R v Breen[2024] QCA 168

SUPREME COURT OF QUEENSLAND

1. [1]
   DALTON JA:  I agree with the order proposed by Boddice JA and with his reasons.
2. [2]
   BODDICE JA:  On 13 March 2024, the appellant was convicted of one count of assault occasioning bodily harm, whilst armed.  He was sentenced to two and a half years’ imprisonment, suspended after serving seven months.
3. [3]
   The appellant appeals his conviction.  The sole ground of appeal relied upon is that the trial judge “should have directed the jury on compulsion, provocation, s. 24 and consent and prevention of repetition of insult”.

Trial

4. [4]
   The indictment charged the appellant with having, on 6 August 2022, unlawfully assaulted the complainant, thereby doing him bodily harm, whilst armed with a dangerous instrument.
5. [5]
   The complainant was a 57 year old male.  The bodily harm was occasioned by contact between the complainant’s head and a star picket held by the appellant.  The dangerous instrument was the star picket.
6. [6]
   At trial, there was no dispute that the appellant had struck the complainant several times with the star picket.  At issue was in what areas of his body and in what circumstances.  On the Crown case, that striking included a blow to the top of the complainant’s head, fracturing his skull, in circumstances where the complainant had taken no aggressive actions.  On the defence case, the striking did not include a blow to the top of the complainant’s head and had taken place in circumstances where the complainant had aggressively approached the appellant, yelling, with clenched fists raised and thereafter, armed himself with a stick, which he poked toward the complainant’s face.

Evidence

Complainant

7. [7]
   The complainant gave evidence that a piece of vacant land separated his property from the appellant’s property.  Before 6 August 2022, the appellant had raised a concern about a female on the complainant’s property feeding the native birds.  The complainant said he spoke to the appellant by telephone and agreed to have the female cease that activity.  The complainant said he also offered to provide power to the appellant, as he knew he did not have power to his caravan on his property.  He described the conversation as quite pleasant.
8. [8]
   The complainant said he had no further interactions with the appellant until 6 August 2022.  On that day, he was packing his possessions with his fiancée, when he heard somebody yelling outside.  The appellant was standing just off his property, yelling profanities about feeding the birds.  The appellant said, “come over here”.  When the complainant approached, he asked the appellant what he was talking about, but his response was not clear.  It was “a very muffled conversation”.^[1]
9. [9]
   The complainant said as he turned away from the appellant, he was struck, a very, very hard blow to the back of his head, on the side behind his ear.  The blow left scars.  The complainant turned, in a daze and said, “What the hell was that for?” before being struck again on the head.  This blow split his skull open and caused the skin to peel back on his head.  At that point he observed the appellant was holding a five foot long star picket.  When the complainant turned away again, he was struck behind the legs and across the knee, three or four times.  When he turned back towards the appellant, he was again struck.
10. [10]
    The complainant said he backed away a little towards the middle part of the property.  He was telling the appellant to stop.  He repeated it several times.  The complainant said as he turned to leave the premises he was struck from behind a further four or five times.  At that point, the complainant turned towards the appellant.  He estimated he was maybe 20 or 30 metres off his property, towards the appellant’s property.  The complainant picked up a long piece of stick on the ground, a little bit thicker than the complainant’s thumb, and threatened the appellant.  He said he was going to kill him because he was “virtually” killing the complainant.  The complainant said he realised the stick was useless against a piece of metal.  He threw it to the ground.  He may have held it for a minute or so.
11. [11]
    The complainant said that during the altercation, his fiancée came out of the house, towards them.  He pushed her away because he did not want her to be struck.  There was also a man further up past the appellant’s caravan, approximately 30 metres away from the complainant.  The complainant said he yelled, “Don’t get involved”.  The complainant was unsure whether he was on the appellant’s land at that time.  The altercation ended when the complainant moved back towards his driveway.  It was around that time that his fiancée called the police and ambulance.
12. [12]
    The complainant said when the police arrived, his scalp was split open at the front, he had a fracture at the back of his skull and there were lacerations and contusions all over him.  He was taken to hospital.  The complainant identified photographs of his injuries.  The bruises to his arm and legs were where he had been struck by the star picket, on multiple occasions.  There was also bruising from the star picket when it struck him across the back and side.
13. [13]
    In cross-examination, the complainant accepted that he moved onto the vacant block next door and onto the appellant’s property.  The complainant said he did this as he was being attacked by the appellant, who was striking him, even as he tried to turn away.  When he tried to retreat, he was struck further.  The complainant accepted he became aggressive towards the appellant.  He was swearing at the appellant because he had been struck with a heavy metal object.  He threatened the appellant’s life because he felt that his own life was in threat.  The complainant told the other man, who was standing approximately 30 metres away, to stay out of it as he did not want anybody else to be placed in danger.  The complainant accepted that at one point he picked up a stick off the ground and pointed it in the direction of the appellant.  He did not accept that he tried to stab the appellant in the throat with it.  The complainant said he was not close enough.
14. [14]
    The complainant accepted that when police arrived at the scene, he was on the appellant’s property.  He denied that he had come out of his home in a very aggressive way; that the appellant had said, “Don’t come near me”; and that he said something to the appellant about “fucking with my friends”.  The appellant had been rude to one of his female friends, prior to this day, but the complainant did not say those words.  He denied that the appellant struck him with the star picket on the left arm.  He denied the appellant was walking away from him, retreating.  The appellant only started walking backwards after he had struck the complainant, who turned to face him.
15. [15]
    The complainant denied that he was the aggressor.  He became aggressive in manner as “Someone is belting the living daylights out of you with a metal bar, yes, I got aggressive.  Verbally.  On the other side of it, the – if there had been something more substantial, I would have definitely picked it up.  But there wasn’t.  There was a thin little piece of stick [indistinct] and yes, I pointed it and then I threatened him.  Definitely.”^[2]  There was not much else he could do.  He estimated that he jabbed the stick he was holding in the direction of the appellant, maybe half a dozen times.  At no point was he close enough to strike the appellant with the stick.  He denied the star picket slid down the stick, connecting with his head.  There was “no way that that stick is, at any point, high enough for a metal bar to deflect off it and hit me in the head”.^[3]  He did not recall the other man saying, repeatedly, “Get off Chris’ property.”  He did not believe he had threatened the other man.

Fiancée

16. [16]
    The complainant’s fiancée gave evidence that a few weeks before 6 August 2022, she had had a telephone discussion with the appellant about problems caused by a friend feeding the native birds.  She then exchanged text messages with the appellant.  The appellant’s messages included “A maggot turns up again” and “I haven’t seen the pig for a week”, referring to the female who had been feeding birds.
17. [17]
    The complainant’s fiancée said she had missed calls from the appellant’s number on 6 August 2022.  After those missed calls, she heard yelling outside.  She asked the complainant to go outside.  At that point, she heard raised voices.  When she went outside she saw the appellant and the complainant near the fence line of the property.  She did not see anything in the appellant’s hand at that time.  The tone of voice was aggressive.  The complainant was telling the appellant that he had spoken to the female about not feeding the birds; that she had said she was not going to feed the birds again; and that it was not their problem as she had not been back to the property since that time.  As the complainant turned to walk away, she saw the appellant strike the complainant, to the back of the legs, with a star picket.  The appellant then raised his arm again and cracked the complainant across the back of the head.  The complainant asked, “what the hell that was for”.  The appellant was taunting the complainant constantly, saying things like, “You’re a maggot.  Get up.  Come on.”
18. [18]
    The complainant’s fiancée described the appellant as walking backwards and taunting the complainant.  The complainant would try to walk away saying, “They’re not worth it”, but every time he went to walk away, he was struck by the appellant.  It was a full blown swing with a metal star picket.  She estimated there were more than half a dozen hits.  The appellant would bring his hand up and bring it down.  The striking of the head happened within the first or second hit.  Towards the end, the complainant became quite angry.  He said something like, “I’ll kill you”.  She did not see the complainant have anything in his hand, at any point during the altercation.
19. [19]
    The complainant’s fiancée said that when the two men were on the appellant’s land, she saw there was a neighbour who lived next door, stepping out from behind a tree.  That neighbour encouraged the appellant, saying, “You’ve got him now.”  At that point the complainant was trying to pick himself up off the dirt.  He had been hit on the head with the star picket.  She said he had basically been “scalped”.^[4]  That had happened on the vacant block.  The altercation ended when police arrived at the scene.  When they were in the middle of the vacant block, the complainant had pulled his phone out of his pocket and thrown it to her.  She telephoned emergency services.  When police arrived, she and the complainant were still trying to get off the appellant’s land, in order to head back to their home.
20. [20]
    In cross-examination, the complainant’s fiancée accepted that she was saying the complainant had been struck more than six times by full-on hits to the head, repeatedly in the same place.  She did at one point see the complainant take a stick from the ground.  By that time, the complainant had been hit with the star picket by the appellant, heaps of times.  He was using the stick to block the star picket.  At one time he might have lunged in the direction of the appellant.  She denied he repeatedly jabbed the stick.  The complainant threw the stick away.  She did not accept that the appellant was backing away.  He was insulting and egging the complainant on, coercing him towards the appellant’s block.  Every time the complainant went to walk away, he would cop a blow with the star picket to the back of his legs or to the back of his head.  She did not accept that during the period of moving from the complainant’s house to the appellant’s block, the complainant was threatening the appellant.  The complainant made one threat when he was cranky and upset, along the lines of “I’ll kill you.”  It was after the complainant had been hit with the picket “More times than I could call to recount”.^[5]

Other

21. [21]
    Robyn Nowlan gave evidence that she was working at a local supermarket on 6 August 2022.  Close to closing time, the appellant came into the store.  His hand was “a bit battered up”.  He also had blood on his face.  She asked him what had happened to his hand.  He said he had done something bad; he had belted his next door neighbour.  The next door neighbour was swinging punches, so the appellant “basically picked up a pole and self-defended [himself]”.^[6]  He said the argument was something about dogs.  The appellant also said that the neighbour had deserved it.  She described the appellant as seeming to be intoxicated, but said that was just a normal thing.  He smelt like spirits.

Police

22. [22]
    Sharon Lockett (Lockett) gave evidence that she was stationed on the island on 6 August 2022.  She was rostered on a 10.00 am to 6.00 pm shift.  At 4.39 pm, she received a call from police communications to attend a disturbance.  Upon arrival, she observed two males and a female at the front of the address, near the roadway.  The complainant had blood from his head down his face and covering his shirt.  The appellant was further inside the yard, holding a pole or something similar.  She took a photograph of the complainant’s injuries.  Whilst doing so, the complainant told her that he had been hit on the head and around the back of the legs and other places over his body.
23. [23]
    Lockett said after the complainant had been taken away by ambulance, she identified another witness, Michael Steel (Steel).  She later made an appointment for him to provide a statement.  Steel failed to attend the police station.  She had no further contact from him.
24. [24]
    In cross-examination, Lockett accepted that when she spoke to Steel that night, she had activated her body-worn camera.  She did not check to see if it recorded any conversation.  She also accepted she asked him to give an account.  She could not recall what Steel said to her at that time.
25. [25]
    Guy Horton (Horton) also attended the scene on the afternoon of 6 August 2022.  He received the call at around 5.20 pm and arrived on the island about half an hour later.  On the vacant land between the appellant’s property and the complainant’s property, he located a cap, two pairs of sunglasses and an area of blood.  On the driveway of the appellant’s property, he saw a stick or a branch, just over one metre long, that had a bloodied handprint on the branch or stick.  Up against a tree in the front yard of the appellant’s property, he saw a black metal star picket that appeared to have some blood on the star picket.  There were also some small spots of blood on the driveway and onto the street from the appellant’s property.
26. [26]
    Horton’s investigations revealed that the appellant made a phone call to triple zero, between 4.47 pm and 4.49 pm on 6 August 2022.  That recording was played to the jury.  He also located CCTV footage from cameras positioned on the caravan belonging to the appellant.  Those images were also shown to the jury.  CCTV footage taken from a camera pointing towards the general direction of the complainant’s residence recorded the appellant walking towards the complainant’s property, with a star picket in his hand.
27. [27]
    Horton said his investigations revealed other potential witnesses.  One was Michael Steel.  Horton made a number of unsuccessful attempts to contact Steel.  There was also another person who was present in one of the houses near the incident.  That person declined to provide further information to police.
28. [28]
    In cross-examination, Horton accepted that the footage from the camera facing the direction of the complainant’s residence also depicted the complainant moving towards the appellant.

Medical

29. [29]
    Dr Hazel Peckham gave evidence that she treated the complainant on 6 August 2022 in the Emergency Department.  Her examination revealed bruising and swelling around the right eye, a 2 cm laceration to the front of his scalp, a second 5 cm laceration on the crown of his head, bruising to his left flank, a 3 cm laceration to his left forearm, near the elbow, bruising on his right leg and multiple bruises on his left leg.  A CAT scan revealed a fracture of his skull.  He also had a fracture of the frontal bone in the skull, extending from the left frontal sinus to the orbital site.  The two head lacerations and the forearm laceration were sutured.  In her opinion, the injuries interfered with his health and comfort.
30. [30]
    In cross-examination, Dr Peckham accepted that the fracture of the frontal bone was non-displaced.  She could not comment on how many blows would have been sustained to cause such a fracture.  Patients who have skull fractures usually have taken significant force.

Appellant

31. [31]
    The appellant gave evidence that he has chronic nerve damage affecting his mobility.  In 2022, he was living in a caravan on a block of land on the island, whilst he built a house.  He moved out of the caravan in early July 2022, after receiving a threatening telephone call from the complainant.  He had CCTV set up at the caravan.  It was a motion activated system.  The appellant accepted that after the phone calls, there had been an exchange of text messages arranging to meet.  He had sent some of those messages.
32. [32]
    On 6 August 2022, he was at his block of land, cleaning up.  He became aware that people were at the complainant’s house.  He yelled out to them to get their attention as he wanted to resolve the issues.  He then walked over the spare block of land between their properties.  He took a star picket for balance and support on the rough terrain.  He did not have a proper walking stick and he had previously used the star picket in that way.
33. [33]
    The appellant said he walked halfway cross the adjoining block of land and yelled out again.  He heard the complainant scream his name and run out of his front door.  The appellant yelled, “Stay there, talk to me from there.  Don’t come over here.”  The complainant charged at the appellant with both arms in a position ready to punch.  The appellant screamed, “Stay away from me” and backed off.  The appellant said he could not move, as his chronic nerve damage caused him to be paralysed.  It happens a couple of times a week.  The appellant said he told the appellant not to come near him, that he could not move and then hit the appellant on the left arm with the star picket, to stop his attack.  The complainant stopped in front of him and said, “You just hit me with a steel pole.”  The appellant repeated, “Stay away from me.”  At that point, the complainant picked up a spear-like stick and poked it towards the side of the appellant’s face.
34. [34]
    The appellant said that adrenaline made him move and he went back onto his own property.  The complainant followed him.  At that point, the appellant noticed Steel standing behind him.  The complainant came onto the driveway of the appellant’s property and continued to threaten him.  He poked the stick close to his face.  The appellant said he hit the complainant around the left leg and arm, four, five, maybe six times.  At one point when the complainant poked the stick at him, the appellant blocked the stick with the star picket, which slid down the stick and hit the complainant on the left side of the head, opening him up.  The appellant said he was not responsible for any injury to the back of the complainant’s head.
35. [35]
    The appellant said the complainant was saying, “you’re fucking my friends” and had bubbles coming out of his mouth.  The appellant also said, “I’m going to leave you in a hospital bed so all you can do is breathe and bring all my friends from Sir David Longland’s prison down to bash you.  I’m going to take you out and tie you to the navigation markers and watch the tide come in on ya.  And I’m going to screw your caravan door shut and burn you inside.  I’m going to bring heavy machinery over here and crush you in your caravan.”^[7]  When the appellant was on the phone to police, the complainant said to Steel, “I’m going to kill you, too.”  The appellant said he asked the complainant’s fiancée to ring the police.  She said she had already done so.
36. [36]
    The appellant said at one point, Steel walked in and tried to take the stick off the complainant.  The appellant told him to stay away from the complainant.  He heard Steel say to the complainant, “get the fuck off my property”.^[8]  The complainant dropped the stick when police arrived at the scene.  The stick shown on the CCTV footage was the stick held by the complainant.
37. [37]
    In cross-examination, the appellant accepted that he did not need crutches all the time; that on the afternoon in question, he was walking around with and without crutches; that he had used the walking stick he said was broken some of that afternoon; and that he was using it in the CCTV footage, up until 4.30 pm.  The appellant said it was handy to use, even though it did not give him proper support.  He had used the metal picket as a crutch for days before.  He agreed that he had not used it in any of the CCTV footage that afternoon, prior to going to the complainant’s property.
38. [38]
    The appellant accepted that he tried to call the complainant’s fiancée three times that afternoon, around 4.30 pm.  He denied he was annoyed when she did not answer those calls.  The appellant had been annoyed by another woman whilst at the property, feeding the wild cockatoos.  They were causing havoc, noise and destroying property.  She had been asked several times not to do it.  He accepted that he had sent messages to the complainant’s fiancée’s phone using the terms “a cunt, a maggot” on multiple occasions.  He agreed he had no problem with the complainant.  He did not even know him.  He denied he was angry; he was frustrated.
39. [39]
    The appellant agreed that when the complainant walked out of the house, he did not have any weapon in his hands.  He agreed the complainant had not struck him, before he hit the complainant with the picket, but said the complainant was about to and he stopped his attack.  He was running at him with bubbles coming out of his mouth.  He agreed the complainant was going to only attack him with his fists and that he did not have any weapon.
40. [40]
    The appellant said that when the complainant picked up the stick and started stabbing it in his direction, he knocked the stick away from his face with the star picket, which slid down the stick and hit the complainant in the head.  It was not a deliberate act.  He was trying to defend himself.  He agreed that there were photographs of bruising to the back, but said he did not cause any injury to the complainant’s back.  He admitted hitting him in the leg whilst the complainant was attacking the appellant.  He did not hit the complainant on the back of the head.
41. [41]
    The appellant accepted that he called triple zero, between 4.47 pm and 4.49 pm; that towards the end of that recording he said, “He’s attacking me again; he’s coming at me again”, and that CCTV footage for 4.49 pm depicted him on a phone looking at police whilst the complainant was on the street.  He said the time in the video may not be correct.
42. [42]
    The appellant accepted that after police left the scene, he stayed with Steel for an hour or two, before walking to the supermarket.  He denied that he had an injury to his hand when he went to the supermarket.  There was no punch ever thrown by the appellant.  He accepted the complainant had significant injuries after the altercation.  He denied saying to Nowlan, in reference to the injury to his hand, that he had “done something bad”.  He did say to her that the neighbour deserved it.  He had been drinking that afternoon.  He had probably five or six beers.

Steel

43. [43]
    Steel gave evidence that he knew the appellant as a neighbour and friend.  He did not know the complainant or the complainant’s fiancée.  On the afternoon of 6 August 2022, Steel heard yelling coming from down towards the appellant’s property.  The appellant asked him to come over and be a witness.  He walked down and watched the argument between the appellant and a neighbour.  The appellant was on the vacant lot, beside the neighbour’s residence.  As the argument became more heated, the neighbour came charging towards the appellant in an “aggro violent sort of way”.^[9]  He looked like he was about to punch the appellant.
44. [44]
    Steel said the two men kept arguing and then the neighbour picked up a stick, about a metre and a half long and three to four inches thick.  He started swinging at the appellant, who was moving back towards his house.  The neighbour was calling the appellant names and swearing at him.  All the appellant was wanting to do was to get away and walk back to his own property.  The neighbour was saying “I’m gonna bash ya.”  The neighbour also threatened that he was going to kill Steel as well.  As they reached the appellant’s property, the appellant picked up a star picket for protection.  The appellant kept telling the neighbour to get off his property.  Steel also did so.  The neighbour kept threatening the appellant.  He said he was going to kill him; that he was going to lock his caravan and burn him inside the caravan; and that he was going to hang him off one of the markers out the front until he drowned.  The neighbour’s girlfriend was filming the whole thing, using her phone.
45. [45]
    Steel said the neighbour swung at the appellant, who went to block it with a star picket.  The appellant got the neighbour in the side of the leg, knocking him to the ground.  The neighbour got straight back up, picked up the stick and swung it at the appellant, who blocked it with the star picket, which came down onto the side of the complainant’s face.  At that point, the complainant’s fiancée grabbed the complainant and walked him back to his own property, through the vacant block.  Police arrived around that time.  Steel said he spoke to police briefly that afternoon.  The police officer did not want to know him.  He did not speak to police again.
46. [46]
    In cross-examination, Steel said that the female police officer did not want to hear what he had to say.  He gave a version of what he saw at the scene to a male police officer later in the day.  He did not subsequently attend the police station to give a statement, as he was looking after his ill father and could not leave him.  He accepted there had been some time in the last two years where he could have given police a statement, but that he had not done so.  He did not think a police officer had ever turned up at the house to talk to him.
47. [47]
    Steel agreed that when the complainant was threatening the appellant and Steel, they were on the vacant lot.  They were moving back towards the appellant’s property.  He agreed that when the complainant swung the stick, he did not strike the appellant, but said he just missed him.  Steel said the appellant did not have the star picket before he returned back to his property.  The only two times he saw the appellant connect with the complainant with the star picket, was when he got him on the leg and when he blocked the stick, causing the star picket to come into contact with the complainant’s face.

Consideration

48. [48]
    At trial, the central issue, for the jury’s consideration, was the circumstances in which the complainant was struck by the star picket.
49. [49]
    The trial judge summarised the respective cases thus:

“… the defendant gave evidence that the complainant, rushed at him angrily with his fists clenched up, and as a result, the defendant said he defended himself by striking him with the star picket.  He then said that he was further assaulted by the complainant picking up a sharp stick and threatening him with the stick.  Okay.  Obviously, the complainant said he did not have his fists raised and did not rush at the defendant in that manner, and said he only picked up the stick to defend himself after he’d been hit several times with the star picket, particularly on the back of the head and the back of his legs and then, of course, on the top of his head.”^[10]

50. [50]
    In that context, it was unsurprising that defence counsel accepted that the jury should be directed as to self-defence against an unprovoked assault, pursuant to s 271 of the Criminal Code and disavowed reliance on any other defence.  The defence case was that the complainant had unlawfully assaulted the appellant and any application of force by the appellant was reasonably necessary to defend that unlawful assault.
51. [51]
    The appellant submits that notwithstanding that concession at trial, there was an obligation on the trial judge to direct the jury on the defences of compulsion, provocation and prevention of repetition of insult, as well as honest and mistaken belief as to consent for any assault.
52. [52]
    Such an obligation would arise if the evidence was capable of raising such defences.
53. [53]
    The latter two matters may be quickly disposed of, as there was no basis, to contend that either were capable of arising on the evidence.
54. [54]
    There was no suggestion in the appellant’s evidence, or in any other evidence led at trial, that the appellant’s actions were undertaken in order to prevent the repetition of an insult.  The appellant’s clear evidence was that his actions were in response to an unlawful assault, namely, the threatened violence by the complainant aggressively approaching with raised, clenched fists and arming himself with the stick, poking it in the direction of the appellant’s face.
55. [55]
    Further, there was not a shred of evidence to support a contention that the appellant struck the complainant in an honest belief that the complainant was consenting to the application of that force.
56. [56]
    As to provocation, whilst the appellant did not give any evidence of having lost the power of self-control as a consequence of the complainant’s actions, that fact would not relieve the trial judge of the obligation to direct the jury as to a defence of provocation, if that defence was capable of being raised on the evidence.^[11]
57. [57]
    However, a consideration of the record, supports a conclusion that the defence of provocation was not capable of arising, on the evidence.
58. [58]
    Nothing in the appellant’s evidence suggested a loss of self-control.  To the contrary, the appellant’s account was of consistent restraint and attempts to withdraw from the situation, with any striking by the star picket being measured blows in self-defence.  The evidence of Steel and the complainant’s fiancée, also supported a conclusion that any blows were considered, not delivered as a consequence of a loss of self-control.
59. [59]
    The defence of compulsion is in a different category.  The respondent, properly, conceded that it was fairly raised on the evidence.  Accordingly, it was an error of law for the trial judge not to have directed the jury in respect of that defence.
60. [60]
    That error would occasion a miscarriage of justice, unless this Court could conclude that the jury’s satisfaction, beyond reasonable doubt, that the appellant was not acting in self-defence, also excluded, beyond reasonable doubt, a defence of compulsion.
61. [61]
    Compulsion and self-defence are separate defences.  They contain different elements.  Whilst both provisions may be invoked to exclude criminal liability, on the basis that the same threatened violence amounted to an assault upon a defendant, self-defence is only applicable where the threatened violence amounts to an assault, as defined in s 245 of the Criminal Code.  Compulsion is potentially applicable where the violence threatened does not amount to an assault, as so defined.^[12]
62. [62]
    At trial, the jury was directed that whilst self-defence contained four elements, two of those elements were not in dispute.  Relevantly, the trial judge directed the jury:

“… there are four matters you must consider in respect of self-defence.  Firstly, (1), was there an unlawful assault on the defendant by the complainant?  So did [the complainant] assault the defendant?  Now, the defendant gave evidence that the complainant, rushed at him angrily with his fists clenched up, and as a result, the defendant said he defended himself by striking him with the star picket.  He then said that he was further assaulted by the complainant picking up a sharp stick and threatening him with the stick.  Okay.  Obviously, the complainant said he did not have his fists raised and did not rush at the defendant in that manner, and said he only picked up the stick to defend himself after he’d been hit several times with the star picket, particularly on the back of the head and the back of his legs and then, of course, on the top of his head.  So a lot depends on the facts as you find them to be, okay?

So that’s the first element of self-defence.  Was there an unlawful assault on the defendant?  Did the complainant unlawfully assault him?  An assault can be a threatened assault, like rushing at someone with your fists up like you’re going to punch them or poking a stick at them.  (2), Whether the defendant provoked that assault.  The way the case has been run, it is not suggested by the prosecution that the defendant provoked an assault by the complainant.  You will appreciate the prosecution case here.  There was no such assault.  [The complainant] did not assault the defendant at all. The only time he picked up a stick was after he’d been hit several times with the star picket.  The third critical element is whether the force used by the defendant upon [the complainant], was reasonably necessary to make a factual defence against the assault, and finally, whether the force used was intended or such was as likely to cause death or grievous bodily harm.

Again, the way the case has been run, the prosecution don’t say that the force used by the defendant was intended to cause death or grievous bodily harm or that it was likely to cause death or grievous bodily harm.  So really focus on two elements.  Entirely a matter for you.  (1) Whether there was an unlawful assault by the complainant on the defendant, and whether the force used by the defendant in response was reasonably necessary to make effectual defence against the threatened assault.  So take the matters one by one.  So the first question, as I’ve said, is was the defendant unlawfully assaulted by [the complainant].  If you conclude that the defendant was not unlawfully assaulted by [the complainant], well, that’s the end of it.  Self-defence does not apply.  The prosecution would have excluded it.  I don’t need to deal with the question of provocation, given the way the case has been run.

So then the critical question is if, on the evidence, you are satisfied that there was an unlawful assault by [the complainant] upon the defendant, or you have a doubt that he may have been possibly assaulted, then consider this question of reasonably necessary force.  Was the force used by the defendant reasonably necessary to make effectual defence against the assault?  Whether the degree of force used was reasonably necessary to make effectual defence against an assault is a matter for your objective consideration.  It does not depend on the defendant’s state of mind or what he thought was reasonably necessary, so you put yourselves as bystanders there at that scene in that vacant lot looking at what unfolded, and ask yourselves, was it objectively necessary for the defendant to use the star picket in the manner that he did.

You recall the defendant gave evidence, of course, about how he used the star picket and that the blow to the front of the head was caused because he was threatened with the stick, he blocked the stick with the star picket, and in blocking, it slid down the stick and hit him on the head.  Of course, [the complainant] said he was just whacked on the head a number of occasions.  Of course, a lot will depend on the factual findings you make, and you would look at the independent evidence of the doctor as well as the injuries that are shown in the photographs on this.  Okay.  So I’ll repeat that.  Whether the degree of force used was reasonably necessary to make effectual defence against an assault offered by the complainant is a matter for your objective consideration.  It does not matter what the defendant thought about or what he thought was reasonably necessary.

In considering whether the force used by the defendant was reasonably necessary to make effectual defence, bear in mind that a person defending himself cannot be expected to weigh precisely the exact amount of defensive action that may be necessary.  Instinctive reactions and quick judgments may be essential.  You should not judge the actions of the defendant as if he had the benefit of safety and leisurely consideration.

So if you go to the handout that I gave you, the prosecution has the onus to exclude self-defence, to exclude it as a possibility.  The defendant does not have to show he acted in self-defence or prove that, and if you think he possibly acted in self-defence, well, then the prosecution would not have negated it.

So if we go to the handout, the prosecution will exclude self-defence acting in this case if it satisfies you beyond reasonable doubt that (1), the defendant was not unlawfully assaulted by the complainant, or that the force used was more than was reasonably necessary to make effectual defence, and the prosecution argument here, of course, is that you wouldn’t accept, firstly, that the complainant assaulted the defendant at all, but even if he did, the use of the star picket in the manner described and the injuries caused was way out of proportion to what was necessary to defend himself, okay?  Obviously, the defence say you can’t exclude that the defendant was properly acting in self-defence.  You’d accept his evidence and that the force he used, given that he was injured himself, was reasonably necessary in the circumstances, and the Crown have not excluded it.”

63. [63]
    As can be seen from the extract from the summing up, the two limbs of self-defence, which remained in dispute, were whether the appellant had been unlawfully assaulted by the complainant and if so, whether the force used by the appellant was reasonably necessary to make an effectual defence.
64. [64]
    Relevantly, s 31 of the Criminal Code provides:

3. “Justification and excuse—compulsion

3. (1)
   A person is not criminally responsible for an act or omission, if the person does or omits to do the act under any of the following circumstances, that is to say—

3. …

3. (c)
   when the act is reasonably necessary in order to resistactual and unlawful violence threatened to the person, or to another person in the person’s presence;

3. …

3. (2)
   However, this protection does not extend to an act or omission which would constitute the crime of murder, or an offence of which grievous bodily harm to the person of another, or an intention to cause such harm, is an element, nor to a person who has by entering into an unlawful association or conspiracy rendered himself or herself liable to have such threats made to the person.”

65. [65]
    Accordingly, the elements of the defence of compulsion that would have been considered by the jury, were whether: (1) actual violence was threatened to the appellant and (2) the violence threatened was unlawful and (3) the act done by the appellant was reasonably necessary in order to resist the threatened violence.
66. [66]
    Had the jury been directed in respect of a defence of compulsion, the jury would have been directed that the prosecution carried the burden of satisfying the jury, beyond reasonable doubt, that the appellant did not do the act of assault under compulsion.  Further, to satisfy that burden, the prosecution had to prove to the jury, beyond reasonable doubt, that at least one of those three factual circumstances was not present.  Practically, the jury would have been asked to consider whether the prosecution had proved, beyond reasonable doubt, that the appellant was not threatened with actual violence, or that what the appellant did was not reasonably necessary to resist the threatened violence.^[13]  The jury’s verdict of guilty of the offence, meant that the jury was satisfied, beyond reasonable doubt, that either the appellant had not been unlawfully assaulted by the complainant, or that the force used by the appellant was not reasonably necessary to make effectual defence (or both).
67. [67]
    Had compulsion been left to the jury, the jury would have been considering the same factual issues.
68. [68]
    The actual violence threatened was the complainant rushing angrily towards the appellant with raised clenched fists and picking up a sharp stick and threatening him with that stick.  Further, whether what the appellant did was reasonably necessary to resist the threatened violence, was practically the same issue as whether the force used by the appellant in response, was reasonably necessary to make effectual defence.
69. [69]
    These conclusions flow from the fact that whilst the elements of compulsion and self-defence differ, the jury was expressly directed that “a threatened assault by someone with the means to commit the assault – so if someone rushes at you with their hands clenched, shaping up to fight, that would be an assault at law; okay?  Or if someone comes running at you with a sharpened stick, that would be an assault at law, threatening to assault.”
70. [70]
    The jury’s satisfaction that the prosecution had negatived each of the limbs of self-defence in dispute at trial, means the jury equally would have been satisfied, beyond reasonable doubt, that the prosecution had negatived the elements of compulsion in dispute at trial.
71. [71]
    The failure of the trial judge to direct the jury in relation to compulsion, did not constitute a miscarriage of justice.  That failure did not deprive the appellant of a fair chance of a different outcome; it did not result in the appellant having a trial other than according to law, and it did not give rise to a trial where the failure to direct affected the outcome of that trial.^[14]

Order

72. [72]
    I would order:

1. The appeal be dismissed.

73. [73]
    WILSON J:  I agree with Boddice JA.