R v WCA[2023] QCA 265

SUPREME COURT OF QUEENSLAND

1. [1]
   MULLINS P:  I agree with Boddice JA.
2. [2]
   MORRISON JA:  I agree with Boddice JA.
3. [3]
   BODDICE JA:  On 25 October 2023, a jury found the appellant guilty of one count of choking in a domestic setting (domestic violence offence).  The appellant was convicted and ordered to serve 18 months imprisonment.  A period of 150 days in pre-sentence custody was declared as time served in respect of the sentence.  A parole release date was set at 20 February 2024.
4. [4]
   The appellant appeals his conviction.  He relies on two grounds.  First, that the verdict is unreasonable or cannot be supported by the evidence.  Second, that the trial judge erred in directing the jury as to self-defence such that his trial miscarried.

Trial

5. [5]
   The Crown case was that the appellant placed his hand around the complainant’s throat, restricting her breathing to the point that she lost consciousness.
6. [6]
   The defence case was that the complainant had unlawfully assaulted the appellant.  The appellant used one hand to apply pressure to the complainant’s carotid arteries, thereby restricting her blood flow causing her to suffer reduced consciousness temporarily, in order to defend himself from her assault.
7. [7]
   The jury were directed as to self-defence, both under ss 271 and 272 of the Criminal Code (Qld).  The jury were also directed that self-defence was not available if they were satisfied that any assault by the complainant was lawful by reason of a defence of dwelling or defence of premises against a trespasser.

Evidence

Complainant

8. [8]
   The complainant and the appellant commenced a relationship in early 2020.  Initially, it was a friendship; subsequently it became intimate.  The appellant would stay at the complainant’s house.  However, if she had her daughter at the house, he would stay at a friend’s house or live in his car.  Initially, the relationship was stable.  After a few weeks it deteriorated rapidly.
9. [9]
   On Monday 15 June 2020, the complainant met some girlfriends for lunch.  The appellant joined their group later that afternoon.  The complainant described him as angry and not making any effort to speak to anybody.  They left and returned home at about 5.00 pm.  Initially, the complainant slept on the sofa.  At about 9.30 pm, she went to bed.  By that time, the appellant was already in bed.
10. [10]
    The next day, the appellant did not speak much.  He was obviously very unhappy.  When the complainant asked what was wrong, the appellant replied that he was angry and did not like the complainant’s behaviour or her friends.
11. [11]
    On Wednesday 17 June 2020, the complainant and the appellant argued before she left the house.  When the complainant returned, the appellant’s possessions were gone and he had left the spare key.  The complainant rang the appellant and they messaged throughout the day.  The appellant said he was still angry.  The appellant also said he had left some items of clothing at her residence.
12. [12]
    On Thursday 18 June 2020, the appellant returned to the house.  He stayed overnight.  The appellant was still not happy.  The next day, 19 June 2020, the complainant told him she was going shopping for her daughter’s birthday party.  During that afternoon, the complainant missed many calls from the appellant.  The appellant also sent text messages, including asking why the complainant would not answer her telephone.
13. [13]
    The complainant said when she arrived home later that afternoon the appellant was aggressive, shouting and screaming at her.  He said the complainant was an embarrassment and a bad mother.  The complainant said she asked him to calm down and to lower his voice.  They continued to argue and the complainant said, “I want you to leave and not come back.”
14. [14]
    The complainant recorded their interactions.  Those recordings were played to the jury.  The appellant was recorded as saying the complainant had been “atrociously drunk” on Monday; that the only time he had woken up with all his clothes wet was when he lived with her; that she was such an alcoholic; and that she had missed a FaceTime call with her daughter.  The complainant was recorded as telling the appellant to do his own washing and that she was not “Your fucking mother.”
15. [15]
    The complainant said she concluded the recording to send a Facebook message to the wife of one of the appellant’s friends, MJ, asking her to pick him up or she was going to call the police.  The complainant did not hear back from MJ.  The complainant said the argument kept going; she was telling him to leave, pushing him towards the door.  She remembered being near the front door.  She next remembered waking up on the floor.
16. [16]
    The complainant said she was pushing the appellant with both hands to his chest area.  He moved towards her, grabbing her throat with, she thought, one hand.  The appellant was shouting and screaming, calling her a psycho, saying he was going to kill the complainant.  He just got angrier and angrier.  The complainant said the appellant “ended up strangling me”.
17. [17]
    The complainant was screaming, “get out, get away”.  She was grabbing at anything she could hold.  Her right hand grabbed the appellant’s hair.  She struggled while the appellant had his hand around her throat.  His fingers were on either side, under her jaw.  The appellant squeezed her throat.  The complainant said her breathing was restricted and she lost consciousness.  When she regained consciousness, she was on the floor.
18. [18]
    The complainant did not have any communication with the appellant after she regained consciousness.  She understood he was downstairs speaking with police.  She did not see the appellant leave the apartment.  The complainant did not call the police, but police did attend that evening.  They recorded their interactions on body-worn cameras.
19. [19]
    The complainant was recorded as telling police “he strangled me [INDISTINCT] a little bit. … around my neck”.  The complainant said she wanted the appellant to leave because he was getting really aggressive.
20. [20]
    The complainant was asked whether anybody else had been present because the appellant had said there was a neighbour upstairs who came down.  The complainant agreed a neighbour had come down.  The complainant had been screaming because “he had his hands around my neck”.  The complainant said she was trying to push the appellant out of her apartment.  The appellant was saying he “wanted his stuff”.  The complainant said she would send it to him.  The police also asked the complainant about what appeared to be a bruise spreading down the side of her face.  The complainant said it was a “real kerfuffle”, she just wanted him out.
21. [21]
    In cross-examination, the complainant said that after she learnt the appellant slept in his car, she asked him to come and live with her.  He did not stay on the nights her daughter would come to stay.  The complainant accepted that she was required to undertake, on a random basis, testing to determine the extent of her alcohol use as part of her parenting orders.  That order had been in place well before she first met the appellant.  The complainant accepted her ex-husband had made allegations that she had been abusive and negligent towards their daughter.  She had been seeing a psychiatrist and psychologist for a long time and had previously been diagnosed with an anxiety disorder.  She denied having previously been diagnosed with an alcohol misuse disorder.  She previously suffered panic attacks, but had not done so for a long time.  She accepted she was medically retired and could not look for work because she suffered from anxiety and poor concentration.
22. [22]
    The complainant and her ex-husband each had domestic violence orders against the other; their daughter was named in each of those orders.  The complainant accepted she had previously pleaded guilty to breaches of a domestic violence order.  The complainant also accepted she had said in the past that she drinks too much.  The complainant accepted the appellant did not want her to drink as much as she did.
23. [23]
    The complainant accepted that during their relationship, the appellant would go to work each weekday, leaving early in the morning and returning around 4.00 pm.  On 23 May 2020, the complainant went to a birthday function.  She had quite a few drinks that day.  She did probably tell the appellant that she was “very legless”.  She was collected by the appellant around 8.00 pm.  They had an argument about the fact that she went out with her friends.  The next day, the appellant told her he was so concerned about her he thought he might have to call an ambulance.  He was concerned that she might have stopped breathing that night.
24. [24]
    The complainant accepted that between 23 May and 19 June 2020, the relationship started to be a source of conflict.  One source of dispute was the complainant going out drinking with her friends.  The complainant also accepted that on 15 June 2020 she was upset with the appellant because he did not want to interact with her friends.  The complainant accepted she had missed calls from her daughter.  She denied passing out drunk when she arrived home.
25. [25]
    The complainant accepted that on 17 June 2020 there were text messages from the appellant raising concerns that there was a side of her she could not control; that he had been unable to wake her up on 15 June 2020 because she was so intoxicated on the couch; and that she had missed FaceTime calls with her daughter on 15 June 2020.  The complainant accepted that in subsequent text messages sent on 17 June 2020, she was critical of the appellant’s interaction with her friends on 15 June 2020 and of his mood and facial expressions.  She agreed things remained tense between them.  She did not like being judged about her drinking and her lifestyle.
26. [26]
    The complainant agreed they had argued on 16 June 2020 about leaving the appellant’s wet laundry in the washing machine.  She told him to leave after they had argued about the laundry.  She agreed the appellant moved out on Wednesday 17 June 2020, but did not tell her he was moving out.  He left his key.  She was upset that he had ended the relationship.  She called and texted him many times between Wednesday and the Friday of that week.  There were 95 text messages, back and forth.  She did not know how many phone calls.  She agreed the appellant was seeking to organise to have some of his possessions returned to him.
27. [27]
    The complainant accepted that on Friday 19 June 2020 she asked the appellant to meet to have dinner.  She agreed she had a male friend over that afternoon.  She did not answer her phone until after he had left the apartment.  The appellant complained about not answering her phone.  She invited him into the apartment.  It was 4.00 pm or 4.30 pm.  The appellant was angry that the complainant had a male friend at the apartment.  She had replied, “Calm down.  Have a shower.  There’s nothing to worry about.  Just a friend.”
28. [28]
    The complainant accepted when she returned to the apartment later, the appellant was very upset with her.  She agreed her recording of their interaction happened five seconds before their physical altercation.  She accepted she was enraged just before the physical altercation.  She was feeling judged by him.  The complainant did not accept the appellant was there simply to obtain his things; he could have “got his stuff out of the laundry whilst I was out and left if he really wanted to leave”.
29. [29]
    The complainant accepted that her voice was raised during their interaction in the apartment.  She tried to push him out of the apartment, using two hands.  She denied striking the appellant a number of times.  She pulled his hair when the appellant was strangling her.  During the course of the struggle, she may have struck the appellant in the face.  She did not strike him with both hands.
30. [30]
    The complainant agreed that in her statement to police she said she had pushed him with two hands, probably in his chest, and that she was trying to strike him to get him out of the house.  She accepted she was upset and distressed when police arrived.  She denied that her ability to breath was impacted by her distress.  The complainant said, “He strangled me until I lost consciousness.  It wasn’t because I was upset … or anything to do with my mental health … I don’t just collapse on a floor.”
31. [31]
    The complainant accepted she tried to contact the appellant after the events that night.  It may have been no less than 28 times.  She denied the appellant, at no stage during the evening, made a threat to injure her.  The complainant said, “He did say he was going to kill me.”  She could not remember why she did not tell police that night the appellant had threatened to kill her.  She did not know why she did not put it in her first police statement.  She denied she had concocted it recently.

Neighbour

32. [32]
    HD, who lived upstairs in the same apartment block, was working late from home on the evening of 19 June 2020.  She heard a lady’s voice downstairs in quite a heated argument.  She then heard a gentleman’s voice start screaming and say, “I’m going to kill you.”  HD stood halfway down on the steps and shouted, “Is everything okay?”  A male opened the door.  He said he just wanted to get his stuff and leave.  HD described the man as quite agitated.  HD said something like, “Maybe you should get your – leave now and get your stuff later.”  He replied, “But she’s a psycho”.  The male seemed to calm down and HD returned to her apartment.
33. [33]
    In cross-examination, HD accepted that the screaming and shouting she heard was in an argument; the woman was not screaming in fear.  She agreed she did not tell police, when they called at her apartment that night, that she had heard the man say, “I’m going to kill you”.  She did, however, hear those words.

Friends

34. [34]
    CJ had been the appellant’s friend for more than five years.  He met the complainant through one of his wife’s colleagues.  He socialised with the appellant and the complainant.  On the evening of 19 June 2020, he was at home with his wife, MJ.  He had spoken to the appellant earlier that afternoon.  The appellant said he was going to have drinks with the complainant and her friends.  CJ called the appellant at 5.53 pm.  The appellant said he had returned to the apartment as the complainant was very intoxicated and he did not want to hang around at the bar.  During the conversation, CJ heard the complainant arrive home.  There was yelling.  He could not hear everything.  He heard the appellant distressfully yelling, “[complainant] stop pulling my hair” several times and then “[complainant] stop hitting me”.  The sounds of the appellant being hit were audible through the phone.  CJ said he told the appellant to get out because it was a bad situation.  The appellant replied that he wanted to grab his stuff.  CJ told him not to worry about it, they could get it tomorrow.  The phone call then cut out.  CJ said he tried calling back, but there was no answer.
35. [35]
    In cross-examination, CJ agreed he had his telephone on speaker.  It was not unusual for him to put his phone on speaker.  The yelling from the complainant sounded quite aggressive.  The appellant stated several times, in a distressed tone, for the complainant to let go of his hair.  He could also hear smacking while the appellant was saying, “Stop hitting me”.  When asked whether the sound was an open-handed slap or a closed-handed punch, CJ said it was maybe a bit of both.
36. [36]
    CJ agreed that when he spoke to police on 18 August 2020, he said he had seen visible injuries on the appellant that evening.  The appellant had red welts on his left cheek and his nose was swollen.  He also agreed he told police he had never witnessed the appellant exerting any kind of aggressive behaviour, even insofar as raising his voice, and that he believed the complainant was a full-blown alcoholic; every time he had seen her, she had been blind drunk.
37. [37]
    MJ had known the appellant since about 2018.  She knew the complainant as an acquaintance, having briefly met her in early 2020.  She had socialised with them on one or two occasions.  During the evening of 19 June 2020, she received a Facebook message from the complainant saying, “Please come and get [the appellant] or I’m calling the police.  He is out of control.”
38. [38]
    MJ said during the telephone conversation between CJ and the appellant, which was on speaker, she heard the appellant say, “[complainant], stop – stop pulling my hair.  Stop hitting me.”  She also heard CJ tell the appellant to leave.  When the appellant replied that he needed to get his possessions, CJ said, “Just get out of there”.  The telephone then went silent.  The appellant sounded distressed.  The noise in the background was associated with a struggle.
39. [39]
    In cross-examination, MJ agreed that during the telephone call she was concerned for the appellant’s welfare.  She heard him use the words “stop pulling my hair” and “stop hitting me” multiple times.  She did not accept that the noise she heard was the sound of flesh striking flesh.  She could not recall whether she replied to the complainant’s Facebook message.

Police

40. [40]
    Jason Grange, a police officer, attended the complainant’s apartment on 19 June 2020.  He spoke to the appellant.  His conversation was recorded on his body-worn camera.  The appellant was advised that he was detained, but not arrested.  When the appellant said he was happy to give a statement, Grange replied “… see what happens tomorrow [INDISTINCT] when you sobered up and she sobered up.”  The appellant told police that the complainant had arrived home at around 5.30 pm.  He was already at home.  The complainant was disappointed or upset with “the way that I was … given that I’d been drinking for an hour” and how intoxicated he was “and basically assaulted me”.  There were at least four strikes to the face with a closed fist.  The complainant lashed out pretty much straight away.
41. [41]
    The appellant told police he tried to get what he had left in her apartment.  The appellant said he had packed up and left at least five times previously.  He had literally left only a few clothes.  The complainant would not let him take his clothes.  The complainant grabbed his hair and pulled and would not let go.  The appellant said he explained to her numerous times that he just wanted to get his stuff and leave.  They were positioned in the hallway between the front door and the kitchen.  The laundry is right next to the front door and his clothes were in the dirty clothes basket in the laundry.
42. [42]
    The appellant told police he pushed the complainant to the ground.  She continued to pull his hair.  He restrained her around the neck at which point she relented, allowed him to get his stuff and he left.  He restrained the complainant for only as long as was necessary.  He estimated it was five seconds.  The complainant was violently out of control.
43. [43]
    The appellant told police that in between restraining her and getting his stuff, a woman came down from upstairs and yelled through the closed door.  The appellant told the woman that he just wanted to get his stuff and leave.  He described her as being shocked and concerned for the appellant.
44. [44]
    The appellant told police he had been with the complainant for four months.  For the last two months it had been bad.  He had to leave because she had a problem with alcohol.  The appellant said he knew the police were coming; he was sure the complainant “already called the police and spun you guys a bullshit story”.  The appellant told police he wanted to press charges for assault.  Police replied that they would give him a card and when “you are not intoxicated”, he could come and speak to them.
45. [45]
    In cross-examination, Grange was asked to demonstrate a chokehold called lateral vascular neck restraint (LVNR), used by police when he had recently completed training at the Police Academy.  It involved placing your arm around the other person’s neck from behind.  The process involved placing his forearm across the throat and using the other arm to pull in and cut off the carotid arteries on either side of the neck.  When it is not used properly, it can interfere with the person’s windpipe.
46. [46]
    In re-examination, Grange said the police trained chokehold involves an approach from behind, so that you can get the required angle to achieve pressure on the correct area.  You cannot undertake that particular manoeuvre from the front.
47. [47]
    Charles Ohtomo was another police officer who attended the complainant’s residence on 19 June 2020.  The appellant told Ohtomo the complainant had, on Monday night, gotten absolutely wasted.  They had an argument.  It was not the first time, but was the sixth or seventh time they had had the same argument about her getting uncontrollably wasted.  The appellant said he had gone to work on 19 June 2020.  He rang the complainant around 2.40 pm.  He spent about an hour trying to call her and message her.  She did not reply, which was very unusual.  When he arrived at her apartment, the complainant was with a male.  The appellant said the complainant had issues with her daughter and when he saw someone there he thought he should not come up.  He was not sure if it was her ex-partner.
48. [48]
    The appellant said when the complainant eventually did get back to him, she told him the person had left, so he went upstairs.  The complainant told him she was going for a drink with her friend, just down the end of the street.  The appellant started drinking.  When the complainant returned, she “just lost it”.  The complainant decided the appellant was too drunk.  The appellant said he was still capable of holding a conversation, which was completely different to how the complainant was on Monday.
49. [49]
    The appellant said the complainant had physically assaulted him.  She struck him at least four times with a closed fist, in the nose and mouth.  When asked by Ohtomo if he had any injuries he said, “Probably not.”  His nose stung when she was hitting him.  The appellant said he wanted to get his clothes and leave, but the complainant was standing between him and the door.  He stopped the complainant by defending himself.  When she was no longer a threat, he took his clothes and left the apartment.  He waited for police to arrive.  The appellant also said he had someone on the phone when it happened.  They were on speaker.  There was also the woman in the apartment above who saw the state he was in when he opened the door.
50. [50]
    Ohtomo went and spoke to the complainant and HD.  Their conversations were also recorded.  The complainant said the appellant strangled her a little bit around her neck.  He had drunk a bottle and a half of whisky.  The complainant played to police her recording of their interaction that afternoon.  The complainant told Ohtomo that she wanted the appellant to leave and that she had commenced screaming because the appellant had his hands around her neck.  She grabbed him by the hair, saying she would like him to get out of her apartment, but he was so aggressive.  The complainant thought she had passed out for a while.
51. [51]
    In cross-examination, Ohtomo said he would not describe LVNR as a chokehold.  It is designed to limit the flow of blood to the brain, through the restriction of blood vessels, causing unconsciousness.  It does not restrict the airway.  Ohtomo accepted that when he was speaking to the complainant that evening, the complainant repeatedly touched her neck.  Ohtomo saw scratches and redness around the complainant’s throat at the outset of their interaction.  Ohtomo said he did not see any injuries on the appellant when he spoke to him that night.
52. [52]
    Ohtomo accepted there were other chokeholds.  In their training, a chokehold was described as a hold that restricts the windpipe and the ability to breath.  LVNR would not constitute a chokehold as the use of the crook of the elbow is for the purpose of leaving room to allow the trachea to be unobstructed so that the airway is not obstructed.  In order to obtain the correct pressure, you approach from behind and pull the person back into your body.
53. [53]
    Glenn Trigger was another police officer who attended the apartment that night.  He also activated his body-worn camera.  During his conversation with the appellant, the appellant requested that they get an ambulance to check him over.  Trigger did not organise an ambulance.  The appellant described the complainant to Trigger as not his ex-partner, “just a woman”.  The appellant called her “a nutcase”.  He said the complainant was an alcoholic with serious emotional issues.  She was violent and had attacked him with a closed fist at least four times in the face.  He had defended himself “within reason”.
54. [54]
    During this conversation, the appellant was told by Trigger that the complainant said that she was trying to push him out the door; that he had grabbed her around the throat; and that she had blacked out.  The appellant replied, “You can believe her all you want … She’s a lying alcoholic.”  When told there were some red marks around her throat, the appellant replied, “As I said, I defended myself … against her violent assault.”  When police said she also had a bruise spreading from her left eye all the way down her cheek, the appellant said, “She fuckin’ did it to herself.  She’s a nutcase.  Like, an absolute nutcase”.
55. [55]
    Kate Gynther undertook the investigation of the complainant’s complaint.  She interviewed the appellant on 18 August 2020.  That interview was recorded and played to the jury.  During the interview, the appellant made reference to CJ and MJ as potential witnesses.  Gynther sought to obtain formal witness statements from them.  Both declined to provide a statement.
56. [56]
    In the interview with police, the appellant said that:

    1. the complainant was a nutcase, an alcoholic and a narcissist;
    2. she frequently lost her temper and had physically assaulted him;
    3. he was forced to leave the premises on a number of occasions and each time the complainant begged him to come back because she was crazy;
    4. he had been living in his car and the complainant had asked him to come and live with her in late March;
    5. the relationship was fine for about three weeks, but deteriorated very quickly;
    6. on the Monday before this incident, the complainant had gone out drinking;
    7. when he went to the hotel at about 5.30 pm, the complainant was incoherent, loud and obnoxious;
    8. when he informed her she needed to be home to FaceTime her daughter she preferred to stay and drink; and
    9. when the complainant returned home at 7.15 pm she immediately fell asleep.
57. [57]
    The appellant also said the complainant had returned home in a state on the evening of 19 June 2020.  When he went to get his work clothes in the laundry near the front door, the complainant assaulted him.  She had her hand in his hair and was yanking his head back and forth very violently, at the same time as punching him repeatedly in the face with a closed fist.  She hit him at least four times.  He was yelling at her to stop pulling his hair and to stop punching him.  The appellant said:

“At that point, I became fearful that I was gonna suffer grievous bodily harm in the form of a broken jaw, broken cheek bones, broken nose, permanent disfigurement in the form of shattered eye sockets and lost teeth, so I was forced to defend myself under section 271, sub-section, 2, of the self defence law, which states that a person who is fearful of grievous bodily harm may defend themselves against an attack with such force, even though that force may result in the grievous bodily harm or murder of another person, further to that, the assault from [the complainant] was unprovoked … And my response was the most delicate possible way of stopping the assault and preventing any grievous bodily harm from occurring to myself.”

58. [58]
    The appellant told police he wrestled the complainant to the ground.  As she had one hand in his hair and the other hand was wildly striking him, restraining her by grabbing her arms was not an option.  Instead, he cut off the carotid arteries on either side of her neck with one hand.  It took three or four seconds to start losing consciousness.  When she let go of his hair, he let go of her throat and removed himself.  He described being punched in the head as like getting hit by a brick.
59. [59]
    When the appellant was told the complainant’s version, the appellant denied the complainant asked him to leave; did not recall the complainant pushing him, but said when he went to leave and get his clothes out of the laundry on the way out, the complainant grabbed him by the hair and started to assault him; and accepted he did yell at her to stop pulling his hair and to stop hitting him in the face.  He described it as pleading with her very loudly to stop assaulting him.
60. [60]
    The appellant said he put very, very little pressure to the complainant’s throat; “I could of done a lot more damage, I could of squeezed a lot harder, I was very, very well aware of exactly what I was doing, how hard I was squeezing her and the effect it would have on her, cutting off the carotid arteries, okay, she was never in any danger of suffering any severe damage.”  The appellant said he had martial arts training in the art of self-defence.
61. [61]
    Gynther also obtained a recording of a triple zero call made by the appellant on 19 June 2020.  In that recording, in response to a question of what was the emergency, the appellant said, “The emergency is I suspect you’ve just received a phone call from the woman who lives there saying that I assaulted her which I absolutely fuckin’ did not.  She assaulted me.  I have witnesses and I am fuckin’ over, the fuckin’ bullshit”.
62. [62]
    In cross-examination, Gynther accepted there were QPRIME reports of the complainant’s ex-partner in relation to:

    1. a request for police advice after the complainant had verbally berated him whilst intoxicated and lightly slapped him on the back;
    2. DV allegations and alcohol abuse, including an allegation that the complainant regularly drove whilst under the influence of liquor; and
    3. allegations the complainant drank excessive alcohol and argued in front of their daughter.
63. [63]
    There was also a report in which the complainant’s ex-partner was named as the aggrieved in a domestic violence incident and the complainant was the respondent.  There was a further complaint in which the complainant and her child were named, with the allegation being the complainant had taken their daughter away for the night without telling her ex-partner.  The reports covered a period of four years.
64. [64]
    Gynther agreed that as a police officer she had been trained in LVNR.  Police were not trained in any carotid artery restraints that were done from the front.
65. [65]
    Benjamin Henderson, a police officer who was in attendance during the interview with the appellant on 18 August 2020, agreed he was trained in the use of LVNR.  He had never utilised it in his 19 years in the police service.  It was considered the most dangerous chokehold available.  It was only to be used if there was a fear of death or grievous bodily harm.  He would only use that neck restraint if he had no other use of force available.  Henderson had previously trained in Taekwondo, achieving a first dan black belt.  He denied he had been trained in chokeholds as a consequence of that Taekwondo.  Henderson said he had never been trained in one handed restraints from the front.  He had never heard of it being done in the police force, or any other law enforcement-type setting.  He was trained in Taekwondo for over 10 years.  During that training, he had never seen or heard of a vascular neck restraint performed with one hand from the front.  He had not seen it performed in any other genre of martial arts.

Medical

66. [66]
    Dr Louise Wilson examined the appellant on Friday 26 June 2020.  The appellant gave a history of having had a “nasty couple of months”.  He said he had been punched by an ex-girlfriend.  He continued to suffer pain to the nose and the back of the skull.  His front teeth were painful, but not loose.  His jaw was okay.  There was no double-vision.  Dr Wilson arranged for an x-ray of the appellant’s nasal bone.  It revealed no evidence of any fracture.  Dr Wilson agreed the appellant’s nose was puffy and swollen.  She ordered an x-ray as she thought there may well have been a crack in it.

Appellant

67. [67]
    The appellant gave evidence that after he and the complainant had spoken for a couple of weeks via phone or text message, the complainant invited him to stay at her apartment.  The initial agreement was that he would stay in the spare room and would not be there when her daughter was at the apartment.  After about two weeks, their relationship became intimate.  After six weeks or so, the complainant’s behaviour deteriorated and they had arguments, usually as a result of the complainant’s intoxication.  The appellant would be forced to leave the premises to avoid the abuse.  He would go and stay at CJ and MJ’s house two streets away.  The complainant would beg him to come back.
68. [68]
    At the start of the week before the incident, the complainant had returned home very drunk and passed out on the couch.  She missed a FaceTime call with her daughter.  The appellant said he realised that if the complainant was not willing to give up alcohol for her daughter, he had no chance.  On the Wednesday, he removed his possessions and left his key.
69. [69]
    On Friday 19 June 2020, the appellant and the complainant were to meet up to go out to dinner.  The appellant said he arrived in the afternoon, but could see the complainant was in her apartment with another male.  He stayed downstairs.  He unsuccessfully tried to ring her and text her.  Eventually, the complainant rang him back and said the person had gone and he could come up to the apartment.  When he did so, she told him she was going for a drink with her friend.  That was about 4.30 pm.  The appellant said he decided to teach the complainant a lesson by becoming intoxicated.  He drank one-third of a bottle of whisky in the space of an hour.  He was quite drunk.
70. [70]
    The appellant said when the complainant returned, they began to argue as the complainant was upset and angry he had been drinking.  He went to take his remaining clothes from the laundry and leave the apartment.  As he did so, the complainant grabbed him by the hair, yanking his head back and forth with one hand, whilst using her other hand to upper cut him in the face.  She directly hit the bridge of his nose at least four times.  He was yelling at her to let go of his hair and to stop hitting him, but the complainant continued to strike him and hold his hair.  The appellant said:

“… as a highly-trained martial artist, I’m very competent at putting people to the ground, so I did so in a safe and controlled way.  The floor was carpeted, so there was no risk of her striking her head on the ground.  And once I put her on the ground, there was a solid backing behind her, I was able to execute a carotid artery restraint.  Now, because I was in front of her – not behind her – I was able to execute a carotid artery restraint from the front.  Now, the carotid arteries run up either side of the neck there.  Where they are most accessible is up underneath the jaw.  Now, if you put your hands under there gently, you can feel your pulse very, very strongly.  So in order to properly execute a carotid artery restraint from the front, you simply put your hands up under there – which is the evidence that the complainant gave that I did – which is exactly what I did – and then you apply pressure to restrict the arteries.  Now, the benefit of doing that from the [front] is (a) you can see what you’re doing; (b) you’re using your hands so you’re a lot more capable of avoiding the trachea.  And thirdly, because you’re putting your hands up under here, you’re actually nowhere near the trachea and therefore you significantly reduce the risk of damaging the trachea.  Now, if you do damage the trachea with the carotid chokehold, what happens is it causes it to swell.  Now, that doesn’t occur straight away.  It takes a couple of hours and it’s called late onset oedema.  It’s when the trachea swells as the result of an injury and blocks the airway, which causes people to die.  Now, I am highly trained in martial arts.  I have a first-hand black belt.”

71. [71]
    The appellant said he knew exactly what he was doing when he executed the carotid chokehold.  There was never any danger to the complainant.  He applied pressure for about three to four seconds.  The blood flow got cut off to her brain.  She started to lose consciousness and became weak and let go of his hair.  At no point did she actually lose consciousness.  She became weak and he was able to get away from her.  That was the benefit of a carotid artery chokehold.
72. [72]
    The appellant said as soon as the complainant let go of his hair, he got his clothes and left the apartment.  As he was putting on his thongs, he heard a neighbour call out, “Is everyone okay?”  He opened the door and said, “She’s a psycho and I just want to get my things and leave.”  At some point, he spoke to CJ by phone.  He was on the phone at the time the complainant attacked him.
73. [73]
    In cross-examination, the appellant denied he was very angry with the complainant that night.  His state of mind was disappointment.  He was sick of putting up with all the abuse which resulted from her drinking.  The abuse included verbal abuse, belittling, slapping and threats.  The complainant would regularly lose control and there would be a tirade of rant and abuse.  He did not report any assault to police.  He loved the complainant and did not want to cause any problems for her.
74. [74]
    The appellant denied he was very angry about it during his interview with police.  He agreed he repeatedly referred to her drinking throughout the interview; that was because it was a major source of contention in the relationship.  He had taken his stuff and left the key on Wednesday.  She asked him to come back so they could rekindle their relationship.  He wanted to try to have a conversation to explain it was at an end.
75. [75]
    The appellant denied he snapped when the complainant was pushing him in the chest, trying to get him out of the door.  He used one hand because that was the only way you can execute a carotid chokehold; you cannot do it with two hands.  He did not put his hand on her neck until she was on the ground.  In order to execute a carotid chokehold, he needed a firm backing behind the person.  That was why the LVNR is done by police from behind.  When you do it from the front, you need a solid surface behind them, either a floor or a wall.  He acted on instinct.  He took the complainant to the ground by using a trip manoeuvre.  He was able to control the way she went to the ground.  He then executed a carotid artery chokehold so that she would lose blood flow to her brain.  You do not instantly pass out.  Far more violent and damaging options would have resulted in serious injury to the complainant.  His strategy was to end it as safely and quickly as possible.
76. [76]
    The appellant said he was trained in Taekwondo in that front hold.  A carotid artery restraint is any restraint that restricts the carotid arteries.  It does not matter how it is done.  He denied it was a move he had made up.  He denied he restricted her breathing.  If he had restricted her breathing, there would have been evidence of damage to the trachea, such as swelling.  He denied he threatened to kill the complainant.
77. [77]
    The appellant estimated he drank one-third of a bottle of whisky over approximately one hour.  By the time the complainant arrived home, he was feeling slightly intoxicated.  By the time he was speaking to police, he was slurring his words a little bit.  That indicated his level of intoxication.  When the complainant came home, the alcohol had not taken effect.

Consideration

Ground 1

78. [78]
    In determining a ground that a verdict was unreasonable, an appellate court is to undertake an independent assessment of the record as a whole, to determine whether it was open to the jury to be satisfied of the appellant’s guilt of the offence, beyond reasonable doubt.
79. [79]
    The relevant task was restated in Dansie v The Queen:^[1]

“8. … the function to be performed by a court of criminal appeal in determining an appeal on the unreasonable verdict ground of a common form criminal appeal statute was settled by this Court in M. The reasoning in the joint judgment in that case establishes that ‘the question which the court must ask itself’ when performing that function is ‘whether it thinks that upon the whole of the evidence it was open to the jury to be satisfied beyond reasonable doubt that the accused was guilty’, that question being ‘one of fact which the court must decide by making its own independent assessment of the evidence’.

9. The joint judgment in M made clear that ‘in answering that question the court must not disregard or discount either the consideration that the jury is the body entrusted with the primary responsibility of determining guilt or innocence, or the consideration that the jury has had the benefit of having seen and heard the witnesses’. The joint judgment equally made clear how those considerations are to impact on the court’s independent assessment of the evidence. That was the point of the carefully crafted passage in which their Honours stated:

‘It is only where a jury’s advantage in seeing and hearing the evidence is capable of resolving a doubt experienced by a court of criminal appeal that the court may conclude that no miscarriage of justice occurred [on the unreasonable verdict ground]. That is to say, where the evidence lacks credibility for reasons which are not explained by the manner in which it was given, a reasonable doubt experienced by the court is a doubt which a reasonable jury ought to have experienced. If the evidence, upon the record itself, contains discrepancies, displays inadequacies, is tainted or otherwise lacks probative force in such a way as to lead the court of criminal appeal to conclude that, even making full allowance for the advantages enjoyed by a jury, there is a significant possibility that an innocent person has been convicted, then the court is bound to act and to set aside a verdict based upon that evidence. In doing so, the court is not substituting trial by a court of appeal for trial by jury, for the ultimate question must always be whether the court thinks that upon the whole of the evidence it was open to the jury to be satisfied beyond reasonable doubt that the accused was guilty.’” (citations omitted)

80. [80]
    In R v Miller,^[2] this Court said:

“An appellant who contends that the verdict of the jury was unreasonable or that it was unsupported by the evidence must identify the weaknesses in the evidence and must then also demonstrate that these weaknesses reduced the probative value of the evidence in such a way that the appellate court ought to conclude that even making full allowance for the advantages enjoyed by the jury there is a significant possibility that an innocent person has been convicted.  The mere identification of weaknesses in the prosecution case is not enough to sustain the ground.  As Brennan J said in M v The Queen, and as criminal practitioners and trial judges know very well, it is a sad but salutary experience of counsel for the defence that the prosecution’s ‘weak point’ is often brushed aside dismissively by a jury satisfied of the honesty of the prosecution witness.” (citations omitted) (emphasis in original)

81. [81]
    The appellant submits that the verdict of the jury was unreasonable because a reasonable doubt ought to have been raised in the minds of the jury, as there was no clear evidence of restricted breathing, as particularised by the Crown.  Further, there was:

    1. compelling, independent evidence which contradicted the complainant’s account, including the evidence of CJ and MJ, who did not hear the complainant tell the appellant to leave;
    2. the complainant’s recording of her interactions with the appellant, which were not supportive of her account;
    3. evidence that the complainant suffered panic attacks, had a tendency towards violence and had assaulted her ex-husband in the past;
    4. evidence supportive of injuries on the appellant’s face, consistent with his account; and
    5. documentation supportive of alcohol abuse by the complainant and excessive attempts to contact the appellant prior to 19 June 2020.
82. [82]
    Whilst there were matters raised in the evidence which called into question aspects of the complainant’s evidence, an independent assessment of the record as a whole, supports a conclusion that it was open to the jury to be satisfied, beyond reasonable doubt, of the appellant’s guilt of the offence.
83. [83]
    First, there was evidence from the complainant that her breathing was restricted, albeit in response to a leading question.  In that same answer, the complainant added, “I lost consciousness”.  It was open to the jury to infer the loss of consciousness was due to the restriction to her breathing.  That was particularly so as her evidence was that the appellant had grabbed her throat, not her neck.
84. [84]
    Second, redness was observed by a police officer around her throat, consistent with the chokehold being in the area of her windpipe, not her carotid arteries.
85. [85]
    Third, there was compelling, independent evidence of HD hearing a male say, “I’m going to kill you”, consistent with the complainant’s account.
86. [86]
    Fourth, there was a sound basis for the jury to reject the appellant’s account of having undertaken a chokehold which restricted the carotid arteries, not the windpipe.  The chokehold was executed one-handed, from the front.  There was no support from any of the police officers of such a chokehold being executed from the front.  There was also no support for that type of chokehold being taught in Taekwondo.
87. [87]
    Once the jury rejected the appellant’s account, it was open to the jury to reject, as a reasonable hypothesis consistent with innocence, that the complainant lost consciousness as a consequence of a restriction to her carotid arteries.  The jury were expressly directed that they needed to be satisfied that the loss of consciousness, due to restricted breathing, was the only rational inference.  There is no reason to doubt that the jury did anything other than comply with that direction and it was open on the evidence for the jury to conclude that the only rational inference was that the loss of consciousness was due to restricted breathing, by reason of the appellant’s application of force to the complainant’s throat.
88. [88]
    Fifth, nothing in the evidence of CJ and MJ required the jury to reject the complainant’s account as lacking reliability or credibility.  Whilst CJ gave evidence that the background noise he heard during the telephone conversation was consistent with slapping, MJ described it as being consistent with a struggle.  The complainant’s account was of a struggle between the two.
89. [89]
    Sixth, the complainant’s recording of the events immediately prior to the appellant grabbing her throat was consistent with her account.  She did not suggest she was not shouting.  The recording stopped before any physical interaction.  It was open to the jury to conclude that the appellant’s behaviour was belligerent and, consistent with the complainant’s account, that he refused to leave when subsequently asked to do so.
90. [90]
    Seventh, the Facebook message sent to MJ by the complainant was consistent with the complainant wanting the appellant to leave and his refusing to do so.  The complainant asked MJ to come and get the appellant, or the complainant would call the police.
91. [91]
    Finally, the evidence as to past episodes of violence and alcohol abuse by the complainant were matters ultimately for the jury.  None of those matters were of a character which required the jury to reject the complainant’s account of this day as honest and reliable.
92. [92]
    The verdict of the jury was not unreasonable.

Ground 2

93. [93]
    The appellant submits that whilst self-defence under ss 271 and 272 was properly left to the jury, discussions as to whether an assault by the complainant upon the appellant was possibly lawful, which founded a defence of self-defence, initially concerned a defence of dwelling.
94. [94]
    A perusal of the record supports the appellant’s contentions that whether any assault by the complainant upon the appellant was possibly lawful, initially concerned a defence of dwelling under s 267.  Although the trial judge used the words “defence of premises”, the discussion was about a section in the Criminal Code “just before s 271”.  Any discussion of defence of premises against a trespasser arose after the appellant had given evidence and addressed the jury.  It was only at the end of the appellant’s address that the trial judge indicated, for the first time, that defence of premises against a trespasser under s 277 was a matter to be considered by the jury.
95. [95]
    However, the appellant was obviously aware of the separate provision of defence of premises against a trespasser.  Before the trial judge specifically raised that section, the appellant addressed the jury:

“Now, as I said earlier, there are sections of law that invalidate justifications such as self-defence.  These include sections of law such as trespass or defence of dwelling.  Now, in my submission, sections of law such as trespass are not open to the jury to consider in this matter, as they require an element of unlawful occupation.  As the defendant was invited up to the apartment by the complainant, those particular sections of law don’t apply.

However, sections of law such as a defence of dwelling are, on the evidence, open for the jury to consider …”.

96. [96]
    Further, after the trial judge raised defence of premises against trespassers, in the absence of the jury, the appellant was afforded the opportunity to further address the jury.  He did so immediately in the following terms:

“And so, apparently, there’s another section of law now that is going to be put before you, which is defence of premises against trespassers, and it states:

It is lawful for a person who is in peaceable possession of any land –

and it goes on to name some other stuff, structures, vessels etcetera –

to use such force as is reasonably necessary in order to remove therefrom a person who wrongfully remains therein.

Now, the complainant’s evidence was that she invited me up to the apartment.  Therefore, I had a lawful reason to be there, therefore, I am not trespassing.  The evidence in the video that was shown to you is that the defendant said he was leaving.  There was no evidence from the complainant other than her own statements under the – while she was in the witness box that she asked the complai – asked the defendant to leave and, as such and due to the credibility issue, I would invite the jury to reject her assertion that she asked me to leave.  The defendant’s evidence was that he went to leave and then she attacked him.  She at no point asked him to leave.  And, consequently, I would submit to the jury that that section of law must also fail.

…

Furthermore, there are section – sorry, subsection (2), which states:

It is lawful for a person who is in peaceable possession of any land –

etcetera, as we went through in the last one –

to use the force that is reasonably necessary in order to remove therefrom any person who conducts himself or herself in a disorderly manner therein.

In order to find that section of law to be relevant, you would have to find that the defendant was acting disorderly.  It’s clear on the face of the evidence from the videos that the defendant wasn’t acting disorderly.  He suggested that he leave.  He was – said he was going to leave.  The [complainant] never asked him to leave.  Therefore, that section of law must fail.”

97. [97]
    In circumstances where the appellant was without legal representation, it was unhelpful for the trial judge not to have canvassed the applicability of this section with the appellant before he gave evidence and before he addressed the jury.  However, the appellant was clearly aware of the availability of that section and of its constituent elements when giving evidence and was able to address the jury, both before and after it was raised in the absence of the jury.
98. [98]
    In the circumstances, there was no miscarriage of justice by reason of the failure to canvass this issue with the appellant, prior to his giving evidence and addressing the jury.
99. [99]
    The appellant further submits that the trial judge erred in leaving defence of premises against a trespasser, as the appellant had been invited to the premises and the complainant’s account that she had asked him to leave was unsupported by any other witness.  There is no substance in this contention.
100. [100]
     The complainant had given evidence that she had told the appellant to leave and he refused to do so.  There was also the evidence of the Facebook message sent by the complainant to MJ.  If the jury accepted that evidence, any invitation to be on the premises had been withdrawn and the appellant was a trespasser.  In those circumstances, the section did arise for consideration by the jury.
101. [101]
     The directions given to the jury in respect of that section were, however, inadequate.  In summing up, the trial judge directed the jury:

“Now, on [the complainant’s] own account, she gave evidence she did touch [the appellant] without his consent.  She gave evidence she tried to push [the appellant] out of her house and that she ended up in a scuffle with him as a result of that struggle.  She also gave evidence that, in the course of that struggle, she pulled his hair.  In cross-examination, she conceded it was possible she struck him, and, in her body-worn camera interview, she said, I think, she could not remember if she struck him.  Now, I am not suggesting for a second you accept or reject that evidence.  All I am saying is that, from the question of unlawful assault by [the complainant] on [the appellant], his case is that she unlawfully assaulted him.  That is evidence she gave, in summary, that raises the question.

Now, that evidence, if you accept it, might mean that [the complainant’s] assault on [the appellant], to which she admits, was lawful because she was entitled to use reasonable force to try to remove [the appellant] from her apartment.  This is a Defence of premises Defence.  So an assault – and this is at note 7 – paragraph 7 of the note.  An assault by [the complainant] on [the appellant] might be lawful if you are satisfied beyond reasonable doubt that [the complainant] was in peaceable possession of her apartment, [the appellant] wrongfully remained in her apartment – sorry – I got it wrong again, [the appellant] – that [the complainant] – maybe I said the right thing – [the complainant] was in peaceable possession of her apartment, [the appellant] wrongfully remained in her apartment, the force [the complainant] used to remove [the appellant] was reasonably necessary to remove him from the apartment, and that force did not in fact cause him GBH, grievous bodily harm.

Then, if you accepted all of that and you found that [the complainant] did assault [the appellant] in the way she described, you might find that her assault on [the appellant] was lawful and self-defence would not arise because [the appellant] was not subject to an unlawful assault.

You might also conclude that [the complainant’s] acts of assault on [the appellant] were justified because of his behaviour, depending on the findings of fact you make.  That might give rise to another form of the Defence of premises Defence.  That arises if you are satisfied that again [the complainant] was in peaceable possession of her apartment.  In this case, [the appellant] conducted himself in a disorderly manner in her apartment.  This is at paragraph 8 of the note.  And again the force she used to remove him was reasonably necessary and that force did not cause GBH.

If you think either Defence is made out to any assault you find by [the complainant] on [the appellant], then that assault will be lawful and the Crown will have excluded this Defence on its first element.  I remind you, of course, that [the appellant’s] case is that [the complainant] was the aggressor, that she never told him to leave and that she was the person acting in the most disorderly manner.”

102. [102]
     Notes 7 and 8 concerned a handout provided by the trial judge to the jury.  This handout was provided to the appellant and the Crown prosecutor after the addresses had commenced to the jury.  Such a practice is to be discouraged; any handout to be given to a jury ought to be provided to the parties for their consideration, prior to the commencement of any address.
103. [103]
     Notes 7 and 8 fell under a heading “A lawful assault by [the complainant]?”  The contents under that heading were as follows:

“[6] If you find [the complainant] assaulted [the appellant], that assault might be lawful because she was entitled to use reasonable force to try to remove [the appellant] from her apartment.  This is called defence of premises.  It can arise in two ways.

[7] A defence for an assault by [the complainant] might if you are satisfied BRD that:

1. [the complainant] was in peaceable possession of her apartment; and

2. [the appellant] wrongfully remained in her apartment; and

3. The force [the complainant] used to remove [the appellant] was reasonably necessary to him from the apartment; and

4. That that force did not cause GBH.

[8] Alternatively, defence for an assault by [the complainant] might be made out if you are satisfied BRD that:

1. [the complainant] was in peaceable possession of her apartment; and

2. [the appellant] conducted himself in a disorderly manner in her her apartment;

3. The force [the complainant] used to remove [the appellant] was reasonably necessary to him from the apartment; and

4. That that force did not cause GBH.”

104. [104]
     Whilst the contents of these notes set out the elements for the jury to consider, the trial judge did not direct the jury as to how it was that the appellant was a trespasser and as to what evidence constituted conduct in a disorderly manner by the appellant.  Both matters required specific attention.  Neither had been particularised by the Crown and there were conflicting accounts as to the circumstances of the appellant remaining on the premises and as to his conduct at the relevant time.
105. [105]
     It was incumbent on the trial judge to explain to the jury that the appellant became a trespasser if they accepted that the complainant had asked him to leave and he refused to do so.  Further, what was said to be the disorderly conduct was an element for consideration by the jury in considering this issue.
106. [106]
     The appellant further submits that the directions to the jury were deficient in that the trial judge’s directions did not inform the jury of the assault the appellant said caused him to act in self-defence, namely, that the complainant had grabbed his hair, swung his head around violently and punched him multiple times in the face.  A reading of the summing up as a whole supports this contention.
107. [107]
     The trial judge correctly directed the jury that the defences had to be considered in light of their findings as to the facts, and further:

“Now, both [the appellant] and [the complainant] agree there was a physical struggle of some kind and [HD] heard such a thing, and that [the appellant’s] hand or hands – [the appellant] says ‘hand’, but a hand or hands came into contact with [the complainant’s] throat.  They differ, however, as to how the struggle started, progressed and ended.  So you need to make findings as to how the struggle started, progressed and ended.  This involved the application of the general principles I have suggested to you about how you might assess the evidence of [the complainant] – sorry – [the appellant], and indeed everybody else.”

108. [108]
     However, the directions thereafter failed to address the appellant’s evidence of the assault he was defending: a violent assault of grabbing his hair, violently shaking his head and at least four punches to the face.
109. [109]
     The trial judge directed the jury as follows as to the assault by the complainant:

“Now, the first element is that there is an unlawful assault by [the complainant] on [the appellant].  You can easily understand why that is the starting point of the first self-defence Defence.  It could be argued it is not self-defence if you are not defending yourself from something.  That something, on this mode of self-defence, is an unlawful assault by [the complainant].  That must be the assault to which [the appellant] is responding.  An assault is any touching by one person or another without that person’s consent.  It is unlawful if it is not authorised, justified or excused by law.  So what we are looking at, at the moment, is whether there was an unlawful assault by [the complainant] on [the appellant].  That is the first element.

Now, on [the complainant’s] own account, she gave evidence she did touch [the appellant] without his consent.  She gave evidence she tried to push [the appellant] out of her house and that she ended up in a scuffle with him as a result of that struggle.  She also gave evidence that, in the course of that struggle, she pulled his hair.  In cross-examination, she conceded it was possible she struck him, and, in her body-worn camera interview, she said, I think, she could not remember if she struck him.  Now, I am not suggesting for a second you accept or reject that evidence.  All I am saying is that, from the question of unlawful assault by [the complainant] on [the appellant], his case is that she unlawfully assaulted him.  That is evidence she gave, in summary, that raises the question.”

As identified above, nowhere in the directions in respect of self-defence did the trial judge remind the jury of the appellant’s evidence of what he said was the assault upon him by the complainant.  It was that evidence the jury had to first consider, because the remaining issue had to be considered in the context of the complainant’s assault.

110. [110]
     There is one other aspect of the summing up which deserves comment.  The trial judge subsequently directed the jury as to the consequence of the appellant having elected to give evidence and as to how that evidence was to be treated by them, depending upon their assessment of its credibility and reliability.  Whilst that direction was in accordance with Liberato,^[3] in circumstances where there was a clear factual dispute between the complainant and the appellant as to what had transpired in the apartment that night, including who initiated physical contact, it would have been more appropriate for that direction to have been given at the logical and usual point of the summing up, namely, when the jury is being directed as to the assessment of the evidence at trial.

Conclusion

111. [111]
     An independent assessment of the record as a whole established that it was open to the jury to be satisfied of the appellant’s guilt beyond reasonable doubt.
112. [112]
     However, the directions given to the jury in relation to the applicability of a defence of dwelling and a defence of premises against trespassers, in their consideration as to the lawfulness of an assault by the complainant on the appellant, failed to properly direct the jury as to central aspects of those defences, namely, as to the element of the appellant being a trespasser and as to the element of the appellant conducting himself in a disorderly manner.  They also failed to direct the jury’s attention to the appellant’s account of the assault upon him by the complainant.
113. [113]
     As the lawfulness of any assault by the complainant on the appellant was an issue squarely raised on the evidence for consideration by the jury in assessing the availability of a defence of self-defence, the failure to properly direct the jury on these matters deprived the appellant of a fair chance of acquittal.  Accordingly, these failures gave rise to a miscarriage of justice.^[4]  The respondent did not at the hearing of the appeal suggest that, if the Court were satisfied that there were errors in the directions given on self-defence, it was an appropriate case for the application of the proviso in s 668E of the Criminal Code.

Orders

114. [114]
     I would order:

1. The appeal be allowed.
2. The verdict below be set aside.
3. There be a retrial.