CATCHWOPDS Criminal law - Felonious wounding with untent to murder - Malicious wounding with iantunt to Go grievcus hodily harm - Self defence - Keagonable beliet in danger from anlawful attack - Froper direction to jary - Jntoxicetion - Special intent - Frovecation. Jom "EL CHALL EEL EOUT Vv. No. T.c. § of 149 ist) ao Coren : Smithers, Brennan anc Jeane JJ. Date : 20 Getober 1980. Can>erra. I] fHE PODERAL COUPT OT AUSTRALIA ) ) AUSTPALIAIL CAFITAL TERPTTOPY RAGISTRY) ) SFNEPAL DIVISION ) ON APTLAL FROM THE SUPREME COURT OF TEE AUSTRALIAN CAMITAL TR&PLTORY SIWOILiY JOHN MOCHADL ni LUHOUT Apped tart TUR QULEY = o Raspor dent cRBDBER CLD3R3 MAKING OFDFR . Smitters, 32xennan and Deane Jd. OF ObDIR : 22 Oetcher 1989, MARE : Canberra. |-a it td Cc rec ie) Le lil wt vp) 1. Trat the appeal be allcred. 2. TReat the verdict anc judgment of the Supreme Cour. of tar Australian Capital Ternitery wnercky Lue aprellarnl was cornvterced oF the crime of malicicusly wounding David Peter Heimhout with antant te do grievous bedily harm be sev asiz2. ce That the sentence inpesed upon the evppellant consequent uper That conviction be set aside. 4, Thet tre appellant be retried upen the counl of malicicus vy wcunding -eter David Helmnout witr intent to uo grievous bedily harm at a time to be flexed ly the Suprem: Court of the Australia Capital Territory. S. That the appellant be remanded in Ns wuresent cusrody pening his retrial cr the earlier com-lce~ien ot the proceediney uron th. ancictment upen which he vas ceomvi1otsd as apo esaid, suktecl toe such orcer as Lhe Saprem. Courl cf tne Australian Capital Verritory may make with resveet te herling the apretlane. IN THE FEDERAL COUFT OF AUSTRALIA ) ) No. F.C. & of 196¢ AUSTPALIAN CAPITAL TERRITORY REGIS'LRY 3 ) GENSRAL DIVISION ON APPEAL FROM THE SUPFEME COURT OF SHE AUSTRALIAN CA-TTAL TONPTTORY BETWELN : JOMN MICSALL HLLMECUT Appellent AND : SEZE QUEEN Respondent CORAM : Smithers, Brennan and Deane JJ. to oO D Q ct fe) u oO '3 we ite) oD °o tH=o cour? The appellant was charjed on indictment Ddetcre the Supreme Court of the Australian Cazital Territorv on a ceunt oF felonrously wounding David Peter Helmhout with uncent to murder ena in tne alternative cn a count of maliciously wouncing TLevid Peter Helmhout with intent thereby to do grievous bodily harm. After a tr1al befor. sleckburn C.J. and a jury he was ecqaittee on the first count and convicted on the seecnd. 4H semuences. w : fal} a a to imprisonment for threc years with a non-searole period of 1? months. He appeals to this Court against ais conviction and sentence, yhe cincumstance® oul o* wher rhe crarse= arose showee chat Ae aopel rant and 7is sroTthe® > che David peter HeLThous menticnes tn the yreietmer" > qene ayinking in the compay ot others darin' tae arternoo? am evenias of } Novem 2r 197%. Dav yas & piggert man *han "uc apnetiant and is allexF= <o heve exnib red some aggres 32m against nis analie" ar.d youn se? procher: some ime frer midnighs> ne appe-iait» Rie prether and one patters or > ith hom tney hac pcan epinsints were Alki fowarce Civic centre when the appellant ance 2-5 protrer commen 2a arguing and Davic nit the aopeliant cn ~he 51de 57 wre head- perrerson'§ evidence as to wnel ons acd 6as chat tne appellant was pecking orf, David continues +O punc' a: hyins yhe appellant nrodaced @ yn fe > David snen gtcriee wackins at iM» and tre apoellan~ wan avey and wae cnased by javi18 ho caunte { and insu-t 2 him There was evidence? spat be _ spoThere were at seast rently gnzoxicated at the time- yne appeltare stanoet David yita the nite ana one of Whe ™ unde quiv/en he nade yerow> +xhnough portunately pavid survived: , Tne ap eLlart -sade an anevorn _tacemet + shicl +ne rearmnes trial Sage pepeated an ms cnavge zg ce jury In thet gratenent he apd sellan= pads inter celia, act pavyid vee call Lat yim obscene names a) aoat ne <old Davi * cut it cal or y2 qoule U ve ta ynacce He ead +r.at Daved Keps on pu chins: aenely 2 is LNs ALT. w23 5s tatemen~ cher prose see -ing me and Tyas Le " He kept on "10° pedalling: He dared we to hat Ait aud 7 was still back- ecalling, then 7 iabbed at him with the knife. = did not peally mean to hurt him, T just wanted nim to sto. dia not realise pad hurt ALL. Tt was only after I Found out how bad ne was that T realised xhat ~ fad done. Tl i ec te7d me how many at taret I peanised hew Twas really many times 36 atLona inc_.ded xieatlier upon rhe formation special intents which 13 an 7% the andictmert. + pe prct1ve of "ences cnarged in to wuten the iegrents in the Thier Ce ut + o.u.F. &3 were directed: In yare's cas, Masor- -) and fick Tey qtatid the matters which a ju?y maze Stephen s+ iseue of selr cet spmining a nongLuer vyhen det turder «nere threat of a@eath cr grievous sodily hare to on acquse 2 18 1 question. las Horsur jad Cat pp. 242-107 esa the jury Zire: a tilled the wyed Tnas at with Avavh cr ateut Lo le daceasee " 1.(a) It iy for unla™. Ul wraether wher. tne accuse the accuse 'l ve qsonably Lele attacx wher + jpeatened hia perilous bodily hart 7715 being or wae nade upen him. (Lt) By che expression 'reasonably b:li ved! is reent, net what a reasonable man would ha believed Fut vas the accused hins2l? right wreascna. I in all the circumstance? ir which he touns "homse-=. 2. If tne aury 12 satisfies? second peascnabl2 deeakt th there was no reasonmaple seliel Ly tha aceloed cf sich ar altack mo question cf sal-- defence apices. 3. If tae jury 1s not satistied eeyone reasonabp_a Soot at there was no such rea+oenrel le belief oy the accused, it must then consicer wh-etrey ot "used by th: accused was reaétenably roperticndate to the danger whien he believed he 4, If the jury 148 nol satis "1ed beyond reasonable doubt that mere Force vas used then "18 reasona>ly proportionate it eneuld aequis. envilc be either Marsla water cz murder, depend*ng upen the amstve> to the liaal che jury - iid the accused deliev- toa' which hz usec vas reacone ly pr danger which he bcelicved he taced"™ 5. "f the Jurv i8 satislied we7on] reasonable deabt that mere Corea was used, then its veréict hat li the furv *s satisfiei Leyord ro t ecuecd did not lave suer te tTurden. IC itas the accuse the verdict vill be na "Vobp J. said (fihid, at p.1°8) that th_-3 staterenl shoule oe sO, per Jaco.s v. and per Murriy J. a CG GB a+ i) [any a3 correcr (se, el Bb oF ja fu ou — 2288 an. p.171). —h a cme task ¢ Yne statement 15, of ecur.ze, dirs: & jury in a trial for aurcer where bho force used by an aceuss! in self cefene iD a a pprevcerplivnat= to the actual danger which he facec, It 15 not directed to the task of a jar where the force used in sel- defence was ne more than proaportiomate ce th: actual danger faved by the accuseé. It is apparent from the statement that the fact tnat the foree used by a yw QQ fe) SS a lo fen x fu a Q I- g UC be} a 'UJ ie)ct° p itct Q TAS ganger wiiel. he faezd dil not, in itseli, dispose oF the cefence of s:lf (e] n u ie) 1) fen ia] detTence, if the accused night have Lelieved that rk graver dancer then " . actually did. The present case is cne where 1t was open te the 'ury to conclude that the appellant might have entertained an evaggiratec beliel as to the canger which he Iocel by r2easen ' g of his >rotner''s unlawful attack upon him. 'Tat Deng €%, LT was necessary that the jury be directed to consider wacther tre Furce used by the appellant ma, Rave >oen propertionatle iy to the danger wnich he belzeved he facec. In that regard, Hazon J's staterent oF the appropriate. dUfvection in a murder trial ncec2 to be adapted for ase where the relevant cherge ls rot homicide. Taragrap 3 and € ot the statement are concerned wich 2 2 a verdict of Mans.laughler om =r adie Paragraphs L to |} relate to the justification o7- grap J In @ case where an accucea has v~1ited the Cerson attaer threatening nix. As self deyere. may juslily cha use of revo g J Oo paragraprs 1 to 4 epplv, mutatis mutardis, to cases oLlher fH rm such a casc, where a celtence cf self defunce 25 an issue, paragraph 1(a) would be expre.sed to read: "Te is for the jurv first to vonsidsr wrether wren the accused apelied Force to the person of another the accusce reasonably believed that an unlawful ettack va: being or vas aboul to be made upon him. " The test of whether an accused's belief was mrasonasle 16 mot vthether an unlewfui attack wa. being made or was abeac <¢ be made upon him, nox even wheter the hypothet? 2al veaesonclle man in the accuc elieyv ld that an unlawful ettack wos being made cr was about to >be mae cu hir. The test 1s whether the accused himself migit reascnebiv ich he Toand himself =, heve believed in all the circamstances in thal an unlawlul attack was being or was abuut toe be mace uden hin. Uniess the jury i tis-1ed hLeyond reasonakLle dou-t that Ay) rt vu) A [en d a the accuse not reaso ebly Believe that an un levfut attack a -aG being or was about to be made upon Alm, the yu2zslion oF the prepertionali'y of tne foree actually user will arise Lor c.rg1ccereation. force? actually uscd by the accusel was reasonably npoporcioncste pe cetarmined by referenes to the deugar which the accused lelieved he faced. However, in cat view, Daracrapn 3% Coe. not roguive a positive finding by the jury es to the ~recise de of the agcused in thac regard. Wheres the Jury 18 not satisfied beyend reecsonable douLt as to that preeaise belief of Lhe acoused, the reievant question 13 whether the ~orce actually used "ias reasonaDdly propertionat? tu the gravest Ganger in wiier, as a matter af reasonavlie doubt, the jure corsiders the aceused raght Fave believed he wa Us Id pa w ry] GQ fu [eoWJ + + _ | + "y rc qu2slicn in other words, whetaer che jury is cat-sfiel beyond yeasonadls douLt that *he Foree actually ueec was 2 (a) nOe) aca( J a ¢ te tee danger in which the accused might have belseved himselt to he placed. fné summing a of the learned trial judge drew the jury's altent_cn to tne eviderece of che actual cireurizttaress 'arreunc'ng the stabbing. E1s Nenour tola the jury trat there 'ras no doudt that there was Eoth actual ans threatened application ef force tc the appellant. As there vas little recon ~or toubtang that the 2ppellant pstioveld thal an utlavful aitack Was o2ang made upon hin, the vital pirt or his [Iuncur's suming JP ON The lesua of nelt deTunee was piain_y that the tury .o corsider vhother the toree 1n fact used "y the aepellant wae tustiztied. His Tencur did net, in terms tie tury that it was relevant for them to consider whether the force which the appellant used was reasonably provortionets to the danger which he believed he faced or which he might reasonably have Delieved himself to face. Careful reading of the relevant sections of his Horour's summing up leads us to the conclusion that the overail effect was to invite the jury to say whether they were satis*iec that the apeellant had applied more force then was reasondbdly nevessary in the actual circumstances oF the case in order to prevent the actual or immediately threatened application of Force to himself. It was implicit in the summing up thet if the jury were satisfied beyond reasonable doubt that that was so, the de"ence of self defence failec. In this regard, hin Tunour 's charge to the jury stopped short of the direction + a ja. 0, o Z «b think, the views expressed by the majority of the High Court in Yiro's case (supra) redauirec. In the result, it woulu wo eum probeble that the nemoers of the jury did not address their minds to assessing the proportionality of the force usec by reference to the danger in wrich the accused mighzt reasonavly have betieaved himsclf to be Placed but confined Lhemselves to the obuective cuestion enunciated oy his Honour. That may well have resulted, in the particular circumstances, 1n a view of the case lees favoureble to the accused. In these circumstances, we cat Feel "no reasonable assurance Lhat tne blemish of the trial could not reascrably be supposed to have influenced the resulc" (Duff v. R. (1979) 28 ALF 83 at 3.678). Subreot to the cf fact = Ma vter ac of the Fazlure of counsel for the accused to razse 103) the end cf the summing ur, the non-direction require: thic the verdict of wounding with intent thereby to co grievous bodily harn be set aside and would have requived the setting «sice of a verdict of guilty of malicious wounding hae the jury reached tha alternative verdict which was cpen to them on the indictment. Counsel who appeared at the trias made ne suggestion, at the conelision of his Eorour's summing up, that his Honour's directions on the issue of self defence were in any wey defro1enl. A failure Ly defence counsel may, in scmé cases, nave an umpertant bearing on the question whether a miecarpiace or 1us' ce nas occurred so as to entitle the aceused to a new trial (The Sueen v. Lavery Clo.?) (1977) 20 S.A.5.F.439 ac p.'5i), - tre administration of ermminal law is, icwever, to i secure as far as possible that Zuscice be done according to the lav. In tue present case, as Ais Henour's cairections to the fury vere lrable to cause them to isnore an important aspect of of self detence, the Latliure to reise the matter at tho ra a oO i) a vl c G enc cf the summing up does not provide suftie1rent reason for refusing to set aside the verdict of gatity of wouncing "ith intent thereby to cause grieveus bodily narm. Notwithstanding the submissions of counsel for the uppellant, there is no basis upon which an aptellate court could 'J cperiv substitute for that verdict a verdtet of fullly on che keWu O) ser alternative charge of malicicis wounding. This Court should orcer a new trial on the count of malicious wounding "ith intent thereby to do grievous bodily harm. it is unnecessary for tne disposal of this appeal tc Zeal with the two other substantive grounds of atseal which vere argued, In view «2 the orzer for retrial, however, it wouleé secm desirable that we make some brief comment on the questions tunvolved in thos. further grounds. The evidence of intoxication in this case was relevert both to tne appellant's capacity to form the relevant intent ard to the question whcther in fact he forned it. It the evidene: on ary retrlal 1s to the same effect as on the trial, tne jury shoule Le directec in the manner defined in Varo's cese (supra); that is to say, that the Crown must prove beyond veasonable doubt tha' the appellant actually formed the 1autent to do grievous bodily harm and that the appellant's state of intoxication is rilevanc to thel 1ssue generaily. It 1s ansaffireiint end perhaps misleac-nz direct the jury in terms wnizh are reetricted to tne cavracity Tu ferm the relevant intent. We rote that, in the ergume..t betor: us it vas unnecessary to develop the relationship between wnat Sibts J. said in Viro's case (rupra, at p.111) ard whe qadenon of the Figh Coupt in ¢'Connor v. The Jaueen (1960) 29 ALR 44g, 11. Insofar as provocation is concerned, we agree with his EHonour's ruling that the defence of provocation for whieh s.23 of the Crimes Créinance provides has no applicaticn to th @ cZfence cf maliciously wounding with intent to do grievous bodily ecceptance ® harm. We shoulc, however, wish to guarc against th of reasoning which 18 founded upon the Victorian cases of Newman v. The Queen [1948] V.L.P.21 and Spartels v. The Queen C1953] V.L.R.194 . Though it i3 unnecessary finally to decide the question, the judgment of Pape J. in Falta v. The Queen [19¢éu] V.R.78, veltusing to follow the earlier rulings in Victorie, appears consistent with principles which require the existence of the special intent 1n murder before allowing for the eperation of prevocation tc reduce murder to manslaughter (see Johnson v. Reg. (1976) 51 A.L.J.R.57). But on any view, pruvocation is inappliceble to the offence contained in the count upon which appellart may be retried. The verdict and conviction appealed against should be i?) & t+ aside and a new trial should be ordered. Clearly enough, if ct o conviction be set aside, the sentence must alo fall, ané wo the setting aside of the sentence would entitle the appellan ct Lo be discharged rrom his former custody. Yer if there 15 to be a retrial the appellant must te remanded to stand trici before the Supreme Court and his presence DeTorse thet Court must 5e sécared. In other jurisdictions, a power is expressly conferred upon the Court of Crimina} Appeal to place an appellant into his furmer custedy or to adrit him ts bail pending his retrial, bat there 1s 12> fH erase Je proen —2 ae ae Co wPe sen aL Lsefore Mepretony., TT aD AT? OPW Le. aT 7eyer OF Nive san te T. 23 s..an220 3 Ts, the Tov wo ezdir a relriil. anh tn-s case, che rest TT? 5 8r 1s to r:amand tne é is verore the Sarreme Co DTCs LLP TS ineretriont a.3 earliar terminates. Unuir Sucl ora ant tT. alt aoe > 7 7 oar a acnvicc isn, the Tris . / ts ator \ dosocrate! fo j ca | bears 4. fe J aoti-4 ——