Gabrielsen v Police - [2011] SASC 23

SUPREME COURT OF SOUTH AUSTRALIA
(Magistrates Appeals: Criminal)
GABRIELSEN v POLICE
[2011] SASC 23
Judgment of The Honourable Justice David
15 February 2011
CRIMINAL LAW - GENERAL MATTERS - CRIMINAL LIABILITY AND CAPACITY - DEFENCE MATTERS - DEFENCE OF PERSONS OR PROPERTY - DEFENCE OF PROPERTY
CRIMINAL LAW - GENERAL MATTERS - CRIMINAL LIABILITY AND CAPACITY - DEFENCE MATTERS - DEFENCE OF PERSONS OR PROPERTY - EVIDENCE
Appeal against finding of guilt by Magistrate – appellant found guilty of aggravated assault – appellant unrepresented – appellant raised defence of property as a defence – Magistrate directed appellant could choose not to give evidence without suffering prejudice – appellant did not give evidence – Magistrate found that there was no evidence of requisite belief for defence of property.
Held: Appeal allowed – appellant was not aware that defence had not been properly raised – finding of guilt quashed.
Criminal Law Consolidation Act 1935 (SA) s 15A, s 23, referred to.

GABRIELSEN v POLICE
[2011] SASC 23
Magistrates Appeal: Criminal

DAVID J: The appellant was charged pursuant to s 23 of the Criminal Law Consolidation Act 1935 (SA) (“the CLCA”) with the aggravated assault of his son, (“V”). The assault allegedly occurred at the family home on 29 December 2008 and the circumstance of aggravation alleged was that the appellant used an offensive weapon, being a piece of wood.
The Magistrate found the appellant guilty of the charge but did not record a conviction. He fined the appellant $1,750 and made an order for costs in the sum of $1,920.
The appellant now appeals against that finding of guilt. He was unrepresented both at the trial and on appeal. At the conclusion of the appeal I made orders allowing the appeal and quashing the finding of guilt, the fine and the order for costs. I indicated that I would provide short reasons in due course and I now do so.
The Magistrate found himself in a difficult situation due to the appellant not being represented. The facts involved many allegations against a background of family difficulties and both the Magistrate at trial and myself on appeal had great difficulty in confining the issues to those that were relevant. The gist of the prosecution case was that, against a background of family disharmony and much emotion, V lived with his two brothers and his sister at the family home at Waterfall Gully Road, Waterfall Gully with the appellant and his wife. V was aged 19 at the time.
On 29 December 2008, an argument ensued between V and the appellant because of an allegation that the appellant had been using V’s computer. There was evidence at the trial that V had suspicions that his father was a paedophile and was making remarks to that effect on the day in question. The upshot of the animosity between the two was that V went to the electricity meter box at the front of the house and disconnected the power thus affecting the computer. As a result of that, the appellant approached him brandishing a piece of shelving and thrust it in front of V’s face. It is that action which the prosecution says constituted the offence. No contact was made and after that one of V’s brothers punched the appellant on several occasions.
There is no need to go into the evidence in any more detail because there was no real dispute that the appellant did brandish the piece of wood in the face of V in the way described. The appellant did not give evidence at his trial. He argued, both from the bar table and by questions in cross-examination, that the reason he was brandishing the piece of wood was because he was trying to protect his property. The property that he was trying to protect was the information contained in the computer which was turned off by V and which was vital to his business. Therefore, the appellant was attempting to establish a defence pursuant to s 15A of the CLCA which provides:
15A—Defence of property etc
(1)It is a defence to a charge of an offence if—
(a)     the defendant genuinely believed the conduct to which the charge relates to be necessary and reasonable—
(i)to protect property from unlawful appropriation, destruction, damage or interference; or
(ii)to prevent criminal trespass to land or premises, or to remove from land or premises a person who is committing a criminal trespass; or
(iii)to make or assist in the lawful arrest of an offender or alleged offender or a person who is unlawfully at large; and
(b)     if the conduct resulted in death—the defendant did not intend to cause death nor did the defendant act recklessly realising that the conduct could result in death; and
(c)     the conduct was, in the circumstances as the defendant genuinely believed them to be, reasonably proportionate to the threat that the defendant genuinely believed to exist.
(2)It is a partial defence to a charge of murder (reducing the offence to manslaughter) if—
(a)     the defendant genuinely believed the conduct to which the charge relates to be necessary and reasonable—
(i)to protect property from unlawful appropriation, destruction, damage or interference; or
(ii)to prevent criminal trespass to land or premises, or to remove from land or premises a person who is committing a criminal trespass; or
(iii)to make or assist in the lawful arrest of an offender or alleged offender or a person who is unlawfully at large; and
(b)     the defendant did not intend to cause death; but
(c)     the conduct was not, in the circumstances as the defendant genuinely believed them to be, reasonably proportionate to the threat that the defendant genuinely believed to exist.
(3)For the purposes of this section, a person commits a criminal trespass if the person trespasses on land or premises—
(a)     with the intention of committing an offence against a person or property (or both); or
(b)     in circumstances where the trespass itself constitutes an offence or is an element of the offence.
(4)If a defendant raises a defence under this section, the defence is taken to have been established unless the prosecution disproves the defence beyond reasonable doubt.
Notes—
1See, however, section 15C. If the defendant establishes that he or she is entitled to the benefit of that section, this paragraph will be inapplicable.
2See, however, section 15C. If the defendant establishes that he or she is entitled to the benefit of that section, the defendant will be entitled to a complete defence.
The Magistrate found in his reasons for judgment that the turning off of the power admittedly done by V allowed for a potential for interference to the appellant’s business. He also held that the business of the appellant is wide enough to include the concept of property as referred to in s 15A of the CLCA.
During the course of the trial, aspects of that defence were put to witnesses and were raised from the bar table. I do not go into detail. Also during the course of the trial, there was much discussion between the Magistrate and the appellant as to whether the appellant should give evidence or not. The Magistrate explained carefully to the appellant his rights as to how he may proceed at the end of the prosecution case and emphasised that he would not suffer any prejudice if he did not give evidence. However, in his reasons for judgment the Magistrate found the following:[1]
In my view that definition of property is wide enough to include the business conducted by the defendant. The defendant also asserted that by switching off the power various items of property, such as the hot water service, were at risk of being damaged.
However, it will be observed that the defence created by s.15A requires that the defendant have a genuine belief as to a number of matters. That is, the defendant must have a genuine belief that his conduct was necessary and reasonable for one of the purposes in placitum (i) or (ii) of subparagraph (a) of sub-section (1). Next, for the purposes of subparagraph (c) it is necessary to be able to make findings as to the defendant’s genuine belief as to the nature of the threat then faced by the defendant.
The defendant did not give evidence and so there is, of course, no evidence from him as to his genuine belief regarding any of these matters. Furthermore, there is no evidence from any other source from which the necessary genuine belief could be discerned.
[1] Police v Gabrielsen [2010] SAMC 49 at [118]-[120].
On appeal the appellant argues that he did not realise that in not giving evidence there would be no evidence of a genuine belief as to give rise to a defence under s 15A and he did not realise in effect that he had not raised the defence under that section. By cross-examining on the topic and raising it from the bar table, he thought that the defence had been raised and that it was a matter that the prosecution had to disprove beyond reasonable doubt.
Mr Longson, counsel for the respondent, fairly concedes that there was no direction by the Magistrate to the appellant, when discussing whether he would give evidence or not, as to whether or not the defence pursuant to s 15A had been raised. I accept that it is not for a Magistrate or a Judge to give legal advice as to tactics to an unrepresented litigant. However, there is a real risk that in this case the appellant, having on a number of occasions raised the defence under s 15A, was not advised that at least at the end of the prosecution case that the defence had not been raised in the proper form and would need at least the giving of evidence. The appellant remained ignorant of that fact and therefore the finding of the Magistrate was done without the appellant realising that the defence had not even been raised for consideration.
I allow the appeal. I quash the finding of guilt and the subsequent fine and order for costs and order the matter be retried before another Magistrate. I earnestly recommend that the appellant seek the guidance of counsel if there is a further trial.