Edwards v Police No. Scgrg-98-777 Judgment No. S6762
[1998] SASC 6762
•6 July 1998
EDWARDS v POLICE
Magistrates Appeal
Debelle J ( ex tempore)
This is an appeal against conviction and sentence.
The appellant was charged with common assault, contrary to s.39 of the Criminal Law Consolidation Act 1935. He pleaded not guilty. After a hearing, he was convicted by a magistrate. The appellant appeals against the conviction and sentence.
The victim of the alleged assault is a Mrs Rebecca Jones. She resides with her husband in a house at Aldinga Beach. The appellant resides at Plympton. The appellant and Mrs Jones had lived in a de facto relationship some 11 years before the events leading to the charge, the subject of the present complaint. A child was born of the relationship, a boy who is now aged 12 years. The boy lives with Mrs Jones and her husband. The appellant has access at weekends.
On the morning of Saturday, 20 September 1997 Mrs Jones rang the appellant and asked him to collect the boy from the house at Aldinga Beach. It seems this might have been a variation of an arrangement as to picking up and returning the boy that had just been put in place. Mrs Jones told the appellant that she had problems with her motor car, an assertion which the appellant did not believe. The appellant had to drive from Plympton to Aldinga Beach. He arrived at about 10.30 am. He was angry when he arrived.
The prosecution called Mrs Jones. Her evidence was that the appellant was very abusive to her when he arrived at the house, that she and the appellant got into an argument, that the argument became heated and that the appellant threatened to 'smash' her. At that time, the front door was open and the appellant had a foot in the door. Mrs Jones said that the appellant had waved his fingers vigorously in front of her face while abusing her. She said that the appellant had swung a punch at her husband and then had apologized to him, saying that his argument was with her and that he wanted to 'smash' her. The appellant's son ran past his mother and father to the front of the house. The appellant left shortly after. It was Mrs Jones’ evidence that she felt scared at the time. However, in cross-examination she agreed that at no time did she retreat from the front door. A short time later she reported the incident to the police.
The appellant denied the allegations. He admitted that he was angry and that there had been an argument with strong words being used. He admitted that he and Mrs Jones were shouting at each other. However, he denied swinging a punch or threatening Mrs Jones. He admitted waving his finger in front of her face but denied that he had threatened to hit her. He said that he had calmed down after being spoken to by Mrs Jones’ husband and had then gone away with his son.
In his ex tempore reasons for judgment the magistrate noted that there was a dispute about whether the appellant said that he would 'smash' Mrs Jones. He had earlier referred to in his reasons to other conflicts in their evidence. He continued:
“There is a factual dispute about the words used. I find myself in a situation where I am unable to say whether or not the word “smash” was used. Mrs Jones says it was, the defendant denies it was. There is nothing about the manner of giving evidence of those two which gives me any indication as to which person is more likely to be correct. However, I am not persuaded that I need to resolve that particular factual dispute.”
The effect of this reasoning is that the magistrate was not satisfied beyond reasonable doubt that the appellant had threatened Mrs Jones, by using words to the effect that he would “smash her”.
The magistrate then went on to examine whether the appellant had been reckless in his conduct towards Mrs Jones so that she would have had a reasonable apprehension of an assault. The magistrate was entitled to do so but it appears in his reasons that he has erred in the manner in which he has directed himself.
This is a case where there had been no actual physical contact. Three relevant principles are stated by Bray CJ in MacPherson v Brown (1975) 12 SASR 174 at 177. They are:
The actus reus of an assault where there is no actual physical contact is an act of the defendant raising in the mind of the victim, the fear of immediate violence to him, that is to say, the fear of any unlawful physical contact.
The mens rea of such an assault is the defendant's intention to produce that expectation in the victim's mind.
There is the alternative possibility of a reckless assault, where the defendant whilst not desiring to cause such fear, realises that his conduct may do so and persists with it.
That latter possibility is the possibility to which the learned magistrate adverted in his reasons.
The magistrate convicted the appellant because he found that he was reckless. He said:
“The authorities are clear that an assault is committed when a defendant puts a victim in fear of imminent physical harm or physical violence. Normally there is a requirement for an intention to commit an assault but, if a defendant acts recklessly and creates fear in the victim and the creation of that fear is reasonably foreseeable, then that is sufficient for the offence of assault to be made out.
I am satisfied and so find the facts of this matter are that the defendant verbally abused Mrs Jones and in the course of that verbal abuse used offensive language and poked his finger towards her face coming into very close proximity to her face which created fear in her and that the creation of that fear was reasonably foreseeable
While I cannot say on the evidence that the defendant intended to create fear, I suspect that is the case but I most certainly am satisfied in so finding that the defendant was reckless as to whether he created that fear or not.”
Even allowing for the fact that these are ex tempore remarks of a busy magistrate, the reasoning is unsatisfactory. It is clear that the magistrate is not satisfied beyond reasonable doubt that the appellant intended to cause any fear. He then finds the defendant was reckless, but it is apparent from his reasons that he has applied an objective test. But recklessness in this context requires that the defendant adverted to the consequence of his actions. The defendant is not to be convicted of assault if he does something without caring about the consequences and he did not direct his mind to those consequences: see Bray CJ in MacPherson v Brown (1975) 12 SASR 184 at 189; see also Zelling J at 200 and Jacobs J at 212. There was no evidence to show that the appellant had adverted to the consequences of his conduct. The issue was not in any respect canvassed at the hearing. Instead, the magistrate has applied an objective test, the test of the reasonable man. To borrow from the remarks of Bray CJ in MacPherson v Brown (supra) at 188, it is another example of the persistent heresy of objective guilt, the appellant being judged not by what he actually foresaw, but by what he should as a reasonable man have foreseen. That is a theory rejected by the High Court in emphatic terms in Parker v The Queen (1953) 111 CLR 610.
For these reasons, the magistrate was wrong in applying the test of what a reasonable person would reasonably have foreseen would flow from the conduct of the appellant. The appeal will therefore be allowed and the conviction set aside.
I do not think that this is a proper case in which to order a new trial. On the facts as found by the magistrate, the appellant is entitled to an acquittal. The orders will therefore be:
Appeal allowed.
Orders of the Magistrates Court set aside.
Order that the complaint be dismissed.
The respondent will pay the appellant's costs, which are fixed in the sum of $150 and out of pocket expenses.
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