Daou v Horsley
[2015] WASC 20
•23 JANUARY 2015
DAOU -v- HORSLEY [2015] WASC 20
| SUPREME COURT OF WESTERN AUSTRALIA | Citation No: | [2015] WASC 20 | |
| Case No: | SJA:1027/2014 | 5 AUGUST 2014 | |
| Coram: | McKECHNIE J | 23/01/15 | |
| 20 | Judgment Part: | 1 of 1 | |
| Result: | Leave to appeal granted Appeal dismissed | ||
| B | |||
| PDF Version |
| Parties: | CHRISTOPHER JAMES DAOU NEALE JEFFREY HORSLEY |
Catchwords: | Criminal law Assault Whether lack of consent Harmful act Whether reasonable in the circumstances Honest and reasonable but mistaken belief Courts and judges Adequacy of reasons |
Legislation: | Criminal Code (WA), s 24, s 25, s 222, s 248 |
Case References: | Floyd v The State of Western Australia [2013] WASCA 33 Horan v Ferguson [1995] 2 Qd R 490 Lergesner v Carroll [1991] 1 Qd R 206 Steel v The State of Western Australia [2010] WASCA 118 |
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
- IN CRIMINAL
- Appellant
AND
NEALE JEFFREY HORSLEY
Respondent
ON APPEAL FROM:
Jurisdiction : MAGISTRATES COURT OF WESTERN AUSTRALIA
Coram : MAGISTRATE K T FISHER
File No : BU 207 of 2013
Catchwords:
Criminal law - Assault - Whether lack of consent - Harmful act - Whether reasonable in the circumstances - Honest and reasonable but mistaken belief - Courts and judges - Adequacy of reasons
Legislation:
Criminal Code (WA), s 24, s 25, s 222, s 248
Result:
Leave to appeal granted
Appeal dismissed
Category: B
Representation:
Counsel:
Appellant : Mr I Macfarlane
Respondent : Ms R Young
Solicitors:
Appellant : Ian MacFarlane
Respondent : State Solicitor for Western Australia
Case(s) referred to in judgment(s):
Floyd v The State of Western Australia [2013] WASCA 33
Horan v Ferguson [1995] 2 Qd R 490
Lergesner v Carroll [1991] 1 Qd R 206
Steel v The State of Western Australia [2010] WASCA 118
1 McKECHNIE J: When you have had a long day at work and just want to sleep, there are a few things more irritating than a birthday party held at a house nearby. What may make it worse is when you politely ask for the music to be turned down and return home only to hear it cranked up again.
2 This was the situation confronting Mr Daou in the late evening of 21 November 2012 when he returned to the house at which Michael Edmeades was celebrating his 18th birthday party. It was perhaps unwise for Mr Daou to have taken a pepper spray with him on his return. Inevitably an altercation occurred and when the dust and spray had settled Mr Daou was charged with a number of offences. Following a trial lasting four days he was acquitted of some of them but convicted of one count of common assault, committed on one of the party goers, fined $800 and given a spent conviction order. From that conviction he appeals on three grounds (having abandoned others) together with the fourth ground added at trial.
3 The application for leave is out of time. I deferred consideration until I heard the argument. The explanation for delay, though not particularly compelling is sufficient to extend time. However the appeal is dismissed.
The charges
4 Mr Daou, whom I will now refer to as the appellant, was charged that on the 24 November 2012 at Leschenault he:
(1) unlawfully assaulted Trent Raymond Willmott;
(2) unlawfully assaulted Nathan Alan Larsen and thereby did him bodily harm;
(3) possessed a controlled weapon (pepper spray) without lawful excuse.
5 The appellant was acquitted of charges (2) and (3).
The undisputed facts
6 The magistrate found the following facts which give context to the appeal. These facts were not in dispute, summarised by trial counsel and set the scene:
• On 24 November 2012, there was a party at 1 Wells Court, Leschenault and such a party was the 18th birthday party of Michael Edmeades. There were about 30 invited guests attending, most of whom were in their late teens. There was dance music with heavy base beat being played at the party through two speakers that were specifically hired for the party; such speakers each being about 60 centimetres tall and were between 30 to 50 centimetres wide. The music commenced at about 7.00 pm, was turned down at about 10.30 pm for a cake cutting ceremony and then turned up again about 20 minutes later.
• Daou was at his home which is - as the crow flies, is about 200 metres from 1 Wells Court with his wife and three young children. He had worked a 12 hour shift that day leaving home at about 5.00 am and returning home about 7.00 pm. He had a similar shift to work the following day. He was tired and wanted to get to sleep, however, the noise of the music, particularly the base beat, was preventing him and his family from getting to sleep. He rang the police and made a complaint about the noise. Shortly after he rang the music stopped, and he called the police to inform them of such and there was no need for their attendance. After the second call to the police, the music started again.
• As a result of the music starting again, Daou decided to go to 1 Wells Court and ask for the music to be turned down. He got dressed, picked up a pepper spray, which was on the sideboard of his bedroom, put it in his pocket and walked over to 1 Wells Court. On attendance to 1 Wells Court, Daou has a conversation with a person and the result of that conversation the music was turned off. At this point there appears to be no antagonism between Daou and anyone at the party. He then left the house and started walking down the driveway. As he was walking down the driveway, Daou heard the word 'faggot' which he took to be directed at him, and the music had been turned on again. He immediately turned around and went back to the house and entered it.
Other relevant findings
7 The magistrate made further findings concerning the appellant's return to the house:
I'm satisfied and find as a fact the accused was clearly troubled and disturbed by the music emanating from 1 Wells Court and appropriately made complaint to the police only to again call the police to withdraw his complaint as not wanting to inconvenience them now that the must had stopped - no doubt that during the cake cutting ceremony.
Some 20 minutes later with the ceremony concluded, the music returned as did the accused's agitation. With his earlier experience of attending 1 Wells to complain about loud music being successful, he again decided to attend and asked that the music be turned down and made his way to the house at about 11.20 pm, taking with him a canister of pepper spray. Again, it seemed that his request was to be bare true (sic) with Trent Willmott's indication that, 'It would be no problem. We will turn the music down'.
The accused then left the home. Michael Edmeades went to turn the music down, but had some difficulty in doing so before unplugging the iPod causing the music to go off. The accused in leaving the home had proceeded down the driveway some 20 metres beyond the steps leading to the glass sliding door, that he had just left, when he heard a male voice shout out the word 'faggot' and the music come back on almost immediately after leaving - after hearing the insulting word.
The evidence confirms, and I find as a fact, that neither Willmott or Edmeades were responsible for the insulting words and Larsen's evidence was that he didn't hear the insulting words. Further, I'm satisfied that Michael Edmeades was responsible for turning the music back on, playing the song Call Me Maybe before he left the living room. The accused was clearly angered in hearing the insult and the music being turned back on, so very soon after having had the assertion, the assurance from Willmott and leaving the house.
He returned to the sliding glass door, opened the door and entered the living room by some three or four metres. He approached, or was approached, by Willmott and Sian Morgan. He was clearly agitated and very angry as is demonstrated by his choice of language; 'Turn the f'n music down. And which C said 'faggot' should come out and say it to my face?' Again, Willmott was the calming influence with the response to the accused that, 'Nowhere here called you that - 'faggot' - but we will turn the music down and everything will be fine'.
Willmott's efforts to turn the music down were unsuccessful and he left the living room briefly to locate Edmeades. It is the accused's evidence, and I find as a fact, that with the approach of Willmott and his indications that the accused, whilst still angry, had calmed down considerably. It is a regrettable fact that Edmeades, having been located, returned to the living room accompanied by Larsen and others. Larsen despite not having been involved with the accused earlier, assumed the lead role and approached the accused.
8 He added that:
On any account, Larsen's approach was physical … and was intended to confront the accused. … as he suggested, 'Trying to use my body to sort of walk him - the accused - out the door'.
9 The magistrate found that:
[S]uch was the physicality of Larsen's approach that the accused cautioned him by saying, 'Don't touch me', or 'Get back and get away', before pushing him away with two hands to the chest.
The events directly leading to the assault
10 The magistrate continued:
There is no doubt that by this stage matters had escalated with the accused and Larsen shouting at each other, and fronting up to each other as one witness described it. There's no issue, and I find as a fact, that upon the accused pushing Larsen in the chest, that Willmott intervened in his endeavour to keep them apart by his arms spread between them and saying, 'Calm down. Settle down. Everything will be fine', or similar words. Whilst it's not entirely clear, it would appear on the evidence of Larsen, Edmeades, the accused and Norton, that after the accused pushed Larsen away with both hands, that Larsen either pushed the accused in a like manner, or on the accused's evidence with his left hand, and I so find, the weight of the evidence would thereafter conclude.
And I find as the fact that the accused either took the pepper spray from his pocket, or already had it in his hand, and sprayed Larsen and Willmott and others in a sweeping motion before punching Larsen to the face with two quick blows. Larsen fell backwards onto a female guest and Willmott collapsed to his knees, both holding their faces.
The accused thereafter left the house and was later spoken to by Constable Calmerson and Delaney at his home, who was clearly upset saying, 'Things perhaps got out of hand up there at Wells Court'.
Summary of relevant findings
11 The findings relevant to the assault on Willmott can be summarised from the transcript:
• Insulting words were spoken but neither Willmott nor Larsen were responsible.
• With the approach of Willmott the appellant, while still angry, had calmed down considerably.
• Such was the physicality of Larsen's approach that the appellant cautioned him by saying 'don't touch me' or 'get back' and 'get away' before pushing him away with both hands to the chest.
• Upon the appellant pushing Larsen, Willmott intervened to keep them apart by his arms spread between them and saying, 'calm down, settle down, everything will be fine' or similar words.
• The appellant pushed Larsen away with both hands and Larsen pushed the appellant back with his left hand.
• The appellant either took the pepper spray from his pocket or had it in his hand and sprayed Larsen, Willmott and others in a sweeping motion.
• Willmott collapsed to his knees holding his face.
• The appellant applied force to Willmott when sprayed with pepper spray causing him to suffer personal discomfort.
• The submission that the prosecution had failed to negative consent was without merit.
• The appellant's belief that he was being restrained by Willmott whilst perhaps honest, was not reasonable.
• Willmott sought to stop or defuse the conflict as its physicality increased.
• The appellant had no reasonable grounds for the accused to believe there was any harmful act by Willmott.
The legal issues resolved by the magistrate
12 The magistrate then related his findings to the legal issues raised:
Were the assaults unlawful? As note earlier, the accused in submission raised exculpations of consent, honest and reasonable mistake and belief - section 24 of the Criminal Code, provocation - sections 245 and 6 of the Criminal Code - and self-defence - section 248 of the Criminal Code. As to each, I make the following observations and findings of fact and law. (1) Consent. It was submitted that the prosecution failed to establish that each assault was without consent of either Larsen or Willmott, giving the inference to be drawn by their conduct and in Larsen's case the particular reliance of his engaging with the accused following the accused saying, 'What are you going to do about it? You can't stop me'.
Notably, this statement arose in the evidence-in-chief of Larsen, and whilst the subject of cross-examination did not advance the issue of consent beyond what itself evidently was, a provocative comment made in the heat of a verbal exchange, and the physically posturing. Interestingly, no mention of it was made by the accused in evidence. With respect, the submission is without merit and I am satisfied that the assault in both instances, without consent. (2) Honest and Reasonable Mistake and Belief - section 24 of the Criminal Code. This submission is directed to the assault upon Willmott with pepper spray.
The foundation of the submission is with the accused's belief that he was being restrained by Willmott. The foundations in this submission say the accused's evidence is not supported by the evidence and accordingly, whilst perhaps honest, is not reasonable. The submission is not sustained. Provocation - section 45 and 46 of the Criminal Code. Whilst the calling of the word 'faggot' in the prevailing circumstance, was certainly a wrongful act or insult, contemplated by section 245 of the Criminal Code, one would need to question whether the fact that Michael Edmeades turned on the music again shortly after the accused left the house, as to whether without more, amounted to a wrongful act or insult.
In any event, either or both the use of the word 'faggot' and the turning of the music cannot be relied upon because section 244 and 5 requires the provocation, the wrongful act, that the provocation, the wrongful act or insult induced the accused to assault the person whom by the act or insult, is done or offered, neither Larsen or Willmott was involved in calling the word 'faggot' or in turning the music - turning on the music.
It's otherwise the evidence of the accused that whilst still angry, had calmed down, with Willmott's assertions that, 'Nobody called you a 'faggot', and that he would turn the music down. There is no evidence otherwise or provocation whilst the accused was engaged with Larsen. This submission is not sustained.
13 The magistrate then asked himself whether Criminal Code (WA) s 248 was engaged, noting that the section is not without difficulty and quoting Steel v The State of Western Australia [2010] WASCA 118 where the President said:
An accused is not required to lay the foundations for the justification that he was acting in self-defence. The accused bears an evidential burden of adducing evidence or pointing to prosecution evidence, capable of raising the issue of self-defence. The sufficiency of evidence is a question of law for the judge. In deciding whether or not the issue should be left to the jury, the trial judge must determine whether the version of events most favourable to the accused, that is suggested by the evidence, a jury acting reasonably might fail to be satisfied beyond a reasonable doubt that the accused was not acting in self-defence.
14 The magistrate then reasoned:
In this case, the harmful act is the act of the accused in punching Larsen and applying force - pepper spray - to Willmott. I will consider separately the self-defence exculpation with respect of Larsen and Willmott. Larsen. A person's harmful act is done in self-defence if the person believes the act is necessary to defend himself from a harmful act, including an act that is not imminent. The question here in subparagraph (a) might be posed; did the accused believe it was necessary to strike Larsen to defend himself? This is a subjective question of fact.
The answer to which, on the evidence of the accused, must be in the affirmative, given the accused warning to Larsen, 'Don't touch me', did not have Larsen desist from continuing to push him towards the door, including his push or move forward or forward movement before the pepper spray. And further, and in any event, the fear and concern had by the accused in respect to the risk posed by the steps. Subparagraph (b):
The person's harmful act is a reasonable response by the person in the circumstance that the person believes them to be.
Again, the question here might be, was the accused's action in pepper spraying and then punching Larsen a reasonable response in the circumstances at the time as he believed them to be. This is an objective question, the answer to which on the evidence might simply - might be simply indicated by reference to the persistence of Larsen in applying his bodily force to propel the accused out the door and potentially suffer harm or injury on the landing or the steps invite an affirmative answer. Subparagraph (c):
There are reasonable grounds for those beliefs.
The question again might here be, were there reasonable grounds for the accused for personal belief in (a) and for the subjective belief in (b)? This is an objective question. The answer is invited, is in the affirmative. As is mentioned, the burden risks upon the prosecution to satisfy the court beyond a reasonable doubt that the accused was not acting in self-defence and it may do so by proving any one of the following beyond a reasonable doubt (1) that the accused did not subjectively believe that it was necessary to punch - strike Larsen or to defend himself, or (2) that objectively, the accused in punching Larsen was not a reasonable response by him in the circumstances he believed them to be, or (3) the objective that there were not reasonable grounds for those beliefs.
When one applies the onus and burden of truth as set out above, I cannot be satisfied that the accused was not acting in self-defence and according the prosecution's alleging that he unlawfully assaulted Nathan Larsen and thereby did him bodily harm, is not proven and is dismissed. Willmott is the accused but - Willmott is the accused - sorry, Willmott. It is the accused's belief that the act of pepper spraying Willmott was necessary to defend himself against Willmott's harmful act.
Before the exculpation of self-defence arise under section 248, the accused must first lay or identify evidence capable of raising the issue of self-defence. The evidence here clearly supports the proposition that Willmott sought to stop or defuse the conflict as its physicality increased. There is no evidence otherwise and I do not accept that Willmott had hold of the accused or was in some way restraining him. Self-defence in the prosecution of the accused assaulting Willmott does not arise, and if I be wrong in that respect, I would hold in any event, that the prosecution has met the evidential burden of satisfying the court that objectively there was no reasonable grounds for the accused to believe of any harmful act from Willmott and accordingly I'm satisfied, beyond a reasonable doubt, that the accused assaulted Willmott as alleged.
Grounds of appeal
15 A number of grounds were abandoned at the hearing but one ground was added after it occurred to counsel about 3.00 am or 4.00 am on the morning of the appeal. I will renumber the grounds for ease of reference.
Ground 1
The learned Magistrate erred in law by failing to give reasons, or adequate reason, for his decision.
Particulars
a. The learned Magistrate failed to give reasons as to why he held the assault on Willmott was 'without consent'.
b. The learned Magistrate failed to give reasons as to why he held the prosecution 'met the evidentiary burden of satisfying the court that objectively there was no reasonable grounds for the accused to believe any harmful act from Willmott'.
c. When dealing with submission regarding section 24 of the Criminal Code, the learned Magistrate failed to give reasons of how he came to find, 'The foundations in this submission say [sic - save?] the accused's evidence is not supported by the evidence and accordingly, whilst perhaps honest, is not reasonable.
d. No reasons were given by the learned Magistrate as to why the evidence of Willmott, or others, was more reliable, or preferable, to the evidence of the Accused.
16 It is submitted that the magistrate failed to give reasons as to why he found the appellant's belief regarding Criminal Code s 24 'unreasonable'.
17 It is further submitted that no reasons were given as to why the evidence of Willmott or others was more reliable or preferable to the evidence of the appellant.
18 The magistrate was satisfied that each witness, including the appellant, was fundamentally a truthful witness (AB 323).
19 Willmott described the deployment of the pepper spray:
It was sprayed like an aerosol type thing in both Nathan's [Larsen's] face and mine. Nathan was in front so he sprayed to the front and then to the side where I was standing. When I saw the can come up I brought my hand up to shield myself and the pepper spray went in my eyes, mouth and onto my arm (AB 92).
20 Willmott was asked:
At any time did you grab hold of the person?---No.
Did you grab hold of his arm?---No.
Did you grab a hold of and try to remove it from his - his left arm - and remove it from Nathan?---No (AB 106).
21 Norton described the event:
The bloke pushed Nathan, and Trent Willmott jumped in the middle. Trent was pepper sprayed, Nathan was hit too. Then Nathan went to push him, and Nathan was punched (AB 174).
22 He said that Willmott jumped between the men, 'just tried to hold them apart':
Trent just jump in there in case, but as soon as Trent had jumped in, the pepper spray was pulled (AB 176).
23 In cross-examination Norton said he had a clear view and did not see grappling, grabbing of each other's clothes and pushing and shoving between Larsen and the appellant.
24 He was asked:
Did Trent actually have a hold of the man that you saw?---No.
Did you see Trent grabbing him by the wrist?---No (AB 181).
25 Morgan described Willmott as stepping in between Larsen and the appellant (AB 228). She said:
As it wasn't a big gap, I believe his arms were just slightly out, if he would have put them to the side, he didn't touch anyone, though. It was very short, the gap between the two (AB 229).
26 She was asked:
Did Trent have hold of the man in any way?---No.
So, where was Nathan's hands while Trent was in between him and the man?---I remember them being at his side.
And where were the man's hands, do you know?---No, I don't know where the man's hands were (AB 230).
…
And while this was happening, Trent was in between them?---Yes, Trent had stepped in, yes.
And Trent had a hold of the man's left arm or wrist area?---No (AB 233).
27 The appellant's evidence was to the contrary.
28 He said Larsen was trying to push him towards the door and then:
I struck him. I didn't hit him very hard, but I hit him. It seemed to have no effect at all. When this happened, Mr Willmott immediately, who was standing sort of to my left and slightly back, has immediately jumped in between us and in this process, he's tangled my arm and restricted my left arm and also tried to stop his friend, Nathan, by putting his hand on him. I think he was trying to push him away.
We were still moving towards the doorway at this time and I was very afraid of being pushed down the steps or all of us going down the steps next to the doorway (AB 255 - 256).
29 He described the step:
It's just a small balcony, a brick paved type of balcony there and I believe there's three or four steps. I couldn't tell you.
…
It's about a metre and a half from the door to the balcony (AB 256).
…
We were still moving towards the doorway at this time and I was very afraid of being pushed down the steps or all of us going down the steps next to the doorway.
…
Mr Willmott sort of hanging on to my arm was - I don't know whether he realised he was actually contributing to the weight, pushing me towards the door. I dug my heels in. I pushed them both off me slightly with my left hand, enough to clear my right hand and I punched Mr Larson quite forcefully. He took a step back (AB 257).
30 The appellant described how he punched Larsen in the face and that he went back a metre or two and continued:
Mr Willmott was still between us and still hanging on to my or restricting my left arm. Everybody stopped at that moment. I think my hand went straight into my pocket and I pulled out the pepper spray with my right hand. I turned the spray - there's like a safety on it. I flicked it across. I held it up and I sprayed it directly at Nathan Larson who was, sort of had his hand on his face and was swearing. I belief Mr Willmott was still hanging on my left arm and looking at me and has worn a bit of it in his face as well.
…
[A]s soon as I sprayed them all, like I say, it just stopped and I was still holding the spray in my hand. I walked out the door and down the steps and went straight back to my house (AB 258).
31 Cross-examination:
I deliberately punched him and I deliberately didn't hit him as hard as I could. I just wanted to get him off me before we both went rolling down the stairs and someone ends up in a wheel chair (AB 271).
…
So why didn't you walk out the door? Because I still had my hands or arm was tangled with Mr Willmott and there was other males approaching. I didn't want to turn my back on it. I couldn't.
As I understood your evidence, Willmott wasn't doing anything aggressive at any stage?---No.
How as your arm tangled with Willmott?---He tried to get involved or in between us right from the start and when I pushed him - when I say I pushed him off, I still had him at arm's length here and Willmott was in the middle of it and restricting my left arm.
Just pull your left arm back?---Sorry? What?
Just pull it back towards your side? Yeah?---Yeah, like I said, it was tangled with him. He had - I believe - I didn't look to see exactly whether he had hold of it or it was just caught under his arm, but it was being held.
It was what?---It was being held or restricted.
Well, did you try and pull your arm back?---I didn't have much of a chance.
Why didn't you?---Because I was holding Mr Larson away at arm's length with that arm.
I thought you just pushed him away, then punched him?---I pushed him to my arm's length and then I punched him.
And then he put his hands over his face?---He stepped back and held his face, yes.
So he stepped back and he's got his hands to his face?---Yes.
So you no longer have to have your left arm out holding him, so you pull it back to your body. Why couldn't you?---It was restricted by Mr Willmott.
But you told me you didn't even try to pull it back. You said you didn't have a chance?---I can't recall.
…
As I said to you, he was only at arm's length away. He'd held his mouth. He swore, which was at about the time when I pulled the pepper spray out and then I sprayed, because I just - I didn't want anyone else to be hit or hurt or - I - I just wanted to get out of there (AB 272 - 273).
32 The test of 'reasonableness' is essentially an objective test. It is a widely used test for assessing civil criminal liability. A person might probably (as the magistrate found) have a subjectively honest belief but that belief might be objectively unreasonable.
33 Whether some matter or belief is reasonable or unreasonable involves the application of judgment to the factual circumstances. The judgment may be right or wrong but is difficult to articulate other than as a conclusion.
34 Critical to the finding of unreasonableness was the magistrate's finding (contrary to the appellant's evidence) that Willmott was not holding or restraining the appellant.
35 The magistrate found:
I do not accept that Willmott had hold of the accused or was in some way restraining him (AB 328).
36 He explained why he made this finding:
The evidence here clearly supports the proposition that Willmott sought to stop or defuse the conflict as its physicality increased. There is no evidence otherwise.
37 It was open for the magistrate to reach this conclusion.
38 The magistrate had the advantage of seeing and hearing the witnesses. In a case such as this which depends on the credibility and reliability of a number of witnesses in respect of an event which happened reasonably quickly and in circumstances of some heat, that advantage should not be understated. In the formation of an opinion as to where the truth lies and whether the judicial officer is satisfied beyond reasonable doubt, it is sometimes difficult to put the reasons for such a conclusion into words. On occasion, a witness may be shown to have lied or have told inconsistent versions. On other occasions, where the witnesses appear generally truthful (a finding by this magistrate) a satisfaction of proof beyond reasonable doubt may be formed by an overall impression of honesty and reliability in respect of particular aspects of the evidence that is virtually impossible to explain but is nevertheless real. Lacking the advantage of seeing and hearing the witnesses I cannot conclude that the magistrate's reasons for accepting a version of events (that the appellant was not impeded or grabbed by Willmott) is wrong.
39 The finding that Willmott was not holding or restraining the appellant and not acting aggressively sufficiently explains the magistrate's conclusions.
40 The appeal on ground 1 is dismissed.
Ground 2
The learned Magistrate erred in law by ruling the prosecution had proved the element of 'without consent'.
Particulars
In the reason for his decision, when addressing a submission from defence counsel that the element of 'without consent' had not been proved, the learned Magistrate stated, 'With respect, the submission is without merit and I am satisfied that the assault in both instances [were] without consent'. There was no facts or law stated to justify the finding.
41 Trial counsel put consent in issue. The magistrate found the submission without merit. So do I.
42 The case against the appellant was that he assaulted Willmott by spraying him with pepper spray. The argument advanced by the appellant is that consent arose because Willmott stepped between Larsen and the appellant and of his own volition he stepped in notwithstanding that he had heard the appellant specifically say, 'don't touch me; get back'.
43 Whether or not the magistrate fully articulated his reasons for rejecting the submission, there is abundant evidence to justify a finding of lack of consent: Criminal Appeals Act 2004 s 14(3).
44 Absence of consent can be and usually is inferred from all the circumstances: Lergesner v Carroll [1991] 1 Qd R 206; Horan v Ferguson [1995] 2 Qd R 490.
45 Willmott's involvement was to avoid a fight or physical contact. The magistrate found that Willmott was a truthful witness. In his evidence he said:
When I saw Nathan move up to gesture down and then the man push him away, I moved in between the two, trying to separate, I suppose.
…
I said, 'Look, calm down, everything will be fine'. Yes, 'Just keep calm, settle down', those lines as I tried to separate the two.
…
Then the man - I'm not exactly sure about the precise order of the events that followed. The man punched Nathan in the face two to three times with a clenched fist.
The man and Nathan were standing in front of each other. I was in the middle, kind of thing, but not as close - I don't know how to describe this, sorry.
…
I was … offset. So there was space between us (AB 91 - 92).
46 Willmott described two, possibly three but definitely two punches to Larsen. He was asked what happened then:
Then some pepper spray was used by the man on both me and Nathan.
…
It was sprayed like an aerosol type thing in both Nathan's face and mine. Nathan was in front so he sprayed to the front and then to the side where I was standing. When I saw the man come up I brought my hand up to shield myself and the pepper spray went in my eyes, mouth and onto my arm (AB 92).
47 The conclusion, from all the circumstances, that Willmott did not consent being sprayed in the eyes with pepper spray is inevitable. There is nothing in the evidence to suggest that Willmott agreed either by word or gesture that the appellant could spray him in the eyes with pepper spray. Although there was no express evidence that Willmott spoke words indicating lack of consent, the whole of the circumstances combine to prove lack of consent.
48 The appeal on ground 2 is dismissed.
Ground 3
The learned Magistrate erred in law by not applying the provisions of section 248 of the Criminal Code.
Particulars
Once the Appellant had laid the evidentiary foundation for self defence (see Particulars for Ground 3 above) it was incumbent upon the learned Magistrate to apply the provisions of section 248 of the Criminal Code.
49 The magistrate clearly identified the element for self defence under s 248. Criminal Code s 248 provides:
(1) In this section-
harmful act means an act that is an element of an offence under this Part other than Chapter XXXV.
(2) A harmful act done by a person is lawful if the act is done in self-defence under subsection (4).
(4) A person's harmful act is done in self-defence if -
(a) the person believes the act is necessary to defend the person or another person from a harmful act, including a harmful act that is not imminent; and
(b) the person's harmful act is a reasonable response by the person in circumstances as the person believes them to be; and
(c) there are reasonable grounds for those beliefs.
(5) A person's harmful act is not done in self-defence and is done to defend the person or another person from a harmful act that is lawful.
(6) For the purpose of subsection (5), a harmful act is not lawful merely because the person doing it is not criminally responsible for it.
50 The magistrate correctly directed himself to the burdens of proof quoting, as I have said, from Steel v The State of Western Australia [2010] WASCA 118. The magistrate identified that the harmful act is the act of applying force to Willmott. He also considered the act of punching Larsen and acquitted the appellant of that act.
51 In dealing with Willmott he said:
Before the exculpation of self-defence arise under section 248, the accused must first lay or identify evidence capable of raising the issue of self-defence. The evidence here clearly supports the proposition that Willmott sought to stop or defuse the conflict as its physicality increased. There is no evidence otherwise and I do not accept that Willmott had hold of the accused or was in some way restraining him. Self-defence in the prosecution of the accused assaulting Willmott does not arise, and if I be wrong in that respect, I would hold in any event, that the prosecution has met the evidential burden of satisfying the court that objectively there was no reasonable grounds for the accused to believe of any harmful act from Willmott and accordingly, I'm satisfied, beyond a reasonable doubt, that the accused assaulted Willmott as alleged (AB 328).
52 The magistrate found two bases for rejecting self defence. The magistrate found that there were no reasonable grounds for the accused's belief that spraying Willmott in the eyes was necessary to defend himself from a harmful act. This finding is open on the evidence.
53 The second was that he was satisfied beyond reasonable doubt that the prosecution had met the evidential burden that there was no reasonable grounds for the appellant to believe in the harmful act from Willmott. This finding is inevitable, given all the evidence, including that of the accused. Willmott was not the instigator or perpetrator of any harmful act but was in fact a peacemaker.
54 The appeal on ground 3 is dismissed.
Ground 4
The learned Magistrate erred in law by not considering whether section 25 was applicable.
55 The submission made in support of this (page 13 of transcript of hearing of 5 August 2014):
[I] would submit, basically reflecting the tests in 248 without the self-defence element to it: someone acting in a situation where they know they're doing wrong, but they're doing wrong simply because there's a situation that has to be sorted, otherwise other people are going to get hurt, including the person themselves. That's about as far as I can take it, Sir, off the top of my head.
56 Counsel for the respondent submits that there were no reasonable grounds for believing that pepper spraying in an arch in the general vicinity of the room towards persons other than Larsen was a necessary response to any emergency created by the stairs.
57 A magistrate has a duty to consider all possible defences if there is an evidential basis for them, whether or not they are raised by counsel. The fact that they are not raised by counsel, however, may convert the asserted error of law into a miscarriage of justice. The result would be the same.
58 In Floyd v The State of Western Australia [2013] WASCA 33 McLure P pointed out that a defendant carries the evidential burden of raising the defence of emergency, the test is whether there is evidence which taken at its highest in favour of the appellant could lead a reasonable jury properly instructed to have a reasonable doubt that each of the elements of the defence had been negated.
59 She continued:
The defence of emergency, like that of duress in s 32 of the Code, exists to meet cases where the circumstances overwhelmingly impel disobedience to the law. The corollary is that the law cannot leave people free to choose for themselves which laws they will obey, or to construct and apply their own set of values inconsistent with those implicit in the law: R v Rogers (1996) 86 A Crim R 542, 546; Ajayi v The Queen [2012] WASCA 126 [52]. [25]
60 In this case the emergency identified by the appellant's counsel from the evidence:
We were still moving towards the doorway at this time and I was very afraid of being pushed down the steps or all of us going down the steps next to the doorway (AB 256).
…
So why didn't you walk out the door?---Because I still had my hands or arm was tangled with Mr Willmott and there was other males approaching. I didn't want to turn my back on it. I couldn't (AB 272).
…
Because you agree that at that point, with Larson having been struck and with his hands over his face and he'd also taken a step back, Willmott had never been a threat to you, the others had - had - everyone stopped. The next move on your part would be to turn around and walk out the door?---No, sir.
Why?---As I said to you, he was only at arm's length away. He'd held his mouth. He swore, which was at about the time when I pulled the pepper spray out and then I sprayed, because I just - I didn't want anyone else to be hit or hurt or - I - I just wanted to get out of there (AB 273).
61 The ground of appeal fails for reasons similar to the failure of other grounds. The magistrate found that the appellant was not being restrained by Willmott.
62 The appellant's predominant motive seems to be encapsulated in the last quoted paragraph.
63 In any event at the time the pepper spray was deployed Larsen had been struck in the face by the appellant. The circumstances did not overwhelmingly impel an assault on Willmott with pepper spray.
64 Having regard to the magistrate's findings in respect of Criminal Code s 248, had he considered Criminal Code s 25 the result would have been the same.
65 The appeal on ground 4 is dismissed.
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