Connaire v Austin - [1988] TASSC 42

Serial No 33/1988
List "A"

CITATION: Connaire v Austin [1988] TASSC 42; A33/1988

PARTIES:  CONNAIRE
  v
  AUSTIN

TITLE OF COURT:  SUPREME COURT OF TASMANIA (FULL COURT)
JURISDICTION:  APPELLATE
FILE NO/S:  FCA 59/1987
DELIVERED ON:  31 August 1988
DELIVERED AT:  Hobart
JUDGMENT OF:  Green CJ, Neasey and Cosgrove JJ

Judgment Number: A33/1988
Number of paragraphs: 23

Serial No 33/1988
List "A"
File No FCA 59/1987

CONNAIRE v AUSTIN

REASONS FOR JUDGMENT FULL COURT

GREEN CJ
NEASEY J
COSGROVE J
31 August 1988

Orders of the Court

Appeal allowed.

Judgment and orders of Wright J dated 19 June 1987 set aside.

Judgment and orders of Court of Requests dated 25 March 1987 restored.

Serial No 33/1988
List "A"
File No FCA 59/1987

CONNAIRE v AUSTIN

REASONS FOR JUDGMENT FULL COURT

GREEN CJ
31 August 1988

This is an appeal from a decision by a judge allowing an appeal against a judgment by a Commissioner of a Court of Requests in favour of the appellant. During the hearing leave to appeal was granted upon the application of the appellant. It may be that the appellant did not require leave to appeal but no purpose would be served by exploring that question now.

The facts and the course of the proceedings are set out in the reasons for judgment of the other members of the court.

The learned judge held that the Commissioner's judgment "was based upon correct legal criteria" and, apart from one matter which his Honour did not regard as significant, he was satisfied that the Commissioner's view of the primary facts was correct. The narrow issue before his Honour and this court was expressed by him in these terms:

"The real question for me to consider is whether I am prepared to disagree with his conclusion that the force used by the (appellant) to repel the (respondent's) objectionable behaviour was no more than was reasonably necessary."

The determination of that question involves the making of a judgment which takes into account all the circumstances of the situation in which the appellant found himself. In making that judgment it must be recognised that the circumstances which entitle a person to act in self defence are not conducive to the making of a cool considered assessment of the amount of force which is appropriate particularly when there has been provocation and that therefore it is unrealistic to weigh such conduct on "golden scales" per Richards J in Salor v Klingbiel [1945] SASR 171 at 172. Further, as Lord Morris said when delivering the judgments of the members of the Privy Council in Palmer v R [1971] AC 814 at p832:

"If there has been attack so that defence is reasonably necessary it will be recognised that a person defending himself cannot weigh to a nicety the exact measure of his necessary defensive action. If a jury thought that in a moment of unexpected anguish a person attacked had only done what he honestly and instinctively thought was necessary that would be most potent…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Connaire v Austin

Details

AGLC: Connaire v Austin [1988] TASSC 42
Case: [1988] TASSC 42
Decision Date: 31 August 1988

CaseChat Overview and Summary

Connaire v Austin is an appeal against a decision of the Supreme Court of Tasmania, which upheld an appeal by the respondent against a judgment in favour of the appellant by a Commissioner of the Court of Requests. The respondent had sued the appellant for damages for assault, after the appellant struck the respondent in the mouth in a bar at a farewell function. The appellant counterclaimed, but this seems to have disappeared from the proceedings. The Commissioner of the Court of Requests found for the appellant, holding that he had acted in self-defence and had not used excessive force. The respondent appealed, and the appeal was upheld by Wright J, who held that the appellant had used excessive force. The appellant appealed to the Full Court of the Supreme Court.

The legal issue before the Full Court was whether the appellant had used excessive force in defending himself against the respondent's persistent and humiliating conduct. The Full Court held that the appellant's response was reasonable and justified in the circumstances. The Court held that the appellant had been subjected to a series of humiliating and invasive assaults by the respondent over a period of time, and that the appellant's response was a reflexive one, driven by the respondent's conduct. The Court held that it was unrealistic to expect a person in the appellant's position to weigh the exact measure of necessary defensive action, and that the appellant's response was appropriate and justified.

The Full Court allowed the appeal and set aside the orders made by Wright J. The Court restored the judgment and orders of the Court of Requests, which had found in favour of the appellant. The Full Court held that the appellant's response was not excessive, but was justified and reasonable in the circumstances. The Court held that the appellant's size and other characteristics made him a person whose presence would be noticed, and that the respondent's conduct was likely to have been witnessed by others. The Court held that the appellant's response was appropriate and justified, and that the appeal should succeed. The Commissioner's judgment was restored.

The final orders of the Court were that the appeal be allowed, the judgment and orders of Wright J dated 19 June 1987 be set aside, and the judgment and orders of the Court of Requests dated 25 March 1987 be restored.

Orders