Emmett v Arnold

[2006] TASSC 5

[2006] TASSC 5

CITATION:              Emmett v Arnold [2006] TASSC 5

PARTIES:  EMMETT, Jonathan Colin
  v
  ARNOLD, Ashley William

TITLE OF COURT:  SUPREME COURT OF TASMANIA
JURISDICTION:  APPELLATE
FILE NO/S:  BDR LCA 9/2005
DELIVERED ON:  16 February 2006
DELIVERED AT:  Burnie
HEARING DATE:  3 February 2006
JUDGMENT OF:  Blow J

CATCHWORDS:

Criminal Law – Particular offences – Offences against the person – Other offences against the person – Assaults – Generally – Summary prosecution – No finding of unlawfulness – Self-defence – Consent – Force used during hockey match.

Police Offences Act1935 (Tas), s35(1).
Aust Dig Criminal Law [131]

REPRESENTATION:

Counsel:
             Applicant:  D R Fairley
             Respondent:  K Brown
Solicitors:
             Applicant:  Temple-Smith Partners
             Respondent:  Director of Public Prosecutions

Judgment Number:  [2006] TASSC 5

Number of paragraphs:  19

Serial No 5/2006
File No BDR LCA 9/2005

JONATHAN COLIN EMMETT v ASHLEY WILLIAM ARNOLD

REASONS FOR JUDGMENT  BLOW J

16 February 2006

1. This is a motion to review in respect of a conviction by a magistrate on a charge of assault.  The applicant was charged under the Police Offences Act 1935 with assaulting one Stuart Ryan by striking him with a hockey stick. The assault was alleged to have occurred during a hockey match. The applicant and the alleged victim were on opposing teams. The applicant contends that the learned magistrate erred in finding that his actions amounted to an intentional application of force, erred in failing to find him not guilty on the ground of self-defence, erred in failing to find that the alleged victim had consented to the relevant application of force, and made a finding of guilt that was unsafe and unsatisfactory.

Intentional application of force

1. The prosecutor called five witnesses before the learned magistrate: Stuart Ryan, Mr Ryan's father (Colin Ryan), and men named Gardam, Davis and Webb.  The applicant also gave evidence, but he called no other witnesses.  The learned magistrate formed the view that the evidence of Mr Davis did not assist her at all.  Two substantially different versions of events emerged from the evidence of the other witnesses.  Colin Ryan gave evidence to the effect that he saw the applicant move past his son to a point about a metre beyond him, step back, swing around with his hockey stick, and hit his son to the jaw with it.  Consistently with that version, Stuart Ryan said that he was watching the ball and not the applicant, that he saw the hockey stick coming towards him, and that he then got hit.  By contrast, Mr Webb, Mr Gardam and the applicant all gave evidence to the effect that Stuart Ryan ran towards the applicant, that the applicant braced himself for a collision, and that Mr Ryan then collided with him.  In his evidence-in-chief, Mr Gardam initially said that the applicant "sort of did a fending off motion", but he subsequently explained that he meant that the applicant was bracing himself for the impact of a player coming towards him. 

1. The learned magistrate was critical of the evidence of Colin Ryan.  She said it was partisan, and lacking in some objectivity.  She was also critical of the evidence of Stuart Ryan, saying that it lacked detail in some respects, and that some parts of it were contradictory.  She went on to say the following:

"Mr Gardam described the defendant's action as a fending off motion and Mr Webb described the defendant as bracing himself for someone coming upon him from the rear.  That is also the description that the defendant gave of his action at that time.

…

… I just will comment on the defendant's evidence.  That was given in an honest manner and I found him to be generally a credible witness, however he did not or could not give any evidence as to whether it was part of him or his hockey stick that made contact with the complainant's jaw.

Having considered the evidence, I make the following findings.  I find that the defendant ran past where Mr Webb and Mr Ryan were standing on Mr Ryan's right hand side and that he brushed past him at the most if any contact was made at all. 

I further find that Mr Ryan moved forward towards the defendant and that he collided with the defendant on the defendant's right side.

I find that the defendant had taken up a defensive stance and that he was aware that a player was coming towards him.  He … had made a fending off action and he was slightly bent forward in that defensive fending off position, so I find that his hockey stick would have been near or above the level of his shoulder.

Finally, I find that the defendant took that fending off stance with the intention of using force to defend his position if required and when Mr Ryan approached him he fended him off with his body and his hockey stick and thus caused injury to Mr Ryan.  In doing so he was careless as to the consequences of his actions and intentionally applying force to Mr Ryan."

1. The applicant contends that the learned magistrate erred in making a finding that he intentionally applied force to Mr Ryan's body using his hockey stick, in that she based that finding on the evidence of Mr Gardam, Mr Webb and himself, when none of them had said that he used his hockey stick to fend off Mr Ryan.  I disagree.  Whilst the learned magistrate made criticisms of the evidence of Colin Ryan and Stuart Ryan, she did not say that she rejected their evidence.  It was open to her to give it some weight, without accepting it unreservedly.  That seems to be what she did.  In my view her finding that there had been an intentional use of force was not based solely on the evidence of Mr Gardam, Mr Webb and the applicant.  I think the finding that the applicant intentionally applied force to the body of Stuart Ryan using his hockey stick is an unimpeachable finding.

Self-defence and consent

1. Having made that finding, the learned magistrate went on to say this:

"As I am satisfied beyond reasonable doubt that the application of force by the defendant to the complainant was intentional I therefore find the charge proved."

1. The applicant contends that, once she found that there had been an intentional use of force, the learned magistrate should have considered whether that use of force was lawful on the basis of self-defence, and whether it was lawful because of consent to the use of force on the part of Stuart Ryan.  The applicant further contends that the only reasonable conclusion as to either of those issues was that the use of force was lawful, and that the applicant should therefore have been acquitted.

1. The provisions of the Criminal Code as to self-defence and consent are applicable in relation to summary prosecutions for assault: Acts Interpretation Act 1931, s36. The Criminal Code, s46, provides as follows:

"A person is justified in using, in the defence of himself or another person, such force as, in the circumstances as he believes them to be, it is reasonable to use."

1. Consent is dealt with in the Criminal Code in s182(4), which reads as follows:

"(4) Except in cases in which it is specially provided that consent cannot be given, or shall not be a defence, an assault is not unlawful if committed with the consent of the person assaulted unless the act is otherwise unlawful, and the injury is of such a nature, or is done under such circumstances, as to be injurious to the public, as well as to the person assaulted, and to involve a breach of the peace."

1. When a player participates in a contact sport, that player impliedly consents to the use of some degree of force.  Whether the use of force on a particular occasion exceeds the degree of force that was impliedly consented to is a question of fact.  Wright J held in another context in R v Holmes (1993) 2 Tas R 232 that there can be no valid consent to force which is intended or likely to cause bodily harm, and which does cause bodily harm.

1. Counsel for the respondent submitted to me that no question of self-defence or consent had been raised before the learned magistrate; that the only issue before her had been whether the applicant had intentionally struck Stuart Ryan with his hockey stick; and that the learned magistrate was therefore not required to consider the issues of self-defence and consent.  I disagree. 

1. Any act of intentionally applying force to the body of another person, directly or indirectly, amounts to an assault: Criminal Code, s182(1). Not all assaults are unlawful. Parliament has therefore made unlawfulness an ingredient of the offence in question. The Police Offences Act, s35(1) provides as follows:

"(1) A person shall not unlawfully assault another person."

1. A magistrate may not find a charge of assault under s35(1) proven without being satisfied beyond reasonable doubt of every element of that offence. It is therefore necessary not just to be satisfied beyond reasonable doubt that there has been an intentional application of force, but also to be satisfied beyond reasonable doubt that the application of force was unlawful.

1. In this case, because of the evidence that the applicant was adopting a defensive stance during a hockey match, the learned magistrate needed to consider whether she was satisfied beyond reasonable doubt that any intentional application of force by the applicant was neither a lawful exercise of a right of self-defence nor a lawful application of force that the other player consented to by taking part in the match.  By failing to do so, she erred in law.  The grounds relating to self-defence and consent must therefore succeed.

1. The fact that Stuart Ryan suffered a broken jaw tends to suggest that the amount of force used was greater than the applicant could lawfully have used to defend himself, more than Stuart Ryan consented to by taking part in the game, and more than he could validly have consented to.  However there are occasions when the consequences of a lawful use of force are unintended, unexpected, and out of proportion to the degree of force used.  Whilst it was open to the learned magistrate to find that excessive force was used, I do not think the evidence obliged her to reach that conclusion.  The upholding of these grounds should therefore result in a new trial, rather than an order for an acquittal.

Unsafe and unsatisfactory verdict

1. When it is contended in appellate proceedings that a jury's verdict is unsafe or unsatisfactory, "the question for the appellate court to determine is whether the jury, acting reasonably, must have entertained a reasonable doubt as to the guilt of the accused": Chidiac v R (1991) 171 CLR 432 per Mason CJ at 443. A magistrate's finding that a charge has been proven can be challenged on such a basis by a motion to review: Kelly v O'Sullivan (1995) 4 Tas R 446.

1. In this case, the applicant contends that the learned magistrate, having decided not to accept the evidence of Colin Ryan and Stuart Ryan, ought to have entertained a reasonable doubt as to whether the applicant had unlawfully and intentionally applied force to Stuart Ryan.  He submitted on that basis that I should set aside the learned magistrate's finding and dismiss the complaint.  However the learned magistrate did not entirely reject the evidence of Colin Ryan and Stuart Ryan.

1. I think it is clear that the whole of the evidence should be considered for the purpose of determining this sort of ground of appeal.  In Chidiac (supra) at 451, Dawson J said:

   "It is clearly established by authority that, in determining whether the verdict of a jury is unreasonable, or cannot be supported having regard to the evidence - whether it is unsafe or unsatisfactory - the test is whether it was open to the jury upon the whole of the evidence to be satisfied beyond reasonable doubt that the accused was guilty …  If upon the whole of the evidence a jury, acting reasonably, was bound to have a reasonable doubt, then a verdict of guilty will be unsafe and unsatisfactory."

2. Having read the evidence but not seen or heard the witnesses give it, my view is that the evidence does not contain discrepancies, display inaccuracies, or otherwise lack probative force to such an extent as to warrant a conclusion that the learned magistrate ought to have entertained a reasonable doubt.  The evidence of Colin Ryan and Stuart Ryan does not appear to me to be so unreliable that I can say that the learned magistrate ought to have entertained a reasonable doubt.  It follows that this ground cannot succeed.

Conclusion

1. For these reasons I order that the motion to review be allowed, that the orders of the learned magistrate be set aside, and that the matter be remitted to the Magistrates Court at Devonport to be re-tried by another magistrate.