Clifton v Duong
[2018] ACTSC 346
•20 December 2018
SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
Case Title: | Clifton v Duong |
Citation: | [2018] ACTSC 346 |
Hearing Date(s): | 2 March 2017 |
DecisionDate: | 20 December 2018 |
Before: | Penfold J |
Decision: | 1. The appeal is dismissed. 2. The matter is remitted to the Magistrates Court for sentence. |
Catchwords: | APPEAL AND NEW TRIAL – APPEAL – Criminal law – appeal against finding of guilt – appeal dismissed |
Legislation Cited: | Evidence Act 2011 (ACT) s 110 |
Cases Cited: | Dal Cortivo v The Queen [2010] ACTCA 14; 204 A Crim R 55 M v The Queen (1994) 181 CLR 487 Zecevic v Director of Public Prosecutions (Vic) (1987) 162 CLR 645 |
Parties: | Robert Clifton (Appellant) Alan Duong (Respondent) |
Representation: | Counsel Mr P Edmonds (Appellant) Ms R Khazma (Respondent) |
| Solicitors Paul Edmonds & Associates (Appellant) ACT Director of Public Prosecutions (Respondent) | |
File Number: | SCA 68 of 2016 |
Decision under appeal: | Court/Tribunal: ACT Magistrates Court Before: Magistrate Cook Date of Decision: 26 August 2016 Case Title: R v Clifton Court File Number(s): CC15/11141 |
Introduction
On 26 August 2016 Magistrate Cook found that an assault occasioning actual bodily harm by Robert Clifton had been proved, and adjourned the matter for sentence. Mr Clifton has appealed against that finding, and sentencing has been adjourned pending the determination of the appeal.
Competence of appeal
His Honour did not explicitly go beyond a finding of “the offence being proved”, and in particular did not mention recording a conviction, but since the Full Court decision in Parkinson v Alexander [2016] ACTSCFC 1; 11 ACTLR 190 at [107]:
A finding by the Magistrates Court that an offence has been proved (a finding of guilt) is a “conviction” within the meaning of s 208(1)(b) of the [Magistrates Court Act 1930 (ACT)].
Accordingly, an appeal lies to this court from a finding of guilt in the Magistrates Court even where a conviction as such is not mentioned and is not formally recorded.
Magistrates Court proceedings
Proceedings in the Magistrates Court took an extended period, apparently because there were complications about Mr Clifton’s access to legal aid. Mr Clifton was unrepresented when he was charged on 27 November 2015, and the matter was adjourned to 18 December 2015. On that day Mr Clifton said that he had an appointment with Legal Aid on 23 December 2015. It seems that there was a grant of legal aid which was later withdrawn because he had access to other financial assistance; in the meantime, Mr Clifton’s representation seemed to change frequently, and at further mentions he was variously represented by lawyers from the Legal Aid Office, including duty lawyers, and by a private practitioner. The matter was set down for hearing on 26 August 2016, but on 22 August the Legal Aid Office was given leave to withdraw, because the grant of legal aid had been terminated, and on 26 August the matter went ahead, with Mr Clifton again unrepresented. He did not seek an adjournment, either before the hearing began or at any time during it.
It was not in dispute that, early on the morning of 15 November 2015, outside the front of King O’Malley’s pub in Civic, Mr Clifton punched the complainant Christopher Bugden in the face once. Mr Bugden suffered injuries to his face, and Mr Clifton did not dispute that these injuries amounted to actual bodily harm.
The only issue in the hearing was whether Mr Clifton had acted in self-defence.
The evidence
Prosecution witnesses
The prosecution called three witnesses, being the complainant Mr Bugden and two police officers who became involved after the incident, Sergeant Robert Leister and Constable Alh Duong.
Mr Bugden had little or no recollection of the incident. He described spending the afternoon and evening at a succession of pubs and bars, and arriving at King O’Malley’s late in the evening. At that point, he estimated, his level of intoxication was 7 on a scale of 1 to 10 (“1” being sober). He recalled staying outside to have a smoke while his friends went into King O’Malley’s, but then “that’s when I don’t remember anything else after that”. Asked whether he could recall anything else about his evening, he said:
After it, when I was – I think when I came to, when I got woken up off the ground, that’s when I seen the accused over with the police officer and stuff like that so - - -
Mr Bugden gave evidence that he had no cut on his face when he got to King O’Malley’s, but when he woke up on the ground, someone was cleaning his face, and he had “a blood nose and a split eye”, for which his wife had later provided first aid.
Mr Clifton had no questions for Mr Bugden.
Sergeant Leister had arrested Mr Clifton on the night of the incident, but had not seen the incident itself. He did, however, see the aftermath of the incident, in which Mr Bugden ran at Mr Clifton while he was handcuffed, and Mr Clifton asked Sergeant Leister to protect him, which he did.
Constable Duong had arrived on the scene of the incident after Mr Clifton was arrested; he had observed Mr Bugden running towards Mr Clifton looking angry and with a clenched fist. Mr Bugden was also briefly handcuffed.
Constable Duong had not “had any interaction” with Mr Clifton on the night of the incident, or subsequently. Constable Duong had obtained CCTV footage of the incident from another officer, who had requested it from King O’Malley’s. In cross-examination, Constable Duong said he had been unable to observe whether Mr Clifton was “aggressive, calm, compliant, upset”.
None of these witnesses mentioned Mr Clifton having been intoxicated.
The CCTV footage was played in court. His Honour summarised it in the course of his reasons:
Ultimately, as can be seen from the video footage, and there appears for one brief moment, whether or not there is anything said, there is no evidence led on it but there appears to be an interaction between – just on the corner when your female companion starts to move around the group, there is an interaction by Mr Bugden to that female companion because she looks at him and he looks directly at her. Now whether or not that is the start of something I’m not sure, but there is no evidence led on it. But that seems to be the start of how matters seem to develop.
She then walks up to your location and it is clear from the footage that it seems to me that Mr Bugden then walks to your location where you are smoking a cigarette and you hand the jacket to your female companion and at the time of doing that, he is very close to both of you, he is having an interaction with you. He places a hand on your shoulder. You shake his hand, not only do you do it once but you do it twice.
...
But whatever it is, you are managing the situation, he appears to be a person who is affected by alcohol and you are dealing with this person who is intoxicated on his own scale of seven out of10. And then there appears to be ongoing interaction between your partner, on that occasion, and him, but what is said, no evidence is put about that. What then happens of course is unmistakably clear from the CCTV footage. You walk away with your companion and he remains there, he turns back and then he turns back up towards you and he watches you. You both walk away but then you stop. You stopped and turned back towards him. And you stand back in a way which – and he’s pointing at you, and it’s done in a way which has an observation seems to be inviting further discussion or contact. And so he moves up to your location. He gets within about an arm’s-length of you and then you hit him in the face. And it’s without warning, without any provocation from him, without any arm’s being raised by him, without any clenching of his fist. Even as you watch him move towards you there is no clenching of his fist or an aggressive demeanour. He is still the same person, intoxicated, just as he was moments ago before you.
But no evidence of him acting aggressively, other than your perception of it, as you have given evidence about.... But at that point in time, when it is completely open for 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, as you say to a taxi on a linger street, but you don’t. And the way that the strike on Mr Bugden occurs is swift and without any warning whatsoever.
Defence witnesses
Mr Clifton then gave evidence.
He described having been at a wedding, after which he and a woman he had met at the wedding went into Civic, arriving at King O’Malley’s after 1.00 am. After he and his companion had decided to go home, he had been standing outside King O’Malley’s and was able to observe Mr Bugden being refused admission to King O’Malley’s because of what Mr Clifton described as his “intoxicatedness”.
He described the incident from the point at which Mr Bugden was refused admission:
He wasn’t being rude or – he was (indistinct) and he was shaking hands with everybody I noticed but he didn’t seem like he was trying to make friends, he was pretty off his head. So I was seeing the girl I was with come out of the pub and I thought oh good we’ll go. And we walked – started walking and then I heard Chris yelling out stuff and I stopped again. ….
I turned around, looking down the road, down that street (indistinct) pointing at me and swearing, abusing me and then him and the female I was with had an altercation, they were swearing at each other and stuff. And then he approached me and I thought he was going to hit me and yes, I – I hit him.
And then not long after the bouncers from King O’s came out and police attended the scene and they put me – handcuffed (indistinct) and sat me down against the wall outside the – the alcohol shop there, next to King O’Malley’s (indistinct) little bit up and then I observed Mr Bugden waking up on the ground, would have been very angry. Blood all over his face and I was sitting down against the wall in the handcuffs with Sgt Leister in front of me; he was standing in front of me. And then I noticed him making his way towards me and the crowd controller was pulling on his arms, trying to stop him, he kept coming and kept coming. And I stood up behind Constable Leister and then he yelled out to – sorry, Sgt Leister and then he yelled out to Constable Duong, “grab him” meaning Mr Bugden. And Mr – I looked over at Mr Bugden’s face and he was very aggressive and upset, angry and still very intoxicated. And they managed to restrain him down, handcuff him until he calmed down …
In cross-examination, Mr Clifton said that he was very intoxicated himself, and had had 12 or 13 schooners in the course of the day. He gave the following evidence about the CCTV footage:
You agree up until the point where I have just paused the footage, Mr Bugden’s never raised his fist at you?---No.
And he never acted aggressively towards you?---No, but there is no sound on there either. But he was making me very uncomfortable at the time, putting his hands on me, coming that close as well. Like I said (indistinct) before and I don’t like it. I didn’t know him; I didn’t know who he was. This is where he started getting angry (indistinct).
You agree you are the person who hit Mr Bugden?---Yes.
And you would agree at no point in that footage did he have his fist raised that you? He was never acting aggressively towards you?---Maybe not by your view, but by that body language and the way his walking at me and raised his hand pointing and the speed he’s coming at me, being (indistinct) was aggressive.
He never threatened you?---Well, you can’t hear it, no.
HIS HONOUR: the question is, he never threatened you?---That’s not true.
MS MCCANN: He didn’t act aggressively towards Emily?---He was – it was the words he was using, that’s why we walked off (indistinct) upset and (indistinct) to walk away.
He never raised his fists at any point that you saw him that night?---No.
You agree with that?---(indistinct)
And you would agree, you struck him first?---Yes.
And not once did he appear to go to hit you?---Not in the footage, no. But looked like his face and the way he came at me and (indistinct)
And you would agree, he was angry after you had hit him?---Yes.
And you would agree that you used significant force?---(Indistinct) enough, yes. I didn’t – I didn’t continue, I stopped with that one. I didn’t jump on him when he was knocked out, kicking him or anything like that. I did that and – and yes.
And you would agree there were a number of people around?---Yes. You could have walked away?---I tried to but he was following. What was going to happen if (indistinct)
He didn’t grab you. You could have walked away, couldn’t you?---Yes.
And you didn’t?---Tried to, but I was in fear of my safety. As I said, I’ve been jumped before and - - -
You were - - -?--- - - - I – and I’ve got evidence of that as well. And yes, (indistinct) plays – it does, it plays on your mind a lot.
You said you were in fear for your safety?---Yes. And - - -
He hadn’t - - -?--- - - - mainly – more for mainly her because of the way they were arguing before I actually started moving. That was - - -
And your evidence was he had never acted aggressively towards her?---No, they were arguing. She was that she was arguing with him, he was arguing with her, they were swearing, you know (indistinct) and that’s why I suppose (indistinct)
But he never grabbed you did he?---No.
There was plenty of space around you, wasn’t there?---He was closing.
You could have run away, couldn’t you?---Yes.
There were bouncers there, weren’t there?---No. Not that I could see. (Indistinct) see anything until they came after (indistinct)
You weren’t in fear for your safety sir?---Yes, I was.
You were angry, weren’t you?---No, I was fine all night. I had a great time.
You were angry because he touched you?---No, not angry, threatened.
And because you are angry, you punched him?---No. Someone who’s walking away isn’t showing anger. Someone who (indistinct) I tried to walk away and I tried to go home, I went to go to the cab rank. I was headed that way if, across the road.
But you didn’t leave did you?---Didn’t make it to the cab rank.
Mr Clifton called two other witnesses, Talanoa Fuka Pomari and Steven Lewis, both security staff at King O’Malley’s.
Mr Pomari could not recall anything much about the incident; he did seem to recall that Mr Bugden had been refused admission to King O’Malley’s, but could not say why.
Mr Lewis gave evidence that inside King O’Malley’s, Mr Clifton was not loud or aggressive, and that in his view Mr Bugden was intoxicated.
Material considered on appeal
The bundle of papers provided to this court from the Magistrates Court contained material prepared for Mr Clifton’s sentencing, including a pre-sentence report and a criminal history. At the request of counsel for Mr Clifton, I have disregarded the pre-sentence report, but counsel sought to rely on the criminal history in relation to appeal ground (iii), and accordingly referred me to its contents.
The Magistrates Court bundle included three of the four exhibits put before the Magistrate, but did not include the original DVD of the CCTV footage of the incident. With the consent of Mr Clifton’s counsel, the footage was shown during the appeal hearing using a copy provided to the respondent prosecutor by police, but given the time that has passed since that hearing, I obtained the original DVD from the Magistrates Court and viewed it again in the course of preparing this judgment.
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 at [18] and [19] above), that until Mr Clifton hit Mr Bugden, it was only Mr Bugden and Mr Clifton’s companion Emily 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 Emily, 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, Emily approached him and, apparently quite deliberately, kicked him hard in the area of his groin.
The appeal
The notice of appeal was lodged on 23 September 2016, and an amended notice of appeal was filed on 17 November 2016. The grounds of appeal were as follows:
i)the decision of the Magistrate was unsafe and unsatisfactory;
ii)the learned Magistrate erred in his application of the law of self-defence;
iii)the learned Magistrate did not have regard to the defendant’s good character;
iv)in the alternative to (i), the Magistrate denied the defendant procedural fairness by rejecting part of his evidence, concerning his being a victim of a prior assault, without offering him an adjournment to call further evidence on point.
The orders sought were:
a)the convictions be set aside and a finding of not guilty be entered; or
b)in the alternative, the matter be remitted for rehearing before a different magistrate.
In the event, appeal ground (iv) was not pursued, on the basis that his Honour had in fact accepted Mr Clifton’s claim that he had been the victim of a prior assault, and ground (iii) was only briefly agitated (at [29] – [41] below).
Failure to have regard to character evidence
The complaint
Appeal ground (iii) is that the Magistrate did not have regard to the defendant’s good character. Counsel for Mr Clifton says that he “clearly raised his good character before the magistrate” when he gave the following evidence:
I’m not usually a violent person. I usually do walk away [but I have been assaulted in the past, where it nearly killed me ... And when I heard him [Mr Bugden] coming up behind me yelling and that and that was pretty similar to the last incident. And yes, I was – I was in fear for myself and the female.
The actual complaint seems to be that his Honour did not in his reasons refer to what is said to be evidence of good character.
I note first that this stand-alone, self-serving claim by Mr Clifton would have carried little weight in his favour anyway. Nor would it have been specifically useful in assessing whether Mr Clifton committed the offence concerned. The claim that Mr Clifton wasn’t “usually” a violent person, and “usually” walked away, would not have taken the Magistrate very far in determining whether on the particular occasion, when Mr Clifton admittedly was violent and didn’t walk away, acting in self-defence could be excluded.
Was this character evidence at all?
The more significant question is whether Mr Clifton’s evidence about his usual approach to apprehended violence amounted to character evidence at all.
Character evidence under Evidence Act
Under the Evidence Act 2011 (ACT), evidence of good character tendered by a defendant is not inadmissible under the hearsay rule, the opinion rule, the tendency rule or the credibility rule (s 110(1)). However, once such evidence is admitted, the prosecution is not precluded by any of those rules from adducing evidence to prove that the defendant is not of good character, either generally or in a relevant respect (ss 110(2) and (3)).
If evidence of good character had been admitted under s 110, the prosecutor might well have sought to adduce Mr Clifton’s ACT and NSW criminal histories. Counsel for Mr Clifton on appeal relied on those criminal histories as evidence that Mr Clifton “was relevantly a person of good character at the time of the incident”, but in my view that is an arguable proposition. It is true that neither of those criminal histories included any offences in the nature of assault, but, as well as a remarkable (but probably irrelevant) number of driving offences, they did contain several offences involving damaging or destroying property, and one of unauthorised possession of a prohibited weapon, being knuckle dusters. The evidence of property damage offences and possession of knuckle dusters, if before the Magistrate, would at least have constrained Mr Clifton’s ability to claim that an offence involving violence was entirely out of character.
In the NSW case of R v Bartle [2003] NSWCCA 329 (Bartle), in which the NSW Court of Criminal Appeal considered whether a claim made by an accused in cross-examination that “... I never been involved in any importation, been selling any drugs” was evidence of good character. The question arising was whether, by making that assertion, the accused had adduced evidence to prove his good character so as to trigger the capacity of the prosecution to adduce evidence of bad character. In Bartle, the court concluded that “an ‘emphatic denial’ of guilt in particular would not entail adducing good character” (at [144]). The Court further indicated (at [145] and [146]) its agreement with the propositions emerging from earlier decisions that:
(a)for the purposes of the uniform Evidence Act provisions, the adducing of evidence of good character generally needs to result from a conscious decision made by the defence to adduce that evidence; and
(b)that such a requirement is unlikely to be satisfied when the material is given by an defendant in a responsive answer to cross-examination (although an unresponsive answer in cross-examination might in some cases be a deliberate attempt to adduce good character evidence).
It is implicit in the discussion in Bartle that, generally, evidence given by a defendant in evidence in chief would be evidence consciously adduced by the defence and therefore subject to s 110(1).
In this case, however, the “evidence” was given by an unrepresented defendant at the end of his evidence in chief, in response to the Magistrate’s question “Anything else you want to say?” In those circumstances, one could not safely assume that this reflected an intentional, tactical decision made in full understanding of the implications for an accused with arguably relevant bad character that could be proved by evidence available to the prosecutor.
In short, Mr Clifton’s claim about how he “usually” behaved does not seem to have been evidence of good character as dealt with in s 110 of the Evidence Act.
Nor was it treated as such by either his Honour or the prosecutor. His Honour did not query whether the evidence should be received or alternatively invite the Crown to rebut it. The prosecutor did not cross-examine Mr Clifton about his criminal history.
Conclusion
If either or both of his Honour and the prosecutor thought about Mr Clifton’s claim, they presumably treated it as no more than some kind of denial of guilt (albeit not even particularly emphatic) which did not raise s 110 of the Evidence Act. If his Honour had seen the evidence as evidence of good character, he would have been obliged to advise the prosecutor of that conclusion to give her a chance to tender the criminal history.
I cannot see how his Honour could have given Mr Clifton the (fairly marginal) benefit of “character evidence” that he was not usually a violent person without risking more significant damage to his case. If he had been warned of the Evidence Act issue, Mr Clifton would have had the choice of pressing his good character evidence and accepting the tender of all or part of his criminal history or, perhaps even more damaging, of withdrawing any reliance on the particular evidence as character evidence (the latter being possibly more damaging because it would have suggested that his criminal history was more relevant than it probably was).
I am satisfied that both his Honour and the prosecutor appropriately, and in fairness to Mr Clifton, refrained from treating Mr Clifton’s comments as good character evidence. I cannot see any error in this respect on his Honour’s part. This appeal ground is not made out.
Application of law of self-defence
Appeal ground (ii) was that his Honour had erred in his application of the law relating to self-defence.
First I note that because Mr Clifton was unrepresented in the Magistrates Court, only the prosecutor made submissions about the law.
Prosecution submissions
The prosecutor correctly set out the Zecevic test (from Zecevic v Director of Public Prosecutions (Vic) (1987) 162 CLR 645 at 661) as follows:
The question to be asked in the end is quite simple. It is whether the accused believed upon reasonable grounds that it was necessary in self-defence to do what he did. If he had that belief and there were reasonable grounds for it, or if the jury is left in reasonable doubt about the matter, then he is entitled to an acquittal.
She also dealt correctly with the impact of intoxication on the first limb of that test, noting that:
Intoxication can be taken into account, in relation to a defence that is based on actual knowledge or belief, and it may be considered in that regard. However, if any part of the defence is based on reasonable belief then intoxication cannot be taken into account. In this case, the fact of intoxication cannot be ignored in determining, as a matter of fact, the knowledge or belief that existed on behalf of the defendant and – but however, regard must be had to all the circumstances and not just his intoxication at the time.
The significance of the bolded sentence, however, is unclear. The first limb of the test as explained in Zecevic relates to the defendant’s belief, which must be honestly held. The second limb of the test expresses the separate requirement that there must have been reasonable grounds for the defendant’s belief; this may in effect be the same as a requirement that the defendant’s belief was reasonable, but as a formulation it tends to distract from the objective approach of the second limb.
Accepting that the test can be expressed as whether the defendant’s belief was a reasonable belief, then the prosecutor’s statement that, in relation to the reasonable belief, “intoxication cannot be taken into account”, does not seem to be correct. In Dal Cortivo v The Queen [2010] ACTCA 14; 204 A Crim R 55 (Dal Cortivo), the Court of Appeal concluded, in effect, that intoxication was relevant in relation to the second limb of the Zecevic test, in that whether there were reasonable grounds for a defendant’s belief was to be assessed having regard to the circumstances as the defendant, in his intoxicated state, perceived them. In other words, the defendant’s intoxication is relevant to each aspect of the Zecevic test, although in different ways; in relation to whether there were reasonable grounds for a defendant’s belief, it is relevant only to how he perceived the circumstances in which he found himself, not directly to assessing the reasonableness of his belief.
However, for reasons explained below, I do not consider that the prosecutor’s apparent misstatement was significant to the issues in this case or to his Honour’s treatment of them.
His Honour’s approach to the law
In his Honour’s reasons, he also began by stating the Zecevic test (as quoted at [45] above). He then went beyond what had been provided by the prosecutor, and cited a passage attributed to the Court of Appeal in Mulcahy v The Queen [2012] ACTCA 3 at [10], as follows:
The accused does not need to prove that he acted in self-defence, rather the Crown must prove that the accused did not act in self-defence. The Crown may prove that the accused did not act in self-defence by proving either:
(1) that the accused did not believe at the time of doing what he did that it was necessary to do what he did, in order to defend himself; or
(2) if he had such a belief that, nevertheless, what the accused did was not a reasonable response to the prevailing circumstances, as he perceived them to be.
I note that, although his Honour attributed this passage to the Court of Appeal, it was in fact part of the trial judge’s directions to himself, which the Court of Appeal approved at [10].
This passage did refer, in relation to the second limb of the test, to the prevailing circumstances as the accused perceived them to be. His Honour subsequently repeated the relevant test in the same form, saying:
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, there was [sic] no reasonable grounds in the circumstances as he perceived them to be, for such a belief.
His Honour did refer to Dal Cortivo, but only to quote a paragraph from the directions given by the trial judge about the elements of the assault offence with which Mr Dal Cortivo was charged. The Court of Appeal said that no exception was taken to this formulation of the elements of the offence; however, in the current case (as in Dal Cortivo), the only issue in the trial was whether the defendant’s action had been taken in self-defence or was in fact unlawful. 25The paragraph quoted by his Honour was accordingly of no significance in determining the live issue in Mr Clifton’s case.
Neither in the material his Honour quoted from other authorities, nor in his own statement of the relevant principles, was there any mention of the impact of intoxication in considering the Zecevic test for self-defence.
His Honour’s approach to the evidence
Having concluded his directions of law, his Honour then referred to the evidence, and set out his conclusions, as follows:
The reasonableness of the accused’s belief to be assessed objectively. Your belief that you provided to the court is that you formed a view, based on past experience, having been assaulted and knifed in the past, that when the threat and in that engagement, lives with you, and that as Mr Bugden approached you, that experience then resurrected itself and on that, you thought to take action first and to do what you did.
The real difficulty in that – maintaining that view, based on the evidence before me, is the speed at which he moves towards you is no different to how he has walked previously when he walked to you the first occasion. He is intoxicated, he is not in a threatening manner, and there might be a word issue going on between you, him, your partner at the time but none of that is evident as to what may have been said to be motivating you to form that view that he was a person who was getting so aggressive that he was going to do something imminently to your safety or to your partner’s safety, requiring you to form a belief that you should act in the manner that you did. I am unable to be satisfied at all of any actions based on the evidence before me and watching the CCTV footage, 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 and there is no evidence that would indicate that that is how he was acting. But even if I am wrong in that, even if I am wrong in the fact that I am unable to properly reflect my observations which I draw from the information provided to me and which has been put in to evidence, there is – 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 in the manner that you do, at the most vulnerable part of a person’s body, generally is their head, you make no attempt to continue walking, and as I have indicated, and as a finding of fact, you stand propped, ready and waiting for him to come back to you.
As I said, it is almost like an invitation, you put out to him, to continue the engagement even though you have walked some 10 m away, 15 m away. And instead of keep walking to the taxi, as you gave evidence, is what you are going to do, today, you had no reason to stop and continue and put yourself in that position and what happens then seems to be directly linked to your own actions. And you engaged with him in the manner that you do, in a direct and most violent way, in striking him in the way that you did, with the speed that you did, with no warning whatsoever. And as it seems to me, looking at the CCTV footage, he would not have been expecting that to have happened at all. In particular, in relation to his last interaction with you, are two handshakes. Slap on the back and off he goes.
Having formed that view, I am reasonably then – I am satisfied then to the standard required of beyond a reasonable doubt that the assault occasioning actual bodily harm by you on 15 November against Christopher Bugden is established on the evidence and you are guilty of the offence to which you have been charged.
(emphasis added)
Consideration
The claim that his Honour erred in applying the law in relation to self-defence is based on the two emphasised passages in the extract from his Honour’s reasons quoted at [55] above.
As to the first, counsel says that the reference to something “requiring” Mr Clifton to form a belief that he should act as he did shows that his Honour was “applying an objective test to the first limb of self-defence”, which, he says, “of course is highly subjective”.
Counsel for Mr Clifton is correct that the first limb of the test is often described as a subjective test, in that it requires consideration of the honest belief of the defendant. However, it is also clear that in determining whether a defendant had the necessary belief, the fact-finder is not confined to looking at the evidence of his belief that is given by the defendant. Rather, the fact-finder may, indeed must, look at any other evidence that may shed light on the credibility of the defendant’s evidence of his belief, and may, depending on the other evidence, reject the defendant’s evidence of what he believed, even to the extent of being satisfied beyond reasonable doubt that the defendant did not have the relevant belief. In this case, his Honour was clearly placing considerable weight on the CCTV evidence of how the incident developed in concluding, beyond reasonable doubt, that Mr Clifton did not have the necessary belief.
Furthermore, Mr Clifton’s evidence about the CCTV footage included several unconvincing attempts, almost all made in cross-examination, to undermine the impact of that evidence by claiming other aspects of the events that, he said, did not appear in the footage. The emphasised passages in Mr Clifton’s evidence quoted at [19] above 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). In fact the evidence given by Mr Clifton was that Mr Bugden had spoken to Mr Clifton’s companion Emily in an offensive manner, and that this had upset her and Mr Clifton, and would have allowed the inference that it was Mr Bugden’s abuse of Emily (but not any physical threat to her or him) that had provoked Mr Clifton’s violence.
I accept the submission of counsel for Mr Clifton that his Honour’s comment that he was “unable to be satisfied that you could possibly have formed that belief” was not the correct formulation of the test he was required to apply, which would have been properly expressed as, for instance, that he was satisfied beyond reasonable doubt that Mr Clifton did not have the relevant belief. However, his Honour’s comment was in my view simply a clumsy way of saying “I am satisfied that you could not possibly have formed that belief”, a conclusion which, if reached beyond reasonable doubt, would have excluded the availability of self-defence.
I do not read his Honour’s comments about the first limb of the Zecevic test as indicating that he has misunderstood or misapplied the relevant law, but as indicating (albeit not elegantly) that he is satisfied, having regard especially to the CCTV evidence, that Mr Clifton did not honestly believe that it was necessary in self-defence to act as he did.
My interpretation of his Honour’s conclusion is reinforced, among other things, by his Honour’s next comment, that if he is wrong about his first conclusion of the test, he proposes to address the second limb of the test as well. He then goes on to do that, by articulating his conclusion that there are “no reasonable grounds for you to apply the force that you do”, and then identifying the grounds on which he reaches that conclusion. In doing so he mentions the evidence from the CCTV footage, including:
(a)Mr Clifton’s pre-emptive strike aimed at Mr Bugden’s head;
(b)that Mr Clifton made no attempt to continue walking [away from Mr Bugden];
(c)that Mr Clifton “[stands] propped, ready and waiting for [Mr Bugden] to come back”;
(d)that Mr Clifton engaged with Mr Bugden “in a direct and most violent way, in striking him in the way that [he] did, with the speed that [he] did, with no warning whatsoever”; and
(e)that given Mr Bugden’s previous interaction with Mr Clifton, involving “two handshakes. Slap on the back and off he goes”, Mr Bugden would not have been expecting any such violent response.
Like his Honour’s consideration of the first limb of the Zecevic test, his comments about the second limb of the test are not elegant, but as in relation to the first limb, I am satisfied that those comments reflect a consideration of the proper test, namely, were there reasonable grounds, in the circumstances as Mr Clifton perceived them, for his asserted belief that it was necessary to act as he did in self-defence. Again, I note that the obligation to consider the circumstances as perceived by the defendant does not oblige the fact-finder to accept everything the defendant says about his perception of the circumstances without first assessing whether that evidence is credible having regard to other evidence of the incident concerned.
Having explained in relation to each limb of the test the evidence on which he has relied to reach his conclusions, his Honour reminded himself, or perhaps simply emphasised, the need for him to be satisfied beyond reasonable doubt about the offence, and concluded by articulating his finding that the offence charged had been established.
In concluding that his Honour had adequately applied the relevant law, I note that his Honour had, only minutes (or one page of transcript) before his criticised comments, properly articulated both aspects of the Zecevic test, including the reference to the relevant circumstances being those perceived by the defendant; this is quoted at [52] above.
I note also that although Mr Clifton did in cross-examination, when explaining why he did not know his companion’s last name, claim to have been very intoxicated, he did not at any point suggest that his intoxication had affected his beliefs about or perceptions of the unfolding incident. Given that Mr Clifton did not rely on that intoxication in seeking to explain his actions, the fact that his Honour did not explicitly address intoxication does not in my view detract from the conclusion that, albeit inelegantly, his Honour adequately applied the law about self-defence.
Appeal ground (ii), that his Honour had erred in his application of the law of self-defence, is not made out.
Unsafe and unsatisfactory verdict
Appeal ground (i) was that the decision of the Magistrate was unsafe and unsatisfactory.
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.
Instead of pointing to matters that might have rendered the verdict unsafe or unsatisfactory, counsel for Mr Clifton used this appeal ground only as a peg on which to hang a submission that if I found error in his Honour’s application of the law of self-defence, I would have three options as follows:
(a)if I considered that the error had not affected the outcome – to dismiss the appeal;
(b)if I considered that the error had led to a miscarriage of justice – to quash the conviction and remit the charge to the Magistrates Court for rehearing;
(c)if I was not satisfied beyond reasonable doubt that Mr Clifton was guilty of the offence charged – to quash the conviction and enter a verdict of not guilty.
Since I have not found any specific error on his Honour’s part, it is not in this case necessary to choose among those options. However, without necessarily approving this somewhat simplified version of the options, I note first that my reasons for concluding that his Honour had not fallen into error rely heavily on my view that his Honour’s identification of the evidence he relied on to reach his conclusions reflected an adequate appreciation of the law that he was required to apply. That evidence came mainly from the CCTV footage of the incident, which was not disputed by Mr Clifton except to the extent that he claimed there were aspects of the incident not recorded in, or apparent from, the footage.
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 (M v The Queen (1994) 181 CLR 487 at 494-495).
As to my description of the CCTV footage at [25] above, I note that Emily’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 Emily’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.
Conclusion
None of the appeal grounds has been made out, so Mr Clifton’s appeal must be dismissed, and the matter will be referred back to the Magistrates Court for sentencing.
| I certify that the preceding seventy-four [74] numbered paragraphs are a true copy of the Reasons for Judgment of her Honour Justice Penfold. Associate: Date: 20 December 2018 |
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