New South Wales Court of Criminal Appeal CITATION: CRAWFORD, Neal Andrew v R [2008] NSWCCA 166 HEARING DATE(S): 14 July 2008 JUDGMENT DATE: 6 August 2008 JUDGMENT OF: McClellan CJ at CL at 1; Hidden J at 2; Fullerton J at 3 1. The appeal against conviction in respect of count 2 on the indictment be allowed. DECISION: 2. The conviction in respect of count 2 on the indictment be quashed. 3. There be a retrial on count 2 on the indictment. CATCHWORDS: CRIMINAL LAW - appeal against conviction - malicious wounding causing grievous bodily harm of a police officer in execution of duty - self-defence - response to lawful conduct under ss 418 and 422 of Crimes Act LEGISLATION CITED: Crimes Act 1900 CATEGORY: Principal judgment CASES CITED : R v Katarzynski [2002] NSWSC 613 PARTIES: Neal Andrew Crawford (App) The Crown (Resp) FILE NUMBER(S): CCA 2007/2926 COUNSEL: E Ozen (App) LMB Lamprati SC (Resp) SOLICITORS: Benjamin Goh (App) Director of Public Prosecutions (Resp) LOWER COURT JURISDICTION: District Court LOWER COURT FILE NUMBER(S): 06/11/0818 LOWER COURT JUDICIAL OFFICER: Hock DCJ LOWER COURT DATE OF DECISION: 27 April 2007 - 1 - IN THE COURT OF CRIMINAL APPEAL CCA 2007/2926 McCLELLAN CJ at CL HIDDEN J FULLERTON J 6 AUGUST 2008 NEAL ANDREW CRAWFORD v R Judgment 1 McCLELLAN CJ at CL: I agree with Fullerton J. 2 HIDDEN J: I agree with Fullerton J. 3 FULLERTON J: On 2 April 2007 Neil Andrew Crawford pleaded not guilty to an indictment containing six counts. Each offence was alleged to have been committed on 2 April 2006 consequent upon the police responding to a "000" call placed by a member of a household in Chippendale. The gravamen of the complaint to police was that the appellant was outside the house behaving in a verbally aggressive manner towards the occupants. 4 The first count on the indictment charged a malicious wounding of Constable Warren in the execution of duty causing him grievous bodily harm contrary to s 60(3)(b) of the Crimes Act 1900 and the second, an alternate count of assault occasioning actual bodily harm to the same named officer contrary to s 60(2) of the Crimes Act. The injury in each of counts 1 and 2 was multiple undisplaced fractures to the jaw. The third and fourth counts were also cast in the alternative and alleged an assault of a different police officer. The remaining counts alleged that the appellant resisted arrest and maliciously damaged a door. 5 On 19 April 2007 the jury returned a verdict of guilty in respect of the second count and verdicts of not guilty in respect of the balance of the charges on the indictment. 6 On 27 April 2007 the appellant was sentenced to a non-parole period of 18 months to commence on the date of sentence with the balance of term of 18 months to expire on 26 July 2010. The earliest date for release to parole was specified as 26 January 2009. 7 The appellant appeals against his conviction on the ground that the trial judge failed to direct the jury adequately in accordance with the applicable law on the issue of self-defence as provided for in Part 11 Division 3 of the Crimes Act in circumstances where the alleged victim of the assault was a police officer. He also seeks leave to appeal against sentence on the ground that the sentencing judge failed to properly take into account his mental state and, that having regard to all the circumstances of the case, the sentence imposed was manifestly excessive. Since I am of the view that the appeal against conviction should be allowed and a new trial ordered the question of leave to appeal against sentence does not arise. Relevant facts 8 For the purposes of the appeal it is not necessary to recount the facts in any detail since the single ground of appeal is directed to the adequacy of her Honour's direction on the issue of self-defence in the context of the single count on the indictment in respect of which the jury returned a verdict of guilty. 9 It was common ground on the appeal that the offence was committed against the background of breakdown of the appellant's relationship with Ms Charles, a relationship that predated the offence by about a year. It was also common ground that the relationship had only very recently terminated when Ms Charles left the residence she was sharing with the appellant at his request and took up temporary residence at the house in Chippendale. It would also appear that the appellant and Ms Charles had been in telephone contact on the morning of 2 April 2006 and that his reason for going to Chippendale was so they could have a face-to-face discussion about the relationship. Despite an arrangement to that end, the appellant's former girlfriend did not come out of the house to meet with him on his arrival. He waited for about half an hour before he commenced calling out for her and banging on the front door. It was in those circumstances that the call was placed to the police. 10 Constable Warren and a probationary constable attended the scene in response to that call. It would appear that they had some difficulty finding the house and that it was the appellant who inquired whether they were there because of his behaviour. It was common ground that at this time he behaved cooperatively and calmly and led the police to the front door of the house. From that point in time however the account of the police and the appellant diverged dramatically. Although there were a number of witness who each gave evidence as to what they saw or heard occur at the doorway of the premises, by far the most comprehensive version of those events was in the evidence of Constable Warren and the appellant. 11 According to Constable Warren, the appellant's demeanour changed dramatically when the door was opened and a man and a woman were visible inside. He was said to have become aggressive, issuing several insults directed at the female and generally conducting himself in a threatening manner. Constable Warren told the applicant to settle down so as to allow police to gain an appreciation of what was in issue. The police officer said that the appellant then tried to make his way past the people and into the house and that he pushed the appellant in the chest with his left arm to bar his approach. He said he again sought to subdue the appellant by encouraging him to allow the police to sort out the source of the conflict. Constable Warren said the appellant did not desist and that it was necessary for him to push him back a second time. At this time he placed a radio call for back-up. He said the appellant was becoming increasingly aggressive and that he stepped in front of him and held out his left arm, telling the appellant to stay away. On a further attempt to make his way past police and into the house, Constable Warren threatened to spray the appellant with OC spray. When this threat did not serve to subdue the appellant, Constable Warren formed the view that his behaviour was hindering the investigation, that he was in breach of the peace and, in circumstances where he considered the appellant might assault someone, he grabbed him by the right arm intending to arrest him. Before he was able to issue the words of arrest he said he felt a heavy blow to the right side of his jaw and what he described as a loud bang. He said he stepped back and the appellant ran off. The appellant was apprehended a short distance later with the assistance of other police. 12 The appellant gave a different account of the confrontation at the doorway in his evidence. Save for the fact that he makes no reference to being pushed against a wall and hitting his head, his evidence is said to be generally consistent with the account he gave to the police in a recorded interview after his arrest. 13 He agreed that he was repeatedly calling out the name of his former girlfriend and that Constable Warren told him to be quiet and to allow the police to deal with the situation. The appellant also agreed that when he continued to call out his girlfriend's name Constable Warren turned around and pushed him in the chest, while issuing the direction that he stay back and be quiet. He says the push was forceful into his chest, knocking him off balance. The appellant responded by saying "there is no need for that" and for the police officer to "keep his hands to himself". 14 The appellant said he continued to call out whereupon Constable Warren grabbed him by the shirt and proceeded to push or ram him against a wall. The appellant described his head hitting the wall under the force of the push and that the police officer was hitting him in the chest and on the chin at the same time. He said that he was struggling to wrest himself from the police officer's grip and yelling loudly at the police officer to keep his hands off him. 15 The appellant said he first struck at the officer's arms in order to try and break free from his grip and that he used his left arm which was clenched in a fist. He said that this had no effect so he then had a "second go at it" and that strike caused the police officer to let go. He said: "I thought we were fighting. I thought for no reason we were in a fight situation. I was being attacked." He said that his aggression escalated when his head hit the wall. He went on to say: "It was going from where we were talking fine just a few minuted ago and the next thing I'm getting smashed against the wall by this guy". 16 The appellant says he did not see where the second blow struck the police officer but that he did not intend to strike at his head or to deliver the blow in any particular way. He said his intention was the same as that which accompanied the first swing, namely to break the officer's grip because he was being "pinned and pushed and jabbed" against the wall. He said: "I didn't even feel like it was a police officer who was attacking me it was just it wasn't right it didn't seem right". The relevant facts in the context of the issues at trial 17 The conflict between the evidence of the police officer and the appellant raised squarely for the jury's consideration whether an essential element in count 1 on the indictment (an element common to count 2 on the indictment), namely whether Constable Warren was acting in the execution of his duty at the time that he sustained the multiple fracture to his jaw, could be established to the criminal standard. While her Honour indicated that it was not relevantly in dispute that Constable Warren was a serving police officer and that he was acting in the execution of his duty in responding to the "000" call and in his initial dealing with the appellant, the jury were clearly directed that were they satisfied that the appellant's version of what occurred at the door was reasonably possible, it would be open to them to find that the police officer exceeded the scope or limit of his duty and, as a consequence, that he would have ceased to be acting in the execution of his duty. In these circumstances the jury were directed that the appellant was entitled to be acquitted. 18 It was the Crown case that the appellant's account of the confrontation at the door was untrue and that he simply lost his temper and violently struck the police officer who was at all times acting within the proper limits of his duty as he perceived them at the time. It was the appellant's case that although the police officer was initially endeavouring to quell or calm the situation, he used excessive physical force thereafter in dealing with him, either as a result of impatience, intemperance or a misapprehension as to the appellant's actual intentions. Having regard to the jury verdict, the resolution of that question must have been in the Crown's favour. 19 There was however an additional basis upon which the appellant sought to persuade the jury that he was entitled to be acquitted of counts 1 and 2 (irrespective of whether the harm that resulted was established to the jury's satisfaction to be grievous bodily harm or actual bodily harm and irrespective of the jury finding that the police officer acted lawfully) namely that he believed that his conduct in assaulting the police officer was necessary in order to defend himself and that his response was reasonable in the circumstances as he perceived them to be at the time and, that if the Crown could not exclude this as a reasonable possibility, he should be acquitted. 20 The issue of self-defence was squarely raised by the appellant in the evidence that he gave at trial as reflected in the summary of his evidence above. Given that the primary basis upon which his case was put to the jury was that Constable Warren was acting outside of the scope of his duty and, that if the jury regarded that as a reasonable possibility he was entitled to be acquitted without the jury considering self-defence, it may have been accurate for her Honour to direct the jury that it was "no part or no large part of the accused's case that he was acting in self-defence". Nevertheless the jury were entitled to clear directions as to how they should approach their task if they were satisfied that the police officer acted aggressively, albeit within the scope of his duty, but not satisfied that he acted in the extreme way that the appellant contended for. In my view, no direction or no sufficiently clear directions were given to ensure the jury appreciated the legal framework in which they should approach the issue of self-defence if it arose that way. In fact, where in the summing up her Honour said: "…It is no part of the Crown case that that accused was acting in self-defence because you would accept Constable Warren's evidence that he was acting in the execution of his duty…" and later, when dealing with the reasonableness of the appellant's response to the police officer's actions, she said: "…your fact finding in respect of this element will of course be influenced by your earlier findings. To be considering whether the Crown has proved beyond reasonable doubt that the blow was struck with lawful excuse, means that you have already found that Constable Warren was acting in the execution of his duty…" served in my view to dilute an essential feature of the direction on self-defence in this case. Relevant law 21 Section 422 of the Crimes Act makes it patent that the offence provided for in section 418 of the Act is not excluded where the response by way of self-defence is to lawful conduct: "418 Self-defence—when available (1) A person is not criminally responsible for an offence if the person carries out the conduct constituting the offence in self-defence. (2) A person carries out conduct in self-defence if and only if the person believes the conduct is necessary: (a) to defend himself or herself or another person, or (b) to prevent or terminate the unlawful deprivation of his or her liberty or the liberty of another person, or (c) to protect property from unlawful taking, destruction, damage or interference, or (d) to prevent criminal trespass to any land or premises or to remove a person committing any such criminal trespass' and the conduct is a reasonable response in the circumstances as he or she perceives them." "422 Self-defence—response to lawful conduct This Division is not excluded merely because: (a) the conduct to which the person responds is lawful, or (b) the other person carrying out the conduct to which the person responds is not criminally responsible for it." 22 In R v Katarzynski [2002] NSWSC 613, Howie J considered the effect of Part 11 Div 3 of the Crimes Act on the issue of self-defence at common law. His Honour emphasised that s 418(2) is concerned not with the state of mind of a reasonable person but with the reasonableness of the conduct of the accused having regard to his or her state of mind. As applied to the facts of this case, it was sufficient if the appellant satisfied the jury that there was a reasonable possibility that he believed his conduct was necessary in order to defend himself, and a reasonable possibility that what he did was a reasonable response to the circumstances as he perceived them. 23 Although Howie J did not have occasion to consider the operation of s 422, in my view having regard to the express terms of the section, the appellant was also entitled to have the jury directed that they could consider those questions even if they were otherwise satisfied that the police officer was acting lawfully (or was not otherwise criminally responsible for misconducting himself relative to the appellant), whatever particular factual findings they made about the degree and nature of force used. 24 Her Honour's directions on the issue of self-defence were strictly in accordance with s 418(2) and were otherwise without error save for the fact that she refused a request by trial counsel that the jury be directed that the issue of self-defence fell to be resolved by them even if they were satisfied that the police officer's behaviour was both reasonable and lawful as provided for in s 422. Trial counsel urged her Honour to augment her directions to the jury so as to draw that matter squarely to their attention in circumstances where, as he submitted, the dispute on the evidence may have left room for the accused's genuine belief that it was reasonable to defend himself to be afforded weight. For reasons that are both unpersuasive and ultimately misguided, the Crown opposed her Honour directing the jury in the way defence counsel proposed. 25 In my opinion her Honour was in error in refusing to direct the jury in accordance with s 422 of the Crimes Act, given the issues that presented for the jury's consideration in the particular facts of this case. 26 I am also of the view that this is not a case where it is proper to apply the proviso, since the questions posed by the application of s 418 and s 422 are discretely jury questions and in those circumstances this Court could not be otherwise satisfied of the guilt beyond reasonable doubt such as to be satisfied that no substantial miscarriage of justice has resulted. Orders 27 The orders I propose are: 1. The appeal against conviction in respect of count 2 on the indictment be allowed. 2. The conviction in respect of count 2 on the indictment be quashed. 3. There be a retrial on count 2 on the indictment. ********** 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.