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Queensland Police Service v Skennar[2017] QMC 11

Queensland Police Service v Skennar[2017] QMC 11

MAGISTRATES COURT OF QUEENSLAND

CITATION:

Queensland Police Service v Skennar [2017] QMC 11

PARTIES:

Queensland Police Service

(Complainant)

v

Tyler Ewing Skennar

(Defendant)

FILE NO/S:

MAG-00223171/16(8)

DIVISION:

Magistrates Court

PROCEEDING:

Criminal

ORIGINATING COURT:

Rockhampton

DELIVERED ON:

4 July 2017

DELIVERED AT:

Rockhampton

HEARING DATE:

29 May 2017

MAGISTRATE:

M Morrow

ORDER:

Found Guilty

CATCHWORDS:

Criminal law – dangerous conduct with a weapon – What prosecution must prove – “without reasonable excuse” – onus of proof on defendant – whether defendant had a ‘reasonable excuse’ for discharging firearm – whether fear of attack sufficient to constitute a “reasonable excuse”.

Unlawful possession of weapon to commit indictable offence

Words and phrases – “without reasonable excuse”.

SOLICITORS:

Sgt K Stafford appeared for the Queensland Police Service

Mr B McGowran, Solicitor, McGowran Lawyers for Defendant

  1. [1]
    Tyler Ewing Skennar is charged with three offences that:
  1. (a)
    On the 2 October 2016 at Rockhampton in the State of Queensland he unlawfully possessed a weapon namely a break action shot gun and the weapon unlawfully used was a category A weapon and it is further alleged that the said Tyler Ewing Skennar was an adult and that the weapon was unlawfully possessed was a firearm and that the said Tyler Ewing Skennar used the firearm to commit an indictable offence namely a dangerous conduct with a weapon
  1. (b)
    On the 2 October 2016 at Rockhampton in the State of Queensland he without reasonable excuse and by the use of a weapon namely a break action shotgun engaged in conduct which was likely to cause alarm to other persons namely Slade Smyth and Brandon Scott Christensen and Erin Marie Skennar.
  1. (c)
    On the 2 October 2016 at Rockhampton in the State of Queensland he possessed an explosive namely ammunition not being at that time the holder of an authority issued under the Explosives Act 1999 authorising him to possess the said explosive.
  1. [2]
    Mr Skennar has pleaded not guilty to the first two charges and guilty to the third charge.
  1. [3]
    The Prosecution has called Plain Clothes Senior Constable Ashley Shepherd and Erin Marie Skennar to give evidence on their behalf and the Defendant gave evidence as well as his partner Caitlyn-Paige Reid.
  1. [4]
    There was also no testimony from a number of other potential witnesses such as Slade Smyth and Brandon Christensen. Whilst it may appear they might have been able to give some relevant evidence I cannot speculate about what they may have said if they had been called. I can only act on the basis of the evidence that has been called and only that evidence[1].
  1. [5]
    The burden of proof lies with the Prosecution to prove each and every element of the offence and the standard of proof is beyond reasonable doubt.
  1. [6]
    The Defendant does not have to give evidence, or call other people to give evidence on his behalf, or otherwise produce evidence. That he has done so does not mean that he assumed a responsibility of proving his innocence. The burden of proof has not shifted to him. His evidence is added to the evidence called for the Prosecution. As I have said, the Prosecution has the burden of proving each of the elements of the offence beyond reasonable doubt, and it us upon the whole of the evidence that I must be satisfied beyond reasonable doubt that the Prosecution has proved the case before the Defendant may be convicted.
  1. [7]
    In relation to this particular matter I have, during the course of the trial, had an opportunity of listening to and observing the demeanour of the witnesses that have given evidence. This has assisted me in assessing credibility, although I accept that there is a need to keep the appearance and demeanour of a witness in perspective and the weight of that aspect in the light of the other more objective considerations.

The Law

Dangerous Conduct with a Weapon

  1. [8]
    In relation to that charge, the Weapons Act 1990, section 58(2) as relevantly provides:
  1. “(2)
    A person must not—
  1. (a)
    (a) without reasonable excuse; and
  1. (b)
    (b) by the … use of a weapon; engage in conduct, alone or with another, likely to cause—
  1. (c)
    (c) …
  1. (d)
    (d) … ; or
  1. (e)
    (e) alarm to another person.
  1. (f)
    Maximum penalty—200 penalty units or 4 years imprisonment.”
  1. [9]
    The offence is an indictable offence pursuant to the Act which provides:

“161A Indictable offences

  1. (1)
    An offence against this Act punishable by at least 7 years imprisonment is a crime.
  1. (2)
    An offence against this Act punishable by more than 2 years imprisonment but less than 7 years imprisonment is a misdemeanour.”
  1. [10]
    The Act provides for a summary hearing of an indictable at the prosecution election pursuant to s. 161(3):

“161 Proceedings for an offence

  1. (3)
    A proceeding for an indictable offence, other than an indictable offence punishable by more than 10 years imprisonment, may, at the election of the prosecution, be taken— (a) by way of summary proceedings under subsection (1); or (b) on indictment.”
  1. [11]
    The Prosecution elected summary jurisdiction.
  1. [12]
    The Prosecution must prove that:
  1. (a)
    The Defendant;
  2. (b)
    Without reasonable excuse; and
  3. (c)
    By use of a weapon
  4. (d)
    Engaged in conduct alone or with another;
  5. (e)
    Likely to cause;
  6. (f)
    Alarm to another person.

Without Reasonable Excuse

  1. [13]
    If legislation prohibits a person from doing something ‘without reasonable excuse’ it would seem in many cases appropriate for the accused person to provide the necessary evidence of the reasonable excuse. While there is no Queensland case law directly on point, the Northern Territory Supreme Court has held that the onus of proving the existence of a reasonable excuse rested with the Defendant on the basis that the reasonably excuse was a statutory exception that existed as a separate matter to the general prohibition[2]. The onus of proof rests upon the Defendant on the balance of probability: Everard v Opperman [1958] VR 389 at 391.
  1. [14]
    Further, they are words of wide import and may encompass defences, answers, justifications or excuses recognised by the established principles governing criminal responsibility, such as absence of mens rea, mistake, insanity, infancy or duress: R v Bush [1975 1 NSWLR 298; (1975) 5 ALR 387; 24 FLR 346 at NSWLR 327; ALR 418; FLR 380.
  1. [15]
    In the High Court decision of Taikato v R (1996) 186 CLR 454; 139 ALR 386 at CLR 464-6, Brennan CJ, Toohey, Gummow and McHugh JJ discussed the meaning of the term “reasonable excuse” in a provision of the New South Wales Crimes Act. They said:

“[T]he reality is that when legislatures enact defences such as ‘reasonable excuse’ they effectively give, and intend to give, to the courts the power to determine the content of such defences. Defences in this form are categories of indeterminate reference that have no content until a court makes its decision.”[3]

  1. [16]
    In that case a female accused was convicted of possessing a prohibited article, being a pressurised can of formaldehyde, an irritant, in a public place contrary to section 545E(1) Crimes Act 1900 (NSW). She carried canister in case she had to defend herself against an attack although there was no reasonable apprehension of imminent attack. She began carrying the canister after person attempting to break into her home attempted to strike her. The issue was whether accused had a reasonable excuse for possessing the canister or possessed it for a lawful purpose under section 545E(2) of the Act. The Court discussed the meaning of “reasonable excuse” and “lawful purpose” including whether well-founded fear of attack sufficient to constitute a “reasonable excuse”.
  1. [17]
    Brennan CJ, Toohey, McHugh and Gummow JJ said at 464:

“The term “reasonable excuse” has been used in many statutes and is the subject of many reported decisions. But decisions on other statutes provide no guidance because what is a reasonable excuse depends not only on the circumstances of the individual case but also on the purpose of the provision to which the defence of “reasonable excuse” is an exception.”

  1. [18]
    Dawson J, in dissent, observed:[4]

“A reasonable excuse is no more or less than an excuse which would be accepted by a reasonable person.

  1. [19]
    To a similar effect in Pascoe v The Nominal Defendant (No 2) (1964) Qd R 373 at 378, Mansfield CJ stated:

“What is to be determined is whether the applicant has shown any cause which can be deemed by the Court to be a reasonable excuse. I think this means a cause which a reasonable man would regard as an excuse, a cause consistent with a reasonable standard of conduct…”

  1. [20]
    I respectfully agree with the above observation.
  1. [21]
    The majority of their Honours in Taikato considered that a fear of attack, if well-founded, could constitute a “reasonable excuse” for possession of a dangerous item under that provision. Their Honours took the view that in determining whether the purpose of self-defence was reasonable in the circumstances, the court must consider all of the circumstances including the immediacy of the perceived threat, circumstances such as the time and location in which the weapon was possessed, the type of weapon possessed, and the age, characteristics[5] and experiences of the person charged. A somewhat different view was taken by Dawson J, who considered that it was sufficient to establish the defence pursuant to section 545E, if the possession was by way of precaution against the possibility of an attack which would justify the use of the article.
  1. [22]
    Insofar as an element in the offence is that the dangerous conduct with a weapon be carried "without reasonable excuse", self-defence can only be a lawful excuse where there is an imminent danger of attack, not merely the possibility of an attack.[6]
  1. [23]
    Mr McGowran has referred me to R v Bennett & Ors [1998] QCA 393. That case, amongst other things, concerned a charge of going armed in public to cause fear without lawful occasion under s 69(1) of the Criminal Code.
  1. [24]
    In that case a fight took place at Jack Bennett’s residence in Barcaldine over unpaid wages that Lindsay Bennett believed Barry Facer owed him for doing work. Barry Facer was injured. The fight was still proceeding when Jack Bennett fired a shot in the air, and that he fired it to break up the fight with Barry Facer and stop his two sons George and Lindsay Bennett going on with it. It was held that state of affairs was fairly capable of being considered a lawful occasion within the meaning of section 69(1) of the Code, for his going armed in public so as to cause fear. If he had not fired that shot and the fight had gone on, even more serious injuries might have been sustained by those involved in it.
  1. [25]
    No reference was made to Taikato in the leading judgment of McPherson JA (McMurdo P and Muir J agreeing). It is distinguishable from this case as there was no physical alteration taking place when Skennar fired the shot into the air.
  1. [26]
    Again in Taikato a discussion was had of the definition “Lawful purpose” which is the same in Bennett’s case as “lawful occasion”. Brennan CJ, Toohey, McHugh and Gummow JJ (Dawson, Gaudron and Kirby JJ concurring) indicated the best interpretation of section 545E was that a person could not have a “lawful purpose” for possessing a dangerous weapon coming within subs (1) unless that purpose was positively authorised by law.
  1. [27]
    Brennan CJ, Toohey, McHugh and Gummow JJ (Dawson J concurring) indicated self-defence in the colloquial sense was not a “lawful purpose” within the meaning of section 545E(2) because the existence of a right of self-defence could not be determined until after the fact of a particular attack or a threatened attack. Action in self-defence can only be taken for a lawful purpose when there is a lawful right entitling the person in danger of attaching to take certain limited steps to use force on another person. It is only after the circumstances of the attack and the defendant's response are evaluated that a court can determine whether the person was exercising the right of self-defence.
  1. [28]
    In particular, Gaudron J indicated “Lawful occasion” has a different meaning to “reasonable excuse”. Her Honour went on to say:

“By using the two phrases of exception, the legislature obviously intended to refer to two related but separate concepts. Having a “lawful purpose” of the kind which I have explained would ordinarily, if not always, afford the possessor a “reasonable excuse” for possessing the thing in question. But “reasonable excuse” is added to cover a wider range of exempting circumstances. Each of the words in question shows that this is so. Thus, “purpose” has a narrower denotation than “excuse” which may involve reference to a much wider range of considerations than the “purpose” for possession. Similarly, “lawful” directs attention (as I would hold) to the existence of the positive authority of law. What is “reasonable” as an “excuse” invites consideration of a much wider range of pertinent facts.”

  1. [29]
    Guidance can also be found in N v DPP [2011] EWHC 1807 (Admin) where the appellant had been found in possession of a metal bar and was charged with possession of an offensive weapon. The facts found were that the appellant and a friend had gone to a party at 32 Cassland Road ("the property") where they had been involved in an altercation. They had been approached by about 15 males. The group of men had asked them to leave. Their manner was aggressive. There was shouting and swearing. The males were about the same age as them. There had been a little scuffle. No weapons were used or shown to the appellant and his friend. The appellant and his friend had then left the party on foot.
  1. [30]
    The police received a report that a group of youths had left the property armed with knives taken from the kitchen. This was not within the knowledge of the appellant. As the appellant and his friend were walking down the main road, a car stopped approximately 2-3 metres away from them. One of the occupants shouted, "We thought you were bad boys". The car was packed with boys the same age, although two appeared older. No men got out of the car. The appellant did not see any weapons. The appellant did not recognise the men in the car. The appellant and his friend then ran off when they saw the other car door open. The appellant had had reasonable cause to fear, and indeed had feared, that he would be attacked at this stage.
  1. [31]
    The appellant did not see the car again. The appellant had picked up the bar three minutes after the incident with the men in the car. The appellant said he picked up the bar to protect himself in case the car found them.
  1. [32]
    The appellant said he took four steps and the police arrived. The police did not see the appellant pick up the bar. They had been following the appellant and his friend along two streets. The appellant had the metal bar with him in a public place. The appellant was out of breath and sweating when stopped by the police. The appellant dropped the bar on seeing the police.
  1. [33]
    The District Judge took the view that the defence of reasonable excuse was not made out because, even if the appellant did believe that he was at risk of an imminent attack, his belief was not a reasonable one in the circumstances. It was not a reasonable belief because the appellant had not seen any weapons in the car. He had not believed the car had followed him, and he had the bar five minutes after he had seen the car once all threat had passed. He did not therefore satisfy the judge, on the balance of probabilities, that he had a reasonable excuse for having the metal bar with him when he was stopped by the police five minutes after the risk of danger had passed. The judge therefore found him guilty.
  1. [34]
    The question for the opinion of the court on an appeal by way of case stated was:

"whether the learned District Judge was right in concluding on the balance of probabilities that having a weapon five minutes after the risk of imminent attack had passed did not give the appellant a reasonable excuse and therefore a defence to the charge even though the appellant believed he was at risk of imminent attack."

  1. [35]
    The appellant argued, by analogy with the law on self-defence, that the question of reasonable excuse was to be judged by reference to the facts as he believed them to be, even if his belief was mistaken. The Crown relied on McAuley[7] in support of the proposition that the existence of a reasonable excuse is a matter of fact. The Divisional Court (Pitchford L.J. and Supperstone J.) held that each case must be determined on its own facts and that the District Judge had not erred. It also rejected a submission that the existence of a reasonable excuse was a matter to be determined solely by reference to the defendant's own perception of the facts. Supperstone J. said that when a defendant claims that he had a reasonable excuse for possessing an offensive weapon because he believed he was at risk of imminent attack, it is for him to prove both the belief and the reasonableness of the belief on the balance of probabilities. Were that not the case, any defendant could claim that he honestly believed he was at risk of imminent attack. Pitchford L.J., agreeing with Supperstone J., accepted that one of the circumstances to be taken into account in deciding whether the defendant has established a reasonable excuse may be his belief that he was in danger of imminent attack, but he too rejected the suggestion that the question was to be determined solely by reference to the defendant's state of mind. He held that the tribunal of fact is entitled to assess the matter for itself by reference to all the circumstances of the case.
  1. [36]
    Of note is Pitchford L.J. indicated the tribunal of fact is entitled when considering the reasonableness of the excuse to assess for itself, for example, how imminent was that attack; or how soon would it take place; or how likely was it to take place. His Honour concluded that, notwithstanding the existence of a belief claimed by the defendant, that belief could not constitute a reasonable excuse for being in possession of a metal bar because the risk in which the defendant believed had plainly passed or was minimal.
  1. [37]
    In this case when a defendant claims that he had a reasonable excuse for use of a weapon in conduct that is likely to alarm others because he believed he was at risk of imminent attack, it is for them to show both the belief and the reasonableness of the belief. Were this not the case, any defendant could claim that he honestly believed he was at risk of imminent attack.
  1. [38]
    “Imminent attack' means, how soon, how likely and how serious the anticipated attack has to be to constitute a good reason to discharge the firearm. It includes temporal and geographical considerations, the type of weapon possessed, and the age, characteristics and experiences of the defendant.

By Use of a Weapon

  1. [39]
    “Use” includes discharging a firearm, pointing a firearm at a person, pulling out a firearm holding it in hand to intimidate another, and displaying a firearm for the purpose of intimidation.[8]
  1. [40]
    Pursuant to section 5 of the Weapons Act the dictionary in schedule 2 defines particular words used in this Act and as relevant to this case:.

weapon (a) means (i) a firearm; or  …

firearm means (a) a gun or other thing ordinarily described as a firearm; or …

A shotgun would be a firearm.

Likely to Cause

  1. [41]
    Likely means having a substantial, real, and not remote chance of causing the result. The word 'likely’ should not be construed to mean 'more likely than not’ or to assume a specific degree of mathematical probability not conveyed as a matter of ordinary language or the statutory context: Boughey v The Queen (1986) 161 CLR 10; 65 ALR 609; [1986] HCA 29. “Likely” in this context conveys a substantial – a real and not remote – chance. See comments of Pincus JA in R v T [1997] 1 Qd R 623.
  1. [42]
    In the context of “likely to cause alarm”, it is not necessary to adduce evidence from bystanders to say that they were in fact alarmed, or even saw the gun being discharged; this can be inferred. In Holloway v DPP [2004] EWHC 2621 (Admin), at paragraph 32, Collins J said:

"... I do not believe it to be necessary that the prosecution call a person or persons who can say that they did see what was happening. The evidence must be sufficient, so that the court can draw the inference, having regard to the criminal standard, that what he was doing was visible to or audible to people who were in the vicinity at the relevant time."

Alarm to Another Person

  1. [43]
    Alarm means a sudden sharp apprehension and fear resulting from the perception of imminent danger[9]. It makes someone feel frightened, disturbed, or in danger. It creates sudden worry and fear, especially that something dangerous or unpleasant might happen[10]

Witnesses

P.C.S.C Ashley Gary SHEPHERD

  1. [44]
    Plain Clothes Senior Constable Shepherd testifies he was rostered on 2 October 2016 between 2:00pm and 10:00pm and at 3:00pm he was detailed to attend Gracemere and met with Erin Skennar who told him something.
  1. [45]
    He and his partner then proceeded to an address in Somerset Drive and met with the Defendant Tyler Skennar.
  1. [46]
    They had a conversation in relation to the location of a firearm. Tyler told him he placed a shotgun under a bit of wood in the property to the left hand side of the dwelling towards the windmill. The officers located the firearm there.
  1. [47]
    His investigation revealed the firearm was owned by the father but was not listed at that property.
  1. [48]
    Shepherd indicates that Tyler and Erin are siblings and that property was the family home although he thought Erin was not living there at the time.
  1. [49]
    A series of photographs depicting the scene were tendered.
  1. [50]
    A crime scene was declared and a search was conducted.
  1. [51]
    A spent cartridge was found in a bin near the house.
  1. [52]
    In cross-examination P.C.S.C Shepherd was asked if he knew whether Slade Smyth or Brandon Christensen had a reputation for violence. He said ‘No’ and did not include that in his investigation.
  1. [53]
    He did not see Caitlyn Reid bleeding this day but she was upset.
  1. [54]
    Shepherd also testifies that he had been unable to locate and speak with Smyth and Christensen.
  1. [55]
    He was further cross-examined on what the basis of the charges were and indicates “the moment he discharged the firearm and reloaded it”.

Erin Marie SKENNAR

  1. [56]
    Ms Skennar testifies she lives at 435 Somerset Drive for a year or two.
  1. [57]
    Tyler Skennar is her brother.
  1. [58]
    She testifies that on 2 October 2016 she was home that day on her parent’s property which the parents rent.
  1. [59]
    She and her brother got into a fight at about 1 or 12 inside the house. She was home on her phone to her mother and ended up arguing with her brother.
  1. [60]
    They ended up pushing and shoving each other and she slapped him and he slapped her.
  1. [61]
    Tyler then left and went up the back.
  1. [62]
    Erin then rang her partner to come and pick her up.
  1. [63]
    Slade and Brandon then arrived she told them what happened and they all got angry and went looking for Tyler.
  1. [64]
    Tyler and Caitlyn came out of a shed and there was a big argument with a lot of swearing.
  1. [65]
    Brandon had picked up a metal bar when they had left the house looking for Tyler.
  1. [66]
    Tyler had come out of the shed with a machete. Both Brandon and Tyler ended up dropping their weapons.
  1. [67]
    After they were dropped there was a lot of yelling and screaming. Erin tried to get the boys into the car and Tyler was telling them to leave.
  1. [68]
    Tyler then went inside the house.
  1. [69]
    Ms Skennar drew a map of the scene.
  1. [70]
    Erin, Slade and Brandon in the meantime had walked back to the car.
  1. [71]
    Erin then heard a gunshot. She froze and they all continued to argue. Erin, Slade and Brandon then got in the car and left.
  1. [72]
    When the shot was fired Erin testifies they were a fair distance away from each other.
  1. [73]
    The only time in evidence in chief that more than one shot was fired is when the Prosecutor ask:

“Okay.  At the time that the shots were fired, were Brandon or Slade holding anything?‑‑‑No.”

  1. [74]
    Erin indicates:

“Did you say they were already in the car?‑‑‑We – we were still outside, and when Tyler went in we were still outside.  But then when he fired the shot we all thought it would be better to get in the car and just leave, so we got in the car.”

  1. [75]
    In cross-examination Ms Skennar indicated the argument at the shed took a few minutes.
  1. [76]
    Also she indicates Tyler did not have the machete for very long as he dropped it.
  1. [77]
    She also says that when Tyler went into the house to get the firearm her and Caitlyn were in an argument but denies Caitlyn was on the ground but admits Caitlyn was bleeding from the nose as a result of the fist fight.
  1. [78]
    Erin also indicates Tyler, Slade and Brandon have not really got on and that Slade and Brandon are strong headed and proud.
  1. [79]
    Erin also indicates when Mr McGowran asks:

“He fires a shot.  You’re convinced he was never going to do anyone harm.  You said – you volunteered the words, “He’s completely harmless”, but that’s what it took to get the boys to get into the car and go?‑‑‑Yeah, it was just a warning ‑ ‑ ‑  Sure?‑‑‑‑ ‑ ‑ to leave.”

Tyler Ewan SKENNAR

  1. [80]
    Tyler Skennar testifies he lives at 435 Somerset Drive Kabra.
  1. [81]
    On 2 October 2016, he and Caitlyn, his partner, had gone out to lunch and arrived back at the house between 11.30am/12:00noon. Around lunchtime.
  1. [82]
    They drive up the driveway and pulled up in front of the shed and Erin, his sister, met them at the gate. Erin was on the phone to their mother. Erin and Tyler started a verbal fight. He testifies it was over his partner Caitlyn whom Erin did not get on with at that time.
  1. [83]
    Tyler told Caitlyn to go for a walk up the paddock to cool off and he walked inside the house to talk to Erin.
  1. [84]
    They had a heated argument “about everything” and Erin pushed him and he pushed her back. Erin slapped him in the face and he slapped her back.
  1. [85]
    He then went outside found Caitlyn and went up to the back shed “away from everything”.
  1. [86]
    He tried to calm her down and after about ten minutes heard a car pull up and about another five minutes later heard voices.
  1. [87]
    Tyler then testifies he stood up and walked to the front of the shed to see who was there.
  1. [88]
    He heard his name being called out and he saw Erin, Brandon and Slade walking up to the front of the shed.
  1. [89]
    He did not leave the shed and he indicated they were calling him a fuckhead, “Come out here, you dog”. Brandon kept going on with the same stuff, “You don’t know who I am. Remember my name. I’m going to smack your head in”. Slade just kept yelling “cunt”, “bitch”, the same stuff over and over. He just kept yelling off the top of his head.
  1. [90]
    Brandon was holding a metal tyre iron for a trolley jack at the time.
  1. [91]
    Caitlyn was behind Tyler and Tyler grabbed a machete that was hanging on the wall and walked out with the machete down his right side and kept asking them to leave.
  1. [92]
    They kept yelling and that’s when Slade said, “Don’t come at us with a weapon. You’re a dog if you do”. Tyler said, “Well, why has Brandon got a bar in his right hand?”
  1. [93]
    Tyler then indicates they started walking back to the car and Brandon has thrown the bar into the garden.
  1. [94]
    He has kept the machete down the right side while walking behind them down to the car.
  1. [95]
    He saw Caitlyn was on the fence line behind the car.
  1. [96]
    Erin was telling Brandon and Slade to get in the car but Slade was hanging off the car saying the same stuff.
  1. [97]
    He told Caitlyn to grab her phone and ring the police.
  1. [98]
    She did not have it on her at the time, and his was on the back patio table.
  1. [99]
    Tyler testifies he has walked down to go get his phone. He thought Caitlyn was behind him. He heard Caitlyn scream and looked back up to the paddock and saw Erin and Caitlyn in a punch up.
  1. [100]
    He says he “just snapped” and has gone inside to the pantry where a gun was kept, and grabbed it.
  1. [101]
    He then grabbed the shells, walked out down the stairs and out behind his ute parked in the driveway, and put the first shell in. He let it off towards the “middle right-hand up towards the shed – or the paddock”. The shot was at right angles towards Erin and the others were.
  1. [102]
    When he came out from the house he saw Caitlyn sitting in the dirt. Erin was at the rear of the car, Brandon was on the driver’s side and Slade was on the left hand side door well leaning across the roof. They were 10 metres away from Caitlyn.
  1. [103]
    When asked

BENCH:   So what was your intention with discharging the firearm?‑‑‑To scare               them off, really.  Maybe they would’ve clicked on to get off the property when I told them too.

  1. [104]
    Tyler says the incident took place over forty minutes to an hour and, after he shot the gun off, the boys and Erin left five to ten minutes later.
  1. [105]
    In cross-examination Tyler says when he heard Caitlyn scream he had a quick glance up the paddock and saw Caitlyn and Erin punching on, Slade and Brandon were standing near the rear of the car.
  1. [106]
    Tyler also admits two shots were fired when asked by the Prosecutor:

“That – that’s the first shot?‑‑‑Yes.Where did you fire the second shot?‑‑‑Same direction.”

  1. [107]
    He also admits to the Prosecutor when put:

“You’ve even said, in your testimony, that you got the shotgun to scare them off, to actually cause alarm and fear, to make them leave;  is that correct?‑‑‑The type of blokes, if you knew them, yes, you’d do it. So I put it to you that you – as you stated, you deliberately grabbed that gun, and you had full intentions of shooting it, to scare them, create alarm and fear, for them to get you off – to get them off your – their – your property?‑‑‑Yes.  When I’ve got two blokes against myself, yes.”

  1. [108]
    He later testifies:

“When I see my partner, that is seven months pregnant, and another two guys that I’ve got to concentrate with myself, I felt it was necessary to let a warning shot off.”

  1. [109]
    He testifies Slade at the time of firing the shotgun was on the left side of the car leaning on the roof, Brandon was on the right hand side of the car and Erin was at the rear of the car. The boys were yelling at Tyler. Erin was telling Brandon to get in the car.
  1. [110]
    He admits that at this stage there was no threat to Caitlyn and he fired the shot just to warn them to get off the property.
  1. [111]
    He indicates he was in fear for his partner.
  1. [112]
    He also says he was 25 metres away from them but Caitlyn was five or six metres away from them at that time.
  1. [113]
    When asked why he didn’t just call the police or remove himself and Caitlyn to safety said:

“Split [indistinct] decision, just after I seen Caitlyn screaming. Because I wasn’t 100 per cent sure they were getting in the car and leaving.  They’re the type of people that would get you when you got your back to them.”

  1. [114]
    Tyler also indicates when asked:

“So how angry were you when you had the shotgun in your hand?‑‑‑Angry enough to let a shot off in the air.”

  1. [115]
    When put by the Prosecutor: “

“I put it to you – now, you’ve made admissions in court that you definitely shot the – the shotgun twice.  I put it to you that you didn’t have to do that?‑‑‑Yes. Would you agree?‑‑‑I didn’t – no, I didn’t have to do it.  Didn’t have to do it, at the end of the day. Because, at that stage, they were just yelling abusive – calling you names at that stage.  They didn’t try to follow you inside the house when you originally went to go into the house to get your phone?‑‑‑No, none of them did.”

Caitlyn-Paige REID

  1. [116]
    Ms Reid testifies she is the partner of Tyler Skennar and they have a child together.
  1. [117]
    She remembers the 2 October 2016. Tyler and she had just come back from lunch around midday, 1:00pm. Erin was at the house. She and Erin do not get along.
  1. [118]
    Erin and Tyler got into an argument (she indicates probably over her) on the front patio of the house. Erin hit and pushed Tyler and he retaliated.
  1. [119]
    She and Tyler then went out the back to the shed.
  1. [120]
    Five minutes later Slade Smith and Brandon Christensen “flew up the driveway”. They got out of the car and walked up to the shed where she and Tyler were sitting, holding a trolley jack handle and threatening to bash Tyler’s head in.
  1. [121]
    She and Tyler went inside the shed where they were yelling. Tyler said, put down your weapon, and they wouldn’t; they kept coming. Tyler picked up a blunt machete to defend himself, and then they automatically turned around. They threw the tyre iron away.
  1. [122]
    There was more yelling and arguing. Slade has taken off to the car and pushed his girlfriend over while running to the car. Brandon was still arguing and doing hand gestures (slitting his throat) as if going to kill Tyler outside the shed.
  1. [123]
    Tyler told her to stay back and they walked (ran) back to their car Brandon was still arguing.
  1. [124]
    Tyler told Caitlyn he was going to the house to get his phone to ring the police and then went to the house.
  1. [125]
    Erin then bashed Caitlyn, assaulted her, kicked her, and punched her, to the point where she was on the ground. She was also pregnant at the time, and the two boys were then standing over the top of Caitlyn, egging Erin on to keep going.
  1. [126]
    Tyler has got a gun and fired it. They sat there and still argued, kept going, so he let off second one, and they got in their car and drove off. She and Tyler went back to the house to clean up.
  1. [127]
    They spoke to the police, and his parents.
  1. [128]
    In cross-examination Caitlyn indicates there was “bad blood” between her and Erin.
  1. [129]
    The Prosecutor went through Caitlyn’s version with her.
  1. [130]
    Caitlyn indicates when Tyler ran down to the house to get his phone she stood there, about four metres from them waiting for the police.
  1. [131]
    Caitlyn testifies the fight with Erin started when she came and hit her first. Erin had kept telling her to “shut up”. Caitlyn had kept reminding Erin she was pregnant, Erin kept saying “No you’re not”, “shut up” and “I don’t care”.
  1. [132]
    According to Caitlyn the fight started when she asked them to leave and Erin “felt as though I had no right to tell her to leave”.
  1. [133]
    Caitlyn’s version when asked by the Prosecutor is that Erin ran at Caitlyn, Caitlyn didn’t defend herself, Erin punched her in the face, Caitlyn fell to the ground and Erin kept kicking and punching Caitlyn and the boys stood over the top of Caitlyn egging her on.
  1. [134]
    Caitlyn when asked:

“Why didn’t you just go inside when Tyler went inside?‑‑‑I don’t know.  I guess it was just in the moment I didn’t move.  I didn’t know what to do.”

  1. [135]
    Caitlyn’s explanation in not following Tyler to the house was that:

“I didn’t remove myself from the situation because I’d already gone to the shed to get out of the way and they had found us.  If I had gone to the house, they would have done the exact same thing.  You can’t lock yourself in the house.

But you stated that ‑ ‑ ‑?‑‑‑There are ways to get in.”

Objection to Relisting After Proceedings Reserved

  1. [136]
    The Prosecutor objected to Mr McGowran asking the Court to relist the proceedings after they had been adjourned to a date to be fixed for decision. It was suggested he had closed his case and therefore cannot relist the case.
  1. [137]
    I accept that Mr McGowran has closed his case but what he seeks is not to re-open to adduce further evidence but provide further submissions and a case that may be relevant.
  1. [138]
    The Australian Solicitors' Conduct Rules 2012 provide:

“19.6 A solicitor must, at the appropriate time in the hearing of the case if the court has not yet been informed of that matter, inform the court of:

19.6.1 any binding authority,

19.6.2 where there is no binding authority, any authority decided by an Australian appellate court, and

19.6.3 any applicable legislation, known to the solicitor and which the solicitor has reasonable grounds to believe to be directly in point, against the client’s case.

19.8 A solicitor who becomes aware of matters within Rule 19.6 after judgment or decision has been reserved and while it remains pending, whether the authority or legislation came into existence before or after argument, must inform the court of that matter by:

19.8.1 a letter to the court, copied to  the opponent, and limited to the relevant reference unless the opponent has consented beforehand to further material in the letter, or

19.8.2 requesting the court to relist the case for further argument on a convenient date, after first notifying the opponent of the intended request and consulting the opponent as to the convenient date for further argument.”

  1. [139]
    There is no prejudice to the Prosecution or inappropriate conduct by Mr McGowran and I allowed him to provide further submissions and the case with an indication I would deal with the objection in my decision. In these circumstances the objection is overruled.

Discussion

Interaction between Weapons Act 1990 and Criminal Code 1899

  1. [140]
    Mr McGowran confused me in his submissions when he said he was relying on self-defence as a defence. Self-defence is a defence in the Criminal Code to assault. It is not a defence under Chapter 5, Criminal responsibility under the Code.
  1. [141]
    His argument is based on his interpretation of section 159 of the Weapons Act 1990.
  1. [142]
    That section provides:

159 Criminal Code to be read with Act

The Criminal Code, with all necessary adaptations, is to be read and construed with this Act.

  1. [143]
    Read and construe means no more than to discover (information) by reading it in a written or printed source and to analyse (a sentence, section, etc.) so as to determine the meaning of the words or sections of a statute based upon rules of legal interpretation as well as normal meanings and do not construe terms so strictly as to lead to a harsh and absurd result as some offences as duplicated in both Acts.
  1. [144]
    The section does not say the Criminal Code “applies” as the legislature would have inserted ”is to be read, construed and applied” so the Weapons Act could make use of the provisions including all defences under the Criminal Code.
  1. [145]
    However, unless specifically excluded by the particular statute, the defences available under Chapter 5 of the Criminal Code apply to all statute law in Queensland (section 36) as the section uses the term “apply”.
  1. [146]
    Section 159 should be read as set out in the Legal Aid Queensland – Criminal Law Duty Lawyer Handbook, Chapter 10—Miscellaneous at page 104, where the section is said to have two effects:
  1. some offences are duplicated in the Criminal Code and Weapons Act. Police can use discretion in relation to the charge;
  1. the Criminal Code’s defence provisions (subsections 22–36) apply to offences under the Weapons Act.
  1. [147]
    But deterrence and self-defence can be classified as a “reasonable excuse”. The High Court held in Taikato v R (supra) that self-defence can be a reasonable excuse but is dependent upon the precise facts and circumstances of the case.
  1. [148]
    If Mr Skennar had a reasonable excuse that he was at risk for his safety, then arming himself with a weapon for self-defence may have been reasonable.
  1. [149]
    The relevant section is clearly intended to prevent the misuse of weapons and persons being frightened and fearful that something unpleasant may happen or they are in danger because of a person’s conduct with a weapon which may be used for an offensive purpose. That is because firearms are inherently dangerous and capable of causing serious injury or death. The presence of a weapon might result in greater injury.

Dangerous Conduct with a Weapon

  1. [150]
    Happy families are all alike; every unhappy family is unhappy in its own way.[11]
  1. [151]
    On 2 October 2016 the siblings, Erin and Tyler who are children of the same parents, each of whom is perfectly normal until they got together this day. Siblings fight, pull each other's hair, steal stuff, and accuse each other indiscriminately. But siblings also know the undeniable fact that they are the same blood, share the same origins, and are family. Even when they hate each other. And that tends to put all things in perspective. 
  1. [152]
    I am of the view that PCSC Shepherd gave forthright and frank evidence.
  1. [153]
    Erin Skennar, who is the Defendant’s sister, gave honest evidence although she was circumspect and careful not to provide too much detail in answering questions. She appeared a reluctant witness as she said “I know Tyler didn’t mean to, like, scare us or anything.  He didn’t want to harm us or anything…. Because he’s my brother.”
  1. [154]
    Tyler Skennar I also consider, in the most part, to be an honest and forthright witness. I say that because he did not mention in examination in chief he fired two shots which only was revealed in cross-examination. He provides details of the incident that are both logical and consistent with reality. His version is similar to Erin’s and Caitlyn’s version although there are some inconsistencies between each version and prefer Tyler’s over the others evidence.
  1. [155]
    Caitlyn Reid also gave honest evidence although at times crossed into opinion mixed with emotion. She is the partner of Tyler. Some of her evidence can only be from information supplied by others.
  1. [156]
    The inconsistencies in the evidence are no more than the general discrepancies you would expect would occur between witnesses giving evidence of a heated altercation which had occurred sometime previously.
  1. [157]
    There is no dispute about date, time and place.
  1. [158]
    I find that on the 2 October 2016, in approximately 40 minutes standoff, Tyler Skinner ended up firing two shots in the air to force his sister Erin, boyfriend Slade and male friend Brandon to leave the family property at 435 Somerset Road Kabra.
  1. [159]
    Tyler Skennar and his pregnant partner, Caitlyn Reid, arrived at 435 Somerset Drive, Kabra about noon or shortly later that day before they got into a verbal argument with his sister, Erin Skennar.
  1. [160]
    What the actual argument was about seems to have been forgotten (although probably about Caitlyn), as all the evidence indicates that the girls did not like each other.
  1. [161]
    Tyler Skennar has told Caitlyn to go for a walk up the paddock and calm down.
  1. [162]
    The argument escalated between the siblings which has continued inside the house, at which point Erin has pushed Tyler and he pushed Erin. Erin then slapped Tyler across the face and he did the same to her.
  1. [163]
    Tyler, after the physical altercation with Erin, has gone looking for Caitlyn, found her, and they have both gone to a large shed on the property.
  1. [164]
    After Tyler left the house, Erin called her boyfriend, Slade Smyth, who arrived shortly afterwards by car with his friend Brandon Christensen.
  1. [165]
    Erin has told Slade and Brandon about the fight with her brother and they all went looking for Tyler.
  1. [166]
    Tyler Skennar at one point heard the two men yelling and calling his name so he walked to the door of the shed and heard Christensen say "I'm going to smack your head in”.
  1. [167]
    Skennar went outside the shed to confront them and grabbed a blunt machete from the shed when he saw Christensen walking towards him with a metal tyre iron in his hand.
  1. [168]
    A tirade of yelling, insults and threats ensued between the two parties.
  1. [169]
    Skennar said that at some point, Caitlyn tried to get between him and the others to stop the argument.
  1. [170]
    They kept yelling and Slade has said, “Don’t come at us with a weapon. You’re a dog if you do”. Tyler said, “Well, why has Brandon got a bar in his right hand?”
  1. [171]
    Erin, Slade and Brandon started walking back to the car and Brandon has thrown the bar into the garden.
  1. [172]
    Tyler still kept the machete down the right side while walking behind them down to the car.
  1. [173]
    Caitlyn was on the fence line behind the car.
  1. [174]
    Erin was telling Brandon and Slade to get in the car but Slade was hanging off the car continuing the tirade.
  1. [175]
    Tyler has told Caitlyn to grab her phone and ring the police.
  1. [176]
    She did not have it on her at the time, and his was on the back patio table.
  1. [177]
    Tyler has walked down to the patio of the house to get his phone. He heard Caitlyn scream and looked back up to the paddock and saw Erin and Caitlyn in a physical fight. Caitlyn at one stage was on the ground although that finding conflicts with Erin’s evidence that she and Caitlyn got "into a fist fight” but Caitlyn did not fall to the ground although Caitlyn ended up with a bloody nose.
  1. [178]
    Tyler says he “just snapped” seeing his sister attacking his pregnant partner and has gone inside the house to the pantry where a gun was kept, and grabbed it and shells and come outside and discharged the shotgun.
  1. [179]
    Tyler Skennar was 20-25 metres away from the men when he fired the first shot into the air directed away from all parties to scare them off.
  1. [180]
    Caitlyn says Tyler fired the second shot five minutes after the first as his sister and the men had not left the property but consider that a fairly lengthy time frame and would consider it shortly after the first as Erin said when they heard a shot, they froze and jumped into the car and drove off.
  1. [181]
    My difficulty is that when Tyler fired the shot he nor his partner were being attacked and the others had retreated to their car, so there was some distance between the parties. To my mind there is no immediate physical threat but a heated exchange of words and threats unlike in Bennett where the shot was fired to stop the fight and any further injuries. The verbal exchange was between Tyler and Erin’s group, and Caitlyn was not part of it or threats being made to her, so was really in no part of this exchange.
  1. [182]
    It is not argued that there was no dangerous conduct with a weapon.
  1. [183]
    The firing of the first shot certainly was likely to alarm Erin and others by frightening them to think something dangerous or unpleasant may happen with the purpose of getting them to leave. The same can be said about the second.
  1. [184]
    Little detail is given of the second shot which was really only revealed in cross-examination of Tyler and by Caitlyn. There was no mention of it in Tyler’s examination in chief or by Erin.
  1. [185]
    Tyler’s conduct is excused if he has a “reasonable excuse”.
  1. [186]
    Tyler was obviously angry as in his words had lost it.
  1. [187]
    Tyler Skennar was expected to act as a person who possesses the faculty of reason and engages in conduct in accordance with community standards. That is because in Zecevic v DPP (Victoria) (1987) 162 CLR 645[12] Mason CJ stated that he was "unable to accept that self-defence lacks an objective element. Howe (1958) 100 CLR 448, Palmer [1971] AC 814 and five of the judges in Viro (1978) 141 CLR 88 assert the existence of an objective element."
  1. [188]
    Consideration of what a reasonable person would do is not without difficulty. This position recognises the fact that in the heat of the moment, a Defendant cannot be expected to weigh the nature of the force necessary with any precision. As Holmes J. put it, 'detached reflection cannot be demanded in the presence of an uplifted knife”.[13]
  1. [189]
    More recently, Edmund-Davies L.J. stated the position as follows: “If there has been an attack so that defence is reasonably necessary it will be recognised that a person defending himself cannot weigh to a nicety the exact measure of his necessary action.”[14]
  1. [190]
    The Prosecution through PSCS Shepherd evidence that self-defence and proportionality if raised that the Defendant should have retreated into the house and locked the doors to avoid any further conflict.
  1. [191]
    Retreat is subsumed under the rule requiring reasonableness of the self-defence. There is no need to retreat where this would increase the danger to the Defendant and equally allowance must be made for the atmosphere of the emergency and render judgment less than calm and detached. However a demonstration by the Defendant that at the time he did not want to fight is the best evidence he was acting reasonably and in good faith.
  1. [192]
    In Attorney-General's Reference (No 2 of 1983) [1984] 2 WLR 465, the defendant made ten petrol bombs, during the Toxteth riots after his shop was damaged and looted, "to use purely as a last resort to keep them away from my shop". The expected attack never occurred. He was then charged with an offence under section 4(1) of the Explosive Substances Act 1883 of possessing an explosive substance in such circumstances as to give rise to a reasonable suspicion that he did not have it for a lawful object. Lord Lane CJ said: 'There is no question of a person in danger of attack "writing his own immunity" for violent future acts of his. He is not confined for his remedy to calling in the police or boarding up his premises. He may still arm himself for his own protection, if the exigency arises, although in so doing he may commit other offences. That he may be guilty of other offences will avoid the risk of anarchy contemplated by the Reference.'
  1. [193]
    In McInnes [I971] 3 All E R. 295 at p. 300,  Edmund-Davies L.J. disagreed with the direction of the trial judge suggesting that a failure to retreat would result in the denial of the plea of self-defence and observed: 'We prefer the view expressed by the High Court of Australia[15] that a failure to retreat is only an element in the consideration on which the reasonableness of an accused's conduct is to be judged' (see Palmer v. Regim) or, as it is put in Smith and Hogan's Criminal Law[16], '. . . simply a factor to be taken into account in deciding whether it was necessary to use force and whether the force used was reasonable'.
  1. [194]
    A person may be permitted to protect another person if they have a reasonable apprehension that the other person was in danger and they believed that force was immediately necessary to protect that person from someone else. The threat may be verbal as long as it puts the intended victim in fear.
  1. [195]
    Whether the plea is self-defence or defence of another, if the Defendant may have been labouring under a mistake as to facts, he must be judged according to his mistaken belief of the facts: that is so whether the mistake was, on an objective view, a reasonable mistake or not."
  1. [196]
    The rule of the common law that the violence used by the defendant must be proportionate to the danger. Proportionality, however, is not measured on objective considerations. The threat to use a gun against another is not a justified response in relation to verbal provocation.
  1. [197]
    A defensive display of a gun, however, is justified to the extent a reasonable person would believe that physical force is immediately necessary to protect against the use or attempted use of physical force. It is a misconceptions “if you draw, you must shoot.” This includes verbally informing another person that the person has a firearm, exposing or displaying a firearm in a manner a reasonable person would understand was meant to protect the person against another’s threat to use physical force. In reality, one should avoid any confrontation, unless circumstances require one to defend oneself or another.[17]
  1. [198]
    Elements then of acting reasonably includes the Defendant first avoided conflict and secondly had taken reasonable steps to retreat and so demonstrate an intention not to alarm others with conduct with a firearm before eventually discharging a firearm.
  1. [199]
    As to the suggestion of a lawful excuse to remove trespassers from your property, Tyler’s parents had the lease. He was an occupier. An occupier can eject a trespasser from the property but is not allowed to use any more force than is necessary. Erin was also an occupier of the property and the boys were there under her invitation. That appears not to have been revoked by Erin. There is a difference between asking them to leave because they are trespassing and trying, as Erin was, to get them in the car to leave.

Conclusion

  1. [200]
    I take into account Tyler is 22 years of age. I know no more of the characteristics and experiences of the Defendant.
  1. [201]
    Mr Skennar was angry when he entered the house to obtain the shotgun. He had time to reflect and his passion to cool between going and getting the shotgun and the shells and discharging it. It was not as if he was defending himself and had no time to weigh to a nicety the exact measure of his necessary action.
  1. [202]
    The Defendant's action was not immediately necessary to prevent the harm he feared considering when he came out of the shed with a machete they threw their weapon away. Concerns about Brandon and Slade’s past or propensity to violence is vague. He was not obliged to fire his gun in an attempt to avoid being seriously hurt or even killed as there was no imminent threat to him. Any threat was minimal bearing in mind what happened with the tyre iron. There was no need to protect Caitlyn as there was no reason to apprehend that Caitlyn was in danger and that force was immediately necessary to protect Caitlyn.
  1. [203]
    A reasonable response includes a defensive display of a gun including verbally informing another person that the person has a firearm, exposing or displaying a firearm in a manner a reasonable person would understand was meant to protect the person or third party against another’s threat to use physical force. In general, one cannot be the aggressor. A “defensive display” can be used in self-defence to resist threats of unlawful physical force or unlawful physical force.  The defendant's "self-defence" in this case was nothing other than a "pre-emptive strike" against the men he feared. [18]
  1. [204]
    Contacting the Queensland Police Service when he first went to the patio and retreating to a place of safety with Caitlyn was also reasonable.
  1. [205]
    It just shows how angry Tyler was and not acting reasonably when he saw his partner Caitlyn and his sister fighting, he does not go and rescue his partner but goes and gets a shotgun instead.
  1. [206]
    Two shots are fired.
  1. [207]
    Firing two shots from a shotgun when the boys were not armed, had not violently attacked anyone, no murderous or violent assault was taking place, there was no reason when he is holding a firearm of any imminent threat of attack especially where the boys are in or around the car and he was some distance away and they were not advancing towards Tyler or Caitlyn, Caitlyn was in no or little danger, Erin was trying to get the boys into the car and leave, in my opinion was not reasonable but actions of an angry person.
  1. [208]
    Although Tyler was trying to get the boys to leave immediately and dissuade them from doing anything else, Tyler risked escalating the situation when they were not advancing towards him or Caitlyn.
  1. [209]
    There is no lawful excuse in discharging the firearm twice. The use of a gun by discharging it twice is not a justified response in relation to verbal provocation.

Compulsion

  1. [210]
    The other consideration is section. 31 of the Criminal Code 1899 which provides:

“31 Justification and excuse — compulsion

  1. (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—
  1. (a)
    in execution of the law;
  1. (b)
    in obedience to the order of a competent authority which he or she is bound by law to obey, unless the order is manifestly unlawful;
  1. (c)
    when the act is reasonably necessary in order to resist actual and unlawful violence threatened to the person, or to another person in the person's presence;
  1. (d)
    when—
  1. (i)
    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
  1. (ii)
    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
  1. (iii)
    doing the act or making the omission is reasonably proportionate to the harm or detriment threatened."
  1. [211]
    Subsection (1)(c) provides an excuse which is similar in many respects to self-defence.
  1. [212]
    I have already dealt with self-defence. For the same reasons above, the subsection provides no defence.
  1. [213]
    Subsection (1)(d) allows a wider range of threats to constitute the excuse.
  1. [214]
    Paragraph (ii) requires that the person must believe himself or herself being otherwise unable, except by doing the act or making the omission, of escaping the carrying out of the threats into execution. The test is entirely subjective and thus allows the possibility of mistake as to the availability of alternative options.
  1. [215]
    Paragraph (iii) requires that, in addition, doing the act or making the omission is reasonably proportionate to the harm or detriment threatened. The requirement is thus an objective one.
  1. [216]
    In R v Taiapa [2008] QCA 204; Keane JA (with whom Fraser JA and Lyons J agreed) commented at [29] ff:

“The common law has developed to recognise that the will of an accused might be overborne by a threat which was not to be carried out immediately if the threatened person did not succumb to the threat. …

…

[30] Whether or not the amendments made to s 31(1)(d) of the Criminal Code in 1997 and 2000 were intended fully to align the effect of this provision of the Criminal Code with the current position of the common law, there can be no real doubt that the intention of these amendments was to remove the requirement that the threatener be in a position to carry out the threat at the very time the offence was being committed. It is difficult to ascribe any other intention to the legislature's deletion of the requirement that the threat which the threatener must be in a position to carry out be one of “immediate death or grievous bodily harm” (emphasis added).

[31] That being so, it is sufficient for the purposes of s 31(1)(d)(i) of the Criminal Code that the compulsion which operates on the mind of the accused at the time of his otherwise criminal act be exerted by a present threat of future harm. …”

  1. [217]
    Subsection (1)(c) provides an excuse which is similar in many respects to self-defence.
  1. [218]
    The Court of Appeal went on to find that there had not been established an evidentiary basis for a reasonable belief on the appellant’s part that he could not have availed himself of the protection of the police to render ineffective the threats made (at [36]):

“The requirements of s 31(1)(d)(ii) mean that those who find themselves subjected to pressure to engage in criminal activities cannot avail themselves of the defence of compulsion under s 31(1)(d) of the Criminal Code to excuse their part in criminal activities merely by reason of their subjective willingness to be used as pawns of more aggressive criminals. It is a feature of civilised society that one may render threats of personal violence ineffective by seeking the help of agencies of law enforcement. A defence under s 31(1)(d) can arise for the consideration of the jury only where there is an evidentiary basis for a reasonable belief on the part of the accused that he or she is "unable otherwise to escape the carrying out of the threat". If it is to be asserted by an accused that he or she reasonably believed that there was no other means of avoiding a threat than complying with an unlawful demand then the reasonableness of that belief must be considered in the light of the other alternatives available to the accused. That necessarily means that the accused must have a reasonable basis for believing that the law and its enforcement agencies cannot afford protection from the threat.”

  1. [219]
    In Taiapa v R (2009) 240 CLR 95; 261 ALR 488; [2009] HCA 53 the High Court dismissed on appeal against this decision.
  1. [220]
    At [5] the Court said:

“While it is conventional to describe s 31(1)(d) as providing the defence of compulsion, it is well-settled that if there is some evidence capable of raising the issue, the legal or persuasive burden is on the Crown to exclude the proposition that the accused was acting under compulsion beyond reasonable doubt – that is, exclude any reasonable possibility that the proposition is true.[19] …

It was not disputed that the onus on that question – an evidential burden – is on the accused. It is the accused who must tender evidence, or point to prosecution evidence, to that effect.” 

  1. [221]
    The common law permits an interpretation based on the effectiveness of the threat. See R v Hudson [1971] 2 QB 202; [1971] 2 All ER 244; (1971) 56 Cr App R 1 and R v Williamson [1972] 2 NSWLR 281. The common law accepts the defence may be based upon threats of future harm although the threat must still be of death or grievous bodily harm: R v Palazoff (1986) 43 SASR 99; 23 A Crim R 86; R v Brown (1986) 43 SASR 33; R v Lawrence [1980] 1 NSWLR 122; (1980) 32 ALR 72.
  1. [222]
    Where the defence of duress is raised, it is always open to the Crown to prove that the accused person has failed to avail himself or herself of some opportunity which was reasonably open to render the threat ineffective. On this being established the threat in question can no longer be relied on by the defence. In deciding whether such an opportunity was reasonably open to the accused person, the jury should have regard to the accused's age and circumstances and to any risks to the accused which may be involved in the course of action relied on. See R v Hudson, above, and R v Williamson, above, where it was held that a threat to inflict death or serious bodily injury may be a present and immediate threat, unless the person threatened, within a short period, commits a crime on behalf of the threatener, although the carrying out of the threat is by its nature not to be immediate but later. For such a threat to be effective it must be continuing and be seen to be continuing.
  1. [223]
    As King CJ said in R v Brown (1986) 43 SASR 33 at 40:

"The ordinary way in which a citizen renders ineffective criminal intimidation is to report the intimidators and to seek the protection of the police. That must be assumed, under ordinary circumstances, to be an effective means of neutralizing intimidation. If it were not so, society would be at the mercy of criminals who could force pawns to do their criminal work by means of intimidation."

  1. [224]
    As Gleeson CJ said in Rogers (1996) 86 A Crim R 542 at 546:

"The corollary of the notion that the defence of necessity exists to meet cases where the circumstances overwhelmingly impel disobedience to the law is that the law cannot leave people free to choose for themselves which laws they will obey, or to construct and apply their own set of values inconsistent with those implicit in the law. Nor can the law encourage juries to exercise a power to dispense with compliance with the law where they consider disobedience to be reasonable, on the ground that the conduct of an accused person serves some value higher than that implicit in the law which is disobeyed."

  1. [225]
    Again, for the same reasons expressed in relation to whether Tyler Skennar did not have a “lawful excuse” the defence in this subsection fails.
  1. [226]
    I find the Prosecution have proven all elements of the offence beyond reasonable doubt.
  1. [227]
    I find the Defendant guilty.

Unlawful Possession of a Weapon

  1. [228]
    The Prosecution must prove that:
  1. The Defendant unlawfully.
  1. It is necessary for the Prosecution to prove that the Defendant was not authorised by licence[20] to possess the weapon[21].
  1. Possessed.
  1. “Possession” includes: Having the thing in one’s custody; [22]
  1. A weapon.[23]
  1. It is a circumstance of aggravation if the Defendant, unlawfully possesses a category D, H, R, C or E weapon in the following circumstances:
  1. (a)
    Unlawfully possesses a firearm and uses the firearm to commit an indictable offence;[24]
  1. [229]
    The unlawful possession of a weapon used to commit an indictable offence obviously in this case relies on conviction for the dangerous conduct with a weapon charge as it is an indictable offence.
  1. [230]
    The evidence of P.C.S.C. Shepherd that his investigation revealed the firearm was owned by the father and was not listed at that property.
  1. [231]
    I find the Prosecution have proven the offence beyond reasonable doubt and the Defendant guilty.

Mark Morrow

Acting Magistrate

Footnotes

[1] In Dyers (2002) 210 CLR 285; 76 ALJR 1552; 192 ALR 181; [2002] HCA 45 at [6] Gaudron and Hayne JJ said: “Further, as a general rule, a trial judge should not direct the jury in a criminal trial that the prosecution would be expected to have called person to give evidence other than those it did call as witnesses. It follows that, as a general rule, those who were not called would not have assisted the prosecution. A direction not to speculate about what the person might have said should be given. Again, exceptions to these general rules will be rare and will arise only in cases where it is shown that the the judge should not direct the jury that they are entitled to infer that the evidence of prosecution’s failure to call the person in question was in breach of the prosecution’s duty to call all material witnesses.”

[2] Marshall v Rennie & Anor (1979) 25 ALR 116. Complaints had been laid, under what was then s 49 a (1)(a) of the Police Offences Act 1923 as amended (NT), against the defendants alleging that, without reasonable excuse, they had used a motor vehicle without the consent of the owner or person in charge thereof. Held: As a matter of construction… the onus was upon the complainant to prove the use and the lack of consent. The exception of “reasonable excuse” is for the defendants to prove. The complainant does not have to prove the negative of this.

[3] Approved in Fingelton v R (2005) 227 CLR 166; 216 ALR 474; [2005] HCA 34 by McHugh J at [108]

[4] At 470

[5] Character refers to the aggregate of qualities which distinguish one person from another, or the moral constitution of a person; it embodies the permanent and unchanging pattern of the nature of the individual concerned. Kirby J in Melbourne v The Queen (1999) 198 CLR 1.

[6] Ford v Lindholm (1987) 45 SASR 445 and Police v Hailemariam (1999) 73 SASR 319, (1999) 201 LSJS 471.b

[7] R v McAuley [2009] EWCA Crim 213

[8] R. v. Steele [2007] 3 SCR 3, 2007 SCC 36 (CanLII), [2007] S.C.J. No. 36 paragraph 27

[9] https://www.merriam-webster.com/dictionaru/alarm

[10] Dictionary.cambridge.org/dictionary/English/alarm; https://www.collinsdictionary.com/dictionary/english/alarm

[11] Leo Tolstoy Anna Karenina (The Russian Messenger, Moscow, 1878). 

[12] The victim rented a unit from the defendant. The defendant became increasingly annoyed with the victim who kept leaving the security gates of the unit unlocked. After one heated exchange, the defendant was stabbed by the tenant. The defendant, fearing that the tenant was about to get a gun from his car, rushed off and got his shotgun. The defendant returned, and shot and killed the tenant. 

[13]Brown v. U.S. 256 U.S. 335 (1921). Brown, the petitioner, and Hermes, the individual killed, had a previous history. Evidence indicated that Hermes assaulted Brown with a knife on two prior occasions and that Hermes threatened that the next time one of them would be taken away in a black box. Given this history, Brown took a handgun with him while supervising excavation work for a post office and put it nearby. Hermes arrived and, according to Brown, came at him with a knife. Brown retreated approximately twenty to twenty-five feet to where he left the pistol and, with Hermes striking at Brown, fired four shots, killing Hermes.

[14] McInnes [I971] 3 All E.R. at p. 302

[15] Howe (1958) 100 C.L.R. 448 at p. 462, 464, 469.

[16] Smith and Hogan, Criminal Law (4th ed.)

[17] In Arizona, the law provides for the defensive display of a weapon, such as placing one’s hand on it, exposing the gun, or telling a person that one is armed.  See A.R.S. § 13-421 and State of Arizona v. Oman, 1 CA-CR 12-0298 (Ariz. Ct. App. 2014). Other States have similar laws.

[18] See State of Arizona v. Buggs, 167 Ariz. 333, 335, 806 P.2d 1381, 1383 (App. 1990) and how they dealt with arguments of immediate threat where the defendant thought the men he shot at were highly dangerous individuals, and who he decided had to be eradicated right away to prevent them from gaining an advantage over him and injuring him at some later time. The question asked was, does this kind of threat justify the defendant's action? The defendant's version of the facts is as follows. The defendant became involved in a fight with two women, Shirley Hall and Verna Brown, in a pool hall in a neighbourhood notorious for the prevalence of illegal drugs. The fight spilled outside to the parking lot, and the defendant tripped over a cement curb. When the defendant fell down, three men with whom he had had a prior "incident" began kicking him. While this was going on, one of the women the defendant had been fighting stabbed him in the back. A friend of the defendant's grabbed him and picked him up. The defendant went to the side of the building, and his friend put a pistol in his hand and told him to take care of himself. The defendant went back to the area in front of the pool hall where there were a number of people standing around. Two of the men who had assaulted the defendant were present. The defendant believed they were members of the Crips gang and assumed, because of their reputations, that they had firearms. The defendant also saw one of the women he had been fighting, Verna Brown, and she had a knife in her hand, although she did not then threaten him with it. The defendant was afraid of the men, and he fired his pistol at them. He missed the men but hit Verna Brown in the leg.

[19] R v Mullen [1938] HCA 12; (1938) 59 CLR 124 at 136-137 per Dixon J; [1938] HCA 12; Ugle v The Queen (2002) 211 CLR 171; [2002] HCA 25; Murray v The Queen (2002) 211 CLR 193; [2002] HCA 26.

[20] See Part 2 Weapons Act 1990 (Qld). 

[21] section 49A Weapons Act 1990 (Qld). 

[22] Schedule 2 Dictionary Weapons Act 1990 (Qld)

[23] Schedule 2 Dictionary Weapons Act 1990 (Qld). 

[24] section 50(1)(d)(i) Weapons Act 1990 (Qld). 

Close

Editorial Notes

  • Published Case Name:

    Queensland Police Service v Skennar

  • Shortened Case Name:

    Queensland Police Service v Skennar

  • MNC:

    [2017] QMC 11

  • Court:

    QMC

  • Judge(s):

    M Morrow

  • Date:

    04 Jul 2017

Appeal Status

Please note, appeal data is presently unavailable for this judgment. This judgment may have been the subject of an appeal.

Cases Cited

Case NameFull CitationFrequency
Arizona v Buggs (1990) 167 Ariz 333
1 citation
Jump To
Cite 1 - (1990) 167 Ariz 333
Attorney-General’s Reference (No 2 of 1983) [1984] 2 WLR 465
1 citation
Jump To
Cite 1 - [1984] 2 WLR 465
Boughey v R [1986] HCA 29
1 citation
Jump To
Cite 1 - [1986] HCA 29
Boughey v The Queen (1986) 161 CLR 10
1 citation
Jump To
Cite 1 - (1986) 161 CLR 10
Boughey v The Queen (1986) 65 ALR 609
1 citation
Jump To
Cite 1 - (1986) 65 ALR 609
Brown v U.S. (1921) 256 US 335
1 citation
Jump To
Cite 1 - (1921) 256 US 335
Dyers v R (2002) 76 ALJR 1552
1 citation
Jump To
Cite 1 - (2002) 76 ALJR 1552
Dyers v R (2002) 210 CLR 285
1 citation
Jump To
Cite 1 - (2002) 210 CLR 285
Dyers v The Queen (2002) 192 ALR 181
1 citation
Jump To
Cite 1 - (2002) 192 ALR 181
Dyers v The Queen [2002] HCA 45
1 citation
Jump To
Cite 1 - [2002] HCA 45
Everard v Opperman [1958] VR 389
1 citation
Jump To
Cite 1 - [1958] VR 389
Fingleton v R (2005) 216 ALR 474
1 citation
Jump To
Cite 1 - (2005) 216 ALR 474
Fingleton v The Queen [2005] HCA 34
1 citation
Jump To
Cite 1 - [2005] HCA 34
Fingleton v The Queen (2005) 227 CLR 166
1 citation
Jump To
Cite 1 - (2005) 227 CLR 166
Ford v Lindholm (1987) 45 SASR 445
1 citation
Jump To
Cite 1 - (1987) 45 SASR 445
Holloway v DPP [2004] EWHC 2621
1 citation
Jump To
Cite 1 - [2004] EWHC 2621
Marshall v Rennie & Anor (1979) 25 ALR 116
1 citation
Jump To
Cite 1 - (1979) 25 ALR 116
Melbourne v The Queen (1999) 198 CLR 1
1 citation
Jump To
Cite 1 - (1999) 198 CLR 1
Murray v The Queen [2002] HCA 26
1 citation
Jump To
Cite 1 - [2002] HCA 26
Murray v The Queen (2002) 211 CLR 193
1 citation
Jump To
Cite 1 - (2002) 211 CLR 193
N v DPP [2011] EWHC 1807
1 citation
Jump To
Cite 1 - [2011] EWHC 1807
Palmer v The Queen (1971) AC 814
1 citation
Jump To
Cite 1 - (1971) AC 814
Pascoe v Nominal Defendant (Queensland) (No 2) [1964] Qd R 373
1 citation
Jump To
Cite 1 - [1964] Qd R 373
Police v Hailemariam (1999) 73 SASR 319
1 citation
Jump To
Cite 1 - (1999) 73 SASR 319
Police v Hailemariam (1999) 201 LSJS 471
1 citation
Jump To
Cite 1 - (1999) 201 LSJS 471
R v Brown (1986) 43 SASR 33
2 citations
Jump To
Cite 1 - (1986) 43 SASR 33
Cite 2 - (1986) 43 SASR 33
R v Bush (1975) 24 FLR 346
1 citation
Jump To
Cite 1 - (1975) 24 FLR 346
R v Hudson [1971] 2 All ER 244
1 citation
Jump To
Cite 1 - [1971] 2 All ER 244
R v Hudson (1971) 56 Cr App R 1
1 citation
Jump To
Cite 1 - (1971) 56 Cr App R 1
R v Hudson & Taylor [1971] 2 QB 202
1 citation
Jump To
Cite 1 - [1971] 2 QB 202
R v Lawrence (1980) 1 NSWLR 122
1 citation
Jump To
Cite 1 - (1980) 1 NSWLR 122
R v McAuley [2009] EWCA Crim 213
1 citation
Jump To
Cite 1 - [2009] EWCA Crim 213
R v McInnes [1971] 3 All ER 295
2 citations
Jump To
Cite 1 - [1971] 3 All ER 295
Cite 2 - [1971] 3 All ER 295
R v Mullen [1938] HCA 12
2 citations
Jump To
Cite 1 - [1938] HCA 12
Cite 2 - [1938] HCA 12
R v Palazoff (1986) 43 SASR 99
1 citation
Jump To
Cite 1 - (1986) 43 SASR 99
R v Palazoff (1986) 23 A Crim R 86
1 citation
Jump To
Cite 1 - (1986) 23 A Crim R 86
R v Rogers (1996) 86 A Crim R 542
1 citation
Jump To
Cite 1 - (1996) 86 A Crim R 542
R v Taiapa [2008] QCA 204
1 citation
Jump To
Cite 1 - [2008] QCA 204
R v Williamson [1972] 2 NSWLR 281
1 citation
Jump To
Cite 1 - [1972] 2 NSWLR 281
R. v Bush (1975) 5 ALR 387
1 citation
Jump To
Cite 1 - (1975) 5 ALR 387
R. v Bush (1975) 1 NSWLR 298
1 citation
Jump To
Cite 1 - (1975) 1 NSWLR 298
R. v Lawrence (1980) 32 ALR 72
1 citation
Jump To
Cite 1 - (1980) 32 ALR 72
R. v Mullen (1938) 59 CLR 124
1 citation
Jump To
Cite 1 - (1938) 59 CLR 124
R. v Steele [2007] SCJ No 36
1 citation
Jump To
Cite 1 - [2007] SCJ No 36
R. v Steele [2007] SCC 36
1 citation
Jump To
Cite 1 - [2007] SCC 36
R. v Steele [2007] 3 SCR 3
1 citation
Jump To
Cite 1 - [2007] 3 SCR 3
Read Chase Industries v Frommelt Industries (1990) 806 P 2d 1381
1 citation
Jump To
Cite 1 - (1990) 806 P 2d 1381
Taiapa v R (2009) 261 ALR 488
1 citation
Jump To
Cite 1 - (2009) 261 ALR 488
Taiapa v The Queen (2009) 240 CLR 95
1 citation
Jump To
Cite 1 - (2009) 240 CLR 95
Taiapa v The Queen [2009] HCA 53
1 citation
Jump To
Cite 1 - [2009] HCA 53
Taikato v R (1996) 139 ALR 386
1 citation
Jump To
Cite 1 - (1996) 139 ALR 386
Taikato v The Queen (1996) 186 CLR 454
3 citations
Jump To
Cite 1 - (1996) 186 CLR 454
Cite 2 - (1996) 186 CLR 454
Cite 3 - (1996) 186 CLR 454
The Queen v Bennett [1998] QCA 393
1 citation
Jump To
Cite 1 - [1998] QCA 393
The Queen v Howe (1958) 100 CLR 448
2 citations
Jump To
Cite 1 - (1958) 100 CLR 448
Cite 2 - (1958) 100 CLR 448
The Queen v T[1997] 1 Qd R 623; [1996] QCA 258
1 citation
Jump To
Cite 1 - [1997] 1 Qd R 623
Ugle v The Queen (2002) 211 CLR 171
1 citation
Jump To
Cite 1 - (2002) 211 CLR 171
Ugle v The Queen [2002] HCA 25
1 citation
Jump To
Cite 1 - [2002] HCA 25
Viro v The Queen (1978) 141 CLR 88
1 citation
Jump To
Cite 1 - (1978) 141 CLR 88
Zecevic v DPP (Vic) (1987) 162 CLR 645
1 citation
Jump To
Cite 1 - (1987) 162 CLR 645

Cases Citing

Case NameFull CitationFrequency
Queensland Police Service v Pitt [2021] QMC 41 citation
1

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