Graham v The Queen [2016] HCATrans 137 (14 June 2016)

Last Updated: 14 June 2016

[2016] HCATrans 137

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
Brisbane No B14 of 2016

B e t w e e n -

MARK JAMES GRAHAM

Appellant

and

THE QUEEN

Respondent

FRENCH CJ
KIEFEL J
BELL J
NETTLE J
GORDON J

TRANSCRIPT OF PROCEEDINGS

AT CANBERRA ON TUESDAY, 14 JUNE 2016, AT 2.15 PM

Copyright in the High Court of Australia

MR P.J. DAVIS, QC: If it pleases the Court, I appear with MR J.R. JONES, for the appellant. (instructed by Grigor Lawyers)

MR P.J. CALLAGHAN, SC: If it please the Court, with my learned friend, MS V.A. LOURY, I appear for the respondent. (instructed by Director of Public Prosecutions (Qld))

FRENCH CJ: Yes, Mr Davis.

MR DAVIS: Your Honours, the outline of oral argument in compliance with rule 44.08.1 was delivered to the Court today.

FRENCH CJ: I think there is a summons for leave to file a notice of contention out of time. Do you have any objection to that?

MR DAVIS: Yes, your Honour. We oppose it, but we oppose it on the very limited grounds that are outlined in the outline of oral argument.

FRENCH CJ: We might just hear from that so we know what we are dealing with. Yes, Mr Callaghan.

MR CALLAGHAN: Your Honour, we have addressed that in our outline of oral submissions in paragraphs 17 and 18. On our reading, the effect of the decision of this Court in Darkan v The Queen was that no such notice was required, and our reading of the rule is that no such notice is required, but if we are wrong about that, then we seek leave to file it.

FRENCH CJ: You will have leave.

MR CALLAGHAN: Thank you, your Honour.

FRENCH CJ: Yes, Mr Davis.

MR DAVIS: Thank you, your Honour. Your Honours, the only real issue of the trial, apart from whether the appellant had the intention to kill Mr Teamo, in real terms is whether the Crown had proved that the firing of the two shots were unlawful, and they would be not unlawful if they were done in self-defence. The Crown, therefore, had to disprove self-defence beyond reasonable doubt. The relevant provisions of the Code are sections 271(1), 271(2), 272 and section 245 and we also rely in a limited way on section 24, but will return to section 24 perhaps a little later.

BELL J: Was section 24 engaged at the trial?

MR DAVIS: No, your Honour.

BELL J: Mr Edwardson - is that Mr Edwardson of senior counsel?

MR DAVIS: Yes. We realise that the fact that section 24 was not engaged or was not relied upon at the trial causes issues. We appreciate that. However, in our submission, section 24 is rather linked to the broader issue which is how self-defence was left in the case and we might, if convenient, come back to that a little later.

Section 271(1) and section 271(2) both provide a defence of self-defence where there is an unprovoked assault. Now, the distinction between section 271(1) and 271(2) is in relation to the force that can be used in self-defence. So, under section 271(1) the force that can be used in self-defence is force which is:

not intended, and is not such as is likely, to cause death or grievous bodily harm.

Under section 271(2) “lethal force”, if I can use that term, can be used where the person defending themselves believes:

on reasonable grounds, that the person can not otherwise preserve the person defended from death or grievous bodily harm –

Section 272 concerns self-defence against an assault which has been provoked. Now, the Court should, in our respectful submission, note that under the Code provisions section 271 and 272 there is one common element and that is that self-defence may only be raised against an assault, and that raises section 245 of the Queensland Code which defines “assault”. Your Honours will see that “assault” is defined as including – section 245:

A person who strikes, touches, or moves, or otherwise applies force of any kind to, the person of another, either directly or indirectly, without the other person’s consent –

and that is critical here:

or with the other person’s if the consent is obtained by fraud, or who by any bodily act or gesture attempts or threatens to apply force of any kind to the person of another without the other person’s consent –

and this is important, in our respectful submission:

under such circumstances that the person making the attempt or threat has actually or apparently a present ability to effect the person’s purpose, is said to assault that other person –

So, importantly, here an assault can be constituted not just by an application of force but by a threatened application of force. In relation to the law of self-defence it will always be the case that defence is raised to a threatened application of force, not an application of force, and that must be so because if one has been assaulted it is a little bit too late to make a defence to that assault.

FRENCH CJ: You mean if there has been a physical application?

MR DAVIS: I am sorry, your Honour; to put it, as I should have put it originally, if there has been assault, constituted by a physical application of force, then it is obviously too late then to make defence to that physical application of force. So it is perhaps the second blow, the one that is coming, that defence is made to.

The reading of section 245 with sections 271 and 272 lead to the conclusion then that sections 271 and 272 authorise what the common law recognises as a pre-emptive strike. We have cited some cases in our outline, our written submissions, about that and we do not intend to take the Court to them. The threatened application of force here on the appellant’s case was the brandishing of the knife by the man Teamo at the appellant, immediately before the appellant shot at him. The Crown Prosecutor then suggested to the jury that there was consent to any assault.

FRENCH CJ: He used the term “consensual confrontation”, is that right?

MR DAVIS: Yes, your Honour, and that is the nub of our complaint because section 245 identifies assault as an application of force or a threatened application of force without consent. Then sections 271 and 272 give the defence to “the assault”. So by introducing the notion of a consensual confrontation where there had clearly been aggressive dealings and confrontations between the parties in the minutes leading up to the assault, in our submission, sections 271 and 272 have not properly been left.

FRENCH CJ: Your complaint is, as I understand it, that the trial judge, who referred to that term in summarising the prosecutor’s argument, did not unpack it by identifying the specific action constituting the assault on your case and the question of consent relevant to that act.

MR DAVIS: Yes, your Honour. The summing-up really proceeded in this way, that his Honour dealt with section 245, dealt with sections 271 and 272 and explained the operation of those sections to the jury, but the question of consent as something which would negative the assault was raised for the first time by the prosecutor in his address.

Then the judge did not deal with that, but what the judge instead did was simply repeat to the jury, as trial judges do, summarise to the jury the arguments that had been put by either party which, of course, included the prosecutor’s argument that there had been consent to the assault, the assault being a confrontation.

KIEFEL J: Mr Davis, do I take it from your outline that you do not suggest that, absent the Crown Prosecutor’s address on this topic, that it would have been incumbent upon the trial judge to make a direction of this kind? It is only because the Crown Prosecutor raised it?

MR DAVIS: In the context of this case, yes, your Honour. It is because it has been raised as an issue – and we submit that on the well-established authorities from this Court, once it was raised as an issue, the judge really had to deal with it because it became an issue in the trial, so his Honour then had to deal with it.

KIEFEL J: Or the defence counsel had to bring it to the attention of the trial judge.

MR DAVIS: Yes.

KIEFEL J: That is the area that we are in, is it not?

MR DAVIS: Yes, your Honour.

BELL J: Defence counsel made no reference to consent in his address, which focused entirely on Mr Teamo as the aggressor, on taking the jury frame by frame through the footage to suggest that the Crown had not excluded the reasonable possibility that Mr Teamo produced the flick-knife first and, in that context, that the incident involved a split second response to an exposed flic-knife - - -

MR DAVIS: Yes.

BELL J: - - - and the instinct for survival that exposure to a threat of that character produces.

MR DAVIS: Yes.

BELL J: Now, when you say it was incumbent on the judge to deal with consent, the issue having been raised – this is in a context in which senior counsel for the appellant made no such request, made no reference to this issue in the course of his address, and had been supplied with a draft of the summing-up and invited to make submissions concerning it.

MR DAVIS: Yes, and the draft of the summing-up did not, of course, contain any reference to consent, because the draft summing-up was delivered - - -

BELL J: Was prepared before addresses.

MR DAVIS: Yes.

BELL J: But, nonetheless, in light of the address, for example, made by the prosecutor, senior counsel for the appellant sought a direction concerning the exercise of the right of silence because he discerned the possibility, inadvertently, the jury might have been encouraged to reason impermissibly. No application was made relating to the consensual fight submission?

MR DAVIS: No, your Honour is right about that, with the greatest respect. That then raises this issue; the question then is whether it is then a miscarriage of justice for the judge not to have dealt with it. There are really two issues there, in our respectful submission. The first is it is not just a case where his Honour did not deal with it; his Honour in fact dealt with it, in our respectful submission, wrongly. His Honour not only did not – and if I can be bold enough to use the Chief Justice’s term – unpack the issue, he actually exacerbated it because he put to the jury “There is Mr Byrne’s – the Crown Prosecutor’s – submission; you can look at this as a consensual confrontation and if you look at it as a consensual confrontation, then you can follow his submission and discount the notion of self-defence”.

While on this issue, and perhaps continuing – a question that arises on the appeal is whether there was any forensic advantage in Mr Edwardson not taking issue in relation to the question of consent. In our submission, whether it was a mistake or whatever it was, there is no forensic reason why he would not do that; it just seems to have been overlooked.

BELL J: Would one forensic reason be that senior counsel did not discern an advantage in the trial judge directing the jury in a more detailed way about the facts that, not infrequently, can be thought by experienced counsel appearing for an accused to be a matter better left with the last words on the facts being the accused’s submissions rather than the judge’s more detailed analysis of the evidence.

MR DAVIS: Yes, your Honour, however, the only defence that the appellant had, the only chance of acquittal that the appellant had was self-defence. There was no doubt that the shots were fired. There was no doubt that the shots struck Mr Teamo and the poor lady who was shopping and, in our submission, there was no evidence, none at all, that the appellant consented to the production of the knife.

FRENCH CJ: Is that not the kind of judgment that might well have been made that there is no way this jury – I am just imagining the thinking process that defence counsel might adopt – there is no way this jury is going to find that the appellant consented to the threatened application of force with a knife from Mr Teamo. What has been said by the prosecutor and repeated by the judge in summarising the process is a pretty weak, rather diffuse statement about consent and I do not want any more focus on it because it gives the jury another road to convict.

MR DAVIS: But, in our submission, it would not, it would actually remove a path to conviction because the answer to it is a direction. “Ladies and gentlemen, it has been put to you that Mister – the appellant, may have consented. It has been put to you that you may be satisfied beyond reasonable doubt that he has consented. There is no evidence to that effect, put that out of your mind”. Now, there does not, in our respectful submission, seem to be any downside to that approach from the point of view of the appellant.

KIEFEL J: Except that it is put against you that that would have directed the jury’s attention to questions of his state of mind. The “what was he thinking” - which was - - -

MR DAVIS: It was a live issue anyway as to what he was thinking. The Crown Prosecutor in a very detailed submission in relation to that topic, your Honour, went through frame by frame and explained how he must have had an intent to kill, how he must have been acting not in self-defence but in some sort of – some form of retaliation. So the jury’s mind were very much focused on the state of mind of the appellant and, in our submission, not taking the challenge had the huge danger of simply taking sections 271 and 272 completely out of play and that was his only defence.

GORDON J: Was not one of the live issues, though, whether or not the gun was produced first, or the knife?

MR DAVIS: Yes, your Honour.

GORDON J: So the position is, is it not, that this argument assumes that the knife came first?

MR DAVIS: Assumes that the jury may have taken the view that the knife came first, or the knife was produced first. But, your Honour, in our submission - - -

GORDON J: May be another reason why counsel did not want to emphasise the point.

MR DAVIS: Well, whether the knife was produced first before the gun or after the gun was produced, the question still arose as to the consent to the assault and it had been put on the basis of section 272 as well. So under section 272, if the knife was produced after the gun, there is still a defence under 272 provided there is an assault, and the state of mind of the appellant was very much in issue.

BELL J: If one goes to the prosecutor’s address at appeal book 315, line 33:

It started as a consensual confrontation. The production of the knife if it was not part of that consensual confrontation did not, in the circumstances, provide provocation for a man to lose his self control.

Mr Davis, one can pick apart and analyse line by line the prosecutor’s address, but when one sees that it started as a consensual confrontation, if the production of the knife was not part of that, the prosecutor does not seem to have been hot and strong on the notion that confronting a person with a flick knife that is open does not present a threat and Mr Edwardson did not for a moment consider that was it.

If one reads the entirety of his address, it was directed to persuading the jury that it was reasonably possible that Teamo had produced the flick knife first and that accordingly the response in the split-second that was available to the appellant was to act as he did. Consent to the use of the flick knife was not, in Mr Edwardson’s analysis of the case, and he was running it, an issue.

MR DAVIS: I appreciate that; yes, your Honour. That is all, of course, before the summing-up.

BELL J: But the summing-up was, as a matter of law, impeccable. Your complaint is that the summing-up did not deal with an issue wrongly raised in the prosecutor’s address.

MR DAVIS: Yes.

BELL J: But that issue was not perceived to be such by defence counsel, who followed the prosecutor and who did not bother to deal with it, nor did he make any application to the judge. It is a steep hill to climb, is it not, to establish miscarriage?

MR DAVIS: Well, the passages your Honour has gone to, of course, is not the only passage - - -

BELL J: True.

MR DAVIS: - - - and the Crown Prosecutor on a couple of occasions, a little later on, made very, very broad statements like “This is all a consensual confrontation.” At one stage he said that both these parties were prepared basically to consent to whatever threats there were. So that is the way it was put by the prosecutor to the jury.

Ultimately, little probably turns on what either counsel say because, in the end, it is the judge’s directions that are made, with obviously the authority of the judge, which count. His Honour simply left it on the basis of a consensual confrontation. The relevant passage - - -

BELL J: It is at 358, line 38.

MR DAVIS: Yes, your Honour:

he will say to you – he submitted to you that this was not a case in which any of the three, I’ll call them again, arms of self-defence apply because this was not, in his view, a case in which there was anything other than a consensual confrontation between the two actors, not a case in which one provoked or one assaulted and the other provoked, any of those things -

And then a little bit further down, at about line 37:

A consensual confrontation, Mr Byrne submitted to you, is not an unlawful assault so a self-defence doesn’t apply.

GORDON J: You cannot read that, can you, without reading the lines that precede it where he identifies for the jury the very issue I was discussing with you earlier, in effect, it is a matter for you to work out what happened and in what order.

MR DAVIS: But in our submission that makes it worse.

GORDON J: Why?

MR DAVIS:

He also submitted to you that you would look carefully at the video evidence and that you might conclude that the defendant had his gun out before he could see Mr Teamo’s knife -

et cetera. Well, they might not. What the judge is there inviting is - - -

GORDON J: He keeps going on:

They’re arguments. They’re not evidence. They’re matters that you will take into account when you consider your verdict.

MR DAVIS: Yes, your Honour, but if that passage is read completely:

He also submitted to you that you would look carefully at the video evidence and that you might conclude that the defendant had his gun out before he could see Mr Teamo’s knife -

That also leaves open the suggestion that they might not accept that and then:

A consensual confrontation . . . is not an unlawful assault –

That has to be looked at, in our submission, in light of what is said at lines 20 to 30 on the same page. We accept, of course, that a party is bound by his counsel’s actions and decisions but the cases also suggest that where there is a miscarriage of justice the conviction must be set aside. In our submission, the judge’s summing-up in light of the prosecutor’s submissions opened up a path to conviction which the jury could take without having to consider the defence that was available and, in our submission, a miscarriage therefore eventuated.

We have dealt in detail with the various arguments that have been raised against us in our reply submissions. The next issue then is the application of the - perhaps if I can turn to the application of the proviso. The proviso has, of course, been considered by this Court on many occasions now.

I am sorry, before going to the proviso I should go to section 24 and I can deal with that fairly briefly. The relationship between section 24 and sections 271 and 272 has been somewhat problematic and that is because section 24 has an objective and subjective element, which is an honest and reasonable but mistaken belief. Sections 271 and 272 also have that type of component.

The matter was considered by this Court in Marwey [1977] HCA 68; (1977) 138 CLR 630. Could the Court please take it up at page 637 - I am sorry, perhaps at 636. Now, here, the Chief Justice is referring to a judgment of Justice Gibbs, as his Honour then was, a member of the Supreme Court of Queensland. There is a passage which is cited, your Honours will see, commencing “‘There are only two remarks as to the effect”.

Justice Gibbs, as his Honour then was, about a third of the way down that passage refers to an interaction between section 24 and section 271 as it relates to the force that was necessary to raise in self-defence. If your Honours go over the page then, the Chief Justice then in the paragraph commencing “Except for the reference to s. 24” adopts what Justice Gibbs said but with that qualification.

So the effect of what is said there is that when a jury is being directed in relation to the reasonableness of force used, one does not resort to section 24. However, resort may be made to the section if the reasonable grounds of the necessary belief included the accused’s erroneous understanding of some fact which, had it been as the accused understood, would have supported the existence of reasonable ground.

So it is not used according to what the Chief Justice said in Marwey. It is not used in assessing the reasonableness of the force used except in relation to perhaps underlying facts. Now, that is probably dicta but it has become the law of Queensland and we have cited two cases, one of – which we will not take the Court to but we will just perhaps mention them: R v Lawrie [1986] Qd R 502 and R v Allwood [1997] QCA 257.

BELL J: What was the evidential foundation here for engaging section 24?

MR DAVIS: The confrontation and that is what we submit is the relevance of the confrontation. So there is – the parties come together in what is called the Sony shop. There is this eyeballing and behaviour which the prosecutor refers to as “puffing”, and then the parties go outside, there is yelling at each other and aggressive behaviour and then they come together.

Now, in our submission, if it was going to be suggested that the production of the knife was not in fact a threatened application of force, we would submit that section 24 is engaged, and the confrontation which is referred to by both the judge and by the prosecutor is relevant to that issue, not the question of consent to an assault. I accept, of course, that section 24 was not raised at the trial. We submit that it is something which arises from the issues concerning the assault and how that was dealt with.

If I can then turn to the proviso – the proviso, as I have submitted earlier, has been the subject of consideration by this Court on numerous occasions. It is 668E(1A). Can we take the Court, please, to Weiss [2005] HCA 81; (2005) 224 CLR 300, a decision of this Court. There is an extensive analysis by Chief Justice Gleeson and others in the joint judgment of the history of the proviso. There are then warnings in the judgment not to put glosses upon the statutory provision. Then, the relevant statement of principle is at paragraph 41, where this is said:

That task –

That is the application of the proviso:

is to be undertaken in the same way an appellate court decides whether the verdict of the jury should be set aside on the ground that it is unreasonable, or cannot be supported having regard to the evidence. The appellate court must make its own independent assessment of the evidence and determine whether, making due allowance for the “natural limitations” that exist in the case of an appellate court proceeding wholly or substantially on the record, the accused was proved beyond reasonable doubt to be guilty of the offence –

In our submission, what is shown in the CCTV footage is a split-second reaction to the production of a knife, there being judicial warnings as to the dangers of assessing that sort of reaction in the cold hard light of day away from the danger itself.

The argument against us in relation to the proviso is that your Honours can simply look at the CCTV footage and determine that the action taken in self-defence was unreasonable. In our submission, that is to oversimplify the situation. There was a good deal of evidence as to the lead up to what occurred. There was clearly aggression by both parties to the other. There is conflicting evidence as to the time between the two shots and your Honours will see when viewing the CCTV footage that one can see a lot but hear nothing because there is no sound.

It is a little difficult to work out exactly when the two shots – or when the second shot followed the first shot. There is varying evidence about that. At appeal book 44, lines 35 to 50, one of the witnesses, Mr Finch, thought that it was about between “15 to 20 seconds between” the two shots. That cannot possibly be right because when one looks at the CCTV footage the relevant incident occurs over a five-second period, so that must be wrong. Then at page 281, this is the other end of the scale in relation to the witnesses who gave evidence about this, between lines 10 and 40, the two shots were one directly after the other.

NETTLE J: It is not known as to which bullet hit the victim?

MR DAVIS: Your Honour, that was a matter of conjecture – controversy at the trial and we would submit that is a jury question. It certainly is not - - -

NETTLE J: Not clearly established.

MR DAVIS: Not clearly established, no, your Honour.

BELL J: It is always difficult to tell from photographic images, but was there any evidence about the distance between the two men at the point the gun was fired?

MR DAVIS: Yes, there is some ballistics evidence which suggests that it was quite close and the footage is taken from different angles and exhibit 3 is the one your Honour might look at - - -

BELL J: Yes.

MR DAVIS: - - - and there are different angles and they are close. There is no doubt that Teamo is retreating. We do not cavil with that, it is shown clearly on the footage. But the time between the gun being produced and the appellant turning away seems to be about five seconds, and then your Honour will see – at the end of that passage your Honour will see the appellant’s arm raised and it is unclear whether that is the second shot or the second shot had occurred earlier and he was simply seeing Mr Teamo off.

Your Honours, we rely upon our written submissions. Unless there are any particular questions for us, they are our submissions.

FRENCH CJ: Thank you, Mr Davis. Yes, Mr Callaghan.

MR CALLAGHAN: Because the position adopted by senior counsel in the trial court is of such importance we would, at the outset, take issue respectfully with one submission that has been made on behalf of the appellant, at least to the extent of suggesting that it has to be qualified because it was submitted that the appellant’s only chance of an acquittal was self-defence. That was his only chance of a complete acquittal.

But counsel had another task available to him, which was to secure an acquittal on the charge of attempted murder. He could have done that by raising a reasonable doubt about the appellant’s intent, which he attempted to do at appeal book 330. He advanced some submissions to that effect. But that, of course, does involve confining examination of the appellant’s state of mind to that very narrow period of time in which the shots were fired and is not helped by a wider inquiry as to his state of mind, as depicted on the video over a longer period. So we advance that at the outset as an overarching consideration because it really was important to acknowledge that was part of counsel’s challenge in this case as well.

NETTLE J: But would it have detracted from his case on attempt murder to have gone to the intent earlier on in the confrontation and, if so, how?

MR CALLAGHAN: Yes, because if there was a level of preparedness to use the weapon, as can be seen on, I think it is exhibit 31 – and I will get you the time in a moment – the appellant is seen to be inspecting his bag, the bag in which the gun was contained, this is in advance of the actual confrontation itself. This is just after a double take, if you like, outside what is described as the Sony shop, the appellant can be seen, depicted on the video, examining the place in which the weapon must have been located.

So anything to suggest a preparedness to use the weapon in advance of the spontaneous reaction was going to undermine counsel’s submissions about the fact that this was a momentary thing that occurred during such a short space of time that the requisite intent could not have been formed. That was the submission that was there to be made. But the fact that this man was walking through a shopping centre with a loaded firearm - - -

NETTLE J: I am sorry – I understand why the Crown was trying to represent it all as one confrontational episode of which the drawing of the knife and so forth was just a part, for the reasons that you have just outlined. What I do not understand is why it would have been in the interests of the accused not to try to separate out from these other events the drawing of the knife, and concentrate on that.

MR CALLAGHAN: That is a separate issue, and if - - -

NETTLE J: Certainly, it is, but you emphasise the point no doubt because it is important that there was not just the complete acquittal in issue, there was also the acquittal on the count of attempt murder.

MR CALLAGHAN: Yes.

NETTLE J: I do not see why the two are inconsistent in the sense that both are concerned with the very instant at which the gun is fired.

MR CALLAGHAN: They are, but it is a different story – if, hypothetically, the confrontation had only occurred in those seconds prior to the production of the gun, then the argument that the requisite intent could not have been formed because it all happened so quickly was a stronger one than the same argument when considered against the background of building tension between the two of them. There is more scope for the intention to form the longer the two are in confrontation.

NETTLE J: Certainly.

MR CALLAGHAN: All I am saying is that may be a reason why counsel did not seek for the whole issue of the confrontation and the issue of consent to be raked over in the summing-up.

NETTLE J: Yes, I see. Thank you.

MR CALLAGHAN: That is the effect of the submission. But there were other reasons why he may not have done that as well. Can we respectfully ask that, whilst we allow as always that things may have been done differently, we would respectfully invite the Court to test the merit of the appellant’s argument by examining the assertions about what should have been done. The first and principal of those is that his Honour should have identified the assault, for the purposes of self-defence, as being the production of the knife.

Can we just take you to some parts of the record that are relevant to that, starting at 348, line 25? This is where the topic of self-defence was introduced and, uncontroversially, his Honour identified the fact that:

there must [first] have been an unlawful assault –

If we go down to line 40, he suggested that the jury might think it was surprising that we were speaking about an assault in circumstances where there had not been physical contact, but in the last line he emphasises the relevant bit, that it can be a threat, and so it was clear to the jury that the “relevant bit” of the definition was a threat. At line 15 on that page –

if there was such an assault –

meaning such a threat, whether it was provoked, and then if you go down to just above line 45 –

there is nothing in the evidence indicating that Mr Graham provoked Mr Teamo to threaten him with a knife.

Whilst it might not have been explicitly stated in terms, the assault for these purposes is the production of the knife; that is the irresistible inference from those passages.

If you then look to line 48, again, there is a reference to the assault and it must be that same production of the knife that is being discussed. If I can take you then to page 351, line 10, the first matter again is whether Mr Graham was unlawfully assaulted. They are reminded that it can be a gesture and you see at line 15:

in that context, you’ll consider the evidence on the video of Mr Teamo and what is said to be a knife in his hand.

Repeated reference to the knife at line 21:

If, for example, you find that Mr Teamo produced a knife in a way that threatened –

Again, at line 24, there is a reference to “such an assault”. So, again, there cannot have been, in our respectful submission, any mistake in anyone’s mind about what the requisite assault was for the purposes of triggering self-defence and it was reiterated in redirections at 375 in the passage from line 32 to the end of the page. Again you see the reference at line 45 to the concept of production of a knife in a way that threatened and, at the top of page 376, “if there was such an assault”.

So, our respectful submission is that it was unmistakable to all concerned that it was the production of the knife on which the jury had to focus when considering whether self-defence was raised. That, as we apprehend it, is the first complaint made by the appellant. A lot flows from that because if there cannot have been any confusion about what the assault was, there cannot have been any confusion about the need for it to have occurred without consent. The jury was given the definition of an assault and they were told that it was something that had to happen without consent.

Again, we submit that there was no room for confusion about that and that any attempt to bring in section 24 as being relevant to the nature of the assault or the nature of the threat or however it is sought to be put, was completely unnecessary because, we would submit, or ask respectfully rhetorically, what is the actual mistake here? Nobody suggested that if there was a production of a knife that it was anything other than a threatened application of force. This was not a case where there was a mistake as to the nature of the knife where a toy knife was presented or anything like that. There was no room for any operative mistake. No direction on mistake could have added meaningfully to the instructions that the jury received.

FRENCH CJ: What was the content or purpose of the use of the term “consensual confrontation”?

MR CALLAGHAN: We have to actually look at what the Crown Prosecutor said. It might be open – I think it was 315, 316. At 315, line 32:

This started as a consensual confrontation. That’s not an unlawful assault. To be unlawful there must be no consent.

Well, that is true. It started as a consensual confrontation and then he moved to provocation. Your Honour, the words being used this afternoon diffuse, I think, and we do not - - -

FRENCH CJ: I am just not sure what the jury is meant to take from it. It is open for you to conclude that the appellant was happy with, or agreed to, or consented to Mr Teamo waving his knife at him.

MR CALLAGHAN: It could have been pressed in theory, and this is coming back to the question of how far it should be explored. Remember, at all times the appellant has a loaded gun, which he is prepared to use. He may well have been prepared to consent to any amount of threatening. He may well have been prepared to get involved in a - - -

FRENCH CJ: Or he may not have been worried about it because he had the superior fire power.

MR CALLAGHAN: That is right and therefore - - -

FRENCH CJ: But that does not amount to consent.

MR CALLAGHAN: It might amount to implied consent. There is a helpful passage in an authority to which the appellant has referred, the matter of Raabe [1985] 1 Qd R 115. In the judgment of Justice Thomas, at the top of page 123, his Honour noted that:

It is for a jury to perceive the limits of any implied consent, and this must allow for different shades and degrees of violence.

His Honour went on to observe that:

infinite gradations are possible in the scope of the consent from case to case.

So it was possible to make the argument that this was a confrontation in which it was contemplated that each party would threaten the other and that the threats would escalate and the appellant may well have been quite open to receiving such threats so long as he knew, as he must have, that he was going to have the final say, and there was not much doubt about that, given that he had a loaded weapon.

NETTLE J: But did he know that the other chap only had a knife?

MR CALLAGHAN: He probably did not know that he even had a knife until the knife was produced.

NETTLE J: He might have assumed the other man had a pistol also.

MR CALLAGHAN: In which case he may not have been consenting to a confrontation in which a gun was produced at him or he might have been.

NETTLE J: Unless he knew he had comparative fire power advantages with him, how could you possibly draw the conclusion of an implied consent?

MR CALLAGHAN: Well, because he was happy to continue with the confrontation and continue escalating it and that was a question for the jury.

NETTLE J: It was certainly a question for the jury. What I am having difficulty understanding is why it should be understood that because he knew he had a weapon, that is to say a firearm, he would always come out on top in any confrontation that ensued.

MR CALLAGHAN: It does not follow as a matter of course but it is an argument that could have been made and one that defence counsel may have preferred to avoid. The reference to the appellant checking his bag is exhibit 3 at 13.44 – 13 hours, 44 minutes, 50 seconds, there is depicted, we would submit, a moment where he checks the bag in which the gun must have been contained. The point of the exchange that I just had with your Honour Justice Nettle comes back to, I think, the exchange that we had at the outset - - -

NETTLE J: Yes.

MR CALLAGHAN: - - - which was it is just simply something that might explain counsel’s position, as may other things, including the fact that there was not any doubt about what the assault was that was there to trigger self-defence, that it was all clear enough from the judge’s summing-up, and that it may have been considered, as I think has been observed already, to be an argument so diffuse as to not warrant revisiting in the course of the summing-up.

Unless there was any other aspect of the appellant’s argument that it was thought we should address, I might turn also to the proviso, and there is really little to be said in addition to that which we have said in the written

submissions in which it was simply a case of your Honours being urged to watch the video recordings yourselves.

The reasons advanced as to why you would not rely upon those are not valid, in our submission. It was one of those cases where there was the all too familiar situation of witnesses giving vastly different evidence about the same event and in some cases evidence which could not possibly be true, such as conflicting evidence as to the time between the shots, but when you watch the videos it is tolerably clear that whilst it is said now by the appellant that there is a difficulty with this, a chronology was prepared on the appellant’s behalf in which the timing was identified and is in any case as a matter of common sense identifiable from the videos.

I think if you look at exhibit 31, for example, there is clearly, in our submission, an identifiable flash at the time of the second shot and the first shot is identifiable by reference to Mr Teamo’s doubling over, his bodily movement as at the time of the discharge.

BELL J: Mr Davis accepts that Mr Teamo was retreating, but is it clear that that occurred before the first shot?

MR CALLAGHAN: In our submission, yes, because it all occurs adjacent to what has been described, I think, as a barricade, which has a right angle - - -

GORDON J: He had gone behind the right angle?

MR CALLAGHAN: Yes, he has turned the corner before the first shot is fired and is retreating the whole time. It is not a question of not being able to hear the shots. It is the movement of the parties and what is fairly obviously identifiable as the timing of the shots, which is all important. Whatever threat there had been, posed by the production of the knife, ceased at the moment that the gun was produced. And the retreat was instant, unmistakable and the key word is “reasonable” because there were no grounds upon which the appellant could have believed the firing of the gun was necessary, still less no reasonable grounds. And it could not possibly have been thought, to use the words of the section, necessary for defence to fire the shots at a retreating man.

The variation in the evidence is of no matter when you have, if not the best evidence, then certainly evidence which is unchallenged and does not conflict with anything that could meaningfully impeach its probative value. Unless there was anything in particular - - -

FRENCH CJ: Thank you, Mr Callaghan. Yes, Mr Davis.

MR DAVIS: Firstly, there is no doubt that in the summing-up there are references to the knife being brandished. Certainly there are hints that the brandishing of the knife is what constituted the assault. That lack of precision, in our submission, is what makes comments like the one made at the top of 316 all the more dangerous. This is the Crown Prosecutor, the passage commencing:

So if the production of the knife itself was not part of that consensual fight –

et cetera. So, the jury will learn, in the summing-up, that yes, there is a knife and that is in some way an assault. Then, in the backdrop of that they have heard – or before that they have heard it was all consensual and it was all puffing and any threatened application of force at that time was by consent. That is then what makes the comment by the judge in the summing-up at 358, line 38 so significant.

In relation to retreating – Mr Teamo retreating, the fact that he is retreating over a very short period of time after having brandished the knife does not, as a matter of law, exclude self-defence. The question is what was the threat? In our submission, over a five second period, faced with a man who is brandishing a flick-knife, he has attempted to shoot him twice, albeit he is advancing, he is seeing him off. In our submission, all that assessment was one for the jury.

BELL J: He is advancing on a man who is retreating with the flick knife?

MR DAVIS: But a man who has a flick knife - - -

BELL J: Yes, but he is advancing on him; you accept that?

MR DAVIS: He is moving towards him, but the man has a - - -

BELL J: And he is moving away. One can understand that within a relatively short distance a person with a knife who does not retreat may pose a threat that a jury might consider justifies the discharge of a weapon, but if the person is retreating it is a little more difficult to see that pathway.

MR DAVIS: Well, the knife is produced; the knife is obviously produced for aggressive intent. The gun is produced, he starts to move back – this is what the video shows – and there is a shot. Who knows what, in that short reaction time – it is a classic jury question, in our submission. Thank you.

FRENCH CJ: Yes, thank you, Mr Davis. The Court will reserve its decision. The Court adjourns to 9.45 tomorrow morning for pronouncement of orders, and otherwise to 10.15.

AT 3.20 PM THE MATTER WAS ADJOURNED