R v Markovski[2023] QCA 52

SUPREME COURT OF QUEENSLAND

1. [1]
   BOWSKILL CJ:  On 1 December 2021 the appellant was convicted of the murder of Mr Frescon.  He was charged and tried jointly with two others, Appleby and Torralba.  At the close of the Crown’s case, the learned trial judge ruled that Torralba had no case to answer and he was discharged.  The jury acquitted Appleby on the charge of murder, and was unable to reach a verdict on the alternative, manslaughter – although he later pleaded guilty to manslaughter.  The jury found the appellant guilty of murder.
2. [2]
   The appellant appeals his conviction on the ground that the learned trial judge erred in failing to leave for the jury’s consideration a defence of aiding in self-defence under s 273 of the Criminal Code, together with s 24 of the Code (mistake of fact).  As articulated in the amended notice of appeal, the grounds of the appeal are:

   1. (a)
      counsel for the appellant erred in conceding that a defence pursuant to s 273 of the Code was not available to the appellant;
   2. (b)
      despite the concession of counsel for the appellant at trial the learned trial judge had a duty to leave the defence pursuant to s 273 of the Code together with s 24 for consideration by the jury;
   3. (c)
      the learned trial judge erred in failing to leave a defence pursuant to s 273 of the Code for consideration by the jury with the operation of the provisions of s 24 of the Code; and
   4. (d)
      the failure to leave the exculpatory provisions in ss 273 and 24 of the Code for consideration by the jury resulted in a miscarriage of justice as the appellant was deprived of the chance of an acquittal that was fairly open.
3. [3]
   Counsel for the appellant confirmed that these paragraphs ought be read as a narrative describing essentially one ground of appeal – captured by (c).  The appellant does not contend that his trial counsel was incompetent.
4. [4]
   The incident that resulted in Mr Frescon’s death was captured on CCTV footage from the loungeroom of his home.  It happened in the early hours of 18 January 2019 (starting around 1.36 am).
5. [5]
   There were a number of admissions made at the trial.  They included that, on the previous evening, 17 January 2019, Appleby and the appellant were at the appellant’s home at Broadbeach.
6. [6]
   A witness, Duffy, gave evidence that he had known the appellant for about a year prior to 17 January 2019.  On that night, he went to visit the appellant at his apartment at Broadbeach.  Appleby was also there, and a third [unnamed] person.  Duffy described the appellant and Appleby as being “on drugs and fucked, like, off their heads” and “scattered”, meaning when “someone’s brain is all over the place” (or drug-affected).  Duffy said that the appellant and Appleby took off “about 11-ish”, and that there had been some discussion about what they were doing before they left.  That discussion was that “[s]omeone owed Tom [Appleby] money and he was going to go get it” and the appellant said that he would go along and help.  Duffy agreed in cross-examination it was possible Appleby said he was going to try and get some drugs, rather than money.  He also accepted that, after the appellant said he would help, Appleby said “[n]o, don’t come and help me, I’ll just go and get it myself”.
7. [7]
   Duffy said he saw them pack some knives, “black-handled kitchen knives”, into a green shopping bag.  He thought it was both the appellant and Appleby that did this, but said he could not be sure.  Duffy recalled asking them “why take something sharp if you’re just going to collect money?”, or words to that effect.  He could not recall their response.  At some point before the appellant and Appleby left, Duffy said the appellant went upstairs and came back down with a “Halloween mask thing”, “a ridiculous wolf mask, like you’d wear on Halloween”.
8. [8]
   Duffy said that the appellant and Appleby left the apartment at about 11 (in the evening), with a third person [Cassidy].  Duffy stayed at the apartment until the next morning.  The next morning, he spoke to the appellant and Appleby on the phone, and then met up with Appleby near the tram station, before going back to the appellant’s apartment with him.
9. [9]
   Duffy agreed in cross-examination that his memory of these events was somewhat unreliable, because he was intoxicated at the time.  It was put to him that he might have been mistaken in his recollection of seeing knives put into a bag.  At the committal hearing, he had accepted that was possible; but when giving evidence at the trial, maintained that was his recollection.  He agreed, however, that there was nothing said or that he observed which suggested the appellant and Appleby were actually planning anything.
10. [10]
    It was admitted at the trial that Cassidy, a friend of the appellant’s, drove Appleby and the appellant from Broadbeach to Brisbane late in the evening of 17 January 2019.
11. [11]
    The witness Cassidy gave evidence that on the evening of 17 January 2019, at around 9 pm, he received a phone call from the appellant, asking him to come down the coast to meet up, have a good time, and get some drugs (ice).  Cassidy arrived at the appellant’s apartment at about 10.30 or 11 pm, and the appellant and another person got into his car and they drove off together, to get drugs “on tick” (meaning, on credit, or to pay for later).  He said they were not carrying anything when he picked them up.  The other person [Appleby] was directing him where to drive.  The appellant was in the front passenger seat.  Cassidy described the appellant as seeming very intoxicated to him, and not being “in his right state of mind”.  Following the directions from Appleby, Cassidy said they arrived at an address at Dutton Park.  Appleby got out of the car, leaving the appellant and Cassidy sitting in the car for about 20 minutes to half an hour.
12. [12]
    Appleby returned to the car, with two additional men, one of whom was Torralba.  The third man (not Torralba) put a duffle bag (or bags) in the boot of Cassidy’s car, and then they all got in the car and the third man directed Cassidy to drive to an address in New Farm.  When they got there, the third man got out, taking the bag(s) with him.  Cassidy was then directed by Appleby to drive to an address at Kelvin Grove.  Cassidy said he overheard a conversation in the back of the car in which Appleby said something like “if he doesn’t give it to me, I might have to take his stuff off him” and then Torralba said something like “we’re not going to do that” or “you shouldn’t do that”.
13. [13]
    It was admitted that Cassidy dropped Appleby, the appellant and Torralba in the vicinity of an address in Hunter Street, Kelvin Grove.  Mr Frescon lived in a unit at this address.  Cassidy’s evidence was that, at this address, the appellant, Appleby and Torralba got out of the car.  Cassidy understood they had gone there to get drugs, because that was the purpose of the trip from the outset.  Appleby told Cassidy to wait there (in the car).  Cassidy said he did not see any of the three men take anything with them when they got out of the car.  He did not see any weapons, and did not hear anyone talking about a weapon.  Cassidy said he stayed in the car, waited for about five minutes and then “got a bad feeling so I drove off”.  He said he “got lost because I didn’t know where I was and then I got a call from [the appellant]”.  He got that phone call about 10 minutes after he had left.  The appellant said that he was by himself and asked Cassidy if he could pick him up.
14. [14]
    Cassidy drove to where the appellant instructed him and, after pulling up on the side of the road, the appellant and Appleby jumped into his car.  Both of them were not wearing their T-shirts, but were holding them in their hands.  Cassidy asked them what had happened, but the men would not tell him, and he soon told them to get out of his car.
15. [15]
    A witness, Lowther, gave evidence that she was also a friend of the appellant’s.  On the evening of 17 January 2019 she came home from work around 8.30 pm, and started drinking (alcohol) by herself, in her bedroom.  Somewhere between “12 and 4 am” (on 18 January 2019) she recalled the appellant coming to her back door, with “Tom” [Appleby].  They came into her bedroom and had a drink with her.  She said the appellant “told me that he robbed and stabbed somebody”, but because she was drinking, she did not really think anything of it at the time.  In cross examination, she agreed the appellant may have only said that “someone was killed as a result of going to a person’s place to get drugs”, rather than saying that he had done anything.  She said she wasn’t really listening and “didn’t process it”.  Eventually, she felt sick and wanted to go to sleep so she asked them to leave.
16. [16]
    Lowther lived with her sister.  Her sister gave evidence of getting out of bed in the morning on 18 January 2019, about 8 or 9 am, and finding the appellant asleep on the couch in the loungeroom.
17. [17]
    On 18 January 2019, at about 3 pm, the police arrived at Mr Frescon’s unit and found him there, deceased.  It was admitted that the death of Mr Frescon was caused by a stab wound into the right neck extending down to the chest.
18. [18]
    Photographs of the outside and inside of the unit taken by police were in evidence (exhibit 1).  The deceased had a CCTV camera installed in his loungeroom.  Footage depicting the events leading to his death was able to be downloaded, and was also in evidence (exhibit 2).  The footage captures video only; there is no audio recording.
19. [19]
    The CCTV footage bears a date and time stamp, which shows that the recording began at about 1.36 am on 18 January 2019.  The footage runs for five minutes and 30 seconds.^[1]  It shows the living room, from the vantage point of the back wall (directly opposite the entrance door).  At the start of the footage, a man can be seen sitting on the couch – he is alone in the room.  This is Mr Frescon.  He gets up and goes through the entrance door, to another door (which appears to be the front door of the apartment), where a man in a red shirt enters, and they both return to the living room.  The man in the red shirt was admitted to be Appleby.  He does not appear to be holding anything.  The two men appear to interact for a short period of time.  Appleby leaves the living room once (he can be seen in the doorway) before returning and appearing to pick up a cigarette lighter from the coffee table.  After lighting his cigarette, he leaves the living room a second time, and on this occasion also goes out through what appears to be the front door (1:42).  Mr Frescon remains in the room, sitting on the couch.
20. [20]
    A minute later (2:41), Appleby comes back in the front door; he takes a step inside the living room, then turns around and goes back to the front door, leaning out of the open door for a few seconds, before closing the door and coming back into the living room (3:03).  Appleby is not holding anything when he returns.  The men continue to engage with one another, and then Mr Frescon leaves the living room, through a side internal door, for a short time.  He returns, and continues to engage with Appleby.  At about 4:35 on the video, Mr Frescon walks out of the living room towards the front door.  At that point (4:37), Appleby picks up what appear to be two knives from the book shelf against the wall of the living room.  Mr Frescon appears to open the front door (4:41), and he leaves it open.  Appleby looks out through the internal doorway towards the front, where Mr Frescon went, before turning around and walking through the living room to the other (side) internal door (4:44).
21. [21]
    Mr Frescon comes back into the room and almost immediately a physical altercation begins, with Mr Frescon appearing to tell Appleby to leave (by putting his hand up and pointing to the door) (4:46) and Appleby wielding two knives and holding at least one of them to Mr Frescon’s throat (4:49).  The two men struggle together, Appleby still holding the two knives.  Mr Frescon manages to push Appleby away, before leaning down and picking up an esky bag and throwing it at Appleby (5:07).  At this point, Appleby is located near the internal entry door to the living room (the one nearest the front door).  Mr Frescon continues to advance on Appleby after throwing the bag, appearing to throw punches.  The esky bag hits Appleby, causing him to stumble and bump into the door, but he gets up almost immediately and continues to fight with Mr Frescon (5:07).  Appleby can be seen still holding at least one of the knives (in his right hand) (5:08).
22. [22]
    At the same time (5:08) a person can be seen approaching the internal entry door – this was admitted to be the appellant.  He is wearing a mask that covers his face and holding a knife in his right hand.  He enters the room, and immediately begins to move towards Mr Frescon.  Appleby appears to strike Mr Frescon and, in doing so, to stumble on the lounge chairs against the side wall (5:10).  Mr Frescon moves back, holding up both fists defensively – he is clearly unarmed (5:12).  The appellant appears to put his hand on Appleby, as if to hold him back or push him out of the way, and then moves in front of Appleby towards Mr Frescon, striking him in the neck with the knife (5:15).  Just after this, Appleby also strikes Mr Frescon, seemingly with his fist (or perhaps a knife).  The appellant can then be seen standing back, holding the knife in his right hand, as he looks at Mr Frescon, who is standing in the side internal doorway gasping, with blood on his neck, before falling down in front of the appellant.
23. [23]
    Just as the appellant strikes Mr Frescon with the knife (5:15), another man can be seen entering the room – admitted to be Torralba.  After Mr Frescon has fallen to the ground, all the men run from the room.
24. [24]
    It was admitted that police found a number of knives within the lounge room located under a coffee table and on a lounge chair, but did not locate the weapon used to inflict the fatal wound.  The photographs taken inside the living room show two knives and the blade of a third knife, in various places.  One knife was on the green rug on the floor, in front of the coffee table (closest to the door where the appellant entered).^[2]  This knife was about 26 cm in length, with a 16 cm blade.  A second knife, and the blade of a third (the handle was found under the TV unit in the living room) were located on the lounge chair closest to Appleby and the appellant.^[3]  These knives were slightly bigger (about 30 cm in length, with a 20 cm blade).
25. [25]
    Appleby was arrested the following day.  His arrest was recorded by the body worn camera of one of the arresting officers, and the recording of that was in evidence (exhibit 3).  Appleby also participated in a recorded interview with the police, which was put into evidence (exhibit 4).  The jury were given clear directions that the things Appleby said were only admissible in the case against him; and that they were to be ignored in considering the case against the appellant.^[4]
26. [26]
    At the trial, the question of which of the appellant or Appleby struck the fatal blow was left to the jury to decide; the appellant’s trial counsel did not concede that it was clearly him that had fatally stabbed the deceased.  However, on the appeal, counsel for the appellant said “though never conceded by counsel for [the appellant] [at trial], it seems unarguable that the person inflicting this wound [the fatal wound] was indeed” the appellant, and not Appleby.  Having regard to the video footage, that is correct.
27. [27]
    Trial counsel for the appellant, Mr Martinovic, opened his case to the jury on the basis that it would be a matter for them to consider “whether or not [his] actions were in fact lawful in that he was there to save his friend – save his friend from either serious injury or death”.  Before the Crown had closed its case, there was an exchange between the trial judge and the appellant’s trial counsel, about that issue.^[5]  When asked by the judge what self-defence provision would be engaged, Mr Martinovic said it would be a combination of s 272 (self-defence against a provoked assault) and s 273 (aiding another in self-defence).
28. [28]
    It was Appleby’s case at trial that he did not strike the fatal blow and Appleby accepted, by his counsel, that there was no arguable defence of self-defence in so far as he was concerned.
29. [29]
    At the trial, for the appellant it was initially contended that the defence of aiding another (Appleby) in self-defence should be left to the jury because:

    1. (a)
       when the appellant entered the room, Appleby was unarmed (it being submitted he had dropped the knife or knives he had previously used to assault the deceased^[6]);
    2. (b)
       whilst the deceased was also unarmed, “he had access to knives” (in the room);
    3. (c)
       the jury would be invited to infer that the appellant apprehended that the deceased had “got the better of Appleby”, because Appleby was on the ground getting up, and that Appleby was in danger such that the appellant needed to go to his aid to save him.^[7]
30. [30]
    A lengthy exchange took place between the trial judge and counsel for the appellant on day three of the trial, in relation to whether there was a sufficient basis in the evidence to leave the defence of aiding in self defence to the jury, at the end of which the trial judge said he would think about it further.^[8]  The next day, the following exchange took place:

“HIS HONOUR: Now, I’ve got – I’m yet to rule on whether there’s a basis upon which a defence under section 273, in combination with section 272, should be put to the jury. We had extensive argument about this yesterday.

MR MARTINOVIC: Yes.

HIS HONOUR: And if I could just send – everyone can have a copy. I’ll mark it for identification but it can go to the bar table.^[9] This is, principally, directed for your benefit, Mr Martinovic, because despite the exchanges that we had, I need to be clear, in order to make a decision on this, as to what your submissions are and I think in order to do this I didn’t have the advantage of written submissions. I do have the transcript but I think it would help me, and, if I decide the defence goes to the jury, will help everyone to understand the basis upon which I’m allowing it to be put. So I’m minded to require you, on behalf of your client, to specify the facts, matters and circumstances relied upon to contend, as I think you would have to - - -

MR MARTINOVIC: Yes.

HIS HONOUR: The advantage not being on you through the matters [sic]. And from my understanding of the way in which these sections operate, and without repeating our discussion yesterday, for the purpose of section 273 engaging with 272 is not what lawful force Mr Appleby might’ve been entitled to use some time earlier when he, as we know, and the deceased were in close company, he holding Mr Appleby’s arms out, Mr Appleby having two knives. That’s not the relevant time.

MR MARTINOVIC: I agree.

HIS HONOUR: And so – you agree, are you?

MR MARTINOVIC: I agree and - - -

HIS HONOUR: You agree that the relevant time is a time - - -

MR MARTINOVIC: Yes.

HIS HONOUR: - - - or the time after Mr Markovski came in the room and was allegedly acting in defence of Mr Appleby.

MR MARTINOVIC: Your Honour’s correct.

HIS HONOUR: Okay. So I think I need to know, in order to rule, and the jury need to be clear about this, the matters that you, and you can have the time to put this in writing because I think it’s going to be most helpful if you, and your instructing solicitor, reflect on this.

MR MARTINOVIC: Your Honour, if I can short circuit proceedings and indicate to the court that we have and I’ve gone through the transcript and I’m indebted to your Honour for the commentary that your Honour, in fact, provided and it has been decided on a forensic basis that we would be abandoning self-defence of another under section 272, 273 of the Criminal Code.

HIS HONOUR: Okay. Would you like to see my draft summing up? I’ve got three handouts too. Well, that’s – thanks for telling me that. Well, this conversation can close.

MR MARTINOVIC: Thank you. And, as I said, I’m indebted to your Honour.”^[10] [emphasis added]

31. [31]
    After the Crown had addressed the jury, and just before Mr Martinovic commenced his address, the trial judge asked Mr Martinovic to confirm that he did not wish to advance any further argument about the evidence on sections 273 and 272.  Mr Martinovic answered, confirming that was his position and said “it’s not reasonably open and a forensic decision has been made”.  He also confirmed that s 24 was not applicable.  The trial judge then also confirmed with the prosecutor that he did not consider there was any obligation for the matter to be left to the jury.  Although neither the appellant’s counsel, nor the prosecutor, requested a ruling on the point, or any reasons, the learned trial judge finished the exchange by saying:

“HIS HONOUR:  Yes. Well, I think without taking any more time I could say in my reasons later but in the absence of identification of evidence of the kind that the document I sent this morning was directed to, I am of the view that nothing that has been pointed to me in the evidence would be sufficient to engage the three matters in section 272 that were contentious. I don’t think the evidence, taking the best view of it I could for the defendants, and, more precisely, the lack of evidence, was such that I couldn’t see that those matters were arguably open on the evidence so I don’t need to worry about that.”

32. [32]
    The trial judge returned to the issue at the start of the next day, giving further reasons for having independently^[11] reached the conclusion that there was no evidentiary basis for self-defence (in the case of Appleby) or aiding in self-defence (in the case of the appellant) to be left to the jury.^[12]
33. [33]
    As already mentioned, trial counsel for the appellant had submitted the relevant self-defence provision was s 272 of the Code (provoked assault).  However, on the appeal, counsel for the appellant contended aiding in self-defence against both an unprovoked (at least under s 271(2)) and provoked (s 272) assault was open on the evidence, on the basis of s 24 (mistake of fact), and should have been left to the jury.
34. [34]
    It is convenient, to understand these reasons, to first set out the relevant statutory provisions.  Sections 271, 272, 273 and 24 of the Criminal Code provide as follows:^[13]

3. “271
   Self-defence against unprovoked assault

3. (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.

3. (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.

3. 272
   Self-defence against provoked assault

3. (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.

3. (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.

3. 273
   Aiding in self-defence

3. In any case in which it is lawful for any person to use force of any degree for the purpose of defending himself or herself against an assault, it is lawful for any other person acting in good faith in the first person’s aid to use a like degree of force for the purpose of defending the first person.

3. 24
   Mistake of fact

3. (1)
   A person who does or omits to do an act under an honest and reasonable, but mistaken, belief in the existence of any state of things is not criminally responsible for the act or omission to any greater extent than if the real state of things had been such as the person believed to exist.

3. (2)
   The operation of this rule may be excluded by the express or implied provisions of the law relating to the subject.”

35. [35]
    Given the position of the appellant – as a person said to be aiding his friend, Appleby, in self-defence – it is necessary to start with s 273.  That section calls for consideration, first, of whether this was a “case in which it is [was] lawful for any person [Appleby] to use force of any degree for the purpose of defending himself … against an assault”.
36. [36]
    In considering whether a defence under s 273 (coupled with s 271(2) or s 272) was open, it was not necessary to show that the appellant turned his mind to whether it was lawful for Appleby to use lethal force in defence of himself.  Rather, what is called for is a consideration of whether, in the circumstances of the facts as they may be found by the jury, or as the jury may find the appellant honestly and reasonably, but mistakenly, believed them to be, it was lawful for Appleby to use force in self-defence.
37. [37]
    In the present case, it was only the second of these options – that which relies on s 24 – that was relevant, because the facts as they actually were,^[14] did not entitle Appleby lawfully to defend himself using lethal force.
38. [38]
    Given the appellant’s reliance on s 24, in the circumstances of this case, the question was whether the appellant may have had an honest and reasonable, but mistaken, belief that the circumstances were such that Appleby was entitled to defend himself using lethal force – such that it would be lawful for the appellant to step in to aid Appleby.
39. [39]
    The belief as to a “state of things” necessary to underpin this could relate either to the existence of an assault on Appleby of a particular nature (or level of violence) or the degree of force reasonably necessary to meet that threat (that is, to save Appleby), or both.^[15]
40. [40]
    However, before s 24 can be said to arise for a jury’s consideration, there must be some evidence, direct or inferential, of the relevant state of mind of the accused.  This does not require that evidence be called by an accused person, nor that there be direct evidence of his state of mind.  But there must be some foundation, in the evidence, for the requisite inference of mistaken belief to be drawn.  If there is, it is for the prosecution to prove, beyond reasonable doubt, that the accused did not act under the requisite mistake.^[16]  The requirement, to point to evidence that raises s 24 for a jury to consider, is sometimes referred to as placing an evidential onus on the accused.  But it is important to emphasise that the onus of proof at all times is on the prosecution; and it is the prosecution that bears the ultimate legal onus of displacing the defence.^[17]
41. [41]
    In determining whether such a defence should be left to the jury, the question to be asked is whether there is evidence, direct or inferential, which, taken at its highest in favour of the accused, could lead a reasonable jury, properly instructed, to have a reasonable doubt that the defence had been negatived (that is, to legitimately conclude that there existed a reasonable possibility that the accused held the honest and reasonable, but mistaken belief).^[18]  But, as was said in CTM v The Queen (2008) 236 CLR 440 at 447 [8]:

“The concept of evidentiary onus itself needs to be understood in the light of the subject matter to which it applies; here, honest and reasonable belief, a concept that has a subjective element of a kind that ordinarily is peculiarly within the knowledge of the accused, and an objective element that must be capable of being measured against the evidence by a tribunal of fact.”

42. [42]
    As already noted, evidence of the relevant state of mind may be derived by inference; but “inference must not be confused with speculation”.^[19]  Whether described as an evidential onus or not, the requirement to point to evidence which raises the issue of mistaken belief for the jury’s consideration is not discharged by reference to speculation or “suppositions about mere possibilities” – there must be some foundation for it.^[20]  Inadvertence is not sufficient.^[21]  And an honest and reasonable belief in a certain fact or state of affairs may be very different from an absence of concern.^[22]
43. [43]
    In the context of self-defence, the Court of Appeal said in R v Pangilinan [2001] 1 Qd R 56 at [21] and [23]:

3. “[21]
   In order to raise a defence under s 271(2) there is no necessity for an accused person to give evidence or for there to be direct evidence of statements made by him concerning his state of mind:^[23]

‘When the violence of the attacker is sufficiently serious to support the inference of a reasonable belief on the part of the accused person of serious danger, s 271(2) might reasonably be left to the jury even in the absence of any statement by the accused person concerning his actual state of mind.’^[24]

3. …

3. [23]
   The critical question in the present case is whether the evidence in the Crown case permits the view that the appellant was placed in a sufficiently serious situation to support the inference of a reasonable belief on his part that he could not otherwise preserve himself from grievous bodily harm than by proceeding to defend himself as he did.^[25]” [emphasis added]

44. [44]
    Those observations apply equally in the case of an accused – such as the appellant – who effectively stands in the shoes of Appleby, by operation of s 273, in reliance on s 24.
45. [45]
    The appellant did not give evidence at the trial; nor did he participate in an interview with the police.  Consequently, there was no version at all of the events from him.  The requisite belief held by him – as to the “state of things” – therefore could only arise as a matter of inference from the evidence that was before the court.
46. [46]
    For either s 271(2) or s 272 (with s 273) to be left to the jury, there would need to be some foundation for (i) an honest and reasonable, but mistaken, belief that Mr Frescon had assaulted Appleby in such a way (with such violence) as to cause a reasonable apprehension of death of grievous bodily harm to Appleby, and (ii) a belief, on reasonable grounds, that the only way to preserve (save) Appleby from death or grievous bodily harm was for the appellant to proceed as he did – that is, to stab him in the neck.  To adopt, and adapt the words of the Court of Appeal in R v Bojovic [2000] 2 Qd R 183 at [7]:

“Plainly there has to be some basis in the evidence for thinking that the actions of the deceased man were such as to cause at least a reasonable apprehension of grievous bodily harm [to Appleby] on the part of the appellant, and of the existence on his part of a belief on reasonable grounds that he could not otherwise preserve [Appleby] from grievous bodily harm than by proceeding in the way he did.”

47. [47]
    The appellant submits that his criminal responsibility “was to be assessed upon the facts, matters and circumstances which not only existed, but also which appeared to him to exist at the time of his entry into the loungeroom, the latter enlivening section 24 as to his belief”.^[26]  The extent to which the facts as they “appeared to him” may be inferred is limited to what can be seen in the video footage.  The appellant submits that those facts included the following:

    1. (a)
       Appleby being on the ground;
    2. (b)
       The deceased standing near and perhaps approaching Appleby, thereby appearing to have the upper hand in any earlier struggle;
    3. (c)
       Blood having been spilled (albeit actually from the deceased’s defensive injuries);
    4. (d)
       A knife or knives upon the floor;
    5. (e)
       Appleby being unarmed upon entering the house;
    6. (f)
       Absence of any knowledge by Markovski that Appleby had himself been the one to have armed himself with knives and held one to the throat of the deceased.  These facts which actually disentitled Appleby to the availability of self-defence (as acknowledged by his counsel at trial) were unknown to the appellant who was not present in the room at the time that they occurred;
    7. (g)
       The physical struggle or attack (by Appleby) was quite possibly audible to the appellant, precipitating the decision for him to enter the room – possibly to assist Appleby.
48. [48]
    None of these matters, taken alone or together, provide a foundation to infer the appellant held the requisite belief at the time he entered the loungeroom and moved towards Mr Frescon and stabbed him.
49. [49]
    As to (a), it is not apparent, from the video footage, that Appleby was on the ground when the appellant entered the room.  Appleby appears to stumble, when the esky bag is thrown at him, and bump into the door, but gets up again almost immediately and he is on his feet when the appellant enters the room.  In any event, there is no basis from which to infer the appellant had any particular awareness of where Appleby was.  The footage shows the appellant enter the room and move directly towards Mr Frescon, pushing Appleby out of the way as he does so.
50. [50]
    The contention in (b) that Mr Frescon may have appeared to be moving towards Appleby and to have “the upper hand” also involves pure speculation.  If anything, the footage shows Mr Frescon moving backwards as the appellant moves towards him.  There is no foundation from which to infer the appellant had this belief.  Importantly, Mr Frescon was quite obviously unarmed.
51. [51]
    The suggestion in (c) that the appellant had any awareness of blood having been spilled is also pure speculation.  He was wearing a mask covering the whole of his face and took no time to assess the situation before moving directly to Mr Frescon and stabbing him.
52. [52]
    The same applies in relation to (d), the presence of a knife or knives on the floor.  The argument in relation to this seems to be that Mr Frescon could have armed himself.  There is no basis to infer the appellant had any awareness of the knives later found on the floor or the chair.  In any event, this does not assist in establishing a foundation for an honest and reasonable belief that Mr Frescon had assaulted Appleby with such violence as to cause reasonable apprehension of death or grievous bodily harm, such that it was necessary to use lethal force to protect him.  The appellant entered the room holding a knife; and Mr Frescon was clearly unarmed as the appellant proceeded directly towards him and stabbed him.
53. [53]
    The matter referred to in (e) does not assist the argument.  As against that, the appellant clearly was armed as he entered the house.
54. [54]
    The circumstances referred to in (f) do not aid in establishing any foundation for the requisite belief on the part of the appellant.  And, lastly, the underlined words in (g) are sufficient to demonstrate the speculation involved.
55. [55]
    The only inference from the evidence is that the appellant did not stop to think about the situation at all.^[27]  In the footage, the appellant can be seen entering the room, with a mask on and brandishing a knife.  He does not hesitate to take in or assess the scene.  He moves directly towards the unarmed Mr Frescon, pushing Appleby to one side, before proceeding to stab Mr Frescon in the neck.  There was no factual foundation from which to infer the appellant had any belief, let alone an honest or reasonable one, that Mr Frescon had assaulted Appleby with such violence as to cause apprehension of death or grievous bodily harm to Appleby, and such that it was necessary to immediately retaliate with lethal force to save Appleby.  There is, further, no foundation from which to infer that the appellant “was acting in good faith in [Appleby’s] aid” (see s 273 above), as opposed to being intent upon attacking Mr Frescon regardless of whether Appleby required aid or not.
56. [56]
    The learned trial judge was correct to press trial counsel to articulate what the facts, matters and circumstances were, from which the jury would be invited to infer the appellant was operating under an honest and reasonable, but mistaken belief as to a state of things which, had they existed, would have entitled Appleby to respond with lethal force in his own defence, and thus entitle the appellant to step into his shoes to aid him under s 273.  The appellant’s trial counsel could not do so and was correct, upon further reflection, not to press for that matter to be left to the jury.  That was a decision rationally justified on the basis of the evidence and the inferences available.  The trial judge was correct to conclude that there was no sufficient foundation to leave aiding in self-defence, on the basis of mistake of fact, to the jury.
57. [57]
    No error has been shown.  The appeal ought to be dismissed.
58. [58]
    BOND JA:  I agree with the reasons for judgment of Bowskill CJ and with the order proposed by her Honour.
59. [59]
    DALTON JA:  I agree with the order proposed by Bowskill CJ and with her reasons.