Davis v Police - [2018] SASC 196

SUPREME COURT OF SOUTH AUSTRALIA
(Magistrates Appeals: Criminal)
DAVIS v POLICE
[2018] SASC 196
Judgment of The Honourable Justice Bampton
21 December 2018
MAGISTRATES - APPEAL AND REVIEW - SOUTH AUSTRALIA - APPEAL TO SUPREME COURT
CRIMINAL LAW - PARTICULAR OFFENCES - OFFENCES AGAINST THE PERSON - ASSAULT - GENERALLY
CRIMINAL LAW - EVIDENCE - MATTERS RELATING TO PROOF - BURDEN OF PROOF
Appeal against finding of Magistrate – where Magistrate found that an aggravated assault had been proved, but recorded no conviction – where the respondent conceded the circumstance of aggravation was not made out – whether it had been proved beyond reasonable doubt that the appellant used excessive force in defending himself, his property, and his girlfriend.
HELD, allowing the appeal:
1. It has not been proved beyond reasonable doubt that the appellant acted with excessive force in defending himself, his property, and his girlfriend.
2. Verdict of acquittal entered.
Criminal Law Consolidation Act 1935 (SA) s 15, s 20; Family Relationships Act 1975 (SA) s 11A, referred to.

DAVIS v POLICE
[2018] SASC 196
Magistrates Appeal: Criminal

BAMPTON J: Mr Davis was at home with his girlfriend on 7 September 2017 when he answered his door to a woman he had known for some 20 years. The woman proceeded to interrogate him about whether he had chosen his girlfriend over her. Upon answering that he had, the woman then vented her scorn and an argument ensued. Mr Davis was charged with one count of aggravated assault contrary to s 20(3)(b) of the Criminal Law Consolidation Act 1935 (SA). The alleged circumstance of aggravation was that the complainant was a former domestic partner of Mr Davis. Following a trial, a Magistrate found the charge proved, but recorded no conviction and imposed no penalty.
Mr Davis appeals the decision on grounds that the Magistrate erred by finding that “over the last 21 years from time to time Mr Davis and the complainant were in a domestic partnership” (ground 1) and finding that he acted with excessive force in defending himself, his property, and his girlfriend (ground 2).
The respondent concedes that the evidence at trial does not support a finding that Mr Davis and the complainant were ever domestic partners, as defined by s 11A of the Family Relationships Act 1975 (SA). Accordingly, the circumstance of aggravation is not made out.
The relationship on my assessment of the trial transcript can more accurately be described as comprising interludes of intimacy over the period Mr Davis and the complainant had known each other.
While the respondent conceded that the evidence before the Magistrate did not support the circumstance of aggravation, it was submitted that the Magistrate was otherwise correct to find the offence of basic assault proved on the basis of excessive self-defence.
In light of the respondent’s concession with respect to ground 1, I turn to consider ground 2. It is implicit in the Magistrate’s reasons that he found that the prosecution had not proved beyond reasonable doubt that Mr Davis did not hold a genuine belief that his conduct was necessary and reasonable to defend himself.[1] The question on this appeal is whether the Magistrate correctly found that Mr Davis’s conduct, viewed objectively, was — in the circumstances as he genuinely believed them to be — reasonably proportionate to the threat that he genuinely believed he faced.[2]
[1] Criminal Law Consolidation Act 1935 (SA) s 15(1)(a).
[2] Criminal Law Consolidation Act 1935 (SA) s 15(1)(b).
The prosecution case
It was the prosecution case that the complainant attended Mr Davis’s home at about 9.00 pm on 7 September 2017 to speak with him. She was suspicious that he was with another woman. She attended the home and heard male and female voices inside the house. She knocked on the door, which was answered by Mr Davis. A verbal disagreement about the other woman ensued. The complainant then proceeded to kick the front security door, following which it was alleged that Mr Davis opened the door. He is alleged to have charged at the complainant and grabbed her throat with both hands. The complainant gave evidence that this lasted for three to four seconds and caused pain and difficulty in breathing. The complainant alleged that she said, “You want to think about what you’re about to do when you raise your hand at me over that piece of shit there … this here was the deal breaker”. The complainant said that she asked for her house keys to be returned and made comments to the effect that the relationship was over. She alleged that she was crying and screaming at the time. The complainant said that she fought back and tried to push Mr Davis away. She managed to get free and ran to her car.
The complainant alleged that Mr Davis tried to punch her while she was seated in her car, but was unsuccessful. She alleged that he lunged at her through the window and put his hands around her throat. She said that he took hold of a piece of broken plastic, described to be a piece of plastic shielding attached to her car window, and threatened her with it, although no contact was made. The complainant gave evidence that she was able to drive away. The complainant said that she was 5’6” and that while at the time of the trial she weighed 70 kg, she had put on nearly 20 kg since 7 September 2017.
Affidavits of two police officers who attended the complainant’s home following her call to police were tendered by consent. One officer deposes to the complainant showing him some minor scratches on her neck and refers to photos of the complainant’s neck provided by her annexed to his affidavit. The other officer deposes to noticing redness and scratches on the front of the complainant’s neck.
It is clear from the evidence at trial that the complainant was jealous of Mr Davis’s new girlfriend and admitted she had previously assaulted her in a pokies room only a few weeks prior.
Mr Davis’s evidence
Mr Davis acknowledged that he had had a long-term friendship with the complainant but he denied that it was anything more than a casual affair, primarily over a 12‑month period ending two years earlier due to the complainant’s drug use. He gave evidence that over the 20 years they had been friends, they had never cohabited and she had only slept at his address on a handful of occasions.
Mr Davis said that on 7 September 2017 his new girlfriend had received a call from the complainant saying that she would be at Mr Davis’s property in a minute. When Mr Davis heard a knock at the door, he told his girlfriend to stay in the bedroom. He went to the door, opened the front door keeping the security door locked, and found the complainant at the door. The complainant asked whether Mr Davis loved his new girlfriend and he said: “Yes”. She asked whether he had chosen his girlfriend over her and he replied: “Yes I have”. Mr Davis gave evidence that the complainant said:
‘Let me in’. I said, ‘Just go …’. She started kicking the door, I said ‘Just please, go’ and then she started yelling, started saying ‘Let me in. I’ll smash the fucking slut’. She was kicking the door and I said ‘Just fuck off’. She didn’t, she kept, she kept going at the door, kicking the door, pulling at the handle.
…
She wanted to, wanted to bash [his girlfriend]. She actually said ‘20 something years of friendship and you’re not going to let me in to bash that slut?’.
Mr Davis gave evidence that the security door began to buckle in and that the complainant snapped the door handle. He said he did not know how she got the front door open, “it was kicked and pulled out and pulled apart”. She started to head towards him into the house, although she did not get inside. He said:
I grabbed her, I grabbed her — one of her arms came up over to hit me, I’ve grabbed that, I grabbed her round the neck, I wasn’t, I wasn’t gentle at all. There’s a fence directly in front of my doorway, I grabbed her and I ran her up to the fence and I said, ‘What the fuck are you doing? Fuck off!’ Now I probably squeezed her neck a bit, I’m not saying I didn’t, I squeezed it and I pushed her down the driveway.
Mr Davis described in cross-examination that the distance the fence and the doorway was three and a half metres. He said that he:
had hold of [the complainant’s] throat with one hand. At no stage did I choke her. Not with two hands anyway. I had her arm and I had her throat and I pushed her straight back.
Mr Davis denied leaving the driveway and approaching the complainant’s car, attempting to punch her, or threatening her with a piece of plastic.
Mr Davis said that he had had altercations with the complainant before, where she had swung punches at him and attacked him. He gave evidence that she had attacked his vehicles and that he had had to restrain her on other occasions
The Magistrate’s reasons
In his reasons, the Magistrate said:
[2]As to the allegations of assault, [the complainant] gave detailed evidence of what occurred on 7 September 2017. I formed the impression almost from the beginning that she was a poor witness, that she had come to court simply to vent her anger and frustration at being dumped by the defendant and that on the day in question it seemed to me there was absolutely no reason for her to attend the defendant’s home other than to confront and insult both the defendant and his then girlfriend ...
The Magistrate did not accept the complainant’s evidence regarding the allegations of what occurred once she got in her car.
Having read the trial transcript, I agree with the Magistrate’s assessment of the complainant’s evidence, which oozes venom, vitriol, and vengeance.
The Magistrate went on to say:
[3]On the evidence [heard] from her and the defendant, although I cannot make these findings beyond reasonable doubt, I accept his evidence that she kicked in the security screen door for the property and that she would not go away as requested by him. However, his own evidence incriminates him of an assault. The admitted assault was at the lowest end of the scale of seriousness of such offences. It was indeed his right to protect his property and get her off the property. He would have been better off calling the police – but he chose not to. However in his own words he did squeeze the victim’s throat and admits ‘he probably should not have’. As I said in the process of defending himself, his property and [his girlfriend] who was inside of the house, he went too far and so I have found the allegation of assault proven beyond reasonable doubt.
The difficulty with this finding is, as acknowledged by counsel for the respondent, there is no reference in the transcript to Mr Davis admitting “he probably should not have”. It was also not put to Mr Davis during cross‑examination that he had used excessive force in removing the complainant from his front door. Mr Davis was asked if he had thought about calling the police. He replied, “I don’t ring police”.
Mr Davis does not, on my assessment of his evidence, admit that he had used excessive force. It was his evidence that the complainant was not a small woman, that she was a very strong woman, who had previously attacked both him and his then girlfriend. His evidence was that as soon as the locked screen door came open, he was in shock that it had opened and that the complainant came towards him. He said that he then grabbed her arm, because she swung it at him, and as she was coming forward he grabbed her by the neck with his other hand.
Giving evidence that he “was not gentle at all,” and that he “probably squeezed her neck a bit” as he pushed her away from the front door, was not a concession that he had used excessive force. Having read the transcript of the trial before the Magistrate, I am of the view that the finding of guilt is not supported by the evidence. On my assessment of the evidence and in circumstances where it was not put to Mr Davis that he had used excessive force, the prosecution has not proved beyond reasonable doubt that his conduct was not, in the circumstances as he genuinely believed them to be, reasonably proportionate to the threat that he genuinely believed to exist.[3]
[3] Criminal Law Consolidation Act 1935 (SA) s 15(5).
Accordingly, I allow the appeal and enter a verdict of acquittal.