R v Lefoe[2024] QCA 240

SUPREME COURT OF QUEENSLAND

1. [1]
   MULLINS P:  As indicated to the parties during the hearing of the appeal, I watched the CCTV recordings of the incident that were tendered in the trial.  I agree with Crowley J’s summary in his Honour’s reasons of what that footage shows.  I also agree for the reasons given by Crowley J that the appeal must be dismissed.

2. [2]
   KELLY J:  I watched the CCTV recordings of the incident that were tendered in the trial.  I agree with Crowley J’s summary in his Honour’s reasons of what the footage shows.  I also agree for the reasons given by his Honour that the appeal must be dismissed.
3. [3]
   CROWLEY J:  Just after 1.00 am on 1 October 2019, the appellant and his friend, Shaun Simpson, were walking along Orchid Avenue, Surfers Paradise, after a night out with friends.  Mr Simpson was drunk.  The appellant was not.  At the same time, Ivan Susin and some of his friends had stopped further along the street to get some food from a kebab shop, after they too had been out in Surfers Paradise.  Mr Susin and his friends had all been drinking and were intoxicated to varying extents.
4. [4]
   The two groups came into contact when Mr Simpson apparently thought it would be funny to snatch some food from Mr Susin’s friends as they sat on a footpath bench eating their meals.  From there, matters soon escalated.  A verbal exchange turned into a physical fight, egregiously instigated by Mr Simpson.  Mr Susin was not there when the fight erupted, but upon seeing what was happening walked over and tried to intervene by throwing a wild punch that missed the back of Mr Simpson’s head.  The appellant, who was standing nearby, reacted almost immediately, punching Mr Susin once to the head.  Mr Susin dropped to the ground, struck his head hard on the concrete footpath and lay motionless.
5. [5]
   The whole incident was captured by CCTV.
6. [6]
   Mr Susin never recovered from hitting his head on the pavement.  He died on 11 October 2019.  The appellant was subsequently charged, and tried by jury, for the unlawful killing of Mr Susin.
7. [7]
   There was no dispute at trial that the appellant had struck Mr Susin’s head with his fist, which in turn had caused Mr Susin to fall to the ground and hit his head, resulting in fatal head injuries that caused his death.  The sole issue in dispute was whether the Crown had proven that the appellant’s killing of Mr Susin was unlawful and hence that he was guilty of the offence of manslaughter.
8. [8]
   The appellant’s case was that he had acted lawfully, either under compulsion to save Mr Simpson, or to aid Mr Simpson in self-defence, and therefore he was not criminally responsible for Mr Susin’s death.
9. [9]
   The Crown case in brief was that the appellant’s act of punching Mr Susin was unlawful as it was not justified, authorised or excused by law.  Whilst the Crown accepted that issues of compulsion and aiding in self-defence arose for the jury’s consideration, the Crown submitted that the jury would be satisfied it had negatived those defences beyond reasonable doubt.
10. [10]
    The jury were directed that in order to prove the element of unlawfulness the Crown had to exclude beyond reasonable doubt defences of compulsion, under s 31(1)(d) of the Criminal Code (Qld), and aiding in self-defence, under s 272 with s 273 of the Criminal Code.
11. [11]
    The jury found the appellant guilty.
12. [12]
    The appellant appeals against his conviction.  He advances three grounds of appeal:

“Ground One

The Crown Prosecutor’s address has given rise to a miscarriage of justice by:

1. materially misstating the facts, and,

2. by leaving a case for murder to the jury.

Ground Two

The trial Judge erred in respect of the directions concerning self-defence by:

1. leaving a question trail which withdrew self-defence from the jury’s consideration if one or more of their number were satisfied that the deceased was not provoked by Shaun Simpson,

2. failing to explain how the law of self-defence operated in circumstances where the jury could not know what motivated the deceased to join the fight, and

3. how self-defence operated in circumstances where the appellant testified that he was concerned as to the risks posed by the deceased’s conduct to himself.

Ground Three

The verdict is unreasonable”

13. [13]
    For the reasons that follow I would dismiss the appeal.

The trial issues and evidence

14. [14]
    Admissions were made by the parties in respect of non-contentious facts.  Amongst other things, the admissions confirmed that Mr Susin was dead; that the appellant had caused his death; and that a sample taken at 2.00 am on 1 October 2019 showed Mr Susin’s blood alcohol concentration was 0.178%.
15. [15]
    The Crown tendered recordings of relevant CCTV footage captured by cameras from the Gold Coast City Council and from the kebab shop on Orchid Avenue.  Those recordings showed the incident.  I have watched each of the CCTV recordings several times.
16. [16]
    On my assessment of the Gold Coast City Council CCTV, the footage shows the following:

    1. at about 01:04:10 am, two of Mr Susin’s friends, Mr Jonathan Lodge and Mr Kai Thake, are seated on a footpath bench on Orchid Avenue. The two men have food which they have purchased from the nearby kebab shop and are sitting down to eat their meals;
    2. at about 01:04:18 am, Mr Susin approaches the kerbside counter of the kebab shop, places an order and waits at the counter for his food. He is faced away from where his friends are seated;
    3. over approximately the next minute, Mr Susin remains at the kebab shop counter, whilst his friends sit on the bench eating their food from open containers balanced on their laps;
    4. at about 01:05:00 am, as they walk along Orchid Avenue, the appellant and Mr Simpson approach the location of the bench where Mr Lodge and Mr Thake are sitting. On the camera view, Mr Simpson is on the right-hand side, closest to where the men are seated on the footpath bench near the roadway, and the appellant is on the left-hand side, closest to the adjacent shopfronts;
    5. at about 01:05:02 am, as the appellant and Mr Simpson walk past Mr Lodge and Mr Thake, Mr Simpson leans down and grabs food from the container on Mr Thake’s lap. As they continue up the street, Mr Simpson eats the food and is smiling and laughing. The appellant is also smiling and laughing. Mr Simpson and the appellant each turn back to face towards Mr Thake and Mr Lodge as they continue to walk backwards along the street away. Mr Simpson claps his hands. At the same time, Mr Thake and Mr Lodge gesture towards Mr Simpson and appear to be saying something to him (there is no audio). It is readily apparent that they are rebuking Mr Simpson for stealing some of Mr Thake’s food. Mr Simpson stops at the very edge of the area covered by the CCTV footage, whilst continuing to face back towards Mr Thake and Mr Lodge. The appellant stops briefly next to him, half-turned and nodding his head. The appellant is wearing a dark coloured hoodie with the hood pulled up;
    6. at 01:05:15 am, the appellant continues up the road away from Mr Simpson disappearing from the camera view, whilst Mr Simpson pauses, then walks back towards Mr Lodge and Mr Thake, demonstratively licking his fingers and walking in an exaggerated hulking fashion as he nears the men;
    7. at about 01:05:22 am, Mr Simpson is back at the bench, standing over Mr Thake and Mr Lodge, bending down close to their faces in what can only be described as an aggressive, confrontational posture. Words appear to be exchanged between the men;
    8. at about 01:05:34 am, Mr Simpson lashes out with a flurry of punches aimed at Mr Lodge’s head. As Mr Lodge stands to defend himself, Mr Simpson grapples with him and eventually pulls him away from the bench and the pair fall to the ground. They continue to scuffle on the ground, with Mr Simpson on top and Mr Lodge underneath. Mr Thake stands from the bench and walks towards them, still holding his open takeaway container in one hand. At this point, Mr Susin is still waiting at the kebab shop counter and is oblivious to the confrontation and fight unfolding behind him and the appellant is still off screen;
    9. at about 01:05:37 am, the appellant again appears, walking back up the street towards where Mr Simpson and Mr Lodge are fighting on the ground. As he walks towards the men, he slides his left hand into the left rear pocket of his jeans. He passes Mr Susin who is still waiting at the kebab shop counter. It is about this time that Mr Susin turns and notices the altercation taking place down the street. He walks from the counter towards the fight, effectively following the appellant;
    10. at about 01:05:44 am, the appellant arrives at the scene and stands close to where Mr Simpson and Mr Lodge are fighting on the ground. Mr Thake reaches down with one hand, while still holding his container of food in the other, to grab Mr Lodge’s fist as he tries to punch Mr Simpson. The appellant then uses his right hand to push Mr Thake back and away. Mr Simpson is still on top of Mr Lodge and punching at his head as Mr Lodge attempts to fight back;
    11. Mr Susin then walks up behind Mr Simpson, who is crouched atop Mr Lodge, and stands just in front of the appellant. Mr Susin reaches out with his left hand placing it on or near Mr Simpson’s back, as if trying to steady himself or to line up Mr Simpson. At about 01:05:47 am, Mr Susin swings his right arm with a closed fist at the back of Mr Simpson’s head. He misses completely. The momentum of his swing spins his body around so that he ends up off balance, facing back towards the appellant;
    12. almost immediately, at about 01:05:49 am, the appellant reaches out his left hand to grab Mr Susin’s right shoulder and punches Mr Susin once to the head with his closed right fist. Mr Susin falls back and hits the pavement, where he does not move. The appellant pulls back his hoodie, faces towards Mr Thake and then grabs at Mr Lodge and Mr Simpson as they wrestle on the ground;
    13. by about 01:05:55 am, Mr Simpson and Mr Lodge are standing but continuing to grapple. The appellant is standing next to them as they wrestle. As they turn away from him, he swings a punch at the back of Mr Lodge’s head but misses. Various other persons then start to intervene, including Mr Medhi Hajimiran, the owner of the kebab shop, and the pair are separated. The appellant starts to guide Mr Simpson away from the scene. Mr Thake attends to Mr Susin who has still not moved;
    14. at about 01:06:10 am, as the appellant leads Mr Simpson away from the area, Mr Simpson lashes out at Mr Hajimiran, punching him to the side of the head. The appellant gesticulates towards Mr Hajimiran and pushes him away as he and Mr Simpson walk off.
17. [17]
    The kebab shop CCTV shows a more limited view of some of the above events. However, it clearly shows Mr Susin’s attempted punch at Mr Simpson’s head missed by a wide margin.
18. [18]
    The Crown called Mr Lodge as a witness. In describing the initial conduct of Mr Simpson, Mr Lodge said “…this one gentleman fella he came past and started to cause a load of trouble…” He explained that the man had stolen some chips from Mr Thake and that he continued to cause trouble. He said he tried to defuse the situation. He recalled that the man was still trying to provoke them even after he had walked on about ten metres. He recalled telling the man to leave them alone as they were not interested and did not want to cause any fights. He said that as he went back to eating his food, the man came back and stood over them, before dragging him off the bench.
19. [19]
    In describing the assault upon him by Mr Simpson, Mr Lodge said:

“He didn’t just grab me off the bench. He actually punched me first and then dragged me off the bench…and then I…went on me back. And then just taking punches sort of mainly – mainly my torso, my chest and into – into the side near my kidneys…I started to sort of punch back, really, naturally. He was on top he – I would say he – well, he was obviously the aggressor, I didn’t provoke any of it and I just tried to defend myself in the same way that most people would, I guess…”

20. [20]
    No doubt for forensic effect, the appellant’s trial counsel emphasised in his cross-examination of Mr Lodge that the other man had punched Mr Lodge first and that he had then punched the man back to defend himself.
21. [21]
    The Crown called various other eyewitnesses.  It is not necessary to detail their evidence.  Consistent with the CCTV footage, they variously described Mr Simpson as the aggressor who started the fight by punching Mr Lodge while he sat on the bench.  They also described Mr Susin being hit by a single punch to the head and falling to the ground.
22. [22]
    One eyewitness, Mr Daniel Gill, who saw the incident unfold as he sat outside a nearby shop on Orchid Avenue, gave this evidence:

“…what I saw was two people get into an altercation over what appeared to be food at the time. And what happened from there is they got into a bit of a scuffle and they both stood up and started exchanging some punches. From there a third person had run in. He had tried to throw a haymaker punch he had missed and the momentum had carried him through around to the other side and then I witnessed him get hit in the head and it knocked him out and went straight to the ground.”

23. [23]
    Mr Gill confirmed that the initial fight had been initiated by the “bloke who had stolen the food”.
24. [24]
    In cross-examination, Mr Gill accepted that when he described the third person’s punch as a “haymaker” he meant “a forceful blow” and “a punch delivered with great force”.
25. [25]
    Mr Thake was not called by the Crown as a witness.  A police officer gave evidence that enquiries had been made but police were unable to locate Mr Thake.  The trial judge directed the jury not to speculate about what might have been said by persons who may have been able to give relevant evidence but who were not called as witnesses at the trial.^[1]
26. [26]
    The appellant gave evidence.  He said that he and his family were visiting the Gold Coast and the evening before the incident he had been out for a night catching up with friends, including Mr Simpson.  By the end of the night, it was just he and Mr Simpson who were each heading home in the same direction.  He described Mr Simpson as intoxicated but said he had not been drinking as he does not drink.  He said Mr Simpson was “clowning around…like a goose…Marching up the street and just jumping around.”
27. [27]
    The appellant said he wanted to buy a pack of cigarettes from a convenience store.  He recalled that as they passed two men sitting on the bench outside the kebab shop, Mr Simpson, “…was still clowning around being drunk and grabbed one of the person’s, I believe it was a chip…Out of his lap.”  The appellant said there was then a bit of “back and forth” with the men sitting on the bench, but he continued to walk towards the convenience store.  He said Mr Simpson had initially paused for a bit but “…because he started coming towards me…” he thought Mr Simpson was following him to the convenience store.  The appellant said he went into the convenience store and bought cigarettes.
28. [28]
    The appellant gave evidence that he now knows that Mr Simpson did not follow him to the convenience store but instead went back to the men on the bench and punched one of them.  He said that at the time he did not know they were fighting until he walked back out of the convenience store “…and I’ve looked to my left and there’s two people on the ground fighting.  Which then I realised was – one was my mate and one, yeah, another person.”  Describing Mr Thake, the appellant said he also saw a third person, “…like, standing sort of, like, in front of them like over them, over the top of them.”  He said his first reaction was to “…go stop the fight, get my mate.”
29. [29]
    The appellant said he then walked back down towards the men and, in describing actions directed towards Mr Thake, said, “…I put my hand out like that and my other hand I’m like, ‘Like, help me, like, stop it.  Like, stop, stop, stop fighting, you know.  What are you doing?’” The appellant said that he did this because he did not want the third person to start fighting either.
30. [30]
    As I have noted above, at this point the CCTV footage actually shows that the appellant uses one hand to push Mr Thake back and away from the two men on the ground.  It is not apparent that the appellant was saying anything to Mr Thake.
31. [31]
    The appellant then said of Mr Susin’s involvement:

“And then from – just from out of nowhere someone’s come from behind me on the side and thrown a big haymaker, a big dog shot to the back of my friend’s head…It was a full motion – like, a full-body roundhouse full swing to the back of my mates [sic. mate’s] head while he was on the ground.”

32. [32]
    When asked to describe what he thought at the time, the appellant said, “…I was scared for my – my friends [sic. friend].  I thought I have to help him.”  When asked why he was scared for his friend, the appellant said, “[B]ecause he – it was from behind.  He wouldn’t – he – no one seen it – he didn’t see it coming.”  When asked what he thought was going to happen, the appellant said, “I thought he was going to keep punching him or myself.”  He further explained “…in a split-second decision, I reacted with a punch myself.”  When asked what was going through his mind at the time he said, “That he’s going to keep punching my friend or myself.”
33. [33]
    In response to a question asking him to explain why he had punched Mr Susin instead of pushing him away or otherwise trying to break up the fight, the appellant said:

“…I was scared for my mate’s safety because a coward – a big punch had just been thrown. I thought that was the only option. I didn’t feel like I could push him away; he’s already thrown punches.”

34. [34]
    The appellant said that after he punched Mr Susin, he continued to try to get Mr Simpson up from the ground and to separate him and the other man from throwing punches at each other.
35. [35]
    In cross-examination, the appellant was asked a series of questions interspersed between being shown segments of the Gold Coast City Council CCTV recording.  He agreed that after Mr Simpson had stolen some food from them that Mr Simpson was taunting the two men on the bench.  He agreed that in the verbal back and forth that he had “said some stuff” as he got further up the street.  He explained that he was telling Mr Simpson to “let it go” and the others to “leave it.”  He said the last thing he wanted to do was cause fights or dramas.
36. [36]
    The appellant denied that he was concerned at this stage that Mr Simpson was going to get in a fight and said, “my concern’s pretty much gone because my friend has started walking up the street as well.”  He agreed that he was nodding while Mr Simpson was engaging with the men and that at one stage laughed at what the other man had been saying to Mr Simpson.  He said he was not concerned that Mr Simpson was going to do something, as he was walking off.
37. [37]
    The appellant reiterated that he had gone into the convenience store and purchased a packet of cigarettes.  He said that as he was walking back out of the shop, he put them in his back left pocket.  He said that this all happened “fairly quick”, and he had not looked to see where Mr Simpson was while he was in the convenience store.
38. [38]
    The appellant variously denied seeing Mr Simpson walking back towards the two men; seeing Mr Simpson licking his fingers; seeing Mr Simpson leaning down close to the faces of the two men while they sat on the bench; and seeing Mr Simpson swinging a punch at Mr Lodge’s head.  He also denied that when he went back towards where the men were on the ground that he had not done anything.  He stated, “I put my hand up to the person that’s standing over the – the two that are on the ground” and said that he did that because he thought the other man was going to join the fight.
39. [39]
    The appellant denied further suggestions that he was not trying to stop the fight; and that he had pushed Mr Thake away when Mr Thake had reached down towards Mr Lodge to stop him punching Mr Simpson.  He disagreed that he had not tried to pull Mr Simpson up from the ground.  He said he believed that he had done that after he had pushed Mr Thake away.
40. [40]
    After being replayed the relevant portion of the CCTV recording, the appellant conceded that he had not tried to pull Mr Simpson up at that point, but said that he had been “looking down telling them to stop” and added, “…I didn’t get a chance to get my hand from putting my cigarettes in my back pocket before the next person come with the big – the big haymaker on the side – on the back.”  He further accepted he had pushed Mr Thake away but disagreed with the suggestion that he had done so because he thought it should just be a fight between the two men on the ground.
41. [41]
    When it was put to him that Mr Susin’s punch did not hit Mr Simpson, the appellant stated:

“I’m not – not really sure…it happened so quick…I believe he just missed – yeah – or might’ve just grazed the top of his head – went over the top of his head – back of his head.”

42. [42]
    When it was further put to the appellant that the CCTV footage showed that Mr Susin missed Mr Simpson with his punch, the appellant said, “I wasn’t aware of that at the time.  I thought it got his head…Or just gone over the top of…” He denied knowing that the punch had missed.
43. [43]
    Thereafter, in response to a series of questions about his reaction to Mr Susin’s punch, the appellant gave the following evidence:

“Okay. And you immediately agreed you grab – you grabbed him by his right shoulder?---I reacted - - -

Do you agree you grabbed him by his right shoulder?---Oh, I – I’m not sure, to be honest.

All right. Well, I’ll suggest that you did. You can either – so you say you don’t remember doing that?---Oh, yeah. I might have grabbed – yeah. I agree I grabbed him – I might’ve grabbed him by the shoulder or – yep.

All right. It’s because you didn’t want him to be able to move because you wanted to be able to throw that punch to his face?---No. It was because he was going to throw punches at my friends [sic. friend] or myself. It ---

Well, he hadn’t tried to punch at you yet?---Yeah. But he was throwing it to the back of my mate’s head, who’s on the ground.

You agree he hadn’t thrown a punch at you?---It was a pretty big haymaker. It could’ve hit anyone. I was right in the – next to him.

His punch hadn’t hit you?---No, no punch had hit me.

Right. And, in fact, no punch had hit your friend?---I’m not too sure.

You didn’t know that he knew the person that was underneath Shaun?---No, I didn’t know anyone of any of them.

So, in fact, you just said you didn’t know who he was trying to hit, he could’ve hit anyone?---It was – no, he was definitely trying to hit my friend.

All right. So he wasn’t trying to hit you?---No.

All right. So you weren’t actually concerned that he was going to hit you?---Yes, I was concerned.

Okay. What about what he did made you concerned that he might hit you?---He come running in from behind and hit – tried to hit or hit someone that’s on the ground.

Right. But you weren’t doing anything at that point?---I’m trying to stop the fight and he’s just provoked it.

What were you doing to try and stop the fight at the point Ivan came in?---I’m telling them to stop. Telling them to get up, that’s enough. That’s enough. And asking the – the other person to help me just stop it. Obviously, it must’ve been his friend, so I’m telling him to grab his friend, stop, stop, stop, what are youse doing.

…

Right. So you grabbed Ivan by his right shoulder and you punched him in the face?---Yeah, I reacted with a punch - - -

All right?--- - - - from his punch, yep.

You punched him as powerfully as you could?---Nuh, I disagree.

Right. You punched him to the head?---I – I believe – I believe so.

Yes. That’s where you were trying to hit him?---Nuh, I was – just reacted with a punch.

But you managed to grab onto his shoulder first; do you agree?---Yeah, I – yeah, I agree.

Right. And can I suggest that when you grabbed him, he wasn’t even looking at you?---I disagree.

Right. He had his arms down by his side when you grabbed him?---I – I’m not too sure.

Right. What do you remember he was doing when you grabbed his shoulder?---Well, all I remember is after he’s come in with the big haymaker, I’ve reacted in a split second decision with a – I’ve reacted with a punch because I was – I was scared for myself and my friend because he was going to continue to punch and fight. He was there to obviously fight, not to help break it up.

All right. Well, you – did you see when he threw this punch that he seemed to lose his balance and ended up on the other side of Shaun?---Did I see that?

Yes?---Not that – it all happened so fast. Not – not that I recall, no. It’s a split – it’s – it’s a split second, like, it’s so fast.

So you didn’t wait to see what he might do next?---No, it was very obvious that he was going to continue to hit my mate or me.

What did he do?---He just come from behind, ran in from behind and tried to knock my mate out from behind.

Right. But he’d missed and ended up on the other side of Shaun; do you accept that?---I don’t know about on the other side of him, but maybe around a bit, yeah.

And he’d done nothing more before you grabbed his shoulder and punched him in the face?---No, because I reacted to his haymaker.

When you grabbed him by the shoulder, you could’ve shoved him?---I don’t feel – nuh, I disagree.

Okay. You could’ve pushed him with both your hands?---I disagree.”

44. [44]
    The appellant agreed that in the following commotion after he had punched Mr Susin that he had also tried to punch Mr Lodge from behind but had missed his head.  When he was asked to explain how that was breaking up the fight, the appellant said:

“Well, it’s past the point of breaking the fight up. No one is helping me break it up. No one is stopping. Everyone is still going at it. Everyone is drunk. They’re all drunk…Yeah, I thew a punch. Didn’t join the fight, I missed, but then I proceeded to pull them apart and push my mate away up the street.”

45. [45]
    The appellant disagreed with final propositions put to him by the prosecutor that his motivation for standing next to Mr Simpson while he was on top of Mr Lodge was to keep other people out of the fight and that his intention throughout the whole incident was to let Mr Simpson continue fighting, because he was clearly bigger and winning.

Consideration

46. [46]
    It is convenient to first set out relevant provisions of the Criminal Code relating to the defences of compulsion and self-defence.
47. [47]
    Section 31(1)(d) provides for a defence of compulsion in these terms:

“31 Justification and excuse—compulsion

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—

…

4. when—

1. the person does or omits to do the act in order to save himself or herself or another person, or his or her property or the property of another person, from serious harm or detriment threatened to be inflicted by some person in a position to carry out the threat; and

2. the person doing the act or making the omission reasonably believes he or she or the other person is unable otherwise to escape the carrying out of the threat; and

3. doing the act or making the omission is reasonably proportionate to the harm or detriment threatened.”

48. [48]
    The relevant self-defence provisions are ss 271, 272 and 273, which provide:

“271 Self-defence against unprovoked assault

1. When a person is unlawfully assaulted, and has not provoked the assault, it is lawful for the person to use such force to the assailant as is reasonably necessary to make effectual defence against the assault, if the force used is not intended, and is not such as is likely, to cause death or grievous bodily harm.

2. 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.

272 Self-defence against provoked assault

1. When a person has unlawfully assaulted another or has provoked an assault from another, and that other assaults the person with such violence as to cause reasonable apprehension of death or grievous bodily harm, and to induce the person to believe, on reasonable grounds, that it is necessary for the person’s preservation from death or grievous bodily harm to use force in self-defence, the person is not criminally responsible for using any such force as is reasonably necessary for such preservation, although such force may cause death or grievous bodily harm.

2. 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.

273 Aiding in self-defence

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.”

49. [49]
    The only defence of self-defence that was left for the jury’s consideration here was aiding in self-defence, under s 272 with s 273.

Ground 1: Did the Crown Prosecutor’s address cause a miscarriage of justice?

50. [50]
    The appellant makes two complaints about the prosecutor’s closing address.  The first is that the prosecutor materially misstated the facts.  The second is that the prosecutor left a case for murder to the jury.
51. [51]
    The first point concerns the following passage from the prosecutor’s closing address, where the prosecutor was arguing that the Crown had negatived the defence under ss 272 and 273 of aiding another in self-defence:^[2]

“And he’s allowed to intervene and act if he has a reasonable apprehension or a reasonable belief that it was necessary to stop Shaun Simpson from being killed or suffer in grievous bodily harm from Ivan Susin. He has to believe that; that is, the defendant. Now, Mr McCafferty told you, there’s no one better to tell you about what the defendant was thinking at the time than the defendant himself. The defendant didn’t tell you that when he grabbed onto Ivan Susin and threw that punch in his face that he through [sic. thought] Ivan Susin was going to kill or cause grievous bodily harm to Shaun Simpson. He never told you that. And as Mr McCafferty told you, who better to tell you what he was thinking than the defendant himself.

What he did tell you was that he was worried that Shaun Simpson might get hurt. Well, ‘getting hurt’ is just not enough. Because as I say, if you start a fight, you have to tolerate people defending themselves against it.”

52. [52]
    The appellant submits that it was wrong of the prosecutor to tell the jury he had not given evidence that, when he threw his punch, he thought Mr Susin was going to kill or do grievous bodily harm to Mr Simpson.  He says that he did give evidence about his concerns that Mr Susin had tried to knock out Mr Simpson from behind with a big haymaker punch and that he was scared for himself and Mr Simpson because he thought Mr Susin was going to continue to punch and fight.  He points to the definition of grievous bodily harm in s 1 of the Criminal Code and says that his testimony raised the risk of its infliction.
53. [53]
    The appellant further contends that the error caused by the prosecutor’s misstatement of the evidence was compounded by the trial judge failing to direct the jury as to what constitutes grievous bodily harm and by repeating the prosecutor’s submission in her Honour’s summing up.
54. [54]
    In my view, there is nothing in any of these complaints.
55. [55]
    The prosecutor did not materially misstate the facts.  It is plain that the appellant did not give direct evidence that he thought Mr Simpson might be killed or suffer grievous bodily harm.  Whilst direct evidence is not necessary and a defendant’s state of mind in this respect may be established by inference,^[3] that does not make the prosecutor’s statement wrong or inappropriate.  The fact that it may have been open to the jury to infer from the evidence, including the appellant’s testimony, that had Mr Susin’s punch connected it was capable of causing grievous bodily harm to Mr Simpson, or to draw an inference about the appellant’s subjective state of mind in that respect, does not show that the prosecutor misstated the evidence.
56. [56]
    Whilst the trial judge did not instruct the jury in terms of the full s 1 definition of “grievous bodily harm” it is not correct to say that her Honour gave no direction on the point.  The trial judge directed the jury that “for your purposes, grievous bodily harm is really serious injury”^[4] and later referred to “very serious injury”.^[5]  It may have been that the trial judge used these short-hand descriptions to simplify the issue or to ensure a level of consistency with the directions her Honour gave on compulsion, which required the jury to consider whether “serious harm or detriment” was threatened to Mr Simpson.  Regardless, in my view it would have been preferable for the jury to be told of the full definition of grievous bodily harm.  Nevertheless, I consider the short-hand explanations given were adequate in the circumstances of this case.  Furthermore, to the extent that they suggested a less severe injury might constitute grievous bodily harm they were favourable to the appellant.
57. [57]
    As to the second point of complaint under this ground of appeal, the appellant contends that the prosecutor went on to put a case for murder to the jury by making the submissions about the appellant’s actions that appear in bold in the following excerpts from the prosecutor’s closing address:

“Jordan Naylor described to you that it was ‘a blow hard enough that Ivan just fell, like, lifeless before he fell’. Daniel Gill described that ‘it knocked Ivan out’ and Keesha Martinuzzo described, ‘Ivan was completely knocked out in just that one punch’. So that might suggest to you how much effort was put into applying that force to Ivan’s face.^[6]

…

The defendant told you that he walked over there intent on trying to break up the fight. He suggested to you he did things to try and pull Shaun Simpson off of Johnny Lodge. The footage doesn’t reveal that. He says he told to Kai Thake, “Help me break it up”. That’s not what he did in that footage. He pushed Kai Thake away to get him away from the pair on the ground. Can I suggest he punched Ivan Susin to keep him out of it so his friend could keep winning that fight because, in fact, once Ivan Susin was on the ground, he doesn’t try to break up the fight.”^[7]

58. [58]
    Nothing said by the prosecutor during these passages could sensibly be construed as suggesting that the Crown was urging the jury to consider a case of murder.  I agree with the respondent’s submission that the appellant’s contention to the contrary is “bewildering”. The prosecutor’s submissions accurately recited the relevant evidence and were in no way improper.
59. [59]
    This ground of appeal fails.

Ground 2: Were the trial judge’s directions on self-defence deficient?

60. [60]
    The appellant makes three related complaints under this ground.  All three grounds relate to the directions given by the trial judge, accompanied by a written question trail document, titled “Possible Course of Deliberations”, which focused solely upon the defence under s 272, with s 273, of aiding in self-defence against a provoked assault.
61. [61]
    It is convenient to consider these complaints by reference to the questions posed in the question trail document.  Questions 1 and 2 asked whether the jury was satisfied beyond reasonable doubt that Mr Susin was dead; and that the appellant had caused his death.  As these matters were not in dispute and were the subject of admissions, the document noted the answer to each question was “Yes”.  Question 3 then asked, “Are you satisfied, beyond reasonable doubt, that the defendant did so unlawfully?”, noting that if the answer was “Yes” the appellant was guilty of manslaughter but if the answer was “No” he was not guilty of manslaughter.  Question 3 further noted that in order to answer the question it was necessary for the jury to work through the series of questions further set out in the document.  In that respect, Question 4 dealt with the defence of compulsion and Question 5 dealt with defence of aiding in self-defence.  Each of those questions contained a series of sub-questions.  The concluding sub-question in Question 4 noted that if the jury was satisfied that the defence of compulsion did not apply then it was necessary to consider Question 5 – aiding in self-defence.
62. [62]
    The relevant portion of the question trail document dealing with Question 5 stated:

63. [63]
    The appellant’s complaints under this ground of appeal all relate to Question 5.1.
64. [64]
    Firstly, the appellant says the directions were erroneous because if the jury was satisfied beyond reasonable doubt that the answer to Question 5.1 was “No”, then the outcome would be that the appellant would be unable to rely upon any defence of aiding in self-defence at all.  The appellant contends that because of this potential consequence the trial judge should also have directed the jury as to the availability of a defence of aiding in self-defence against an unprovoked assault, under s 271 with s 273, and the failure to do so has caused a miscarriage of justice.
65. [65]
    Secondly, the appellant says the directions failed to explain how the law of self-defence operated in circumstances where the jury could not know what motivated Mr Susin to join the fight.  This argument again touches upon the issue of whether Mr Susin was provoked by Mr Simpson’s assault upon Mr Lodge.
66. [66]
    Thirdly, the appellant says that the trial judge failed to leave for the jury’s consideration a stand-alone defence under s 271 in respect of his own concerns about the threat and risk Mr Susin posed to him.
67. [67]
    Before further considering these matters and the self-defence directions given by the trial judge, it is helpful to first outline how the final directions came to be fashioned through the course of discussions with counsel during the running of the trial.
68. [68]
    The trial judge first raised with counsel the issue of the applicable defences that were to be left to the jury, and the preparation of a question trail, on the afternoon of the first day of the trial.  At that time, the appellant’s trial counsel foreshadowed that the defences to be relied upon would be compulsion, under s 31(1)(d), and self-defence, under s 272, with s 273.  The appellant’s counsel agreed with the trial judge’s observation that directions on mistake of fact under s 24 would also be required in respect of the issue of aiding in self-defence.
69. [69]
    When the trial judge queried whether s 271 was also relied upon, the appellant’s counsel expressed reluctance, stating:

“…In terms of 271 and 272, the argument is, of course, whether Simpson provoked an attack from Susin. On one view, perhaps he did by fighting with Lodge, almost the same situation Mr Lefoe might find himself in, but we’ll think about that more overnight. I’ve had some very preliminary discussions with my learned friend about it, but it is quite complicated. One doesn’t want to necessarily confuse the jury with unnecessary matters.”

70. [70]
    At the end of the first day of trial, the trial judge again raised the issue of defences with counsel, noting the potential difficulty for a s 271 defence to be left because the jury would then need to consider whether Mr Susin had unlawfully assaulted Mr Simpson, which would require consideration of whether he himself had been aiding Mr Lodge in self-defence.  Although the appellant’s counsel initially agreed with both of these observations, he added that he wanted to think about the matter overnight.
71. [71]
    In response to that exchange, the prosecutor submitted:

“I say section 271 doesn’t apply in this situation because, realistically, Mr Lefoe assumes the responsibility of Mr Simpson in that he can’t act in any other way other than Mr Simpson would be entitled to defend himself.

In my submission, as your Honour’s already identified, Mr Susin was acting lawfully because Mr Simpson is clearly, on the footage, the – and in the evidence – and it’s not challenged – that he’s the person who starts the fight with Mr Lodge. And so, therefore, Mr Susin is able to act in aid and act lawfully in attempting to aid Mr Lodge in defending himself against Mr Simpson.

But section 272 is available and doesn’t have that requirement that Mr Susin be acting unlawfully. But what it requires is that there be that concern that Mr Susin is going to cause grievous bodily harm or death to Mr Simpson for him – for, then, Mr Lefoe to step in and act accordingly. Because I can’t say and I wouldn’t be suggesting that Mr Simpson was intending to cause grievous bodily harm or kill Mr Lodge.

I say Mr Simpson has unlawfully…assaulted Mr Lodge, which has obviously prompted Mr Susin to act in Mr Lodge’s aid.”

72. [72]
    The prosecutor further submitted that only s 272 could arise because, a person being assaulted who had provoked the assault (i.e., Mr Simpson) is only able to start defending themselves if they become fearful of grievous bodily harm or death.
73. [73]
    It is plain from the responses that then followed that the trial judge and counsel for the appellant accepted the correctness of the prosecutor’s analysis and submissions.  Indeed, the trial judge concluded the relevant portion of the discussion by noting, “…it seems there’s furious agreement about [s] 271.”  The appellant’s counsel agreed there was and stated he was grateful to the prosecutor.
74. [74]
    The issue of available defences was next raised on the second day of trial after the close of the case for the appellant but before counsel’s closing addresses.  It is apparent that by that stage the trial judge had circulated a first draft of the proposed question trail to the jury and counsel had already responded with some suggested amendments.^[8]  That draft included a proposed Question 5.1 in the same terms as it ultimately appeared in the final version, asking “Did Shaun Simpson provoke an assault from Ivan Susin?” As with the final version, the draft noted that if the jury was not satisfied of that matter beyond reasonable doubt, then the defence of aiding in self-defence against a provoked assault was not available.  No changes were suggested in respect of Question 5.1.
75. [75]
    In the course of discussing proposed jury directions, the appellant’s counsel returned to the potential availability of s 271, stating:

“…The only other matter that has arisen, only during Mr Lefoe’s evidence, is whether, potentially, section 271 is available to him. That is, the evidence was – I’ve got a brief note of it:

I thought he was going to hit my mate, Simpson, or me.

I just want to think about that overnight. And one doesn’t necessarily want to complicate things too much for a jury…”

76. [76]
    Following this discussion, each of the appellant’s counsel and the prosecutor gave their closing addresses to the jury.
77. [77]
    The following morning, just before the trial judge commenced summing up, the parties discussed the further revised draft of the question trail and a draft of her Honour’s summing up that had been circulated,^[9] each incorporating the amendments to the directions previously suggested by counsel.  Both the appellant’s counsel and the prosecutor indicated there were content with the final version of the draft question trail.  Neither raised any issues with respect to the draft summing up.  There was no further discussion about the potential availability of any defence under s 271 in the ways that are now said should have been left to the jury.
78. [78]
    In his closing address, counsel for the appellant urged the jury to consider that the appellant was aiding Mr Simpson in self-defence; did not suggest that Mr Simpson was entitled to act in self-defence against an unprovoked assault; and did not submit that the appellant may have been acting in his own self-defence.
79. [79]
    As the foregoing and an examination of the whole of the record indicates, the appellant’s counsel did not ultimately ask for a defence under s 271, either with or without s 273, to be left to the jury.  Further, at no stage before, during or after the trial judge’s summing up, did the appellant’s counsel seek any further or other direction with respect to the s 272 with s 273 defence of aiding in self-defence.
80. [80]
    Of course, the fact that trial counsel did not ask for a direction is not determinative of whether there has been a miscarriage of justice.  Irrespective of the position taken by defence counsel, it is the duty of a trial judge to leave to the jury for its consideration, and to direct the jury accordingly, any defence that fairly arises on the evidence.^[10]
81. [81]
    The question for a trial judge in such circumstances is whether, on the version of events most favourable to the accused that was suggested by the evidence, a properly instructed jury acting reasonably might fail to be satisfied beyond reasonable doubt that the accused was not acting in circumstances giving rise to the defence.  Or, to put it another way, the question for the trial judge is whether, on such a version of events such a jury could be left with a reasonable doubt as to whether the defence had been negatived.^[11]
82. [82]
    In my view, the suggested defences under s 271 did not fairly arise on the evidence and hence the trial judge was not obliged to leave them to the jury for their consideration.  Although the appellant did not specify whether a defence under s 271(1) or (2) or both ought to have been left for the jury’s consideration, in my view the same result pertains regardless of which limb is considered.
83. [83]
    With respect to any defence of acting in his own self-defence, the starting point is to observe that there was no evidence that the appellant had actually been assaulted by Mr Susin.  In that respect, as the question trail document noted, s 245(1) of the Criminal Code defines an assault in these terms:

“245 Definition of assault

1. A person who strikes, touches, or moves, or otherwise applies force of any kind to, the person of another, either directly or indirectly, without the other person’s consent, or with the other person’s consent if the consent is obtained by fraud, or who by any bodily act or gesture attempts or threatens to apply force of any kind to the person of another without the other person’s consent, under such circumstances that the person making the attempt or threat has actually or apparently a present ability to effect the person’s purpose, is said to assault that other person, and the act is called an assault.” (my emphasis)

84. [84]
    The CCTV footage of the incident clearly shows that when the appellant struck Mr Susin to the head with a closed fist, Mr Susin was clearly intoxicated, had his arms down, had not raised a hand towards the appellant, was unsteady on his feet and still recovering his balance as a result of the wild swing he had taken at Mr Simpson.  At the time the appellant punched him, Mr Susin had not struck, touched, moved or otherwise applied force of any kind to the appellant; nor had he, by any bodily act or gesture, attempted or threatened to do any such thing to the appellant.  The first time Mr Susin would even have been aware of the appellant’s presence was when the appellant was punching him in the face.
85. [85]
    Whilst Mr Susin may not have actually assaulted the appellant, his own evidence speculated that he thought Mr Susin was going to continue to throw punches and might hit him.  On that basis, the hypothesis now advanced is that the appellant was therefore justified in a pre-emptive strike to prevent any such assault to himself.
86. [86]
    Even if the matter is considered on the dubious basis that the appellant actually believed that Mr Susin might hit him, a defence under s 271(1) still did not fairly arise on the evidence.  That is because there was no realistic prospect that the jury would have failed to exclude the defence beyond reasonable doubt as, on any view of the evidence, the appellant’s punching of Mr Susin was not reasonably necessary to make effectual defence against any such assault.  As was made plain in R v Hagarty,^[12] the test under the first limb of s 271 is an objective one.  A defendant’s state of mind as to the degree of force necessary is not relevant.  As Williams JA put it in R v Hagarty, the question for the jury in a case of a supposed pre-emptive strike would be: “in all the circumstances confronting the defender at the time, applying objective tests, what was the likely attack and was the response reasonably necessary to make effectual defence against that attack.”  There was no objective likelihood that Mr Susin would physically assault the appellant at the time he struck Mr Susin, and the appellant’s response was not reasonably necessary to make effectual defence against any such potential assault.
87. [87]
    As for a s 271(2) defence, the difficulty again for the appellant is that there was no assault upon him by Mr Susin.  But, even if the argument is considered on the generous basis, relying upon s 24 of the Criminal Code, that he had an honest and reasonable but mistaken belief that Mr Susin might hit him, and hence his actions would be judged according to his perception as to the state of things rather than reality, the insurmountable difficulty is that there would have been no realistic possibility of the jury failing to have been satisfied beyond reasonable doubt that the nature of that “assault” was not such as to cause the appellant to have a reasonable apprehension of grievous bodily harm or death to himself or that the appellant believed on reasonable grounds that he could not otherwise preserve himself from grievous bodily harm or death.  The appellant had not been the target of Mr Susin’s failed punch and Mr Susin was not posing any threat of an assault to the appellant, nor was he in any position to carry out such an assault when the appellant struck him.
88. [88]
    In my opinion, it is highly likely that the appellant’s trial counsel appreciated these various difficulties and for that reason did not further agitate for any s 271 defence to be left to the jury.  Further, as the appellant’s counsel intimated more than once, it was forensically advantageous to the appellant not to complicate the issues and to have the jury focus solely upon the s 272, with s 273, defence of aiding in self-defence.
89. [89]
    Nevertheless, the appellant now says that trial counsel failed to appreciate the significance of conceding the issue, and in any event did not truly make any such concession, at least in respect of the potential availability of a defence of aiding another, under s 271 with s 273.  In that respect, the appellant contends that, despite the apparent concession made by his trial counsel, he clearly presented a case to the jury that Mr Susin had acted unlawfully and had not been provoked by Mr Simpson.  He points to several passages in his trial counsel’s closing address to the jury where the argument was put that Mr Susin had “deliberately joined the fight”.  The appellant says these arguments show that a case was put to the jury that Mr Susin’s involvement was “gratuitous” and unlawful and that he never actually conceded either point in the exchange to which I have referred.  He says that this must be so as there was no tactical advantage to relinquish the prospect of a defence under s 271 with s 273 being left for the jury’s consideration in circumstances where, if the jury were satisfied beyond reasonable doubt that the answer to Question 5.1 was “No”, then no defence of aiding another in self-defence would be available at all.
90. [90]
    I do not accept the appellant’s suggestions that in the exchange with the trial judge to which I have previously referred trial counsel misunderstood the effect of his concession; nor that he was not actually making a concession.  Furthermore, the submissions made by trial counsel in his closing address that Mr Susin “joined the fight” were not inconsistent with the concession made.  A person may deliberately and intentionally join a fight yet still be provoked to act.  During the hearing of this appeal, counsel for the appellant accepted that trial counsel did not make any express submission to the jury that Mr Simpson did not provoke Mr Susin.  In my view that omission was deliberate and reflected the position that trial counsel had determined not to pursue any s 271 defence.
91. [91]
    I would also add that it is obvious from reading the whole of trial counsel’s address that the argument that Mr Susin had joined the fight was put to the jury to emphasise the supposed necessity and reasonableness of the appellant’s response when acting in defence of Mr Simpson and was not put to suggest that Mr Susin was not provoked.
92. [92]
    In any event, the unavoidable problem for this aspect of the appellant’s argument is that a defence of aiding in self-defence, under s 271 with s 273, could not have been left to the jury because Mr Simpson was not entitled to act in his own self-defence under s 271.  That was because, as trial counsel properly conceded in my view, Mr Susin’s assault was either not unlawful, as he was aiding Mr Lodge in self-defence, or it was clearly an assault that was provoked by Mr Simpson actions.  Even if the proposition that Mr Susin was acting lawfully in aid of Mr Lodge might be queried, there can be no doubt whatsoever that Mr Simpson had in fact provoked Mr Susin’s assault.  In my view that was the only reasonable conclusion the jury could have reached on the evidence and there is no prospect that they would have failed to be satisfied of that matter beyond reasonable doubt.  And, of course, it was a conclusion in the appellant’s favour that provided a positive answer to Question 5.1, thus enlivening the jury’s consideration of his defence of aiding another, under s 272 with s 273.
93. [93]
    Even if the argument might now be put that a defence under s 271 with s 273 may have been available to the appellant, when coupled with mistake of fact under s 24, on the basis that he honestly and reasonably but mistakenly thought Mr Simpson had not provoked an assault from Mr Susin, the problem for the appellant is that he gave no evidence that he held such a belief and there was no basis to infer that was what he thought.^[13]  Further, in the circumstances perceived by the appellant, there were no reasonable grounds for such a belief.  The appellant was well aware that Mr Simpson had been acting like “a goose” and had instigated an altercation with the two men on the seat.  When he returned to the scene, he could see Mr Simpson was on top of Mr Lodge, in a dominant position, punching Mr Lodge.  Although he gave evidence that Mr Susin had then come “from out of nowhere” that said nothing about any belief he may have had about why Mr Susin had acted.
94. [94]
    Given the conclusions I have reached, there was no miscarriage of justice caused by the trial judge’s omission to provide directions on any defence of self-defence under s 271.  In my view, the only species of self-defence that fairly arose on the evidence for the jury’s consideration was aiding in self-defence under s 272 with s 273.  A fundamental requirement for the availability of that defence was that Mr Simpson had provoked an assault from Mr Susin.  The jury were correctly directed, including by the terms of Question 5.1, that the defence would not be available if the prosecution proved beyond reasonable doubt that Mr Simpson did not provoke Mr Susin.  The prosecution did not attempt to persuade the jury that they would be so satisfied.  That was never the prosecution’s case.  Consistent with the exchange earlier referenced, the prosecution always maintained that Mr Simpson provoked the assault from Mr Susin.
95. [95]
    Whilst the foregoing reasons are sufficient to deal with the various complaints raised by the appellant under this ground of appeal, there is a further matter that must be addressed.  In the course of argument at the hearing of the appeal, I drew attention to the fact that the trial judge’s directions required the jury to consider the state of mind of the appellant with respect to the matters contained in Question 5.3 (whether Mr Susin assaulted Mr Simpson with such violence as to cause the appellant to have a reasonable apprehension of death or grievous bodily harm to Mr Simpson) and Question 5.4 (whether the appellant believed on reasonable grounds that it was necessary to preserve Mr Simpson from grievous bodily harm or death) of the question trail. I asked each counsel if they could explain the basis at law which supported such directions, in circumstances where s 273 provides that an aider may lawfully use force, but only to a like degree, in any case in which it is lawful for the defender (i.e., Mr Simpson in this case) to use force of a particular degree in self-defence.  On a literal reading of s 273 it is a pre-requisite for the availability of the aider’s defence that it is (or was) lawful for the defender to use force.  When read with s 272, that would seem to require that all elements of the s 272 defence must be satisfied, otherwise it would not be “lawful” for the defender to use force.  That in turn would require that the defender must reasonably apprehend grievous bodily harm or death and must hold the requisite belief on reasonable grounds that it is necessary for their preservation from grievous bodily harm or death to use force in self-defence.
96. [96]
    If that were so, the dilemma in this case of course is that Mr Simpson could not have held any such apprehension or belief.  He was completely oblivious to Mr Susin’s punch.  How then could the appellant act to aid him in his self-defence if Mr Simpson was not even aware of Mr Susin’s assault and was not acting in his own self-defence?
97. [97]
    Counsel for the appellant submitted that the directions were framed as they were by the trial judge because that was how the Crown had put its case, but nevertheless confirmed she did not contend that the Crown’s approach was wrong.  Although the appellant’s counsel did not refer the Court to any relevant authority, she submitted that for a defence of aiding another in self-defence, under s 272 with s 273, the first inquiry under s 272, of whether the assault by another person was of such violence as to cause reasonable apprehension of death or grievous bodily harm, was a wholly objective question.  She further submitted that, by operation of s 273, the second inquiry was whether the aider acted in good faith and that necessarily involved the state of mind of the aider.  Consequently, for the purposes of the second inquiry under s 272, it is the aider who must believe on reasonable grounds that it is necessary to use force in self-defence to preserve the defender from death or grievous bodily harm.
98. [98]
    As I will shortly explain, these submissions did not entirely describe the true operation of s 273 but were largely consistent with the orthodox approach to the defence.
99. [99]
    The submissions made by counsel for the respondent on this issue were surprising and at odds with the orthodox approach to s 273.  He contended that the trial judge’s directions, reflected in Question 5.4, were “irregular”, albeit in a way that was favourable to the appellant and did not cause a miscarriage of justice.  He submitted that the “foundational question” for the operation of s 273 was whether Mr Simpson was entitled to act in self-defence and asserted that matter could not arise on the evidence here as Mr Simpson had been oblivious to Mr Susin’s punch.  He ultimately submitted that a defence under s 272 with s 273 did not properly arise on the evidence, but was nevertheless left for the jury’s consideration, which benefitted the appellant.
100. [100]
     It is perhaps because of the cumbersome language of ss 271 and 272, particularly when read with s 273, that counsel had divergent views on how s 273 might operate.  It might also be that the different views were expressed because past cases which have considered s 273 have not always expressly and clearly stated when and how the defence operates or have often considered the defence in conjunction with mistake of fact under s 24.
101. [101]
     Counsel for the respondent nominated the recent decision in R v Markovski,^[14] as the best example of the application of s 273.  In that case, a man named Appleby had attended the home of another man, named Frescon, apparently for the purposes of obtaining from him drugs or some money that he was owed.  The appellant had accompanied him on the trip to Frescon’s house but had initially stayed outside.  Although the initial interactions between Appleby and Frescon seemed innocuous, a physical altercation soon began.  While Frescon was away from the living room, Appleby armed himself with two knives that had been sitting on a bookshelf.  When Frescon returned, a struggle ensued, during which Appleby held the knives.  Frescon eventually managed to push Appleby away and then picked up an esky bag and threw it at Appleby, causing him to stumble.  Frescon then moved towards Appleby, throwing punches at him.  Appleby regained his balance and continued to fight Frescon, whilst still holding at least one of the knives.  As this was happening, the appellant entered the room wearing a mask and holding a knife.  He immediately moved towards Frescon.  As Frescon was holding up his fists towards Appleby, the appellant stepped in and stabbed Frescon in the neck.  Frescon fell to the ground and later died from the wound.  The appellant was tried and convicted of Frescon’s murder.  On appeal against his conviction, the appellant contended, amongst other things, that the trial judge had erred by failing to leave to the jury a defence of aiding in self-defence, under either ss 271(2) or 272, with s 273, together with s 24 mistake of fact.  Trial counsel had not raised s 271 at trial and had ultimately conceded that a defence under s 272 with s 273 was not reasonably open and s 24 was not applicable.  The appellant argued that concession was wrong and in any event the trial judge was obliged to leave the defence to the jury.
102. [102]
     In discussing the pre-conditions for the availability of a defence under s 273, Bowskill CJ noted the first matter to consider was the introductory words of that provision, “in any case in which it is [was] lawful” and stated:

“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.

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, did not entitle Appleby lawfully to defend himself using lethal force.

…

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, 185 [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.’”

103. [103]
     Putting to one side the overlay of s 24, the matters identified by Bowskill CJ in Markovski are instructive regarding the application of s 273 generally.  Absent application of s 24, what is required is an objective assessment of whether, in the circumstances of the facts as they may be found by the jury, the situation is “a case in which it is lawful” for the defender to use force to defend themselves against an assault.  The “cases” in which it is lawful for a person to use force in their own self-defence are of course those set out in ss 271 and 272.  Thus, when a defendant seeks to rely upon a defence under s 273, coupled with either of those provisions, the case must be one where the person whom they seek to aid is entitled to act in their own self-defence.
104. [104]
     Whilst this seems straightforward enough, a difficulty is created by the use of the present tense verb “is” in the phrase “in any case in which it is lawful” in s 273.  The word suggests that all the requirements of either ss 271 or 272, as the case may be, must exist in respect of the person who has been assaulted before the aider may avail themselves of a defence under s 273.  If those requirements were not shown to exist at the time the aider acted, then their actions could not be lawful as the defender was not lawfully entitled to use force.  Therefore, in a case such as the present, amongst other things, it would be necessary that the person assaulted (i.e., Mr Simpson) himself reasonably apprehended grievous bodily harm or death and believed on reasonable grounds that it was necessary to use such force as was reasonably necessary to preserve himself from grievous bodily harm or death.  If that interpretation was correct, a person in the position of the appellant could never rely upon s 273, as the required subjective state of mind of the person assaulted could not be established.  A similar situation would pertain in any case where the person assaulted did not know of the assault or was unable to appreciate the need to act to preserve themselves from such a threat.  Obvious examples would include a person who was threatened with a potentially lethal assault whilst they were asleep, unconscious or had their back turned to the assailant, or an infant or mentally impaired person who was similarly imperilled but incapable of comprehending the significance of the threat.
105. [105]
     In my view, that cannot be the intended effect or operation of s 273.  Section 273 works so that the aider “stands in the shoes” of the person assaulted.  Accordingly, it is not necessary that it first be established that the person assaulted held any subjective state of mind of the kind required by ss 271 or 272.  In my opinion, on its proper construction the phrase “in any a case in which it is lawful” in s 273 simply serves to designate the factual scenarios in which an aider may also be absolved of criminal responsibility, being where the defendant acts to aid another against an unprovoked assault (s 271) or against a provoked assault, where the assault is of such a nature as to cause reasonable apprehension of grievous bodily harm or death (s 272).  What must be shown in either case is that the objective circumstances are such that the case is one where the person assaulted “would be” entitled to use force in self-defence and that the aider, acting in good faith in defence of the other, held any required subjective state of mind, entitling them to use force of a similar degree to that which the defender would have been entitled to use.
106. [106]
     An objective assessment of either type of case therefore does not require that it be established that the defender held any of the subjective states of mind stipulated in either ss 271 or 272.  Where s 273 is invoked, the relevant state of mind in respect of those matters must be that of the aider.  In my view, that is not only logical but is made plain by the requirement in s 273 that the aider acts “in good faith” in aid of the person assaulted.  Whilst the notion of acting in “good faith” requires that the aider must genuinely be motivated to act in defence of the person assaulted, it is in my view implicit that it also requires the aider genuinely hold any relevant subjective belief required by ss 271 or 272 for the necessity to act.
107. [107]
     Section 272(1) prescribes two aspects of the subjective state of mind that must be held by a defender, albeit on an objectively reasonable basis.  The first is that the defender must have a “reasonable apprehension” of death or grievous bodily harm.  The second is that the defender is induced 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.^[15]  Where, under s 273, a person aids another who would be entitled to defend themselves under s 272(1), it is the aider who must reasonably apprehend death or grievous bodily harm to the person assaulted and who must be induced to believe, on reasonable grounds, that it is necessary to preserve that person from death or grievous bodily harm to use force to defend them.
108. [108]
     The case of R v Fietkau^[16] provides some support for the conclusions I have reached about what I consider is the orthodox operation of s 273.  There the Court considered the adequacy of directions given by a trial judge on aiding in self-defence, in circumstances where the person who had been assaulted (“Malcolm”) by a home intruder was unconscious at the time the appellant claimed to be aiding in his self-defence.  Other occupants were also in the house at the time and the trial judge had directed the jury that the defence was also to be considered in respect of the appellant acting in their self-defence as well, even though they had not been assaulted.  Although the Court considered that the defence in that respect was wrongly left open, in the appellant’s favour, the Court also observed, without criticism, that the trial judge’s directions included the following:

“What the Criminal Code says is the accused, providing he was acting in good faith, was entitled to use the same degree of force to defend Malcolm as Malcolm would have been entitled to use had he been capable of resisting.” (my emphasis)

109. [109]
     Having regard to the foregoing, I do not accept the respondent’s submissions that the trial judge’s directions on self-defence under s 272, with s 273, were irregular.  In my view they correctly reflected the law and the way in which the issues with respect to aiding in self-defence were to be considered by the jury in this case.
110. [110]
     As no miscarriage of justice was occasioned by the directions given by the trial judge or by any omission to give other directions, this ground of appeal fails.

Ground 3: Was the verdict unreasonable?

111. [111]
     The appellant contends the guilty verdict is unreasonable and it would be dangerous in all the circumstances to allow it to stand.  He submits that an analysis of the CCTV demonstrates that the conduct of Mr Susin was extremely threatening and dangerous; that the appellant was not an initial aggressor; and that his conduct was proportionate to the threat of serious harm or detriment and the risk of grievous bodily harm posed by Mr Susin.
112. [112]
     The principles applicable to an appeal against conviction on the basis that “the verdict of the jury is unreasonable or cannot be supported having regard to the evidence” are well-settled.  The question for this Court is whether, upon the whole of the evidence, it was open to the jury to be satisfied beyond reasonable doubt of the appellant’s guilt.  The question is one of fact, not law, and requires this Court to make its own independent assessment of the evidence, both as to its sufficiency and quality.  In doing so, 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.^[17]
113. [113]
     In R v Baden-Clay,^[18] the High Court emphasised the role of the jury as the “constitutional tribunal for deciding issues of fact”, stating:

“Given the central place of the jury trial in the administration of criminal justice over the centuries, and the abiding importance of the role of the jury as representative of the community in that respect, the setting aside of a jury's verdict on the ground that it is ‘unreasonable’ within the meaning of s 668E(1) of the Criminal Code is a serious step, not to be taken without particular regard to the advantage enjoyed by the jury over a court of appeal which has not seen or heard the witnesses called at trial.”^[19]

114. [114]
     Having conducted my own independent review, I am satisfied that it was open to the jury, on the whole of the evidence, to be satisfied that the appellant was guilty of the unlawful killing of Mr Susin.
115. [115]
     In my opinion, the appellant’s characterisations of Mr Susin’s conduct and the threat he posed are grossly overstated.  Whilst it may be accepted that he acted aggressively towards Mr Simpson by throwing a punch at his head, he did not present much of a threat to Mr Simpson at the time the appellant struck him.  As noted previously, Mr Susin had his arms down and was off-balance at that point.
116. [116]
     The jury had independent evidence of the circumstances of the incident, captured in its entirety on the CCTV footage.  Having viewed the CCTV footage, the jury was entitled to reject the appellant’s evidence that he felt scared for his own safety and the safety of Mr Simpson and that he was acting out of necessity to save his friend.  Amongst other things, the jury may well have formed the view that the appellant’s evidence was neither credible nor reliable, particularly having regard to the obvious inconsistencies between his recounting of his interactions with Mr Thake and what was shown in that respect on the CCTV footage.  It was open to the jury to find that the CCTV footage showed that the appellant was not trying to stop the fight but had pushed Mr Thake away and was actually preventing him from trying to intervene to stop the fight.
117. [117]
     With respect to the defence of compulsion under s 31(1)(d), even on the dubious assumption that the jury may have accepted that Mr Susin was threatening serious harm or detriment to Mr Simpson when the appellant punched him, it was open to the jury to conclude beyond reasonable doubt that the appellant did not reasonably believe that Mr Simpson was otherwise unable to escape the carrying out of that threat.  Further, it was open to the jury to be satisfied beyond reasonable doubt that the appellant’s punch was not reasonably proportionate to any such threat posed by Mr Susin.
118. [118]
     As for aiding in self-defence, the jury was entitled to be satisfied beyond reasonable doubt that Mr Susin’s assault did not cause the appellant to have a reasonable apprehension of grievous bodily harm or death to Mr Simpson.  If the appellant had such a subjective belief, the objective circumstances did not support it.  The jury was also entitled to be satisfied beyond reasonable doubt that Mr Susin’s assault upon Mr Simpson was not of such a nature as to induce the appellant to believe, on reasonable grounds, that it was necessary to preserve Mr Simpson from grievous bodily harm or death to use force in self-defence; or that the appellant may have honestly and reasonably, but mistakenly, believed that it was necessary to do so.  Furthermore, even though the appellant had reacted immediately to Mr Susin’s conduct, it was open to the jury to be satisfied beyond reasonable doubt that the degree of force he used was excessive and not reasonably necessary.
119. [119]
     In those circumstances, I consider it was open to the jury to be satisfied that the prosecution had negatived both defences and to thus find beyond reasonable doubt that the appellant’s killing of Mr Susin was unlawful.

Conclusion

120. [120]
     As none of the grounds of appeal have been made out, the appeal ought to be dismissed.