R v Pain

This case principally considered whether the defence of compulsion under s 31(1) Criminal Code 1899 was potentially available to a member of an outlaw motorcycle club, who had shot a member of a rival club. The Court of Appeal concluded that the trial judge had erred in directing the jury about this defence, and that it was potentially applicable in the circumstances. However, this error had not resulted in a miscarriage of justice in the circumstances.

Mullins P, Morrison JA and Flanagan J

25 November 2022

Background

In 2019 the appellant was convicted of unlawfully striking the complainant with a projectile in contravention of s 317(1)(a) and (f) Criminal Code 1899. [1]. The appellant was a member of the Rebels Motorcycle Club, and the complainant a member of a rival club, the Rebels. [5]. After a meeting between members of both groups at a coffee shop, the appellant and other Rebels members chased the complaint; the appellant followed in his car, and eventually shot the complainant in the thigh, using a handgun in the console. [6]. The appellant, who gave evidence at trial, contended that he had only discharged the gun with the intention of scaring away the complainant, who had been “running at full pace towards his friends carrying a machete”. [6].

On appeal, the key issues were whether the jury had been misdirected as to the defence of compulsion available under s 31(1)(c) Criminal Code 1899, resulting in a miscarriage of justice. Further, whether there had been error in the imposition of the sentence. In the result, the appeal was dismissed. President Mullins gave the reasons of the court, with which Morrison JA and Flanagan J agreed. [66]–[67].

Whether there was a misdirection resulting in a miscarriage of justice

Section 31(1) Criminal Code 1899 provides that “[a] person is not criminally responsible for an act” if the act is “reasonably necessary in order to resist actual and unlawful violence threatened to the person, or another person in the person’s presence”. [9]. This is the defence of compulsion [12]. However, subsection (2) provides that this protection does not extend to “a person who has by entering into an unlawful association or conspiracy rendered himself or herself liable to have such threats made to the person”. [9].

At trial, the trial judge had directed the jury that the s 31(1) defence would not apply if the prosecution proved beyond reasonable doubt that that the appellant “was a participant in a criminal organisation and knowingly committed the offence in association with one or more persons who were participants in a criminal organisation”. [12]. The appellant contended that this had been a misdirection because it involved an allegedly erroneous construction of s 31(2). [17].

Mullins P agreed that the impugned direction reflected an erroneous construction of s 31(2). [22]. Her Honour said that, on its proper construction, s 31(2) only takes away the defence within s 31(1) where the threat of violence “comes from a fellow member of the unlawful association or conspiracy”. [21].

However, on the evidence it was “reasonable to conclude” that the reason the jury had rejected another statutory defence raised by the appellant was that “the discharge of the gun was not reasonably necessary to prevent the commission of the offence”. [32]. The requirement that the act be “reasonably necessary” was also a component of the defence in s 31(1). Accordingly, it was inevitable that, even without the impugned direction, “the jury would have excluded the defence under s 31(1)(c) of the Criminal Code 1899 for the same reason”. [133]. In other words, despite the error in the direction at trial, the appellant had not demonstrated any miscarriage of justice. [35].

Whether leave to appeal against sentence should be granted

The appellant also appealed against sentence on various grounds. [36]. Notably, the primary judge had determined that only part of the period for which the appellant had been held on remand “should be declared to be imprisonment already served under the sentence”. [47]. Mullins P said that the failure to make the declaration (pursuant to s 159A(3B) Criminal Code 1899) in respect of the total period “was an error of law”. [47]. The court was therefore required to resentence, unless it was persuaded that the base sentence previously imposed “was the appropriate sentence”. [47].

After a review of sentences for similar offences, Mullins P concluded that a base sentence of six years imprisonment, with an additional declaration that the appellant was convicted of a serious violent offence, “was the appropriate sentence” (as had been imposed by the primary judge). Apart from correcting the error in the declaration made under s 159A (as discussed above), it was “therefore not necessary to resentence” the appellant. [64].

W Isdale