Fullston v Biggins & Ors No. Scciv-02-444

FULLSTON v BIGGINS & ORS
[2003] SASC 25
Full Court: Duggan, Mullighan and Williams JJ

DUGGAN J I agree that this appeal should be dismissed for the reasons given by Mullighan J.
MULLIGHAN J The appellant brought an action for damages in the District Court claiming that the respondents had committed assaults and battery upon him on 23^rd October 1996 causing permanent injury and loss and damage. The action came to trial and was dismissed by the learned trial Judge on 13^th March 2002. The appellant appeals against the judgment dismissing his action.
There are four respondents, three of whom are brothers. I shall refer to them individually by their first names, Mark, John and Steven. The fourth respondent is their father. I shall also refer to him individually by his first name, Ambrose.
There was no dispute that the appellant was struck by Mark and that he sustained significant injuries which required his being admitted to hospital and substantial medical treatment. These injuries included a fracture of the orbital floor of nasal bones, a sprain of the medial collateral ligament of a knee, concussion and soft tissue injuries to his right shoulder, ribs and right knee. There was an issue at the trial as to whether any of the other respondents committed assault and battery upon the appellant and also whether the respondents, or any of them, acted in self‑defence or defence of each other. As the learned trial Judge dismissed the action she did not consider it necessary to assess the damages to which the appellant would have been entitled if his action had been successful. Consequently we are not concerned on this appeal with the issues which arose as to the injuries, loss and damage suffered by the appellant.
The action came to trial on 11^th February 2002, nearly five years and four months after the incident which was the subject of the action. The police were called soon after the incident and investigated the matter but did not prosecute any of the respondents. This action was not commenced until 21^st October 1999. The matter was somewhat stale by the time the trial commenced and there had not been any previous occasion for the parties and witnesses to have to recall the events of the incident in detail to the extent required at the trial. There was considerable attention paid at the trial, and upon the hearing of the appeal, to inconsistencies in the evidence of each of the parties and in the versions given by each of the respondents, but those criticisms must be considered in the context of the delay which I have mentioned.
The learned trial Judge correctly observed near the outset of her reasons for judgment that it was common ground that there had been an assault and battery upon the appellant but the issues at the trial had to be resolved by evaluating two diametrically opposed versions of what occurred. She said that she was able to make positive findings about what happened. They were contrary to the appellant’s case and are the subject of complaint on this appeal.
Before turning to the grounds of the appeal and the issues between the appellant and the respondents I mention the position of the respondent Ambrose. The appellant did not proceed with the appeal against him. The evidence disclosed that he arrived at the scene of the incident after it was over. The appeal against the judgment in his favour must be dismissed.
Background
The appellant was involved in the production of potatoes in the Adelaide Hills.
On 1^st November 1994 the appellant and his partner, Ms Fennell, commenced to lease about 80 acres of rural land and a small house in the Naracoorte area from a company with which the respondent Ambrose was associated. He used the land for potato farming. There were occasions when the appellant was late in paying the rent and on one occasion he was locked out of the premises for that reason. Solicitors and police became involved on that occasion. In 1996 he was late in harvesting the crop of potatoes on one part of the land. The crop should have been harvested by 30^th May 1996 so that the lessor could resume use of the land, but harvesting was still being undertaken on 23^rd October 1996. These incidents and the breaches of the lease caused the relations between the parties to deteriorate.
The learned trial Judge found that in about the middle of 1996 Ms Fennell was unwell and was later diagnosed as suffering leukaemia. For that and financial reasons the appellant decided to abandon his farming activity in the South‑East. He offered to sell the respondents the equipment which he owned and was situated on the leased property but they declined. This equipment included a generator with a diesel motor and pumping equipment. Like the learned trial Judge I shall refer to all of this equipment as “the generator”. It was used to pump water and drive large sprinklers which watered the crops. One or more of the respondents had been permitted to use the generator from time to time but the appellant maintained that after they had refused to purchase it, permission to use it was withdrawn.
The incident
The appellant was aged 50 years at the time of the incident.
According to the appellant he was driving to the leased property on 23^rd October 1996 in his truck which was towing a trailer. He had a mobile telephone and was informed by his son who was harvesting potatoes on the property that the respondents were helping themselves to his equipment. The version of the incident given by the appellant is that he went to Biggins Road where he saw his son and in the distance he saw a front‑end loader with the generator resting on the front end. As he passed the front‑end loader he saw that it was being driven by Mark. He turned the front‑end loader to the front of the truck and the appellant said that he had to brake sharply to avoid a collision.
A verbal confrontation followed. According to the appellant he demanded to know what Mark was doing with the generator and asked him to put it back. Mark said that he was going to use it. The appellant told the learned trial Judge that the generator was resting securely on the front of the front‑end loader. The respondent Mark moved a lever and the generator tilted or fell spilling oil on to the ground. The appellant said that he would call the police and that he went to the cabin of his truck for that purpose. The respondents John and Steven arrived. Mark hit the windscreen with a hammer and made faces at the appellant. He then went to the driver’s door and took hold of the telephone and pulled it from the cabin. He then struck the appellant heavily with the telephone to the right side of his face. He pulled the appellant from the cabin by the right leg. The appellant said he heard a “snapping noise” in the leg. He went to ground hitting his head on the wheel arch. Mark then punched him in the stomach and face four or five times. He started to run away and was hit from behind with something hard. Whilst on the ground he saw and reached for his shiny socket wrench but was hit again.
According to the appellant he lost consciousness for a brief time and was then aware that Steven held him in a half‑nelson. Mark then kicked him in the face and John kicked him in the stomach and ribs. He said that he blacked out and there were further kicks to his chest and head. He then telephoned the emergency number and a neighbour, Mr Gericke.
Whilst in hospital the appellant was interviewed by Detective Warr of the Naracoorte CIB on 24^th October 1996. The interview was recorded on audio tape. A transcript was prepared and was admitted into evidence.
The account of the incident given by Mark, Steven and John was very different from the appellant’s version. There was no dispute that the incident commenced between the appellant and Mark and that Steven and John arrived soon after. The learned trial Judge found that the accounts of each of them were broadly similar insofar as they spoke of the same stage of events.
Mark was aged 31 years at the time of the trial. He had always worked as a farmer. He told the learned trial Judge that the relationship between the appellant and his family had deteriorated before the incident. He had angry words with the appellant on an occasion not long before the incident when, according to him, the appellant had left a gate open allowing sheep to escape.
His version of the incident is as follows. On the day of the incident it was his task to remove the centre pivot of a circular watering system on part of the land. That equipment was also owned by the appellant. He wanted to replace it with similar equipment owned by his family. He said that the appellant’s equipment was to be moved to Mr Gericke’s land. Mark needed to use the generator for that purpose as his family did not own such equipment. He and his family had used the equipment for this purpose from time to time and he understood from what his father had told him that he could use it again.
Mark obtained the generator, placed it on the front‑end loader and drove to, and along, Biggins Road. He became aware of the presence of the appellant’s truck which, he said, “came screeching to a halt” about four or five metres from him. He told the learned trial Judge that he saw the appellant rummaging in his truck and then alight carrying an iron bar which looked like a three‑quarter inch drive socket wrench. The appellant asked him what he was doing with the generator and told him to put it down. There was an angry exchange between the two men about the generator and the incident when the sheep escaped. The appellant asserted that he had been insulted in the presence of a companion and demanded an apology. Mark said that it was he who was owed an apology. According to Mark, the appellant “blew up” or “snapped” and attacked him with the bar wrench. Mark put his hand over his head and the bar hit him on the forearm. The appellant tried to hit him again and they wrestled for the bar. Mark obtained the bar and threw it over to the side of the road. John and Steven then arrived and Mark told them what had happened. He made an insulting remark about the appellant. According to Mark, the appellant had not suffered any injuries at this stage.
According to Mark, the appellant went to the front‑end loader and pulled at the generator causing it to fall to the roadway. The learned trial Judge found that Mark probably taunted the appellant again which led him to blow up again and go to his truck where he again rummaged behind the seat. Mark said that he feared that the appellant would obtain another weapon and he went to the truck and attempted to pull him out by a leg. The appellant kicked at him and succeeded in kicking him in the chest and swung, what he described as, his “bag phone” at him. Mark told the learned trial Judge that he believed the appellant was still trying to get hold of another weapon and was leaning across to the back of the driver’s seat. The telephone made contact with his hands as he blocked it from hitting him elsewhere. Mark denied that he punched the appellant in the head or face whilst he was in the truck.
Eventually Mark pulled the appellant out of the truck and he fell to the ground. He was holding another bar. According to Mark the appellant then “got completely mad” and hit out at him with the bar. He made contact with Mark who hit him with his hands. John intervened and struggled with the appellant. During the struggle Mark hit the appellant in the nose. Eventually Mark and John disarmed the appellant and this part of the incident came to an end. The appellant had said that he was “going to take [Mark’s] bloody head off”. Mark had verbally abused the appellant. The appellant then walked towards the front‑end loader. One of the legs of the generator had become disengaged. It was a piece of metal pipe with a disk at one end. It was about 18 to 20 inches in length and about one inch in diameter.
According to Mark the appellant was swinging the leg around and said that he was going to get all of them. Ambrose had arrived by this time. Mark said that he thought the appellant was going to attack Ambrose. Mark then tackled the appellant and brought him to the ground. They wrestled for the iron leg. Ambrose assisted and the leg was taken from him. The incident was at an end. The appellant said he was going to telephone the police and went to his truck. Mark left in the front‑end loader leaving the generator on the road.
John told the learned trial Judge that on the day of the incident he was working in a shed with Steven on Biggins Road. He and Steven are twins and at the time of the trial were aged 39 years. He saw the appellant’s truck being driven north along Biggins Road at above 80 kilometres per hour. He knew that Mark was driving the front‑end loader slowly along that road. He and Steven followed the truck because he was alarmed at the speed at which the truck was being driven and was concerned about Mark’s welfare. When he arrived at the place where the front‑end loader and the truck were stationary he saw the appellant and Mark on the roadway, punching or attempting to punch or swinging at each other. Mark called out “He’s hit me, he hit me with an iron bar”. He did not see any blows connect. John called upon them to stop. The altercation continued. The appellant was yelling at Mark to put the generator down and Mark did so. The generator tilted and lost oil. Mark made a remark to the appellant who appeared very angry. He ran to the truck and Mark followed. According to John he was standing behind the appellant who ran back into him and hit him in the face on the nose. The appellant had a telephone in his lap as he sat in the truck. Mark pushed the telephone out of his hands and it fell to the floor of the truck. As Mark approached the appellant kicked out at him. He said he saw a number of kicks and Mark grabbed his leg.
The appellant partly jumped and partly fell out of the truck. He was holding a shiny bar. Ambrose had arrived by this time. John told the appellant to put it down. Mark grabbed him. John grabbed his arm and tried to wrestle the bar from him. Eventually they obtained the bar from the appellant and he fell to the ground. According to John he did not punch the appellant but he said that he thought he did kick him in the leg during the struggle. He said that before the appellant let go of the bar he heard someone punch him but did not see who did so. John took the bar and threw it onto his utility. Steven joined him and they left the scene.
According to Steven he helped Mark load the generator onto the front‑end loader. He told the learned trial Judge of an earlier occasion when Ambrose asked the appellant to remove the centre pivot from part of his land. The appellant told him that he was too busy and he asked Ambrose to do it. The learned trial Judge concluded that it was reasonable to imply in that request permission to use the generator for that purpose.
Steven told the learned trial Judge that he saw the appellant’s truck travelling along Biggins Road at a very fast speed and he and John followed. When they arrived at the location of the truck and the front‑end loader he saw the appellant and Mark throwing punches at each other. He yelled at them but this conduct continued. After a few minutes they parted and the appellant ran to his truck. Steven and John went to look at the generator and were told by the appellant not to touch it. Mark then tilted the front-end loader and the generator slid and touched the ground. The appellant touched the generator and it fell over. Mark made a comment to him and the appellant was very angry. There was pushing and shoving between the appellant and Mark. Steven said that at this stage the appellant ran backwards and his head hit John in the face. The appellant ran to his truck followed by Mark. Steven made a disparaging remark to the appellant.
Whilst in the truck the appellant pushed his telephone out of the window of the driver’s door at Mark who pushed it back at him. Mark then opened the door and the appellant was kicking at him. The appellant had been looking for something behind the seat. When the door was opened by Mark, Steven saw a shiny bar. Mark grabbed the appellant’s foot and kicking and struggling continued. Steven called upon the two men to stop. He told the learned trial Judge that he feared that the altercation was getting out of hand because of the bar. The appellant slipped out of the truck when being pulled by the leg and fell on top of Mark on the ground. He stood up holding the bar and Steven and John intervened. The three brothers restrained the appellant and attempted to get the bar from him. Mark punched the appellant in the head and eventually they obtained the bar from him.
According to Steven, the appellant then ran towards the generator and picked up the leg which had fallen from it. He threatened Mark with it. Mark and Ambrose tackled the appellant and took the leg from him. He could not say if anyone kicked the appellant. There was no kick to the back of the head. The appellant then went to his truck saying that he was going to call the police.
Ambrose told the learned trial Judge that he was alone and working on the farm when he saw the appellant’s truck travelling at a high speed. He drove to where the truck and the front‑end loader had stopped. When he arrived he saw the appellant threatening Mark with a shiny object. He demonstrated the action of the appellant which he described as though the appellant was going to hit someone. Steven and John participated in the ensuing scuffle. He said he could not see what anyone was doing in the scuffle. Ambrose said that the next thing he saw was the appellant walking towards the front‑end loader. He did not have the shiny object at that time and he did not appear to be badly injured. The appellant then picked up the leg from the generator which was on the roadway. The appellant waved the leg around wildly at Mark. Ambrose said that he was very worried and he ran to the appellant but Ambrose fell. The appellant also went to ground and when he stood up he did not have the leg with him. Ambrose said that he could not recall what John and Steven were doing at this stage.
Findings as to credit
The learned trial Judge found the evidence of the appellant to be unsatisfactory in a number of respects. She acknowledged that he was in the witness box over a long period of time but found that he was inclined to obfuscate and prevaricate, to be argumentative in cross‑examination and often to give misleading answers. She said that there were specific areas, which she later described, where demonstrated inconsistencies undermined his entire case.
She said that she was more favourably impressed with the evidence of the respondents, particularly the evidence of Steven and Ambrose. She went on to say:
“Even on the [appellant’s] evidence, Steven and Ambrose were least involved in the incident and had least reason to reproach themselves over it. I think the natural human tendency to revise events to improve one’s part was not a factor in their evidence, although I acknowledge that their loyalties lay with their family members. Steven in particular seemed to me to be objective about the event, to be realistic about his brother Mark’s conduct and to recognise the limits of his own memory.”
The case of the respondents was that the appellant was the aggressor and used three weapons, one weapon at each stage of the incident. As has been mentioned Mark said that the appellant used an iron bar which looked like a socket wrench, an iron bar when he was pulled out of the truck, and the leg off the generator. According to the appellant the closest he came to using a weapon was reaching for a socket wrench when he was being pulled from the truck.

The learned trial Judge compared the evidence of the appellant about the socket wrench with what he told the police. In evidence he said that after being hit four or five times in the face by Mark with his fist he tried to get away and started to run towards Mr Gericke’s property when he was hit with something hard on the back of the head. He went to ground and saw the socket wrench. As he reached for it he was hit again. It was put to the appellant in cross‑examination that he told Detective Warr:
“Yes I did pick up that bar, the Sidchrome bar, when I was trying to defend myself in the truck and it was taken off me and then I was pulled out of the truck ......”
The appellant said that he could not recall making that statement. Detective Warr told the learned trial Judge that the interview of the appellant was recorded by audio tape and he produced a transcript. The passage which I have mentioned appears in the transcript. Earlier in the interview, the appellant said that he had a couple of Sidchrome tyre lever type things in his truck and when Mark was pulling him at the driver’s door of the truck, he hit, or may have hit, him on the fingers with one of them. The appellant told the learned trial Judge that he may have used the Sidchrome bar as he told Detective Warr. This evidence supports the evidence of Mark and others as to the appellant having a shiny bar after he left the truck and that he was the aggressor at that stage.
The learned trial Judge referred to what the appellant told Mr Eriksen who is a surgeon and examined him for medical legal purposes at the request of the respondents’ solicitors on 1^st March 2001:
“The person then got back into the forklift and tilted it so that the generator spilled off the front fork onto the ground. This smashed the gauges and damaged the generator and he went and picked up a jack, which was a flat plate with a large metal extension which was lying on the roadway and a potential traffic hazard.
He then went back to his truck and got on the mobile phone to ring the police.”
The appellant said in cross‑examination that he had no recollection of picking up a jack or making that statement to Mr Eriksen. It was his case that at no time did he have a metal object in his hands before he was assaulted.
The learned trial Judge found this evidence to be important. She said that if the appellant handled the object it was significant and he had admitted as much to Detective Warr. When he was asked if he had used it he denied that he had done so and said that he did not know what Detective Warr was talking about.
The learned trial Judge mentioned other matters which also led her to regard the appellant as unreliable. He told Mr Clothier, a physician and consultant in rehabilitation medicine, who saw him at the request of his solicitors on 4^th September 2000 that when he got back into his truck and rang the police several other people went to the truck and started to hit it and break it. In evidence the appellant said that he would not have told Mr Clothier that several people hit his truck and tried to break it, as Mark was the only person who had done so. When questioned by Detective Warr he told him that at one stage Mark had a hammer and was hitting the trailer, no doubt he meant to say “truck”, with it and pulling the windscreen wipers off. Detective Warr told him that he had inspected the truck and could not see any noticeable damage and the wipers were turned on and he turned them off. The appellant said Mark must have done that when he went out of the window. The appellant made no attempt to contradict Detective Warr’s assertion that there was no damage to the truck.
Also, the learned trial Judge found that the appellant had a tendency to exaggerate his injuries. None of the witnesses who saw the appellant at the scene of the incident, the respondents, the uniform police officers, the ambulance officers and Mr Gericke said that the appellant lost consciousness, although the ambulance officers said that he complained of dizziness and nausea and was to a small extent confused. The learned trial Judge accepted this evidence. The appellant told Mr Clothier that he did lose consciousness on two occasions and that he felt that he lost consciousness on the roadway, apparently the second time in the presence of Mr Gericke, and woke up in the ambulance.
The appellant incorrectly told Dr Wood, a clinical psychologist, whose evidence was accepted by the learned trial Judge, that he was in hospital for one month and that he was confined to a wheelchair. The hospital notes record that he was in hospital for only eight days and was discharged using a leg splint.
The learned trial Judge also found that the appellant exaggerated the alleged disability which he suffered in consequence of the injuries which he suffered. I do not think it is necessary to set out all of the observations made by the learned trial Judge. It is sufficient to mention some matters. The appellant’s case was that in consequence of the injuries sustained in the incident he is significantly disabled, with 15 per cent hearing loss, tinnitus, headaches, dizziness, instability and soft tissue injuries to the cervical spine and lumbar spine. He is lame in the right leg. He cannot lift his arm above the horizontal position and suffers depression. He said in evidence that prior to the incident, he drove large vehicles, undertook a variety of agricultural and horticultural work and was competent as a welder in basic metal work. He drove tractors and bulldozers. He told the learned trial Judge that he cannot drive heavy articulated vehicles because of the drugs which he takes. If he jars his neck in any fashion he suffers a migraine. He can only drive a small car a short distance. He does only a little metal work and welding due to lack of concentration. His depression has resulted in his not liking crowds. He does not go to shops because of memory loss.
In a reference to Centrelink on about 16^th August 2000 in relation to a disability pension the appellant listed his disabilities as tinnitus, short term memory loss, “back problems” and depression as from the date of the incident. His general medical practitioner, Dr Lewis, provided information to Centrelink at the same time indicating that the appellant suffered osteo‑arthritis in the lumbar spine and suffered increasing low back pain over “past” months specifying the date of onset as 25^th March 2000. Dr Lewis gave evidence at the trial. He said that the selection of that date was arbitrary and when he saw the appellant on 17^th July 2000, the appellant told him that over the previous few months he had experienced increasing back pain. The learned trial Judge noted that the appellant did not complain to the ambulance officers about back pain, but he did mention having a bad back to the police and at the Flinders Medical Centre on 25^th October 1996 when there was reference to a soft tissue injury to the cervical spine. It appears that there was no complaint of low back pain at that time or when the appellant saw Dr Lewis on 6^th November 1996. There is no reference to a bad back in the notes of general practitioners over many visits until 19^th June 2000. The learned trial Judge acknowledged that any back injury may have been less prominent than other injuries. Also the learned trial Judge noted that a lower back condition was not mentioned by the appellant as a feature of his present condition even though Dr Lewis regarded it in 2000 as the appellant’s main disabling condition.
For these reasons the learned trial Judge concluded that there was a lack of consistency and reliability in the appellant’s presentation to medical and other authorities which mirrored his lack of consistency and reliability in describing the incident.
The learned trial Judge found that the appellant did use the three weapons as alleged by Mark, that he did so in an offensive manner and that the violence employed by the respondents was inflicted in their defending themselves and one another against threatened and actual violence by the appellant. She held that such violence was reasonably necessary bearing in mind the lethal nature of each of the weapons. Accordingly the appellant had not made out his case of assault and battery.
The appeal
The grounds of appeal which were pressed particularize the basis of the appeal which is that the learned trial Judge failed to analyse the evidence relating to the circumstances of the incident. It is submitted that instead she focused upon the evidence of the respondents and preferred their reasons to that of the appellant. She failed to deal with inconsistencies in the evidence of the respondents and failed to have regard to evidence which supported the appellant’s version of events.
The first submission is based upon the evidence of the appellant. As has been mentioned his account of the incident is that upon arriving at the scene there was a verbal altercation about the generator and he then returned to his truck to telephone the police. It is submitted that a critical issue is whether Mark was entitled to the view that the appellant went to his truck to get a weapon and intended to return to the roadway to assault him.
This submission must be considered in the context of findings of credit and fact made by the learned trial Judge. There is no basis for disturbing the findings of credit made by the learned trial Judge. She had the advantage of seeing the witnesses and assessing them and their evidence in the context of all of the evidence. There is no reason to suppose that she misused that position. Not only did the learned trial Judge set out her observations about the demeanour of the appellant but also her reasons for her findings as to unreliability and inconsistency. In my view those findings were justified on the evidence.
As has been seen the learned trial Judge rejected the evidence of the appellant and found that three weapons had been used which accords with Mark’s version of the incident. John, Steven and Ambrose saw the second and third weapons used. The learned trial Judge made particularly favourable findings as to the credibility of Steven and Ambrose. The finding of the use of three weapons is important for these reasons. First, the appellant said that he did not use any weapons at all and so on this finding his version of the incident was discredited. Secondly, it appears that Mark’s evidence as to the use of the first weapon was accepted. As has been mentioned Mark’s version is that the appellant was armed with the socket wrench when he first approached Mark after bringing the truck to rest. Thirdly, the use of the weapons was offensive as the learned trial Judge found. Both Steven and Ambrose said that they were concerned about the presence of the weapons. The use of the first weapon at the outset of the confrontation coloured the whole incident. It was extreme, violent and unnecessary conduct. Once that matter is appreciated, it provides a reasonable explanation for Mark having the belief that the appellant’s return to the truck was to obtain another weapon which is what occurred. The appellant had a little earlier been disarmed of the first weapon.
It is here that there are inconsistencies in the evidence of Mark and between his evidence and evidence of his brothers. I mention a few examples of these inconsistencies. It was submitted that there was an inconsistency about what happened to the first weapon, the socket wrench. In evidence‑in‑chief Mark said that he took it from the appellant and threw it to the side of the road. He gave the same evidence in cross‑examination. There is no inconsistency in this evidence. Mark said that he took the second weapon from the appellant. By that time John and Steven had arrived. John’s evidence was that he took the second weapon from the appellant and placed it in his utility. Their evidence as to who actually took the second weapon from the appellant is different. However, they were both involved in that activity and the difference in their recollection is of no consequence. It is a peripheral matter.
It was submitted that all of the evidence of each of the parties as to each event within the incident had to be closely analysed by the learned trial Judge in terms of what was the starting point of the incident and whether Mark was justified in following the appellant to the truck. I am not sure that I follow this submission.
Only the appellant and Mark were present during the first altercation. It is clear from her reasons for judgment that the learned trial Judge did consider their evidence carefully. Their stories were very different and that difference was resolved in favour of Mark. I cannot detect any error in the approach of the learned trial Judge or in her conclusions. The same must be said about the part of the incident which occurred at the truck.
Another example of inconsistencies relied upon by the appellant is the alleged inconsistency between Mark’s evidence and what is contained in the police apprehension report which is:
“Accused states that John Biggins arrived and got the bar from Fullston, stated that Fullston got into his truck that he got out to talk. Accused stated that Fullston had another bar and was swinging at accused and his family members. ..... Accused stated that he punched victim in the nose once ......”
It is submitted that this statement is inconsistent with Mark’s evidence in that he said that he took the bar and threw it over the road. There is no inconsistency because in that evidence Mark is referring to the first weapon and the statement in the apprehension report refers to “another” bar which is the second weapon. Also, it is submitted that the report that the accused stated that he punched the victim in the nose once is inconsistent with Steven’s evidence that Mark struck the appellant three times and Mark’s evidence that he struck him four times to the facial area. Steven’s evidence was not that precise. When it was put to him that Mark stood over the appellant and hit him four times, he said that might be right. Earlier he had said there were three blows. It is a matter of no significance except to show that Steven could not be precise.
The statement in the report is not necessarily inconsistent with Steven’s evidence. One refers to a blow to the nose and the other to blows to the face. Also, it is not known if the apprehension report sets out precisely what Mark said. Detective Warr described the Police Apprehension Report as containing a brief overview of the information obtained by the police and that Mark and John had given their accounts of what happened. He was not asked what Mark and John had told him or any other police officer. I do not regard the reference to punching the appellant once in the nose as of significance.
Submissions were also made about the Police Apprehension Report relating to John to the effect that it is inconsistent with his evidence. It is as follows:
“Accused said he saw a fight between Mark Biggins and Fullston .... that the fight stopped that Fullston got back into the truck .... This accused stated that while Fullston was in his truck, he and his brothers moved the motor. Accused stated that Fullston then got out of his truck with an iron bar, and is alleged to have pulled Mark Biggins from the tractor. Accused then attempted to get the iron bar from Fullston, that they got an iron bar from Fullston .... who then got back into his truck and got another iron bar.”
It is submitted that this statement is inconsistent with John’s evidence because he said, or implied, that the motor was lowered when the appellant was on the roadway, and that it was only after the motor was moved that the appellant ran to his truck. This submission overlooks the various stages of the incident which I have described and the statement recounts some of them as if there was one incident.
I have not recounted all of the particular submissions made by Mr Walsh QC on behalf of the appellant as to inconsistencies in the evidence of the respondents although I have considered all of them. Given the delay between the incident and the trial and the violent nature of the incident it is to be expected that recollections of the respondents about matters of detail would differ. Indeed suspicion of lack of credibility would arise if their versions were identical on every aspect.
Having considered these submissions I do not think the learned trial Judge erred in her approach to the witnesses, the evidence or the resolution of the issues. When all of these matters are considered appropriately they do not support the appellant’s case or his evidence.
None of the grounds of appeal are established. I think the evidence which the learned trial Judge found to be acceptable clearly established that the appellant was the aggressor. He armed himself on three separate occasions during the incident and it was reasonable for Mark to apprehend that after he had disarmed the appellant on the first occasion, he returned to the truck to again arm himself and in fact did so. The assault and battery of the appellant by Mark and John and by Steven, to the limited extent Steven was involved, was in self‑defence and defence of each other which was reasonable in the circumstances.
The learned trial Judge was correct in finding for the respondents and in dismissing the action.
The appeal should be dismissed.
WILLIAMS J I agree that this appeal should be dismissed for the reasons given by Mullighan J.

[2003] SASC 25

7 February 2003