R v Kelleher[2024] QCA 99

SUPREME COURT OF QUEENSLAND

1. [1]
   MORRISON JA:  I agree with Bond JA.
2. [2]
   BOND JA:  On 9 March 2019, the appellant stabbed Joel Peter Frew in the abdomen with a knife which had a 15cm blade.  Mr Frew died in hospital a short time later.  The stabbing was captured on CCTV.
3. [3]
   At the appellant’s trial for the offence of murder, the only real question was whether, at the time the appellant stabbed Mr Frew, the appellant intended to cause Mr Frew’s death or to cause him grievous bodily harm.  The jury convicted the appellant of murder, so it may be assumed that they answered that question in the affirmative.
4. [4]
   The appellant now appeals against his conviction.  The sole ground which he advances is that the trial judge erred by not directing the jury that defences pursuant to ss 267 (defence of a dwelling), 271 (self-defence against an unprovoked assault), and 273 (aiding in self-defence) of the Criminal Code 1899 were open on the evidence.
5. [5]
   The trial judge had not overlooked the question whether any defences should be left to the jury.  Indeed, his Honour raised that question with counsel after the close of evidence and before addresses.  The trial judge mentioned the possibility of self-defence but commented that he did not think that was open as there was no suggestion of an assault.  Defence counsel agreed that he did not think self-defence was open.  The trial judge said that on that basis he would direct the jury, as a matter of law, that the evidence did not raise any defences for their consideration.  Defence counsel agreed.  The prosecution did not make any submission on the question.  Neither counsel mentioned possible defences during their addresses and the trial judge’s summing up proceeded as foreshadowed.
6. [6]
   In argument before this Court, the appellant did not seek to criticise the manner by which defence counsel conducted the trial.  Rather, the appellant squarely framed the appeal as one which suggested breach by the trial judge of the duty to leave to the jury defences raised by the evidence, despite the existence of defences being disclaimed by counsel.  The appellant suggested that the evidence was sufficient to fairly raise the defences identified in the ground of appeal and the trial judge should have left them to the jury notwithstanding the submissions which counsel had made to him.
7. [7]
   For reasons which follow, I reject that submission.  The evidence did not justify leaving any of the suggested defences to the jury.  The appeal must be dismissed.

Relevant legal principle

8. [8]
   It is settled law that if there was evidence which fairly raised any of the defences suggested by the ground of appeal, the legal or persuasive burden was on the Crown to exclude beyond reasonable doubt the proposition that the accused was acting in circumstances giving rise to the defence – that is, to exclude any reasonable possibility that that proposition was true.^[1]
9. [9]
   As to whether any of the suggested defences were fairly raised on the evidence such that they should have been left to the jury, the question for the trial judge was 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.^[2]  Or, to put it another way, the question for the trial judge was 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.^[3]
10. [10]
    It should be emphasised that the question for the trial judge – and for the appellate court where it is suggested that the trial judge erred – is a question of law on which there can be only one correct answer.  The question posed in the previous paragraph is not to be answered by a prediction of what the trial judge (or the appellate court) thinks that a properly instructed jury acting reasonably would do.  The enquiry is as to what such a jury could do.
11. [11]
    That said, the proper analysis must necessarily act on the basis that a properly instructed jury acting reasonably will form logical conclusions by logical reasoning and not by mere speculation.^[4]  Thus in R v Clarke^[5] when considering whether an innocent explanation posited for the first time on appeal should have been left to the jury, Hunt CJ at CL remarked that the jury could not act upon “some fanciful supposition or possibility not reasonably to be inferred from the facts proved”.
12. [12]
    Finally, it is important to appreciate that where a posited defence has both subjective and objective elements, both elements must be considered.  If, for example, a defence would exist if the accused relevantly acted while holding a particular belief on reasonable grounds, then the defence would not be fairly raised on the evidence unless there was evidence which fairly raised both the subjective aspect of the hypothesis (namely that the accused actually held the relevant belief when the accused relevantly acted) and the objective aspect of the hypothesis (namely that the belief, if held, could be regarded as held on reasonable grounds).  If the evidence fairly raised the defence, the ultimate legal onus on the prosecution would be to prove beyond reasonable doubt either that the accused did not hold the belief or that any such belief was not held on reasonable grounds.^[6]
13. [13]
    Thus in R v Markovski^[7], where the issue was whether the defence of aiding in self-defence under s 273 of the Criminal Code together with the excuse of mistake of fact under s 24 of the Criminal Code should have been left to the jury, Bowskill CJ observed (footnote omitted):

“In determining whether such a defence should be left to the jury, the question to be asked is whether there is evidence, direct or inferential, which, taken at its highest in favour of the accused, could lead a reasonable jury, properly instructed, to have a reasonable doubt that the defence had been negatived (that is, to legitimately conclude that there existed a reasonable possibility that the accused held the honest and reasonable, but mistaken belief).  But, as was said in CTM v The Queen (2008) 236 CLR 440 at 447 [8]:

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

As already noted, evidence of the relevant state of mind may be derived by inference; but “inference must not be confused with speculation”.  Whether described as an evidential onus or not, the requirement to point to evidence which raises the issue of mistaken belief for the jury’s consideration is not discharged by reference to speculation or “suppositions about mere possibilities” – there must be some foundation for it.  …”^[8]

The circumstances of the offending on 9 March 2019

14. [14]
    As at 9 March 2019, Mr Powell and his girlfriend Ms Barton lived in and dealt methylamphetamine from a two-story unit in Wishart.  Mr Deegan and Mr Frew were customers of Mr Powell and Ms Barton.  Mr Frew was also a close friend of Mr Powell.  Ms Maizey and her partner – the appellant – were also meth users and Ms Maizey had attended the unit previously for the purpose buying drugs.  Ms Maizey was a close friend of Ms Barton.
15. [15]
    Mr Deegan, Ms Maizey and the appellant had had lunch that day with Mr Powell and Ms Barton at the unit.  After lunch Ms Maizey and the appellant injected meth.
16. [16]
    Mr Deegan later returned to the unit wanting to buy some meth.  He knocked on the front door and spoke to Mr Powell.  Mr Powell then followed Mr Deegan back out to the car which Mr Deegan had arrived in only to find that Mr Deegan had brought three other men with him in the car.
17. [17]
    There was then a confrontation between Mr Powell and the three men which involved them yelling at Mr Powell, threatening violence to him and robbing him of something.  When giving his evidence Mr Powell claimed privilege against self-incrimination and declined to say what it was that the men took from him.  He did say that they got out of the car and he thought they were going to bash him.  He pulled a small can of WD-40 from his pocket and that prevented them from coming further towards him.  Mr Powell told Mr Deegan (who had not done anything during the confrontation) “you need to fix this.”  Mr Deegan and the men then drove off.
18. [18]
    While this had occurred, Ms Barton had been inside the unit.  Mr Powell returned to the unit and told her what had happened.  About a half hour later Mr Deegan returned.  He had been beaten up.  Mr Frew turned up at the unit a short while after that.  Mr Deegan then left, Mr Frew going with him to make sure he got home alright.
19. [19]
    Ms Barton rang Ms Maizey.  Ms Maizey thought Ms Barton was drunk and hysterical.  The appellant was with Ms Maizey at that time of the call.  Later, Ms Maizey and the appellant went back to the unit.  They were told what had gone on and how Mr Powell had been robbed.  Ms Barton and Ms Maizey looked at photos on Facebook to try to identify the three men.  In the course of discussions in which Mr Powell, Ms Barton, Ms Maizey and the appellant participated, Ms Barton expressed the belief that the three men were either members of or associates of a particular outlaw motorcycle gang.  Suspicion fell on Mr Deegan and Mr Frew as being involved in the robbery because pictures of the three men were on their Facebook page and Mr Deegan had introduced the three men to Mr Powell.
20. [20]
    The four of them (namely Mr Powell, Ms Barton, Ms Maizey and the appellant) drove to Mr Deegan’s place and then to Mr Frew’s place.  Mr Powell, Ms Maizey and the appellant went inside.  The appellant had not previously met Mr Frew.  A heated argument ensued in which Mr Powell accused Mr Frew of being involved in the robbery and Mr Frew denied any involvement.  The argument descended into the physical with Mr Powell punching Mr Frew, Mr Frew punching back and then the appellant joining the fray by punching or pushing Mr Frew who moved backwards and in the course of so doing fell over a chair.
21. [21]
    While that had been happening Ms Maizey had been sitting on the couch with Mr Frew’s mobile phone trying to get into it to see if it had any messages which might shed light on whether Mr Frew had been involved in the robbery.
22. [22]
    The physical confrontation continued for a while and then Mr Powell called an end to it.  No one was hurt.  The three men shook hands.  Nevertheless, Mr Powell did not regard that as having resolved the issues: Mr Frew insisted he knew nothing of the robber, Mr Powell did not believe him, but Mr Powell had no proof.  Before they left Mr Powell said that if anything did happen to pop into his memory, could he please let them know so as to help them “get this back”.  All four then went back to the unit, stopping on the way to get some more alcohol.
23. [23]
    When they got back to the unit Ms Maizey realized that she had picked up Mr Frew’s mobile phone and had kept it with her, although it seems that she did not relate that to Mr Powell or to the appellant.  A short time later Ms Barton left to go up the road.
24. [24]
    It is appropriate now to record that Ms Barton and Mr Powell had placed four CCTV cameras at the Wishart unit, including one which faced part of the external patio outside the front of the unit; the path down the side of the patio which led to the front door of the unit and the front door itself.  Vision from the camera would capture video of anyone approaching the front door to the unit.  There was a monitor within the unit which permitted someone inside to view captured by that and other cameras.
25. [25]
    A little after Ms Barton left, Mr Frew turned up at the unit.  The Crown adduced evidence of what then transpired in the form of video evidence from the CCTV camera and evidence from Ms Maizey and Mr Powell.  The appellant gave evidence on his own behalf.  It is appropriate to examine each aspect of that evidence in a little detail.

The video evidence

26. [26]
    Exhibit 2 at the trial was a 2:54 minute video taken on the evening of 9 March 2019 showing Mr Frew’s arrival and what then transpired.  There was no audio captured.  The video was played to the jury and was also reviewed by this Court.  It relevantly depicted the following.
27. [27]
    Mr Frew walked slowly down the pathway towards the front door of the unit.  He was alone.  He was dressed in shorts and a t-shirt and wearing sandals.  He had nothing in his open hands.
28. [28]
    He moved to a front window^[9] which was a metre or two to the front and right of the front door of the unit as he faced it.  The front door and another window to the left of the front door as he faced it appeared to be protected by security grills.  A curtain appeared to be hung on the inside of the window.
29. [29]
    He appeared to knock on the window.  He then bent over slightly as though he was attempting to see through a gap in the curtain, speaking through the window, or trying to attract someone’s attention.  He made no attempt to open the window.  He did not bang on the window or test it for weakness.  He did not appear to be aggressive or angry.
30. [30]
    Mr Frew moved a metre or so to his left so that he was standing facing the front door.  He appeared to be only slightly further away from the front door than was the front window.  He stood with his hands on his hips facing the front door and with his head slightly bowed.  He exhibited no apparent signs of aggression.
31. [31]
    He took a half step towards the front window, lent to his right, and appeared to look through the window.  He then resumed his previous position in front of the front door.  He remained in that position until the appellant stabbed him.
32. [32]
    About 59 seconds after Mr Frew first walked into frame, the front door opened, and three people came out.  Mr Powell moved forward and stood in front of and facing Mr Frew. Ms Maizey came out and stood still near the door then moved slightly forward so she stood behind Mr Powell and to Mr Powell’s right.  The appellant came into view initially in the doorway but then moved a little forward but remained close to the front door and behind the other two.
33. [33]
    Mr Powell engaged in conversation with Mr Frew.  The appellant was behind Mr Powell and a little to his right.  Ms Maizey was in front of him and closer to Mr Powell, but still to Mr Powell’s right.  The appellant could be seen shifting his weight from one foot to the other while Mr Powell continued to talk to Mr Frew.  Mr Frew stayed in the same position with his hands on his hips.  He did not make any movement towards the unit.  No one exhibited any apparent signs of aggression.
34. [34]
    Ms Maizey then left her position and walked past Mr Frew and down the walkway.  As she did so the appellant moved towards Mr Powell’s side and closer to Mr Frew.
35. [35]
    Ms Maizey continued to walk down the driveway and out of view.  Mr Frew made a brief gesture with his left hand while talking to Mr Powell, but otherwise remained in the same position he had been in when the door opened.  The appellant was in a position to see that Mr Frew was alone.  Had anyone else come into view he could immediately have withdrawn into the unit.
36. [36]
    The appellant’s right hand was out of sight behind his right hip.  He took two small steps towards Mr Frew stabbed Mr Frew once in his left lower abdomen before stepping back and away from Mr Frew.  The blow was quickly delivered with his right hand but the knife could briefly be seen in the light.
37. [37]
    Only about 30 seconds elapsed between the time the appellant came out of the door to when he stabbed Mr Frew.
38. [38]
    In quick succession thereafter Mr Frew moved back and away to his right, clutching his abdomen; Mr Powell placed his left hand on the appellant’s chest apparently keeping him back; Ms Maizey came running back into frame seeming to confront the appellant; Mr Powell pushed her away and then approached Mr Frew.
39. [39]
    The appellant and Ms Maizey then went back inside.  Mr Powell followed and then re-emerged with Ms Maizey apparently with a view to rendering assistance to Mr Frew, who was standing only a little further away from his initial position, still holding his abdomen.
40. [40]
    Ms Barton returned and she, Ms Maizey and Mr Powell stood briefly with Mr Frew.  The appellant then reemerged from the unit and strongly gestured with his right arm for Mr Frew to leave.  Ms Barton escorted Mr Frew away, apparently taking him to hospital and the others returned inside.

Ms Maizey’s evidence

41. [41]
    Ms Maizey said that everyone except her had been drinking that day.  She and the appellant had also used meth that day.
42. [42]
    Ms Maizey said that when they left Mr Frew’s place they stopped at a bottle shop and then went straight back to the unit.  Mr Frew attended the unit a relatively short time after the four of them had arrived back at the unit.  She was pretty sure that it was after 9.00 pm.
43. [43]
    She was downstairs and Mr Powell and the appellant were upstairs.  She had already called a cab for she and the appellant to collect some things which they had left there at lunch and then leave.  They had a date at the appellant’s mother’s place.  She didn’t hear any knocking but became aware of Mr Frew’s arrival when Mr Powell came thumping down the stairs to say that there was somebody at the front door.  There was a brief conversation about it being Mr Frew at the door.  (I interpolate that she had known about the CCTV because when she and the appellant had attended the unit for lunch earlier that day, she was told that it had only just been installed because Ms Barton and Mr Powell had recently had an attempted break in at the unit.)
44. [44]
    Ms Maizey was cross-examined about her memory as to what happened next:

“Okay. What occurs? What was said? What do you remember?---I - I have initiated a part of the conversation where I said, why the fuck would he come back after what’s just happened, and why would he come back by himself. I did not believe that he would be stupid enough to come to the house, after just getting bashed.

Yep?--- - - - or getting involved in a punch on which all three of them were bashed by himself.

Yep. That was the concern that you held?---That I had. Absolutely.

Yeah?---Because I - I have involved in enough incidences - - -

That’s - - -?--- - - - like that.

That’s all right. What did you do?---I went and grabbed a knife.”

45. [45]
    In re-examination she said that before the door was opened she put the knife back in the kitchen.
46. [46]
    She described Mr Powell going to the front door and she and the appellant followed him.  She recalled that Mr Powell and Mr Free exchanged words but could not remember what they said.  She said that she could see that Mr Frew “was still heightened from the punch-on that happened maybe 15 minutes prior to him getting to the house.”  She felt that he had come to the house to continue that argument.  However, after a couple of seconds she felt that Mr Powell had things under control she walked down the pathway to check on the cab.
47. [47]
    She said that she was only at the front gate for a few seconds when she turned around as something hostile had transpired between Mr Powell and Mr Frew and she ran back up to them.  (I observe that it is obvious from comparing her testimony with the video that the “something hostile” could only have been the appellant stabbing Mr Frew.)

Mr Powell’s evidence

48. [48]
    Mr Powell said that when they got home that evening he had suggested to the appellant that they go upstairs and both shoot up with meth.  The appellant did so.  Mr Powell was upstairs with the appellant when he first became aware that Mr Frew had arrived.  He thought that Ms Maizey was upstairs too, but accepted that it is possible he was wrong about that.
49. [49]
    He described that he had installed four CCTV cameras a week before as a security measure because someone had tried to break into the unit.  The cameras covered the whole of the front yard.  One covered the front door from the gate back to the front door.  One was across the front door.  One was on the back door, around the back.  He was not sure where the fourth one was located.  The cameras were connected to a monitor in his bedroom.  The monitor showed the view from all four cameras.
50. [50]
    Mr Powell saw Mr Frew’s arrival on the monitor.  At that time he could see the view from all four cameras.  He saw Mr Frew come through the front gate and down the path to the front door.  Mr Powell did not see anyone with Mr Frew.  Mr Powell said words to the effect “what the fuck’s he doing here”, or “why is he here”.  He said that Mr Frew’s presence at the door on that night was something that he felt threatened by.
51. [51]
    Mr Powell described going to the front door; opening it and asking Mr Frew what he wanted.  Mr Frew said that he wanted his phone back.  Mr Powell described being confused at that.  Mr Powell did not know what Mr Frew was talking about.  He thought he would have said that he did not know what Mr Frew was talking about.  But he said it happened so quickly.  Ms Maizey and the appellant were behind him.  After Mr Frew said he wanted his phone back, Mr Powell said “It was when I just – I saw a hand come through and I saw him get - he got stabbed. Joel got stabbed.”

The appellant’s evidence

52. [52]
    For the most part, the summary advanced in the appellant’s written submissions was a satisfactory summary of the relevant aspects of the appellant’s evidence for present purposes.  I record it below (footnotes omitted).

“The appellant gave evidence. He knew Powell because he would routinely obtain drugs from him. The appellant was a drug user at the time. He was made aware of a robbery, so he went to speak to Powell who seemed frantic, and described how a robbery had taken place. He was made aware of the investigations through social media, and came to believe that the people involved in the robbery had some affiliation with an outlaw motorcycle gang. He believed that Powell had been the victim of an attempted “boot ride” (a kidnapping attempt through the use of a car), and Powell seemed affected by the ordeal. It was Powell’s decision to go to the deceased’s residence. The appellant was present when a fight developed between Powell and the deceased, and because he thought Powell was physically smaller than the deceased, he intervened in the altercation. Eventually, they left the deceased’s residence, travelled to the Wishart unit via a bottle shop, and went upstairs to inject drugs.

In terms of the circumstances leading up to the stabbing, the appellant gave the following evidence:

“What’s the next thing you remember?---I don’t - it all happened really fast. I was - at the top of a rush, it’s - it’s pretty intense when you fucking have a shot. It’s - everything is dialled up to 100 and everything is happening and you can’t focus. But at that point, 30 seconds after having it - I don’t know - fucking Ryan’s jumped up saying that there’s somebody at the house. He’s gone to the window, looked out. There was a monitor. I honestly didn’t see it, fucking, I think - I’m pretty sure I had my back to it. But he said that Joel was here. He said that someone - some people were here or something. He rushed downstairs anyway. He was peaking pretty hard. He seemed pretty scared so I’ve gone down after him and Crystal’s downstairs. So we’ve gotten down the stairs and he started - he’s gone to the kitchen window, peered through. And he’s gone to the drawer, don’t know if he grabbed anything.”

And in relation to what took place when the deceased arrived:

“Where did you go?---I followed [Mr Powell] into the kitchen. Everything - the way he was reacting - fucking, all that was going through my head was that there were people out here and I’m thinking this guy is involved. I know what it’s like, I’ve been in and around the drug scene for a fucking while. And I’m - I’m expecting people to be running through the house after what happened to old - after the punch on. So I’ve grabbed a knife from the knife block next to the microwave and I’ve followed him outside. At that point there, I remember looking down the driveway, I saw Crystal standing, looking around. And I’m - I’m scared for her. But then Ryan’s right next to me and he’s shaking. And there’s a back-and-forth going. Joel’s fucking going at him, “Where’s my phone, you took my fucking phone. You’re meant to be my friend, what the fuck.” Like - just - and Ryan just, “I don’t know what the fuck you’re talking about.” Didn’t know anything about a phone.”

And in relation to his state of mind:

“How did you feel?---Honestly, I - I - I was feel - I was shitting myself. I was – I didn’t know, fucking, if people were about to run in on us. I just wanted this cunt to fucking fuck off. I was - yeah. I was scared I would say, like, honestly.”

And then in relation to the stabbing itself:

“What occurred?---Well, I seen this going on between them. I remember I was holding the knife and in that split second, I – I felt like he was about to attack fucking Ryan. And I swiped the knife out at him. I didn’t want to hurt him. I just - I just wanted to scare him - to fuck off. I just wanted him to leave.”

When challenged by the prosecutor about the seemingly innocuous appearance of the deceased on the CCTV footage, the appellant said:

“It’s - when a bloke shows up and starts fucking going on after you’ve just been in a fight with him, after there’s all this shit going on, there’s suspected bikies running around. I’ve - I’ve been involved and I know what they’re like and fuck, if you’re going to run into a house, you don’t go there fucking screaming and yelling, you go there calmly until the door’s open. I was shitting myself waiting. I didn’t know what the fuck was going on.

…

This all happened - and as I have said, very intoxicated at that point. But he - he’s going off, Ryan’s sitting there saying I don’t have my phone and there’s this big bloke towering over him and he’s shaking after we’ve just had a fight. All’s going through my head is how - how’s this big bloke just rocked up after a fight had fucking gone down and on his own, I’m - I’m - I’m peaking. I’m shitting myself thinking what - what - there’s something more here, something is happening here.”

In relation to why he moved closer to the deceased if he had no intention of stabbing him:

“Well, if you weren’t going to use the knife on him, why did you have to move closer to him?---I just - I just told you. I moved forward purely out of fear. He’s standing there, carrying on and fucking I seen - I seen Ryan sitting there shaking. I just wanted him to leave the house. I just wanted it all to stop. I’d been - gotten involved in this entire night of bullshit that I didn’t want to be a part of.”

At the culmination of the cross-examination, the appellant denied holding any intent at the relevant time to seriously hurt or kill the deceased.”

53. [53]
    To that summary some further points should be added:

    1. Ms Maizey and the appellant had shot up with meth at the unit after lunch and still feeling the effects of it when they left Mr Frew’s place.  The appellant was asked whether the journey from Mr Frew’s place back to the unit was a long or short journey:

“Did it take long - in terms of the journey, did it feel like a long journey? I guess from just focusing on that on the moment you leave Joel’s?---Not too long.

Was it a long or a short journey?---In saying that I was - I wasn’t - I was fried, I was on the meth. Time seems to react differently when you’re on it. You don’t notice time passing, so –“

2. The appellant acknowledged that after they all shook hands at Mr Frew’s house, there was no ongoing animosity between any of them and there had been talk of Mr Frew keeping Mr Powell informed.
3. The appellant said that when he did go outside when Mr Frew had arrived he saw Mr Powell standing in front of Mr Frew.  He did not see anything in Mr Frew’s hands.
4. The last-mentioned quote is better understood expanded by the inclusion of questions and answers both before and after the part quoted:

“And you continued to move from your position closer to the door further around to the post as Crystal was walking away up the path, that’s what you did, isn’t it?---Yes.

All right. You see, you were trying to close the distance between yourself and Joel Frew so you could use the knife on him, weren’t you?---No. I did use the knife, yes, but I - I only reacted because I wanted him to leave.

All right. Well, if you weren’t going to use the knife on him, why did you have to move closer to him?---I just - I just told you. I moved forward purely out of fear. He’s standing there, carrying on and fucking I seen - I seen Ryan sitting there shaking. I just wanted him to leave the house. I just wanted it all to stop. I’d been - gotten involved in this entire night of bullshit that I didn’t want to be a part of.

All right?---And then this has come down. All - all I was thinking is fucking get lost, I - I - I can’t deal with this, like - - -

All right. You’re thinking, “Get lost, I can’t deal with this”?---I just wanted him to leave.

Did you ask him to leave?---He was told he wasn’t fucking welcome there.

By who?---Ryan.

All right. You see, as you move away from the door, you’re moving away from a place of safety, aren’t you? And ability to get back inside and close the door?---Essentially, yes. I was also worried about my girlfriend and about Ryan.”

5. He was cross examined about holding the knife:

“When you stepped into that open doorway, you had a knife in your hand?---Yes. I did.

You had that knife hidden behind your back. Didn’t you? Held it like this?---No.

With your hand behind your back?---No. I didn’t. I was holding it by my side. I didn’t know who was around. I didn’t know if anyone if anyone was there. For what was going through my head, I was half expecting people with weapons. I didn’t know anything else.

All right. You weren’t holding that knife in a way in which it was in plain sight. Were you, Mr Kelleher?---I was holding it down by my side. But generally speaking, if there’s someone there with a weapon, they’ve seen that. They - they’re coming out, they’re attacking. I didn’t know what was going on.

All right. So again, you correct me if I’ve misheard you. But if someone else had seen the weapon, they would have come at you, attacking you. Is that what you said?---No. I was saying I didn’t know if there was any weapons around, and I didn’t want to increase what was happening.

Right?---I was scared of what was going on.”

6. He was cross examined about his moving closer to Mr Frew:

“Over a period of some 20 to 25 seconds, you move from the doorway to a position closer to Joel Frew. Didn’t you?---To a position closer to Ryan and my girlfriend, not to Frew.

A position that brought you within arm’s length of Joel Frew?---I didn’t move in a way that aimed to get closer to him. No. I was worried - - -

And then - - -?--- - - - he was about to attack.”

Was a defence pursuant to s 267 fairly raised on the evidence?

54. [54]
    Section 267 of the Criminal Code is in these terms (emphasis added):

“267 Defence of dwelling

It is lawful for a person who is in peaceable possession of a dwelling, and any person lawfully assisting him or her or acting by his or her authority, to use force to prevent or repel another person from unlawfully entering or remaining in the dwelling, if the person using the force believes on reasonable grounds—

1. the other person is attempting to enter or to remain in the dwelling with intent to commit an indictable offence in the dwelling; and

2. it is necessary to use that force.”

55. [55]
    It is not necessary to essay a complete analysis of all aspects of this potential defence.  For present purposes, the critical issue is whether the evidence fairly raised the hypothesis that at the time he stabbed Mr Frew the appellant believed on reasonable grounds that –

    1. Mr Frew was attempting to enter the home unit with intent to commit an indictable offence in it; and
    2. In order to prevent or repel Mr Few from so doing, it was necessary for the appellant to use the force he did, namely to stab Mr Frew in the abdomen.
56. [56]
    To reframe more specifically the questions posed at [9] above, the question is whether, on the version of events most favourable to the appellant that is suggested by the evidence, a properly instructed jury acting reasonably might fail to be satisfied beyond reasonable doubt that when he stabbed Mr Frew in the abdomen, the appellant was not acting with the belief on reasonable grounds that Mr Frew was attempting to enter the home unit with intent to commit an indictable offence in it and it was necessary to stab him in order to prevent or repel him from so doing.  Or, to put it another way, the question is whether, on such a version of events such a jury could be left with a reasonable doubt as to whether the appellant was acting with that belief on reasonable grounds.
57. [57]
    Importantly, the defence would not be fairly raised on the evidence unless there was evidence which fairly raised both the subjective aspect of the hypothesis (namely that when he stabbed Mr Frew the appellant actually held the belief that Mr Frew was attempting to enter the home unit with intent to commit an indictable offence in it) and the objective aspect of the hypothesis (namely that the belief, if held, could be regarded as held on reasonable grounds).
58. [58]
    As to the evidence touching on whether the appellant actually had the relevant subjective belief:

    1. There was evidence (quoted at [52] above) that the appellant was “expecting people to be running through the house.”
    2. But there was no evidence that when he stabbed Mr Frew he believed that Mr Frew was attempting to enter the home unit for any purpose, let alone with intent to commit an indictable offence in it.
    3. To the contrary, the appellant’s evidence was that he felt Mr Frew was about to attack Mr Powell and the appellant wanted to scare him off from so doing.
    4. Notwithstanding the evidence of the drug-addled nature of the appellant’s state of mind at the time, a properly instructed jury could not reasonably infer from the facts proved that the appellant had the requisite subjective belief.
59. [59]
    As to the evidence touching on whether the relevant belief, if held, could be regarded as held on reasonable grounds:

    1. There was not the slightest support for a conclusion that the appellant had reasonable grounds to believe that Mr Frew was attempting to enter the home unit at all, let alone with intent to commit an indictable offence.
    2. The notion that there was a reasonable basis for the appellant to believe that Mr Frew or anyone else was going to attempt to enter the home unit with the requisite intent was fanciful.  There is no evidence anyone else was there.  The appellant was in a position to see that Mr Frew was there by himself.  And he could see that Mr Frew was not moving forward.
60. [60]
    A reasonable jury properly instructed could not have been left with a reasonable doubt that the Crown had not negatived either or both the subjective and objective elements of the hypothesis on which the defence depended.  The suggestion to the contrary is fanciful and could not be regarded as an inference which a properly instructed jury could reasonably make.  The result is that the evidence did not fairly raise the subjective and the objective elements of a defence pursuant to s 267.  A defence pursuant to s 267 was not open on the evidence.  The trial judge did not err by not directing the jury about the possible application of such a defence.

Was a defence under s 271 fairly raised on the evidence?

61. [61]
    Section 245 of the Criminal Code is in these terms:

“245 Definition of assault

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.”

62. [62]
    Section 271 of the Criminal Code is in these terms:

“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.”

63. [63]
    Both limbs of s 271 must be considered, although, as was the case in relation to s 267, it is not necessary to essay a complete analysis of all aspects of their potential application.

Section 271(1)

64. [64]
    The appellant argued that in the context of the earlier physical altercation at Mr Frew’s place, Mr Frew’s arrival at the unit, and the further argument with Mr Powell about the mobile phone, that there was a prospect of that the appellant was acting in response to a perceived threat of an assault on Mr Powell.  The appellant contended that the law recognises that some circumstances may justify a pre-emptive strike in self-defence.
65. [65]
    Two matters must be noted.
66. [66]
    First, the appellant does not gainsay the view taken by the trial judge that there was no evidence that either the appellant or Mr Powell was unlawfully assaulted by Mr Frew.  Having regard to the s 245 definition of assault that necessarily means that the appellant accepts (and, on the evidence, correctly so) that there was no evidence that when he arrived at the unit Mr Frew struck or otherwise applied force to anyone or by any bodily act or gesture attempted or threatened to apply force to anyone.
67. [67]
    Second, in argument before this Court the appellant specifically disclaimed any reliance on s 24 (mistake of fact) in support of any part of his appeal.
68. [68]
    The concession that there was no evidence supporting the conclusion that there had been an assault seems to remove any possible foundation for a defence under s 271.  The appellant, however, contends that the law recognises that some circumstances may justify a pre-emptive strike in self-defence, and suggests that possibility was fairly raised by the evidence.  The appellant sought to rely on these observations made by Connolly J in R v Lawrie^[10] in relation to s 271(1):

“So far as the first paragraph, the primary rule, is concerned, it is obviously objective in terms. This is not to say however that what is reasonably necessary to make effectual defence will not depend on the circumstances as perceived by the defender. An honest and reasonable belief that a blow is about to be struck may justify a pre-emptive blow at 505.”

69. [69]
    The disclaimer of any reliance on the s 24 excuse of honest and reasonable mistake of fact precludes reliance on the observations of Connolly J.  If the appellant had the belief to which Connolly J refers in the last sentence and the belief was accurate, that would mean that there had in fact been a threat by Mr Frew and therefore an assault.  But the appellant accepts there was not an assault.  And if the appellant had the belief to which Connolly J refers but it was mistaken, there would not have been an assault but, by reliance on s 24 the accused would not be more criminally responsible than if there had been an assault.  But the appellant disclaims reliance on s 24.
70. [70]
    In any event, the better view is that the introduction by Connolly J of a subjective element to s 271(1) is wrong, unless it is allied with reliance on s 24.
71. [71]
    As Davies JA (with whom Mullins J agreed) observed in R v Hagarty^[11] in relation to the paragraph quoted from R v Lawrie:

“That may be so but it is not because of an honest and reasonable belief that a blow is about to be struck but because, in such a case, it may objectively appear to the jury that the likelihood of a blow being struck was such as to make it reasonably necessary to make effectual defence against it.  …”

72. [72]
    In the same case, Williams JA (with whom Mullins J also agreed) observed^[12]:

“Passages in some of the authorities which indicate that the belief of the defender may be relevant should be expressed differently. Most of those statements are concerned either with the situation where a replica weapon was in the possession of the attacker or where the defender believed he was about to be attacked and responded with a “pre-emptive blow”. Given the terms of s 271(1) the question in each case for the jury 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”. Approached in that way the “likely attack” is not that in the belief of the defender, but that which was “likely” when the facts were looked at objectively. In most factual situations where s 271(1) was relevant, there would be a coincidence between the defender's belief and what was held to be “likely” applying the objective test.”

73. [73]
    The result is that in order for the appellant’s hypothesized “reasonable pre-emptive blow” defence under s 271(1) to be fairly raised, there would have to be evidence which fairly raised the hypothesis, if objectively assessed by a reasonable jury properly instructed, that the appellant stabbed Mr Frew in the following circumstances:

    1. First, the likelihood of a blow being struck by Mr Frew was such as to make it reasonably necessary to make effectual defence against it, thereby justifying a pre-emptive strike by the appellant.
    2. Second, the force which the appellant used was reasonably necessary to make effectual defence against the blow which Mr Frew was about to make.
    3. Third, the force which the appellant used was not intended, and was not such as was likely, to cause death or grievous bodily harm.
74. [74]
    For the sake of analysis, let it be assumed that the third of those propositions would be regarded as properly to be left to the jury if the first and second propositions were fairly raised by the evidence.  The insurmountable difficulty for the appellant is that a properly instructed jury acting reasonably could not on the evidence have had a reasonable doubt as to whether the Crown had excluded the first two propositions.  There was no evidence which could reasonably support the hypothesis that the appellant had acted in the circumstances hypothesized by the first two propositions.
75. [75]
    In my view a defence pursuant to s 271(1) was not fairly open on the evidence.  The trial judge did not err by not directing the jury about the possible application of such a defence.

Section 271(2)

76. [76]
    The reasoning which I have employed in relation to the first limb of s 271 also justifies the conclusion that a defence pursuant to s 271(2) was not fairly open on the evidence.
77. [77]
    First, if there was no assault then the opening clause of the section could not be established.
78. [78]
    Second, there was no evidentiary support for the appellant having had a subjective apprehension that he or anyone else might suffer death or grievous bodily harm from Mr Frew.  The evidence only gave rise to the possibility that the appellant might have had a subjective apprehension that Mr Frew might have been about to assault Mr Powell.  But even if he had that subjective belief, there was no belief that Mr Frew had any weapons and no reason to think that, absent weapons, the appellant might have apprehended death or grievous bodily harm from Mr Frew, especially when there had already been a physical scuffle between them from which no one was hurt.  A reasonable jury properly instructed could not have been left with a reasonable doubt that the Crown had not negatived the subjective elements of the hypothesis on which the defence depended.
79. [79]
    Third, a properly instructed jury acting reasonably could not on the evidence have had a reasonable doubt as to whether the Crown had excluded the objective element of the hypothesis on which the defence depended.  If the subjective apprehension existed, there was no evidentiary support for the conclusion that the apprehension was reasonable.
80. [80]
    Fourth the defence also depends on the appellant having a further belief on reasonable grounds namely that he could not otherwise preserve the person defended from death or grievous bodily harm.  Again, there was no evidentiary support for the appellant having had such a belief at the time about Mr Powell’s safety at the time he stabbed Mr Frew. A properly instructed jury acting reasonably could not on the evidence have had a reasonable doubt as to whether the Crown had excluded both the subjective and objective elements of the defence.
81. [81]
    The trial judge did not err by not directing the jury about the possible application of a defence pursuant to s 271(2).

Was a defence under s 273 fairly raised on the evidence?

82. [82]
    Section 273 of the Criminal Code is in these terms:

“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.”

83. [83]
    The reasoning which I have employed in relation to the first limb of s 271 also justifies the conclusion that a defence pursuant to s 273 was not fairly open on the evidence.
84. [84]
    Absent evidentiary support for the conclusion that there had been an assault, it could not have been lawful for Mr Powell to use force to defend himself.  Nor could it have been lawful for the appellant to use force going to his aid.  And the appellant disclaimed any reliance on s 24.  A reasonable jury properly instructed could not have a reasonable doubt as to whether the Crown had excluded the application of this defence.
85. [85]
    The trial judge did not err by not directing the jury about the possible application of a defence pursuant to s 273.

Conclusion

86. [86]
    The appeal should be dismissed.
87. [87]
    CROW J:  I agree with Bond JA.