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Court of Criminal Appeal 6 August 2008

CRAWFORD, Neal Andrew v R

[2008] NSWCCA 166

Assault & violence
CRIMINAL LAW APPEAL AGAINST CONVICTION SELF DEFENCE

Citation: Crawford v R [2008] NSWCCA 166
Court: NSW Court of Criminal Appeal
Date: 6 August 2008
Judges: McClellan CJ at CL, Hidden J, Fullerton J

Background

The appellant was charged following a confrontation with police at a Chippendale residence in April 2006. Police had attended after a triple-zero call reporting that the appellant was behaving aggressively outside the home of his recently former partner. When officers arrived, the appellant initially cooperated, but a physical altercation occurred at the front doorway of the premises.

The accounts of the police officer and the appellant diverged significantly. Constable Warren said the appellant became aggressive and that he used physical force to prevent the appellant entering the house, ultimately attempting to arrest him, at which point he was struck heavily on the jaw and suffered multiple undisplaced fractures. The appellant gave evidence that the constable pushed and rammed him against a wall, and that he struck out in an attempt to break free from what he experienced as an unjustified physical assault.

The jury acquitted the appellant of the more serious count of malicious wounding causing grievous bodily harm (and of other charges on the indictment) but convicted him on count 2, assault occasioning actual bodily harm to a police officer in the execution of duty. The appellant appealed against conviction, arguing the trial judge's directions on self-defence were inadequate.

  • Whether the trial judge adequately directed the jury on self-defence under Part 11, Division 3 of the Crimes Act 1900, specifically in the context of an alleged assault on a police officer acting lawfully.
  • Whether, under section 422 of the Crimes Act 1900, the jury was required to be directed that self-defence remained available to the appellant even if the police officer's conduct was found to be both reasonable and lawful.
  • Whether any error in the directions was cured by the proviso (that is, whether the court could be satisfied no substantial miscarriage of justice resulted despite the misdirection).

Decision

Fullerton J (with whom McClellan CJ at CL and Hidden J agreed) held that the trial judge erred in refusing to direct the jury in accordance with section 422 of the Crimes Act 1900. Her Honour's directions on self-defence were otherwise accurate and in conformity with section 418(2), but the refusal to augment those directions was a material error.

Section 422 is significant because it preserves the availability of self-defence even where the conduct being responded to was lawful, including lawful conduct by police officers in the execution of their duty. The jury was entitled to consider whether the appellant genuinely believed his response was necessary to defend himself and whether that response was reasonable in the circumstances as he perceived them, regardless of whether the constable was acting lawfully. Trial counsel had specifically requested the additional direction; the Crown opposed it; and the trial judge declined to give it. The Court of Criminal Appeal found the Crown's opposition and the judge's refusal were both misguided.

On the question of whether the proviso applied, the court declined to invoke it. The questions arising under sections 418 and 422 were matters exclusively for the jury to determine. The court could not be satisfied beyond reasonable doubt of guilt in those circumstances, meaning a substantial miscarriage of justice could not be ruled out.

The sentence appeal did not proceed, as the conviction was quashed and a retrial ordered.

Orders Made

  • The appeal against conviction in respect of count 2 on the indictment was allowed.
  • The conviction in respect of count 2 on the indictment was quashed.
  • There is to be a retrial on count 2 on the indictment.

Key Takeaways

  • Under section 422 of the Crimes Act 1900, self-defence is not foreclosed simply because the conduct being responded to was lawful, including lawful conduct by a police officer in the execution of duty. The jury must be directed to this effect where the facts raise it as a live issue.
  • A conviction will be set aside where the trial judge refuses to give a direction specifically requested by defence counsel that accurately reflects the statutory framework, even where the remainder of the self-defence directions are correct.
  • The court confirmed that questions arising under sections 418 and 422 are matters for the jury, not the appellate court, and the proviso will not cure the omission of a required direction where those questions remained genuinely contestable on the evidence.
  • Divergent factual accounts between police and the accused at trial are capable of making section 422 a live issue, particularly where the accused's evidence raises a genuine belief that defensive force was necessary.
  • Where an appeal against conviction is upheld and a retrial ordered, any associated sentence appeal becomes moot and does not require separate resolution.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1900 (NSW), ss 60(2), 60(3)(b), 418, 422, Part 11 Division 3

Cases:
- R v Katarzynski [2002] NSWSC 613