, the learned trial judge should have directed the jury as to the meaning of “assault”.^[54]  The appellant’s evidence was that the complainant, while swinging a piece of timber toward him, was saying things like, “I’ll fuck you up, I’m going to fuck you up, cunt”.^[55]
40. [40]
    The appellant submits that in the absence of directions as to the meaning of “assault”, the jury may have reasoned that the only actual assault on the appellant was physical, i.e. thrusting the piece of wood at the appellant but not actually hitting him,^[56] and that was insufficient to give rise to a “reasonable apprehension of death or grievous bodily harm” as required by both sections 271(2) and 272 of the Criminal Code.
41. [41]
    The Crown submitted that the jury could have been in no mistake about what acts were relied upon for the self defence issue.  Referring to what defence Counsel submitted to the jury, it was picking up the piece of wood and swinging it, thereby making “that threatening behaviour”.^[57]
42. [42]
    Focus on the physical acts without regard to the threats that accompanied them was, in my view, apt to lead the jury to mistakenly consider that they did not have to deal with the different compartments of “assault” presented by the evidence they accepted.  For example, they may have doubted the account of thrusting the wood, or even rejected it, but nonetheless accepted that the verbal threats were made.  There may have been other permutations of what they accepted had occurred.
43. [43]
    The jury should have had the self defence elements laid out and related to the evidence.  In this case this should have included being told to separately consider the question of the requisite assault under both sections 271(2) and 272 by reference to what they may conclude as to the physical acts as well as the threats.
44. [44]
    In my respectful view, the absence of a direction on the meaning of “assault” when used in the context of the defences under both sections 271(2) and 272 was apt in this case to cause confusion.  The absence of such a direction gives rise to an apprehension that the jury may have applied a lay definition to the term in circumstances where a legal definition was required in order to appropriately direct the jury in respect of sections 271(2) and 272 of the Criminal Code.

Provocation

45. [45]
    The appellant submits on appeal that the learned trial judge should have directed the jury that on the Crown case, the complainant was not provoked by the appellant.  This is relevant where section 271(1) of the Criminal Code provides a defence against unprovoked assault, and section 272 a defence against provoked assault.
46. [46]
    The learned trial judge directed the jury as to the defences available:^[58]

“If you accept [the appellant’s] evidence, and his version of events, you need to consider whether [the appellant] has acted in self-defence to an unprovoked attack upon him. If so, that raises a section 271 defence for you to consider. If you consider [the appellant] has provoked [the complainant] by attending the [property], throwing the bins around and entering the yard, then a section 272 defence arises for your consideration.”

47. [47]
    The jury were directed by the learned trial judge in the following terms as to the meaning of provocation:^[59]

“A provoked assault: the second matter that arises is whether the assault – if there was such an assault – whether the defendant provoked it. Provocation means any wrongful act or insult of such nature as to be likely, when done to an ordinary person, to provide [sic] him of the power of self-control, and to induce him to assault the person by whom the act of insult is done or offered. If you conclude that Mr Shields provoked the assault, then this particular defence under section 271 is not available, and you would need to consider section 272.”

48. [48]
    The complainant’s evidence was that he was attacked by the appellant from behind and acted in self-defence.^[60]  On appeal the appellant submitted that the common evidence that the appellant disrupted a wheelie bin was the “only act of provocation”.^[61]
49. [49]
    The appellant submitted that there was no basis in the evidence of the complainant for the jury to find that he had been provoked, and that the appellant’s evidence equally did not permit such a finding.^[62]  It was put this way on appeal:^[63]

“Provocation could only arise on the defence version, however the defence version did not give rise to any situation that could sensibly be described to be a provocative act or insult liable to have provoked any assault upon him, let alone one of using a timber paling and making the threats which he gave evidence that the complainant was making.”

50. [50]
    Ultimately Counsel for the appellant submitted that the jury might have brought into account some aspect of the previous acrimonious relationship between the complainant and appellant, rather than focussing on the sole provocative act, namely the wheelie bins.
51. [51]
    The respondent submitted that the “provocative acts related to the appellant marching up to the appellant’s house, claiming the complainant had ruined his life and throwing bins over against the background of their acrimonious relationship that gave rise to the question of provocation.”^[64]
52. [52]
    In my view, the appellant’s contention must be rejected.  The learned trial judge made it plain that the provocation relied upon was “by attending the [property], throwing the bins around and entering the yard”.  The background was simply something to weigh in assessing whether bin throwing was provocative in the circumstances.  The learned trial judge gave an appropriate direction regarding provocation and this was a matter for the jury to decide.

Definition of grievous bodily harm

53. [53]
    This ground relates to the submission that the learned trial judge misdirected the jury, and did not adequately direct the jury, about the definition of “grievous bodily harm” in the context of the issues to be determined in the case.
54. [54]
    On the first day of trial, the learned trial judge directed the jury:^[65]

“Now, you will hear medical evidence about this and you will be given a precise and long legal definition of [grievous bodily harm] later in the trial. But grievous bodily harm, a short-form of thinking about it is permanent injury to health.”

55. [55]
    In their openings, both Counsel described grievous bodily harm respectively as being a “life-threatening injury … of such a nature that if you don’t get treatment, it’s likely to either endanger your life or give you a permanent injury”,^[66] and “an injury that causes permanent injury to health or likely to endanger life.”^[67]
56. [56]
    His Honour then directed the jury as to the full definition of grievous bodily harm, being:^[68]

“A loss of a distinct part or organ of the body or serious disfigurement or any bodily injury of such a nature that if left untreated would endanger or be likely to endanger life or cause or likely to cause permanent injury to health whether or not medical treatment is or could have been available.”

57. [57]
    However, when later directing the jury as to self-defence, the learned trial judge instructed the jury in the following terms:^[69]

“Grievous bodily harm, as I mentioned to you previously, means any bodily injury of such a nature that, if left untreated, would endanger, or be likely to endanger, life or be likely to cause permanent injury to health.”

58. [58]
    His Honour then went on to direct the jury that the defence under section 272 may apply if the appellant had “had good reason to believe that he was in serious danger of losing his own life, or suffering a very serious injury …”.^[70]
59. [59]
    On redirection, the learned trial judge directed the jury in the following terms:^[71]

“When explaining the definition of grievous bodily harm, you may recall there is a definition which has three parts: the loss of the distinct part or all of the body, that was (a), (b) serious disfigurement. (c) the more general definition and one that you may accept apply in this case is:

Any bodily injury of such a nature that, left untreated, would endanger or be likely to endanger life or cause or likely to cause permanent injury to health.”

60. [60]
    Counsel for the appellant submitted that the jury should have been instructed that the loss of a tooth or teeth would be grievous bodily harm either as the loss of a “distinct part of the body” or potentially as “serious disfigurement”;^[72] and that the jury should have been directed that the appellant’s fear that he would have his face “smashed in”,^[73] would amount to a fear that he would suffer grievous bodily harm or serious disfigurement.
61. [61]
    It was further submitted on appeal that the learned trial judge failed to direct the jury as to what could constitute serious disfigurement or the loss of all or part of a distinct organ of the body.^[74]  Further, that because the emphasis within the directions was on “threat to life or permanent injury” that the jury would not have known that the loss of a tooth, or teeth, could constitute grievous bodily harm.^[75]

62. [62]
    The nature of the directions given by the learned trial judge had a real possibility of confusing the jury as to the definition of grievous bodily harm.  Initially the learned trial judge defined grievous bodily harm as “permanent injury to health”;^[76] at one stage his Honour provided the full definition;^[77] on re-direction the jury were directed that it meant “any bodily injury of such a nature that, if left untreated, would endanger, or be likely to endanger, life or be likely to cause permanent injury to health”;^[78] later in relation to self-defence, as meaning whether the appellant “believe[d] that he was in serious danger of losing his own life, or suffering a very serious injury …”;^[79] and finally on re-direction, as being in “three parts: the loss of the distinct part or all of the body, that was (a), (b) serious disfigurement. (c) the more general definition and one that you may accept apply in this case is: Any bodily injury of such a nature that, left untreated, would endanger or be likely to endanger life or cause or likely to cause permanent injury to health.”^[80]
63. [63]
    In my view, the directions failed to appropriately direct the jury as to what could constitute serious disfigurement or loss of all or part of a distinct organ of the body.  Thus the directions gave rise to a possibility that the jury may have misinterpreted the defences available to the appellant under sections 271(2) and 272 of the Criminal Code.

Ground 3

64. [64]
    The third ground of appeal is that a miscarriage of justice occurred due to the failure of the learned trial judge to adequately direct the jury on the use that could be made of prior acts of discreditable conduct by the appellant and the need for the jury to avoid propensity reasoning.
65. [65]
    The appellant was cross-examined in relation to three prior convictions,^[81] and other altercations that he had been involved in with the complainant.  That he had been in prison for two years was raised in the presence of the jury arose during cross-examination.^[82]  Counsel for the appellant submitted that evidence of his previous convictions was highly prejudicial because it “related to offending that demonstrated the appellant’s propensity to commit offences of violence against the complainant and [M].”^[83]
66. [66]
    In relation to prior convictions, the learned trial judge directed the jury:^[84]

“The fact that someone has a history of criminal behaviour does not necessarily mean he is lying on this occasion, but because of the extent of his criminal record and the kind of offences for which he has been convicted, you should keep in mind the dangers of accepting him to be a truthful witness. You have to exercise caution before you act on his evidence. Although [the complainant] also has a criminal history, it does not relate to convictions of dishonesty. But, if you are satisfied that [the complainant] is a truthful witness after having seen him give evidence and having considered his evidence in conjunction with the other evidence, and given due weight to the dangers about acting on his evidence, you can act on the version of facts [the complainant] has given.”

67. [67]
    The learned trial judge further directed the jury in the following terms:^[85]

“The next topic is bad character of the defendant. Evidence has been given that [the appellant] has convictions for wilful damage, contravention of a domestic violence order, and a charge relating to the acts of going armed so as to cause fear. That fact must not be used by you to say because he has committed these offences before, therefore he must be guilty of the present offence. Its use is more limited than that. It is this: the manner in which the Defence has been conducted has involved a challenge to the truthfulness of the Prosecution witnesses. In evaluating [the appellant’s] evidence and determining what impact it has on your assessment of truthfulness of the Prosecution witnesses, you are entitled to take into consideration that [the appellant] is a person who has convictions for offences of wilful damage, breach of domestic violence order and going armed so as to cause fear. A finding that you reject his evidence and accept that of the Prosecution witnesses may lead you to find him guilty if the challenged evidence proves or helps to prove the elements of the offence, but you must come to any finding of guilt by that process not by assuming that because of his criminal record, he must have committed the offence for which he is now on trial.

Evidence was also heard from the defendant Mr Shields that he has been in jail for two years. Mr Shields, as per the admission, has been on remand for two years for this offence only. It is the usual course, and perhaps unfortunate, that persons once charged with attempted murder are placed on remand. Regardless of Mr Shields’ custody status, he is presumed innocent. The fact, that is, that Mr Shields has been on remand must not be used by you to say or to think that because he is on remand, he therefore must be guilty or is more likely to be guilty of the offences charged. The fact that he has been held on remand has no relevance whatsoever and you must disregard it.”

68. [68]
    The appellant submitted that the directions given by the learned trial judge were insufficient to direct the jury as to their permissible use of the evidence of the appellant’s prior convictions in assessing his credibility.^[86]  Similarly, the appellant contended that the directions did not sufficiently direct the jury as to propensity reasoning that the appellant, having committed prior offences, was a person who was more likely to have committed the charged offence.^[87]
69. [69]
    In my view, this contention should be rejected.  The directions referred to above told the jury in plain terms that:

    1. (a)
       the evidence of previous acts by the appellant must not be used by them to say because he has committed these offences before, therefore he must be guilty of the present offence;
    2. (b)
       the use to which such evidence could be put was limited to evaluating the appellant’s evidence and determining what impact it has on the assessment of truthfulness of his evidence;
    3. (c)
       they could not come to any finding of guilt by assuming that, because of his criminal record, he must have committed the offence for which he was on trial; and
    4. (d)
       the fact that he had been held on remand had no relevance whatsoever and must be disregarded.
70. [70]
    Those directions were in standard form and adequately delivered a warning against propensity reasoning.  It was not, in my view, necessary for the learned trial judge to go further and, as contended,^[88] instruct the jury how their evaluation of evidence should take those matters into account.

Conclusion

71. [71]
    For the reasons above, I joined in the orders made on 23 November 2021 allowing the appeal and ordering a re-trial.
72. [72]
    McMURDO JA:  Save in one respect, the reasons given by Morrison JA accord with my reasons for joining in the orders which were made on 23 November 2021, allowing the appeal against conviction and ordering a re-trial.
73. [73]
    The exception is the appellant’s ground that the jury should not have been directed to consider self-defence under s 272 of the Code, because the evidence did not raise the possibility that the appellant acted in defence against an attack by the complainant which the appellant had provoked.
74. [74]
    If the jury rejected the appellant’s evidence, and also accepted the complainant’s evidence, no question of self-defence arose.  Only if the jury accepted the appellant’s evidence, or at least was not persuaded to reject it, did self-defence arise.  In that event, the prosecution’s argument was that the assault upon the appellant, as the appellant described in his evidence, was one which he had provoked, with the consequence that it was s 272, and not s 271(2), which applied.  The provocation was said to have been the acts of the appellant walking up to the complainant’s house, saying that the complainant had ruined his life and turning over a wheelie bin.
75. [75]
    On the appellant’s evidence, he was then unarmed, and he said “I am sick of you ruining my life” only in response to the complainant saying to him:

“What are you fucking doing here, you fucking cunt?”

76. [76]
    In my view the jury could not have reasonably considered that these acts and words of the appellant constituted any wrongful act or insult of such a nature as to be likely, when done to an ordinary person, to deprive that person of the power of self-control, and to induce him to assault the appellant.  The background of acrimony between the two men did not, in my view, make a difference.
77. [77]
    Consequently, for the reasons given by Morrison JA, as well as for the additional reason that the jury should not have been directed in the terms of s 272, I joined in the orders which were made.