New South Wales Supreme Court CITATION : Regina v MUNRO [2000] NSWSC 1168 CURRENT JURISDICTION: 70073/00 FILE NUMBER(S) : SC 70043/00 HEARING DATE(S) : 4, 5 and 6 December 2000 JUDGMENT DATE : 13 December 2000 PARTIES : Regina v Christopher Brett MUNRO JUDGMENT OF : Badgery-Parker AJ at 1 M Barr S Loughnan (Crown) COUNSEL : B M J Toomey QC R A Cavanagh (Accused) Department of Public Prosecutions (Crown) SOLICITORS : Walsh & Blair (Accused) CATCHWORDS : Murder - manslaughter - self defence - Home Invasion (Occupants Protection) Act 1990 No. 109. LEGISLATION CITED : Home Invasion (Occupants Protection) Act 1990 No. 109; Criminal Procedure Act 1986; Evidence Act. CASES CITED : Zecevic v Direcor of Public Prosecutions (VIC) (1987) 162 CLR 645; Regina v Hawes (1995) 35 NSWLR 294; Regina v Rogers (1996) 86 A Crim R 542. DECISION : Not guilty of murder. Guilty of manslaughter. THE SUPREME COURT OF NEW SOUTH WALES CRIMINAL DIVISION BADGERY-PARKER AJ Wednesday, 13 December 2000 70043/00 - REGINA v Christopher Brett MUNRO JUDGMENT 1 HIS HONOUR: On 4 December 2000 Christopher Brett Munro was indicted on a charge that at Coolamon on 26 December 1999 he murdered Benjamin Phillip Prior. To that charge he pleaded not guilty. 2 A sufficient time before the date fixed for his trial, the accused, having taken appropriate legal advice, elected to be tried by judge alone, and the Crown consented to that election. After indictment the accused confirmed to me that it remained his wish to waive his right to trial by jury and to be tried by judge alone. 3 The Criminal Procedure Act 1986 provides by s 17 as follows: "s 17 Verdict of single judge 17 (1) A Judge who tries criminal proceedings without a jury may make any finding that could have been made by a jury on the question of the guilt of the accused person. Any such finding has, for all purposes, the same effect as a verdict of a jury. (2) A judgment by a Judge in any such case must include the principles of law applied by the Judge and the findings of fact on which the Judge relied. (3) If any Act or law requires a warning to be given to a jury in any such case, the Judge is to take the warning into account in dealing with the matter." 4 The first relevant principles of law are those which require that the Crown prove beyond reasonable doubt every element of the offence charged, or, if the elements of murder are not proved, every element of manslaughter. In the circumstances of the present case, the Crown must prove beyond reasonable doubt: (i) That the death of Benjamin Prior resulted from an act done by the accused. (ii) Either: (a) that that act was done with intent to kill or with intent to inflict grievous bodily harm, in which case the accused may be guilty of murder; or (b) that the act, although not done with murderous intent, was an act that was both unlawful and dangerous, in which case the accused may be guilty of manslaughter; (iii) That that act was not done in lawful defence. (iv) If the Crown has proved murderous intent and has excluded any reasonable possibility of lawful self defence, that the act which caused death was not an act done under provocation. If, in those circumstances, the Crown has not excluded provocation, the accused is not guilty of murder but guilty of manslaughter. 5 The death of Ben Prior occurred on 26 December 1999 at St Vincent's hospital, Sydney as the result of injuries he sustained at the home of the accused at 13 Loughnan Street, Coolamon on the previous day. 6 There is little direct evidence of what took place on that occasion. The deceased's younger brother, Gerard Prior, has given several accounts of what took place, including in an electronically recorded interview on 4 January 2000 and in oral evidence at the trial. His accounts do not correspond in every detail. There may be several reasons for that, including that Gerard Prior was somewhat intoxicated at the time of the incident, that it became for him a very emotionally disturbing incident when his brother sustained obviously serious injury, and that he feels genuine guilt and remorse for his contribution to what occurred. Also, he has always said that he did not see the whole of what took place, and the usefulness of his evidence is to that extent reduced. Further, in assessing his evidence I must not overlook that he is a person "who might reasonably be supposed to have been criminally concerned in the events giving rise to" this trial (Evidence Act s 165(1)(e)), so that, if this were a jury trial, I would find it appropriate to warn the jury that his was evidence "of a kind that may be unreliable", and that they would need to exercise caution in determining whether to accept the evidence and the weight to be given to it. The need for such caution in relation to a witness of this kind arises from the risk that the witness may be affected by a desire to diminish his own role in the affair and exaggerate the actions of others, in order to put himself in the best possible light, and perhaps to assuage his own sense of guilt. In the present case, as well, I need to consider whether his reliability may be affected by a desire to exonerate his brother or at any rate to minimise his brother's responsibility for what occurred, and perhaps by a desire to see the accused convicted and punished. I have weighed his evidence carefully in the light of all of those matters but also having regard to the actual content of what he said and his demeanour. I have concluded that Gerard Prior has been at all times truthful and that in general I may accept his account of what he says he saw, being careful however to distinguish between what he actually saw and his interpretation thereof or his development of inferences to fill gaps in his actual observation or recollection. 7 The accused gave a full and apparently frank account of the events when he was interviewed by police on the afternoon of 25 December 1999. Some of his answers were self serving and need to be carefully weighed against such other evidence as exists, particularly his denials of murderous intent to which I shall come in detail a little later. Leaving aside those aspects, his account is for the most part consistent internally and consistent with the evidence given by Gerard Prior, and nothing appears elsewhere to suggest that he is not to be believed. He elected not to give evidence at his trial. I formally direct myself that I may not, from that fact, draw any inference adverse to the accused, in particular no inference of guilt or of a consciousness of guilt. I specifically observe that this is not a case where the accused's failure to give evidence of matters of which, because of the death of Ben Prior, he alone has knowledge, leaves significant adverse facts unexplained or leaves open adverse inferences which might fairly be drawn in the absence of explanation from the accused. 8 Mrs Joyce Alice Munro, the grandmother of the accused, was resident in the house at the time and she has given accounts of her observation, through the windows of the dwelling, of events leading up to and immediately following Ben Prior's receipt of his fatal injury. This witness is of advanced years, and the content of her statements is so much at odds with not only Gerard Prior's version but also the accused's version as to raise a strong probability that she was confused, and that she was perhaps endeavouring to construct an account of events of which she actually heard or saw only fragments, at best. Both counsel agreed that for the most part her evidence should be regarded as unreliable and that is certainly the view I have come to. I do not propose to place any reliance on any part of her evidence. 9 It is convenient at this point to attempt a broad account of what occurred before discussing the legal elements of the crime and undertaking a more detailed examination of the relevant portions of the evidence in order to decide, in respect of each element in turn, whether the Crown has made out its case. In this following broad account, I shall state facts as I find them to be without pausing to indicate upon what evidence I rely. Where the evidence is conflicting, my statement of the conclusion that I have reached will sufficiently indicate which of the competing versions I have accepted, which conclusion will reflect my assessment of the credibility and reliability of the witnesses particularly in the light of the considerations discussed earlier. The brief facts 10 In December 1999 the accused Christopher Brett Munro was residing at 13 Loughnan Street, Coolamon. The accused was then just over twenty years of age, having been born on 26 November 1979. Also resident there were his grandmother, Joyce Munro and that person's mentally disabled daughter, an aunt of the accused. A verandah which extended part way along the front of the building and down the whole of the west side of the building was furnished as a flatette, and it was in this part of the house that the accused resided. In the next door house, number 15, resided two brothers Benjamin Philip Desmond Prior (aged twenty-five years) and Gerard Michael Charles Prior (then aged seventeen years and two months). 11 Late on the evening of Christmas Eve, 24 December 1999 both the accused and Benjamin Prior were at a hotel in Coolamon referred to in the evidence as the "top pub". They played a game of pool. At some stage late in the evening or in the small hours of the following morning, an argument developed between them with regard to the accused's behaviour towards a girl who had interfered with the pool table. Peace was restored and the evidence does not reveal the extent of any residual ill feeling existing at the time when one or other of the two young men first left the pub. 12 The accused is an epileptic and on long term medication for that condition. That medication reacts badly with alcohol and it seems he probably should not drink at all. On the evening of 24 December he consumed a quantity of alcohol and soon after his return home he became violently ill, vomiting or retching continually for some hours. Some time after 3 am the sounds that he made attracted the attention of the brothers Prior in their house next door and became a source of irritation to them. Towards dawn, but while it was still dark, they went out of their house and towards the accused's home and yelled out to him to be quiet. The Prior brothers had been drinking and the quantity that each consumed was certainly sufficient to produce a significant measure of disinhibition. There was an exchange of words between them and him, with foul language used on both sides. Reference was made to the earlier incident at the pub, and Ben Prior challenged the accused to come out into the street to "sort it out". He refused to do so. 13 The Prior brothers commenced to walk towards the accused's home. Ben waited while Gerard Prior went back into his own home and picked up a cricket bat. His motive for doing so is unclear - whether simply to afford them protection in the event that the accused reacted violently or aggressively to their entry, or whether on the other hand it was his intention that he or his brother should physically assault the accused in any event. They walked the short distance down the street and turned into the pathway which leads directly from the street to the front steps of the accused's home. By the time they reached the steps the cricket bat was in the possession of Ben Prior though Gerard could not say in what circumstances the transfer occurred. Ben Prior went up the steps onto the verandah. His brother was certainly on the steps if not on the verandah itself, and both young men were visible to the accused as he moved along the verandah towards them. A struggle took place between the accused and Ben Prior, and in the course of that struggle the accused obtained possession of the cricket bat. He commenced to swing it at Ben Prior and some blows made contact with him. That led Gerard Prior to run away down the path towards the front gate, and Ben Prior turned to follow him. The accused continued to strike at him with the bat. At a point about four metres from the house and two metres short of the gate, Ben Prior collapsed into shrubbery on the right hand side of the path. The accused continued to strike Ben as he lay on the ground, as well as fending off Gerard each time he tried to intervene. 14 One at least of the blows delivered before Ben Prior fell struck him on the back of the skull, causing a fracture and underlying subdural and subarachnoid haemorrhage which caused the death of Ben Prior on the morning of 26 December 1999. Elements of the offence - that the death of Benjamin Prior resulted from an act done by the accused. 15 A post mortem examination was conducted by Dr Paull Botterill on 27 December 1999. He found two significant areas of bruising high on the back of the head, one about 55 millimetres to the left of the posterior mid-line, the other about 60 millimetres to the right. Each represented the location of a blow or blows consistent with the use of the cricket bat. The one on the left was associated with a laceration and considerable bleeding, but was in fact a less serious injury than that on the right. The blow on the right posterior parietal area had been of such force as to produce a depressed fracture which extended from the right temporal region (above the ear) obliquely across the right parietal to the region of the right occipital vault. The force necessary to produce such a fracture was also such as likely to produce instantaneous unconsciousness. That blow, alone or in conjunction with the blow to the adjacent left parietal area and a blow to the left upper face, produced subdural and subarachnoid haemorrhage, bruising and swelling of the brain and eventually death. 16 Towards the end of cross-examination of Dr Botterill, Mr Toomey QC enquired as to the possibility that the fatal injury may have been caused by an impact between the back of the deceased's head and a post adjacent to the path upon which after the event a blood stain was found. Dr Botterill's evidence satisfies me that the fatal injury was not sustained in that way. 17 I find as a fact that the death of Benjamin Prior resulted from an act done by the accused, namely by his striking the deceased on the back of the head with a cricket bat. Elements of the offence: Intention 18 Intention is a state of mind and, in the absence of a credible assertion by the accused as to his intention at the time of the fatal act, can only be proved by inference. Often the intention with which an act was done may be inferred from the nature of the act in the circumstances in which it was done. Some times the act is so fraught with the risk of serious injury or death that the act itself provides cogent evidence of the intention with which it was done. To strike a person on the back of the skull with a heavy object such as a cricket bat is such an act. However, the requirement that the elements of a criminal offence be proved beyond reasonable doubt means that no inference can be drawn as to the existence of an element of the offence unless, looking at all of the evidence of the relevant circumstances, the tribunal of fact is satisfied that the inference proposed offers the only reasonable explanation of those facts. 19 The accused did not strike Ben Prior with the bat as soon as he obtained possession of it, but only after Prior attempted to punch him. He hit Prior two or three times while Prior was still on the verandah. He said he was trying to scare the man in order to get him off the verandah. Ben Prior started to run and the accused says that he hit him three or four times more as Prior was running on the path. The deceased had only travelled about three metres down the path when he fell. He lay face down with his head towards the street, his feet towards the house, and Gerard Prior's description of the location, which places the deceased's head a little closer to the house than the garden arbour posts, is consistent with the finding of blood in a damaged bush just on the house side of the post on the right hand side of the path looking towards the street. I am satisfied that Prior fell unconscious as a result of the blow which caused the skull fracture and that the skull fracture was not an injury caused by any of the blows which the accused continued to deliver after Prior had fallen. True it is that Gerard Prior, describing the accused's use of the bat "like an axe while Ben lay on the ground" expressed the belief that the accused was striking Ben about the head. The reality seems to be that he was not really in a position to see where the blows were lying nor am I persuaded that he had any clear or accurate recollection or had made any actual observation of whether he was face down or face up. It is pertinent to observe at this point also that not only was Gerard not in a particularly good position to observe where the blows were landing but also he was (a) busying himself in trying to deflect the accused from his attack on Ben and (b) still pretty much intoxicated. It is clear from the post-mortem report that there were only two sites of injury on the back of the deceased's skull and while it is possible that more than one blow was responsible for the major area of bruising to the right side of the back of the skull, the post-mortem findings appear to be inconsistent with the notion that there was a rain of blows to that area. On the other hand, the post-mortem reveals a number of sites of injury to the front of the deceased including to his face and the front of his torso, which were consistent with their being the result of blunt force and it appears to me more likely that such blows as the accused did deliver while the deceased was lying on the ground were to the front of his body. In that regard, I should also add this observation, that if the injuries which Dr Botterill recorded as being found on the front of the deceased's body were not caused while he was lying on the ground, it is difficult to find any explanation of them if the episode occurred in the manner described by the accused. His version is silent as to any occasion when he delivered blows to the face or to the front of Ben's body. 20 The delivery during that short space of time of a series of blows with a cricket bat including several blows at least to the head and including in particular a blow of such massive force as produced the skull fracture invites an inference that those blows were delivered by a person who had the intention of killing or at least of inflicting really serious bodily injury. 21 However, it is necessary to take account also of other matters bearing on the accused's state of mind at the time. These include the fact that he was very ill (he had been vomiting for some hours, and indeed continued to vomit at intervals until later in the morning when he received medical treatment), the fact that he had very little sleep, the fact that his home had been invaded in the hours of darkness by two bulky young men, one armed with a cricket bat and clearly acting aggressively towards the accused, the accused's concern arising from his knowledge that present in the house were his elderly grandmother and his mentally disabled aunt, possible lingering effects of the accused's earlier intoxication, and finally, the accused's own subsequent assertions on the issue. The overall impression conveyed by the accused during the electronically recorded interview was that he was answering frankly and truthfully. Having the opportunity to observe his demeanour by viewing the video tape, I identified no reason to doubt his truthfulness. He denied having acted with an intention to kill or to do serious injury. He repeatedly asserted that he had no other intention than to scare Ben Prior and his brother, in order to drive them the property and discourage them from coming back. 22 Mr Toomey argued that it is not possible to say at what moment or whereabouts in the sequence of blows the fatal blow was delivered. In particular, he contended that it is impossible to say that the massive blow which caused the skull fracture was not the first blow struck by the accused or was not one of the blows which he struck before the deceased moved off the verandah onto the path. For the purpose of determining the issue of intention I find it unnecessary to attempt to resolve that question for there is no reason to think that the accused's state of mind (relevant to the intention issue) altered during the brief time of his beating the deceased. It is an issue to which I shall return when dealing with the question of self-defence. 23 There is one aspect of the evidence which concerns me and which tends in favour of a conclusion that the accused had an intention to injure, indeed very likely to kill, and that is the fact that the accused continued to direct blows at Ben Prior after he had fallen to the ground and indeed was, as he delivered those blows, wielding the bat in the manner of an axe. The accused denies that he continued to strike at Ben Prior after the latter had fallen to the ground. I reject his denial, although it may be that he is not being untruthful but simply that he does not recall it. There are several indications that Gerard Prior's evidence that the accused did continue to strike at Ben with the bat is reliable, although his evidence is clearly not reliable so far as he purports to describe a number of blows delivered to the back of Ben's head. The witness was convincing when he said "there are some things that stick out that I think that I saw" though he may have been mistaken. Very soon after the tragic episode, Rebecca Brown (Ben's de facto wife) and her mother, Wilma Brown, arrived at the scene in response to a phone call from Gerard. While they were waiting for an ambulance, Gerard who was hysterical and crying gave a brief account which, significantly, included these words - "he kept belting Ben with the cricket bat. He got me a few times and I couldn't stop him". There is some corroboration of his claim that he had been hit by the accused a few times as he tried to intervene while Ben was on the ground, namely, his complaint to Rebecca Brown while they were at the hospital that night of a headache and his demonstration to his father at St Vincent's Hospital the following day of painful lumps on his head. Part of Gerard Prior's account of the episode in his electronically recorded interview includes that while the accused was striking Ben as he lay on the ground, Mrs Joyce Munro came out "and told us to tell Chris to stop it. Question: What did she say? Answer: Stop hitting him. Stop it Chris." That portion of his evidence, which was not challenged in cross-examination, has the ring of truth; and it describes an episode which would hardly have happened in that way if the accused's attack upon Ben Prior was not still continuing. I reaffirm, however, my earlier conclusion that Gerard Prior's evidence is not reliable in as much as it purports to say whereabouts on Ben's person the blows delivered at that time landed. 24 The accused's actions at that stage of the encounter are clearly consistent with an intention to injure or kill, stemming from his extreme (and justifiable) anger. It does not follow, of course, that, if such was his intention at that moment, the same had been his state of mind at the earlier relevant moment. 25 Considering all of the circumstances and considering in particular the need to be satisfied beyond reasonable doubt before I conclude that the murderous intention did exist, I find myself not so satisfied. I find that the Crown has failed to establish that at the time when he did the act or acts causing the death of Benjamin Prior, the accused acted with the intention of killing or inflicting grievous bodily harm. 26 It follows that the accused is not guilty of murder. 27 The act or acts which caused the death of Ben Prior were clearly dangerous acts in the sense in which the law uses that term - namely that, whether the accused himself realised it or not, they were acts which any reasonable person would realise exposed Ben Prior to a significant risk of serious injury. If in addition those acts were unlawful, then the accused is guilty of manslaughter. The acts were unlawful unless done in lawful self defence. Elements of the offence: act not done in lawful self defence. 28 The Home Invasion (Occupants Protection) Act 1998 No. 109 was in operation at the time of the death of Benjamin Prior. It was common ground that the Act is applicable in the circumstances of this case. 29 Its principal provisions relate to the right of an occupant of a dwelling house "to act in self defence against an intruder" (s 6) or to "act in defence of any other person in the dwelling house against an intruder" (s 7) or to "act in defence of any property of or within the dwelling house against an intruder" (s 8) but only "if the occupant believes on reasonable grounds that it is necessary to do so". 30 Section 4 of the Act defines the term "intruder". That section provides: "A person is an intruder for the purposes of this Act if (a) the person makes an unlawful entry into a dwelling house and (b) an occupant of the dwelling house believes that the person, in addition to the unlawful entry, has committed, or is committing, a crime in the dwelling house against an occupant of the dwelling house or the property of or within the dwelling house." 31 The making of an unlawful entry does not itself constitute the person an intruder for the purposes of the Act. The person only becomes such when an occupant of the house forms the relevant belief. It is to be noted, however, that the Act does not require that the belief be held upon reasonable grounds. Indeed, the Act would apply even though the occupant's belief that the person had committed or was committing a crime in the dwelling house was quite wrong, so long as the occupant did so believe. That there were no reasonable grounds upon which the occupant might have entertained such a belief does not conclude the question whether he did in fact entertain such a belief. It is no more than evidence, though there may be circumstances in which it would constitute decisive evidence to the contrary. No such issue arises here. Clearly Ben Prior (and his brother) made an unlawful entry into the house, and in the house committed the crime of assault against the accused. The accused has never expressly stated that he held the relevant belief but the Crown did not seek to contend to the contrary. 32 There was much debate in the course of the trial as to whether the Home Invasion (Occupants Protection) Act 1998 No 109 merely declared and codified the common law in respect of the limited circumstances to which the Act applies, or whether the provisions of the Act modified the common law in those circumstances and if so to what extent and in what fashion. The Crown contended that the Act merely declared and preserved the common law principles which I have briefly outlined, so that the application of the statute would produce the same result as would the application of the previous common law. Counsel for the accused, on the other hand, submitted that the effect of the Act and particularly s 9 (read in the light of ss 5, 6 7, 8 and 10) is very different from the common law, in that it makes entirely subjective the test of the reasonableness of the accused's belief that it was necessary for him to act as he did. 33 At common law, an act is done in lawful self defence if at the time when he did that act, the accused person believed that it was necessary for him to do as he did in order to defend himself against what he perceived as an attack upon him made or threatened by the deceased; and if it was, in all of the circumstances, reasonable for him to have that belief. The Crown may prove that the accused was not acting in lawful self defence (that is, as it is sometimes also put, may exclude any reasonable possibility that the accused was acting in lawful self defence) by proving either that the accused did not in fact hold the relevant belief, or, if he did, that there were no reasonable grounds upon which he could so believe. 34 The law was laid down to that effect by the High Court in Zecevic v Director of Public Prosecutions Vic (1987) 162 CLR 645. The following passage in the judgment of Wilson, Dawson and Toohey JJ had the assent of the majority of the court: "The question to be asked in the end is quite simple. It is whether the accused believed upon reasonable grounds that it was necessary in self defence to do what he did. If he had that belief and there were reasonable grounds for it, or if the jury is left in reasonable doubt about the matter, then he is entitled to an acquittal." 35 Issues as to what used to be referred to as the proportionality between the nature of the attack made or threatened on the one hand, and on the other hand the response of the accused, which in the past have some times been discussed as though they raised issues of law, are properly to be regarded as "important, and often critical, factual considerations going to the accused's supposed belief, and the reasonableness of his belief" (per Gleeson CJ, R v Rogers (1996) 86 A Crim R 542 at 545). 36 The common law of self defence requires the tribunal of fact to make an objective assessment of the reasonableness of the grounds for any belief by the accused that it was necessary in self defence to do what he did; but as the Court of Criminal Appeal emphasised in R v Hawes (1995) 35 NSWLR 294 per Hunt CJ at CL at 306: "The test posed is certainly not a completely objective one … it is the belief of the accused, based upon the circumstances as the accused perceived them to be, which has to be reasonable, and not that of the hypothetical reasonable person in the position of the accused." 37 The tribunal of fact is required by the common law to look at the circumstances from the point of view of the accused. 38 The circumstances of this case direct attention to s 6 of the Act, and for the purpose of an analysis of the provisions of the Act it is sufficient to refer to that provision alone, whilst remembering that similar provision is made in s 7 in respect of defence of persons other than the occupant and in s 8 in respect of defence of property. 39 Section 6 is entitled "Self Defence" and provides as follows: "An occupant of a dwelling house may act in self-defence against an intruder if the occupant believes on reasonable grounds that it is necessary to do so." 40 That provision reproduces precisely the common law rule laid down by the High Court in Zecevic and elucidated in subsequent decisions of the Court of Criminal Appeal of this State. 41 Mr Toomey did not argue that s 6 in any way departs from the common law. However, he submitted that it was clear that the intention of the legislature was to depart from the common law in other respects, and in that regard he pointed to: (a) The long title of the Act which describes it as "an Act to provide protection and immunity to occupants who defend themselves, other occupants and their property against invaders of their dwelling houses; and for other purposes". He submitted that that indicated an intention to confer on those people in respect of whom the Act applies a right which was not already their right at common law. (b) The fact that the Act is not available to all persons who have acted violently and are relying upon self-defence as an answer to a criminal charge but only to a very precisely defined group in very precisely defined circumstances. That, he submitted, indicated an intention that the law applicable to such people should be different from the law of self-defence applicable generally. (c) Section 5 of the Act which is entitled "Safety within homes" and which provides as follows: "Parliament expressly declares that it is the public policy of the State of New South Wales that its citizens have a right to enjoy absolute safety from attack within dwelling houses from intruders." In the terms of Mr Toomey's written submission, "unless this is mere verbiage it must be intended to proclaim some right beyond the common law for the limited class of people who are offered protection from the Act". 42 I accept that those are matters relevant to take into account in determining how the Act should be construed, but none of them is a matter which can prevail over the words of the Act. They might be of assistance in resolving ambiguity. 43 It is equally the case that in the second reading speeches both the Minister for Police, who had the carriage of the legislation in the lower house and the Attorney-General, who had the carriage of it in the upper house, both clearly expressed an intention to codify the common law, not an intention to alter it. What is clear from the speeches is that a matter of concern leading to the enactment of the legislation was a perception that ordinary citizens were not aware of the way in which the common law of self-defence would apply to the situation of a home owner defending himself in the circumstances of a home invasion. Only in respect of clause 8 of the Bill (now s 8 of the Act) relating to defence of property did the Minister contemplate that the Act might depart from the common law, which he described as "rather unclear". The Attorney-General in his secondary speech made a remark to the like effect. 44 Ultimately, the issue must depend upon the language of the statute as enacted. I turn then to s 9 upon which Mr Toomey principally relied for his argument that the statute modifies the common law in favour of an occupant of a dwelling house defending himself against an intruder by making wholly subjective the test of reasonableness of the grounds upon which such person held the belief that it was necessary to act as he did in self-defence. 45 Section 9 is entitled "Reasonable Grounds" and provides as follows: "Whether grounds are reasonable grounds for the purposes of section 6, 7, or 8 is to be determined having regard to the belief of the occupant, based on the circumstances as the occupant perceived them to be." 46 Section 10 is entitled "Onus of Proof in Criminal Proceedings" and it is convenient to set out here the provisions of that section also: "If in proceedings against an occupant of a dwelling house the occupant seeks to rely on the provisions of s 6, 7 or 8, the prosecution has the onus of proofing, beyond reasonable doubt: (a) that the occupant did not have the belief alleged, or (b) that the grounds for the occupant's belief were not reasonable grounds." 47 The words in s 9, "having regard to the belief of the occupant", are not well chosen. "[R]easonable grounds for the purposes of s 6 … " is a reference to reasonable grounds for the occupant's belief that it was necessary to act in self defence against an intruder. If the words "having regard to the belief of the occupant" were omitted the section would, quite clearly, reproduce the common law as stated in the passage earlier quoted from Hawes. If instead of the phrase "having regard to" the legislature had used some phrase such as "in respect of" or even "with regard to", the meaning would be clear and would, again, accurately reproduce the common law as stated in that case. Mr Toomey's argument is that the use of the words "having regard to" requires the belief of the applicant to be taken into account in the process of determining whether his grounds for that belief were reasonable. I agree that that is a possible reading and one which does give to the phrase "having regard to" its usual meaning as an ordinary piece of English. I am not, however, persuaded that the use of that phrase produces the interpretation of s 9 for which Mr Toomey contends. 48 The interpretation of s 9 for which Mr Toomey contends would require that the phrase "the belief of the occupant" in s 9 was intended to refer to a belief on the part of the occupant, not that it was necessary for him to act as he did in self-defence (the belief to which s 6 refers) but rather a belief on his part that he had reasonable grounds for believing that it was necessary for him to act as he did in self-defence. Mr Toomey could not point to any other indication in s 9 of any additional element of subjectivity which is not already embraced by the common law. 49 Such a contention appears to me impossible to sustain. It would make almost impossible the application of s 10(b). There is nothing in the language of s 9 to suggest that the word "belief" in that provision does not have the same connotation as the word "believe" used in s 6, referring to the belief which, for the purposes of s 6, the occupant must hold in order that he may lawfully act in self-defence against an intruder: that is to say the occupant's belief that it is necessary to act in self-defence. 50 The significance of the words in s 9, "having regard to the belief of the occupant" is to emphasise that the determination which has to be made "whether the grounds are reasonable grounds for the purposes of s 6" is a determination about the grounds upon which the occupant himself (the actual person, not some hypothetical person in the same position as the occupant) held the relevant belief. Then the section goes on to provide that the determination as to whether those grounds were reasonable grounds is a determination which is to be "based on the circumstances as the occupant perceived them to be". 51 If s 9 is construed in that fashion, as I believe it must be, it accords entirely with the common law as stated in the passage earlier quoted from Hawes. 52 That conclusion is consistent with the repeated statements by the Minister in the Second Reading Speech in the Lower House and by the Attorney-General in the Second Reading Speech in the Upper House that the purpose of the statute was to declare and codify the common law and to make the relevant principles of law governing the rights of an occupant in a dwelling house more accessible to the ordinary citizen. 53 There were several references in the Second Reading Speeches to the need to make the law clear to ordinary citizens, not lawyers. That perceived need appears to me to be the explanation of the inclusion in the Act of s 5, which I have set out above. 54 It does not appear to me that s 5 can be regarded as bearing upon the interpretation of other provisions of the Act except perhaps to the extent that, in the event of ambiguity in any other provision, the court should prefer an interpretation which accords with the public policy thus declared rather than one which does not. It is necessary to observe however, that s 5 does not use the words "an absolute right … " but on the other hand, the words "a right to enjoy absolute safety from attack within dwelling houses from intruders". That the right is not intended to be absolute seems clearly to follow from the provisions of sections 6 to 10 which are inconsistent with the existence of any absolute right of self defence. 55 It does not appear to me that the declaration of public policy in s 5 contributes anything to the construction of the difficult language of s 9. 56 During argument, I asked counsel to consider whether the declaration in s 5 of "a right to enjoy absolute safety from attack within dwelling houses from intruders" might have the effect of introducing an additional consideration to which the tribunal of fact must have regard in judging reasonableness. Mr Toomey was prepared to adopt that as a submission; the Crown argued against the proposition. 57 Upon further consideration, it appears to me to be clear that the argument thus proposed is not valid. It is not valid because it seeks to address a question which in any event the Act does not pose for consideration by the Court. The question is not whether the accused acted reasonably; it is whether he had reasonable grounds for the relevant belief. The relevant belief is not a belief that he had a "right" to act; if it were, s 5 might be relevant as creating a ground for that belief. But that is not the relevant belief. The relevant belief is a belief on the part of the accused person that it was necessary to act as he did in self-defence; and the relevant question is whether he had reasonable grounds for that belief. The existence of the right declared by s 5 is not relevant to that question. 58 I conclude therefore that the law declared in the Home Invasion (Occupants Protection) Act is in all respects the same as the common law as it existed before that Act and as it continues to exist in relation to circumstances to which the Act does not purport to apply. Upon that basis, I proceed to consider whether the Crown has excluded any reasonable possibility of self-defence, either by proving beyond reasonable doubt that the accused did not believe that it was necessary to act as he did in self-defence, or by proving beyond reasonable doubt that the grounds for the accused's belief to that effect (if he may have so believed) were not reasonable grounds. 59 The starting point must be to determine precisely what the accused did, which caused the death of Ben Prior and to determine what precisely were the circumstances which the accused may then have perceived to exist. 60 The accused was confronted in his own home by two intruders, one of whom was armed with and proceeded to wield a cricket bat in a potentially lethal fashion. Quite clearly, there then existed an occasion of self-defence, that is to say, a situation in which the accused might reasonably believe that it was necessary for him to defend himself. Indeed, at this point it is not simply a matter of the accused's belief; the fact is that, looked at quite objectively a situation existed in which the accused must act to defend himself against the attack which was launched against him. The accused responded to the attack. First, by disarming his assailant, taking the cricket bat from him; secondly, when his assailant attempted to press home the attack with his bare fists, the accused raised the bat with the intention of scaring his assailants so that they would leave the premises. He was only partially successful; Gerard Prior fled but Ben Prior did not; thirdly, the accused swung the bat at Ben Prior and although Prior attempted to evade the blow and turned away towards the steps, the accused was successful in landing that and a following blow upon him; fourthly, as Ben Prior ran away from the house, along the path towards the street, a matter of a few paces only, the accused pursued him and continued to strike at him with the bat, and some of those blows landed. According to the accused himself, he hit Prior three or four times on the head and leg while Prior was running (ERISP question and answer 348). It is I think important to quote precisely some relevant portions of the police interview: "Question 289: Did you see where Gerard ran to? Answer: Yeah, out the gate. Q 290: All right. What happened then? Answer: His brother started running too, Ben, and I give him a few hits with the bat. Q 291: Okay now when you say his brother started running where did he run to? Answer: He was running out the, trying to run out the gate and that. Q 292: And what did you do? Answer: I hit him. Q 293: Did you follow him? Answer: Yeah I, I chased him right off the verandah. Q 294: Chased him. Were you holding the cricket bat at the time that you chased him? Answer: That's why they were running. Question 295: Okay and you said you gave him a few wacks with it, is that right? Answer: Yeah. Question 296: Where was he when you whacked him with the bat. Answer: Trying to get away. Question 297: But where in relation to your house or the front yard. Answer: Well where he was on the verandah, he, he run from there and just going up the path and his brother was already gone but I got him before he got out the gate. So he didn't come back, I thought I'd give him a few taps." 61 In his answer to question 350, the accused said, "I got him, I dunno about two three hits on him in the verandah" and then followed this sequence of questions and answers: "Question 351: Yeah? Answer: And then they, Gerard ran. Question 352: Yeah? Answer: And then Ben ran, and then I hit him and he wasn't moving and that, like, I could, I know he's breathing and everything. Question 353: When you say 'hit him', what happened? What did he do? Did he fall to the ground or something? Answer: Fell over yeah. Question 354: Did he? Did you see how he fell down? Answer: Just across the garden. Question 355: Right. And was that after, immediately after you'd hit him. Answer: No I had to hit him a couple of times to stop him." 62 It was put to the accused by a police officer in the course of the interview that the danger to the accused had passed when he took the bat away from Ben Prior. The accused would not agree with that and, in my view, correctly. He said, "there's two blokes there … and I was, I was worried about what was gonna happen to me. Two blokes, I thought they were gonna double bank me which they tried to do … and I still was, like, I've been in them situations before. I'm just saying I was still, I was still in fear of bloody getting double banked … because there was two of them … and one tried to pick up a stick, that's why I kept going". He said (Answer 310) "If they ran, if they had've just ran off, I wouldn't have done nothing. I would have just went back to bed". 63 I accept without difficulty that the accused believed that it was necessary to press home his attack upon Ben Prior up to the point where Prior had left the verandah and was fleeing towards the street. I shall refer in more detail a little later to the circumstances but observe at this time that he clearly had reasonable grounds for that belief. 64 Mr Toomey submitted, and I accept, that if the fatal blow (by which I refer to the blow to the right rear parietal area of the skull which produced the depressed fracture and which in Dr Botterill's opinion was the cause of death) was the first blow delivered by the accused after he obtained possession of the bat (or, I would add any other blows struck by him at Ben Prior while both men were still on the verandah), that would clearly have been an act done in self defence, an act which quite clearly the accused believed to be necessary for him to perform in self defence and an act done in circumstances where quite clearly the accused had reasonable grounds to entertain such a belief; and he submitted (and I accept) that the fact that the blow was delivered with such force as to fracture the skull would not alter the situation. Moving from that position, Mr Toomey argued that the state of the evidence was such that it was not possible for me to be satisfied beyond reasonable doubt that the fatal blow was not struck at that time. He pointed in particular to the evidence of Dr Botterill and it is necessary to look at that evidence in some detail. 65 Dr Botterill described the injury to the right posterior parietal scalp in para one in page five of his final report, and in a memorandum subsequently, confirmed his opinion that "This is the most serious injury and it is most likely that it caused the victim to become unconscious and such unconsciousness was probably instantaneous. [He] formed this opinion based on the depressed fracture. He said that it was not the fracture itself which would have caused the victim to lose consciousness but rather the degree of force which was required to cause the fracture. Such force would have caused considerable damage and bleeding to the brain. The most likely cause of death was this injury but it has to be looked at in conjunction with the other injuries particularly 2 and 3. What he had described in his final report as injury number 2 was an area of bruising over the left posterior parietal scalp about 115 millimetres to the left of injury number 1. This area was bruised and lacerated but there was no underlying skull fracture. In his subsequent memorandum he said that: "This was a serious injury but which was not likely to cause unconsciousness on its own, but its seriousness was compounded by being in close proximity both physically and time to injury 1." 66 What he identified as injury 3 was the presence of multiple abraded bruises in an area beside and above the left eye as to which he said in the later memorandum: "This is a serious injury but less so than 1 and 2. It probably would not have caused immediate incapacity. It probably would not have alone caused the death of the deceased unless it caused significant bleeding to the brain or other brain injury. Injury 4 could have been occasioned by the same blow that caused injury 3." (injury 4 was a 15 millimetre diameter abrasion over the bridge of the nose). 67 In oral evidence Dr Botterill confirmed his opinion that the degree of force causing the depressed fracture was sufficient to produce loss of consciousness, and was "most likely to cause unconsciousness straight away; that may not always be the case, but in most cases it would be the case." 68 He had never experienced a situation where an injury of that sort did not result in "near instantaneous loss of consciousness", but he said it was conceivable that instantaneous loss of consciousness might not result. He was then asked: "It would be possible, would it not, to be struck on the head at or near the top of the steps and to stumble, run, stumble down to that point or near that point where the shrub is even with a hard blow which caused a fracture." 69 Dr Botterill replied: "I guess it would be conceivable. Again I have no experience of such a … " (answer unfinished)." 70 Then counsel put this to him: "But what you are saying, as I understand it, if it were reported to you as something which had been observed to happen, that one blow had been struck to the person's head - so there could be no question about when the blow was struck, and what its result was, one blow was struck, it was struck in the region of the chairs, and the person somehow got himself to the position of the bush. It would not be something which would cause you to say that could not possibly happen? A. I couldn't exclude it, no." 71 It was on the basis of that evidence that Mr Toomey argued, (as noted earlier, para 22) "that it is not possible to say at what moment or whereabouts in the sequence of blows the fatal blow was delivered. In particular he contended that it is impossible to say that the massive blow which caused the skull fracture was not the first blow struck by the accused or was not one of the blows which he struck before the deceased moved off the verandah onto the path." 72 The evidence of Dr Botterill is not to be considered in isolation but rather in conjunction with the other available evidence; and that is only what came from the accused himself in the course of his electronically recorded interview. In several answers in the course of that interview he purported to describe Ben Prior's movements from the moment when the accused first struck him with the cricket bat. Repeatedly, he used the words "run", "ran" or "running". Counsel submitted that the references by the accused to Ben's running etc might reasonably be understood as meaning only "fleeing" ("running away") and should not be understood as an attempt to describe the manner of his progress, so as to justify a distinction between the deceased running or staggering or stumbling. The point is one which certainly requires consideration, for what Dr Botterill regarded as conceivable was that the deceased might "stumble, run, stumble" or might have "somehow got himself" to the position where he fell. 73 An examination of what the accused actually said does not support the proposition that Ben was staggering or stumbling nor the ultimate proposition advanced by Mr Toomey, that it is not possible to say that the massive blow which caused the skull fracture was not the first blow struck by the accused, or was not one of the blows which he struck before the deceased moved off the verandah onto the path. I refer in particular to the following questions and answers: "Q 290. Alright what happened then? A. His brother started running too, Ben, and I give him a few hits with the bat. 291. Okay now when you say his brother started running, where did he run to? A. He was running out the, trying to run out the gate and that. Q.294 … Were you holding the cricket bat at the time that you chased him? A. That's why they were running. Q311. (referring to the moment after the accused took the bat from Ben) Q. What happened. What did Ben do when you hit him? How did he react? A. Well at first he tried to have a swing and then I just give him a few more cracks and he ran. 339 Q Yeah, alright so then you say his brother ran and then what did Ben do after you hit him the first time? A. I dunno know, I, really don't remember that part. All I remember is them running. 350 Q. Yeah, okay. A. I got him. I don't know, about two, three hits on him in the verandah. Q 351 Yeah. A. And then they, Gerard ran. Q. 352 Yeah. A. And then Ben ran and then I hit him …. Ben did not fall immediately after he had been hit - " I had to hit him a couple of times to stop him". (answer to Q 355). 74 It appears to me that the answers given by the accused are indicative of purposive conduct on the part of the deceased, and that it is clear he was describing coordinated, albeit hasty, even panicky, movements. I am satisfied that it is possible to say beyond reasonable doubt that the significant head injuries were not inflicted while the two were on the verandah but, on the contrary, that they were inflicted by the last blow or blows delivered immediately before Ben Prior fell to the ground. 75 The difficulty which the accused faces, in my view, is that there clearly came to be a moment when his concern was no longer to defend himself or to drive his attackers off, but on the contrary, to stop them from fleeing. Thus he said, "I got him before he got out the gate" and "I had to hit him a couple of times to stop him". 76 I accept that the span of time with which I am concerned was brief. Nevertheless, it was a span of time in which the situation changed from one where Ben Prior was attacking to one where he was fleeing and I am satisfied that the accused realised that. I accept that matters of this sort cannot be judged too finely and that some care has to be used in assessing the significance of what an accused person says in the course of an interview. His words are not to be picked over to elucidate fine shades of meaning. Rather, the purpose must be to understand the substance of what he was trying to say. Approaching the matter in that way, I am satisfied that what the accused said in the interview accurately reflected the events that occurred and the accused's state of mind at the time. I am satisfied beyond reasonable doubt that when he struck the blows which put an end to the deceased's flight and brought him to the ground, the accused had ceased to believe that it was necessary for him to do what he was then doing by way of self-defence. He was striking the deceased not in the belief that was necessary to do so in self-defence but in a desire to stop the deceased from getting away. 77 I do not overlook the final sentence of the accused's answer to question 297. For convenience and clarity I shall set out the whole answer again: "Well, where he was on the verandah, he, he run from there and just going up the path and his brother was already gone but I got him before he got out the gate. So he didn't come back, I thought I give him a few taps." 78 I accept that what the accused was there saying was not simply that he was striking Ben Prior to prevent him from getting away but was also concerned to discourage Prior from any thought of returning or renewing the attack. I accept that he believed that that was reasonable conduct on his part; but that belief was not in my view the same as a belief that it was necessary for him to do what he did, that is to say to continue striking Prior as he was running down the path, in order to defend himself against Prior's attack. Simply, the attack had ceased. 79 It is obviously a matter of degree. Consider a situation where the facts were quite different from the present. If X launches an attack upon Y with his fists and Y defends himself with his fists and knocks X to the ground (acting in lawful self defence), his actions do not cease to be lawful self defence if, observing X to get off the ground and move towards him as though to resume the attack, Y knocks him down again. Consider another situation different from the present one. Assume that X attacked Y in Y's home and Y successfully drove him off. Assume that on the following day Y encountered X in the street and X said something which clearly conveyed an intention to invade Y's home on a future occasion and assault him again. If Y then and there launched an attack upon X, he could not be said to be doing so upon an occasion of self defence nor with a belief that it was necessary for him so to act in self defence nor, if he asserted such a belief, could it be said that he had reasonable grounds for it. The present case may be thought to fall somewhere between the two extremes. There is as I understand the facts, nothing to suggest that Ben Prior was about to resume the attack on the particular occasion, whatever may have been his thoughts about the future, and nothing to suggest that the accused believed otherwise. 80 In my discussion of the evidence in order to see whether the Crown had proved that the accused did not have the relevant belief I have kept well in mind the necessity to consider the state of mind of the accused himself, not the state of mind or belief which might be attributed to some reasonable hypothetical person in the position of the accused: s 9, and R v Hawes supra. 81 For those reasons I am satisfied that the Crown has discharged the onus cast upon it by paragraph (a) of s 10. In that way the Crown has excluded any reasonable possibility that the accused acted in lawful self defence. 82 The act of the accused which caused death was thus an unlawful act. It was clearly a dangerous act in that a reasonable person in the position of the accused would have realised that it was an act which carried a significant risk of causing serious injury. It follows that the accused is guilty of manslaughter. 83 The Crown may also succeed in excluding lawful self defence by proving that if (contrary to the finding I have just made) the accused did have the belief that it was necessary for him to act as he did in self defence, nevertheless the grounds for his belief to that effect were not reasonable grounds. In determining whether the Crown has proved that beyond reasonable doubt, s 9 requires, as did the common law, that the determination be based upon the circumstances as the accused himself perceived them to be. I have adverted to some of the relevant circumstances earlier. They include that the accused's home was invaded in hours of darkness by two burly young men, one of whom was armed with a cricket bat and one of whom, at least in the accused's perception, during the confrontation attempted to arm himself with the stick or piece of board which the accused had in the house with him; that having invaded the premises, Ben Prior attempted to assault the accused with the cricket bat in a violent manner such that if the bat had connected the accused might well have suffered extremely serious injury even death; that the accused was very ill and had had little sleep, having been vomiting continually for several hours; that the accused was conscious of the presence in the house of two defenceless women, his seventy-four year old grandmother and his mentally disabled aunt; that the accused suffered from epilepsy by reason of a childhood head injury and may be taken to have been well aware of the potentially serious risks to himself should he suffer a further head injury; and that the accused was a person of limited intellectual capacity. 84 All of those circumstances are relevant in determining whether the grounds upon which the accused may have believed that it was necessary to act as he did in self defence were reasonable grounds. Clearly he had reasonable grounds to believe that it was necessary for him to act as he did in disarming Ben Prior and turning the cricket bat attack back upon him. Clearly he had reasonable grounds to believe that it was necessary for him to continue to attack Ben Prior until he saw that Prior was fleeing. It was reasonable for him to believe that he should continue to beat Prior (observing, of course, that I have already found that he did so without any intention of inflicting really serious injury) to the extent that Prior would be dissuaded from returning immediately to the attack. 85 I do not find anything in the evidence to support the proposition that the accused had any grounds, reasonable or otherwise, to believe that, Prior being in full flight down the path, it was necessary to "get him before he reached the gate" or to "stop him" as Prior attempted to flee. 86 I am satisfied that the Crown has proved beyond reasonable doubt that the accused did not have reasonable grounds to believe that it was necessary for him, in self defence, to beat Ben Prior with the cricket bat, not for the purpose of driving him away but for the purpose of stopping him from making good his escape. 87 It is a reasonable possibility that the accused's intention, when he determined to strike Prior further in order to "stop him" was that he wished to detain him in order that police might be called and might arrest him. I leave aside any point that might be made, that the accused has never said such a thing, reminding myself that there is no onus upon the accused to prove anything in this trial. If it be assumed, however, in favour of the accused that his purpose in endeavouring to stop Prior as he fled was to secure his arrest, I have to say that to assault him for that purpose was not to assault him in lawful self defence. 88 Being satisfied not only that the accused did not in fact believe that it was necessary for him to act as he did in lawful self defence but also that he had no reasonable grounds to entertain any such belief, I find on this ground also that the act of the accused which caused the death of the deceased was an unlawful act, as well as being, as I have already indicated, clearly dangerous within the meaning of the law. For this reason also the accused must be found guilty of manslaughter. 89 The verdict of the court is that the accused is not guilty of murder but is guilty of manslaughter. He is convicted accordingly. ***** Last Modified: 02/16/2001 DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.