By Andrew Yuile -
Key decisions
- Graham v The Queen [2016] HCA 27
- Crown Melbourne Limited v Cosmopolitan Hotel (Vic) Pty Ltd [2016] HCA 26
Criminal Law
Jury directions – attempted murder – self defence – consent
In Graham v The Queen [2016] HCA 27 (20 July 2016), the High Court held to be correct the trial judge’s directions to the jury as to an alleged ‘consensual confrontation’ and possible honest and reasonable but mistaken belief as to fact.
The appellant had been convicted of attempted murder and unlawful wounding with intent to maim. The offence arose out of a confrontation in a shopping centre between the appellant and another man (Mr Teamo). Both men were members of rival motorcycle clubs. Teamo drew a knife and the appellant drew a gun, shooting Teamo and an innocent bystander.
At trial, the appellant alleged self defence. A necessary element of self defence is that the accused responded to an assault, defined as an attempt or threat of force without consent. In his closing, the prosecutor suggested that the confrontation was ‘consensual’ and thus self defence could not be made out, as any threat of force from Teamo was made with consent and thus not an assault. Counsel for the appellant did not directly address the consent point in closing. The trial judge made only passing reference to the prosecutor’s submission in the charge, and the appellant’s counsel did not seek a redirection.
On appeal, the appellant argued that the judge’s direction failed to deal properly with the consent point and as to mistake of fact: the appellant had argued that even if Teamo did not have an intention to assault the appellant, the appellant was honestly and reasonably mistaken about that fact. The High Court held that it was unclear how the confrontation could have been treated as consensual by any reasonable jury. Consent was not a real issue in the case. The judge’s direction on the point (and on other aspects of self defence) was adequate. There was also no need for a direction on honest and reasonable mistake: based on the case at trial, there was no material which engaged the possibility of the defence. French CJ, Kiefel and Bell JJ jointly; Gordon J concurring; Nettle J dissenting. Appeal from the Court of Appeal (Qld) dismissed.
