R v Lefoe

The appellant appealed his conviction of manslaughter on three grounds. The second ground, which is the focus of this note, concerned the trial judge’s directions as to the defence of aiding another in self-defence under ss 272 and 273 Criminal Code 1899. Section 273 provides that an aider may lawfully use force, but only to a like degree, in any case in which it is lawful for the defender (a Mr Simpson in this case) to use force of a particular degree in self-defence. Crowley J (with whom Mullins P and Kelly J agreed) considered that it is the aider “who must reasonably apprehend death or grievous bodily harm to the person assaulted and who must be induced to believe, on reasonable grounds, that it is necessary to preserve that person from death or grievous bodily harm to use force to defend them”. There was no error in the trial judge’s directions and this ground of appeal failed.

Mullins P, Kelly and Crowley JJ

26 November 2024

Background to Appeal

The appellant was convicted of manslaughter. [12]. He appealed his conviction on three grounds, the second ground forms the basis of this note. [12]. The appellant submitted the trial judge erred in respect of directions concerning self-defence. [12].

Case at trial: aiding in self-defence

The appellant and his friends were on a night out of drinking at Surfers Paradise. At about 1 am, one of the appellant’s friends, Mr Simpson, pranked a stranger from another group, by snatching some food. [3]–[4], [15]–[16]. Mr Simpson was intoxicated at the time; the appellant was not. [4].

The interaction between the groups escalated and was captured on CCTV. [1]–[5], [15]–[16]. A verbal exchanged morphed into a physical fight “egregiously instigated by Mr Simpson”. [1]–[4], [15]–[16].

A member of the other group, Mr Susin, was not part of the initial interaction, but attempted to punch Mr Simpson from behind. [4]. Mr Susin was intoxicated and missed Mr Simpson by a “wide margin”. [15]–[17]. The appellant almost immediately reacted by punching Mr Susin once to the head. [4]. Mr Susin fell to the ground and struck his head on the pavement. [4]. Mr Susin never recovered, he died as a result of his head injury around 10 days later. [6].

The sole issue at trial was whether the appellant’s actions were lawful on the basis of compulsion to save Mr Simpson or to aid in Mr Simpson in self-defence. [8].

The jury were directed that the Crown had to exclude those defences beyond reasonable doubt in order to convict the appellant. [10]. They were directed on ss 272 (self-defence against a provoked assault) and 273 (aiding in self-defence) of the Criminal Code 1899. At the trial, the jury were also provided with a “question trail”, including questions to be considered for the defence of aiding in self-defence. [60]–[62].

The appellant raised three issues with those directions:

(1)The question trail asked “Did [Mr] Simpson provoke an assault from [Mr] Susin?” The trail told the jury if they answered “no” then “[t]he defence of aiding in self-defence against a provoked assault is not available”. The appellant contended the trial judge erred by not directing the jury to then consider aiding in self-defence against an unprovoked assault (ss 271 and 273 of the Criminal Code 1899). [64].

(2)The directions failed to explain how the law of self-defence operated in circumstances where the jury could not know what motivated Mr Susin to join the fight. That is, whether Mr Susin was provoked by Mr Simpson was unclear. [65].

(3)The trial judge failed to leave for the jury’s consideration a stand-alone defence under s 271, raised by the appellant’s concerns about defending himself against the threat and risk Mr Susin posed. [66].

Court of Appeal’s decision

The Court of Appeal dismissed the appeal. [1]–[3], [120].

At trial, both counsel agreed with the trial judge that the defences to be left were compulsion and self-defence under ss 272 and 273. [68]. When queried by the trial judge about whether s 271 was also relied on, it appears the appellant’s counsel accepted the prosecutor’s submission that s 271 did not apply in the circumstances. [69]–[73]. The prosecutor submitted s 271 did not apply because the appellant “assumes the responsibility of Mr Simpson in that he can’t act in any other way other than Mr Simpson would be entitled to defend himself”; meanwhile s 272 “doesn’t have that requirement that Mr Susin be acting unlawfully”. [71]–[72].

Similarly, the question trail was agreed with both counsel before being provided to the jury. [74]. There was no further discussion about the potential availability of s 271 of leaving that to the jury. [77].

The Court of Appeal concluded “there was no realistic prospect that the jury would have failed to exclude the defence beyond reasonable doubt as, on any view of the evidence, the appellant’s punching of Mr Susin was not reasonably necessary to make effectual defence against any such assault”. [86].

Crowley J (with whom Mullins P and Kelly J agreed) referred to R v Hagarty [2001] QCA 558 for the principle that the first limb of s 271 is an objective test. [86]. That is, a defendant’s state of mind as to the degree of force necessary is not relevant. [86]. There was no objective likelihood, in the present case, that Mr Susin would physically assault the appellant when the appellant pre-emptively struck Mr Susin. [86].

Similarly, in respect of a s 271(2) defence, there was no assault by Mr Susin of the appellant. [87]. Crowley J found that even on a s 24 basis, a s 271(2) defence was not open. [87]. Additionally, a critical issue with ss 271 and 273 was that Mr Simpson was not entitled to act in his own self-defence under s 271. [92]. The Court of Appeal ultimately rejected the appellant’s submission that his trial counsel misunderstood the effect of the concession that s 271 was not open. [90]–[94].

Aider’s state of mind in self-defence of another

Crowley J then considered whether the directions in the question trail regarding the appellant’s state of mind were relevant to ss 272 and 273. [95]. On a literal reading of s 273, it is only lawful for an aider to use such force as it would be for a defender (here, Mr Simpson) to use themself. [95]. His Honour observed:

“That in turn would require that the defender must reasonably apprehend grievous bodily harm or death and must hold the requisite belief on reasonable grounds that it is necessary for their preservation from grievous bodily harm or death to use force in self-defence.” [95].

However, in the present case, Mr Simpson could not have held such an apprehension or belief because he was completely oblivious to Mr Susin’s punch, which came from behind. [96], [104].

Crowley J considered Bowskill CJ’s discussion of principles in R v Markovski (2023) 14 QR 20 instructive. [101]–[103]. Where a defendant seeks to rely on s 273, the case must be one where the person whom they seek to aid is entitled to act in their own self-defence under ss 271 or 272. [103]. If a literal interpretation, as described above, were taken, that would prevent an aider relying on s 273 where the person to be aided was unconscious or otherwise oblivious to the need to protect themselves from an assault. [104]. His Honour held “that cannot be the intended effect or operation of s 273”. [105].

Crowley J explained: [105]:

“Section 273 works so that the aider ‘stands in the shoes’ of the person assaulted. Accordingly, it is not necessary that it first be established that the person assaulted held any subjective state of mind of the kind required by ss 271 or 272. In my opinion, on its proper construction the phrase ‘in any a case in which it is lawful’ in s 273 simply serves to designate the factual scenarios in which an aider may also be absolved of criminal responsibility, being where the defendant acts to aid another against an unprovoked assault (s 271) or against a provoked assault, where the assault is of such a nature as to cause reasonable apprehension of grievous bodily harm or death (s 272). What must be shown in either case is that the objective circumstances are such that the case is one where the person assaulted ‘would be’ entitled to use force in self-defence and that the aider, acting in good faith in defence of the other, held any required subjective state of mind, entitling them to use force of a similar degree to that which the defender would have been entitled to use.”

Therefore, the relevant state of mind under s 273 is that of the aider, not the subjective state of mind of the defender. [106]. The “good faith” notation requires that the aider genuinely is motivated to act in self-defence of another person; that is, they have a subjective belief required by ss 271 or 272 to act. [106]. R v Fietkau [1995] 1 Qd R 667 provides support for this approach. [108].

Ultimately, the Court of Appeal concluded that the trial judge’s directions as to self-defence under ss 272 with 273 were not irregular and no miscarriage of justice was occasioned by those directions. [109]–[110].

H Edwards of Counsel