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Court of Criminal Appeal 1 December 2016

Harafias v R

[2016] NSWCCA 268

Assault & violence
CRIMINAL CONVICTION APPEAL GRIEVOUS BODILY HARM WITH INTENT WHERE APPELLANT BIT OFF VICTIM’S NOSE WHERE SELF DEFENCE RAISED

Citation: Harafias v R [2016] NSWCCA 268
Court: Court of Criminal Appeal, New South Wales
Date: 1 December 2016
Judge(s): Meagher JA (principal judgment, at [1]); Rothman J (agreeing, at [40]); Button J (agreeing, at [41])

Background

The appellant was convicted following a jury trial before a District Court judge of causing grievous bodily harm with intent, contrary to s 33(1)(b) of the Crimes Act 1900 (NSW). The offence arose from an incident in June 2014 in which the appellant bit off a portion of an acquaintance's nose during a confrontation in a Leichhardt apartment hallway. The severed portion was later reattached at hospital. The appellant was sentenced to eight years' imprisonment with a four-year non-parole period.

At trial, two issues were contested: whether the appellant intended to cause grievous bodily harm, and whether his conduct was carried out in self-defence. The appellant gave evidence that he was struggling with the complainant against a wall when a third man threw a punch at him, leaving him unable to use his arms. He said he believed biting was necessary to defend himself in those circumstances.

The appellant appealed against his conviction on the single ground that the trial judge misdirected the jury on the legal test for self-defence. The Crown accepted that a misdirection had occurred. The sole question before the Court of Criminal Appeal was whether that error warranted quashing the conviction and ordering a new trial.

  • Whether the trial judge misdirected the jury by applying the common law self-defence test from Zecevic v DPP (Vic) (1987) rather than the statutory test under s 418 of the Crimes Act 1900 (NSW).
  • What the correct statutory test for self-defence is under s 418, and how it differs from the common law formulation.
  • Whether the proviso in s 6(1) of the Criminal Appeal Act 1912 (NSW) applied, meaning the appeal should nonetheless be dismissed because no substantial miscarriage of justice actually occurred.

Decision

The trial judge directed the jury using the common law self-defence formulation from Zecevic, which required not only that the accused believed his conduct was necessary, but also that there were "reasonable grounds" for that belief. This was an error. Since February 2002, s 418 of the Crimes Act 1900 has governed self-defence in New South Wales. Under that provision, the accused need only genuinely believe the conduct was necessary, and the conduct must have been a reasonable response to the circumstances as the accused perceived them. The statutory test removes the common law requirement that the accused have objectively reasonable grounds for the belief that defensive action was necessary.

The practical effect of this difference is significant. Under the statute, an accused who genuinely but mistakenly believed they faced danger can still rely on self-defence, even without objectively reasonable grounds for that belief. The only objective element in the statutory test concerns proportionality: whether the conduct was a reasonable response to the circumstances as the accused actually perceived them.

The Court then considered whether the proviso applied. The proviso allows an appellate court to dismiss an appeal despite an error, if the court is satisfied no substantial miscarriage of justice actually occurred. To apply the proviso here, the Court would need to be satisfied that a properly directed jury would inevitably have convicted. Meagher JA concluded it was open to a jury to have a reasonable doubt on both limbs of the s 418 test. The appellant's evidence of being pinned against a wall with his arms constrained, and facing what he perceived as a threat from two men, meant neither the belief limb nor the reasonable response limb could be dismissed as inevitably answered against him by a properly directed jury.

Given those limitations on appellate review and the nature of the misdirection, the Court was unable to conclude that no substantial miscarriage of justice actually occurred. All three judges agreed the conviction should be quashed and a new trial ordered.

Orders Made

  • Leave to appeal granted.
  • Appeal against conviction allowed.
  • Conviction quashed.
  • New trial ordered.

Key Takeaways

  • Under s 418 of the Crimes Act 1900 (NSW), self-defence has two elements: the accused must genuinely believe the conduct was necessary for a defensive purpose, and the conduct must be a reasonable response to the circumstances as the accused perceived them. Directing a jury using the old common law Zecevic test, which requires "reasonable grounds" for that belief, is a misdirection.
  • The statutory test enacted in 2002 deliberately removed the objective element going to the accused's belief about the necessity of defensive action. An accused who genuinely believed they were in danger can rely on self-defence even if that belief was mistaken, provided the response was objectively reasonable relative to the circumstances they perceived.
  • Where the Crown accepts a misdirection occurred, the determinative question becomes whether the proviso applies. The proviso requires the appellate court to be satisfied that a properly directed jury would inevitably have convicted. The Court of Criminal Appeal declined to apply the proviso where the evidence on self-defence was not so weak as to make acquittal an impossibility.
  • Appellate courts reviewing misdirection cases face "natural limitations" in assessing evidence without the benefit of seeing witnesses, and those limitations weigh against applying the proviso where the defence evidence was not inherently incapable of raising reasonable doubt.
  • A response that is extreme or unusual does not automatically defeat a self-defence claim under s 418. The proportionality assessment turns on what the accused actually perceived, not on an abstract standard divorced from their subjective circumstances.

Legislation and Cases Referenced

Legislation
- Crimes Act 1900 (NSW), ss 33(1)(b), 33(3), 35, 418, 419
- Crimes Amendment (Self-defence) Act 2001 (NSW)
- Criminal Appeal Act 1912 (NSW), ss 5(1)(a), 6
- Criminal Appeal Rules (NSW), r 4

Cases
- Zecevic v Director of Public Prosecutions (Victoria) (1987) 162 CLR 645
- R v Katarzynski [2002] NSWSC 613
- R v Oblach (2005) 65 NSWLR 75
- Baini v The Queen (2012) 246 CLR 469; [2012] HCA 59
- Pollock v The Queen (2010) 242 CLR 233; [2010] HCA 35
- Weiss v The Queen (2005) 224 CLR 300; [2005] HCA 81
- Lindsay v The Queen (2015) 255 CLR 272; [2015] HCA 16
- Filippou v The Queen (2015) 256 CLR 47; [2015] HCA 59
- Baiada Poultry Pty Ltd v The Queen (2012) 246 CLR 92; [2012] HCA 14
- R v Hawes (1994) 35 NSWLR 294
- Krakouer v The Queen (1998) 194 CLR 202; [1998] HCA 43
- Abdallah v R [2016] NSWCCA 34
- H v R [2016] NSWCCA 63
- Justins v The Queen (2010) 79 NSWLR 544; [2010] NSWCCA 242
- Mraz v The Queen (1955) 93 CLR 493