Darlington v Director of Public Prosecutions (NSW)

Case •

[2023] NSWSC 1139

•

20 September 2023

No judgment structure available for this case.

Supreme Court


New South Wales

  • Amendment notes
Medium Neutral Citation: Darlington v Director of Public Prosecutions (NSW) [2023] NSWSC 1139
Hearing dates: 30 August 2023
Date of orders: 20 September 2023
Decision date: 20 September 2023
Jurisdiction:Common Law
Before: Dhanji J
Decision:

(1) Pursuant to ss 52(1) and 55(1)(b) of the Crimes (Appeal and Review) Act 2001 (NSW), the appeal is allowed.

(2)   The decision of the learned Magistrate in the Murwillumbah Local Court dated 10 November 2022 is set aside.

(3)   The matter is remitted to the Local Court to be dealt with according to law.

(4)   Any further hearing of the matter is to be heard by a different Magistrate.

Catchwords:

CRIME – appeal and review – appeal from Local Court to Supreme Court – self-defence – meaning of “conviction” as used in ss 52 and 53 of the Crimes (Appeal and Review) Act 2001 (NSW) – failure to apply the correct test with respect to self-defence – failure to engage with the submissions made for the accused – failure to give reasons why submissions for the accused were not accepted – adequacy of reasons – lack of respect to the accused and the accused’s representative – appeal allowed – matter remitted to Local Court

Legislation Cited:

Crimes (Appeal and Review) Act 2001 (NSW)

Crimes Act 1900 (NSW)

Director of Public Prosecutions Act 1986 (NSW)

Crimes (Sentencing Procedure) Act 1999 (NSW)

Children (Criminal Proceedings) Act 1987 (NSW)

Cases Cited:

AB v R [2022] NSWCCA 104

Abdallah v R [2016] NSWCCA 34

Acuthan v Coates (1986) 6 NSWLR 472

AK v Western Australia (2008) 232 CLR 438; [2008] HCA 8

Day v SAS Trustee Corporation [2021] NSWCA 71

Director of Public Prosecutions (NSW) v Illawarra Cashmart Pty Ltd (2006) 67 NSWLR 402; [2006] NSWSC 343

DL v The Queen (2018) 266 CLR 1; [2018] HCA 26

Dranichnikov v Minister for Immigration and Multicultural Affairs (2003) 77 ALJR 1088; [2003] HCA 26

Garay v The Queen (No 3) [2023] ACTCA 2

Health Care Complaints Commission v Robinson [2022] NSWCA 164

Humphreys v R [2023] NSWCCA 205

Keys v West (2006) 65 NSWLR 668; [2006] NSWSC 136

Lee, Matthew v R [2016] NSWCCA 146

Maxwell v The Queen (1996) 184 CLR 501; [1996] HCA 46

Ming v Director of Public Prosecutions (NSW) (2022) 109 NSWLR 604; [2022] NSWCA 209

Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs v Thornton [2023] HCA 17; (2023) 97 ALJR 488

Orr v CobarManagement Pty Ltd (2020) 103 NSWLR 36; [2020] NSWCCA 220

Pollard v RRR Corporation Pty Ltd [2009] NSWCA 110

R v Abdallah (2001) 127 A Crim R 46; [2001] NSWCCA 506

R v Honeysett (1987) 10 NSWLR 638

R v Katarzynski [2002] NSWSC 613

Regina v PRFN [2000] NSWCCA 230

Resource Pacific Pty Ltd v Wilkinson [2013] NSWCA 33

Maynard (1993) 70 A Crim R 133

Selkirk v Director of Public Prosecutions [2020] NSWSC 1590

Shepherd v Nestoriadis [2015] NSWSC 348

The King v Jacobs Group (Australia) Pty Ltd (2023) 97 ALJR 595; [2023] HCA 23

Wainohu v State of New South Wales (2011) 243 CLR 181; [2011] HCA 24

Waterways Authority v Fitzgibbon (2005) 79 ALJR 1816; [2005] HCA 57

Wise v Schneider [2015] NSWSC 725

Woodland v R [2023] NSWCCA 216

Texts Cited:

Herbert Broom, Constitutional Law viewed in relation to Common Law and exemplified by cases (1st ed, 1866)

Category:Principal judgment
Parties: Jake Darlington (Plaintiff)
Director of Public Prosecutions (NSW) (Defendant)
Representation:

Counsel:
M Avenell with I Hogan (Plaintiff)
E Sullivan (Defendant)

Solicitors:
Aboriginal Legal Service (NSW/ACT) (Plaintiff)
Solicitor for Public Prosecutions (Defendant)
File Number(s): 2023/99235
Publication restriction: Nil
 Decision under appeal 
Court or tribunal:
Local Court of NSW
Jurisdiction:
Criminal
Date of Decision:
10 November 2022
Before:
Magistrate Linden
File Number(s):
2020/220992

JUDGMENT

Introduction

  1. The plaintiff, Jake Darlington, by amended summons filed on 18 July 2023, appeals to this Court, pursuant to s 52(1) of the Crimes (Appeal and Review) Act 2001 (NSW) (the CAR Act), or, in the alternative, seeks leave to appeal pursuant to s 53(1)(b) of the CAR Act, with respect to the finding of guilt made against him in the Murwillumbah Local Court on 10 November 2022 for an offence of affray, contrary to s 93C of the Crimes Act 1900 (NSW).

  2. The plaintiff, while raising a number of grounds, in essence, contends that in the learned Magistrate’s reasons for his finding of guilt, his Honour erred in relation to the test to be applied with respect to self-defence and erred in his treatment of the defence case more generally. In this Court, the defendant (who took over the proceedings pursuant to s 10 of the Director of Public Prosecutions Act 1986 (NSW)) accepts that it would be open to this Court to uphold the appeal based on at least one of the plaintiff’s grounds directed to the adequacy of the Magistrate’s reasons. For the reasons which follow, the defendant’s concession is well-made. The appeal should be upheld, and the matter remitted to the Local Court. Any further hearing should be dealt with by a different magistrate: see Wise v Schneider [2015] NSWSC 725 at [59] (per Beech-Jones J) (as the Chief Judge at Common Law then was); Maynard (1993) 70 A Crim R 133 at 144. No order was sought with respect to costs.

  3. Neither party contended that, in the event that I upheld one of the grounds, it would be necessary to deal with the remaining grounds.

The appeal

  1. Following a two-day hearing, on 10 November 2022, the plaintiff was found guilty of the offence of affray.

  2. The plaintiff was sentenced to a two-year conditional release order without conviction, pursuant to ss 9(1)(b) and 10(1)(b) of the Crimes (Sentencing Procedure) Act 1999 (NSW).

  3. As noted above, the plaintiff subsequently sought leave to appeal to this Court with respect to that finding of guilt. He does not seek to appeal against the sentence imposed.

  4. Section 52 of the CAR Act provides:

52 Appeals as of right

(1)   Any person who has been convicted or sentenced by the Local Court, otherwise than with respect to an environmental offence, may appeal to the Supreme Court against the conviction or sentence, but only on a ground that involves a question of law alone.

(2)    An appeal must be made within such period after the date of the conviction or sentence as may be prescribed by rules of court.

  1. Section 53 of the CAR Act relevantly provides:

53    Appeals requiring leave

(1)    Any person who has been convicted or sentenced by the Local Court, otherwise than with respect to an environmental offence, may appeal to the Supreme Court against the conviction or sentence on a ground that involves—

(a)   a question of fact, or

(b)    a question of mixed law and fact,

but only by leave of the Supreme Court.

…

(4)    An application for leave to appeal must be made within such period after the date of the conviction, sentence or order as may be prescribed by rules of court.

  1. The sections confer either a right of appeal, or an entitlement to seek leave to appeal, on a person who, as relevant here, “has been convicted” by the Local Court. As noted above, the plaintiff was made subject to a two-year conditional release order without conviction. The term “conviction”, as used in the above sections, is not defined in the CAR Act. It is well established that “conviction” will mean different things in different contexts: Maxwell v The Queen (1996) 184 CLR 501 at 507; [1996] HCA 46; Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs v Thornton [2023] HCA 17; (2023) 97 ALJR 488 at [27]; Keys v West (2006) 65 NSWLR 668; [2006] NSWSC 136 at [23]-[29]. In some contexts, it will include a bare finding of guilt.

  2. While the CAR Act does not provide a definition of “conviction” as used in ss 52(1) or 53(1) of the CAR Act, its meaning is expanded upon for other purposes in the CAR Act. The CAR Act, in s 3(2), provides that “in a case of an application or appeal in relation to a decision of the Children’s Court under Part 3 of the Children (Criminal Proceedings) Act 1987 [(NSW)] … a reference … to a conviction includes a reference to a finding of guilt under that Act”. Further, s 3(1)(a) of the CAR Act, in defining “sentence”, refers to various orders made by the Local Court “as a consequence of its having convicted the person of an offence”. The definition of “sentence” then, in paragraph (b) of the definition, separately refers to orders of the Local Court made under ss 10 or 11 of the Crimes (Sentencing Procedure) Act 1999 (NSW), apparently distinguishing these orders from orders where a person has been “convicted”.

  3. It is curious that the definition provision makes specific provision for findings of guilt without conviction in the Children’s Court to be treated as convictions but provides no analogue with respect to findings of guilt not followed by formal conviction made in the Local Court. Additionally, the use of “convicted” in paragraph (a) of the definition of “sentence” appears to relate to more than a simple finding of guilt. On the other hand, to treat the use of “convicted” in ss 52(1) and 53(1) of the CAR Act as a reference to the formal recording of a conviction would leave a significant, and apparently unintended, gap. It would be an odd result if a person could appeal, pursuant to ss 52 or 53 of the CAR Act, against an order made pursuant to s 10 (expressly included in the definition of sentence) but could not appeal against the finding leading to that sentence.

  4. While, as a general rule of construction, words in a statute will ordinarily have the same meaning, it is not inevitably so. Here, it seems to me, there is reason not to give the same meaning to “convicted” in ss 52(1) and 53(1) to the sense in which it appears to be used in s 3: cf The King v Jacobs Group (Australia) Pty Ltd (2023) 97 ALJR 595; [2023] HCA 23 at [25]. This is particularly so having regard to the well-recognised protean nature of the term. Further, no issue was taken with the plaintiff’s entitlement to challenge the Magistrate’s finding in this Court pursuant to the CAR Act and the approach is consistent with the approach previously taken by this Court in, at least, Selkirk v Director of Public Prosecutions [2020] NSWSC 1590 at [27]-[28]. In these circumstances, I take the view that “convicted” in ss 52(1) and 53(1) of the CAR Act includes a finding of guilt even where followed by a sentence that does not involve a formal order convicting the person.

  5. It will be necessary to return to the question of whether the plaintiff’s appeal is as of right, pursuant to s 52(1), or requires leave, pursuant to s 53(1)(b).

Factual background

  1. The evidence and submissions before the Local Court were tendered in this Court.

  2. The hearing in the Local Court proceeded over two days, 9 and 10 November 2022. The prosecution case was completed early on the second day. The plaintiff gave evidence in his case and was cross-examined. His Honour then called on the plaintiff’s advocate (who appeared as junior counsel on this appeal) to address, following which his Honour delivered reasons finding the plaintiff guilty of the offence of affray. I will return to the address and his Honour’s reasons.

  3. The matter concerned a physical altercation on 26 March 2020 between the plaintiff and Mr Kerry Darling. Mr Darling was the father of the plaintiff’s partner, Ms Morante. The altercation occurred outside the property where the plaintiff and Mr Darling lived together with their respective partners.

  4. During the course of the incident, the plaintiff took a yabby pump from a vehicle which he then used to strike Mr Darling. The yabby pump was effectively a pole of approximately one metre in length. The central issue at the hearing related to the circumstances in which the plaintiff took possession of the yabby pump and used it to strike Mr Darling. The plaintiff’s case was that this was done in self-defence. There was no issue that there was violence inflicted by Mr Darling on the plaintiff, both before and after the plaintiff struck Mr Darling with the yabby pump. The plaintiff suffered serious injuries as a result of those assaults. Mr Darling was charged and pleaded guilty to offences of affray and common assault and had been dealt with in respect of these offences by the time the present matter was heard. The plaintiff contended before the Magistrate that, having been attacked by Mr Darling, he used the yabby pump anticipating, and intending to forestall, further violence from Mr Darling.

  5. An important context to the plaintiff’s case was the relative physical attributes of the participants and Mr Darling’s emotional lability. The plaintiff’s submissions in this Court described these relativities as follows:

“8.   [The plaintiff] was 34 years old, had spina bfida, sacral agenesis (his last four vertebrae and coccyx are missing) and used a urinary catheter. He was about 5 foot 7-8 and weighed about 50-55kg. He was on a disability support pension.

9.    Mr Darling was a 58-year-old former police officer and security officer, however, he had not worked for several years seemingly because of PTSD, an adjustment disorder and some physical complaints. Mr Darling freaked out and got worked up easily. He was 6 foot 3 and weighed about 96kg.” (footnotes omitted)

  1. The incident appears to have been triggered by Mr Darling’s unhappiness with the plaintiff having driven a vehicle belonging to Ms Morante. Having referred to the physical differences between the plaintiff and Mr Darling, the defendant, in written submissions in this Court, summarised the case as follows:

“7.   … Mr Darling instigated a physical confrontation and there was an exchange of blows between the plaintiff and Mr Darling. The central issue concerned the circumstances in which the plaintiff seized a yabby pump/pole from a vehicle (the RAV4) parked some 20 metres away from the area of the initial altercation, then striking Mr Darling across the face with it, causing serious nasal injuries. Self-defence was raised by the plaintiff at the outset on the basis that the plaintiff had used the yabby pump anticipating, and so as to forestall, further violence from Mr Darling.

8.   During the hearing, certain versions of the events were in contest, including in particular the accounts given by an eye-witness, Mr Leigh Hansen, who was present for the whole altercation (in contrast, other witnesses only saw various fragments of the fight). Mr Hansen gave an initial account to police in the form of two body worn video (BWV) recordings obtained within an hour of the incident; he also provided a four page statement dated 17 April 20207 and gave oral evidence during the hearing on 9 November 2022. In the BWV, Mr Hansen was clear that ‘[the plaintiff]’s grabbed the fish pump … to defend himself … he must have hit [the plaintiff] twenty times … [the plaintiff] was trying to defend himself’. In the statement made over three weeks later, Mr Hansen stated that ‘[the plaintiff] ran back towards the Toyota Rav 4’ and when he turned around, he ‘was holding a yabby pump with two hands out in front of him and was “thrusting’ the pump out towards Mr Darling. In oral evidence, Mr Hansen told the Court that the car was 20 metres away from the intersection at which the fight had occurred; and in effect, after Mr Darling had thrown a ‘flurry of punches’, he (Mr Hansen) then turned around and was walking in another direction ‘thinking it was all over’. There was then this exchange with the prosecutor … :

Q. What made you think it was all over?

A. Well, just the fact that [Mr Darling] had hit [the plaintiff] a few times and [the plaintiff] walked off. That’s like – I thought I’d stopped. I didn’t think they were – [Mr Darling] wasn’t chasing [the plaintiff] and [the plaintiff] was walking off, so I thought perhaps that was it.

9.   The plaintiff also gave evidence and was cross-examined. His account was to the effect that Mr Darling ‘continues to punch me until I’m nearly about a metre behind the RAV [the car]’; that he was followed back to the car by Mr Darling; or that he was ‘backing up. He’d just punched me 35 times in the head’. The plaintiff grabbed the yabby pump which was the ‘first solid thing’ he felt; ‘the guy has hit me so many times … I dead set thought the guy was going to kill me’; he was ‘swinging it [the yabby pump] around in self-defence’; ‘I was swinging it like crazy to stop the guy from beating the snot out of me’.

10.    On 10 November 2022, at the conclusion of the evidence, the plaintiff’s legal representative made oral submissions (for around four minutes), and handed up seven pages of written submissions addressing the issue of self-defence. A key feature of those submissions was why the accounts of Mr Hansen in the BWV and the statement should be preferred relative to his oral evidence. It was also put that:

[The plaintiff] gave compelling evidence, his life has changed as a result of being the victim of this terrible assault. [The plaintiff] is not the sort of person who gets into a person of good character in a criminal law sense, but he is also smart enough to know that he a disabled man will not come out better. The prosecutor has not negatived self-defence in this matter.

11.    The Magistrate immediately delivered his decision, finding the plaintiff guilty.”

The grounds of appeal – appeal as of right or by leave?

  1. As set out above, an appeal lies as of right on a ground that “involves a question of law alone”: CAR Act, s 52(1). Insofar as the ground involves a question of fact or mixed law and fact, leave is required: CAR Act, s 53(1)(b).

  2. What amounts to a question of law alone is not capable of comprehensive definition. The issue was the subject of detailed analysis in Orr v CobarManagement Pty Ltd (2020) 103 NSWLR 36; [2020] NSWCCA 220, where the distinction was described as “elusive”: at [32] (per Bathurst CJ and Bell P, as the Chief Justice then was). What is required will depend upon the construction of the terms of the provision providing for the appeal, in the context of the particular statute.

  3. The plaintiff relied on grounds of appeal numbered 1 to 4. Ground 1 was divided into three limbs (1(a), (b) and (c)). Additionally, in relation to each of grounds 1 to 3, the plaintiff pleaded a further ground in the alternative (1A, 2A and 3A). It is unnecessary to set out the grounds in full. It is enough to note that the alternative grounds make no complaint of error. Each poses a question divorced from the facts of the case. Ground 4 was in a similar form. Grounds 1A, 2A and 3A are best regarded as attempts to frame a question of law alone, which the plaintiff contends is “involved” in the corresponding ground. Ground 4, in the absence of any articulation of an asserted error, does not plead a ground for the purposes of ss 52 or 53 of the CAR Act.

  4. I am of the view that at least ground 1(a) involves a question of law alone. That ground is in the following terms:

“1 Magistrate Linden erred in law by failing to direct himself as to self-defence in ss 418-419 Crimes Act 1900, viz that:

(a)   the prosecution is required to exclude beyond reasonable doubt either that: (i) the accused believed the conduct was necessary; or (ii) the conduct was a reasonable response to the circumstances as the accused perceived them[.]”

  1. The ground is framed in terms of the “direction” his Honour was required to give himself. The complaint is in terms that are arguably more apposite to the context of a trial on indictment before a judge alone, having regard to the requirements of s 133(2) of the Criminal Procedure Act 1986 (NSW). There is no direct equivalent to s 133(2) in the present context. More significantly, to the extent that “directions” might be required, they will be dependent on the facts of the case. However, having regard to the elaboration of the ground in oral submissions made on the appeal, rather than a complaint about directions, I am content to understand the ground as a complaint that the Magistrate erred in failing to apply the correct test with respect to self-defence. In particular, the ground can be understood as a complaint that his Honour found the offence proved without first being satisfied the prosecution had disproved that the plaintiff acted in self-defence. In the circumstances of this case, such a complaint “involves” a question of law alone, which can be expressed as: “if a defendant satisfies the evidentiary onus to raise self-defence, is the tribunal of fact entitled to exclude self-defence on the basis the tribunal of fact is not satisfied the conduct was necessary in self-defence?”. A further question of law raised by the ground might be framed as “if a defendant satisfies the evidentiary onus to raise self-defence, in considering the reasonableness of the defendant’s response, is it necessary to have regard to the circumstances as the defendant perceives them?”.

  1. While no formal application was made to amend the ground, the defendant made no complaint as to the manner in which the plaintiff submitted the ground could be understood.

  2. As noted above, other complaints are directed to the reasoning process, either as reflected in his Honour’s reasons, or as actually conducted. While I accept that the formulation “involves a question of law alone” is broader than an appeal on a question of law alone, I am nonetheless unconvinced that a complaint with respect to the adequacy of reasons will necessarily involve a question of law alone, or that it does so here: cf Shepherd v Nestoriadis [2015] NSWSC 348.

  3. What is required in terms of reasons will be responsive to the evidence and submissions in the case. Put another way, “the content and detail of reasons ‘will vary according to the nature of the jurisdiction which the court is exercising and the particular matter the subject of the decision’”: DL v The Queen (2018) 266 CLR 1; [2018] HCA 26 at [32] (per Kiefel CJ, Keane and Edelman JJ); see also Ming v Director of Public Prosecutions (NSW) (2022) 109 NSWLR 604; [2022] NSWCA 209 at [43] (per Kirk JA).

  4. Of course, the reasons may reflect a failure to take into account a relevant principle of law. In Waterways Authority v Fitzgibbon (2005) 79 ALJR 1816; [2005] HCA 57, Hayne J observed (at [130]) that “because the primary judge was bound to state the reasons for arriving at the decision reached, the reasons actually stated are to be understood as recording the steps that were in fact taken in arriving at that result”: see also AK v Western Australia (2008) 232 CLR 438; [2008] HCA 8 at [84] (per Heydon J). Thus, in an appropriate case, an inference that a particular matter was, in fact, not taken into account may be able to be drawn from the reasons. Whether a particular inference can be drawn in a given case will depend upon all the circumstances: see Lee, Matthew v R [2016] NSWCCA 146 (“Lee v R”) at [20]-[37]. As with any process of drawing an inference of fact, the result is not inevitable: see, for example, the different conclusions drawn by different judges with respect to the same reasons in Woodland v R [2023] NSWCCA 216 at [2] and at [46].

  5. In the present matter, I am of the view that his Honour erred in the application of the test with respect to self-defence and the appeal should be allowed on this basis pursuant to s 52(1) of the CAR Act. I am additionally of the view that the reasons are inadequate. Were it necessary, I would, pursuant to s 53(1)(b) of the CAR Act, grant leave and allow the appeal on this basis, most clearly articulated in ground 3 of the appeal which is in the following terms:

“Magistrate Linden erred in law by failing to engage with the submissions made for the accused and give reasons why they were not accepted.”

  1. Returning to ground 1(a), my conclusion that his Honour erred in the application of the test with respect to self-defence is, as must almost inevitably be the case, based on his Honour’s reasons.  There is, consequently, an interrelation between the complaint with respect to his Honour’s reasons more generally and the error with respect to the legal test. It is convenient to consider the adequacy of the reasons generally and to, in the course of that consideration, isolate the errors articulated in ground 1(a) and ground 3.

The Magistrate’s reasons

  1. The Magistrate’s reasons, when regard is had to the length of the hearing and issues raised, can fairly be described as brief.  Given that brevity they can be conveniently set out in full adding paragraph numbers for ease of later analysis. (The plaintiff is, of course, identified as the defendant and Mr Darling is referred to as Kerry or the alleged victim):

“[1]   HIS HONOUR: This defendant is charged with affray and assault occasioning actual bodily harm. The background is that there was a view by the person Kerry, who I will refer to as the alleged victim, that the defendant had driven a motor vehicle without being licenced. There is no doubt that was accurate because there is a concession by the defendant that he was not licenced. In any event, there is no doubt that the alleged victim was the aggressor at the first instance.

[2]   Mr Hansen described it as both people throwing punches. He thought that they threw about ten punches each but the alleged victim got the upper hand. The prosecution case from the alleged victim is that the defendant ran to the car, that is the RAV4, approximately 25 metres or 25 metres all up, and said these words, "I've got something for you". It was never suggested that that was not said, and I accept that it was said.

[3]   One then turns to the independent evidence. That is evidence by Mr Paget, Mr Hansen and Mr Buccili. The evidence of Mr Paget is that he observed the defendant holding what he recognised as a yabby pump, which is about a metre long, a metal pole used to catch yabbies. The younger guy was 20 holding the pump down by his side as he walked towards Kerry, that is the alleged victim. He then says:

"I saw Kerry and the young fellow", that is the defendant, "on the road walking along Peel Street towards Stradbroke Drive. They were yelling at each other for a bit. I'm not sure exactly what they were saying. Kerry and the younger guy got to Stradbroke Drive, where they were still arguing, and I saw the younger guy holding the yabby pump with both hands, swing it from his lower right side and upwards towards Kerry, hitting Kerry right across the face. I saw 30 Kerry stumble back and then throw a few punches at the younger guy, pulling the yabby pump away from him as he did this. He subsequently threw the yabby pump at", and apparently struck the defendant, "and threw punches as well."

[4]   Mr Hansen gave a telling comment when he said that he observed the defendant going to the RAV4. His words were, "I thought it was all over". Mr Buccilli gives evidence of observing the defendant holding the yabby pump;

"Which is a cylindrical and shiny piece of metal approximately a metre long in his right hand. The male was holding it while he was swinging it around aggressively towards another older male who was about a metre and a half, two metres away from him. I could see that this male had blood coming from his nose and was walking backwards", that is the alleged victim, "while still facing the younger guy", that is the defendant.

[5]   I am satisfied as a fact that the defendant moved approximately 20 metres way from the initial incident, grabbed the yabby pump, walked towards the alleged victim, and while he swung that pump towards him causing him to suffer a broken nose. I am not satisfied that subjectively it was necessary and objectively it certainly was beyond the pale.

[6]   I FIND THE OFFENCES PROVED.”

The adequacy of the Magistrate’s reasons including the test for self defence

Some observations as to reasons generally

  1. In Wainohu v State of New South Wales (2011) 243 CLR 181; [2011] HCA 24, French CJ and Kiefel J observed (at [54]) that “the centrality, to the judicial function, of a public explanation of reasons for final decisions and important interlocutory rulings has long been recognised”, referring to Herbert Broom, Constitutional Law viewed in relation to Common Law and exemplified by cases (1st ed, 1866).

  2. There are a large number of authorities dealing with the requirement to give reasons. A helpful summary of the principles can be found in Pollard v RRR Corporation Pty Ltd [2009] NSWCA 110, where McColl JA (at [56]-[66]) set out the principles, and see the discussion in my reasons in AB v R [2022] NSWCCA 104 at [107]-[116] (although a question has been raised as to the transferability of principles taken from civil cases to criminal cases: Garay v The Queen (No 3) [2023] ACTCA 2 at [147] (per McCallum CJ)).

  3. In the present context, it is unnecessary to consider those principles in any detail. It is sufficient to observe that a failure to engage with, or respond to, a clearly articulated and substantial submission is an error of law: Dranichnikov v Minister for Immigration and Multicultural Affairs (2003) 77 ALJR 1088; [2003] HCA 26 at [24] (per Gummow and Callinan JJ); Day v SAS Trustee Corporation [2021] NSWCA 71 at [34]-[38] (per Meagher JA); Health Care Complaints Commission v Robinson [2022] NSWCA 164 at [91] (per Simpson AJA); Ming v Director of Public Prosecutions (NSW) at [15]-[16] (per Kirk JA). Or, as put by Beech-Jones J (as the Chief Judge at Common Law then was) in Shepherd v Nestoriadis [2015] NSWSC 348 (at [51]):

“… at a basic level, if reasons are to do nothing else, they must at least engage with the losing party’s case”.

Some observations in relation to self-defence

  1. The most fundamental observation to be made in relation to self-defence, is that “self-defence” refers to the circumstances surrounding and attaching to the act or acts of the accused which are relied on by the prosecution as a physical element of the charged offence. It is not a reference to the court process. That is, while an accused has an evidentiary onus to raise self-defence, it is not a “defence” to the charge. Once raised, it is a matter to be excluded by the prosecution beyond reasonable doubt.

  2. There is no issue that self-defence can apply to a charge of affray: R v Honeysett (1987) 10 NSWLR 638 at 640 (per Hunt J).

  3. The relevant provisions governing self-defence are contained in the Crimes Act, Part 11, Division 3. Section 419 provides:

419 Self-defence—onus of proof

In any criminal proceedings in which the application of this Division is raised, the prosecution has the onus of proving, beyond reasonable doubt, that the person did not carry out the conduct in self-defence.

  1. Section 418, to which s 419 applies, provides:

418 Self-defence—when available

(1)    A person is not criminally responsible for an offence if the person carries out the conduct constituting the offence in self-defence.

(2)    A person carries out conduct in self-defence if and only if the person believes the conduct is necessary—

(a)    to defend himself or herself or another person, or

(b)    to prevent or terminate the unlawful deprivation of his or her liberty or the liberty of another person, or

(c) to protect property from unlawful taking, destruction, damage or interference, or

(d)    to prevent criminal trespass to any land or premises or to remove a person committing any such criminal trespass,

and the conduct is a reasonable response in the circumstances as he or she perceives them.

  1. The test in s 418 of the Crimes Act differs from the test at common law: see R v Katarzynski [2002] NSWSC 613 at [20]-[22] (per Howie J); Abdallah v R [2016] NSWCCA 34 at [61]. Nothing in the section directs that any particular approach be taken in any particular circumstances including in cases involving a pre-emptive strike, or with respect to the imminence of any threat. These are factual circumstances which may be relevant to the matters which s 418(2) requires be considered.

  2. Before the Magistrate, reference was made, by the plaintiff’s representative, to Abdallah v R (at [98]-[100]), including the following observations (at [98]):

“The Crown case included that there were no reasonable grounds for the accused’s belief that it was necessary in self-defence to fire that bullet. In relation to that question, Hunt CJ at CL said [in R v Conlon (1993) 69 A Crim R] at 98:

However, it is well established that a person defending himself from a threatened attack and who has to react instantly to imminent danger cannot be expected to weigh precisely the exact measure of self-defensive action which is required: Palmer [1971] AC 814 at 831-832; Zecevic v DPP (at 662-663; 174-175). The accused was not obliged to wait until the attack upon him was repeated. If he honestly believed that the attack would be repeated, he was entitled to take steps to forestall that threatened attack before it was begun: Morgan v Colman (1981) 27 SASR 334 at 336-337; (1981) 4 A Crim R 324 at 326. This was a situation in which a pre-emptive strike was justified: Beckford [1988] AC 130 at 144. [Emphasis added]”

  1. Reference was also made to Regina v PRFN [2000] NSWCCA 230 (at [38]) where it was observed, consistent with what I have said above, that while the immediacy of any threat is an important consideration relevant to the statutory question, there is no separate test as to immediacy.

Application of the principles to this case

  1. His Honour’s reasons have been set out above in full. It is convenient to consider each paragraph of those reasons.

  2. Paragraph 1 provides an uncontentious introduction.

  3. With respect to paragraph 2, this recounts part of the prosecution case, but part of the case which was contradicted by the plaintiff. The first two sentences refer to Mr Hansen’s evidence at the hearing describing both persons throwing punches. Mr Hansen had, however, given an earlier version recorded by body worn video at the scene and subsequently provided a written statement to police. In the body worn video, recorded at the scene and thus the most contemporaneous version, Mr Hansen described Mr Darling hitting the plaintiff 20 times to the head. In his statement, given on 17 April 2020, he described Mr Darling hitting the plaintiff and, while there is some ambiguity, he appears to suggest that, in addition to the initial punches, there were at least 10 punches to the plaintiff’s head while the plaintiff was bent over. No reference was made by his Honour to this important difference in Mr Hanson’s accounts despite the plaintiff placing heavy reliance on the earlier versions.

  4. With respect to the balance of paragraph 2, the plaintiff contended that the altercation started at the intersection and moved some 20 or 25 metres to the vehicle where he took possession of the yabby pump. Evidence that the plaintiff said “I’ve got something for you” was given by Mr Darling. Mr Darling had also given earlier versions, the first recorded on body worn video at the scene, and the second in a record of interview with police on 15 May 2020. In his record of interview, which was some weeks after the relevant events on 26 March 2020, Mr Darling claimed that the plaintiff had said something similar. Mr Darling did not, however, make such a claim in the conversation recorded on body worn video, although it must be acknowledged that the version given on body worn video was a less comprehensive account. More significantly, no other witness gave evidence of the plaintiff making such a threat. It was not put to the plaintiff that such words were said. Mr Hansen who, apart from the protagonists, had the most complete opportunity to observe events, did not suggest such words were said, although he may not have been in a position to hear all that was said.

  5. Two observations may be made about his Honour’s conclusion in paragraph 2. Firstly, the drawing of inferences on the basis of the failure of counsel to put a matter requires caution: see R v Abdallah (2001) 127 A Crim R 46; [2001] NSWCCA 506 and the cases there discussed; see also my reasons in Humphreys v R [2023] NSWCCA 205 at [39]. Secondly, there was no reference to, let alone analysis of, the other evidence in the case, including that of the plaintiff.

  6. In paragraph 3, his Honour referred to the independent evidence of Mr Paget and Mr Buccilli and set out parts of Mr Paget’s evidence which were taken from different parts of his statement. Significantly, the earlier part of the incident is said to have taken place around the intersection of Stradbroke Drive and Peel Circuit. The car from which the plaintiff retrieved the yabby pump was in Peel Circuit, as noted above, some 20 to 25 metres from the intersection. Mr Paget’s evidence, as recounted by his Honour, suggested that when he first saw the plaintiff and Mr Darling, they were both in Peel Circuit moving towards Stradbroke Drive. It should be noted that this version, which had the plaintiff and Mr Darling walking back together on Peel Circuit, necessitated a conclusion that Mr Darling had moved, along with the plaintiff, at least some way along Peel Circuit in the direction of the vehicle from which the plaintiff obtained the yabby pump. While Mr Paget referred in his evidence to Mr Darling walking backwards and the plaintiff striking Mr Darling with the yabby pump in the course of their argument, apparently unresponsive to any immediate blow struck by Mr Darling, this could not, of itself, exclude self-defence. The relevance of a pre-emptive blow and the immediacy of any threat was specifically raised by the plaintiff’s representative but was not dealt with by his Honour.

  7. In paragraph 4, his Honour refers to the evidence of Mr Hansen that at the time the plaintiff went to the vehicle, he, that is, Mr Hansen, “thought it was all over”. Mr Hansen’s versions in the conversation recorded by body worn video and in his statement did not contain such an observation. Rather, they tended to suggest something more in the nature of a continuous event. As noted above, the plaintiff placed particular emphasis on those earlier versions. In any event, Mr Hansen’s opinion that it was “all over”, if admissible, did not speak, at least directly, to the plaintiff’s perception, which was what was in issue.

  8. His Honour then set out part of Mr Buccilli’s evidence. While that evidence suggested the plaintiff attacked Mr Darling with the yabby pump, that he had done so was not in issue. It is true that Mr Buccilli suggested Mr Darling was retreating while the plaintiff was “swinging” the yabby pump, the plaintiff having apparently already struck Mr Darling, (given that Mr Darling’s nose was already bleeding). That, however, again, could not exclude self-defence. This evidence, even if accepted, was not inconsistent with the plaintiff taking action to keep Mr Darling at bay based on a threat perceived by the plaintiff, particularly in light of what had already occurred.

  9. In paragraph 5, his Honour found that the plaintiff “moved approximately 20 metres away from the initial incident” and “grabbed the yabby pump”. As previously observed, this was not controversial (although what was occurring during that movement was the subject of divergent accounts). In so far as his Honour found that the plaintiff “swung that pump towards [Mr Darling] causing him to suffer a broken nose”, this was again uncontroversial.

  10. It can be accepted that there was evidence on which his Honour could find, as he did, that the plaintiff walked towards Mr Darling with the yabby pump before striking him. Acceptance of this evidence required a rejection of the plaintiff’s evidence. To the extent that it might be considered implicit in his Honour’s reasons at this point that Mr Darling, despite his earlier aggression, was no longer a threat to the plaintiff, there was evidence to the contrary. In particular, Mr Hansen, in his statement made on 17 April 2020, said that while he was not looking at the plaintiff after the point the plaintiff opened the car door, when he did turn around to see plaintiff holding the yabby pump, he was holding it “with two hands out in front of him” and the plaintiff said, “[d]on’t hit me Kerry” (addressing Mr Darling, by his first name). He also said that Mr Darling walked towards the plaintiff while the plaintiff was still holding the yabby pump.

  11. There is, in Mr Hansen’s various accounts, a period during which he was looking away, leaving open the possibility the plaintiff hit Mr Darling with the yabby pump before Mr Hansen turned around. Mr Hansen’s first version, recorded on the body worn video, nonetheless provides strong support for the plaintiff using the yabby pump to defend himself from a threat he perceived to be coming from Mr Darling. While Mr Hansen placed the plaintiff at the intersection at the time he saw him with the yabby pump, suggesting he had returned to that location, Mr Hansen did not give evidence as to how the plaintiff and Mr Darling came to return there. The plaintiff’s version was inconsistent with a deliberate return to the intersection with a view to attacking Mr Darling. As noted above, there was other evidence, from at least Mr Paget, suggesting that Mr Darling had followed the plaintiff at least some way to the vehicle.

  1. It is neither appropriate, nor necessary, for me to analyse the evidence in detail with a view to making findings. The observations above are sufficient to establish that, in making the finding at paragraph 5, discussed above, his Honour made no real attempt to grapple with the plaintiff’s contentions.

  2. Finally, in his Honour’s concluding sentence at paragraph 5, his Honour simply said, “I am not satisfied that subjectively it was necessary and objectively it was certainly beyond the pale”. His Honour appears to have approached the matter on the basis it was for the plaintiff to satisfy him, as the tribunal of fact, that “subjectively it was necessary”: cf Crimes Act, s 419. Further, while his Honour’s reference to “objectively it was beyond the pale” is plainly a reference to the reasonableness of the plaintiff’s response to any perceived threat, his Honour did not consider that question by reference to “the circumstances as [the plaintiff] perceive[d] them”: Crimes Act, s 418(2). His Honour erred in both respects.

  3. The issues referred to immediately above “involve” a question of law alone. The answer to both questions, “if a defendant satisfies the evidentiary onus to raise self-defence, is the tribunal of fact entitled to exclude self-defence on the basis the tribunal of fact is not satisfied the conduct was necessary in self-defence?” and “if a defendant satisfies the evidentiary onus to raise self-defence, in considering the reasonableness of the defendant’s response, is it necessary to have regard to the circumstances as the defendant perceives them?” are clearly “no” and “yes” respectively. The consequence of each of those answers is his Honour erred in law in finding the plaintiff guilty on the basis that he was “not satisfied that subjectively [the plaintiff’s actions] were necessary and objectively it certainly was beyond the pale”.

  4. In the event it was necessary, I would also find his Honour erred in failing to provide adequate reasons. As the above analysis of the reasons demonstrates, his Honour made no real attempt to deal with the plaintiff’s arguments as to why the prosecution had not proved its case. His Honour, in the words of ground 3, failed “to engage with the submissions made for the accused and give reasons why they were not accepted”.

Conclusion

  1. Before leaving this matter, it is regrettably necessary to make some comment as to the failure of his Honour to deal with the defence case.

  2. It should first be noted that review in relation to reasons is not concerned with “the optimal, or even desirable, level of detail required to be revealed in reasons for judgment”: Resource Pacific Pty Ltd v Wilkinson [2013] NSWCA 33 at [48] (per Basten JA), cited in Lee v R at [24]. The enormous pressure under which magistrates operate when making decisions of importance to the parties and the community must be acknowledged. Consequently, there is a need to avoid ex tempore reasons from a busy Local Court being “picked over”: Director of Public Prosecutions (NSW) v Illawarra Cashmart Pty Ltd (2006) 67 NSWLR 402; [2006] NSWSC 343 at [15]-[18]; Acuthan v Coates (1986) 6 NSWLR 472 at 478-479A.

  3. In addition to the above observations, it should also be noted that the task to be performed in giving reasons is one shaped by the adversarial process. Advocates in the adversarial process perform an important function. It is their role to assist the court by advancing their respective cases.

  4. In the present matter, the Magistrate called on the plaintiff’s advocate immediately after the close of the defence case. There was no error or necessarily any unfairness in his Honour doing so. However, in the course of the address which followed, the plaintiff’s representative provided his Honour with a seven-page document containing her written submissions. This document contained a concise, and helpful, distillation of relevant principles and their application to this case. It included, not only reference to the principles and to the evidence relevant to self-defence, but provided assistance to his Honour with respect to other important considerations in the case. His Honour’s attention was directed to the need for caution in relation to Mr Darling’s evidence given that he was criminally involved in the events, the need to take the plaintiff’s good character into account, and the significance of missing evidence to proof of the prosecution case. None of these matters were addressed by his Honour. The recording of this part of the proceedings establishes that, despite having been provided with seven pages of written submissions, his Honour proceeded to judgment within a period in the order of five seconds of the address concluding. That period suggests his Honour could not have considered the written submissions, at least properly. His Honour’s reasons reflect this. This showed a regrettable lack of respect to the plaintiff’s representative. More importantly, it showed a lack of respect to the plaintiff and his case. It was unfair. As my reasons above demonstrate, his Honour would have been assisted had he deigned to consider the submissions in any detail, or perhaps at all.

  5. Finally, it should not be assumed that the plaintiff has succeeded on technical grounds and attention to the plaintiff’s submissions would simply have resulted in more elaborate reasons arriving at the same result. Proper focus on the onus of proof could clearly have led to a different result. More generally, as Heydon J said in AK v The State of Western Australia (at [108]), the discipline of giving reasons serves:

“… [not] only the purpose of enabling the accused to know why there was a conviction, or the prosecution to know why there was an acquittal. The facility it offers for close appellate scrutiny of the trial judge means that it creates an essential discipline. The process of having to state judicial reasoning in terms sufficiently clear, exact and convincing to pass muster in the eyes of an appellate court listening to the sometimes hypercritical submissions of counsel entails a need to be very precise in working that reasoning out. The discipline stems from the fact that the process of stating reasoning often reveals its fallacies: in the course of composing reasons for judgment directed to supporting a conclusion which seemed clear, judges often find that the opinion ‘won’t write’, and that a different conclusion develops.”

Orders

  1. I make the following orders:

  1. Pursuant to ss 52(1) and 55(1)(b) of the Crimes (Appeal and Review) Act 2001 (NSW), the appeal is allowed.

  2. The decision of the learned Magistrate in the Murwillumbah Local Court dated 10 November 2022 is set aside.

  3. The matter is remitted to the Local Court to be dealt with according to law.

  4. Any further hearing of the matter is to be heard by a different Magistrate.

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Amendments

05 October 2023 - minor amendment made to [15]

05 October 2023 - .

Decision last updated: 05 October 2023

Most Recent Citation
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Cases Cited

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Statutory Material Cited

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AB v R [2022] NSWCCA 104
Abdallah v R [2016] NSWCCA 34
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