R v Hunt

This matter concerned an appeal against a conviction of murder. It raises an important point about the scope of the defence of “defence of dwelling” contained under s 267 of the Criminal Code (the Code). In particular, the Court considers the extent to which the defence is raised where the use of force occurs outside the dwelling (albeit as part of a continuous fight which commenced when inside the dwelling), and where they considered that the appellant’s purpose was “to defend himself there and then” rather than to prevent his victim’s entry or re-entry into the dwelling.

Fraser and McMurdo JJA and Boddice J

31 March 2017

The appellant in this case was convicted at trial of the murder of a woman, Ms Moore, with whom he had had a sexual relationship. [2]. The sexual relationship had ceased by the time Ms Moore was killed. But the two remained in contact by way of acrimonious text messages and phone calls about sexual images of Ms Moore which had been uploaded to a drop box, and money the appellant claimed was owed to him. [9], [12].

On the appellant’s version of events on the evening in question he called Ms Moore and invited her over to “let [him] know what was going on”. [19]. Shortly after arriving at his house, Ms Moore tried to hit him. [28]. He then pulled a metal bar from his pocket (which he had previously armed himself with) and “lashed out blindly”, striking Ms Moore. [28]. The appellant then panicked and attempted to leave the premises. Before he could do so, Ms Moore advanced towards him again, throwing punches. [29]. The two struggled outside and down an external set of stairs until they both fell on to the front lawn. [29]. The appellant fell on top of the accused and, during the course of a struggle, strangled her with the intention of killing her. [30], [33].

The appellant appealed against his conviction on the grounds that (i) the verdict was unreasonable, (ii) the jury should have been instructed to consider the defence of “defence of dwelling” under s 267 of the Code, resulting in a miscarriage of justice, and (iii) important evidence was withheld from police. [3]. Grounds (i) and (iii) were argued by the appellant himself, and were unsuccessful.

In relation to Ground (ii), the trial judge did not direct the jury to consider the defence of “defence of dwelling” contained in s 267 of the Code, nor was it sought by the appellant at trial. [56]. However, the appellant contended that there was a miscarriage of justice because he was deprived of a fair chance of acquittal by the jury not considering this defence. [56].

The appellant relied on R v Cuskelly [2009] QCA 375 and R v Bartram [2013] QCA 361, cases in which convictions were set aside and retrials ordered because the defence under s 267 had not been left to the jury. [57]-[60]. The appellant argued on this basis that he “did not unlawfully kill Ms Moore because he had believed, on reasonable grounds, that she was attempting to enter or remain in his dwelling with an intent to commit an indictable offence and that it was necessary to use the force which he did use”. [61].

The Achilles’ heel in the appellant’s argument was that he had accepted that the strangulation occurred “when the couple were outside the ‘dwelling’”, a term defined by s 1 of the Code as relevantly limited to “any building or structure or part of a building or structure”. [61]. But the appellant argued that the killing was the combination of “a continuous action from moving her out of the residence and down the stairs, where the deceased continued to threaten and assault the appellant”. [61].

The Court did not accept this argument. [62]. McMurdo JA (with whom Fraser JA and Boddice J agreed) said that the “relevant ‘force’ was that which killed Ms Moore, because it is the use of that force which the appellant must argue was lawful”. [62]. Here, the purpose of the use of force was “not to prevent her from entering (or re-entering) his house” but “to defend himself there and then”. [62]. His Honour continued:

“Section 267 does not make lawful the use of any force unless that was a force used for the purpose of defending that person’s dwelling and preventing the commission of an offence within the dwelling. It may be accepted that, as is argued for the appellant, the strangulation of Ms Moore was the culmination of a continuous fight between the two which began in the house. But that was not of itself sufficient to engage s 267.” [62].

The Court dismissed the appeal. [91].

J English