The High Court has dismissed an appeal against the Queensland Court of Appeal on the effect of jury misdirections in the context of self-defence. The appellant shot and wounded a rival bike gang member, Teamo, and a bystander at a shopping centre, after Teamo produced a flick knife. The appellant was convicted by the jury of attempted murder and of wounding the bystander with intent to wound Teamo. The appellant contended that the trial judge had misdirected or failed to direct the jury on the issue of self-defence under ss 271 and 272 of the Criminal Code 1899 (Qld), because the prosecutor had argued that the appellant had either consented to, provoked or over-reacted to Teamo’s production of the knife. The QCA rejected that argument, holding that the trial judge appropriately left to the jury the question of whether there was a consensual confrontation and thus no assault by Teamo on the appellant, which would preclude self-defence.

A majority of the Court (French CJ, Kiefel and Bell JJ, Gordon J agreeing) held that the QCA came to the correct conclusion. The joint judges held that the production of the knife could not have been seen as consensual by any reasonable jury, and despite the prosecution’s arguments, a consensual confrontation was not, on the evidence, a real issue in the case, and counsel for the appellant did not mention it in his address or request jury directions on it (at [34]). The trial judge did not misdirect the jury (at [34]):

The relevant provisions of the Criminal Code were put before the jury, including the definition of assault in s 245 which incorporated the requirement of want of consent. In the circumstances of this case, no elaboration of that issue was required nor any elaborate discussion of what counsel for the prosecution had said beyond the rather dismissive observation that it was a matter of argument and interpretation.

Gordon J agreed with the joint judges’ reasoning, adding that in examining the adequacy of jury directions, the appellate court must examine the summing up as a whole, in light of the issues raised and the way the trial was conduct, rather than scrutinising the wording of particular directions (see [59]): ‘No miscarriage of justice will arise unless the appellant demonstrates that the direction should have been given and it is “reasonably possible” that the failure to direct the jury “may have affected the verdict”‘ (at [60]). Further, the appellant’s contention that a particular wording of directions were necessary because the prosecutor’s closing remarks were ‘confusing and unhelpful’ should be rejected for several reasons (see at [64]ff).

Nettle J would have allowed the appeal, quashed the convictions and ordered a new trial on the basis that on the directions given the jury may have wrongly concluded that it was open to them to exclude the possibility of self-defence on the basis that Teamo’s production of the knife was part of the ‘consensual confrontation’: ‘It was not open on the evidence to be satisfied beyond reasonable doubt that the appellant consented to Teamo’s production of the flick-knife as part of a “consensual confrontation” and, consequently, it was a material misdirection to direct the jury that they could exclude the possibility of self-defence on that basis.’ (at [40], and see [43]–[45]).