Chamberlain v MacLACHLAN - [2003] WASCA 200

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CIVIL

CITATION: CHAMBERLAIN -v- MacLACHLAN [2003] WASCA 200

CORAM: MILLER J

HEARD: 21 AUGUST 2003

DELIVERED : 29 AUGUST 2003

FILE NO/S: SJA 1041 of 2003

MATTER :Section 185 of the Justices Act 1902 (WA)

BETWEEN: JARROD ALAN CHAMBERLAIN
Appellant
AND
THOMAS WILLIAM MacLACHLAN
Respondent

Catchwords:

Criminal law - Justices - Assault occasioning bodily harm - Onus of proof - Whether question of self-defence adequately dealt with - Adequacy of reasons - Turns on own facts

Legislation:

Criminal Code (WA), s 248, s 317(1)

Result:

Appeal allowed
Convictions quashed
Matter remitted to Court of Petty Sessions for rehearing

Category: B

Representation:

Counsel:

Appellant: Mr C G Primerano
Respondent: Ms M L Huntly

Solicitors:

Appellant: Kitto & Kitto
Respondent: State Director of Public Prosecutions

Case(s) referred to in judgment(s):

Garrett v Nicholson (1999) 21 WAR 226
Powell v The Queen, unreported; CCA SCt of WA; Library No 4004; 2 December 1980
R v Harling (1997) 94 A Crim R 437
R v Nevermann (1989) 43 A Crim R 347

Case(s) also cited:

Brooks v McShane (1996) 135 FLR 367
Stafford v Redmond (1990) 52 A Crim R 173

MILLER J: This is an appeal from a decision of Mr A Bloeman SM in the Court of Petty Sessions at Broome, given on 24 May 2003, when the learned Magistrate convicted the appellant on two charges of assault occasioning bodily harm.
The appellant was given leave by Barker J to appeal the convictions by order dated 24 April 2003. The grounds of appeal are as follows:
"(a)The learned Magistrate erred in fact and in law by not considering and by not applying the legal test of self defence as defined by section 248 of Criminal Code in that he failed to consider whether the prosecution had disproved to the criminal standard that the applicant had acted in self defence in circumstances where:
i.Self defence had been raised in evidence by the applicant; and
ii.The Learned Magistrate, after finding that the applicant had assaulted both Potter and Hallett, did not consider whether such assaults were excused or justified by law as being 'necessary to make effectual defence' against assaults on the applicant.
(b)The learned Magistrate's decision that the charges were proven constitutes a miscarriage of justice for the reasons that:
i.The learned Magistrate repeated without scrutiny or analysis arbitrary components of each witnesses' evidence and proceeded to find without any stated reason, or any adequate reason that:
(A)Some prosecution witnesses were credible;
(B)The witnesses for the defence had concocted their evidence.
ii.[The learned Magistrate] wholly failed to consider whether the assaults were excusable at law."
The appellant had been charged in the Court of Petty Sessions at Broome that on 14 April 2002 at Broome he unlawfully assaulted one Clinton John Hallett and thereby did him bodily harm, contrary to the provisions of s 317(1) of the Criminal Code (WA). He was also charged that on the same day and at the same place he unlawfully assaulted one Michael James Potter and thereby did him bodily harm, contrary to the provisions of s 317(1) of the Code. The appellant pleaded not guilty to the charges and they were heard together (presumably by consent) on 24 March 2003.
The prosecution called in evidence the two complainants and two independent witnesses. The complainant Potter testified that on Sunday 14 April 2002 he was at the Oasis Bar at the Roebuck Hotel in Broome. He was in company with the complainant Hallett, with Holly Andrews and a few other people. During the course of the evening he got into what was described as a "cage" where people danced at the hotel. Whilst dancing a man came up to him and told him that his friends at the bar did not like what he was doing. This person was unknown to Potter and he told him to "fuck off". The person walked away and Potter continued dancing. A short time later he turned around and saw somebody else in the cage whom he recognised as a man named Bill, who was a bouncer at the hotel. Potter told Bill that if there was a problem he would get out of the cage and dance on the floor. He did this, and as he stepped out of the cage he was confronted by another person and, according to his testimony, was pushed with both hands onto the ground. He said that as he got up there was a person facing him, as if he wanted to fight him. He was hit to the head and fell to the ground again where he and his assailant rolled around before they were separated. He and his friends were told to leave the hotel area.
Potter further testified that after he had left the hotel and was walking back to his car he was grabbed from behind and "slammed back into the ground" where he was hit a few more times. The person who did this to him was said to be the person who had "beat me up inside the pub". He gave the following account of what occurred:
"All right. So what did this person do to you? He came up behind you, I think you said? --- He came up from behind, grabbed me from around my back, threw me to the ground. I got up again. He hit me a few more times. Obviously I tried to defend myself. That went on for a while, and then at the end of it I got -- I was on the ground and he got me into a -- what I believe now is called a sleeper hold, where I was only a couple of seconds away from being unconscious, because I couldn't breathe at all.
Yes? --- And then he just --- after about 5 minutes he just got off me. I struggled to get to my feet. I was a bit dazed and short of breath, and that's when he walked straight over to my friend, Clint, and punched him."
It is not clear which of the two alleged assaults was relied upon by the prosecution (as constituting the assault alleged in the complaint, but nothing turns on this).
Potter gave the following description of what happened to the complainant Hallett:
"All right. So what did you see him do to your friend? --- I just heard him say, 'All right.' You don't mind if I swear?
PROSECUTOR: No. No? --- 'Okay, cunt. So you want to have a go too?' and he just walked up to him and smacked him in the mouth, and he went flat on his back, and then I went over to see Clint and he walked off and I didn't say anything to them,"
Potter detailed in evidence medical treatment that he later received and there was no question at the trial that he had suffered injuries which constituted bodily harm within the meaning of s 317(1) of the Code. This was also the position in relation to the complainant Hallett.
In cross‑examination it was put to Potter that he was the aggressor and that he was dancing in the cage in an intoxicated state in an exhibitionist fashion in an area which was reserved for professional entertainers. It was also put to him that he had been put in a headlock by a person named Douglas Piper in order to control him. This was denied by Potter, who contended that Piper was there but had done nothing.
The complainant Hallett testified that he had been at the hotel and drinking at the bar when he was told that his friend Potter had got into a fight. He ran across to where he saw Potter on the ground. He calmed him down and told him to leave, but he ran away. Hallett managed to catch him and was attempting to persuade him to leave the area when he (Potter) was assaulted. He explained what happened in this way:
"Yes? --- And by the time he got to the corner of Napier and Dampier. I grabbed hold of him and turned him around and said, 'Let's just get out of here, let's just go.' And then the next thing I know, somebody just come in and cleaned him up in front of me --
What do you mean by that? --- Well, I was standing there with my mate with my hand on his shoulder and the next thing it was just a big blur, it went bang, cleaned him up like a rugby tackle, that's what it felt like to me."
Hallett described what then happened to him:
"Okay. So what effect did that have on him? --- I'm not quite sure, that happened and it sort of happened to me and I was a bit surprised when I looked. I went to help him and there's another fellow that was there, he told me to leave him alone. I went to help Mick and this fellow put me in a headlock. And I was in the headlock for --- until I just about blacked out, but I managed to get out of it.
…
Yes, yes. So what happened next then? --- I remember, well, I think I broke through and I was yelling at Jarrod, telling him to get off. And then I got dragged back and one of the bouncers, Dougy, told me that everything was under control, to leave --- to calm down. I looked over and Jarrod was still sitting on top of Mick, and in my mind it wasn't -- they still. As far as I knew he was still thumping into him. So, I tried to get through again and I got held back by the other bouncers who held me back. And then the next thing I remember is then Jarrod got off Mick and came towards me and said something, to the words of 'Do you want to have a go as well?' And that's the last I remember, I was punched in the mouth and blacked out."
It was put to Hallett in cross‑examination that Potter was the aggressor who wanted to "square up" to the appellant, but Hallett denied this. It was also put that both Potter and Hallett were drunk and aggressive and that they were simply "having a blue with the bouncers that night". All of this was denied by Hallett.
It is to be noted that at no time during cross‑examination of either Potter or Hallett was it put to them that they had attacked the appellant. All that was put was that they were drunk and aggressive and the cause of all the trouble.
Sharon Leigh Pickard gave evidence that she had been at the hotel in company with a girlfriend, watching a few friends (including Potter) dancing around when she saw a fight break out. She said that Potter had been dancing in the cage when he was requested to get down from the cage. When he did not want to do so he was forcibly moved and pushed to the ground, jumped on and repeatedly hit in the head. She said that she left and as she got to the bottle shop she saw her friend Potter "turning purple because he was in a headlock and having his eyes gouged out". She testified that it was the appellant who was on top of Potter and holding him in the headlock. She knew the appellant as a security worker at a nightclub.
Ms Pickard testified that she tried to get the appellant off Potter but other bouncers arrived and pulled the two men apart. She did not observe what happened to the other complainant. Again, it was not put to Ms Pickard that Potter had actually been the instigator of the fight and/or physically assaulted the appellant.
Holly Mary Andrew gave evidence that she had been at the hotel on the night in question and had observed some sort of altercation in the bar area before going outside where she saw Hallett trying to restrain Potter and take him to their vehicle. She described what next happened in the following terms:
"Was he --- did he have any success in doing that? --- No. It all -- pretty much as soon as he got hold of Mick, these guys were at the corner.
What do you mean 'these guys'? Who ---? --- Well, the two people that in the pub that had attacked Mick had walked up the side, and --- and they grabbed hold of him, threw him to the ground, and they met at the corner there.
So this --- okay. So -- and there was -- right. So they got him -- at the corner? -- Mm hm.
And what happened at the corner? --- It was pretty much a rugby tackle to the ground. One of the guys had Mick on the ground and the other guy got hold of Clint.
…
All right. So when he was tackled, what effect did that have on Mick? --- He was on the ground, and --
Yes. How was he on the ground? --- He was lying there on the ground.
Yes. And what happened? --- The other guy was on top, punching him.
What, were they laying down together? --- Mick was lying down and he was like sitting on him.
…
… what, did you see that happen? --- I looked at Mick and I turned back and Clint was on the ground."
It was not put to Ms Andrew at any stage in cross‑examination that either Potter or Hallett had been the aggressors and begun the fight and/or struck the appellant.
Riannah Leigh Randell testified that she had been at the bar on the night in question and had seen the appellant pull Potter out of the cage. She observed a scuffle but looked away because she did not want to see what was happening. When she turned back she saw what looked like the appellant on top of Potter, punching him. Later, when she went outside, she saw Potter with blood on his face and also Hallett, who "looked like he had blood on his face too". She was not cross‑examined about any assault on the part of either Potter or Hallett upon the appellant.
There was evidence that the appellant had engaged in a video record of interview in which he had made certain admissions. These admissions were (by consent) read in evidence to the following effect:
" 'Defendant was at the Oasis Bar of the Roebuck Hotel, Broome on the night in question.
'2.     The defendant is a crowd controller working for Mackers Security in Broome. Accused was off duty on the night in question. Accused approached complainant Potter, was dancing in dancing cage and advised him he shouldn't be dancing there.
'5.     Accused shortly --- later placed Potter in a headlock to restrain him.
'6.Accused then left bar with a friend.
'7.     Accused was again involved in an altercation with Potter and complainant Hallett at the corner of Dampier Terrace and Napier Terrace.
'8.     Accused punched Hallett in the mouth, knocking him to the ground.' "
It is to be observed that these admissions contained no reference to the appellant being assaulted by either Potter or Hallett.
The appellant gave evidence in his defence. He claimed that he had gone to Potter and told him that he was to step down from the cage because he could not dance there. He testified that Potter had told him to "fuck off" and that he was going to punch him in the head. He was described as being "really hyper".
The appellant claimed that Potter had flared up and pushed him so he pushed him back in return, causing him (Potter) to fall onto the ground. This, he said, was the extent of the scuffle until the next thing he knew Potter had run at him trying to hit him and he had been forced to put him in a headlock and pull him down. He claimed that he was hit with a number of punches as he held Potter in the headlock, but that he handed him over to Piper and went outside. There, he said, he saw Potter again who was "fired up" and came straight at him, necessitating him to put him in a headlock whilst he was trying to hit him. He testified that Hallett had then come over and tried to have a go at him. When he let go of Potter, he claimed to have been confronted by Hallett who had grabbed him by the shirt and punched him in the left side of the face. The appellant said his reaction was to punch him back, causing him to fall to the ground.
The appellant called witnesses in his defence. The first of them was Piper, who contended that Potter had attacked the appellant, grabbing him and wrestling him to the ground where the appellant simply restrained him. Outside the hotel area Potter had allegedly attacked the appellant again, following which Hallett had grabbed the appellant by the collar, throwing a punch at him to the side of the face, causing the appellant to hit him back. William James Adair testified to much the same effect, contending that he had seen Potter punch the appellant a couple of times to the mouth, which necessitated the appellant restraining Potter. Outside the hotel he had seen a further scuffle between the two men in which Potter was definitely the aggressor.
Faced with the clear conflict in testimony before him the learned Magistrate endeavoured to sum up the effect of the evidence he had heard. He rightly pointed out that the charges against the appellant were serious and that he had to be satisfied beyond reasonable doubt that the prosecution had proven its case and all the elements of the case, before the appellant could be convicted. He made reference to the evidence of Ms Pickard and clearly accepted that she had seen the appellant sitting on top of Potter, holding him in a headlock, causing him to turn "very red and blue". He made reference to the evidence of Potter and pointed out that there was clearly a conflict between Potter's evidence and that of the appellant, who contended that Potter had first pushed him and he had then pushed him back.
The learned Magistrate made reference to the evidence of Hallett, whom he said had basically given the same evidence as Potter. He pointed out that both Potter and Hallett had denied strongly in cross‑examination that they had assaulted the appellant. Reference was made in passing to the evidence of Ms Andrews and Ms Randell, which he described as "relatively weak".
The learned Magistrate then reviewed the evidence of the appellant himself, although without any specific reference to the contention of the appellant that he had been struck by both Potter and Hallett without any justification. Reference was then made to the evidence of Piper and Adair, but their evidence (along with the evidence of the appellant) was described as being "totally unacceptable". Indeed the learned Magistrate went further and said that he found it incredible that Piper should have given the evidence that he did. He concluded that he had no hesitation in saying that the evidence from the appellant, together with that of Piper and Adair, was concocted.
The learned Magistrate concluded his reasons by stating that he was satisfied beyond reasonable doubt that the prosecution had proven the case. He said he found the evidence of Potter, Hallett and Ms Pickard particularly impressive, marking them respectively "nine and a half out of ten … eight and a half and eight out of ten". He concluded by saying that he found them "very credible witnesses and I have no doubt in my mind that the defendant Chamberlain assaulted both parties. I therefore find the case proven."
The grounds of appeal complain primarily that the learned Magistrate erred in failing to consider the defence of self‑defence raised by the appellant in his evidence. In addition, there is criticism of the way in which his Worship approached the question of credibility of the witnesses.
The learned Magistrate did not deal separately and discretely with the defence of self‑defence against an unprovoked assault within the meaning of s 248 of the Code.
Counsel for the appellant, in his closing submissions to the learned Magistrate, accepted that the issue in the case was which version of events actually occurred. He said that there was evidence from "the people on one side saying black is black and … on the other side saying black is white". Counsel referred to the onus of proof and submitted that there must be a doubt as to who was the aggressor in this situation. The issue was said to be "is my client acting in self‑defence … was he attacked first when he went over …". Self‑defence against an unprovoked assault was thus squarely raised for consideration by the learned Magistrate.
The learned Magistrate understood and accepted that the two versions of what occurred were diametrically opposed to each other. He was conscious of the onus of proof cast upon the Crown and the standard of proof required before the appellant could be convicted. The reasons were short and there was only brief reference to the evidence, but it was a case in a Court of Petty Sessions and I respectfully adopt the following observations of Malcolm CJ in R v Nevermann (1989) 43 A Crim R 347 at 350 in relation to the requirements of such reasons in the Court of Petty Sessions:
"It is not necessary for a full or detailed statement of reasons to be given in every case. This would not be practicable in a busy court such as the District Court and it would be even less so in a court of petty sessions. The imposition of such a requirement in every case would cause delays in the administration of justice. The reasons may be stated shortly, without being developed in any detail."

In Garrett v Nicholson (1999) 21 WAR 226, Owen J, at 248 ‑ 9, made detailed reference to what is required in reasons for decisions generally, with particular reference in that case to Courts of Petty Sessions. In the course of his judgment his Honour said:
"At common law there was (and is) a duty on a decision maker required to act judicially or quasi-judicially to give reasons for decision. The reasons must disclose adequately the intellectual process which has resulted in a particular determination."
In the present case the reasons were adequate to disclose the intellectual process which led to the result. The question is whether the learned Magistrate properly took into account the "defence" of self‑defence and the onus in relation to it.
In considering the learned Magistrate's reasons in this case, it must be appreciated that a finding of guilt cannot be reached simply by rejecting the case put forward by the defence. The principles to be applied are those set out by Anderson J in R v Harling (1997) 94 A Crim R 437 at 443 as follows:
"A finding of guilt is not to be reached simply be rejecting the case put forward by the defendant. There cannot be a guilty verdict unless the court of trial accepts, that is, actually and positively believes to the required standard, the evidence presented by the prosecution on matters critical to proof of guilt. When a defendant gives exculpatory evidence and it is trite to say he/she need not do so) the question is not so much whether it is to be preferred to the prosecution evidence but whether, in the light of it, the prosecution has proved its case. Even if the court does not positively believe the defendant's evidence and in that sense does not 'prefer' it, the question remains whether, on the whole of the evidence, the guilt of the defendant has been proved beyond a reasonable doubt. This is not a mere exercise in semantics. There is always a real possibility that whilst the evidence of the prosecution witnesses may be generally preferred to that of the defence witnesses, the evidence as a whole still leaves a reasonable doubt as to the guilt of the defendant. For example, a defendant may give an account which sounds implausible and unlikely: yet the court may be unable to rule it out. The defendant may not go into evidence at all: yet the prosecution evidence may fail to satisfy the court to the required degree."
In Powell v The Queen, unreported; CCA SCt of WA; Library No 4004; 2 December 1980, Burt CJ (with whom Jones & Smith JJ agreed) said (at 2 ‑ 3) of assault cases and the need for a proper consideration of where the burden of proof lies when self‑defence is raised:
"Assault cases, simple as they may be, are in my experience very difficult to try. They are difficult to try because the events are of short duration, they happen as often as not in circumstances where they cannot clearly be seen, and it is not easy at the end of the day to say with any degree of certainty just what happened, nor is it easy, nor is it common that one can produce a witness who, with any degree of objectivity, can tell the court what happened. In those circumstances it seems to me, when one gives full and proper weight to the onus of proof resting upon the Crown in a criminal case, somewhat dangerous to say to a jury, in effect: 'This case is a simple case and the outcome of it will depend on whom you believe'. A state of belief in either set of witnesses is not, under those circumstances, easy to achieve, so that in the end these so‑called simple cases are cases where quite often the trier of the fact will be obliged to say: 'I don't know what happened. My mind is not carried to the persuasion one way or the other' and hence, it is important I think to appreciate where the onus of proof lies. It is, of course, important in every criminal case but equally important in what has been described here as a simple case.
The legal onus assumed by the Crown in this case was to establish to beyond reasonable doubt that the appellant had unlawfully assaulted the man, Brown. That there was an assault, there can be no doubt. The case turned upon whether the assault was, in all the circumstances, unlawful and that depended upon whether it had been a provoked assault or an assault which occurred in self-defence.
Now, each provocation and self-defence are commonly referred to as defences and if referred to in that way without more they are likely to be understood by a lay person as involving the accused in proof of the facts which sustain the defence. A better way to look at it, and I think the legally correct way to look at it, and I think the legally correct way to look at it, is that each of those matters has a direct bearing upon the quality of the assault, specifically upon the question as to whether the assault was unlawful or whether it was not and the Crown has the onus of persuading a jury that the assault was unlawful. It is in that way that the Crown, once a necessary evidentiary base is laid for it, assumes the onus of satisfying the jury that the assault was not provoked and that the assault was one which was not done in self defence.
The onus remains upon the Crown as to each of those two matters. There is no onus upon the accused to make out a positive case as to either of them or to persuade the jury positively as to either of them."
In this case the learned Magistrate appears to have appreciated very clearly that the burden of proof rested upon the prosecution. However, nowhere in his reasons did his Worship state that where self‑defence is raised, the prosecution is required to negative that defence beyond reasonable doubt. It is argued by the respondent that implicit in the learned Magistrate's reasons is an acceptance of this fact, but the question is whether it was something that had to be expressly dealt with.
The learned Magistrate's reasons constitute a clear conclusion that the testimony of the two complainants and the supporting witness Ms Pickard was convincing and credible, and established beyond reasonable doubt the prosecution case against the appellant. His Worship found the appellant's testimony and that of the witnesses called on his behalf, to be totally unacceptable and went so far as to describe it as concocted.
However, the question which remained was whether the prosecution had negatived the issue of self‑defence and whether on the whole of the evidence the guilt of the appellant had been proven beyond reasonable doubt. As Anderson J pointed out in The Queen v Harling, the prosecution evidence may well be preferred to that of the defence witnesses, but the evidence as a whole may still leave a reasonable doubt as to the guilt of the accused. Further, as Burt CJ said in Powell v The Queen, the "defence " of self‑defence has a direct bearing upon the quality of the assault alleged, specifically upon the question as to whether the assault was unlawful or whether it was not.
Here, the learned Magistrate found only that he had no doubt that the appellant had assaulted both parties. That was not the question. It was whether there had been an unlawful assault.
In my view, the failure of the learned Magistrate to address the issue of self‑defence and the onus of proof in relation to it, was, in the words of Jones J in Powell v The Queen (supra) at 5, "a fatal flaw". The appellant was entitled to have the issue of self‑defence addressed by the learned Magistrate in his reasons, and the absence of any such reference means, in my view, that the convictions constituted a miscarriage of justice.
I would allow the appeal on grounds (a)(i)(ii) and (b)(ii) and quash the convictions. I would remit the matter to the Court of Petty Sessions at Broome for hearing before a different Magistrate.