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Court of Criminal Appeal 24 November 2006

Elias v R

[2006] NSWCCA 365

Assault & violenceFirearms & weapons
APPEAL AGAINST CONVICTION SELF DEFENCE SUBJECTIVE TESTS ACCUSED'S STATE OF MIND DEFENCE

Citation: Elias v R [2006] NSWCCA 365
Court: NSW Court of Criminal Appeal
Date: 24 November 2006
Judges: McClellan CJ at CL, Simpson J, Rothman J

Background

The appellant had a longstanding acquaintance with the victim, who was involved in debt recovery and informal gambling operations. When the victim returned from a trip and accused the appellant of defrauding him of $35,000, the relationship deteriorated rapidly. Telephone threats were exchanged, and a meeting was arranged at a fast food restaurant on the morning of 7 June 2003.

When the appellant attended that meeting, he was armed with a handgun. After the victim directed him outside, the appellant produced the weapon, claiming he feared an ambush and believed he was about to be killed. He fired the gun twice, stating his purpose was only to frighten the victim. The victim suffered a gunshot wound to the left thigh.

The appellant was tried in the District Court and convicted of malicious wounding with intent to cause grievous bodily harm. The sole issue at trial was whether the Crown had disproved self-defence. He was sentenced to a total of six years' imprisonment with a non-parole period of four and a half years. His appeal challenged the conviction only, not the sentence.

  • Whether the trial judge erred in rejecting cross-examination questions directed at two witnesses about whether they had seen the victim in possession of a firearm in the six months before the offence.
  • Whether the trial judge erred in refusing to admit the evidence of a further witness, whose statements attributed threats and references to firearms to the victim.
  • Whether evidence of the victim's possession of firearms, where the appellant had no knowledge of that possession, was relevant to the subjective tests for self-defence under s 418 of the Crimes Act 1900.
  • Whether such evidence could be admitted as tendency evidence under the Evidence Act 1995.

Decision

Simpson J (with whom McClellan CJ at CL and Rothman J agreed) held that the rejected evidence was not admissible because it was not relevant to the issues the jury had to determine. Under s 418 of the Crimes Act 1900, self-defence turns on two subjective tests: first, whether there was a reasonable possibility that the accused believed his conduct was necessary to defend himself; and second, whether there was a reasonable possibility that the accused's conduct was a reasonable response to the circumstances as he perceived them. Both tests depend on the accused's state of mind, not on objective facts unknown to him.

Because there was no evidence that the appellant knew of the victim's possession of firearms, evidence that the victim had possessed or had access to guns was incapable of rationally affecting the jury's assessment of those subjective questions. It could not bear on what the appellant believed at the relevant time. The evidence therefore failed the relevance threshold under ss 55 and 56 of the Evidence Act 1995 and was properly excluded.

The Court also rejected the argument that the evidence was admissible as tendency evidence under s 97 of the Evidence Act 1995. Even if the evidence could establish a tendency in the victim to carry firearms, that tendency remained irrelevant to what the appellant believed unless the appellant actually knew of it. Tendency evidence, like any other evidence, must clear the relevance threshold before it can be admitted.

Rothman J added a supplementary observation: there may be circumstances where an accused gives evidence of a belief that the victim was armed, based on the victim's reputation. In such a case, evidence of that reputation, including knowledge held by others and communicated to the accused, could be relevant. That question did not arise on the facts of this appeal, but Rothman J left it open for future consideration.

Orders Made

  • Appeal against conviction dismissed.

Key Takeaways

  • Self-defence under s 418 of the Crimes Act 1900 is assessed by reference to the accused's subjective belief, not by reference to objective facts of which the accused was unaware.
  • Evidence of a victim's possession of firearms is not relevant, and therefore not admissible, where the accused had no knowledge of that possession at the time of the offence.
  • Even where evidence might otherwise qualify as tendency evidence under s 97 of the Evidence Act 1995, it must still satisfy the relevance threshold in ss 55 and 56 before it can be received.
  • Rothman J identified an open question: where an accused's belief is founded on the victim's reputation for carrying weapons, and that reputation has been communicated to the accused, evidence of that reputation may be relevant and potentially admissible. The Court of Criminal Appeal left that question for a case in which it directly arises.
  • No error was established in the trial judge's evidentiary rulings, and the conviction was upheld on that basis.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1900 (NSW), s 418 (self-defence)
- Evidence Act 1995 (NSW), ss 55(1), 56 (relevance), 97 (tendency evidence), 101(2)

Cases:
- R v Cakovski [2004] NSWCCA 280; 149 ACrimR 21
- R v Katarzynski [2002] NSWSC 613