Clifton v Duong
[2019] ACTCA 22
•21 August 2019
SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
COURT OF APPEAL
Case Title: | Clifton v Duong |
Citation: | [2019] ACTCA 22 |
Hearing Date: | 5 August 2019 |
DecisionDate: | 21 August 2019 |
Before: | Murrell CJ, Burns and Wigney JJ |
Decision: | Appeal dismissed. |
Catchwords: | APPEAL – APPREHENDED BIAS – Where shortly before delivery of judgment the primary judge directly emailed the prosecutors without copying in the appellant’s counsel – Where the communication concerns the difficulty in viewing the CCTV evidence on computer – Where the appellant’s counsel was eventually copied into the chain of emails – Whether the communication gave rise to apprehended bias – Whether failure to object amounts to waiver APPEAL – NATURE OF APPEAL – Appeal from appellate decision – Whether it was open to the primary judge to find that it was open to the magistrate to return a guilty verdict – Whether a fresh attack on the original decision |
Legislation Cited: | Crimes Act 1900 (ACT) s 24 Supreme Court Act 1933 (ACT) s 37N(3) |
Cases Cited: | AJH Lawyers Pty Ltd v Careri [2011] VSCA 425; 34 VR 236 Clifton v Doung [2018] ACTSC 346 Zecevic v DPP (Vic) (1987) 162 CLR 645 |
Parties: | Robert Clifton (Appellant) Alan Duong (Respondent) |
Representation: | Counsel P Edmonds (Appellant) T Hickey (Respondent) |
| Solicitors Canberra Criminal Lawyers (Appellant) ACT Director of Public Prosecutions (Respondent) | |
File Number: | ACTCA 1 of 2019 |
Decision under appeal: | Court/Tribunal: Supreme Court of the ACT Before: Penfold J Date of Decision: 20 December 2018 Case Title: Clifton v Duong Citation: [2018] ACTSC 346 |
THE COURT
The appeal
In the Magistrates Court the appellant pleaded not guilty to the charge that, on 15 November 2015, he assaulted and thereby occasioned actual bodily harm to Mr Bugden (the complainant), contrary to s 24 of the Crimes Act 1900 (ACT).
There was a contested hearing before Magistrate Cook (the Magistrate) at which the appellant represented himself. At the hearing, the appellant conceded that he had punched the complainant, causing actual bodily harm. He asserted that the punch had been delivered in self-defence. The Magistrate returned a guilty verdict.
The appellant appealed. On 2 March 2017, Penfold J (the primary judge) heard the appeal. The appellant was represented by his current lawyers. On 20 December 2018, her Honour dismissed the appeal and remitted the matter to the Magistrates Court for sentence: Clifton v Doung [2018] ACTSC 346.
On 18 January 2019, the appellant appealed against the decision of the primary judge.
The appellant argued that:
(a)Because the primary judge had unilaterally communicated by email with the DPP, her Honour’s decision was tainted by apprehended bias.
(b)Her Honour had erred in finding that it had been open to the Magistrate to be satisfied beyond reasonable doubt that the appellant was guilty of the offence.
Any appeal to this court is by way of rehearing: Roberts v Rhodes [2014] ACTCA 20 at [6]–[8]. In addition, this appeal is an appeal from an appellate decision by the primary judge that was itself a rehearing. Consequently, this appeal should not be used to mount a fresh attack on the decision of the original tribunal: Legal Practitioner v Council of the Law Society of the ACT [2017] ACTCA 6. Regrettably, in relation to the second ground of appeal, that is more or less what has occurred.
Evidence and submissions in the Magistrates Court
In the early hours of 15 November 2015, the appellant was at King O’Malley’s Pub in Civic with a female companion, F. The complainant was outside the Pub. There had been no prior association between the appellant and the complainant. Both were intoxicated.
The complainant was so intoxicated that he had no memory of the incident. The direct evidence concerning the incident came from CCTV footage and the appellant himself.
CCTV Footage
The CCTV evidence established that, as the appellant and F were leaving the Pub, the complainant approached the appellant and placed his hand on the appellant’s shoulder, seemingly uninvited. They shook hands twice. There was a verbal exchange. The appellant took a step back. The appellant and F walked away while the complainant watched them. The appellant and F stopped about 10 metres from the complainant. The complainant pointed at them.
The complainant walked quickly towards the appellant and F. The appellant was standing side-on to the complainant as the complainant approached. When the complainant was about an arm’s-length from the appellant, the appellant struck him once to the face in what the appellant conceded was a “pre-emptive strike”. The complainant fell to the ground and lay in a foetal position. F kicked the complainant’s groin area.
The appellant’s evidence
The appellant gave evidence that, when the complainant had placed his hands on him, the appellant had felt uncomfortable, particularly as the placement of the hands had coincided with the complainant starting to become angry. The complainant and F had engaged in a verbal altercation. The appellant and F had walked away, but the appellant stopped when he heard the complainant calling out. He turned around to see the complainant pointing at him. The complainant was swearing and abusing the appellant and F. The complainant walked up to the appellant. The appellant struck the complainant because the appellant believed that the complainant was about to hit him. The appellant had been the victim of a serious stabbing. He said that “when I heard him coming up behind me yelling and that … was pretty similar to the last incident”, causing the appellant to fear for himself and F.
In cross examination, it was put to the appellant that the complainant had not acted aggressively towards him. The appellant agreed, qualifying his answer by saying that the complainant’s conduct in standing close and touching him had made him feel uncomfortable and that the complainant had then “come at” him in an aggressive way, walking quickly and pointing at him. It was put to the appellant that he had reacted out of anger rather than fear, but he maintained that he had feared for his safety, adding “mainly for [F] because of the way they were arguing before …”
Submissions
At the conclusion of the evidence, the prosecutor submitted that the Magistrate should not accept that the appellant had believed that it was necessary to act as he did.
The appellant’s full submission to the Magistrate was:
I did honestly fear for my safety and [F’s]. I didn’t know what he was going to do, I didn’t know why he was following me. She was obviously very upset, the way she was speaking and she was very upset. And yes, I thought I was doing the right thing, defending myself and the person I was with.
Ground 1: Apprehended bias
Evidence supporting the apprehended bias ground
The appellant sought leave to adduce fresh evidence to establish the apprehended bias ground. The evidence comprised email correspondence between the primary judge, her associate, and the respondent’s lawyers (prosecutors within the Office of the Director of Public Prosecutions) that was exchanged between 7 and 18 December 2018.
Section 37N(3) of the Supreme Court Act 1933 (ACT) enables the Court to receive further evidence on appeal.
As the evidence in question was necessary to enable a proper consideration of the apprehended bias ground, the Court granted the appellant leave to adduce it.
Well after judgment had been reserved and about two weeks before it was delivered, on 7 December 2018 the primary judge’s associate emailed the prosecutor who had appeared at the hearing. The email stated:
I refer to the above matter, and was hoping you may be able to provide the CCTV footage shown during the appeal hearing.
Justice Penfold wishes to review the footage and unfortunately the copy retained by the Magistrates Court Registry no longer works.
Please let me know if you may be able to assist.
The prosecutor replied by email that she could not locate another copy of the disc containing the footage. She advised that the appellant’s lawyer or the police may have a copy.
The associate responded, asking the prosecutor to seek a copy from the police.
On 10 December 2018, a second prosecutor confirmed by email that the police had been asked to provide a copy of the CCTV footage tendered before the Magistrate.
On 11 December 2018, the primary judge’s associate inquired by email of the second prosecutor as to when the footage would be available.
The appellant’s counsel was not copied into any of the above email correspondence.
At 11:35 AM on 18 December 2018, the primary judge herself emailed the second prosecutor, copying in the first prosecutor but not the appellant’s lawyer. Her Honour wrote:
Dear [prosecutor]
Do you have any update on this matter? I note that the real problem is not that we don’t have a DVD with the footage on it, and not necessarily that the DVD we have “no longer works”, but that no-one here can work out how to play it – it doesn’t seem to open with any of the normal options that are offered for a DVD.
Which among other things might mean that the next copy (if it ever arrives) is just as unreadable …
[emphasis and ellipsis in original.]
At 11:44 AM on 18 December, the first prosecutor replied as follows, without copying in the appellant’s lawyer:
Hi Judge,
I now have a USB Stick containing the footage (sitting on [the second prosecutor’s] desk!) – I have been able to play the footage on my computer – although it is a little challenging to open.
I can deliver it to you now (or today) whenever is convenient?
At 12:25 PM on 18 December, the primary judge herself replied as follows, copying in the appellant’s lawyer:
Thanks for this – at this stage I should await a reply from [the appellant’s counsel] to my very recent reply to you (before I saw this). I shall copy this to him as well, and he may be comfortable if you bring the USB over and explain how to open it.
[emphasis added]
This was the first time that the appellant’s lawyer had been copied into an email. However, the italicised part of the 12:25 PM email suggests that the primary judge may have mistakenly thought that she had copied the appellant’s lawyer into her first email, the 11:35 AM email.
In any event, upon receipt of the primary judge’s second email at 12:25 PM on 18 December, the appellant’s lawyer was able to see the whole email chain between the prosecutor’s office and the primary judge and her chambers.
At 1:04 PM on 18 December, the appellant’s lawyer wrote to the primary judge as follows, copying in the prosecutor:
Whilst I have no objection to anyone from the DPP delivering to your associate a copy of the same footage played before the Magistrate (assuming someone from their office can confirm it is indeed the same footage – the appellant was self represented in that Court so I don’t know exactly what was played in Court), I would respectfully suggest it may be more appropriate if someone from the DPP simply provides written instructions as to how to open the file, other than a prosecutor speaking to you in chambers about it.
I do not need to be present for your viewing of the footage, assuming it is not proposed that anyone from the DPP be present either.
[emphasis in original.]
We infer that the prosecutor later explained how to open the CCTV file, thereby enabling the primary judge to view the CCTV footage prior to 20 December 2018, when her Honour delivered the judgment that is the subject of this appeal, in which she referred extensively to the footage.
On 15 January 2019, the appellant’s lawyer inquired of the prosecutor’s office as to whether there had been any email exchange other than the email chain disclosed on 18 December. The prosecutor’s office confirmed that there had been no other email correspondence.
Principles applicable to the apprehended bias ground
When an appellant claims apprehended bias, the appeal court should first deal with that ground and, if the ground is established, the appeal court should remit the matter, regardless of its view about the merits of the decision below: Eastman v DPP (No 13) [2016] ACTCA 65 at [61], citing AJH Lawyers Pty Ltd v Careri [2011] VSCA 425; 34 VR 236 at [18].
The well-established test for apprehended bias is whether a fair-minded lay observer might reasonably apprehend that the judge might not bring an impartial and unprejudiced mind to the resolution of the question that the judge is required to decide: Ebner v Official Trustee in Bankruptcy [2000] HCA 63; 205 CLR 337 at [6]; Michael Wilson & Partners Ltd v Nicholls [2011] HCA 48; 244 CLR 427 at [31]. See recently in this jurisdiction: Legal Practitioner v Law Society of the Australian Capital Territory [2018] ACTSC 351 at [30].
In John Holland Rail Pty Ltd v Comcare [2011] FCAFC 34; 276 ALR 221 (John Holland) at [12] the Full Federal Court confirmed the general proposition that “a judge should not receive any communication from anyone concerning a case that the judge is to decide, made with a view to influencing the conduct or outcome of the case”. Generally, it is wrong for a party to communicate unilaterally with a judge’s chambers in relation to the substantive issues in their litigation: John Holland at [23].
In John Holland, there had been unilateral communications between a party’s solicitors and the judge’s associate concerning the convening of a directions hearing. The Full Court noted that unilateral communication between a party’s solicitors and a judge’s chambers is not always improper; it depends on all the circumstances, including the subject matter and the nature and extent of the communication. At [22]–[23], the Court stated:
There is no impropriety in a party’s unilateral communication with chambers in relation to procedural, administrative or practical matters, although a sustained sequence of communications not circulated to the other parties, even in relation to matters of this kind, could, at a certain point, become unprofessional or improper in the absence of some good reason.
On the other hand, save in the unusual circumstances warranting an ex parte application, it is clearly improper for parties or their practitioners to attempt to communicate unilaterally with a judge’s chambers in relation to the substantive issues in the litigation …
Where a legally represented party has failed to object to questionable conduct in a timely manner, their acquiescence may amount to a waiver of the right to claim apprehended bias on an appeal. In Vakauta v Kelly (1989) 167 CLR 568, a judge had made inappropriate comments in the course of a trial without a jury. At 572, Brennan, Deane and Gaudron JJ observed that:
Where such comments which are likely to convey to a reasonable and intelligent lay observer an impression of bias have been made, a party who has legal representation is not entitled to stand by until the contents of the final judgment are known and then, if those contents prove unpalatable, attack the judgment on the ground that, by reason of those earlier comments, there has been a failure to observe the requirement of the appearance of impartial judgment. By standing by, such a party has waived the right subsequently to object.
Toohey J expressed similar views at 587–588.
Consideration of the apprehended bias ground
Where possible, communications between a judge’s chambers and lawyers about administrative or procedural matters relating to a matter that is part heard before the judge should be between the judge’s chambers staff and the lawyers for all parties to the proceedings. Direct communication by the judicial officers themselves or communication by a judge’s chambers with only one party may tend to undermine the appearance of judicial detachment and impartiality, or raise concerns about procedural fairness.
Email communication commonly adopts an informal tone, which may be inconsistent with the appropriate relationship between a judicial officer and the lawyers appearing before them; it may convey an impression of inappropriate warmth between the correspondents. Further, email is an immediate form of communication; it invites haste and inadequate consideration of tone, substance, and the identity of the recipient/s: see, e.g., EOX17 v Commonwealth [2019] FCA 1118.
In this case, both emails that emanated from the primary judge were informal in tone. In her 11:35 AM email, the primary judge addressed the second prosecutor by his first name. The primary judge “signed” both emails using her first and last names, rather than her judicial title. The first email was sent only to the prosecutor and it was sent in the context that earlier communications from the judge’s associate had also been sent only to the prosecutor.
It would have been better if all communications had been between the judge’s associate and the lawyers for both parties, and if the correspondence had been more formal in tone.
But, having regard to the email correspondence, might a fair-minded lay observer reasonably apprehend that the primary judge might have failed to bring an impartial and unprejudiced mind to the resolution of the substantive issues before her? In our view, it would not.
First, the correspondence concerned the means by which the primary judge could access an important but uncontroversial prosecution exhibit that she needed to view in order to decide the appeal, which was by way of rehearing. The correspondence concerned an administrative or procedural matter, not a substantive matter.
Second, the terms of the 12:25 PM email suggest that the primary judge had intended to copy the appellant’s lawyer into all the correspondence that she authored, including the first email that she had personally sent at 11:35 AM.
Third, at the time when it came to his attention the appellant’s lawyer was not concerned about the email correspondence and raised no complaint about it. By 1:04 PM on the day when the primary judge sent the two emails upon which the appellant’s complaint has focused, the appellant’s lawyer was aware of their content and the content of the whole email chain between the primary judge’s associate and the prosecutors. Although he was an experienced criminal lawyer, he did not object to the proposal that was the subject of the email chain, other than suggesting that it may be inappropriate for the prosecutor to attend the judge’s chambers for the purpose of assisting the judge to open the CCTV file.
The appellant contended that his concern about the primary judge’s impartiality was heightened when her Honour’s judgment (dismissing his appeal) was delivered only two days after the conclusion of the email correspondence.
There was no legitimate reason for the appellant to experience heightened concern when the judgment was delivered two days later. It must have been obvious that the primary judge wished to view the CCTV footage for the purpose of reaching judgment. It was consistent with her Honour’s request to access the exhibit that she intended to deliver judgment within a few days of accessing the exhibit.
In any event, the appellant waived any right to complain of apprehended bias. On 18 December 2018, his lawyer became aware of all relevant communications but failed to object. It was not until a month later, on 15 January 2019, that the appellant’s lawyer inquired whether there had been other communications and was advised that there had been no other communications. The enquiry was made belatedly, and in the context that the appellant had lost the proceedings before the primary judge and was about to lodge an appeal.
This ground of appeal fails.
Ground 2: It was not open to the primary judge to find that it was open to the Magistrate to return a verdict of guilty
The Magistrate’s decision
When considering the evidence, the Magistrate said:
But no evidence of him acting aggressively, other than your perception of it, as you have given evidence about. … that is your view of it. … But at that point in time, when it is completely open to you, there is no large crowds around, it’s not like you can’t walk away, you could easily have just continued walking off in the direction that you are headed for … And the way that the strike on Mr Bugden occurs is swift and without any warning whatsoever…
The Magistrate correctly articulated the two limb test relevant to self-defence by reference to Zecevic v DPP (Vic) (1987) 162 CLR 645 (Zecevic); Mulcahy v The Queen [2012] ACTCA 3; Dziduch v The Queen (1990) 47 A Crim R 378 and R v Forsyth [2013] ACTSC 174, stating:
… as established in R v Forsyth, the prosecution needs to establish beyond reasonable doubt, at the time the accused acted, the accused did not believe that it was necessary in self-defence to do what he did, [or] there [were] no reasonable grounds in the circumstances as he perceived them to be, for such a belief. … The reasonableness of the accused’s belief [is] to be assessed objectively.
First, the Magistrate considered the appellant’s subjective belief, noting that the appellant had given evidence that his subjective belief had been informed by an earlier knife assault on him. His Honour was satisfied that, subjectively, the appellant had not believed that it was necessary in self-defence to do what he did. His Honour concluded:
I am unable to be satisfied at all … that you could possibly have formed the belief, notwithstanding your past experiences, that he was going to act in a physical way towards you. Just watching the way he moves towards you, it is simply not made out …
Next, the Magistrate addressed the second limb of the test in Zecevic, stating:
But even if I am wrong in that … even if I go to the second test, there is no reasonable grounds for you to apply the force that you do, in order to protect yourself because you take that pre-emptive strike and … at the most vulnerable part of a person’s body, … their head, you make no attempt to continue walking, and … you stand propped, ready and waiting for him to come back to you.
… it is almost like an invitation, you put out him, to continue the engagement even though you have walked some 10 m away, 15 m away. … you had no reason to stop and continue and put yourself in that position …
[emphasis added.]
Although the prosecution may negate self-defence by negating only one limb of the Zecevic test, in this case the Magistrate was satisfied that the prosecution had negated both limbs.
Primary judge’s decision
In the primary judge’s reasons for decision, her Honour noted (relevantly) that the appellant had appealed on the grounds that the Magistrate’s decision was unsafe and unsatisfactory and that the Magistrate had erred in his application of the law of self-defence.
At [25] of her Honour’s reasons, the primary judge said:
I do not disagree with the Magistrate’s description of events as shown in the CCTV footage. I share the impression of both his Honour and, apparently, Mr Clifton (as indicated in his evidence…), that until Mr Clifton hit Mr Bugden, it was only Mr Bugden and Mr Clifton’s companion [F] who engaged in any kind of aggressive or hostile interaction. I note also that:
(a)Mr Bugden’s only contribution to that interaction appeared to be words and some hand gestures, not apparently threatening;
(b)there was a point during the interaction in which [F], as well as apparently participating in the verbal exchanges, pushed Mr Bugden away while he was engaging with Mr Clifton; and
(c)after Mr Bugden had been hit and was in the foetal position on the ground [F] approached him and, apparently quite deliberately, kicked him hard in the area of his groin.
[emphasis added.]
As to the question of self-defence, the primary judge observed that the Magistrate had placed considerable weight on the CCTV footage when concluding that the appellant had not held the necessary subjective belief (the first limb of the Zecevic test of self-defence). At [59], her Honour said:
Furthermore, Mr Clifton’s evidence about the CCTV footage included several unconvincing attempts, almost all made in cross examination, to undermine the impact of [the CCTV footage] by claiming other aspects of the events that, he said, did not appear in the footage. The emphasised passages in Mr Clifton’s evidence [set out earlier in the judgment] include claims that threats were made (but without any attempt to describe the content of the threats), and references to Mr Bugden’s body language being aggressive in ways not shown on the CCTV footage (despite his concession that Mr Bugden had never acted aggressively towards him).
[emphasis added.]
At [61]–[63], her Honour concluded that the Magistrate had misunderstood or misapplied neither limb of the Zecevic test.
Having dealt with the ground that alleged that the Magistrate had erred in his application of the law of self-defence, the primary judge went on to consider the ground of appeal claiming that the decision of the Magistrate was unsafe and unsatisfactory; the only substantive ground that was agitated in this appeal.
At [69], the primary judge said:
This ground was not argued specifically, and I have not found either any error of law by his Honour, or any gap or flaw in the evidence, that could have raised a doubt about the safety of his Honour’s finding of Mr Clifton’s guilt.
At [72]–[73], her Honour said:
My own viewing of the CCTV footage, taken together with the transcript of Mr Clifton’s evidence, leaves me in no doubt that the charge had been established beyond reasonable doubt by the evidence before the Magistrate, and that there is no significant possibility in this case that an innocent person has been convicted …
As to my description of the CCTV footage at [25] above, I note that [F’s] behaviour during the incident is not directly relevant to whether Mr Clifton acted in self-defence, or specifically to his beliefs or to whether there were reasonable grounds for them. However, in my view, it is part of the context of the incident and accordingly relevant to the credibility of Mr Clifton’s claim that he was concerned for [F’s] safety. Nothing in her behaviour as recorded in the CCTV footage gave me the impression that she felt threatened by Mr Bugden as distinct from feeling hostile towards him.
[citation omitted.]
Like the Magistrate, the primary judge found that the evidence satisfied both the first and second limbs of the Zecevic test for self-defence.
Appellant’s submissions on this appeal
The appellant submitted that, as the Magistrate had made no adverse observation about the appellant’s demeanour as a witness, there had been no direct attack on the appellant’s credit and there was no inconsistency between the appellant’s evidence and the CCTV footage, the primary judge (and this Court) were not disadvantaged in their assessment of the appellant’s credibility.
The appellant submitted that this Court should find that the CCTV footage provided some corroboration of the appellant’s assertion that he had been fearful. During the first exchange between the appellant and the complainant, the appellant had taken a step back and then walked away, indicating that he had wanted nothing further to do with the complainant. Further, the CCTV footage showed that the complainant had walked towards the appellant with his hand raised, “gesticulating” in a manner consistent with the appellant’s claim that, at that stage, the complainant had been yelling abuse.
The appellant contended that, in those circumstances, it was wrong for the primary judge to have characterised the appellant’s evidence as containing “several unconvincing attempts” to dilute the impact of the CCTV footage (at [59] of the judgment, [57] above) and to have described that the complainant’s conduct was “not apparently threatening” (at [25] of the judgment, [56] above).
We interpolate to note that her Honour’s reference to the complainant’s actions as being “not apparently threatening” was not—as submitted by the appellant—by way of dismissing the appellant’s evidence as lacking credibility. Rather, in the context of describing the contents of the CCTV footage, her Honour was observing that there was nothing that was clearly threatening about the manner in which the complainant used hand gestures towards the appellant as the complainant was walking towards him. When her Honour referred to “several unconvincing attempts” by the appellant to dilute the impression of unjustified assault that was conveyed by the CCTV footage, her Honour was merely saying that she was not convinced that the appellant’s responses in cross examination in any way justified his “pre-emptive” punch.
The appellant’s ultimate submission was that, given that the complainant’s conduct (including his verbal conduct) was somewhat threatening and given the appellant’s prior personal experiences, it had not been open to the primary judge (or the Magistrate) to be satisfied beyond reasonable doubt that the appellant had not believed that it was necessary to do what he did in order to defend himself and F. Further, it had not been open to the primary judge (or the Magistrate) to be satisfied beyond reasonable doubt that the appellant’s response was not a reasonable response in the circumstances as the appellant had perceived them to be.
Was it open to the primary judge to find that self-defence was negated?
The principles that are to be applied when deciding whether a verdict is unreasonable were summarised recently in ED v The Queen [2019] ACTCA 10. At [43], the Court said:
(b) The appeal court is to make its own independent assessment of whether, on the evidence, there is a reasonable doubt as to guilt, but in doing so it must give full weight to the primacy of the jury and their “advantage” in “seeing and hearing” the witnesses ...
(c) On an appeal against conviction on the ground that a verdict was unreasonable, the ultimate question is whether, upon the whole of the evidence, it was open to the jury to be satisfied beyond reasonable doubt that the accused was guilty. …. The question is “whether the jury must, as distinct from might, have entertained a doubt about the appellant’s guilt” …
[citations omitted.]
As we observed at the outset, this appeal is a rehearing of appeal proceedings before the primary judge that were themselves a rehearing of proceedings before the Magistrate. In Legal Practitioner v Council of the Law Society of the ACT [2017] ACTCA 6 at [18], this Court said:
As a general statement, the Court observes that where an appeal is in essence an appeal from an appeal … the appellant is confined to identifying error in the decision in the court below, and is not permitted to mount a fresh attack on the decision of the original tribunal … This is not to say of course that errors in the court below dealing with the earlier decision cannot be the subject of complaint. The errors however must be errors of the court below and not be the subject of a renewed assault on the decision of the original court or tribunal.
In our view, it was well open to the primary judge to find that it had been open to the Magistrate to find that self-defence had been negated.
The first point to be noted is that, while it was raised before the primary judge, the contention that the Magistrate’s verdict was “unsafe and unsatisfactory” was not the focus of the appeal before her Honour. The appeal to the primary judge focused on assertions that the Magistrate had made specific errors of law. Consequently, the primary judge addressed the “unsafe and unsatisfactory verdict” ground only briefly and, while her Honour examined the evidence, she did so primarily for the purpose of determining whether the Magistrate had correctly applied the Zecevic test for self-defence. The appellant’s change of tack between the first and second appeals made it difficult for this Court to grapple with factual issues that the appellant had glossed over on the first appeal but sought to rebirth on this appeal. In particular, on this appeal the appellant contended that the primary judge had made a factual finding about the appellant’s subjective state of mind that had not been open to her Honour.
For present purposes, we are prepared to assume that, as a matter of fact, the complainant’s physical and verbal conduct had caused the appellant to feel some discomfort and fear. However, that factual assumption does not greatly advance the appellant’s position in relation to self-defence. The first limb of the Zecevic test involved a consideration of the appellant’s subjective belief about the level and nature of any threat and what was necessary in response to a threat of that level and nature. Of course, consideration of those issues involved the application of the correct onus and standard of proof and an appreciation that the events leading up to the incident afforded limited opportunity for reflection.
On the one hand, the appellant asserted that he had thought that the complainant was “closing” on him and was about to hit him. On the other hand, he said that, immediately prior to the incident, F and the complainant had engaged in a verbal altercation and the complainant had then “gesticulated” towards the appellant and F, swearing and abusing them. It was in that context that the appellant had felt “threatened” and fearful, more for F than for himself. He had determined to do the “right thing” and “defend” himself and F.
It is clear from the primary judge’s reasons that her Honour considered that the context of hostility between the complainant and F was important to an understanding of the appellant’s subjective belief at the time that he struck the complainant; it suggested that the appellant was more concerned about defending F’s argument than her person. Further, having regard to the CCTV evidence and the appellant’s cross examination, her Honour concluded that, objectively, there had been no obvious physical aggression on the part of the complainant.
Relying on those facts, it was open to the primary judge to conclude that, at the time when he struck the complainant in the face, the appellant did not subjectively believe that the level and nature of the threat was such that it was necessary for him to do so.
In addition, it was open to the primary judge to find that, even if the appellant had subjectively believed that it was necessary to do what he did in order to defend himself and F, that belief was not reasonable in the circumstances as perceived by the appellant. The Magistrate had made that finding. In doing so, in his Honour had referred to the facts that the appellant’s conduct was “pre-emptive” (it was not preceded by any clear physical aggression by the complainant), the punch was delivered to the complainant’s head (the most vulnerable part of a person’s body) and the appellant had chosen to stand his ground rather than walk away. Inferentially, the primary judge adopted that reasoning. It was open to her Honour to do so; indeed, any other approach would have been surprising.
At its heart, appeal ground 2 was an attempt to re-open factual findings that had been made by the Magistrate and affirmed by the primary judge. It involved canvassing a ground of appeal that had not assumed significance before the primary judge and which, as a consequence, had received limited attention from her Honour. It was yet another example of an appeal from an appeal concerning a matter that had been adequately resolved in the first appeal (and, in this case, in the Magistrates Court).
Ground 2 is not made out.
Order
The appeal is dismissed.
| I certify that the preceding seventy-nine [79] numbered paragraphs are a true copy of the Reasons for Judgment of their Honours Chief Justice Murrell, Justice Burns and Justice Wigney. Associate: Date: |
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