Gardner v Caporn
[2005] WASCA 153
•12 AUGUST 2005
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
TITLE OF COURT : THE COURT OF APPEAL (WA)
CITATION: GARDNER -v- CAPORN [2005] WASCA 153
CORAM: STEYTLER P
WHEELER JA
ROBERTS-SMITH JA
HEARD: 9 MAY 2005
DELIVERED : 12 AUGUST 2005
FILE NO/S: SJA 1072 of 2003
BETWEEN: ROBERT CHARLES GARDNER
Appellant
AND
JOHN ROY CAPORN
Respondent
ON APPEAL FROM:
Jurisdiction : SUPREME COURT OF WESTERN AUSTRALIA
Coram :PULLIN J
Citation :GARDNER -v- CAPORN [2004] WASCA 14
File No :SJA 1072 of 2003
Catchwords:
Criminal law - Appeal - Obligation of Magistrate to give reasons - Whether sufficient
Criminal law - Appeal - Assault occasioning bodily harm - Selfdefence - Provocation - Honest and reasonable but mistaken belief - Acceptance of appellant's evidence as to events and his perception of threat - Objective elements of statutory "defences" - Whether Magistrate made necessary findings
Criminal law - Appeal - Evidence of appellant's good character - Not mentioned by Magistrate in reasons - Whether error of law
Criminal law - Practice and procedure - Complaint charging a single assault - Whether latent duplicity
Legislation:
Nil
Result:
Leave to appeal granted
Appeal dismissed
Category: A
Representation:
Counsel:
Appellant: Mr D Grace QC & Mr A W Buchan
Respondent: Mr S E Stone
Solicitors:
Appellant: Hotchkin Hanly
Respondent: State Director of Public Prosecutions
Case(s) referred to in judgment(s):
Attwood v The Queen (1960) 102 CLR 353
Carlson v King (1947) 64 WN (NSW) 65
Fleming v The Queen (1998) 197 CLR 250
Gardner v Caporn [2004] WASCA 14
Garrett v Nicholson (1999) 21 WAR 226
Gelavis v Australian Securities and Investments Commission [2003] WASCA 300
Haskett v Police [2005] SASC 174
Johnson v Miller (1937) 59 CLR 467
Lloyd v Faraone [1989] WAR 154
Melbourne v The Queen (1999) 198 CLR 1
Mount Lawley Pty Ltd v Western Australian Planning Commission (2004) 29 WAR 273
Pettitt v Dunkley [1971] 1 NSWLR 376
R v Courtney‑Smith (No 2) (1990) 48 A Crim R 49
R v Eades (1991) 57 A Crim R 151
R v F, unreported; CCA SCt of NSW; 28 October 1996
R v Giretti (1986) 24 A Crim R 112
R v Morrow and Flynn [1991] 2 Qd R 309
R v Nevermann (1989) 43 A Crim R 347
R v Rippingale (1999) 109 A Crim R 304
R v Telfer (2004) 142 A Crim R 132
R v Trimboli (1979) 21 SASR 577
R v Xu Dong Chen, unreported; SCt of Qld; 21 October 1997
S v The Queen (1989) 168 CLR 266
Smith v The Queen (1992) 7 WAR 527
Stanton v Abernathy (1990) 19 NSWLR 656
Stewart v The King (1921) 29 CLR 234
Stratis v Police, unreported; SCt of SA; No 6886; 7 October 1998
Taylor v The Queen, unreported; CCA SCt of Tas; 19 February 1997
Vrisakis v Australian Securities Commission (1993) 9 WAR 395
Walsh v Tattersall (1996) 188 CLR 77
Case(s) also cited:
Abalos v Australian Postal Commission (1990) 171 CLR 167
Calvetti v Warner, unreported; SCt of WA; Library No 8960; 4 July 1991
Hart v The Queen (2003) 27 WAR 441
Liberato v The Queen (1985) 159 CLR 507
Lomans v Moroney [2000] WASCA 90
Watt or Thomas v Thomas [1947] AC 484
STEYTLER P: I have had the considerable advantage of reading, in draft, the judgment of Roberts‑Smith JA. However, I have arrived at a different conclusion as regards grounds 1 and 2 of the grounds of appeal.
These grounds challenge Pullin J's failure to set aside the appellant's conviction on one count of assault occasioning bodily harm upon the basis that the Magistrate who convicted the appellant erred in law either by failing to make specific findings to the effect that the prosecution had negatived defences of self‑defence (taking into account s 24 of the Criminal Code (WA) ("Code")) and provocation or by failing to give adequate reasons for the conclusion, if reached by him, that those defences had been negatived.
I need deal only with the issue of self‑defence. The first limb of s 248 of the Code provides, in that respect, that:
"When a person is unlawfully assaulted, and has not provoked the assault, it is lawful for him to use such force to the assailant as is reasonably necessary to make effectual defence against the assault, provided that the force used is not intended, and is not such as is likely, to cause death or grievous bodily harm."
Section 24 of the Code provides (so far as is relevant):
"A person who does or omits to do an act under an honest and reasonable, but mistaken, belief in the existence of any state of things is not criminally responsible for the act or omission to any greater extent than if the real state of things had been such as he believed to exist."
As appears more fully from the judgment of Roberts‑Smith JA, the Magistrate was confronted with three versions of what occurred in the course of the alleged assault, which took place at the home of a Ms Wendy Allardyce on the evening of 1 May 2002. One of these came from Ms Allardyce, whose evidence was regarded as unreliable by the Magistrate. The second came from the complainant. The third came from the appellant.
The Complainant's Evidence
The complainant's evidence was that he lived next door to Ms Allardyce and that he had recently formed an intimate relationship with her. On the evening of 1 May 2002 he arrived home at about 8.45 pm. He heard shouting and screaming coming from Ms Allardyce's unit. After a while, he knocked on her front door. He had a key which he had previously been given by Ms Allardyce. He opened the door, announced his presence and asked whether he could enter. The appellant answered "yes". The complainant walked towards the bedroom, from where the noise had been coming. He stood at the door of the bedroom and asked whether he could come in. Again he was told that he could enter. He turned on the light. The appellant asked him how he had got in and he responded by saying that Ms Allardyce had given him a key. The appellant asked him whether Ms Allardyce had kissed him earlier that evening. He said that she had, to which the appellant responded in an angry fashion, saying that Ms Allardyce had denied this. The complainant asked if everything was all right and then left.
However, yelling and screaming from Ms Allardyce's unit continued. Eventually the complainant returned to her unit. He knocked on the front door. Ms Allardyce opened the door. The complainant could see that she had been crying. He walked down the hallway with her. The appellant was standing at the end of the hallway. The complainant asked if they could have a talk and sort things out as the noise was disturbing the neighbourhood.
Then, the complainant said, somehow the three of them ended up in the spare bedroom. He could not recall whether they had walked in there or whether he and Ms Allardyce had been pushed in there by the appellant. The complainant asked what all the yelling and screaming had been about and the appellant responded by asking what business it was of his. The complainant said that Ms Allardyce was his girlfriend. The appellant thereupon became angry and said that he was going to hit the complainant. The appellant then grabbed Ms Allardyce and threw her sideways before swinging a punch at the complainant with his right hand. This was followed with a left‑hand punch. The complainant was able to evade both punches. Ms Allardyce intervened and a misdirected punch from the appellant struck her on the jaw causing her to fall to the floor. The complainant said that he then fell backwards against the mirrored door of a cupboard in the bedroom. After this, the appellant struck three further blows, one of them hitting him above the bridge of the nose and another hitting him near his left eye in the region of his cheek.
The complainant said, in effect, that at no time did he attempt to retaliate in respect of the punches which had been thrown at him. He said that he raised his hands only in order to protect himself after he had been hit. He denied that, after being pushed into the wardrobe, he got up with his arms raised as though he was going to hit the appellant.
The Appellant's Evidence
The appellant's evidence was rather different. He said that he had been invited to stay the night with Ms Allardyce and that he had agreed to do so. She was owed money by a company with whom he had a connection and he had offered to help her to recover it. She had been drinking heavily during the course of the evening and became agitated and began to yell and scream about the money owed to her. She and the appellant were then in Ms Allardyce's bedroom. The appellant turned around, at one point, and saw the complainant standing in the bedroom. He had not heard him announce himself and had not invited him in. Ms Allardyce told the complainant that there was no problem and asked him to leave. The complainant then did so.
Ms Allardyce again became agitated and began to yell out about the money owed to her. The complainant called through the connecting wall of his house, asking whether everything was all right. The appellant said it was. However, Ms Allardyce started yelling and screaming again. Shortly afterwards, the appellant heard noises from the front door. Ms Allardyce got up and left the bedroom. The appellant followed and found the complainant standing in the hallway. The appellant said that he was, by then, "pretty agitated". He asked the complainant how he had got inside the house and the complainant told him that he had been given a key.
The appellant then decided to leave the premises. As he walked past the complainant, the complainant said, "Leave my girlfriend alone." The appellant spun around and asked the complainant what he had said. He described what then took place as follows:
"As I turned around I saw this arm, palm, fist come up at me, which I assumed and thought that he was going to attack me, so I bashed it away with my left hand and grabbed him and just pushed backwards - instinctively just pushed backwards and we ended up pushing backwards. He said, 'Just leave - - leave my girlfriend alone'."
He went on to say, a little later:
"I just thought he was bashing me. I thought he was going to bash me. I thought he was having a go at me. His arms were going all over the place. Within seconds - this all happened very quickly - we hit the wall and we went into the right - - into a spare bedroom on the right hand side of the hallway."
He went on to say that the two men ended up in the back of the spare bedroom, against the wall and that he had hold of the complainant with one hand. He said that the complainant pushed backwards against the appellant and the two men ended up in the centre of the room, at which point the appellant let go of the complainant. He said that the complainant was then partly bent over and that both of his hands came up, causing the appellant to think that the complainant was going to "bash" him. The appellant said that he then "ended up throwing a couple of punches - jabs" at the complainant. He said that the complainant "ducked and dived" and both punches missed but, by that stage, Ms Allardyce had walked up to them and a glancing blow accidentally struck her on the face. She "slithered" down to the floor. The complainant started moving backwards. The appellant grabbed him by one arm "because his arm come out at me and I got clawed down the side of my left arm". The complainant's feet became "tangled up in" Ms Allardyce and he lost his balance and fell backwards. He flung out his left arm against the wall to prevent himself from falling completely. The appellant "had a hold of him" at that stage and "pulled him back out of there". He said that the complainant's "left hand come right back around" and the appellant then hit him three times in his face. When asked why he had done so, he responded by saying:
"… at the time I thought that he was fighting me. I thought he was - - well, I was - - I was threatened. I was disorientated with the times that he was coming - - all this was happening. It all took a very short period of time. I thought he was bashing me. I thought he was having a go at me and I felt threatened."
When asked whether or not the complainant had landed any punches on him, the appellant said that the complainant had been "ducking and diving all the time and his arms were coming out, but I wasn't getting hit much". He also said that, when he had first "grabbed" the complainant, the complainant had been "pretty angry and wild" and that he (the appellant) had thought that he "was going to get hurt". He said that he only realised that he was not under attack when the complainant urged him to stop and told him that he was not a fighter.
The Magistrate's Reasons
The Magistrate considered that both the appellant and the complainant "appeared to be reasonable witnesses describing the events that had occurred". He also said that he had formed a favourable impression of both witnesses "as being ones generally giving a truthful version of their recollection of the events that occurred on the night in question". He mentioned that there were some "irreconcilable differences" between them and that a number of these lacked any independent corroborative material, leaving him "unable to resolve where the truth lies". I have said that he declined to place any reliance on Ms Allardyce's evidence.
The Magistrate made a number of findings, as follows:
"[During the course of the complainant's second visit to the house the appellant] perceived that … [the complainant] had raised his arm. He then pushed … [the complainant] backwards, having taken hold of a portion of his clothing around the neck region, and pushed him back into this secondary bedroom … Once in this secondary bedroom the … [appellant] describes swinging several punches and that he … [the complainant] weaved and ducked and avoided the punches.
One of those punches … struck Allardyce … She was rendered unconscious … The … [appellant] has then described that … [the complainant] fell backwards against the mirrored door of the cupboard in the secondary bedroom, partly breaking his fall …
… [The complainant] described that after the blow was struck to Allardyce he - that is … [the complainant] - was also struck by the … [appellant] with a number of blows, one of which struck in between the eyebrows, above the bridge of the nose, causing his nose to bleed.
A further blow hitting him on the left eye region of the cheek … [caused] … bruising … [The complainant] also described a further mark which he described was on the other cheek … That evidence is remarkably similar to the evidence of the … [appellant] who acknowledges having struck 3 blows to … [the complainant] and acknowledging that they may have caused the injuries depicted and described by … [the complainant] as having been sustained in that way.
The 2 witnesses' evidence then diverged to the extent that … [the complainant] describes that further blows or kicks were struck at him whilst he was cowering underneath the window in the bedroom. The … [appellant] has described that … [the complainant] did wind up in a position similar to that described by … [the complainant] in his evidence, but the … [appellant] refutes that he struck any further blows to … [the complainant]. The prosecution carried the burden of establishing all elements of the charge beyond reasonable doubt.
… The statement by … [the complainant] that Allardyce was his girlfriend, given the particular circumstances, the lateness of the hour … [the complainant's] presence in the premises for the second occasion that evening certainly was a statement that could be viewed as provocative. The … [appellant's] response to that was to seize hold of … [the complainant] and push him backwards.
The subsequent events, however, the blows being struck by … [the complainant] who had - not from any view of the evidence, whether it be the evidence given by … [the complainant] or the … [appellant], and in any way acted by way of response to being pushed backwards, other than to regain his balance, it seems, and ending up in the middle of the secondary bedroom. The … [appellant's] conduct of then swinging blows at … [the complainant], who was not acting aggressively towards the … [appellant], was conduct that in my view is not authorised, justified or excused by any provisions contained in the Criminal Code."
Pullin J's Conclusions
Pullin J, in his judgment in the appeal against the decision of the Magistrate, concluded that the Magistrate had made no findings about whether or not the appellant had honestly believed that he was being attacked by the complainant. This, he said, was because the Magistrate had found that the prosecution had negatived the objective elements of the defence of self‑defence. He said, in this respect, that the Magistrate's reasons (which should not be read in an over‑critical fashion) were adequate and (at [27]) that his findings were that the complainant was not acting aggressively and that all that he had tried to do was to regain his balance and that those findings allowed the reader to draw what was the only inference open, being that the Magistrate was finding that the complainant could not have led the appellant "reasonably [to] hold the mistaken view that he was being assaulted", and that "nothing that .. [the complainant] had done amounted to a gesture which could have led the … [appellant] to conclude that he was being assaulted". He went on to say (at [34]) that there was, in any event, no miscarriage of justice because the Court was in as good a position as the Magistrate to consider the objective elements of the defences raised and that, in his opinion, the appellant could not reasonably have believed that he was being assaulted, given the Magistrate's findings about the complainant's conduct. He added (ibid) that he considered that the force applied by the appellant was, in any event, beyond that reasonably necessary to make effectual defence against the assault that he perceived the complainant was making against him.
Analysis of the issues
As I have pointed out, the Magistrate expressly found that the appellant had generally given a truthful version of his recollection of the events that had occurred. There is nothing in the reasons given by the Magistrate which would suggest that he did not accept the appellant's evidence that:
"(a)when he first "saw this arm, palm, fist come up at … [him]" in the hallway, he thought that the complainant was going to attack him, causing him to "bash" the complainant's arm away and push him backwards;
(b)when, thereafter, the applicant had hold of the complainant "by the shirt and around … [the] neck", he thought that the complainant, who was then "pretty angry and wild", was "going to bash … [him]" in circumstances in which the complainant's "arms were going all over the place";
(c)after the complainant had "pushed backwards off the wall", both his hands had "come up" and the applicant thought that the complainant was going to "bash" him, both of the complainant's hands having come up towards his face;
(d)after the complainant had fallen against the wardrobe mirror, and after the applicant had held the complainant and pulled him back, the complainant's "left hand [came] right back around" and the applicant then hit him three times in his face; and
(e)the applicant hit the complainant in this way because he thought that he was "threatened" and, in circumstances in which all of these events had taken place over a very short period of time, because he believed that the complainant "was bashing … him".
If all of this evidence is accepted as having been the product of an honest recollection (and, on my reading of his judgment, the Magistrate did accept that it was such), then it seems to me that it was sufficient to establish an honest belief on the part of the appellant that he was being assaulted. At the risk of undue repetition, the effect of the appellant's evidence was that, as he saw the position, while he and the complainant were still standing in the hallway the complainant moved to strike him; that he responded; that a struggle then ensued in the second bedroom at a time when both of the complainant's hands were coming up towards the appellant's face; and that, after the complainant had fallen backwards against the wardrobe and the appellant had pulled the complainant back towards him, the complainant's left hand had "come right back around" in what the appellant took to be a threatening manner and the appellant had consequently struck the complainant three times. The picture was accordingly one, at least in the appellant's mind, of an ongoing fight between the two men, started by the complainant, in which each had taken steps to try and strike the other.
Had the circumstances in issue been as the appellant had believed them to be, then, in my opinion, the defence of self‑defence under s 248 would not have been negatived. Consequently, if his belief was honestly and reasonably held (even if it was mistaken), it provided him with a complete defence by virtue of s 24 of the Code. That being so, once having found that the appellant's belief was honestly held, it was necessary for the Magistrate to go on and consider whether or not it was reasonable. In my opinion, he never did so. Instead, he said only that the final series of blows struck by the appellant were struck, even on the appellant's evidence, at a time when the complainant "was not acting aggressively towards the … [appellant]". I have already said that that was not the appellant's belief at the time. The reasonableness of that belief could not be evaluated without having regard for the overall course of events as the appellant had understood and described them. Moreover, it was necessary for the Magistrate to take into account the appellant's evidence that all of these events, which occurred over a very short period of time, had led him to feel threatened and that, immediately before striking the critical blows, he had seen the complainant's left arm move in a manner which he took to be threatening. No such evaluation was made. In my opinion the Magistrate's failure to make it necessarily vitiates the appellant's conviction.
I should add that even if, contrary to the conclusion at which I have arrived, the Magistrate might be taken to have ruled, impliedly, that the appellant's belief was unreasonable, he had an obligation to say upon what basis he reached that conclusion. It is well accepted that, where there is a right of appeal, the reasons must be sufficient to give effect to that right. The basis for a decision must be apparent. The losing party cannot otherwise know whether there has been a mistake of law or of fact: Carlson v King (1947) 64 WN (NSW) 65 at 66; Pettitt v Dunkley [1971] 1 NSWLR 376 at 387 ‑ 388, per Moffitt JA, with whom Manning JA agreed; Lloyd v Faraone [1989] WAR 154 at 162 ‑ 163, per Malcolm CJ; Garrett v Nicholson (1999) 21 WAR 226 at 248; and Mount Lawley Pty Ltd v Western Australian Planning Commission (2004) 29 WAR 273 at 282 ‑ 283. I would consequently allow the appeal and set aside the conviction, even upon this assumption.
I should deal, finally, with Pullin J's conclusion that there was, in any event, no miscarriage. In my respectful opinion this is not a case in which an appellate court is able to draw that conclusion.
As to the first of the reasons offered by Pullin J for arriving at that conclusion, it seems to me that it was not open to an appellate court to conclude that the appellant's belief that he was under attack was shown to have been unreasonable. As I have stressed, that belief was formed in circumstances in which, on the appellant's evidence, the complainant was visibly angry and was, over the very brief period in issue, acting in a manner which was consistent with an attempt or attempts to strike the appellant. I have also stressed that the Magistrate made no adverse credibility finding in respect of this evidence (as to which see Gelavis v Australian Securities and Investments Commission [2003] WASCA 300).
As to the second of the reasons offered by Pullin J, I have already concluded that, if circumstances had been as the appellant believed them to be, the defence of self‑defence could not have been negatived, essentially because the events in question were such, in the appellant's belief, as to amount to an assault upon him by a man who was "pretty angry and wild" and who made a number of attempts to strike him. If that had in fact been so, then it could not be said, in my respectful opinion, that the blows struck by the appellant went further than was reasonably necessary to make effectual defence against the assault.
Conclusion
It follows that I would give leave to appeal, allow the appeal, set aside the orders made by Pullin J and substitute, in lieu, orders allowing the appeal against the judgment of the Magistrate and quashing the appellant's conviction.
WHEELER JA: I have had the advantage of reading in draft the reasons for decision of Steytler P and Roberts‑Smith JA. I agree generally with the latter, and with the conclusions of Roberts‑Smith JA. However, I would take a somewhat different approach to grounds 1 and 2.
I accept, as does Roberts‑Smith JA, that, since his Worship accepted the appellant as a credible witness, it must be taken that his Worship accepted the appellant's account, including his account of his subjective reactions. It seems to me that what has occurred in the present case, however, is that because of the way in which the appellant's evidence was given, his Worship formed the impression that there was, in relation to the existence of an objective basis for the appellant's belief, no credibility issue about which it was necessary for him to make a finding, and that the only question was whether, accepting that the appellant believed that he was being attacked by the complainant, that belief could be regarded on the facts as a reasonable one.
In the light of the controversy in this Court, it would have been desirable, in hindsight, for his Worship to have set out in more detail what precisely it was that, in his view, the appellant had seen and done. It may well be, however, that his Worship did not appreciate that, to the reader of the transcript, the evidence would be extremely difficult to follow.
The advantage enjoyed by the trial Judge, or Magistrate, includes having the benefit of demonstrations which are often made by witnesses and which, unfortunately, are frequently not, in busy courts, recorded in the transcript. In the present case, for example, it is clear that there was some description by the appellant demonstrating, in relation to portions of the exhibits, where it was that the parties were at different times and how they moved about. It is likely that, as is common in such cases, there were also demonstrations by the complainant and by the appellant, as to how they had moved. Further, frequently where there is confusion in a transcript as to precisely what a witness is saying, the emphasis given in the witness box, in the witness' tone, will make it clear. All of those factors can combine to have the effect that, while it may be clear to the
tribunal of fact what is being said, it will not be clear to the reader of a transcript.
To take one example of the potential advantage of the court of first instance in this case, it is necessary only to go to the appellant's account of the way in which the series of assaults commenced. At AB 132 he said, "As I turned around I saw this arm, palm, fist come up at me, which I assumed and thought that he was going to attack me". Is the appellant there referring to an arm, a palm or a fist? It may be that, as is sometimes the case, he has commenced with one word and, in effect, substituted another which he considers to be more appropriate, so that "fist" may be the true answer. Alternatively, however, he may be describing a phenomenon which he does not clearly recall or did not clearly see, so that he is suggesting that it could have been any of an arm, a palm or a fist. Which of those was the case would probably have been evident to his Worship from the appellant's tone, body language, or possibly from a demonstration. It seems to me more likely that it was the latter, since on the same page the appellant referred to the fact that he "just assumed - - couldn't sort of see anything". On the same page also he said, "I just see this arm up", which rather suggests that, while he saw an arm, he may not have seen the motion by which it came to be up or in front of him.
It is important in this context to note that it was very clearly not the appellant's case that the complainant was in fact at any time threatening him, or attempting to bash him. At AB 136, this appears most explicitly. The appellant is there describing what happened towards the end of the whole incident, when the complainant expressly said to him, "I'm not a fighter. I don't want to fight you". The appellant's evidence was "[a]t that stage I obviously realised that he wasn't sort of attacking me as what I'd thought … ". However, that the appellant was in his evidence describing an assumption, rather than something which was actually occurring, is clear from numerous portions of his evidence relating to the incident. At AB 132, as I have noted, he said that he "assumed and thought" that the complainant was going to attack him and on the same page he said, "I thought he was having a go … I just assumed - - couldn't sort of see anything … I just thought he was having a bash at me". On the next page, describing the situation when he had hold of the complainant around the throat, he said, "I just thought he was bashing me. I thought he was going to bash me". (It is noted, of course, that these two beliefs are not consistent with each other. It is difficult to see how the appellant could have thought at the same time both that he was being bashed and that he was about to be bashed.) There are a number of similar passages, and then on page 136, when asked why he hit the complainant three times with the punches that connected with the complainant's face, the appellant said, "I - - at the time I thought that he was fighting me. I thought he was - - well, I was - - I was threatened. I was disoriented with the times that he was coming - - all this was happening".
A significant portion of the evidence of the appellant is set out in the reasons of Roberts‑Smith JA, and it does not seem to me to be necessary to repeat it in these reasons. However, I think it is fair to say that the only impression which can be gained from a reading of it, was that the appellant was not giving a particularly clear or coherent account of what had occurred. I think it is also a fair reading of that evidence that the appellant was suggesting that he was to some extent disoriented and confused about what was occurring.
In that context, while he clearly was suggesting that he believed that he was about to be assaulted (or, at some points, that he believed that he was being assaulted), the only evidence which appears to have been pointed to as possibly giving rise to that belief was that the complainant was doing something of an unspecified nature with his arms. Picking out those portions of the evidence, they seem to me to be as follows.
I have already noted the passage in which the appellant said that he spun around and saw this "arm, palm, fist come up at me". It is not clear from the transcript (although it may have been clearer to his Worship) quite what part of the complainant's arm came up, or whereabouts in relation to the appellant it came up. However, that evidence loses any force it might otherwise have, in my view, when one sees that, on the same page, the appellant, in relation to the same action, observed that he "couldn't sort of see anything".
Then, as I have noted, at AB 133, describing a time at which he had already apparently got the complainant by the shirt and "around that neck are[a] on the throat", the appellant said that he thought that the complainant was bashing him because "[h]is arms were going all over the place". It should be observed that there is no description as to what, if anything, the arms were doing and how they could have been perceived as threatening. In any event, it would be very surprising in those circumstances, if even the meekest complainant were not moving his arms in an endeavour to loosen the appellant's grip.
On the same page, the appellant was asked to comment on the complainant's evidence that the appellant had rained blows on the complainant, who was fending them off with his forearm. The appellant, in response, did not directly comment on that allegation, but described a long period of pushing in which it seems that he had pushed so that the complainant ended up against a wall and that the complainant had pushed backwards off it. He then said that, at that stage, "both hands come up". He was asked in what fashion they came up and described instead the complainant's body position, being "[h]e was like partly bent over". He did, however, then say "[b]oth hands come - - come up at me or up at my - - towards my face". Again, I would note that there is a reference to the complainant's hands moving in a way which could be understood in a number of ways, and it is not clear whether the words "towards my face" are a description of the movement as ultimately understood by the appellant, or as one possible interpretation of a movement which the appellant did not clearly see. Again, that is not apparent on the transcript, but it may well have been apparent to his Worship.
The appellant then described the portion of the incident where he attempted to hit the complainant, but hit Ms Allardyce. After that, at AB 135, the appellant said, "At that stage I missed … ", presumably referring to hitting out at, but missing, the complainant. He then said that the complainant "sort of moved towards that direction" (apparently demonstrating something on a photograph). The complainant was moving backwards and he grabbed the complainant by one arm "because his arm come out at me and I got clawed down the side of my left arm". As far as one can tell, what is being described is some sort of a grabbing motion by the complainant, intercepted by the appellant, or perhaps some sort of involuntary movement of the complainant's arm which caused the appellant to grab him.
In any event, it is then reasonably clear that the appellant's evidence was that the complainant was at that stage backing away and in some sort of crouching movement, and that the appellant then grabbed the complainant and pulled him. At that stage, the appellant said, "and then his arm came back around from the - - his - - his left hand come right back around". The appellant then punched him three times in the face. The movement of the complainant's arm does not appear from the transcript to be any explicitly threatening motion. One has no idea how the arm came around, or from where, or how it was moved towards the appellant, assuming that it did move towards the appellant. All of that may well have been perfectly clear to those in the courtroom who heard and saw the appellant give evidence. Alternatively, it may simply have been clear that the appellant was unable to describe what had happened.
If one accepts that the appellant's descriptions may well have been much clearer to those observing him give his evidence than they are to the Court reading the transcript, that would explain why it did not occur to his Worship to describe in any detail what the appellant had said occurred. Rather, he simply summarised his clear impression of the evidence, which was that "from any view" of that evidence, the complainant had not "acted by way of response to being pushed backwards, other than to regain his balance" (AB 181). That seems to me to be consistent with the portions of transcript to which I have referred.
Alternatively, if it was the case that the appellant was simply unable to describe coherently what it was that the complainant was doing, so that his account of the critical portions of the complainant's movements were as unintelligible to his Worship as they are to the reader of the transcript, then there was simply no evidentiary foundation for the belief, which his Worship seemed to have accepted that he had, that he was being attacked. In either case, the prosecution would have proved that the appellant did not believe on reasonable grounds that it was necessary for him to assault the complainant in order to defend himself. The only evidence of those reasonable grounds could have come from the appellant, and on either view that evidence simply did not exist.
For the sake of completeness, I should add that, although I have referred to the appellant's evidence‑in‑chief, as being the most coherent account of what was happening, I have not overlooked the fact that he also referred in cross‑examination to his belief that he was being attacked and gave evidence of matters which might have been relevant to that belief. For example, at AB 150, he said of the complainant, "He was ducking and diving. I didn't - - I threw … Well, he's - - his arms were up as a - - quite a boxer". In context, what was being put to him, however, is that the complainant was attempting to avoid the blows. Although the references to a "boxer" might suggest some threat, it is clear that the only boxer‑like movements actually described by the appellant are movements to avoid blows, not to inflict them. On the same page, the appellant said, "Well, I thought he was - - his hands were up trying to punch me". That passage, too, illustrates the difficulty of trying to interpret the transcript. Either the appellant was saying that he thought the complainant's hands were up trying to punch him, implicitly conceding that they were not, or, alternatively, he has commenced a sentence "I thought he was … ", and abandoned that sentence to substitute the positive response, "his hands were up trying to punch me". Where the transcript is capable of two interpretations, and where it may well have been clear at trial which was
meant, it would be wrong in principle to prefer that which is inconsistent with his Worship's reasons.
Looking at the transcript objectively, the most that can be said about any movements by the complainant, as described by the appellant, is that, at two or perhaps three points during the whole incident, he moved his arms, and moved them either "up" or "around" towards the appellant. The appellant, however, plainly at least pushed the complainant, took hold of him by the shirt in the region of the throat, attempted to hit him several times (and on one of these occasions hit Ms Allardyce instead), and ultimately hit him three times with punches to the face. While accepting that in his disoriented state (and perhaps in part because he had consumed a bottle of wine earlier in the evening) the appellant might have thought that he was about to be attacked, there is simply no evidence reasonably capable of grounding that belief, at least during the latter stages of the assault, when the complainant had continually retreated.
It follows from what I have said that I would disagree with Steytler P's view that the evidence was such as to require his Worship to analyse the reasonableness of the appellant's belief. Rather, it seems to me that the way in which his Worship understood the evidence, which appears to have been at least open to him, meant that that question effectively answered itself.
I would add that if it had been the case that the evidence of the appellant must, on any view, have contained internal inconsistencies, in the sense of passages capable of supporting a reasonable belief he was being attacked, together with passages to different effect, it would have been necessary for his Worship to determine which portions of that evidence he believed. In my view, however, that is not this case.
ROBERTS-SMITH JA: On 17 June 2003 the appellant was convicted in the Court of Petty Sessions at Perth before Mr Bromfield SM on one count of assault occasioning bodily harm, contrary to s 317(1) of the Criminal Code. His Worship gave ex tempore reasons for decision. The appellant was fined $2000 and ordered to pay $83 costs.
On 22 July 2003 the appellant applied for leave to appeal the decision of the Magistrate. The appeal was argued before Pullin J on 29 January 2004. His Honour dismissed the appeal and published his reasons on 6 February 2004 (Gardner v Caporn [2004] WASCA 14). The appellant filed his application for leave to appeal that decision on 27 February 2004. By order made on 29 March 2004 Pullin J referred the application for leave to this Court.
In his original application the appellant set out four grounds of appeal. At the hearing of the application on 9 May 2005 we gave leave to amend the application by the addition of a fifth ground.
The appellant's grounds of appeal are:
"Ground 1: The Learned Judge erred in law in failing to find that the Learned Magistrate erred in law by finding:
(a)That the Applicant's conduct was not authorised, justified or excused by law despite failing to make specific findings that the prosecution had proved beyond reasonable doubt that the relevant acts of the Applicant were not done:
(i)in self‑defence; or
(ii)in response to provocation for the assault; or
(iii)in response to an honest and reasonable but mistaken belief that he was being assaulted by [JD] such that, had those facts which he believed to exist, actually existed, would have availed him of the defences of self‑defence or provocation.
Ground 2: the Learned Judge erred in law in failing to find that the Learned Magistrate failed to give adequate reasons for convicting the Applicant and, in doing so, failed to consider the specific elements of the defences of:
(a)Self‑defence;
(b)Provocation; and
(c)Honest and reasonable but mistaken belief
and, in the alternative, finding that the Learned Magistrate was in error in [sic] failing to give adequate reasons or in failing to consider the specific elements outlined above, that pursuant to section 199(1)(b) of the Justices Act 1902, no miscarriage of justice resulted.
Ground 3: The Learned Judge erred in law in failing to find that the Learned Magistrate erred in rejecting the defences of provocation and self‑defence by simply preferring the evidence of the Complainant to that of the Applicant and failing to have regard to whether the evidence of the Applicant might reasonably be true.
Ground 4: The Learned Judge erred in law in failing to find that the Learned Magistrate had erred in failing to direct himself in relation to the effect of the good character evidence elicited on behalf of the Applicant.
Ground 5: The Learned Judge erred in law in failing to find that the Learned Magistrate erred in law by failing to hold that the charge was duplicitous."
There were three people involved in the events of the night of 1 May 2002. They were the complainant, JD, the appellant and a Ms Allardyce.
The salient facts were broadly outlined by Pullin J and it is convenient to set them out as described by his Honour:
"2 … The Magistrate found that the appellant had a relationship over a number of years with a Ms Allardyce, but this relationship had turned into what the appellant's counsel described as an "on again off again" relationship. The appellant lived in City Beach. Ms Allardyce lived at Farris Place, Innaloo. Next door to Ms Allardyce lived the complainant, [JD]. Ms Allardyce and [JD] had, a few weeks before 1 May 2002, formed a close friendship and then an intimate relationship.
3On 1 May 2002, the appellant and Ms Allardyce had been out to dinner at a restaurant and had consumed a considerable amount of alcohol. The purpose of the dinner, from the point of view of Ms Allardyce, was to gain the appellant's assistance in recovering some money due to Ms Allardyce by a mining company. After dinner, the appellant and Ms Allardyce went to Ms Allardyce's house. An argument developed. Voices were raised to such a degree that [JD] came in from next door to see if Ms Allardyce was in need of help. [JD] spoke to the two of them and then left. However, there was further argument and screams from Ms Allardyce, and this led [JD] to believe that Ms Allardyce did need help, so he returned to the house.
4He came across the appellant and Ms Allardyce in the hallway. According to the appellant, [JD] said: 'Leave my girlfriend alone'.
5The learned Magistrate found the appellant took hold of a portion of [JD's] clothing around the neck region and pushed him back into a nearby bedroom. The appellant swung five punches at [JD]; one of these struck Ms Allardyce in the face and she fell to the floor unconscious, and three of them struck [JD] in the head, causing him bodily injury to the face. [JD] also suffered injury to his forearm, but the Magistrate said that he was left in some doubt as to how that injury was caused."
So far as the evidence before the Magistrate is concerned, that of Ms Allardyce may be disregarded. That is because his Worship said he formed a most unfavourable impression of her evidence in respect of certain aspects, causing him to treat her evidence in its entirety with the greatest circumspection. He went on to say:
"Quite a different impression was formed by myself with respect to the evidence of [JD] and also that of the defendant Robert Charles Gardner. The two parties appeared to be reasonable witnesses describing the events that had occurred. There are, however, a number of irreconcilable differences between the evidence given by [JD] and that of the evidence given by Mr Gardner. A number of those in the absence of independent corroborative material leave me being unable to resolve where the truth lies."
The first of the significant issues which the Magistrate said he was not able to resolve as between the complainant and the appellant was the complainant's testimony that when he first came into the premises, that was as a result of hearing Allardyce's voice raised. He called out and the appellant responded by saying it was "alright" to enter the premises. The appellant's evidence, however, was that the first he knew of it was when the complainant was in the bedroom and that he was there uninvited. His Worship said he was not able to resolve whether that occurred or not, but given the evidence that the appellant has a hearing deficiency, that may explain that anomaly in the evidence, he "… having formed a favourable impression of both witnesses as being ones generally giving a truthful version of their recollection of the events that occurred on the night in question".
His Worship went on to say it was clear that a reference was made by the complainant to Allardyce being his girlfriend, and that he was there because he was concerned for her safety. His Worship said that at that point, (from the appellant's version of events) the appellant, having perceived that the complainant had raised his arms, pushed the complainant backwards, took hold of a portion of his clothing around the neck region, and pushed him back into a secondary bedroom. Once there, he said that the appellant had described swinging several punches and that the complainant weaved and ducked and avoided them. He said that one of those punches struck Allardyce, rendering her unconscious. He said the appellant's evidence was then that the complainant fell backwards against the mirrored door of the cupboard in the secondary bedroom, partly breaking his fall, which explained why the mirror was broken and with the complainant's left arm extended out striking the brickwork. He said the complainant's evidence was that after the blow was struck to Allardyce, he was also struck by the appellant with a number of blows, one of which struck him between the eyebrows, above the bridge of the nose, causing his nose to bleed. His Worship said the complainant described a further blow hitting him on the left eye region on the cheek causing bruising, and observed that evidence was "remarkably similar" to that of the appellant who, he said, acknowledged having struck three blows to the complainant which may have caused the injuries that were depicted in photographs in evidence and described by the complainant as having been sustained in that way.
His Worship then noted that the evidence of the complainant and appellant then diverged in that whilst the complainant described further blows or kicks being struck at him while he was cowering underneath the window in the bedroom, the appellant's evidence was that although the complainant did end up in a position similar to that described, he refuted that he struck any further blows.
His Worship then directed himself that the prosecution carried the burden of establishing all elements of the charge beyond reasonable doubt, that it was not for the appellant to prove anything and that if:
"… from the evidence a defence is raised then it is for the prosecution to negate that defence by evidence. The statement by [JD] that Allardyce was his girlfriend, given the particular circumstances, the lateness of the hour, [JD's] presence in the premises for the second occasion that evening certainly was a statement that could be viewed as provocative. The defendant's response to that was to seize hold of [JD] and push him backwards.
The subsequent events, however, the blows being struck by [JD] who had - not from any view of the evidence, whether it be the evidence given by [JD] or the defendant, and in any way acted by way of response to being pushed backwards, other than to regain his balance, it seems, and ending up in the middle of the secondary bedroom. The defendant's conduct of then swinging blows at [JD], who was not acting aggressively towards the defendant, was conduct that in my view is not authorised, justified or excused by any provisions contained in the Criminal Code.
The assault was unlawful. The defendant, on the view of the evidence that I have formed, has been shown to the criminal standard of persuasion to have thereby caused to [JD] bodily harm in respect to the injuries to his face. I'm simply left in some doubt, as I've already described, as to the bruising to the arm - whether it came about in the manner suggested by the defendant as he described [JD's] arm striking the brickwork to the left of the mirrored cupboard or whether it was as described by [JD] I'm not able to say. For those reasons I find the charge proven."
Before us, senior counsel for the appellant argued grounds 1 and 2 together. I will also deal with them that way.
Grounds 1 and 2 - Failure to make necessary findings or give adequate reasons
As recognised by Pullin J, the complaint is that his Worship erred in law in finding that the appellant's conduct in assaulting the complainant was unlawful because it was not authorised, justified nor excused by law. Secondly, it is that his Worship failed to make specific findings that the prosecution had proved beyond reasonable doubt that the assault was not committed in self‑defence (whether in fact, or because the appellant had an honest and reasonable, but mistaken, belief that he was being assaulted by the complainant) and was not in response to provocation.
The relevant principles were correctly stated by his Honour. Noting that the Magistrate's reasons were given ex tempore, he observed that an appeal court should not be overly critical of the reasons given by a Magistrate in a busy court, citing R v Nevermann (1989) 43 A Crim R 347, 350; and Garrett v Nicholson (1999) 21 WAR 226, 248. As his Honour pointed out, it is nonetheless the obligation of a judicial officer to give sufficient reasons for decision to enable a losing party to see why they lost the case; in other words, so that justice is not only done but is seen to be done; and because it is necessary for reasons of sufficient clarity to be given to allow scrutiny by an appeal court (Lloyd v Faraone [1989] WAR 154, 162 ‑ 164; Garrett v Nicholson (supra).
His Honour noted that each of the "defences" of provocation and self‑defence (including honest and reasonable mistake of fact under s 24 of the Criminal Code (WA)) incorporate an objective element and some incorporate both objective and subjective elements. As His Honour pointed out, a defence of provocation will succeed only if the defendant was provoked in fact (the subjective element) and if an ordinary person would have been deprived of the power of self‑control by the particular act or insult in question (the objective element). Section 24 of the Code will apply if the defendant honestly holds a mistaken belief in the existence of the state of things (the subjective element) and if that belief was reasonably held (the objective element). The legal defence of self‑defence to an unprovoked assault will apply if the defendant is unlawfully assaulted. There will be such an assault if the victim, by act or gesture, attempts or threatens to apply force to the defendant without his consent under circumstances in which the victim has an apparent ability to effect his purpose - in which case the defendant may use such force by way of defence as is reasonably necessary (objective element) to make an effective defence against the assault.
His Honour pointed out the prosecution bears the onus of disproving these defences to the required standard once they are raised on the evidence. However, the prosecution does not have to prove beyond reasonable doubt that both the subjective and objective elements do not exist. He instanced, in the case of provocation, that the prosecution may concede the defendant was provoked but may contend (and prove to the required standard) that a reasonable person, with the attributes of the defendant, would not have been provoked. If the tribunal of fact is so satisfied, the prosecution will have negatived the defence.
His Honour took the view that if a judicial officer found that a defence involving both objective and subjective elements necessarily failed by reason of a specific finding with respect to one or other of those elements, although desirable, it would not be necessary for the judicial officer to expressly give reasons as to the other.
The gravamen of his Honour's conclusions with respect to ground 1 is in the following passages:
"26 The Magistrate, after saying that statements by [JD] about Ms Allardyce being [JD's] girlfriend "could be provocative" and that the accused's response was to seize hold of JD] and push him backwards, then referred to the subsequent events and said:
'… [JD] who had - not from any view of the evidence, whether it be the evidence given by [JD] or the defendant, … in any way acted by way of response to being pushed backwards, other than to regain his balance … ending up in the middle of the secondary bedroom. The defendant's conduct of then swinging blows at [JD], who was not acting aggressively towards the defendant, was conduct that in my view is not authorised, justified or excused by any provisions contained in the Criminal Code.
The assault was unlawful.'
The passage reflects some difficulties of syntax, but I have edited it in the way in which I understand his Worship intended it should read. I have, by italics, emphasised the critical aspects of this passage.
27His Worship's findings were that [JD] was not acting aggressively and that all he tried to do was to regain his balance. These findings allow the reader to infer (and in my view it is the only inference which is open) that his Worship was there finding that [JD] could not have led the accused to 'reasonably' hold the mistaken view that he was being assaulted, could not have provoked an ordinary person in the position of the accused to have reacted as he did, and that nothing [JD] had done amounted to a gesture which could have led the accused to conclude that he was being assaulted by [JD].
28In short, the Magistrate found that the prosecution had negatived the objective elements of all the defences to which the appellant refers. I would dismiss the ground which alleges that the Magistrate erred in not making findings about all the elements. It was not necessary for him to do so."
His Honour acknowledged that the Magistrate did not make any findings about the subjective elements of the defences, that is, about whether or not the appellant honestly believed he was being attacked by the complainant, nor whether the appellant was provoked. His Honour accordingly further acknowledged that if the Magistrate was shown to have erred in his findings about the objective elements of the defences, the decision would have to be quashed and remitted for rehearing.
On that question his Honour said that the transcript of the appellant's own evidence revealed that while he was in the hallway, he seized the complainant by the throat and arm, propelled him from the hallway into the adjoining room, dealt out five blows aimed at the complainant, the first two of which missed him but one of which struck Ms Allardyce in the side of the face and resulted in her being laid out on the floor - and the last three of which hit the complainant in the head and face. His Honour then concluded that in view of the Magistrate's finding that the complainant did not act aggressively and that his only reaction was to try to regain his balance after being pushed by the appellant, he could find no error in the Magistrate's conclusion that the assault was unlawful, in that it was not authorised, justified, nor excused by law, because the Magistrate's findings left open only one inference, namely that the prosecution proved that all of the defences failed in relation to the objective element in each defence. That being so, his Honour found the Magistrate's reasons for decision were adequate in that they provided a short, but sufficient, explanation of why the defences failed.
It is submitted the Magistrate's decision was tainted by a mistaken conclusion of fact, namely the conclusion that on either view of the evidence (that is, that given by the complainant and that given by the appellant), the complainant had not acted in any way in response to being pushed backwards by the appellant, other than to regain his balance, and that the complainant was not acting aggressively to the appellant. The submission is, that this finding either ignores the appellant's evidence or reveals a misunderstanding of it. The starting point is to consider the evidence actually given.
The complainant's evidence-in‑chief was that he arrived home about 8.45 pm and immediately heard a lot of shouting and screaming coming from Ms Allardyce's unit next door. He could hear her calling out "No, Robert. No, I don't want to". He went inside his own unit and shortly afterwards went out to his rear patio area to have a cigarette. The yelling continued. After about 10 minutes he decided to go next door to find out what was going on and calm the situation down. It was then approximately 9 pm. He knocked on the front door. There was no response, although he could still hear noise coming from inside. Ms Allardyce had previously given him a key. He used that and opened the door, but did not go straight in. He stood at the door, announced he was there and asked whether he could enter. The appellant answered "Yes". The complainant turned on the hallway light and walked down the hall to Ms Allardyce's bedroom, where he stood at the door and again asked whether he could enter. Again the appellant answered in the affirmative. The complainant turned on the light. His observations and account of the conversation are not presently pertinent, other than in that the appellant asked him how he got in and he replied that Ms Allardyce had given him a key. The appellant then asked him whether Ms Allardyce had kissed him earlier that evening just before she and the appellant left for dinner. The complainant said she had, to which the appellant responded that it "pissed [him] off" as she had denied that. The complainant then said if everything was all right he would leave, and did so. He returned to his unit, where he sat out the back and had a cigarette. The screaming and yelling from next door continued. After about another 10 minutes he decided to go back. He walked around and knocked on the front door. Ms Allardyce opened it. Her hair was dishevelled and she had been crying. He offered to talk to the appellant and she said "yes", so he walked down the hallway. The appellant was standing at the end. The complainant asked if they could have a talk and sort it out, as the noise was very loud and probably half the neighbourhood could hear it. The complainant's evidence was that the next part was "just a little bit blurred":
"… Somehow we ended up in the spare bedroom, which is on the opposite side to the main bedroom. I'm not quite sure whether we walked in there or whether we were pushed in there by Robert, but somehow we ended up standing in a row - myself near the window, Ms Allardyce in the middle and then Robert by the door.
Did you go in? Well, how is it that you're using those words? Did you just walk in the room or - -?‑‑‑I don't believe so, but I can't say for sure. I can't see why we would walk in the room.
What was Robert like when you went in?---He was ‑ ‑ he was like Robert. He looked at me. I could see that he probably wasn't looking too happy.
All right?‑‑‑But there was nothing out of the ordinary there.
All right. Did you talk to him?‑‑‑I did.
All right. Your evidence is you had a conversation with Allardyce where you asked her, 'Do you want me to ask him to leave?'?‑‑‑Yes. Correct.
Is that your evidence?‑‑‑Yes, it is.
Did you ask him to leave?‑‑‑No, not at that point. I just said, 'Look, Robert, Wendy is upset. I thought this was all under control. Why is all the yelling and screaming going on?' He said, 'What business is it of yours?' and I said ‑ ‑
PROSECUTOR: Okay. His Worships [sic] writing. 'What business is it of yours?'?---Yes, and I said, 'Well, I believe it is my business as Ms Allardyce is my girlfriend'.
Are those the words you used, sir?---Yes, they are.
Where were you standing when you said that?---I was standing probably about a metre or so in from the window, just off centre of the spare bedroom, away from the door.
Okay. 'She's my girlfriend'?‑‑‑Yes.
Yes. Then what happened?‑‑‑Robert seemed to get quite angry and said, 'That pisses me off. I'm going to effing hit you'.
All right?---And with that grabbed Wendy, who was between myself and he, and threw her sideways and she hit the wall or the wardrobe door and slumped to the ground.
All right. You saw that happen?---Yes.
Then what happened?‑‑‑He then swung a right punch at me, which I managed to evade. He then swung a left punch at me which I managed to evade. Then at about that time Ms Allardyce stood up and said, 'Stop it, Robert', but he was in the act of throwing a punch at me and ‑ ‑ well, I believe at me, and as she stood up it managed to get her on the side of the jaw and she went down flat on her back with blood pouring out of the side of her mouth - or trickling out I should say."
The complainant maintained that evidence in cross‑examination. He agreed that when the appellant had asked what his interest was in coming to see Ms Allardyce, he said it was because she was his girlfriend; but when it was put to him, he denied that when he said that the appellant turned around very quickly to look at him and he raised his hand in a manner that suggested he was going to hit the appellant. He denied doing that at any stage. The cross‑examination then continued as follows:
"You didn't feel any personal jeopardy from him at this stage?---I felt somewhat afraid when we were standing in the spare bedroom and he was asking me what my interest in Wendy was. Yes, I had a bit of nervousness to think maybe this is not such a wise place to be.
In fact, what happened is that he knocked your arm away, didn't he? Just knocked your arm away?---No, sir.
He grabbed you around the throat with one hand to restrain you?---No, sir.
You both ended up pushing and shoving and ended up in the spare bedroom?---No, sir.
He grabbed your arm and pushed it away?---No, sir.
He pushed you up against the wall - the mirror wardrobe, didn't he?---No, sir. I got thrown into that.
There was more pushing and shoving between the 2 of you in that room?---No, sir.
Until you got up with your arms up as though you were going to hit him?---No, sir.
He then hit you with a left jab to the face?---Yes, the first blow was his left.
You kept saying, 'Look, I'm only concerned about my girlfriend' or words to that effect?---No, because at that point in time she was unconscious on the floor."
Later in the cross‑examination it was again put to him that initially the appellant stepped towards him and he moved his hand upwards as if he was going to hit the appellant. He replied "No, that's incorrect. I'm certainly not foolish".
The appellant's evidence‑in‑chief about this was as follows. Ms Allardyce had been drinking heavily to the extent that he had to assist her out of the restaurant and from the car to her room. She had earlier asked him to stay the night and he had agreed. They both lay on her bed. She was fully clothed, he disrobed to his jocks. Then Ms Allardyce started to talk about her dispute with a mining company by which she had previously been employed and which she believed owed her a lot of money. The reason for his going to her place that evening had originally been to discuss that. The appellant had a connection with the company and was to help her in relation to it. She became very agitated. She began to yell and scream about it. He tried to calm her down. This went on for some time and then she began to calm down. Suddenly Ms Allardyce started to get off the bed. Because of her condition it took her a while. The appellant started to get up also. He put his jeans and shirt on then saw the complainant standing at the end of the bed. The complainant said he thought they were there to discuss the mining company situation. The appellant said that was exactly what they were trying to do. Ms Allardyce asked the complainant what he was doing there. He gave a reply which the appellant did not hear and then she told him everything was fine, "just go". The complainant turned around and left the house.
The appellant said he did not hear the complainant make any request to come into the unit (although he did say he had a hearing problem and probably would not have been able to hear) but was adamant there was no request for the complainant to enter the bedroom. The appellant just turned around and saw him standing there.
According to the appellant, the complainant having left, he again stripped to his jocks and lay back down on the bed, as did Ms Allardyce. The latter again became agitated. She began to yell out about her problem with the mining company. She was very loud. The appellant was again attempting to calm her.
During the course of this episode, the complainant called through the connecting wall, asking whether everything was all right. The appellant went to the bathroom area where he could hear better and said it was, explaining that Ms Allardyce was "just going off" over the mining company and he was trying to calm her down. The complainant said he was concerned; it was the middle of the night and all the neighbours could hear. The appellant returned to bed and lay down alongside Ms Allardyce. She started yelling and screaming again. Suddenly the appellant heard noises from the front door and hallway area. Ms Allardyce got up and went out of the bedroom. The appellant got up and started putting on his clothes again. Once he had done so, he went into the hallway to find the complainant was there. The appellant denied that he answered the door (which was apparently what the complainant had said in evidence on an application for a violence restraining order) or that Ms Allardyce did so.
The appellant's evidence was that by this time he was "pretty agitated" about the whole situation. The complainant had been coming in and out of Ms Allardyce's unit at will. The appellant said he asked the complainant "What the bloody hell's going on" and how he got inside. The complainant told him he had been given a key to let tradesmen in. The appellant said it was 10.30 at night and there were no tradesmen around. His testimony then continued (AB 132):
"… ‑ ‑ I said, 'Look, I've had enough. I'm ‑ ‑ I want to bloody leave' and I started to walk ‑ ‑ I was right there and I was still walking past and he made a comment and said 'Leave my girlfriend alone'. I, in a second, spun around quickly and I said, 'What did you say?' As I turned around I saw this arm, palm, fist come up at me, which I assumed and thought that he was going to attack me, so I bashed it away with my left hand and grabbed him and just pushed backwards - instinctively just pushed backwards and we ended up pushing backwards. He said, 'Just leave ‑ ‑ leave my girlfriend alone'."
He was then asked again about Ms Allardyce kissing the complainant and his reaction to that, and he then went on:
"… ‑ ‑ I said, 'Look, I've had enough of this bloody rubbish'. I commented about this key business. I said, 'How did you get in?' He commented on that. Then as I was going to leave I said, 'I've had enough'. I said, 'I'm going'. He made the comment. He said, 'Leave my girlfriend alone'. That's when I spun around quickly and I just see this arm up, coming at me. I knocked it away. I thought he was having a go.
I just assumed ‑ ‑ couldn't sort of see anything. I ‑ ‑ I just thought he was having a bash at me.
How are you ‑ ‑?‑‑‑So I knocked his arm away.
Perhaps I could just stop you there. After this conversation about the kiss and the key how were you feeling?‑‑‑I was agitated. I was confused at what in the hell was going on. I had been up 3 times in the ‑ ‑ within the last 10 ‑ ‑ 10 minutes with various things. I was ‑ ‑ I was surprised at what was going on. I was totally disorientated with this guy coming into the house. I didn't know why he was coming in there in any case and ‑ ‑ so that's ‑ ‑ I just went ‑ ‑ pushed backwards onto this ‑ ‑ he went backwards. I pushed back. I had hold of him on [sic] one hand.
MR PERCY: You had a hold of him?‑‑‑I had ‑ ‑ just had him by the shirt and around that neck are on the throat, sort of ‑ ‑
For what purpose?‑‑‑I just thought he was bashing me. I thought he was going to bash me. I thought he was having a go at me. His arms were going all over the place. Within seconds - this all happened very quickly - we hit the wall and we went into the right ‑ ‑ into a spare bedroom on the right hand side of the hallway.
All right. You heard his evidence that he reigned [sic] blows on you and he fended them off with that part of his forearm. What do you say about that?‑‑‑Well, what happened is ‑ ‑ is ‑ ‑ my recollection and what I could, sort of, know what happened, we actually ended up in the back ‑ ‑ the ‑ ‑ or the driveway side of that spare bedroom against the wall. At that stage when I ‑ ‑ because I still had a hold of him with one hand.
He had gained his ‑ ‑ when he hit the wall he gained his balance and - - and then he was able to ‑ ‑ he then pushed backwards. As he pushed backwards we ended up in the centre of the room because I was ‑ ‑ still had hold of him a little bit. I let go when we ended up in the centre of the room, because he'd gained his balance and so did I. So we ended up in the centre of this room and Wendy had sort of followed in.
All right?‑‑‑Didn't say too much.
Were you still holding him at that stage?‑‑‑When we ended up in the centre of the room I wasn't holding him. We were ‑ ‑ let go once he had pushed backwards off the wall and he was pushing me. Then I didn't ‑ ‑ I'd ‑ ‑ I let go at the centre of the room. [JD] immediately ‑ ‑ both hands come up. I thought he was going to bash me so ‑ ‑
In what fashion did they come up?‑‑‑Pardon?
In what fashion did his hands come up?‑‑‑Well, he was partly down. He was like partly bent over.
As he pushed backwards he was using strength to push me back so he then ‑ ‑ when I let go I sort of ‑ ‑ he sort of moved forward and then got up. Both hands come ‑ ‑ come up at me or up at my ‑ ‑ towards my face. I ended up throwing a couple of punches ‑ jabs.
MR PERCY: Which hand?‑‑‑Left one first and then I threw one with the right. [JD] ‑ ‑ [JD] ducked and dived and they both missed, but at this stage Wendy had walked in behind in the room. She was behind [JD] and there was a glancing blow accidentally hit Wendy on the face.
All right. Did either of those jabs that you threw connect with him?‑‑‑Not at ‑ ‑ not ‑ ‑ not at that point they hadn't. Nothing hit.
You say you accidentally hit Wendy?‑‑‑Yeah.
A glancing blow?‑‑‑Yeah. She ‑ ‑ she ‑ ‑ it didn't ‑ ‑ she didn't get knocked over or anything. She hadn't sort of said ‑ ‑ I think the only thing that she'd said at that stage ‑ ‑ she made a comment of ‑ ‑ just ‑ you know. She ‑ ‑ she was disorientated as well and, 'Just leave'. I didn't know who she was talking to at that stage. She just slithered down to the floor. She didn't get knocked down. She just ‑ ‑ legs just parted from underneath her and just slithered down to the floor. …"
A little later, he continued:
"… So as she slipped to the ground and she was there did you see what became of [JD]?‑‑‑At that stage I missed and then I ended up ‑ ‑ he sort of moved towards that direction and ‑ ‑ and he was moving backwards and I ‑ ‑ and I went and grabbed him by one arm, because his arm come out at me and I got clawed down the side of my left arm. So he had sort of had ‑ ‑ had that.
He actually ‑ ‑ his back ‑ ‑ because he was backing back towards that sort of area. He actually ‑ ‑ feet tangled up in Wendy, he lost his balance, he fell backwards with his backside crouched in, but at the same time his arm sort of swung open on the left hand side because he would have fell right into the window and probably would have broken it if he had continued on. So his arm flung out to the left hand side where the bricks and stuff are, and stopped himself from falling right, backwards because Wendy's feet ‑ ‑ he would have been ‑ ‑ he was treading on Wendy anyway.
I had grabbed him ‑ ‑ I grabbed ‑ ‑ I had a hold of him at that stage and I actually pulled him back out of there and ‑ ‑ and then his arm came back around from the ‑ ‑ his ‑ ‑ his left hand come right back around. That's when he ‑ ‑ I actually did ‑ ‑ I hit him 3 times then.
You hit him 3 times. In what area of his body?‑‑‑It ‑ ‑ we ‑ ‑ he ‑ ‑ he was bending partly down and I had a hold of him with my left hand and I did hit him 3 times with my right hand.
To where‑‑‑Into his face.
Into his face. All right. You've seen a picture which depicts his bruised eye. You've seen that, haven't you?‑‑‑Yeah, yeah.
MR PERCY: Would you accept that you might have done that?‑‑‑I may have done that.
All right. For what reason did you hit him those 3 times?‑‑‑I ‑ ‑ at the time I thought that he was fighting me. I thought he was ‑ ‑ well, I was ‑ ‑ I was threatened. I was disorientated with the times that he was coming ‑ ‑ all this was happening. It all took a very short period of time. I thought he was bashing me. I thought he was having a go at me and I felt threatened.
All right. Did he actually land any punches on you?‑‑‑The only thing that he ‑ ‑ that I can see ‑ ‑ that he ‑ ‑ he was ducking and diving all the time and his arms were coming out, but I wasn't getting hit much. I was ‑ ‑ but I did get cuts down the side of my left arm.
All right. So after you hit him with your right fist, I think it was ‑ ‑?‑‑‑Yes.
All right. Did you know if he said anything?‑‑‑At ‑ ‑ when I hit him with the ‑ ‑ at ‑ ‑ he was partly crouched over in front of that wardrobe window, or wardrobe door. He was bending down and I had ‑ ‑ there's 3 uppercuts - sort of punches to his face area - and he said, 'Stop, Robert, stop. I'm not a fighter. I don't want to fight you'. He said, 'I'm not a fighter'. At that stage I obviously realised that he wasn't sort of attacking me as what I'd thought."
There was nothing in the cross‑examination of the appellant which retreated from what he had said in chief. He reiterated that in the second room his blows missed the complainant because the latter was "… ducking and weaving, as a professional boxer". He repeated that when he first grabbed the complainant he thought he was threatened and was going to get hurt. He said the complainant's "… hands were up trying to punch [him]" - although he was here referring to each of them pushing each other in the second room. The appellant said the complainant's arms were up, he thought they were punches and knocked them away.
There are conflicts in the evidence. Some of those go to facts which would necessarily in turn underpin any findings about the objective aspects of provocation and self‑defence, that is to say, by which the reactions of the reasonable person would be gauged. Much would depend upon the impressions and assessments made by the tribunal of fact, of the credibility of the protagonists, as well as an understanding of what they said. The content of their evidence is in the transcript, but not having seen and heard the complainant and the appellant, this Court is simply in no position to make any findings based on credibility (see Gelavis v Australian Securities and Investments Commission [2003] WASCA 300). More significantly though, are the Magistrate's findings on credibility. He said he formed a favourable impression of both the complainant and the appellant as reasonable witnesses, each generally giving a truthful version of his recollection of the events. His Worship recognised that there were "a number of irreconcilable differences", some of which he was not able to resolve in the absence of corroborative evidence. That suggests his Worship was able to make findings on some of the irreconcilable differences. It must be taken that where he did so resolve such differences, he said so, that is he made findings. Because his Worship proceeded on the basis of acceptance of the appellant's account, and because of his findings with respect to credibility, this Court is obliged to deal with this appeal on the same basis - namely that the appellant's evidence was accepted.
In his reasons for decision, the Magistrate acknowledged that the appellant's evidence about the beginning of the incident was that he "having perceived the complainant had raised his arms", pushed the complainant backwards and then into a secondary room. However, in recounting the evidence of the complainant and the appellant about what happened next, his Worship failed to advert at all to the appellant's testimony that he thought the complainant was "bashing" him or "going to bash" him, or that he thought the complainant was "having a go" at him, that the complainant's arms were "going all over the place" and the two of them hit the wall and went into the spare bedroom. The Magistrate did not mention the appellant's evidence that once in that room he pushed the complainant against the wall, the complainant pushed back and they ended up in the middle of the room, at which stage the appellant let go of the complainant, but then immediately both the complainant's hands came up towards the appellant's face and the appellant thought the complainant was going to bash him, so he "ended up throwing a couple of punches … jabs", which the complainant avoided. His Worship did not mention the appellant's evidence that after that, the complainant tripped over Ms Allardyce and lost his balance; that the appellant grabbed him; that the complainant's left arm then came around; that the appellant thought the complainant was fighting him, bashing him, "having a go" at him and that he felt threatened, and that was when he punched the complainant three times in the face.
As I have said, whatever view this Court might form about that account is not to the point. His Worship accepted the appellant as a credible witness and it must be taken that his Worship accepted the appellant's account, including as to his subjective reactions.
The way in which Pullin J has set out at [26] of his Honour's reasons, the relevant passage from the Magistrate's reasons does, in my view, accurately reflect his Worship's findings.
It is clear that the aspect of the incident to which the Magistrate was referring here was that part which occurred in the spare bedroom after the complainant and appellant had got to the centre of the room; the appellant had thrown a couple of punches at the complainant; the complainant had tripped over Ms Allardyce and the appellant had grabbed him. It is the appellant's three punches to the complainant's face which followed immediately after that, which the Magistrate held to be an unprovoked assault not done in self‑defence.
Given his Worship's conclusions about credibility and his expressed acceptance of the appellant's account as generally truthful, the conclusion by Pullin J that his Worship must necessarily have found the assault to have been unprovoked and not done in self‑defence because the objective requirements of provocation and self‑defence (including reasonableness of any honest belief about that) had been disproved by the prosecution, must be correct. Although it would have been desirable had his Worship expressly articulated his reasoning, within the framework of the law to the extent his Worship did express it, that could have been the only way in which he arrived at the conclusion he did. That being so, Pullin J has not been shown to have erred in respect of this ground.
Senior counsel for the appellant argued that his Worship's finding that the complainant did not act in any way in response to being pushed backwards, other than to regain his balance, overlooked or ignored the appellant's evidence the complainant was "wild and angry", that he saw the complainant's left hand come up and that he thought the complainant was bashing (or having a go at) him. I do not accept that submission. In accepting the appellant's account, his Worship accepted the appellant's evidence that he saw the complainant's arm come around in a way which the appellant perceived as threatening. That does not detract from his Worship's finding that the complainant had not reacted otherwise than trying to regain his balance. Much of his Worship's understanding of what the complainant and appellant had described must have come from the way in which they conveyed that in the witness box, which this Court is not in a position to appreciate. His Worship could only have concluded that the complainant's actions would not have provoked a reasonable person to act as the appellant did, nor to think it necessary to assault the complainant in self‑defence, nor that a mistake about that would be reasonable. That does not ignore nor misapprehend the appellant's evidence. Ground 1 is therefore not made out because although not expressed in terms, his Worship did make the findings which this ground asserts he failed to make and accordingly his Honour was correct to so conclude. Ground 2 fails likewise. Had there been more than one possible way the Magistrate may have come to the conclusion he did, his failure then to articulate his reasoning process would have been fatal. However, when his reasons are examined against the issues and the evidence to which he referred, it becomes clear that his reasons were adequate in that they do necessarily reveal implicitly his findings in respect of the objective elements of the issues of provocation, self‑defence and honest and reasonable mistake.
Ground 3 - Failing to have regard to the evidence of the appellant
This ground too must fail. The Magistrate did not reject the "defences" of provocation and self‑defence "… by simply preferring the evidence of the complainant to that of the appellant and failing to have regard to whether the evidence of the appellant might reasonably be true". To the contrary, as I have explained above, he accepted the evidence of the appellant both as to the physical conflict and his own perceptions. The Judge made no error in this regard.
Ground 4 - Evidence of good character
Evidence of the appellant's good character was led at the hearing before the Magistrate. The appellant testified that he had no previous criminal convictions. In cross‑examination, the prosecutor was permitted to cross‑examine the appellant as to the fact that he had been charged with assaulting a public officer, resisting arrest and disorderly conduct (which charges were to be contested by the appellant in a hearing which was then still pending). Defence witness Peter Hayden testified he had known the appellant for approximately 20 years as a friend and in the same industry and, in his dealings with him, he had always been completely honest and open. Mutual friends and co‑workers had never expressed a different opinion. He testified that the appellant's peers within the community perceived him as a friendly, open, easy going, reliable, honest person and that he had "most certainly" never know the appellant to have any tendency towards aggression or violence.
A further defence witness, Ms Seralina Meek, testified she had known the appellant on a business level for 3½ years and that he always seemed to be honest and open in his business dealings.
Another defence witness, Mark Bojanjac gave evidence that he had known the appellant since 1995, initially through business and for the last few years, socially. They spoke to, or saw each other, almost daily. He testified the appellant's peers within the community with whom he dealt have always regarded the appellant very highly. He also testified that his observations of the appellant's honesty and integrity were that he had acted in his business dealings with the upmost honesty and he had never seen any instance of physical violence involving the appellant.
On the appeal to the primary Judge his Honour held that in a case in which a direction must be given (for example a Longman warning in a sexual case) then where the case is being dealt with by a Judge alone, or by a Magistrate, the reasons must reveal that the judicial officer has directed him or herself on that subject. His Honour correctly observed that it is no answer in such a case where the reasons do not disclose any reference to the direction to argue that the judicial officer was experienced and would have known about the law on the subject. However, his Honour went on to point out that the law does not require a good character direction to be given in every case in which such evidence is led. It is a matter for the discretion of the judicial officer (Melbourne v The Queen (1999) 198 CLR 1 at [30]). His Honour went on to say (at [46] ‑ [47]):
"46 The appellant argues that the failure of the Magistrate to refer to the evidence of good character, suggests that the Magistrate may not have appreciated the significance of that evidence as tending to establish the defendant was less likely to have committed the offence with which he was charged.
47I do not consider that the absence of any reference to the character evidence gives rise to that suggestion. Melbourne's case says that the court has a discretion as to whether or not the direction should be given, and the only conclusion that can be drawn from the absence of any reference to the evidence is that the Magistrate decided not to direct himself on that subject."
It is of course entirely correct that a trial Judge (or a Magistrate) retains a discretion as to whether to direct on evidence of good character, an indeed in which particular respect he or she will direct (Melbourne (supra), at [30], [53] ‑ [54], [79], [157]). However, I cannot agree that one could properly conclude the Magistrate here decided not to direct himself on the issue of the appellant's good character. There is obvious merit in the submission made on behalf of the appellant that the failure of the Magistrate to mention the evidence indicates either that he did not appreciate its significance or simply failed to take it into account. It must be right to say, as senior counsel for the appellant does, if the approach taken by his Honour was correct then an omission to mention such evidence could always be justified by a conclusion on review or appeal that it represented a rejection of the significance of the evidence in the proper exercise of judicial discretion, rather than a failure to have any, or proper regard, to it.
In Fleming v The Queen (1998) 197 CLR 250 the High Court enunciated (at [30]) the proposition that unless a judgment shows expressly or by implication that a principle was applied, it should be taken that it was not applied, rather than applied but not recorded. Although dealing with an entirely different statutory context, the proposition is apt here. It must be concluded that his Worship did fail to direct himself on the effect of the evidence as to the appellant's good character, and his Honour erred in concluding otherwise. But that does not mean the appeal must be allowed.
Section 199(1)(b) of the Justices Act 1902 (WA) provides that on an appeal from the decision of a Magistrate, the court may dismiss the appeal notwithstanding that any point raised might be decided in favour of the appellant, if it considers that no substantial miscarriage of justice has occurred (and see Smith v The Queen (1992) 7 WAR 527). That same provision is now embodied in s 14(2) of the Criminal Appeals Act 2004 (WA) (and is applicable to appeals to this Court from the decisions of a single Judge (s 18 ibid)).
In the present case, there was no substantial miscarriage of justice notwithstanding the failure of the Magistrate to take the evidence of good character into account.
Evidence of the previous good character of an accused or defendant is always admissible in a criminal trial (Stewart v The King (1921) 29 CLR 234). Such evidence is relevant in two ways - it goes to the credibility of the defendant and also to his or her propensity to commit the offence charged (Attwood v The Queen (1960) 102 CLR 353; R v Trimboli (1979) 21 SASR 577; Melbourne v The Queen, supra). "Propensity" here means whether or not the defendant was the kind of person to have committed the offence charged (R v Courtney‑Smith (No 2) (1990) 48 A Crim R 49); or whether the evidence as to his character made it less likely that he was guilty of the offence charged (R v Telfer (2004) 142 A Crim R 132, [36]).
Plainly, as the Magistrate accepted the appellant's credibility, the character evidence had nothing further to add in that respect.
Nor was there any potential for the character evidence to advance the appellant's position so far as the question whether he was a person likely to have committed the offence charged was concerned.
If it was accepted he was provoked, or believed he needed to do what he did in self‑defence, or was acting under an honest but mistaken belief about that, the only live issues then were whether a reasonable person would have been so provoked, or acted as he did, or whether the mistake was a reasonable one. Evidence of the accused's good character could not bear in any way on those objective issues.
If his Worship had directed himself on the effect of the evidence of good character, it could have only have been to explain in this way why it did not affect the issues in contest. There was accordingly no substantial miscarriage of justice and the appeal could not be allowed on this ground.
Ground 5 - Duplicity
The appellant had requested particulars of the charge prior to the hearing before the Magistrate. The prosecution declined, but asserted that the whole course of the appellant's conduct encompassed one event. As Pullin J pointed out, the appellant was represented by senior counsel at the trial. No submission was made, nor ruling sought, at the commencement of the trial that the charge was duplicitous. The prosecutor then opened his case, led evidence and closed the prosecution case. At that point, counsel for the appellant submitted the complaint was bad for duplicity because there were different blows constituting separate assaults which may have caused different injuries. The Magistrate rejected the submission, holding that the incident was properly charged as one offence because it was one continuous course of conduct.
The primary Judge also rejected this ground of appeal. He did so on two bases. The first was that duplicity is a pleading point and must be taken at the commencement of the hearing. The second was that the complaint alleged only one continuous assault, and so did not offend s 43 of the Justices Act, which stipulates that a complaint must be for one matter only and not two or more matters (Vrisakis v Australian Securities Commission (1993) 9 WAR 395).
His Honour founded his conclusion on the first basis upon s 590 of the Criminal Code as applied in R v Rippingale (1999) 109 A Crim R 304.
Section 590 stated that any objection to an indictment must be taken before the jury is sworn. By s 593 of the Code, that provision applied also to cases of indictable offences being tried summarily. The offence in this case was an indictable offence being tried summarily. His Honour correctly concluded that the combined effect of these provisions was that any objection to the charge for any defect apparent on its face, had to be taken before the prosecution commenced, and not afterwards. But his Honour erred in concluding that as a result, this ground must fail. The defect alleged here was not apparent on the face of the complaint. What the appellant was asserting was a latent defect. The appellant's submission that the failure to take the objection prior to the prosecution case commencing was not fatal, must be accepted (Walsh v Tattersall (1996) 188 CLR 77 at 109 per Kirby J; Johnson v Miller (1937) 59 CLR 467 per Dixon J at 486 and McTiernan J at 501; S v The Queen (1989) 168 CLR 266 per Brennan J at 269, Dawson J at 274 and Gaudron and McHugh JJ at 285; Stanton v Abernathy (1990) 19 NSWLR 656 per Gleeson CJ at 671). This is conceded by the respondent.
In respect of the second basis for his Honour's decision on this ground, it is submitted that here there were a number of acts which could be said to have constituted assaults, at least two discrete injuries, a live issue of causation of injury and various defences raised by the defendant and that in those circumstances it was erroneous to "roll up" the appellant's conduct into "one continuous incident" justifying a single charge. The submission continues that as a matter of law it is impermissible for the prosecution to lay a single count in circumstances which could lead to the outcome in this case, with the Magistrate finding, as he did, that the initial push may have been a justifiable response to provocative words, that he was left "in some doubt" as to the causation of injuries on the complainant's arm, but nonetheless convicting the appellant of causing the injuries to the complainant's face. That submission does not quite reflect the situation.
His Worship's comments that in the circumstances described by him the statement by the complainant that Ms Allardyce was his girlfriend "could be viewed as provocative" does not necessarily connote a finding that the appellant's initial push may have been a justifiable response to provocative words. But let it be assumed it was such a finding: the Magistrate's remarks on sentence suggest it was. It is patently clear the Magistrate did not find that particular conduct of the appellant to be part of the assault. Nor was he satisfied the bruising to the complainant's arm was caused by any blow from the appellant. It is clear the only blows which his Worship found to constitute the unlawful assault were the three blows to the complainant's face.
It cannot be the law that every single blow (or series of blows) in a continuous assault must be charged as a separate assault. That conclusion does not change because each blow causes a different injury to the victim. It may be that in a particular case, the first blow (which perhaps causes a disabling injury) is justified as being in self‑defence or provocation but immediately succeeding blows causing further injuries are not. That possible outcome does not dictate the charging of them as separate assaults.
The authorities relied upon by the appellant do not lead to any different conclusion.
In Johnson v Miller (supra) a South Australian statute provided that a licensee out of whose premises a person was seen coming on a Sunday except during certain hours was guilty of an offence unless the licensee proved certain matters of exculpation. The appellant was charged by complaint which alleged that on a certain day he was the licensee of certain licensed premises out of whose premises "certain persons were seen coming" on a Sunday. The complaint was subsequently amended to refer to licensed premises out of which "a certain person" was seen coming on a Sunday. At the hearing of a charge before a Magistrate it was made clear by the prosecution that about 30 persons were seen coming out of the relevant premises on the Sunday in question and the prosecution declined to specify which of those persons was the one referred to in the complaint in its amended form. The Magistrate dismissed the complaint. The High Court held that he was correct to do so. Although the charge was laid in the terms of the relevant statute, and although the complaint as amended was not duplicitous on its face, nevertheless the prosecution could not be permitted to lead what might amount to evidence of 30 offences and then make a random selection of one of them upon which the appellant might be convicted. Dixon J described the case as one involving a latent ambiguity in that although ostensibly charging one offence, the evidence led disclosed multiple offences and there was uncertainty as to which was the subject of the charge. Without the prosecution electing a particular instance the conviction was bad for uncertainty. His Honour went on to say that similarly where a charge is so drawn as to disclose on its face more than one offence the proper course is to require the prosecution to elect upon which it intends to rely.
A similar defect was identified by the New South Wales Court of Criminal Appeal in Stanton v Abernathy (supra) in which the charge alleged that on a particular date the appellant:
"… did at a hearing before the State Drug Crime Commission of New South Wales give evidence that was, to [his knowledge] false in certain material particulars."
The particular evidence that was alleged to have been false was not identified in the charge and nor were the "certain material particulars". One major issue on the appeal was the extent to and way in which particulars were subsequently provided by the prosecution. For present purposes it is enough to observe that Gleeson CJ noted that although the charge was not in terms duplicitous it was obvious from the way in which the case had been conducted that the allegation was that the appellant gave a number of pieces of false evidence on separate, although related, subjects in the course of giving testimony on a single occasion. Each separate piece of false evidence was an allegation of a specific offence. The charge not being bad on its face the remedy was to require the prosecution to elect. It seems his Honour would have regarded a conviction in the absence of any election as bad for uncertainty.
A different situation arose in R v Giretti (1986) 24 A Crim R 112 There the applicants were charged with trafficking in heroin between stated dates. The prosecution case was that the applicants had, in the course of running a prostitution service out of a massage parlour, received client monies from the prostitutes to whom in return they supplied heroin. Each charge alleged not a specific act of trafficking but an ongoing trafficking over a period of time. On appeal the applicants argued that trafficking is a separate and distinct act and the charges were therefore duplicitous; they should each have charged a specific act of trafficking between the specified dates. The Victorian Court of Criminal Appeal held that although the definition of the word "traffic" in the relevant legislation referred only to single acts it was an inclusive definition and in its ordinary meaning connoted a continuing activity. What was being alleged by the prosecution was a continuing course of conduct to be proved by reference to specific instances. Crockett J pointed out that where in a single charge one "activity" or "transaction" or "criminal enterprise" is charged it is still the one offence. It is a question of fact and degree whether what is charged is more than one offence. Similar reasoning may be applied to an assault occurring during a period of time but consisting of repeated blows or other applications of force.
In R v F, unreported; CCA SCt of NSW; 28 October 1996 a conviction was quashed even though the appellant had pleaded guilty to knowingly taking part in the supply of prohibited drugs because the single charge alleged the supply of three different types of drugs.
The most recent consideration of the problem of duplicity in charges by the High Court of Australia was in Walsh v Tattersall. The subject of that appeal was a count which charged an offence against s 120(1) of the Workers' Rehabilitation and Compensation Act 1986 (SA). That section read:
"A person who -
(a)obtains by dishonest means any payment or other benefit under this Act;
(b) dishonestly claims to be entitled to a payment or other benefit under or this Act;
or
(c)dishonestly makes a statement in relation to a claim under this Act knowing the statement to be false or misleading,
is guilty of an offence."
The count itself was in the following terms:
"Patrick Walsh between October 1992 and October 1993 did obtain by dishonest means from the Womens and Childrens Hospital ... payments or benefits being:
(i)payments of income maintenance amounting to $21,891.20
and
(ii)payment of medical, rehabilitation and like expenses amounting to $6,789.79
by dishonestly pretending that by reason of the effects of alleged injuries namely anxiety and depression allegedly suffered by him in the course of his employment in July 1991 ... he required and thereby incurred medical and ancillary expenses and was incapacitated for work, whereas he was not so incapacitated."
The appeal was essentially on the ground that the count and the conviction were bad for duplicity. The evidence was that a number of separate payments had been made over the period (for instance the $21,891.20 was made up of nine separate payments). Dawson and Toohey JJ in the minority regarded the gravamen of the count as alleging one offence of a continuing dishonest representation over the period by which a number of payments were received. In that view the activity was of a continuous kind and in that situation it was legitimate to bring a single charge.
Gaudron and Gummow JJ held the count bad and ordered that it and the conviction be quashed. However, in their opinion the appeal turned not upon the question whether in a single count the appellant was charged with more than one offence but on the anterior question whether he was charged with any offence created by s 120(1) of the South Australian Act at all. In their opinion he was not. Having examined the wording of the section in the context of the Act as a whole their Honours concluded (ibid, at 890 ‑ 891):
"The Act taken as a whole, in the manner we have indicated, displays the intention to create an offence in the direct terms used in s 120(1)(a), and not otherwise. A discrete offence is completed upon the receipt of any one payment or benefit, whereas count 1 spoke of 'payments or benefits' which were made under the Act and obtained by dishonest means.
In conclusion, it may be observed that the present case is to be contrasted with those dealing with an offence defined in terms of a course of conduct or state of affairs, such as keeping a disorderly house or being a rogue or vagabond. There, upon proof of a series of material facts, guilt of the offence may follow, although no particular fact suffices by itself."
In short, their Honours saw the issue as depending upon the proper construction of the statutory provision creating the offence. Kirby J took a similar view (ibid, 111 ‑ 112) and because the statute made each dishonest claim and payment a separate offence, saw the situation as one of clear duplicity. His Honour examined the history of and principles governing duplicity in criminal counts, commencing with the following observations (ibid 892):
"In recent years, courts in England have embraced a less stringent approach to complaints about duplicity. They have done so by taking what they have described as a 'practical' or 'commonsense' approach and by rejecting what they have called 'technicalities which have no relevance to modern procedure in criminal prosecutions': Director of Public Prosecutions v Merriman [1973] AC 584 at 607, per Lord Diplock. This approach has gained a degree of support from some academic writers, impatient about the potentiality of the rule against duplicity to afford a technical refuge to an accused person otherwise lacking a case with substantive merit: see for example Glanville Williams, 'The Count System and the Duplicity Rule' [1966] Criminal Law Review 255 at 265. Solhany, 'Duplicity - Is the Rule Still Necessary?' (1964) 6 Criminal Law Quarterly 205 and Hunter, 'Prosecutors' Pleadings and the Rule Against Duplicity' (1980) University of New South Wales Law Journal 248 at 267. The English authorities, and some of the impatience with technicality that lay behind academic criticisms, have lately led a number of Australian courts to depart from the rule of stringency suggested by the old line of authority: see for example Giretti and Giretti (1986) 24 A Crim R 112; Daly v Medwell (1986) 40 SASR 281; R v Locchi (1991) 22 NSWLR 309 and Hamzy (1994) 74 A Crim R 341. In South Australia, the Merriman approach was favoured in Weinel v Fedcheshen (1995) 65 SASR 156. That decision was substantially embraced by the Full Court of the Supreme Court of South Australia in this case (Walsh v Tattersall (unreported, Supreme Court of South Australia, 2 Nov 1995). "
In expounding the principles governing duplicity in criminal counts Kirby J observed that notwithstanding a general retreat from technicality in legal procedure there are special features of criminal law which continue to sustain the requirement for precision and specificity hitherto enforced by the law in Australia, including the High Court. His Honour noted that had more recently been done by that Court, after the House of Lords decision in Merriman, in S v The Queen (supra). In examining instances of apparent artificiality from insisting the rule against duplicity be strictly applied where criminal acts have occurred in close proximity to each other, Kirby J suggested many of the apparently conflicting judicial opinions demonstrated nothing more than attempts by Judges to characterise multiple acts as one transaction or a single criminal enterprise, so as to escape attack on the ground of duplicity. Particular problems arose in respect of offences which, by definition, were constituted by continuous activity. Offences such as keeping a brothel required proof of particular acts at different times. Other conduct which need not, but might, be constituted by activity over time could quite properly be charged in a single count - examples of these were harassment or trafficking in drugs.
As Kirby J saw it, the courts have never managed to articulate a satisfactory formula to apply to the question whether the rule against duplicity has been infringed in a particular case and so a choice of legal principle or policy was therefore presented in the appeal which the Court should resolve (Walsh v Tattersall at 901). As to that his Honour concluded:
"With all respect to those who are of a different view, I cannot agree to any reduction in the strict approach to resolving questions of duplicity in the pleading of criminal charges. A strict approach has been consistently applied by this Court from Johnson v Miller through Iannella v French and up to S v The Queen, the latter having been decided in 1989. Quite apart from the consistent application of the authority of this Court, there are reasons of legal principle or policy which favour the approach of this Court and which resist the approach which has apparently found favour in England and New Zealand." (Footnotes omitted).
As I have observed, one of the reasons then advanced by his Honour was that on the proper construction of s 120 of the South Australian Act it created a separate offence for each payment or benefit. That of course had been the essence of the reasoning of Gaudron and Gummow JJ and was sufficient to determine the appeal. In his reasons for judgment Kirby J concluded:
"As in Johnson v Miller, the present appellant has few merits on his side; except legal merits, which are sufficient. This Court should adhere to its longstanding insistence that, save for statutory warrant and for the exceptional cases of continuing offences or facts so closely related that they amount to the one activity, separate offences should be the subject of separate charges. The Act under which the appellant was charged clearly contemplated that obtaining each payment or benefit was a separate offence. Each should have been the subject of a separate charges. This was apparently the original intention of the police and perhaps of the prosecutor. Unwisely, and in my view unlawfully, it was departed from. That departure resulted in a count which manifested the defect of latent duplicity. " (Footnote omitted) (my emphasis).
Despite a Crown argument in Taylor v The Queen, unreported; CCA SCt of Tas; 19 February 1997 that separate counts of defrauding the Commonwealth by obtaining social security payments by deceit were not necessary where the deceit was constituted by the appellant's ongoing failure to advise the relevant authority of her living arrangements, the Tasmanian Court of Criminal Appeal, applying Walsh v Tattersall, quashed the conviction. The Court recognised the Crown case relied on specific misleading statements made by the appellant in various documents over a period of time. That was not a course of conduct constituting an ongoing failure to advise. Each act of deceit should have been the subject of a separate count.
As Kirby J observed in Walsh, ultimately, what is presented is a question of fact and degree for decision in each case, citing R v Eades (1991) 57 A Crim R 151, 156 - a case in which the applicant was convicted on a single count of drug trafficking based on the location of various packets of prohibited drugs in his house. On appeal it was held that there being no relevant separation in time or circumstance, there was no justification for a submission that there were separate offences which should have been charged in separate counts.
Notwithstanding that the decision in each case will turn upon its own facts, it is instructive to consider how the problem has been resolved in other cases involving assaults.
In R v Xu Dong Chen, unreported; SCt of Qld; 21 October 1997 the appellant appealed against two convictions of assaulting police officers. The police officers had been called to a Chinese medical centre, where they told the appellant to leave. There was an escalating altercation. The appellant pushed Constable "A" hard in the chest. That was one assault. The officers attempted to arrest the appellant. He evaded them. Constable "B" struggled with the appellant during which the appellant grabbed his genitals. That was a second assault. Constable "B" tried to handcuff the appellant who swung the handcuffs around and struck Constable "A" on the nose with them. This was another assault. The appellant spat at Constable "B", hitting him on the cheek. This was an assault. A few seconds later, the appellant spat in Constable "A's" face. That was an assault. Finally, having handcuffed the appellant with the assistance of the occupant of the neighbouring office, the police officers took him downstairs and put him in a police car. While being put in the police car, the appellant again spat on Constable "B". That was an assault. The court said that thus during the one incident, six assaults could be identified and although the whole incident took minutes rather than hours, they were separated in time and were of different kinds. They occurred mainly in the premises, but also on the way to or in the police car.
The court (Davies JA, Shepherdson and White JJ) said at 4:
"There are no doubt cases in which, notwithstanding that offences could be charged separately, it is nevertheless permissible and even appropriate to prefer only one charge. One obvious class of such cases is that where the offence may be constituted by continuing conduct. But also where one act constitutes a number of offences (stealing a number of articles at one time) or where there are a number of similar acts, each constituting a separate offence, but in a short space of time - a flurry of blows, whether with or without a weapon or a succession of shots - there is, in most cases, little practical advantage in separating them and no loss of fairness to an accused in failing to do so". (Footnotes omitted).
Their Honours noted that although the alleged assaults occurred within a short space of time and were part of a connected series of events, they were of different kinds, the evidence with respect to them differed both in quantity and quality and there were defences open to some which arguably were not open to others. The evidence was different in part because various witnesses were coming in and out of the premises and saw different parts of the incident; evidence of some of the witnesses supported the appellant's testimony that his spitting on Constable "B" at the car was in response to being kicked several times in the leg by the Constable.
Referring to Stanton v Abernathy and Walsh v Tattersall, their Honours acknowledged that courts have never managed to produce a technical verbal formula of precise application which constitutes an easy guide and the question will always be one of fact and degree for decision in each case. They concluded that:
"Unlike those cases where events are so close in time and place that they can be viewed as one composite activity, the latent duplicity here, once exposed, left the appellant without knowledge of the particular act alleged as the foundation of the charge resulting thereby in a substantial miscarriage."
Stratis v Police, unreported; SCt of SA; No 6886; 7 October 1998 was an appeal to a single Judge of Supreme Court of South Australia from conviction by a Magistrate of one count of assault occasioning bodily harm. The appellant was a patron in a nightclub. The complainant was another patron. It was the complainant's evidence that the appellant struck him in the chest, causing him to fall backwards onto the floor. The complainant got up and the appellant punched him in the face with a clenched fist. The complainant collapsed to the floor and was dragged away to the toilet by his friends. While he was being carried away, the appellant struck him again. Witnesses gave conflicting accounts. The complainant's girlfriend, for example, said the complainant was first felled by a powerful straight leg kick from the appellant. With respect to a ground of appeal that the charge was bad for duplicity and the conviction bad for uncertainty, Wicks J, after referring to Merriman and Walsh v Tattersall, held (at [31]):
"… the incident which occurred at the nightclub between the bar and the dance floor involving the pushing of [the complainant] followed by one or more punches to the head should be treated as constituting a single act of assault. It would be taking far too technical an approach to the subject to require the prosecution to analyse what occurred blow by blow and to treat each blow as a separate count".
However, his Honour considered the blow to the complainant's head while he was being taken to the toilet was sufficiently removed from the other act or acts of assault to be regarded as a separate incident and to be the subject of a separate count. His Honour concluded (at [38]):
"… this is a case where the allegations relating to the assault near the bar of the dance floor area of the nightclub on the one hand and the assault while on the way to the toilet on the other, should have been particularised so as to distinguish one from the other. I am satisfied that this is an instance of 'latent duplicity' and that on that account, the conviction cannot stand."
Haskett v Police [2005] SASC 174 was another single Judge appeal from a conviction on one count of assault occasioning bodily harm, but in which a different outcome was arrived at. The prosecution case was relevantly that the appellant who had been a passenger in a car, angrily confronted the driver and passenger of another car with which they had nearly collided. He tore up the other driver's licence and threw the pieces on the ground. When the other passenger bent to retrieve them, the appellant hit him in the head several times with a rock. The other passenger fell to the ground. While he was lying there, the appellant kicked him several times. On appeal Doyle CJ rejected a submission the charge was bad for latent duplicity, saying (at [18]):
"… on the evidence all of the alleged blows were struck by Mr Haskett within the space of a few seconds, perhaps within no more than 10 seconds. All of them were part of one course of conduct and constituted what any reasonable person would regard as a single incident. It would be artificial to treat each separate blow and each kick as a separate assault. It would be equally artificial to separate the blows from the kicks. In deciding whether a charge based on several acts occurring in the course of a single incident does give rise to latent duplicity, judgments of degree must be made. It is also relevant to consider whether the approach taken by the Prosecution is likely to be productive of unfairness or uncertainty at the trial. After considering all of these matters, and the relevant principles, I am satisfied that the Prosecutor was entitled to proceed as the Prosecutor proposed. This was, in substance, a single assault."
The present case is entirely distinguishable from R v Morrow and Flynn [1991] 2 Qd R 309, in which the convictions of the applicants were quashed because although they had been jointly indicted on one count of assault causing bodily harm, the evidence disclosed seven possible offences, some alleged to have occurred in a motel room and others in a police station, and at least four of which could not be said to be the same (that is, a single offence in terms of s 567 of the Criminal Code (Qld)).
These cases are illustrative only because they show the application of principle to different circumstances.
In this case there was one continuous assault alleged. It commenced in the hallway when the appellant struck the complainant's arm and grabbed him by the shirt and throat. "Within seconds" they hit the wall and went into the spare bedroom, the appellant still holding onto the complainant. He pushed the complainant up against the bedroom wall, the complainant pushed backwards off the wall and they ended up in the centre of the room, with the complainant partly down, partly bent over. The appellant threw three punches, two of which the complainant avoided and one of which felled Ms Allardyce. The complainant moved backwards but tripped over Ms Allardyce and fell. The appellant grabbed hold of his arm and then punched the complainant three times in the face. All of this happened quickly. It was a continuous event, albeit comprising a number of different acts of the appellant, any one of which had it occurred in isolation, could have constituted an assault. However, that situation was no different in principle to one in which an armed robber takes a number of different items from his victim at gunpoint - the stealing is properly charged as one offence notwithstanding a number of items were alleged to have been taken and even though the prosecution may be able to prove only some of them. Here there was no separation in time or circumstance (as in Stratis), and no intervening event which brought different factual or legal considerations into play (as in Xu Dong Chen). Nor was there any uncertainty of conviction or injustice or unfairness to the appellant, as is shown by the fact that the Magistrate found it was only the three blows to the face which constituted an unlawful assault. That is the basis upon which his Worship sentenced the appellant. He observed (AB 184) that:
"To strike anyone, however, about the head region is a serious offence, where it's not authorised or it's disproportionate to any provocation that might have been displayed to you."
A few moments later he expressed concern at:
"… the ferocity of [the] attack … taking as I do simply the evidence that you acknowledge that you threw 5 blows, 3 of which were struck at this person about the head region, giving rise to the injuries as I found depicted in the photograph"
(That was a reference to a photographic exhibit showing only the injuries to the complainant's head).
The facts upon which the prosecution relied were so closely related in time and place as to comprise a single assault consisting of a number of applications of force, not dissimilar to the situation in Haskett. They were properly charged as one offence. There was no duplicity in the charge, latent or otherwise. The Magistrate and the primary appeal Judge were right to so conclude. This ground must fail.
Conclusion
I would grant the application for leave but dismiss the appeal.
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