Considine v Police - [2006] SASC 335

SUPREME COURT OF SOUTH AUSTRALIA
(Magistrates Appeals: Criminal)
CONSIDINE v POLICE
[2006] SASC 335
Judgment of The Honourable Chief Justice Doyle
10 November 2006
MAGISTRATES - JURISDICTION AND PROCEDURE GENERALLY - PROCEDURE - INFORMATION AND COMPLAINT - FORM AND SUFFICIENCY - DUPLICITY AND UNCERTAINTY
APPEAL AND NEW TRIAL - NEW TRIAL - IN GENERAL AND PARTICULAR GROUNDS - PARTICULAR GROUNDS - VERDICT AGAINST EVIDENCE OR WEIGHT OF EVIDENCE
The appellant was convicted of assault by a Magistrate after allegedly dousing water on his neighbour, striking her with his fist, and restraining her with a garden hose following an altercation - whether the prosecution evidence disclosed that the charge of assault was duplicitous and in that fashion unfair to the appellant - no application was made before the Magistrate in respect of duplicity - the Magistrate did not raise duplicity with the parties - it cannot be said that the appellant was prejudiced by the form in which the charge was laid - whether the trial miscarried as a consequence of the findings of fact made by the Magistrate - in the circumstances of the case it was open to the Magistrate to make findings of fact that were supported by the evidence but different from the accounts given by the appellant and by his neighbour - whether the Magistrate erred in relation to self defence - the Magistrate's treatment of self defence is unsatisfactory - nevertheless, the claim of self defence cannot be made out for the reason that the appellant's conduct cannot be regarded as reasonably proportionate to the threat that he believed to exist - no error made out - appeal dismissed.
Criminal Law Consolidation Act 1935 (SA) s 15, referred to.
Gazepis v Police (1997) 70 SASR 121, distinguished.

CONSIDINE v POLICE
[2006] SASC 335
Magistrates Appeal: Criminal

DOYLE CJ: Mr Considine has appealed against his conviction for assaulting Mrs Alves at West Croydon on 19 January 2005. Mr Considine and Mrs Alves live next door to one another at West Croydon.
The appeal raises three issues. The first is whether the prosecution evidence disclosed that the charge as laid charged more than one offence, resulting in unfairness to Mr Considine. The second is whether the trial miscarried, because the Magistrate made findings of fact unsupported by the evidence, and without giving fair warning of the approach to the facts that she took. The third is whether the Magistrate erred in dealing with the issue of self-defence.
Facts
According to the prosecution case, Mrs Alves was getting ready for work at about 6.00 am on 19 January 2005 when she heard the noise of water outside her house. When she went outside she saw water all over her verandah. A short time later she left the house and walked towards her vehicle which was parked on the other side of the street. She said that as she walked along her driveway Mr Considine started to abuse her. He was holding a garden hose and, according to her version, he doused her with water as she was walking along her front driveway.
Mrs Alves said that she got into her car, but Mr Considine ran towards her, still holding the hose. Before she could close the car door he pulled her out of the car by the arm and punched her in the face. She said there was a struggle and the hose ended up around her neck.
Mr Considine gave evidence. He agreed that there was water over the verandah next door, but said that it was due to water escaping from the connection joining the hose to the reel.
According to Mr Considine, Mrs Alves spoke to him as she walked towards her front gate. She said she wanted to say something to him. She went over and got in her car. Mr Considine said that, at that point, he realised she had been upset about the water going onto her verandah. He said he raced across the road and he had the hose coiled up in his left hand. The water was still running through the hose. He said he went across to her car, bent down and looked in through the window. Instead of winding the window down, as he expected her to do, he said she got out of the car, took her shoe off and struck him a severe blow on his right hand. He said he was hit with the heel of the shoe. He said he held the hose up between himself and Mrs Alves as he tried to fend off other blows. He said the water was probably wetting both of them in the course of the altercation. He said they then went their separate ways. He denied striking Mrs Alves.
Mrs Alves denied Mr Considine’s version when it was put to her in cross-examination. Mrs Alves’ partner, Mr Ferreira, gave evidence. He said that at about 6.00 am he heard water coming onto his verandah and his bedroom window. He said Mrs Alves went outside and then came back inside. They discussed the water on the verandah and he told her to go to work and ignore their neighbour. He said that later he saw her come back inside. She was wet from head to toe and was bleeding from the mouth. She had some marks on her right arm and on her neck. The police were notified and Mr Ferreira said that later in the morning, he went into the street and searched for some jewellery which he understood Mrs Alves had lost during the incident. He said he found an earring and a bracelet which belonged to her. These items were in the street.
Probationary Constable Philp was one of the two police officers who arrived at approximately 7.00 am. Ms Philp said that Mrs Alves’ clothes were wet and that there was water all over the verandah, down the driveway of the victim’s house and across the street. She spoke to Mr Considine who denied assaulting Mrs Alves and said that she hit him with her shoe. He later declined to answer further questions.
Constable Winterfield was the other police officer who went to the scene of the incident. Both he and Ms Philp said that Mrs Alves identified injuries which she said she incurred during the incident. Constable Winterfield said he saw marks on her face and arms. He said there was a reasonable amount of water leading from the verandah through the front yard and out into the street to where a car was parked on the other side of the street. He said that he and Mr Ferreira spent some time searching out at the front of the victim’s house for some items of jewellery. He could not remember the type of jewellery. Nor could he remember finding anything. He could not recall if anyone else found anything. He said there were no marks on Mrs Alves’ neck.
The only persons who saw the incident happen were Mrs Alves and Mr Considine.
The Magistrate’s Decision
In her reasons for decision the Magistrate commented on the evidence of Mrs Alves and Mr Considine as follows:
Both gave evidence [which] was confused, and confusing if viewed in isolation from the other, reliable, external evidence.
Mrs Alves accurately related to what the defendant did, although she maximised it, but not all of what she did. Her temper was tested in cross-examination in addition to as the content of her evidence [sic]. She exhibited considerable patience and forbearance.
English is not the first language of Mrs Alves. She did not use an interpreter when she gave evidence. Her vocabulary was reasonably good, but her lack of knowledge of English grammar sometimes meant following her evidence was more difficult than usual.
When referring to Mr Considine’s evidence, the Magistrate said:
Despite his previous good character, after having regard to the content of his evidence and his demeanour, I have no doubt at all that the defendant is also a witness who can only be accepted in part. Like Mrs Alves, he accurately related what another person did, and maximized it, and suppressed some of his own conduct.
The Magistrate noted that photographs taken by the police showed a red mark on the right side of the victim’s face and another red mark on her outer right forearm just below the elbow. The Magistrate also noted that Probationary Constable Philp recorded in a prisoner screening sheet that Mr Considine had a cut on his right knuckle.
The Magistrate then summarised her conclusions on the evidence as follows:
Despite the confused and confusing nature of the evidence of both Mrs Alves and the defendant, and the fact that after seeing and hearing them I cannot accept the whole of the evidence of either of them, having regard to the whole of the evidence I am satisfied beyond reasonable doubt that the following events occurred in Ralph Street, West Croydon between 6 am and 6.30 am on the 19^th of January 2005.
The defendant was watering his garden with a hose. Whether he did it voluntarily or involuntarily, he also watered his neighbor’s verandah. When Mrs Alves left her house, and walked across her verandah, a few words were exchanged between her and the defendant. The defendant was irritated by Mrs Alves. He followed her to her car, watering her with his hose. Her car was parked on the opposite side of the street. Constable Winterfield saw the water that fell on the ground beside Mrs Alves as she tried to get to her car from her verandah. When she got into her car, the defendant was nearing her car, still holding the hose with water coming out of it.
When the defendant reached a point near the car door, Mrs Alves got out of the car, took off one shoe, and using the shoe she hit the defendant on a hand he was using to hold the hose. The heel of the shoe broke the skin on the knuckles of the defendant’s hand. The defendant held the hose with two hands and pushed the hose forward, across her shoulder, neck and face. The hose, held tight, left a red mark on Mrs Alves’ face, underneath her right ear.
Mrs Alves partially lost her balance, became frightened and began screaming. She was still holding the shoe. The defendant hit her in the face, with one hand, and backed away.
Mrs Alves ran to her house. Her partner Mr Ferreira called police. Probationary Constable Philp and Constable Winterfield responded to his call.
The Magistrate then considered the question of self-defence, having regard to the provisions of s 15 of the Criminal Law Consolidation Act 1935 (SA). The Magistrate concluded:
Had the defendant not followed Mrs Alves with his hose, squirting her with water all the way, she would not have hit him on the hand with her shoe. But for his own unlawful conduct with the hose, the defendant would not have needed to react to being hit on the hand by her shoe, whether by using the taut hose as a shield against Mrs Alves using her shoe as a weapon, or hitting her in the face when she did not drop it as a result of the hose being applied to her person.
The Magistrate then found Mr Considine guilty of assaulting Mrs Alves.
Duplicity and uncertainty
Mr Sale submits that the prosecution case disclosed four separate matters that might have constituted the assault charged. They are spraying Mrs Alves with water, the act of pulling Mrs Alves from her car, the punch or punches and the use of the hose to restrain Mrs Alves. He submits that the Magistrate should have required the prosecutor to identify the conduct relied upon as the charged act.
No application was made by defence counsel along those lines. It was open to the Magistrate to raise the matter. It would have been preferable if she had done so. But no injustice was caused by the failure of the Magistrate to require the prosecutor to identify precisely the act or acts upon which he relied. It is clear that the parties focused their attention on the use of the hose to restrain Mrs Alves and on the blow to the face. The Magistrate has treated the use of the hose and the blow to the face as constituting the assault. The Magistrate considered the other two matters when considering self-defence, but her reasons indicate clearly enough that she found Mr Considine guilty on the basis of the use of the hose to restrain Mrs Alves and on the basis of the blow to the face.
A complaint of uncertainty or latent duplicity of this kind, raised for the first time on appeal, will ordinarily succeed only if the uncertainty or duplicity has given rise to unfairness.
There is no reason to think that the conduct of the defence case was prejudiced by any uncertainty about the act charged. The conviction is not affected by uncertainty. The pressing of the hose against Mrs Alves’ neck, and the striking of a blow to the face, can be treated as a single incident.
I do not agree that there has been a miscarriage of justice: cf Gazepis v Police (1997) 70 SASR 121 at 129-130 Doyle CJ. I reject this ground of appeal.
Findings departing from the evidence
The prosecution case was that Mr Considine pulled Mrs Alves from her car, punched her and then in some way put the hose against or around her neck. Mrs Alves denied hitting Mr Considine. The defence case was that Mrs Alves got out of the car, struck Mr Considine, and he then fended her off with the hose. He denied striking her.
Mr Sale complains that the Magistrate’s findings are not supported by the evidence of Mrs Alves or of Mr Considine, and that they amount to an unwarranted and unsupported amalgam of both stories. He submits that the prosecution case was not made out, and the charge should have been dismissed, because much of Mr Considine’s evidence was not accepted. He also complains that the trial was unfair because the Magistrate made findings of which counsel for Mr Considine had no warning, and on which he had no opportunity to put submissions.
Clearly enough the Magistrate has not accepted much of what Mrs Alves said. The Magistrate has accepted most of what Mr Considine said happened as Mrs Alves crossed the road, got into her car, got out again and struck Mr Considine. But she has accepted Mrs Alves’ evidence that after that Mr Considine pushed the hose against Mrs Alves’ neck and struck her in the face. The latter findings are supported by the evidence of marks on Mrs Alves, seen shortly after the incident. The findings are supported by Mrs Alves’ evidence, even though the sequence of events (as found) is not as she claimed.
It was open to the Magistrate to accept and to act on some of the evidence of each of the main witnesses. Her findings do not lack an evidentiary basis. It was open to her to accept much of the evidence of Mr Considine, but also to accept part of the evidence of Mrs Alves. As I have mentioned, the finding that the hose was used to restrain Mrs Alves and that the blow was struck was supported by evidence of bodily marks on her.
It is clear from her reasons that the Magistrate formed a firm view that neither Mrs Alves nor Mr Considine were wholly reliable witnesses, and that each minimised their own wrong-doing in the incident. That approach was open to the Magistrate.
In these circumstances it was open to the Magistrate to take the approach that she took. This is not an instance of findings that are a compromise amalgam of two rival versions of an event. Nor do the findings lack a basis in the evidence.
It was not the Magistrate’s duty to dismiss the charge in the light of these findings. The prosecution case rested on the use of the hose and the blow to the face. The fact that the Magistrate found these things happened, although not in the circumstances and sequence described by Mrs Alves, does not mean that the Magistrate could not be satisfied of Mr Considine’s guilt. Satisfaction of guilt did not require the Magistrate to find that the assault occurred as alleged by Mrs Alves. The critical issue was whether it occurred or not.
The complaint of unfairness rests on the fact that the findings depart from the evidence of Mrs Alves and Mr Considine. I asked the Magistrate for a report on this point. She provided a written report. She was unable to provide any assistance on the question of whether counsel, and in particular counsel for Mr Considine (who was represented at the trial) had been warned that the Magistrate might take the approach that she took.
There may be unfairness in the conduct of a trial that will result in a miscarriage of justice, meaning that the appeal should be allowed. What is required to avoid such unfairness will, obviously, depend on the circumstances. It will usually be more difficult to establish unfairness when, as here, both parties are represented.
It was not the duty of the Magistrate to raise with counsel the findings of fact that the Magistrate might make. When hearing submissions the Magistrate might not have formed even a tentative view about the facts. A particular approach to the facts might occur to the Magistrate after the conclusion of the hearing.
The issue is whether fairness required, in this particular case, that counsel for Mr Considine be alerted to the possibility of findings along the lines made, and be given the opportunity to make submissions on those findings.
Even assuming counsel had no warning from the Magistrate as to the course that she took, the findings made are not so surprising or unexpected that it was unfair to make them without giving counsel for Mr Considine an opportunity to make submissions. The objective evidence did suggest the application of force by Mr Considine to Mrs Alves. Apart from acting on that evidence, the Magistrate has to a considerable degree accepted what Mr Considine said. Counsel for Mr Considine must have appreciated that he had to deal, somehow or other, with the evidence as to the marks on Mrs Alves. Nothing put to me in submissions on appeal, and nothing in the affidavit sworn by counsel at trial is of a kind that, had it been raised with the Magistrate at the time, would have provided a persuasive argument against the course that the Magistrate took.
Similarly, counsel for Mr Considine should have realised that the issue of self-defence should be dealt with in case the Magistrate found that Mr Considine struck Mrs Alves. Self-defence should have been addressed because, on Mr Considine’s evidence, anything that he did to Mrs Alves must have been a response to her attack on him.
For these reasons I am not persuaded that the trial was unfair, even if counsel for Mr Considine had no inkling of the approach the Magistrate would take.
Self-defence
Mr Sale submits that the Magistrate misdirected herself on the question of self-defence. Section 15 of the Criminal Law Consolidation Act 1935 (SA) relevantly provides:
15Self-defence
(1)     It is a defence to a charge of an offence if—
(a)the defendant genuinely believed the conduct to which the charge relates to be necessary and reasonable for a defensive purpose; and
(b)the conduct was, in the circumstances as the defendant genuinely believed them to be, reasonably proportionate to the threat that the defendant genuinely believed to exist.
…
(3)     For the purposes of this section, a person acts for a defensive purpose if the person acts—
(a)in self-defence or in defence of another; or
(b)to prevent or terminate the unlawful imprisonment of himself, herself or another.
(4)     However, if a person—
(a)resists another who is purporting to exercise a power of arrest or some other power of law enforcement; or
(b)resists another who is acting in response to an unlawful act against person or property committed by the person or to which the person is a party, the person will not be taken to be acting for a defensive purpose unless the person genuinely believes, on reasonable grounds, that the other person is acting unlawfully.
(5)     If a defendant raises a defence under this section, the defence is taken to have been established unless the prosecution disproves the defence beyond reasonable doubt.
Mr Sale submits that the Magistrate, in the passage dealing with self-defence that is set out above, appears to have found against Mr Considine under s 15(4)(b), concluding that he was not acting for a defensive purpose. He submits that the Magistrate appears to have reasoned that Mr Considine was not acting for a defensive purpose because he started the whole incident, by spraying Mrs Alves with his hose. He submits that the Magistrate failed to ask herself whether she was satisfied beyond reasonable doubt that Mr Considine did not genuinely believe on reasonable grounds that Mrs Alves was acting unlawfully when she got out of the car and struck him with her shoe. Unless she was so satisfied, self-defence had to be considered. He also complains that Mr Considine was not given an opportunity to give evidence about his belief, as a result of the facts (as found) not having been put to him.

Ms Charlesworth, counsel for the police, submits that the Magistrate found that Mr Considine struck Mrs Alves in the face, although he denied that. On her submissions self-defence did not arise, because Mr Considine never claimed to have struck Mrs Alves to defend himself against an attack by her.
I agree that the Magistrate’s treatment of self-defence is unsatisfactory. I agree that she should have addressed the question or issue posed by Mr Alves, and appears not to have done so.
However, in my opinion a claim of self-defence was bound to fail. On the Magistrate’s findings Mr Considine’s conduct, in pushing the hose against Mrs Alves’ throat, and in striking her to the face, was not reasonably proportionate to any threat that Mr Considine might genuinely have believed to exist: see s 15(1)(b). On the Magistrate’s findings there was no threat of a further attack. In any event, it was a situation in which Mr Considine could simply have walked away. Even if it was open to him to fend Mrs Alves off, striking her in the face could not be regarded as reasonably proportionate to any threat that Mr Considine believed to exist.
It is not necessary to consider Ms Charlesworth’s submission that self-defence did not arise, simply because Mr Considine denied ever having struck Mrs Alves. My tentative view is that the defence had to be considered by the Magistrate.
Accordingly, although the Magistrate erred in her approach to the issue of self-defence, on the Magistrate’s findings of fact the claim of self-defence must inevitably have been rejected.
Conclusion
For those reasons all grounds of appeal fail. The appeal against conviction should be dismissed.