Regina v Goff [2000] NSWCCA 194

Reported Decision : [2000] 112 A Crim R 485

New South Wales Court of Criminal Appeal

CITATION : Regina v Goff [2000] NSWCCA 194 FILE NUMBER(S) : CCA 61076/99 HEARING DATE(S) : Thursday 11 May 2000 JUDGMENT DATE : 11 May 2000

PARTIES : Regina v Craig Leslie Goff JUDGMENT OF : Grove J at 1; Ireland J at 31; Adams J at 32

LOWER COURT JURISDICTION : District Court LOWER COURT FILE NUMBER(S) : 98/21/0198; 98/21/0154; 96/21/0196 LOWER COURT JUDICIAL Karpin DCJ OFFICER :

COUNSEL : L.M.B. Lamprati (Crown) I. McClintock (Applicant) SOLICITORS : S.E. O'Connor (Crown) T.A. Murphy (Applicant) CATCHWORDS : Criminal Law and Procedure - Manslaughter - Failure to Direct Jury on Issue of Self Defence - Obligation Cannot be Extinguished by Waiver of Counsel - Expression Beyond Reasonable Doubt - Caution Against Definition in Other Terms - Resentence Arising From Separate Indictments - Observations on Response to Jury Enquiry During Deliberation Pemble v The Queen 1971 124 CLR 107 R v Galambos 1980 2 A Crim R 388 CASES CITED: R v Stokes and Difford 1990 51 A Crim R 25 R v Lawson and Forsythe 1986 VR 515 Green v The Queen 1971 126 CLR 28 DECISION : Appeal Allowed.

IN THE COURT OF CRIMINAL APPEAL

60176/99

GROVE J IRELAND J ADAMS J

11 May 2000

REGINA v CRAIG LESLIE GOFF

JUDGMENT

1 GROVE J : This is an appeal against conviction of manslaughter following a trial before Karpin DCJ at Parramatta District Court. After conviction the appellant asked to be taken into account on sentence two offences, respectively of assault occasioning actual bodily harm and breaking entering and stealing. There was also presented against the appellant a second indictment, to three counts of which, charging assault occasioning actual bodily harm, assault and possessing a shortened firearm, the appellant pleaded guilty. These pleas of guilty were accepted by the Crown in discharge of all counts in that indictment. Karpin DCJ dealt with both indictments and the matters taken into account contemporaneously and application is made for leave to appeal against the sentences ultimately imposed. 2 I turn first to the appeal against conviction. A short summary of facts will suffice. At about 6 am on 2 December 1995 a person engaged in recreational running passed a house in Baulkham Hills and observed a body lying supine in the front lawn with feet pointing towards a carport. Police were called and later a government pathologist Dr Ellis attended the scene. External examination revealed injuries to the face including a small hole in the middle of the forehead and bruising to both eyes, more severe to the right eye. 3 Dr Ellis later performed a post mortem and established the cause of death as bleeding into the abdomen. He found significant damage in that area which included a frank partition of the pancreas and multiple rib fractures. Dr Ellis expressed the opinion that a significant degree of force would have been required to achieve the degree of damage to the pancreas. Blood analysis showed that the deceased had a blood alcohol of 0.378 per percent. 4 Police enquiries identified two persons at the house. They were, Miss Patsy Beeken the resident and the appellant. When asked what happened the appellant said "Yeah, Bernie (the deceased) wouldn't leave when Patsy and I asked him to. He threw a few punches and I threw a few at him". The appellant gave evidence at his trial. At no time did he dispute that there had been a fight between himself and the deceased. He described exchanging punches inside the house and continued fighting when they went outside. He told police that the last time he saw the deceased he was walking down the driveway, directing verbal abuse back at him. It might be mentioned that, given the injuries which he detected, Dr Ellis had thought it unlikely that the deceased would have lost consciousness immediately. Enquiries revealed he had been involved in a traffic accident and suffered other trauma in the preceding few days. In particular however, the appellant denied that he hit the deceased in the abdominal area. 5 At the relevant time there had been a party conducted at the next door premises and the trial included the calling of a number of persons present at the party who denied being involved in any altercation with the deceased. For present purposes it is not necessary to trace this evidence. 6 Whilst it must be acknowledged that the appellant bore no onus of proof, his case was that any blows which he struck in the course of his fighting with the deceased did not include any blow to the relevant body area and thus no blow which was capable of inflicting the damage which was causative of death. 7 The grounds of appeal against conviction were expressed as follows: "1. The trial judge erred by failing to direct the jury about self defence. 2. The trial judge erred in failing to define the meaning of an unlawful and dangerous act. 3. The trial judge erred by instructing the jury to put out of their minds completely what the appellant's counsel said about the issue of reasonable doubt." 8 Where an issue of self defence arises upon an indictment for manslaughter, it is incumbent upon the Crown to negative the issue. The opening address of the Crown Prosecutor was recorded and included a statement to the jury "the Crown says that the act in the course of the assault was unlawful and dangerous and that it was not done in self defence". 9 At the close of the Crown case the learned trial judge raised the matter in these terms: "HER HONOUR: That is the basis of the Crown case. And Mr Watts, I take it that there is no issue of self-defence in this case? WATTS: No. The Crown has got to negative that - I think it's Jones's case. HER HONOUR: But that's in circumstances in which it is conceded that the event occurred. It would be hard to see how self-defence arises when what the accused's case is, that there was a punch by Mr Doorey to which he responded and that was it, and he walked off. Self-defence surely only arises inevitably when the circumstances of the altercation, for example, indicate that the cause of death must have been occasioned during the course of that altercation? CROWN PROSECUTOR: The Crown's case of course is that the altercation involved a lot more than what Mr Goff is prepared to concede and in any event he raises that he acted in self-defence, although he limits what involvement or what acts he committed. He raised it with the police and self-defence is something I think, both in manslaughter and murder that -- HER HONOUR: I'm sorry, Mr Watt, you mutter as you look down and I can't hear a word you're saying. CROWN PROSECUTOR: Self-defence is, as I understand it, effectively an element that the Crown must negative. I am thinking of the case of Jones and Justice Hunt's model directions in relation to murder and manslaughter. Your Honour is probably familiar with it but would your Honour be assisted by it? HER HONOUR: I fail to see that it arises - I mean, one has to be careful not to simply give rote directions in every trial when you are looking at different facts. Anyway, hand me up the copy and I'll have another look at it but I –" 10 And after some discussion on another matter her Honour returned to say: "HER HONOUR: Mr Watts, just on this issue of self-defence. It still seems to me it doesn't matter. I can't see how it arises. Although the Crown suggests it does I can't see how it possibly does. … (not transcribable)…..looking at a totally separate incident. It couldn't possibly arise in these circumstances. WATT: I don't want a self-defence direction your Honour. I think it would be confusing to the jury." 11 The issue of self defence did not arise upon the case as being fought by the appellant. His case was that he struck no blow to the body which could have been causative of the damage which ultimately led to death. Nevertheless there was evidence that there had occurred, what was described in various terms including fight and scuffle, and the witness Ms Beeken described both men as falling in the course of struggle. In determining that the issue of self defence did not arise it was overlooked that the jury may not accept the version being advanced by the appellant and they would then be required to consider all the evidence which included testimony by both the appellant and Ms Beeken that it was the deceased who commenced the altercation by punching the appellant. With respect to the contrary view of the learned trial judge, it was essential that the jury consider and reject self defence (to the necessary standard) before they could return a guilty verdict. 12 It was the duty therefore of the trial judge to give the jury directions which would enable them to consider this alternative to the case being advanced on behalf of the appellant. There is ample authority that the conduct of counsel cannot relieve a trial judge of the duty to give such directions. 13 In Pemble v The Queen 1971 124 CLR 107 Barwick CJ referred to the course which counsel may see fit to take and observed that in that case: "Counsel for the defence did not merely not rely on the matters now sought to be raised: he abandoned them and expressly confined the defence to matters he did raise. However, in my opinion, this course did not relieve the trial judge of the duty to put to the jury with adequate assistance any matters on which the jury upon the evidence, could find for the accused".