R v Markovski

This case was an appeal against conviction for murder. The appellant argued that the trial judge had erred in not leaving open to the jury the defence of aiding in self-defence under the Criminal Code s 273 combined with mistake of fact under the Criminal Code s 24(1). Careful consideration was given by the Court of Appeal to self-defence under the Criminal Code ss 271 to 273 including how these defences can apply when used in combination with the defence of mistake of fact under the Criminal Code s 24(1). The Chief Justice (with whom Bond and Dalton JJA agreed) held that, in the circumstances of this case, the combined defence did not arise on the evidence, and as such, it was not open to the jury. No error in the approach of the trial judge could be demonstrated. The appeal was dismissed.

Bowskill CJ and Bond and Dalton JJA

28 March 2023

Background

DM (the “appellant”), TA and another person were jointly tried for the murder of a Kelvin Grove man in the early hours of 18 January 2019. [1]. The trial judge withdrew the case from the jury in relation to the other person ruling that he had no prima facie case to answer. [1]. TA was acquitted of murder, but the jury was discharged after being unable to reach a verdict on manslaughter. [1]. TA later entered a plea of guilty to manslaughter. [1]. The jury convicted the appellant of murder. [1]. He appealed against his conviction on the basis that the trial had miscarried because the trial judge did not leave open to the jury the following defences which was said to have arisen on the evidence: aiding in self-defence of TA under Criminal Code s 273 relying on s 271(2) (an unprovoked assault of TA) or s 272 (provoked assault of TA), combined with mistake of fact under the Criminal Code 24(1) (the “combined defence”). [2], [33]. Those parts of the Criminal Code are as follows:

“24Mistake of fact

(1)A person who does or omits to do an act under an honest and reasonable, but mistaken, belief in the existence of any state of things is not criminally responsible for the act or omission to any greater extent than if the real state of things had been such as the person believed to exist.

271Self defence against unprovoked assault

(1)[…]

(2)If the nature of the assault is such as to cause reasonable apprehension of death or grievous bodily harm, and the person using force by way of defence believes, on reasonable grounds, that the person can not otherwise preserve the person defended from death or grievous bodily harm, it is lawful for the person to use any such force to the assailant as is necessary for defence, even though such force may cause death or grievous bodily harm.

272Self defence against provoked assault

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

(2)This protection does not extend to a case in which the person using force which causes death or grievous bodily harm first begun the assault with intent to kill or to do grievous bodily harm to some person; nor to a case in which the person using force which causes death or grievous bodily harm endeavoured to kill or to do grievous bodily harm to some person before the necessity of so preserving himself or herself arose; nor, in either case, unless, before such necessity arose, the person using such force declined further conflict, and quitted it or retreated from it as far as was practicable.

273Aiding in self-defence

In any case in which it is lawful for any person to use force of any degree for the purpose of defending himself or herself against an assault, it is lawful for any other person acting in good faith in the first person’s aid to use a like degree of force for the purpose of defending the first person.” [34].

Whether the combined defence should have been left to the jury

The Chief Justice (with whom Bond and Dalton JJA agreed) explained that when considering whether a defence of aiding in self-defence is raised on the evidence, it is not necessary to show that an accused turned their mind to whether it was lawful for another person to use force causing death or grievous bodily harm in self-defence: see Criminal Code s 272(1) or s 272. [36]. What was required was whether, on the facts as the jury may find them to be (the “objective facts”) and/or as the jury may find that an accused honestly and reasonably, but mistakenly, believed them to be (the “subjective facts”), it was lawful for the other person to use force in self-defence and equally lawful for others to aid in that person’s defence. [36]–[40]. It followed that for the combined defence to be open there must have been either direct proof or an available inference (and not mere speculation or supposition) that the appellant had:

“(i) an honest and reasonable, but mistaken, belief that [the deceased] had assaulted [TA] in such a way (with such violence) as to cause a reasonable apprehension of death [or] grievous bodily harm to [TA], and (ii) a belief, on reasonable grounds, that the only way to preserve ... [TA] from death or grievous bodily harm was for the appellant to proceed as he did – that is, to stab him in the neck.” [46].

The objective facts in isolation did not entitle TA to defend himself using force that may have caused death or grievous bodily harm. [37]. The appellant relied on a combination of both objective and subjective facts which, at their highest, were said to provide a foundation for an inference that the appellant had the requisite belief at the time he entered the premises of the deceased. [47]. The Chief Justice (with whom Bond and Dalton JJA agreed) rejected this argument: see [48]–[54]. None of the facts, either alone or together, provided a foundation for the inference which was said to be available. [48]. In fact, there was “no factual foundation from which to infer the appellant had any belief, let alone an honest or reasonable one, that [the deceased] had assaulted [TA] with such violence as to cause apprehension of death or grievous bodily harm ...” [55]. The combined defence did not arise on the evidence and should not have been left to the jury. [56]. There was no miscarriage of justice. [57].

Disposition

The appeal was dismissed. [57]–[59].

D Kerr