Edwards v Binsaad
[2015] WASC 52
•11 FEBRUARY 2015
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CRIMINAL
CITATION: EDWARDS -v- BINSAAD [2015] WASC 52
CORAM: BEECH J
HEARD: 5 FEBRUARY 2015
DELIVERED : 11 FEBRUARY 2015
FILE NO/S: SJA 1087 of 2014
MATTER :IN THE MATTER of Prosecution Notice Number SHE 665 of 2014 in the Magistrates Court of Western Australia at South Hedland
BETWEEN: STUART MICHAEL EDWARDS
Appellant
AND
ZARAK MAITLIN BINSAAD
Respondent
ON APPEAL FROM:
Jurisdiction : MAGISTRATES COURT OF WESTERN AUSTRALIA
Coram :MAGISTRATE S R MALLEY
File No :PH 665 of 2015
Catchwords:
Criminal law - Selfdefence - Whether open to magistrate to acquit on grounds of selfdefence - Turns on own facts
Legislation:
Criminal Code (WA), s 248(4)
Result:
Appeal upheld
Retrial ordered
Category: B
Representation:
Counsel:
Appellant: Mr J A Scholz
Respondent: Mr L A Margaretic
Solicitors:
Appellant: Director of Public Prosecutions (WA)
Respondent: Luka Anthony Margaretic
Case(s) referred to in judgment(s):
Goodwyn v The State of Western Australia [2013] WASCA 141
BEECH J:
Introduction
This is an appeal against the acquittal by the magistrate of a charge of assault occasioning bodily harm. The magistrate acquitted the respondent on the ground of self‑defence. The prosecution appeals against that decision on the basis that the magistrate should have been satisfied beyond reasonable doubt that one or more of the elements of the defence of self‑defence were excluded.
For the reasons that follow, I would uphold the appeal.
The trial
At trial it was not in dispute that the respondent had assaulted the complainant by punching him with his left hand and that as a result the complainant had sustained bodily harm. Thus, what was in issue at trial was whether the respondent's act was authorised, justified or excused by law. The respondent's case raised questions of provocation and self‑defence.
The prosecution called two witnesses: the complainant and the respondent's brother.
The evidence of the complainant
The upshot of the complainant's evidence was that he had gone to a hotel on the day in question and had played pool, but had no recollection of what occurred after that. The complainant was shown CCTV footage and identified himself as the person who was punched and knocked out as a result. This footage was tendered by consent.[1]
[1] Exhibit C.
The CCTV footage shows the respondent forcefully punching the complainant, who immediately fell to the floor and was unconscious. I will say more about what the footage reveals later in these reasons.
The evidence of the respondent's brother
The respondent's brother's evidence was accurately outlined in the appellant's submissions. Given the findings of the magistrate, it is not necessary to detail that evidence. The respondent's brother did not give evidence of the interaction between the respondent and the complainant immediately before the respondent punched the complainant.
The evidence of the respondent
The respondent gave evidence in chief that, in summary, was as follows:
(a)the respondent was aged 29 and 175 cm tall at the time of the incident;
(b)on the evening in question he went to the hotel with his brother and cousin. The first contact he had with the complainant was when the complainant put money on a pool table being used by the respondent and his group. The respondent told him that it was only his group that were playing pool. The complainant appeared to be intoxicated and a bit aggressive. He told the respondent to 'fuck off' and that he would play pool wherever he wanted to. After that they played pool;[2]
[2] ts 18 ‑ 19.
(c)in the course of playing pool, the complainant told the respondent that he would 'smash' him. Although in his evidence the respondent said that the complainant appeared to be joking around, the respondent did not take it as a joke and said he felt threatened as a result;[3]
[3] ts 19.
(d)during the three or four pool games they played, the complainant said that he would 'smash' the respondent three or four times;[4]
[4] ts 20.
(e)eventually the complainant put both hands down and 'smashed' the table, resulting in all of the drinks falling over. After the respondent had been to the toilet, he approached the complainant and asked him to replace the drinks. The complainant told the respondent that he would 'smash' him and said 'get fucked';[5]
[5] ts 20.
(f)in reply, the respondent said words to the effect of 'come on mate, piss off', in response to which the complainant told the respondent that he would 'smash' him and his wife;[6]
(g)in that regard, the respondent gave the following evidence:
Do you remember exactly what words he used to the best of your recollection?‑‑‑Yes. He goes 'Fuck you. I'm not buying drinks. I'll smash you and then I'll smash your wife.'
And after that was said, Mr Binsaad, do you recall what you did?‑‑‑Yes. I was pretty angry at the time and I just ‑ I cracked him, I suppose, with me ‑ with me left hand.
So when you say you cracked him with your left hand when you were angry, do you ‑ did you hit Mr Burke with your left hand?‑‑‑Yes.
Are you a right‑hander or a left‑hander?‑‑‑Right‑handed.
Okay. If you were to punch someone, what hand would you normally use?‑‑‑Normally me right.
You normally use your right hand?‑‑‑Yes.
And do you recall why you used your left hand?‑‑‑I think it was just ‑ just angry at what he had said ‑ just a quick reaction. Yes.[7]
[6] ts 21 ‑ 22.
[7] ts 22.
The respondent's evidence in cross‑examination included the following:
(a)the respondent was only at the hotel for a good time, to catch up with his cousin, and did not feel that he had to leave and ruin his catch up because of someone being intoxicated;[8]
(b)until the complainant approached him the respondent was in a happy mood. When the complainant came over, the way he was acting 'made [the respondent] angry';[9]
(c)when asked what the complainant was doing specifically that made him angry, the respondent said '[i]nsulting me, telling me, you know, that he would smash me, bumping the table, walking past the guys, bumping them - you know, with his pool cue when he was having his shot he wasn't [saying] "Excuse me can you move out of the way" ';[10]
(d)when it was put to him that he did not feel he was in any sort of physical danger, the respondent said he did not know how the complainant would react due to his intoxication;[11]
(e)he agreed that the footage showed that the complainant was standing with one hand on a pool cue and the other hand down by his side;[12]
(f)when it was put to the respondent that at the time he struck the complainant the complainant did not pose a physical threat to him by his body language, the respondent denied the proposition, saying that the complainant was leaning over him and told him that he would 'smash' him and his missus, which the respondent described as 'pretty aggressive';[13]
(g)asked what he was thinking just before he decided to hit the complainant, the respondent said 'I was angry because of what he said';[14]
(h)the prosecutor asked the respondent whether he really thought the complainant intended to carry out his threats given that intoxicated people say stupid things. The respondent replied that he did not know the complainant and did not know how he would react;[15]
(i)he agreed that the threats were silly talk and that his wife was not present, but said that any person would get upset by threats against the missus;[16]
(j)although what the complainant said upset him, the respondent did not walk away because he was catching up with his cousin and having a good time.[17]
[8] ts 23.
[9] ts 23.
[10] ts 24
[11] ts 24.
[12] ts 24.
[13] ts 25.
[14] ts 25.
[15] ts 26.
[16] ts 26 ‑ 27.
[17] ts 27.
The magistrate's reasons
The magistrate gave the following reasons for acquitting the respondent:
The accused is charged with wilfully assaulting Leslie John Burke, thereby causing him bodily harm. It's not in dispute that the event occurred on the 18th of February at the Walkabout Hotel on the - at Port Hedland. It's not in dispute that Mr Binsaad struck Mr Burke once to the jaw and as a result of that caused him bodily harm. The issue arises as to whether the blow was authorised, justified or excused in some manner.
As I say, the facts in this matter are largely [undisputed]. The victim had been drinking during the afternoon of 18 February and went to The Walkabout Hotel in Hedland around about 5 pm, where he continued to drink. It's clear on the evidence that Mr Burke was significantly intoxicated by the time this incident occurred, which was sometime, certainly, after 8.30 pm. It was unclear to me exactly what time the event occurred but, in any event, it was later in the evening.
The evidence of the victim was brief. He recalls being at the hotel. He recalls playing pool at the hotel but after that recalls little other than waking up in the hospital. The evidence before the courts, therefore, comes largely from the accused and from the accused's brother, who was called by the prosecution. Travis Binsaad was with the accused and another male when the victim approached them and wanted to, effectively, play on their table although there was another table available, but wanted ‑ whether he had somebody else to participate with, I don't know, but anyway he wanted to participate with them and clearly they weren't all that ‑ that group weren't happy about that.
He described ‑ the accused described ‑ sorry, the accused's brother described the male as pestering them over a period of several hours, being verbally aggressive to them and physically abusive in the manner one might experience from intoxicated people. Physically aggressive in the form of effectively bumping into them as he walked around the table and not seeking to ask them to move to one side. He said that at one point the victim struck a table, causing their drinks to spill. He said the brother ‑ the accused got angry and walked away and then minutes later returned, asked the victim to replace their drinks to which the victim responded, 'Fuck off, I'm not buying no drinks.' He said he was not able to say exactly what the conversation between the parties was.
The accused's version was that the victim approached the pool table and wanted to involve himself in the game but was ‑ indicated that he wasn't welcome. He said the victim told him to fuck off and appears he did get his way in the sense that he involved himself in their game. The accused said during the course of the game the victim, on a number of occasions, said he would smash him, which caused him to feel threatened, given the victim's - effectively, his state of intoxication. The accused said he saw the victim hit a table, spilling their drinks.
He said he went to the toilet and returned, contrary to what his brother suggested; he went to cool off. I don't think there's any evidence that he ‑ one way or another he had said that. It was simply, I think, his brother's assessment but anyway he did go to the toilet.
He returned and approached the victim, asking him to replace the drinks. The accused said that Burke said, 'Get fucked. I will smash you,' and then again told him, 'I will smash you and I will smash your wife'. The accused said at that point he was very angry and struck the victim once to the jaw with his non‑preferred left hand, causing Burke to fall to the ground and knocking him unconscious.
There's video footage of the incident but there is a ‑ it is of short duration. The prosecution has not sought to produce any footage of events leading up to the event, so I can't make any assessment of demeanour or behaviour other than that brief 10 to 15 seconds of footage that I was able to see. What the footage shows is the accused walks up to Burke, they stand within close proximity. Burke stands with his hands - one - his - sorry, the accused stands with his hands on his hips and Burke has a pool cue in his right hand, one might describe it as a non‑aggressive manner, and his left hand on his hip. The parties appear to exchange words and the accused strikes Burke once to the head.
Having heard the evidence, I am left in a position that the accused's version of events, in my view, has to be accepted. The accused's brother's evidence of the conversations is vague and, in my view, doesn't assist the prosecution greatly. What I am left with is that the victim, during the course of his interaction with the accused and his party on some at least three occasions, threatened to smash them or smash the accused. Whether he had an intention of carrying out the threat or whether it was done in a jest was not something the accused could determine or did determine other than to say he felt threatened by the behaviour.
The evidence that Burke caused the group's drinks to spill - there is evidence that he caused the drinks to spill and there is evidence that the accused, in reasonable terms, and I suggest, and otherwise asked him to replace them. The evidence which I am obliged, in my view, to accept, given the evidence available to me is that standing in front of the accused - sorry. Burke was standing in front of the accused with a pool cue in his hand, albeit in a non‑aggressive manner; the accused again felt threatened. The accused, when he - when Burke threatened him with physical harm, saying, 'I will smash you,' followed by the words, 'I will smash you and smash your wife'.
Based on those findings and given the victim's earlier comments and his earlier - what has been described as aggressive behaviour - I am satisfied the [accused] believe[d] that the blow was necessary to defend himself from a harmful act. I find that given the early aggression and the threat made to smash him, the response was a reasonable response by the accused, as he believe[d] it to be. Objectively, I am satisfied, given the behaviour of Burke during the evening and his state of intoxication, there was reasonable grounds for those beliefs. In the circumstances, I am satisfied that the charge is not proven.[18]
[18] ts 33 ‑ 35.
The appellant's grounds of appeal challenge the magistrate's findings in the last paragraph of his reasons. His Honour made positive findings that each of the elements of self‑defence was established. Of course, it was not necessary for the respondent to prove those elements; it was for the prosecution to prove beyond reasonable doubt that at least one of them could be excluded.
Grounds of appeal
The appellant originally appealed on two grounds. Prior to the hearing of the appeal, the appellant applied for leave to amend to add a further ground. At the hearing, I granted that leave. As amended, the grounds of appeal are:
(1)the magistrate erred in law and in fact in finding that the respondent's harmful act to the complainant was a reasonable response by him in the circumstances he believed them to be;
(2)the magistrate erred in law and fact in finding that there were reasonable grounds for the respondent to believe that his harmful act to the complainant was necessary to defend himself or another person from a harmful act; and
(3)the magistrate erred in fact in finding that the respondent believed that his harmful act to the complainant was necessary to defend himself or another person from a harmful act.
Self‑defence - s 248 of the Criminal Code (WA)
Section 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 the circumstances as the person believes them to be; and
(c)there are reasonable grounds for those beliefs.
The effect of s 248(4) was summarised by Buss JA in Goodwyn v The State of Western Australia:[19]
… s 248(4) enumerates four elements. First, the accused (subjectively) believes the harmful act is necessary to defend the accused or another person from a harmful act, including a harmful act that is not imminent (s 248(4)(a)). Secondly, the accused's harmful act is a reasonable (objective) response by the accused in the circumstances as the accused (subjectively) believes them to be (s 248(4)(b)). Thirdly, there are reasonable (objective) grounds for the accused's (subjective) belief that the harmful act is necessary to defend the accused or another person from a harmful act, including a harmful act that is not imminent (s 248(4)(a) read with s 248(4)(c)). Fourthly, there are reasonable (objective) grounds for the accused's (subjective) belief as to the circumstances (s 248(4)(b) read with s 248(4)(c)).
If the accused satisfies the evidential onus in relation to self‑defence then the burden is on the State to negative the defence by excluding at least one of its elements beyond reasonable doubt.
[19] Goodwyn v The State of Western Australia [2013] WASCA 141 [95] ‑ [96].
In the circumstances of this case, the following issues arose in relation to s 248(4):
(1)Did the respondent subjectively believe that punching the complainant in the face was necessary to defend himself (or another person) from a harmful act, including a harmful act that was not imminent (s 248(4)(a))?
(2)Was the respondent's punching the complainant in the face objectively a reasonable response by the respondent in the circumstances as the respondent subjectively believed them to be (s 248(4)(b))?
(3)Were there, objectively, reasonable grounds for each of the subjective beliefs of the respondent stated in s 248(4)(a) and s 248(4)(b)?
The second issue requires a determination of what the respondent's perception of the circumstances were and an assessment of the reasonableness of his actions in light of that determination.[20]
[20] Goodwyn v The State of Western Australia [172] (Mazza JA).
It is convenient to deal with ground 3 first, because it relates to the first element of s 248(4) - whether the respondent subjectively believed that punching the complainant in the face was necessary to defend himself or another person from a harmful act.
Ground 3
The magistrate accepted the respondent's evidence as to what had occurred. His Honour's approach in that respect is not challenged, and I proceed on the same basis.
In my respectful opinion, the only conclusion open to the magistrate was that the prosecution had proved beyond reasonable doubt that the respondent did not believe that punching the complainant in the face was necessary in order to defend himself or another person from a harmful act. My reasons are as follows.
The respondent gave evidence of statements by the complainant over a period of time, during several games of pool, to the effect that the complainant would 'smash' him, and that he felt threatened by him.[21] The high water mark of the respondent's evidence as it relates to self‑defence was his evidence in cross‑examination in which he said:
(a)in effect, that the complainant did pose a physical threat to him in that he was leaning over towards him and told him that he would 'smash' him and his missus;[22] and
(b)he did not know how this intoxicated man would react.[23]
[21] ts 19 ‑ 20.
[22] ts 25.
[23] ts 26.
The magistrate accepted this evidence.[24]
[24] ts 34.
At no stage in his evidence did the respondent say that the reason that he hit the complainant was any concern for his safety. He did not say anything along the lines that he thought that if he did not hit the complainant, the complainant would have hit him. The respondent's statement that he felt threatened does not translate to evidence that he considered a specific defensive action, in the form of punching the complainant, to be necessary. Nor in the circumstances of this case could any such inference be drawn.
The substance of the respondent's evidence was that he hit the complainant because he was angry with what the complainant had been saying. His evidence in chief, at ts 22, set out earlier in these reasons, is telling. When asked by his counsel what he did after the complainant had said he would 'smash' him and his missus, the respondent said that 'he was angry and just cracked him'. When asked the reason that he used his left hand, the respondent's evidence was that he was angry and it was a 'quick reaction'. The magistrate specifically accepted this evidence.[25]
[25] ts 34.
Also telling is the respondent's evidence when he was directly asked in cross‑examination what he was thinking just before he decided to hit the complainant. The respondent's answer was 'I was angry because of what he said'.[26] The respondent makes no mention of any concern that he was about to be hit by the complainant.
[26] ts 25.
This conclusion is also supported by the respondent's evidence of his general reaction to the complainant. The respondent said that he was feeling happy, but after the complainant came over, the way the complainant was acting made the respondent angry.[27] The respondent explained the things that the complainant was doing that made the respondent angry.[28]
[27] ts 23.
[28] ts 24.
For these reasons I would uphold ground 3.
Grounds 1 and 2
These grounds both relate to questions of reasonableness, and are conveniently dealt with together.
If, contrary to my conclusion in relation to ground 3, it was open to the magistrate to find that a belief on the part of the respondent that punching the complainant in the face was necessary to defend himself from a harmful act had not been excluded beyond reasonable doubt, in my opinion the only conclusion on the evidence was that there were no reasonable grounds for any such belief. Further, in my view, the only conclusion open to the magistrate was to be satisfied beyond reasonable doubt that the very forceful punch by the respondent of the complainant was not a reasonable response by him in the circumstances as he believed them to be. My reasons for these conclusions are as follows.
The magistrate found that immediately before the blow the complainant was standing in front of the accused with a pool cue in his hand, in a non‑aggressive manner. That can be seen in the CCTV footage.
On the respondent's evidence:
(a)the complainant had made several statements that he would 'smash' the respondent over a period of time;[29]
(b)at no time did the complainant take any physical steps to act on his threat to 'smash' the respondent;
(c)the threats made by the complainant did not lead the respondent to consider that he needed to move away or leave the premises;[30]
(d)the complainant did not move towards the respondent, or appear to be about to hit the respondent.
[29] ts 20.
[30] ts 23, 27.
The circumstances in which the respondent punched the complainant can be seen on the CCTV footage. Counsel for the respondent emphasises in his submissions that the CCTV footage only shows a very short time immediately preceding the punch, and does not show the build‑up of events over the preceding pool games. I accept that this is so. Nevertheless, in my opinion what can be seen on the CCTV footage is revealing.
The CCTV footage shows the respondent returning to an area in the vicinity of the complainant. For a very short space of time, in the region of five to ten seconds, they are in close proximity. In that period there is absolutely no sign of aggression on the part of the complainant. He does not move at all, let alone towards the respondent. The complainant does not make any physical gestures. He can be seen standing, as the magistrate found, 'in a non‑aggressive manner'. After a period of not more than ten seconds, the respondent can be seen suddenly punching the complainant very forcefully, immediately following which the complainant hit the ground.
In the circumstances, in my opinion the only available conclusion is that there were no reasonable grounds for the respondent to believe that he needed to hit the complainant at all, in order to avoid being hit by the complainant. It was open to the respondent to move away from the immediate vicinity of the complainant, having himself just approached the complainant. The respondent could have played pool on a different table, or, if he felt it necessary, asked staff to assist.
Further, for the same reasons, on the evidence the only available conclusion was satisfaction beyond reasonable doubt that the respondent's sudden and violent punch to the face of the complainant was not a reasonable response by him in the circumstances as he believed them to be.
For these reasons I would uphold grounds 1 and 2.
Conclusion
At trial, the respondent relied on provocation as well as self‑defence. The magistrate did not make findings in relation to the defence of provocation. In the circumstances, the appellant accepts that there should be an order for re‑trial.
For these reasons I would order that:
(1)there be leave to appeal;
(2)the appeal be upheld;
(3)the order for acquittal and costs order made on 1 October 2014 be set aside; and
(4)there be a re‑trial of Prosecution Notice SHE 665 of 2014, before a different magistrate.
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