R v Elkerton-Sandy[2023] QSC 32

SUPREME COURT OF QUEENSLAND

1. [1]
   On 26 January 2020, at about 9.25 pm, Kane Alexanderson and six other young men entered apartment 1705 (Apartment) in the iStay River City apartment building (iStay) located on Albert Street in Brisbane City.  Joshua Lindsay Elkerton-Sandy and a number of other people had gathered in the Apartment on Australia Day. 
2. [2]
   On the Crown’s case, members of the group which entered the Apartment – including Mr Alexanderson – assaulted Mr Elkerton-Sandy after they entered.
3. [3]
   In the altercation which followed Mr Alexanderson received two stab wounds.  One of those wounds was to his chest.  He died on 1 February 2020.  The cause of Mr Alexanderson’s death was the subject of an admission in the following terms:

“On the fourth day of February 2020 Doctor Christopher Anthony Day performed a post-mortem examination on the body of Kane Jacob Alexanderson.  The conclusion of Doctor Christopher Anthony Day as to the cause of death of Kane Alexanderson was multiorgan failure including hypoxic ischaemic encephalopathy (a lack of oxygen and blood flow to the brain) secondary to cardiac arrest following a stab wound to the chest.  The stab wound to the chest caused injury to the heart resulting in bleeding to the left chest cavity.  As a result of accumulative blood loss and inability for the heart to beat effectively Kane Alexanderson suffered cardiac arrest.  During a period of cardiac arrest, blood and oxygen are not supplied to organs.”

4. [4]
   Mr Elkerton-Sandy has been charged on indictment with Mr Alexanderson’s manslaughter.  His trial commenced before a jury and me on 21 February 2023.  At the close of the Crown case, Mr Kissick, who appeared as counsel for Mr Elkerton-Sandy, submitted that there was no case to answer.
5. [5]
   This is my ruling on that no case submission.

Relevant legal principles

6. [6]
   The principles which apply when a no case submission is made were set out by Burns J in the following passage from R v Goldsworthy, Goldsworthy & Hill,^[1] which I gratefully adopt:^[2]

6. “[5]
   When a no case submission is made, the question of law to be decided is ‘whether on the evidence as it stands [the accused] could lawfully be convicted’.^[3]  If the answer to that question is in the affirmative, the case must be left with the jury.  If not, it is the duty of the trial judge to direct a verdict of acquittal.
7. [6]
   The approach that must be taken to the determination of that question was authoritatively laid down by the High Court in Doney v The Queen,^[4] as follows:

‘[I]f there is evidence (even if tenuous or inherently weak or vague) which can be taken into account by the jury in its deliberations and that evidence is capable of supporting a verdict of guilty, the matter must be left to the jury for its decision.  Or, to put the matter in more usual terms, a verdict of not guilty may be directed only if there is a defect in the evidence such that, taken at its highest, it will not sustain a verdict of guilty.’^[5]

6. [7]
   It follows that a trial judge who is called on to rule on a no case submission must take the Crown case at its highest.  Furthermore, questions of credibility, reliability or the weight to be accorded particular evidence are all matters within the exclusive province of the jury.  So, too, are inconsistencies in the evidence; they are for the jury to resolve.^[6]  Nor is it for a trial judge to consider whether a verdict of guilty returned by the jury on the evidence comprising the Crown case might later be determined by the Court of Appeal to be unsafe or unsatisfactory.  That is not the test.^[7]
7. [8]
   The jury is the arbiter of the facts.  As the Court remarked in Doney, it is fundamental to the determination of the facts that ‘the jury be allowed to determine, by inference from its collective experience of ordinary affairs, whether and, in the case of conflict, what evidence is truthful’.^[8]  As to questions concerning the reliability of particular evidence, the Court accepted as correct the following proposition taken from R v Galbraith:^[9]

‘Where however the prosecution evidence is such that its strength or weakness depends on the view to  be taken of the witness’s reliability, or other matters which are generally speaking within the province of the jury and where on one possible view of the facts there is evidence upon which a jury could properly come to the conclusion that the defendant is guilty, then the judge should allow the matter to be tried by the jury.’^[10] [Emphasis in original]

6. [9]
   Of course that is not to say that a trial judge should not consider whether evidence that has a ‘tenuous character’ or an ‘inherent weakness or vagueness’ should be the subject of a warning to the jury but, even if such a warning is given, that evidence will still be available for use by the jury subject to that warning.^[11]  It is then a matter for the jury to decide what weight should be given to that evidence.
7. [10]
   Where the Crown case rests either wholly or partly on circumstantial evidence, a no case submission is to be decided on the basis of such inferences that are reasonably open in support of the Crown case.  It is not the function of a trial judge to choose between inferences which are reasonably open to the jury.^[12]  The determination of the facts is a matter for the jury, as is the drawing of inferences based on those facts.^[13]  The judge must therefore proceed on the basis that ‘the jury will draw such of the inferences which are reasonably open, as are most favourable to the prosecution’.^[14]  That however does not mean that reasonable hypotheses consistent with innocence arising on the Crown case can in every instance be ignored.  To the contrary, the task of the trial judge is to determine whether the evidence is capable in law of supporting a verdict of guilty.  Thus, if the evidence in the Crown case is incapable of excluding all reasonable hypotheses consistent with innocence, the evidence will not be capable in law of proving the charge and there will be no case to answer in relation to it.^[15]  That is just another way of saying that it is only if the evidence is such that an inference of guilt is incapable of being drawn beyond reasonable doubt that it might be concluded there is ‘in law no material on which a verdict of guilty might be found’, however that point is not reached merely by the existence of a ‘possible inference consistent with innocence’.^[16]  It follows that the question whether the Crown has excluded every reasonable hypothesis consistent with innocence is a question for the jury; whether the evidence as a whole, and taken at its highest, is capable of doing so is one for the judge.
8. [11]
   For completeness it should be said that what is required of the Crown in discharging the onus of proof of guilt is not that every possibility of innocence be excluded by the evidence but only that every reasonable possibility be excluded.^[17]  As such:

‘The existence of an admitted possibility but one that is assessed by experts in the field as being ‘extremely unlikely’, or ‘very remote’, or the result of a ‘very rare coincidence’ is not sufficient to introduce a reasonable doubt precluding the jury from being satisfied to the requisite standard of proof of guilt.’”^[18]

The charge of manslaughter and the matters in issue

7. [7]
   The offence of manslaughter is defined in s 303(1) of the Criminal Code Act 1899 (Qld) (Code) which provides:

“A person who unlawfully kills another under such circumstances as not to constitute murder is guilty of manslaughter.”

8. [8]
   The Crown does not allege that the circumstances of Mr Alexanderson’s killing constitute murder.
9. [9]
   The term “killing” is defined in s 293 of the Code which provides:

“Except as hereinafter set forth, any person who causes the death of another, directly or indirectly, by any means whatever, is deemed to have killed that other person.”

10. [10]
    The allegedly causative acts or omissions need not be the sole cause of death but must be a substantial or significant cause of death or have substantially contributed to the death.^[19]
11. [11]
    Thus, in order to succeed on the indictment against Mr Elkerton-Sandy, the Crown must prove three elements beyond reasonable doubt:

    1. (a)
       that Mr Alexanderson is dead;
    2. (b)
       that Mr Elkerton-Sandy substantially caused, or contributed to, the death of Mr Alexanderson; and
    3. (c)
       that the act causing death was unlawful in the sense that it was not authorised, justified or excused by law.
12. [12]
    The first two elements are not controversial.  In particular, it is admitted that Mr Elkerton-Sandy, using a knife, caused the death of Mr Alexanderson.
13. [13]
    The only issue in the trial is whether the killing of Mr Alexanderson was unlawful.  To succeed on that issue, the Crown must exclude the operation of any defence which arises on the evidence.
14. [14]
    The arguments on the no case submission focussed on the defences of self-defence to an unprovoked assault under s 271(2) of the Code and defence of a dwelling under s 267 of the Code.  Before turning to the elements of those defences, I will set out in broad terms the evidence led on the Crown case.

The evidence

15. [15]
    There was CCTV footage in evidence from:

    1. (a)
       various cameras in the iStay;
    2. (b)
       a camera outside the Capri apartment building located opposite the street from the iStay; and
    3. (c)
       cameras in the Oaks Festival Towers suites where Mr Alexanderson and others in his group gathered before the incident.
16. [16]
    Ultimately, what can be discerned from the footage will be for the jury to decide.  However, it can be said in general terms that the footage depicts the comings and goings of Mr Elkerton-Sandy and other members of his group from the iStay, as well as the movements of Mr Alexanderson and his group in the period shortly before the incident.
17. [17]
    Evidence was given by a number of the group who were with Mr Elkerton-Sandy at the Apartment, as well as a number of the group who travelled to the Apartment with Mr Alexanderson.
18. [18]
    It appears not to be controversial that it would be open to the jury to find on the evidence, and that the jury would find, the following matters proved:

    1. (a)
       Mr Elkerton-Sandy arrived at the Apartment with two others in his party, Tasha Ashwin and Lavinia Pennefather, shortly after 6.00 pm on 26 January 2020;
    2. (b)
       at different times over the period until about 7.48 pm the following further people joined the group with Mr Elkerton-Sandy in the Apartment: Corey Jailett, Eddie Adler, Mia Sims, Sommer Coote, Montana Coggan and Scarlet Ahern-Elliott;
    3. (c)
       at about 9.05 pm, Ms Ashwin and Ms Ahern-Elliott left the Apartment and exited the foyer of the iStay to buy smokes;
    4. (d)
       shortly before 9.15 pm, the group which Mr Alexanderson was part of left the apartment in Oaks Festival Towers Suites and walked the short distance to the iStay;
    5. (e)
       at about 9.15 pm, Mr Elkerton-Sandy and Mr Jailett left the Apartment and went to the secure doors at the entry to the foyer of the iStay.  There they had a short discussion with Reneo Manyak, a member of the group with Mr Alexanderson.  At that time the remainder of the group with Mr Alexanderson were outside the Capri apartment building on the opposite side of Albert Street from the iStay.  At the conclusion of the short discussion with Mr Manyak, Mr Elkerton-Sandy returned inside the iStay and to the Apartment. Mr Jailett stayed outside the front of the iStay foyer;
    6. (f)
       at about 9.23 pm, Ms Pennefather exited the foyer of the iStay.  At that time she was in possession of a key for the Apartment;
    7. (g)
       at about 9.24 pm, Mr Alexanderson and eight other members of his group entered the foyer of the iStay and made their way to the lift which they took to the 17^th floor where the Apartment was located.  At that time, they were in possession of a key for the Apartment. 
19. [19]
    Billy Siemon, a member of the group with Mr Alexanderson gave evidence that the group was going to the Apartment to fight Mr Elkerton-Sandy.  Maleek Sandow, another member of the group with Mr Alexanderson, gave evidence that at the time of the events in question there was “beef” between Mr Alexanderson and Mr Elkerton-Sandy.  He accepted under cross-examination that the group’s purpose in going to the Apartment was to assault Mr Elkerton-Sandy.  Tremayne Sandow, Maleek Sandow’s brother and another member of the group with Mr Alexanderson, also accepted under cross-examination that the reason he left the Oaks Festival Tower suites was that the group was going to give Mr Elkerton-Sandy a “hiding”.
20. [20]
    Ms Pennefather gave evidence that, prior to her going down and exiting the foyer of the iStay, Mr Elkerton-Sandy had asked if anyone would go down and let two people up to the Apartment.  Ms Pennefather offered to do so.  She was not told who was to be let up but assumed it would be Ms Ashwin and the person who had left with her to buy smokes.^[20]  When she exited the foyer of the iStay, Ms Pennefather spoke briefly with Mr Jailett who had remained out the front of the iStay.  Ms Pennefather was then approached by a group of boys she didn’t know.  They surrounded her and indicated that they were the people she had been sent to let up to the Apartment.  Ms Pennefather did not accept that and began to back away.  One of the group came up behind her and snatched the key to the Apartment out of her hand.
21. [21]
    Mr Siemon gave evidence that he got the key to the Apartment by intimidating a male and female person standing outside the iStay into giving the key to him.  He accepted under cross-examination that the reason he did so was so that the group, including Mr Alexanderson, could go up to the Apartment and “bash” Mr Elkerton-Sandy.
22. [22]
    Ms Coote gave evidence that, when Mr Alexanderson’s group exited the lift outside the Apartment, she was standing with Ms Coggan at the front door of the Apartment.  Ms Coote was holding the door open because she was expecting Ms Ashwin and Ms Ahern-Elliott to return from buying smokes.  She saw the group with Mr Alexanderson come out of the lift and come straight for the open door to the Apartment.  Ms Coote attempted to shut the door.  When she achieved that two of the group were shut out of the Apartment.  Ms Coote gave evidence that she saw those members of the group who gained entry to the Apartment go straight for Mr Elkerton-Sandy, who was sitting on the balcony, and start attacking him, punching him and throwing glass bottles.  She said she saw the group corner Mr Elkerton-Sandy on the balcony, after he had stood up, and try to “get him off” the balcony so that Mr Elkerton-Sandy was pushed right to the edge of the balcony to the point where he was leaning backwards a little over the balcony railing.  Ms Coote gave evidence under cross-examination that there was no talking before the group of boys rushed at Mr Elkerton-Sandy and bashed him.
23. [23]
    Ms Coggan gave evidence that when Mr Elkerton-Sandy returned to the Apartment, not long before Mr Alexanderson’s group appeared, he looked scared and anxious.  She said that when the members of Mr Alexanderson’s group came into the Apartment they ran up to Mr Elkerton-Sandy, who was standing near the coffee table in the living room, and started fighting with him.  She said that although the fight started in the living room it moved out onto the balcony, but that she could not see what occurred.  She gave evidence under cross-examination that none of the group stopped and talked before they attacked Mr Elkerton-Sandy in the living room.
24. [24]
    Ms Sims gave evidence that when the group with Mr Alexanderson entered the Apartment she was sitting outside on the balcony by herself.  She heard talking and yelling but could not hear what was being said.  She could not see inside the Apartment where the talking and yelling was coming from.  She then saw Mr Elkerton-Sandy backed out on to the balcony by the group.  They surrounded him trying to beat him by punching him and throwing him off the balcony.  She saw Mr Elkerton-Sandy being “lifted up” and pushed backwards over the balcony railing for a period of two or three seconds.   
25. [25]
    Mr Siemon gave evidence that he saw the other members of the group that entered the Apartment surrounding Mr Elkerton-Sandy around the area of the coffee table in the living room, in front of the balcony door.  He said there was an exchange of words with Mr Elkerton-Sandy before the fight commenced and that Mr Elkerton-Sandy said words to the effect of “one on one, one on one”.  He said he saw Mr Alexanderson throw the first punch at Mr Elkerton-Sandy and saw other members of the group lunge at him.  He said that after Mr Alexanderson threw the first punch, while Mr Elkerton-Sandy was still in the living room, he saw Mr Elkerton-Sandy respond by moving his right hand repeatedly in a stabbing motion.  He saw Mr Elkerton-Sandy backpedal out onto the balcony and fall onto his back.  The group were all swinging at Mr Elkerton-Sandy while he was on the ground on the balcony.  Mr Siemon said he tried to hit Mr Elkerton-Sandy with a Corona bottle, but that the bottle flew over the balcony because it was wet.
26. [26]
    Maleek Sandow gave evidence that when the group entered the Apartment they stood there for a couple of seconds.  There was a little bit of swearing back and forth between Mr Alexanderson and Mr Elkerton-Sandy.  Mr Alexanderson threw the first punch at Mr Elkerton-Sandy before Maleek Sandow and others in the group also began to hit Mr Elkerton-Sandy.  He said that as the fight progressed he saw Mr Elkerton-Sandy holding Mr Alexanderson’s shirt while they were still in the living room and swinging towards him; that he saw Mr Elkerton-Sandy pull or drag Mr Alexanderson backwards towards the balcony; that those events involved just Mr Elkerton-Sandy and Mr Alexanderson.  He denied that the group had Mr Elkerton-Sandy up against the edge of the balcony.
27. [27]
    Tremayne Sandow gave evidence that he saw Mr Elkerton-Sandy holding a knife down by his side when members of the group who entered the Apartment were moving towards him.  He said that Mr Alexanderson was the first person into the fight with Mr Elkerton-Sandy.  He saw Mr Elkerton-Sandy swinging or slashing his knife at the same time as Maleek Sandow, Mr Manyak and another person got involved in the fight.  He said that although he saw Mr Elkerton-Sandy swinging his knife the others in the group continued to attack Mr Elkerton-Sandy and force him out onto the balcony, but not to the edge of the balcony.    
28. [28]
    Mr Manyak gave evidence that he only recalled Mr Alexanderson, Maleek Sandow and himself entering the Apartment and that he thought the others in his group remained outside.  He said that the fight with Mr Elkerton-Sandy started in front of the coffee table in the living room of the Apartment, but that it moved to the balcony and when it moved to the balcony Mr Elkerton-Sandy stabbed Mr Manyak, Mr Alexanderson and Maleek Sandow.

The Crown case on self-defence to an unprovoked assault: s 271(2) of the Code

29. [29]
    Self-defence to an unprovoked assault comprises four elements or requirements, namely that:

    1. (a)
       there was an unlawful assault on Mr Elkerton-Sandy;
    2. (b)
       Mr Elkerton-Sandy did not provoke that assault;
    3. (c)
       the nature of the assault was such as to cause reasonable apprehension of death or grievous bodily harm; and
    4. (d)
       Mr Elkerton-Sandy believed, on reasonable grounds, that he could not otherwise preserve himself from death or grievous bodily harm than by stabbing Mr Alexanderson.
30. [30]
    In order to exclude the defence, the Crown has to prove beyond reasonable doubt that one or more of those elements or requirements is not satisfied.
31. [31]
    In response to an invitation to particularise the path by which the Crown says that the jury could come to a conclusion of guilt in this trial, the Crown did not suggest that the first two requirements are not satisfied.  Instead, the Crown focussed upon the fourth element.
32. [32]
    The Crown’s case is that, when Mr Alexanderson’s group came into the Apartment, Mr Elkerton-Sandy picked up a knife from the coffee table in the living room.  I accept that it is open on the evidence for the jury to conclude that the knife was sitting on the coffee table at the relevant time and that Mr Elkerton-Sandy was positioned in the vicinity of that coffee table when Mr Alexanderson’s group entered the Apartment.
33. [33]
    The Crown submitted that if the jury accepts the evidence of Mr Siemon that there was a verbal confrontation prior to any physical acts, during which Mr Elkerton-Sandy is said to have used words to the effect “one on one, one on one”, it is open to the jury to draw the inference that Mr Elkerton-Sandy indicated, at an early stage of the confrontation, a willingness to engage in a fight.  Further, the Crown submits that if the jury accepts the evidence of Tremayne Sandow that he saw Mr Elkerton-Sandy holding the knife down by his side when members of the group who entered the Apartment were moving towards him it is open to the jury to draw the inference that Mr Elkerton-Sandy invited a fight at a time when he was armed with the knife.  On the Crown’s case, that evidence is capable of supporting a finding by the jury that Mr Elkerton-Sandy’s state of mind at that early stage of the confrontation was not one of fear of death or grievous bodily harm, but one of a willingness to engage in a fight.  In that regard, the Crown also relied upon an answer given by Mr Elkerton-Sandy when he was interviewed by police.  Mr Elkerton-Sandy was asked what was going through his head at the moment that Mr Alexanderson’s group came into the Apartment.  His answer was: “What the fuck do I pick up to hit these cunts?”.
34. [34]
    The Crown then submitted that if the jury accepts the evidence of Mr Siemon that Mr Elkerton-Sandy responded to Mr Alexanderson throwing a punch by moving his right hand repeatedly in a stabbing motion it is open to the jury to draw the inference that Mr Elkerton-Sandy used the knife instantly in response to no more than Mr Alexanderson throwing a punch and others lunging at Mr Elkerton-Sandy.  The Crown also submitted it is relevant that there is no evidence from any witness that Mr Elkerton-Sandy warned the group that he was in possession of a knife and would use it to protect himself.
35. [35]
    The Crown then submitted that if the jury draws the inference that, at the commencement of the confrontation, Mr Elkerton-Sandy’s state of mind was that of a willingness to fight as distinct from a belief that he needed to use the knife to preserve himself against death or grievous bodily harm, it would also be open to the jury to infer that the acts of stabbing occurred inside the living room.  As to that, the Crown relies, again, on the evidence of Mr Siemon that Mr Elkerton-Sandy was moving his right hand repeatedly in a stabbing motion at the onset of the physical altercation, coupled with evidence of a bloodstain on the carpet inside the Apartment just before the doors to the balcony.  A swab was taken of that bloodstain.^[21]  There is an admission that the DNA profile obtained from that swab indicated the presence of DNA from two contributors and that it was estimated that the mixed DNA profile obtained was greater than 100 billion times more likely to have occurred if Mr Alexanderson had contributed DNA rather than if he had not.  Although it was not raised in the Crown’s submissions, there was also evidence of a blood drip stain on top of the coffee table.  A swab was taken of that stain.^[22]  There is an admission that the DNA profile obtained from that swab indicated the presence of DNA from a single contributor and that it was estimated that the DNA profile obtained was greater than 100 billion times more likely to have occurred if Mr Alexanderson had contributed DNA rather than if he had not.
36. [36]
    The Crown accepted that the evidence of Ms Sims, that once the altercation moved to the balcony Mr Elkerton-Sandy was lifted by members in Mr Alexanderson’s group to the point where he was teetering backwards over the edge of the balcony, seems in every way reliable and credible.  The Crown also accepted that those circumstances are capable of giving rise to a fear of death or grievous bodily harm.  However, the Crown relied on the fact that Ms Sims did not see the commencement of the physical violence inside the living room of the Apartment.
37. [37]
    When pressed on the question whether the evidence, if it is accepted by the jury, is capable of excluding the reasonable possibility that the acts of stabbing occurred on the balcony, the Crown submitted that if the jury accepts that, from the beginning, Mr Elkerton-Sandy’s state of mind was a willingness to participate in a fight then it is open to the jury to draw the inference that that remained his state of mind throughout the altercation, including the events on the balcony.  That is, it would be a question for the jury whether or not they conclude that Mr Elkerton-Sandy’s state of mind changed to one of belief that he could not otherwise preserve himself from death or grievous bodily harm than by acting as he did.  On that basis, it matters less where the fatal stab wound was inflicted.
38. [38]
    Finally, the Crown relied upon evidence of the position Mr Elkerton-Sandy took, approximately 15 minutes after the altercation had ended and Mr Alexanderson’s group had retreated from the Apartment, when he went down to the foyer of the iStay and engaged with police, exhibiting concern as to the whereabouts of his necklace which had been taken by Mr Siemon during the altercation.  The Crown submits that the jury would be entitled to make an assessment of Mr Elkerton-Sandy’s demeanour at that time, which was recorded in the body worn camera footage of one of the police officers, and have regard to the absence of any evidence that Mr Elkerton-Sandy said anything at that time that supports a suggestion that he held a belief that he could not otherwise preserve himself from death or grievous bodily harm than by acting as he did. 
39. [39]
    It was submitted for Mr Elkerton-Sandy that, if the matter is put before the jury, a direction would be sought that they could draw nothing adverse to Mr Elkerton-Sandy from the fact that he went downstairs and asked about his necklace.  It was submitted that people react in different ways to events of this type.  Having regard to the requirement that, when ruling upon the no case submission, I must take the Crown case at its highest I proceed on the basis that the evidence referred to in [38] above is evidence which can be taken into account by the jury in its deliberations.

The Crown case on defence of a dwelling: s 267 of the Code

40. [40]
    Defence of a dwelling comprises three elements or requirements, namely that:

    1. (a)
       Mr Elkerton-Sandy was in peaceable possession of a dwelling;
    2. (b)
       Mr Elkerton-Sandy used force to prevent or repel the members of Mr Alexanderson’s group from unlawfully entering or remaining in the dwelling;
    3. (c)
       Mr Elkerton-Sandy believed, on reasonable grounds, that the members of Mr Alexanderson’s group were attempting to enter or to remain in the dwelling with intent to commit an indictable offence in the dwelling, and that it was necessary to use the force he used.
41. [41]
    The Crown submitted that the evidence set out above relation to self-defence is also evidence upon which the jury could accept that Mr Elkerton-Sandy’s purpose, in using the lethal force he used, was simply to engage in a fight, not to prevent or repel the members of Mr Alexanderson’s group from unlawfully remaining in the Apartment.  The Crown also submitted that, if the jury accepted that evidence, it would be open to them to conclude that Mr Elkerton-Sandy did not believe it was necessary for him to use the lethal force that he used and, further, that there were no reasonable grounds for such belief in circumstances where it was open to him to warn Mr Alexanderson’s group that he was in possession of a knife and demand that they leave.

The no case submission by Mr Elkerton-Sandy

42. [42]
    On behalf of Mr Elkerton-Sandy it was submitted that no properly instructed jury could ever exclude the reasonable possibility that the requirements for self-defence and particularly defence of a dwelling existed in circumstances where, on evidence led in the Crown’s case, Mr Alexanderson’s group acted in a premeditated way:

    1. (a)
       in attempting to lure Mr Elkerton-Sandy out of the Apartment and the iStay;
    2. (b)
       when that proved unsuccessful, in surrounding Ms Pennefather and taking the key to the Apartment by intimidation;
    3. (c)
       thereafter using that key to enter the iStay and access the 17^th floor before making their way into the Apartment and attacking Mr Elkerton-Sandy in numbers in circumstances where he was in the privacy, security and safety of that dwelling;
    4. (d)
       by Mr Siemon, at least, arming himself in advance with a Corona bottle which he intended to use as a weapon in the attack on Mr Elkerton-Sandy.
43. [43]
    It was submitted that even if the jury accepted Mr Siemon’s evidence that Mr Elkerton-Sandy said words to the effect of “one on one, one on one”, that was not how the altercation proceeded.  It was further submitted that whether Mr Elkerton-Sandy was prepared to fight or not could not mean that, in fighting as he did, he was not defending himself.  No word other than “fight” could describe the conduct of a person who acts to defend himself from an assault of this nature.  On that basis, it would not matter if the jury accepted that the stab wound which led to Mr Alexanderson’s death occurred in the living room at the beginning of the altercation or at a later point in time when Mr Elkerton-Sandy had been backed onto the balcony.  That is because, from the outset of the altercation, Mr Elkerton-Sandy was defending against what was obviously an invading group of people present in the Apartment.
44. [44]
    As to the absence of evidence of any warning by Mr Elkerton-Sandy that he had the knife and was prepared to use it in defence, it was submitted that a person can arm themselves as soon as they realise they have to defend themselves.  There is no requirement that a person give a warning.  There is nothing that suggests the person needs to do anything other than defend themselves.  Further, it was submitted that pre-emptive defence is available, and is nothing more than what a reasonable person in Mr Elkerton-Sandy’s circumstances would have done.
45. [45]
    As to defence of a dwelling, Mr Elkerton-Sandy relied particularly on the decision of the Queensland Court of Appeal in R v Cuskelly.^[23]  In that case Keane JA (with whom Muir JA and Daubney J agreed) rejected the submission that where a defence of self-defence is raised, s 271 and 272 of the Code operate to the exclusion of s 267.  His Honour concluded that s 267 affords a separate, and more extensive, ground of defence to an accused.  The ground of defence is more extensive because of the different language used in s 267.  In circumstances where lethal force is used s 267 does not require that the accused reasonably apprehend death or grievous bodily harm from deceased’s assault.  The question which arises under s 267 is whether Mr Elkerton-Sandy believed on reasonable grounds that it was necessary to use the force he did use to “prevent or repel” Mr Alexanderson and the other members of the group from remaining in the Apartment with the intent to assault him.  As Keane JA noted, an accused person who is defending his or her home need not retreat from a threat even if retreat is a reasonably available way to make effectual defence against a threatened assault.

Consideration

46. [46]
    On the question of self-defence, I accept the Crown’s submission that the evidence of Mr Siemon that Mr Elkerton-Sandy said words to the effect of “one on one, one on one” before the physical altercation commenced and the evidence of Tremayne Sandow that he saw Mr Elkerton-Sandy holding the knife down by his side when members of the group who entered the Apartment were moving towards him is evidence which can be taken into account by the jury in its deliberations and which, if accepted by the jury, together with the evidence of Mr Elkerton-Sandy’s response in his police interview when asked what was going through his head at the moment that Mr Alexanderson’s group came into the Apartment, is capable of supporting a finding that Mr Elkerton-Sandy’s state of mind at that early stage of the confrontation was not one of fear of death or grievous bodily harm, but one of a willingness to engage in a fight.  I do not accept that this evidence, if accepted by the jury, is incapable of excluding, beyond a reasonable doubt, all reasonable hypotheses that are consistent with innocence, and particularly the competing inference that Mr Elkerton-Sandy believed he could not otherwise save himself from death or grievous bodily harm than by using the force which he used.  It will be a matter for the jury to decide whether they accept the evidence and, if they do, whether they are satisfied that there is no reasonable possibility that Mr Elkerton-Sandy held the belief required by s 271(2) at the commencement of the altercation.
47. [47]
    The submission for Mr Elkerton-Sandy that a person who acts in self-defence must necessarily fight his attacker does not engage with the issue of Mr Elkerton-Sandy’s state of mind at the relevant time.  While it is true that every person who acts in self-defence must fight in one form or another, I do not accept that any person who fights an attacker using lethal force, even in the circumstances in which Mr Elkerton-Sandy found himself when Mr Alexanderson and six other members of his group entered the Apartment, must necessarily believe at the time that force is used that he could not otherwise save himself from death or grievous bodily harm.  For the reasons I have just explained, I do not accept that the jury, if it accepted the evidence identified by the Crown, could not be satisfied beyond reasonable doubt that Mr Elkerton-Sandy did not hold the required belief.
48. [48]
    I also accept the Crown’s submission that the evidence of Tremayne Sandow that Mr Elkerton-Sandy was holding the knife down by his side when members of the group who entered the Apartment were moving towards him and the evidence of Mr Siemon that Mr Elkerton-Sandy responded to Mr Alexanderson throwing a punch by moving his right hand repeatedly in a stabbing motion is evidence that, if it is accepted by the jury, is, together with the evidence of the blood stains on the coffee table and the carpet inside the living room, capable of supporting a finding that the acts of stabbing occurred in the living room at the early stages of the confrontation before the altercation moved to the balcony.  I do not accept that this evidence, if accepted by the jury, is incapable of excluding, beyond reasonable doubt, all reasonable hypotheses that are consistent with innocence, and particularly the competing inference that the acts of stabbing occurred later when Mr Elkerton-Sandy was forced backwards onto the balcony and lifted so that he was teetering backwards over the edge of the balcony railing.  Again, it will be a matter for the jury whether they accept the evidence and, if they do, whether they are satisfied that there is no reasonable possibility that the acts of stabbing occurred towards the end of the altercation when Mr Elkerton-Sandy was forced backwards onto the balcony. 
49. [49]
    For these reasons, I do not accept that the evidence is incapable of supporting a finding by the jury that self-defence against an unprovoked assault has been excluded beyond a reasonable doubt.

50. [50]
    On the question of defence of a dwelling, I accept the Crown’s submission that the same evidence it relies upon in respect of self-defence is capable of supporting a finding by the jury that Mr Elkerton-Sandy used lethal force at the early stage of the confrontation, and that when he used that lethal force, his state of mind was not one of believing it was necessary to use that force to prevent or repel Mr Alexanderson’s group from remaining in the Apartment, but one of a willingness to engage in a fight.  Again, I do not accept that the evidence, if accepted by the jury, is incapable of excluding, beyond reasonable doubt, all reasonable hypotheses that are consistent with innocence.  It will be a matter for the jury whether they accept the evidence and, if they do, whether they are satisfied that there is no reasonable possibility that, when he used the lethal force, Mr Elkerton-Sandy believed that it was necessary to use that force.
51. [51]
    Consequently, I do not accept that the evidence is incapable of supporting a finding by the jury that defence of a dwelling has been excluded beyond a reasonable doubt.
52. [52]
    It follows that Mr Elkerton-Sandy could be lawfully convicted of manslaughter and, for that reason, has a case to answer on the indictment.