Gibbs v Willis
[2013] ACTSC 26
•22 February 2013
TRISTAN GIBBS V BENJAMIN JEFFREY WILLIS
[2013] ACTSC 26 (22 February 2013)
APPEAL AND NEW TRIAL – appeal from Magistrates Court – conviction – offence of assault and sentence – appeal upheld.
CRIMINAL LAW – general matters – criminal liability and capacity – defences – intoxicated self-defence – whether belief held – whether reasonable belief where intoxication.
CRIMINAL LAW – general matters – criminal liability and capacity – defences – self-defence – test for self-defence – whether onus of proof reversed.
Crimes Act 1900 (ACT), s 26
Crimes (Sentencing) Act 2005 (ACT), s 17
Magistrates Court Act 1930 (ACT), ss 208, 216, Div 3.10.2, Pt 3.10
Criminal Code 2002 (ACT), ss 31, 33, 42, 58
Court Procedures Rules 2006 (ACT), rr 5137, 5138
Commonwealth Criminal Code, ss 10.4, 13.3
Criminal Law Officers Committee, Model Criminal Code. Final Report: Chapter 2 General Principles of Criminal Responsibility (Commonwealth, 1993)
Attorney-General’s Department, The Commonwealth Criminal Code. A Guide for Practitioners (Commonwealth Attorney-General’s Department at AIJA, 2002)
Stephen Odgers, Principles of Federal Criminal Law (Lawbook Co, 2nd ed, 2010)
Baker v Thorpe (1985) 62 ACTR 1
Campbell v Fortey (1987) 85 FLR 462
CTM v the Queen (2008) 236 CLR 440
Dal Cortivo v the Queen (2010) 204 A Crim R 55
Fox v Percy (2003) 214 CLR 118
JA v Goldsmith [2004] ACTSC 79
Krewaz v Jordan [2012] ACTSC 84
Lukatela v Birch (2008) 223 FLR 1
Patton v Barratt [2012] ACTSC 190
Police v Lloyd (1998) 72 SASR 271
Powell v Streatham Manor Nursing Home [1935] AC 243
R v Duffy [1967] 1 QB 63
R v Hendy (2008) 191 A Crim R 81
R v Honeysett (1987) 10 NSWLR 638
R v McKay [1957] VR 560
R v Murphy (1985) 4 NSWLR 42
R v Portelli (2004) 148 A Crim R 282
R v Rao (2008) 2 ACTLR 1
R v Walden (1986) 19 A Crim R 444
Société d’Avances Commerciales v Merchants’ Marine Insurance Co [1924] 20 Ll L Rep 140
Theodorelos v Nexus Projects Pty Ltd [2009] ACTSC 149
TM v Karaganos (2011) 250 FLR 366
Warren v Coombes (1979) 142 CLR 531
Zecevic v Director of Public Prosecutions (Vic) (1987) 162 CLR 645
No. SCA 95 of 2008
Judge: Refshauge J
Supreme Court of the ACT
Date: 22 February 2013
IN THE SUPREME COURT OF THE )
) No. SCA 95 of 2008
AUSTRALIAN CAPITAL TERRITORY )
TRISTAN GIBBS
Appellant
v
BENJAMIN JEFFREY WILLIS
Respondent
ORDER
Judge: Refshauge J
Date: 22 February 2013
Place: Canberra
THE COURT ORDERS THAT:
The appeal is upheld.
The conviction entered by the Magistrates Court on 31 October 2008 is quashed.
The sentence imposed by the Magistrates Court on 31 October 2008 is set aside.
A verdict of not guilty of the offence of assaulting Benjamin Starke on 18 April 2008 is entered.
Just after 5:00 am on 18 April 2008 an incident occurred in East Row just along from London Circuit, Canberra City between people who, it appears, had been drinking most of the evening. As a result, Tristan John Gibbs was arrested and charged with assaulting Benjamin Starke, an offence contrary to s 26 of the Crimes Act 1900 (ACT).
He pleaded not guilty and consented to the jurisdiction of the Magistrates Court. The hearing commenced on 9 September 2008 and concluded on 17 October 2008. The Court gave its decision on 31 October 2008 and Mr Gibbs was convicted of the offence.
The learned Magistrate declined to make a non-conviction order under s 17 of the Crimes (Sentencing) Act 2005 (ACT), but released Mr Gibbs after making a good behaviour order with a self-surety in the sum of $500 to be of good behaviour for twelve months. He was also ordered to pay certain court costs and levies.
On 7 November 2008, Mr Gibbs appealed against the conviction, seeking that the conviction and sentence be quashed.
JURISDICTION
Appeals to this Court from the Magistrates Court are provided for by Pt 3.10 of the Magistrates Court Act 1930 (ACT). Appeals in criminal matters are regulated by Div 3.10.2 which, in s 208(1)(b) includes appeals by a person convicted from a conviction for an offence dealt with by the Magistrates Court under the Act where, inter alia, the proceedings are for offences punishable summarily, as was the offence with which Mr Gibbs was charged.
The appeal is by way of a rehearing: Baker v Thorpe (1985) 62 ACTR 1; Campbell v Fortey (1987) 85 FLR 462. In Theodorelos v Nexus Projects Pty Ltd [2009] ACTSC 149, at [78], I described such a rehearing in the following terms:
Appeal by way of rehearing is also one where the appeal court must determine whether the decision of the body from which the appeal is taken is wrong, by that body falling into error of law, making a finding of fact that is clearly wrong or exercising a discretion on a wrong principle or in a way that is clearly wrong. Ordinarily, however, facts found based on the assessment of witnesses will not lightly be overturned. The appeal court usually has power to receive further evidence, though this is ordinarily subject to some restrictions. The appeal court may also draw inferences itself from primary facts found by the body from which the appeal is taken. The decision, however, is not restricted to making the decision that should have been made by the body from which the appeal is taken but in determining it the appeal court must have regard to the circumstances which exist at the time of the appeal and by making its own decision on these circumstances.
In this context, it is necessary to bear in mind what the High Court said in Fox v Percy (2003) 214 CLR 118 at 126-7; [25], where Gleeson CJ, Gummow and Kirby JJ said:
... the appellate court is obliged to conduct a real review of the trial and ... of [the trial] judge’s reasons. Appellate courts are not excused from the task of ‘weighing conflicting evidence and drawing [their] own inferences and conclusions, though [they] should always bear in mind that [they have] neither seen nor heard the witnesses, and should make due allowance in this respect’ (Dearman v Dearman (1908) 7 CLR 549 at 564, citing The Glannibanta (1876) 1 PD 283 at 287).
As Rares J commented in Lukatela v Birch (2008) 223 FLR 1 at 6; [21]:
And, although the appeal is by way of rehearing, the appellate Court does not have a free hand. Only if, after making proper allowance for the advantages of the trial judge, it concludes that an error has been shown, then, the appellate court is authorised and obliged to exercise its appellate duties in accordance with the statute: Fox v Percy (2003) 214 CLR 118 at 127-128 [27] per Gleeson CJ, Gummow and Kirby JJ.
No further evidence was sought to be adduced, so I do not need to consider that aspect.
Section 216 of the Magistrates Court Act stays the conviction and sentence upon the filing of the Notice of Appeal. At the conclusion of the appeal it is sometimes necessary to deal with any matter arising as a consequence of that.
THE APPEAL
Mr Gibbs appealed on the following grounds:
a. The learned magistrate made findings not open to her on the evidence;
b. The learned magistrate applied the wrong test in relation to self-defence;
c. The learned magistrate took into account irrelevant matters;
d. The learned magistrate failed to take into account relevant matters.
e. The learned magistrate applied the wrong test in relation to ss 31 and 33 of the criminal code;
f. The learned magistrate made findings that were so unreasonable in view of the evidence as to bespeak error.
THE HEARING IN THE MAGISTRATE’S COURT
Mr Starke
The complainant, Benjamin Starke, was, unsurprisingly, the first witness. He gave evidence that he had been to a cricket club presentation at a club in Woden on 17 April 2008. The presentation involved dinner and alcohol was served. He said he had about nine schooners of full-strength beer at that club in Woden.
He had then travelled into Civic with some friends, arriving at about midnight. As he had been at the cricket function, he was wearing a brown suit, a white business shirt and business shoes.
Mr Starke and his friends went to a nightclub until about 3:00 am and then to another nightclub, the Mooseheads Bar, where they played pool until about 5:00 am. He said he had about six drinks, each schooners of full strength beer, while at the two nightclubs. He was “jolly but ... coherent ... I had good cognitive ability.”
They left and jogged down London Circuit to go to the Chicken Gourmet.
He said that, as they turned into East Row, they passed two males, namely Mr Gibbs and a friend, Luke Bass, and one of them made a comment to him. He did not say in which direction the males were walking.
He did not recall what the comment was and could not say which of two males made it. He said “What’s your problem?” and slowed to a walk. Then, he said, another comment was made and he stopped. He was approached by the two males and he said “Sorry I missed that, do you have a problem?” or words to that effect.
There was some further conversation, and Mr Starke said that Mr Gibbs said that he was a federal police officer and his friend was a lawyer. There was some more conversation and Mr Starke said he made what he described as a “smart aleck” comment and that Mr Gibbs then hit him in the left cheek, mouth and nose with one closed fist punch. Mr Starke said he staggered a little to his right, then corrected himself and lent forward to avoid bleeding on his clothes.
Three uniformed police officers in the vicinity came up very shortly afterwards and Mr Starke identified Mr Gibbs as the man who had struck him. Mr Starke said that he had not given Mr Gibbs permission to hit him that evening.
In cross-examination, Mr Starke denied that it was “a strange performance” to be jogging in his suit at that hour of the morning. He said he did not know where Chicken Gourmet was; he assumed it closed at 6:00 am and that is why he was jogging. He denied that he was jogging because his judgement was affected by alcohol.
Mr Starke denied that he spoke aggressively to the Mr Gibbs and Mr Bass, but said he felt speaking to them as he did was an “error of judgement”, though, strangely, he said that error was not made because of the effects of intoxication.
He was certain that Mr Gibbs had approached him and said it was from about 20 metres away. He denied walking up to Mr Gibbs and Mr Bass. This was an odd denial in the light of other evidence which showed that he did that. He also denied that there was any pushing and shoving between them before he was hit. He said he did not recall raising his voice. He also said that his friend, Sebastian Ellis, who was standing next to him, did not try to pull him away from the confrontation. He denied that things were escalating.
He further stated that he felt the tone adopted by the males was derogatory and aggressive.
Mr Ellis
Mr Starke’s friend, Mr Ellis, also gave evidence. He substantially confirmed the movements of Mr Starke and himself as recounted by Mr Starke.
He did say, however, that he thought that they were drinking bourbon or martinis or cognac at the first nightclub and that he was relatively certain that they shared a cognac, but added, “I can’t recall what [Mr Starke] was drinking”. He also put the time when they went to the Mooseheads Bar as at about 4:00 am. He confirmed that they played pool.
Mr Ellis confirmed that they left Mooseheads at about 5:00 am and decided to get some food. They were going to Chicken Gourmet near Garema Place. He said “I knew it was late and I remember saying to [Mr Starke], ‘I don’t think it’s going to be open so we’d better run’ so we did a bit of a jog.”
He said that, as they rounded the corner of London Circuit and East Row, they passed two males and something was said; he could not recall what it was. They both continued running but, he said, after about 15 to 20 metres, something else was said and then Mr Starke decided to stop and turn around. He said Mr Starke said something like “What was that mate?” but Mr Ellis kept going, though he saw that the two males and Mr Starke had approached one another.
He appeared to be a bit worried and, although the evidence was not entirely clear, he seemed to have returned to where the three were standing. Mr Ellis noticed that one of the males was wearing a T-shirt identical to one he owned and he said “I’ve got that shirt at home.” In his evidence, he commented “I don’t think they totally appreciated it”.
Mr Ellis said there was “banter” between the males, which he described as “diffused”, leading to him saying he “wasn’t too worried”.
He then said that one of the males, no doubt Mr Gibbs, said “I am a federal cop” and his companion, who was wearing the T-shirt on which he had commented, said, “I am a lawyer”. Mr Starke, however, said that Mr Gibbs had identified Mr Bass as a lawyer.
He said he stepped back a bit and thought that what was happening was a bit “weird” and, in a short space of time, Mr Starke was hit by Mr Gibbs. He described it as “a very good hit” and that it knocked Mr Starke back. He said “I didn’t even have time to respond that much because the police turned up almost instantaneously”. He agreed that the punch “came out of the blue”. He also said that the hit was “a good hit ... [Mr Starke] was bleeding profusely from his nose and he created a little pile of blood”.
Under cross-examination, he confirmed that earlier in the evening he and Mr Starke had been drinking full-strength beer, but, at the first nightclub in Civic, he was drinking Bourbon and cola in a “shout” with Mr Starke. He did say that he could not recall exactly what Mr Starke was buying or what drinks he bought for Mr Starke, but he could remember that they had a cognac together: “that was pretty significant, it’s not a normal drink for me”. He also recalled that Mr Starke had at least one martini, though he thought that Mr Starke was more likely drinking Bourbon and cola. He repeated later that Mr Starke had at least a cognac and martini. This contrasts with the evidence of Mr Starke that he was drinking beer, not spirits.
He said that, at the Mooseheads Bar, he only had one drink and that he thought, though he could not remember, that Mr Starke only had one drink there, as they were not there for very long. Mr Ellis accepted that he was affected by alcohol, but said the amount he had did not affected his judgement.
He said he first saw the two males, Mr Gibbs and Mr Bass, walking in the same direction as he and Mr Starke were walking along London Circuit about to turn into East Row. He and Mr Starke were jogging. He said that he and Mr Starke passed the two as they rounded the corner; indeed, he said that he jogged past on one side and Mr Starke jogged past on the other side of them.
He denied that Mr Starke said “Do you have a problem?”, despite Mr Starke’s evidence. He suggested instead that Mr Starke had said “Whatever”. He confirmed that there was a second “outcry” from the two males they had passed, and that was when Mr Starke stopped and said “What was that mate?”. He denied that Mr Starke then said “Do you have a problem?”, agreeing that such a statement is “an aggressive question”.
Mr Ellis said that Mr Starke, Mr Gibbs and Mr Bass “met in the middle”, agreeing that both Mr Starke, and Mr Gibbs and Mr Bass had moved towards each other. He denied that the two had not approached Mr Starke. A little later, he walked back to where the three were but did not hear the initial conversation. He thought that when the three met, they were about a metre apart. He said that the three had been speaking before he said anything himself, and agreed it was possible there was conversation between Mr Starke and Mr Bass; he said there was tension but that the conversation was not heated. He also said there was what he described as “one-liners” rather than conversation.
He denied that he tried to lead Mr Starke away, saying that he did not consider that it was a “heated situation”. He denied that there was any pushing and shoving between them. He accepted that he may have said “Come on, don’t worry about it, let’s go and get some chicken”. This, it seems to me, is a significant comment as it implies that Mr Starke was at least serious, if not aggressive, about what had been said and was “worrying” about it.
He also agreed, consistently with that interpretation of his comment, that he thought the situation that he saw when he walked up to where the three males were was a “dangerous situation”. He did not recall Mr Starke responding “that’s unfortunate” to Mr Bass, when, he says, he identified himself as a lawyer.
He said that he had not discussed his witness statement, or Mr Starke’s witness statement, with Mr Starke; indeed, he thought they probably had not seen each other since the incident.
There was some brief re-examination in which Mr Ellis said that Mr Starke had walked about five to ten metres to where he met the two males.
Mr Newcombe
Mr Alen Newcombe, a security officer, was next called as a witness. He and his girlfriend were in Civic, visiting some night clubs over a period of about six hours during which he had 13 to 15 drinks. At one stage, he was in the Mooseheads Bar and he saw two men in suits. He described one as wearing a good quality suit with charcoal pants, a charcoal black jacket and white business shirt. The other was wearing charcoal pants, a good quality business shirt and good quality shoes. It appears that these people were Mr Starke and Mr Ellis respectively, though the colour of the suits does not match the evidence of Mr Starke.
Mr Newcombe and his girlfriend left the Mooseheads Bar at about 5:00 am and went to another nightclub, where they stayed for about 15 minutes. Mr Newcombe said they then went to the Civic Bus Interchange in East Row, where they sat down waiting for a bus.
They saw two males walking down East Row away from London Circuit. He did not know them, but it was clear on the evidence that they were Mr Starke and Mr Ellis. He noticed two males, again clearly on the evidence Mr Gibbs and Mr Bass, walking behind them and then saw that Mr Starke and Mr Ellis “stopped in their tracks”. He did not hear anything but saw that they turned to face Mr Gibbs and Mr Bass. One of the other two males he identified as Mr Gibbs.
He said that Mr Starke and Mr Ellis walked towards Mr Gibbs and his companion, and that, when they reached them, there was a conversation between them, which lasted “approximately five to seven minutes”. He heard the words “You’re a fucking ...” said by Mr Gibbs or Mr Bass, he thought, and then Mr Gibbs “threw a punch at” Mr Starke. He did not see where it connected, but saw Mr Starke holding his right cheek. He said that Mr Ellis then intervened. He described Mr Starke as “provoked in more ways than one” by Mr Gibbs. Shortly after that, police arrived.
Mr Newcombe said that the conversation between the four seemed “a cool conversation at first which turned heated as [Mr Gibbs] took an aggressive stance and [Mr Starke] took a defensive stance”. He could not hear what was then being said up to that time, but described the conversation “as if they must’ve known each other or ... they could’ve been friends.”
In cross-examination, Mr Newcombe said that nothing had drawn his attention to Mr Starke or Mr Ellis in the Mooseheads Bar, but that he saw them again in East Row. Contrary to the evidence of both Mr Starke and Mr Ellis, he denied that they were jogging, saying that they were walking. He was sure they were walking slowly. This is contrary to the evidence of Mr Starke and Mr Ellis and it is difficult to see how, if they were walking slowly, they could have passed Mr Gibbs and Mr Bass,
He said that the 15 drinks he had had, vodka with raspberry cola, had affected him “a little bit”, but that it did not affect his judgment or state of mind, or his ability to observe. That is somewhat difficult to accept.
He described what happened as follows:
And then what happens when [Mr Gibbs and Mr Bass] were outside Shooters? [Mr Gibbs and Mr Bass] obviously called out to [Mr Starke and Mr Ellis] because [Mr Starke and Mr Ellis] stopped and turned around.
How far away were [Mr Starke and Mr Ellis] from [Mr Gibbs and Mr Bass] when they stopped and turned around? Approximately two metres.
Sorry? Approximately 2-3 metres.
Two to three metres. And then [Mr Starke and Mr Ellis] walked backed did they to where [Mr Gibbs and Mr Bass] were? Yes.
Didn’t jog back? No
There wasn’t at least five metres between [Mr Starke and Mr Ellis]? No sir.
Male one didn’t walk back by himself to where [Mr Gibbs and Mr Bass] were? No sir.
Are you sure of that? Yes.
And so that they both walked back together? Yes.
Mr Newcombe said he could see the lips of the males, but could not hear what was said, apart from the three words referred to earlier (at [44]). He said Mr Gibbs initiated the conversation, and Mr Starke and Mr Ellis “chimed in”. He denied that there was any pushing or shoving. He said that, after the punch was thrown, Mr Ellis had stepped between Mr Starke and Mr Gibbs, keeping them from each other.
He thought that Mr Starke and Mr Ellis had had “a good night” and did not seem to be having any problems with anyone. He did think, however, that, after the two groups met and at the end of the seven minute conversation, it seemed “inevitable that there’d be a fight.” He was certain that Mr Gibbs was the aggressive one and that Mr Starke was not. He did not recall Mr Ellis intervening to take Mr Starke away before Mr Gibbs “got him”.
Sergeant Willis
Sergeant Benjamin Willis next gave evidence. He was on duty from 8:00 pm on 17 April to 6:00 am on 18 April 2008. He received a call and went to East Row at about 5:25 am. He spoke to Constable Graham Cooper and then to Mr Gibbs. He formed the view that Mr Gibbs had drunk alcohol and was moderately affected. Although his face was slightly flushed, his eyes slightly bloodshot and his speech slightly slurred, his stance was good and his ability to understand instructions was good. Mr Gibbs said to him that he wished to participate in an interview with police, and that he understood the questions he was being asked.
Sergeant Willis initially recorded some brief conversation with Mr Gibbs at East Row in which Mr Gibbs described his level of sobriety as “moderate” – that he did not wish to call a lawyer and that he understood the questions he was being asked. Sergeant Willis also took some photographs of Mr Gibbs and his hands, and these were tendered. He noted a small abrasion to Mr Gibbs’ pinky finger on his right hand.
A formal interview was conducted shortly after that at the police station.
In his interview, Mr Gibbs said he had started drinking at about 8:30 pm on 17 April 2008 and had consumed about 20 drinks. He said:
In my own words, we were leaving Mooseheads, which on East Row on London Circuit, we came there – we were confronted by a person in question – I’m not sure what his name is, I haven’t met him before – and he made threats against me and the person I was with, which was Luke BASS. He’s made threats against him. Luke BASS has retaliated towards those threats. I’ve tried to intervene and tried to restrain the person in question and then police showed up on East Row and that’s about as far as it went.
He said he had spent about three to four hours at the Mooseheads Bar and drank alcohol there, probably about ten standard drinks.
He said he had earlier seen Mr Starke and Mr Ellis earlier outside the Mooseheads Bar, though he did not know them. At one stage, he had gone outside with Mr Bass to smoke. He did not know if they exchanged words with Mr Bass. He thought the others were probably also having cigarettes.
He said that when they left the Mooseheads Bar, they were going to get a taxi. They were then confronted by Mr Starke and Mr Ellis. They exchanged words and he took the words as a threat in the way Mr Starke was talking to Mr Bass. He said Mr Starke seemed “very confronting. He was up in Luke’s face, like very close between ten and fifteen centimetres away from him”. He was speaking in a loud tone. He denied that he or Mr Bass made any threats to Mr Starke or Mr Ellis. He then continued:
Q85So you’ve stated when those threats were made to [Mr Bass], [Mr Bass] retaliated. Can you tell me more about that?
A84They had a discussion – I think the discussion went for between two to three minutes – both of them were very abrupt. They were both in each other’s faces. After that the blokes made, I believe, threats towards, [Mr Bass] that happened. I can’t remember what those threats were – began – and then [Mr Bass]’s retaliated by being very abrupt. He started yelling at this bloke. This bloke’s pushed him. [Mr Bass]’s retaliated by hitting this bloke in the head. I can’t remember how many times. As it were, I’ve tried to jump in. I’ve tried to restrain the other person because his friend started coming towards us. So I’ve grabbed that bloke in, pretty much, a bear hug so tried to wrap his [sic] arms around him and tried to take him down to the ground. It didn’t particularly work. It was a bit of a struggle, and then at that time, police had arrived by coming southward down – I think it was East Row – so they’ve come from Shooters towards us and then, at that time, police have jumped out of the car and then pretty much it stopped because there they were.
Q86You said you thought that, [Mr Bass], might have struck one of the other gentlemen?
A85Yeah.
Q87Can you describe how that happened to him?
Q86I think they were making threats towards each other, I can’t quite say, it all happened really, really fast and, at the time, I was rather intoxicated. So I can’t be overly sure, but I think, [Mr Bass]’s hit the bloke twice and then I’ve rushed in and tried to restrain the other fellow.
Q88Before [Mr Bass] hit the other bloke, did the other bloke shape up to [Mr Bass] at all?
A87Well, the conversation they were having seemed fairly aggressive. They were both in each other’s faces. They were both saying something – I can’t remember what they were saying to each other. But that’s the way it seemed like to me, it seemed very aggressive between both parties.
Q89What led it to the point, in your mind, where you thought that you need to restrain the other gentleman and not, [Mr Bass]?
A88Well, I know, [Mr Bass] – and if I was restraining the other person – it wouldn’t seem like [Mr Bass] would keep on aggravating the situation. As far as I could see, the other person was aggravating the situation because we just wanted to the cab line. I was quite content on going home, because he was coming home with me at the time, so we were going to share a cab ride. We just wanted to get that cab ride and he was the one that approached us coming north from East Row, so it seemed like he was the more aggressive, yeah.
[emphasis added]
He admitted that he hit Mr Starke, saying that Mr Starke had kept struggling and he struck him probably in the jaw with his right hand to get him on the ground. He denied making any provocative remarks during the altercation.
Mr Gibbs said he believed he was in a fight and that the other parties were “willing combatants” because they had threatened Mr Bass.
He said that he felt he had a lawful right to strike Mr Starke because it was necessary to stop the fighting; he was trying to break up a fight between two people.
He said that he could not have removed himself from the situation “Because, at the moment, or, at the time, the fight was progressing, so if I tried to remove myself from the situation, the fight would have progressed on.”
He also said that, as the altercation between Mr Bass and Mr Starke was developing,
I was getting fairly nervous because of the position that [Mr Bass] was in because he’s my friend, he seemed like he was in danger because he was getting heated and, basically, from that it just kept on escalating.
Further photographs of Mr Starke and what appeared to be drops of blood on the footpath were tendered.
Constable O’Neill
Constable Aaron O’Neill was next called to give evidence. He said that at 5:30 am on 18 April 2008 he was on routine patrol with other officers, including Constable Louise Hawke, in a marked police caged vehicle in East Row. His attention was drawn by Constable Hawke to some men on the footpath in East Row. There were no other people near them and he got out of his vehicle and went over to the men. He saw there were two groups of two males. He saw that one male had blood on his face from his nose and he was holding his hand up to his nose.
Another constable spoke to Mr Gibbs and Constable O’Neill heard him say that he was a police officer and that he admitted that he had hit Mr Starke.
In cross-examination, Constable O’Neill said that when he saw the four men, they were in a “heated verbal altercation” and from his experience it was clear to him that there was about to be a fight. He said that Mr Gibbs said to him:
We had an altercation with two males – wanted to kick my arse – threats a second time, then I hit the bloke in the head. I was identified as a police officer.
Constable Hawke
Constable Louise Hawke was then called. She said that she and Constable O’Neill were driving down East Row at about 5:10 am on 18 April 2008 when she saw four men on the pavement and that “it appears like there was an altercation taking place”. She told Constable O’Neill that it was “something that we need to go look at”, though there were no punches thrown or anything like that at that stage.
She said that, as they were driving, they got to within 20 metres of the group and she saw one of the males throw a punch after he took a couple of steps. She identified the man who threw the punch as Mr Gibbs and the person punched as Mr Starke.
In cross-examination, she said that the males were not as close to each other as 15-20 centimetres, but that they were “close enough that ... it was obvious they were having a heated conversation”. She also said that she saw pushing and shoving, and a punch thrown, and said to Constable O’Neill, “I think there’s a fight”. She said that from her experience, it was obvious, after observing the heated discussion and the pushing and shoving, that a fight was so likely that she and Constable O’Neill should attend.
Mr Bass
Mr Luke Bass next gave evidence. He told the court that at about 9:30 pm he went to the Uni Pub in Civic with one of the friends of his sister. He stayed there playing pool, and drinking about 17 midis of light beer. He said that at about 11:30 pm he walked into another nightclub at the centre of Civic where he had a vodka drink, and then went to find his sister to get a lift home. He went to another nightclub where he had a couple of drinks.
He said that, at about 2:30 am, he received a text message from Mr Gibbs to meet him at another nightclub. He bought a slice of pizza in front of that nightclub and was about to leave when Mr Gibbs arrived with two other people. They all entered the nightclub and the two people left them. Mr Bass said that Mr Gibbs and Mr Bass then went into the smoking room to speak to another man.
Mr Bass stayed at the club until it closed and then went to the Mooseheads Bar at about 4:30 am. He had three drinks of rum and left Mooseheads. He walked along London Circuit and turned into East Row. He was, at the time, yelling randomly, perhaps loudly singing a song about chicken.
Mr Bass did not say anything about whether Mr Gibbs was with him since they had been at the earlier nightclub together. It appears, however, that he was with Mr Gibbs at the Mooseheads Bar and that they left together.
Mr Bass said that, as he and Mr Gibbs were walking down East Row, two men approached them asking if Mr Bass had been yelling at them. Mr Bass said he had not. He said:
We said no and they were, like, very close, they were in our face, like standing toe to toe and I knew that they were not happy so I told them I was a lawyer.
You what? I told them I was a lawyer and that ...
He then said that “we began pushing each other”, standing “toe to toe”. He said that he “wanted to get away. I wanted to get past”. He also said that he wanted to “hit him”, though it was not clear to which of the other two persons he was referring. He said, however, he did not punch anyone. He said that the taller of the two other men came between him and that man’s companion, apparently Mr Starke. He was correct that Mr Ellis was taller than Mr Starke. He saw Mr Starke a little time later and he was holding his face.
Mr Bass apparently told police when he made a statement that he saw some blood but did not know if it was coming from his nose or mouth, but, when giving evidence, he did not remember that. He recalled Mr Starke yelling “You’re fucked, you’re fucked”. He said the whole episode took between 5 and 10 minutes.
In cross-examination, Mr Bass said that he was frightened of Mr Starke and Mr Ellis. He said they were bigger than he was and he felt threatened by them, regarding them as aggressive. In his evidence, Mr Starke said that he was 6'1" and Mr Ellis said he was 6'3". Mr Bass did recall Mr Ellis trying to pull Mr Starke away from the altercation. He believed that Mr Starke had pushed him first. He said that Mr Gibbs was standing next to him, trying to calm him down.
It appears that Mr Bass had at least 23 drinks, possibly even 24 or 25, that evening. He was obviously clearly affected by alcohol.
Mr Gibbs
Mr Gibbs gave evidence. He was, of course, not obliged to do so, and his evidence is to be treated in the same way as the evidence of any other witness.
Mr Gibbs said he was a member of the Australian Federal Police. He remembered being out drinking on 17 April 2008. His first memory of Mr Starke was when he was walking along East Row, about 100 metres from the corner of East Row and London Circuit. He recalls that Mr Starke and Mr Ellis were coming towards him.
He recalled a conversation between Mr Starke and Mr Bass where they were both talking in a loud and heated manner and there was some pushing and shoving. He said it seemed as if violence was imminent between the two of them. He confirmed that he told Constable O’Neill, “We had an altercation with two males, they wanted to kick my arse, there were threats a second time, then I hit the bloke in the head and I was identified as a police officer”.
In his police interview, which was recorded, he was asked at great length as to what occurred. He was obviously affected to some degree by the amount of alcohol he had consumed, but he said that he did his best to recall what had occurred.
In his oral evidence, he said he could not recall the words used in the altercation but that they were “very loud”; Mr Starke “was yelling at us and he was very close to us at the time”. He said that Mr Starke was “getting in our personal space, and at the time I had fear for our safety and felt very threatened.”
He confirmed his admission that he hit Mr Starke, and said he did so because he felt “very threatened”. He said he had fears for Mr Bass’s safety as well as his own and he thought it the most appropriate action to stop the altercation, and prevent Mr Bass from being hurt. He confirmed what he said in the interview that he believed his action “was the most necessary reason [sic] to stop them from fighting, I believed it was going to stop the situation.”
In cross-examination, it was put to Mr Gibbs that he gave three different versions of the incident on the morning of 18 April 2008 in the formal interview with police. The first version was at answer no 43, set out above (at [54]). It was pointed out that there was no mention there of a punch.
The second version was at answer no 84 also set out above (at [57]). It was pointed out that Mr Bass was here the main aggressor, though Mr Gibbs suggested it had started earlier, that they both felt threatened and that was when physical contact started.
The third version was at answer 90 as follows:
Did you strike the other gentleman at all?
A90Yes, at the time I was trying to restrain him, he kept struggling. So I struck the other gentleman with my right hand and then tried to get him on the ground.
Mr Gibbs admitted that his memory of the events was impaired, even at the time of the interview.
He later said:
A93Well, from the way he was flaying his arms I could only really bear-hug him or try to get him to the ground.
Given that earlier (at [57] above) he had said he did “bear-hug” Mr Starke, but more recently, (at [87] above) he was saying he tried to get him to the ground, there seemed to be some inconsistency. However, he did later confirm that he tried to put Mr Starke into a bear hug, but that did not work, so he punched him to get him to the ground.
He said, however, that his honest belief was that the best way to get him to the ground was by punching him. He said he was intoxicated, and that at the time it was his honest belief that what he did was the most appropriate action.
He also agreed that if he was sober and his judgment was not affected, he would not punch someone. He admitted he made a wrong judgment, which he regretted, but that it was his honest belief that it was appropriate at the time. He could not say whether, if he was sober, he would have punched Mr Starke.
There was some cross-examination as to who was the aggressor. It seemed to me, however, that it became unhelpful. It was clear that Mr Gibbs was saying that Mr Starke, by coming up to Mr Bass and Mr Gibbs in an aggressive way and making threats, was the aggressor. The prosecutor, however, was focussing on a particular point in the altercation where Mr Starke was pushing Mr Bass, and Mr Bass, it seemed was suggested, punched Mr Starke, implying that this made Mr Bass the aggressor. I think the prosecutor was incorrect to approach it in this way because a wider view had, in fairness, to be taken of the whole incident rather than a small part of it, though that could become relevant.
Her Honour then made quite a curious comment, which seemed to confuse what Mr Gibbs may have remembered at the time of the altercation and at the time when he gave evidence. She is recorded as having said:
HER HONOUR: But he doesn’t remember what the threat was and it’s really important, I would think, if you feel that somebody is a threat to you, before you can make the judgement as to who’s the aggressor and who’s not the aggressor, there has to be some recollection of what the threat it.
Now, if you can’t remember what the threat was and you’re saying that your friend wasn’t the aggressor, I mean, it’s just a question of flushing it out. So, you don’t believe that your friend [Mr Bass] was the aggressor? No, I do not.
Mr Gibbs reaffirmed that he thought that Mr Bass punched Mr Starke twice in the head, and that Mr Starke was pushing Mr Bass, though not hanging on to him.
He said also that until the incident stopped, he and Mr Starke were still struggling, and affirmed his answer to police that he and Mr Starke “kept struggling on until the police arrived”. He explained that once the police arrived the situation “defused”. He said that when the police arrived, Mr Starke walked away with his hands up to his face, blood coming out of his nose, and took no further part in the struggle.
In re-examination, he affirmed also his answer that he was getting “fairly nervous because of the position that [Mr Bass] was in, because he’s my friend, he seemed like he was in danger because he was getting threatened”.
Ms Brooks
The final witness was Ms Ashley Brooks. She was a real estate property manager and Mr Gibbs was her boyfriend.
She said she had been with Mr Gibbs on many occasions when he had drunk alcohol and when he was “at various stages of intoxication”. She said that, on these occasions “[h]e gets slightly louder than normal and funny” but “never” acts aggressively. She said that normally he was quite timid, a shy person and quiet.
It was put to her that as her boyfriend, Mr Gibbs would be on his best behaviour when he went out with her. She said that “he’s pretty comfortable with me now, he doesn’t need to be” but she agreed that when out with a partner, people try to behave themselves.
THE DECISION IN THE MAGISTRATE’S COURT
The learned Magistrate set out a brief summary of the evidence of the witnesses. I do not need to set out what her Honour recounted. It was not challenged by Mr F J Purnell SC, counsel for the appellant, save in one relevant aspect.
Her Honour said:
[Mr Gibbs] admitted his judgement was affected by alcohol, but said despite being heavily intoxicated, he had an honest belief that what he had done was lawful.
As Mr Purnell noted, the evidence uniformly pointed to Mr Gibbs not being “heavily intoxicated” but, at best, being moderately affected. He had certainly drunk something in excess of twenty standard drinks, but that was over nine hours. He described himself as moderately affected by alcohol. Sergeant Willis described him also as “moderately affected by intoxicating liquor” and his description of the symptoms or signs of that were consistent with conclusion. Further, he was, about an hour after the incident, interviewed by police for about half-an-hour and gave clear and intelligible answers to the questions asked.
I am satisfied that her Honour’s assessment of the sobriety of Mr Gibbs was incorrect.
Her Honour then addressed the issues that had been raised. The first issue was the reliability of the witnesses. Her Honour said that Mr Purnell raised issues relating to the reliability of the evidence of witnesses and the problem of intoxication, noting that the police officers, especially Constables O’Neill and Hawke, were the most reliable witnesses. Mr Purnell denied that, but I do not need to make any finding on this.
Her Honour noted that the submission was that, on what Mr Gibbs told police, he had an honest and reasonable, if perhaps mistaken, view that he had to do what he did in self-defence, and specifically, in defence of Mr Bass. Her Honour further noted the submission of Mr J Mawson, counsel for the prosecution, that the common law test for self-defence, combined with s 33 of the Criminal Code 2002 (ACT), was, in this case, “not made out.” That phrase used by her Honour is a little troubling, for the defence has no obligation of legal proof in relation to self-defence. As Wilson, Dawson and Toohey JJ said in Zecevic v Director of Public Prosecutions (Vic) (1987) 162 CLR 645 (Zecevic) at 657:
it has been clearly established that once the evidence discloses the possibility that the fatal act was done in self-defence, a burden falls on the prosecution to disprove that fact, that is to say, to prove beyond reasonable doubt that the fatal act was not done in self-defence.
It is clear, indeed, that there is not even an evidential burden on an accused person to raise the issue: Police v Lloyd (1998) 72 SASR 271 at 275.
Her Honour noted the submission of Mr Mawson that Mr Gibbs and Mr Bass were the aggressors, and that the defences of consent, and honest and reasonable but mistaken belief, must fail.
Her Honour then made reference to cases to which she had been referred: to Zecevic; to R v Rao (2008) 2 ACTLR 1, a recent ACT decision in which that decision was applied; to R v Portelli (2004) 148 A Crim R 282, a decision of the Victorian Court of Appeal which considered the question of self defence in the context of defence of another; and to CTM v the Queen (2008) 236 CLR 440, a more recent decision of the High Court on the question of an honest and reasonable, but mistaken, belief as to whether action is necessary.
Her Honour then referred to s 33(3) of the Criminal Code which provides:
If any part of a defence is based on a reasonable belief, in deciding whether the reasonable belief exists, regard must be had to the standard of a reasonable person who is not intoxicated.
Her Honour also noted Mr Mawson’s reference to R v Duffy [1967] 1 QB 63 which, her Honour said, held that the use of excessive force without justification or excuse to defend oneself or rescue another would not support “a plea of self-defence”. Again, the use of the term “plea” is troubling, as it seems to imply an onus on Mr Gibbs in respect of self-defence and, of course, this is not the law.
Her Honour, however, did correctly say that once the issue of self-defence is raised, the prosecution must prove beyond reasonable doubt that Mr Gibbs was not acting in self-defence, and referred to the test in Zecevic articulated by her Honour, with respect quite correctly, namely in her Honour’s words: “Did the defendant believe on reasonable grounds that it was necessary in self-defence to do what he did and were there reasonable grounds for that belief?” See Zecevic at 661.
That case, of course, was concerned with a charge of murder and a threat of lethal force. The view that an attack sufficient to justify a response by way of self-defence does not need to be such as is thought by the accused to cause death or serious bodily injury was rejected in R v Honeysett (1987) 10 NSWLR 638 at 644. There, it was held that any threat can be considered but will, of course, raise the issue of whether the response is proportionate. See also R v McKay [1957] VR 560 at 562; R vWalden (1986) 19 A Crim R 444 at 446.
However, her Honour then paraphrased the relevant test in the following terms: “In other words, the defendant’s resort to force and the amount of force must be subjectively and objectively reasonable.”
Her Honour noted that all the witnesses, apart from those police on duty (and, of course, the character witness for Mr Gibbs), were intoxicated and that this had affected their recall of the events. Her Honour also noted that the only independent witness, apart from the police, was Mr Newcombe.
The learned Magistrate referred to discrepancies in the evidence. Unfortunately, however, her Honour did not make a finding as to who had approached whom: if it was Mr Starke approaching Mr Gibbs and Mr Bass, or the other way round. That is a pity, because it seemed to me to be an important issue in the case.
Her Honour continued:
It’s not clear who, between Mr Starke and Mr Bass pushed or shoved the other first. Mr Starke denied any physical contact between him and Mr Bass, as did Mr Ellis, and Mr Bass could not remember.
Her Honour also could not conclude “whether or not Mr Ellis intervened at any stage” nor “whether or not Mr Bass threw any punches at Mr Starke”. Her Honour did, however, say:
On the other hand, the following evidence is clear. Mr Starke and Mr Ellis stopped on East Row because of something that was said or yelled by Mr Bass. Mr Starke was punched with force in the face by the defendant. Mr Starke did not touch the defendant in any way, either before or after he was struck. Mr Starke did not strike Mr Bass.
Her Honour noted that Mr Gibbs could not recall “what threats were made”. Strictly, that is true so far as the interview with police at the police station is concerned, but at the time he was first spoken to in East Row by police, Constable O’Neill said that Mr Gibbs told him: “We had an altercation with two males – wanted to kick my arse – threats a second time, then I hit the bloke in the head.”
Her Honour made no reference to this evidence. Her Honour found that there was “no confrontation” between Mr Gibbs and Mr Starke before Mr Gibbs punched him.
Her Honour also found that the interview at the police station “shows that [Mr Gibbs] had a very poor recollection of events”, finding his answers “contradictory and confused”. Her Honour also referred to the speculation by Mr Gibbs that Mr Bass may have hit Mr Starke, possibly twice.
The learned Magistrate referred to Mr Gibbs saying in the interview that he was nervous of the position Mr Bass was in, that the interaction was becoming heated and then found:
In short, the evidence is that [Mr Gibbs], in an unprovoked act of aggression, punched Mr Starke in the face. If as he appeared to be claiming, he felt threatened but cannot remember why, he simply could have left the scene and taken his heated, aggressive friend with him. He did not. Rather, he threw a punch against a person who was no threat to him whatsoever.
Her Honour rejected the claims that Mr Gibbs felt threatened noting that he had said in his interview that “he did not fear for himself”. Her Honour also rejected the claim that he was defending Mr Bass when, on his version, Mr Bass struck first and Mr Starke did not strike anyone. Her Honour also found Mr Gibbs not to be credible and Mr Bass to be “a most unimpressive witness”. She commented on the reasons why she made that finding in relation to Mr Bass but not explicitly in relation to Mr Gibbs, apart from what her Honour had earlier said in respect of the interview and other evidence.
Her Honour then held:
The prosecution has discharged its burden of proof beyond a reasonable doubt and the defence of self-defence fails. Regarding the defence of honest and reasonable but mistaken belief, the test to be applied is that contained in the relevant provisions of the Criminal Code, which deal with intoxication. Applying the test in Section 33(3) I am satisfied beyond a reasonable doubt that a reasonable person who was not intoxicated would not hold the reasonable belief that the assault was necessary for his or her self-defence in the circumstances.[emphasis added]
On the issue of consent, I find that there was no fight because Mr Starke at no time was a combatant. Now, Mr Purnell made a valiant effort to defend Mr Gibbs in almost all conceivable ways. However, he had little to work with as the facts, the evidence and the law were all against him. So I’m satisfied beyond a reasonable doubt that the defendant committed the offence and I find the offence proved.
Again, it seems to me that the articulation of her Honour in the first paragraph quoted above at [123] is problematic. To say that the “defence of self-defence fails” is so close to saying that the defence bears an onus as to risk a serious error in the determination of the issue. To reverse the onus of proof is so easy in trying to articulate issues surrounding self-defence that it is particularly important to take care when addressing the relevant issues. This comment must also be taken in the context of the earlier comments about which I had expressed concern above (at [105] and [110]).
THE APPEAL SUBMISSIONS: THE APPELLANT
Mr Purnell appeared for Mr Gibbs on the appeal.
Regrettably, he had not prepared the submissions required under rr 5137 and 5138 of the Court Procedures Rules 2006 (ACT). I have referred elsewhere to the desirability of compliance with these rules and the rationale for that: TM v Karaganos (2011) 250 FLR 366 at 368; [8]; Krewaz v Jordan [2012] ACTSC 84 at [38]-[40]. As Penfold J noted, the court will facilitate the process if there are genuine difficulties in the preparation of them on time because of their value: Patton v Barratt [2012] ACTSC 190 at [12]-[13].
Mr Purnell, however, analysed the evidence carefully and addressed various passages of the transcript in respect of various witnesses. He submitted that her Honour had made errors in the findings of fact or failed to make findings that should have been made.
It is convenient that I consider these matters at this stage. Mr Purnell submitted that, on a review of the evidence, I should find:
(1) Mr Starke said, twice, to Mr Bass, “Do you have a problem?”. Mr Starke, on his own evidence, said this even though Mr Ellis did not recall those words being used. I see no reason not to accept Mr Starke’s evidence. I accept that this is so. I note that Mr Ellis initially agreed that such a phrase was “in itself an aggressive question”, though he later modified that is to say “it depends on the individual circumstances”.
(2) Mr Starke actually walked back to where Mr Gibbs and Mr Bass were. Mr Starke denied this, but Mr Ellis said he did and this was confirmed by Mr Newcombe. Though her Honour rejected the credibility of Mr Gibbs and Mr Bass, both of them agreed that Mr Starke had walked back to them, which supports what Mr Ellis and Mr Newcombe said. I accept that this was what happened.
(3) Mr Starke and Mr Ellis were both bigger than Mr Bass. Mr Ellis was 6'3" and Mr Starke was 6'1". Mr Bass said they were both bigger than he was. There was no challenge to this and, of course, her Honour had seen all the witnesses. I accept that this is so.
(4) There was physical contact between Mr Bass and Mr Starke before Mr Gibbs punched Mr Starke. Despite some other witnesses, all affected by alcohol, denying this, the evidence of Constable Hawke was to that effect. She had a good view of the four people and her evidence was not only not challenged, it was accepted by the learned Magistrate. I accept that there was such physical contact.
(5) There was clearly an altercation taking place. Again, while the evidence of Mr Starke and Mr Ellis appeared to be contrary to this, the evidence of Constable Hawke was clear; indeed, that was why her attention was drawn to the four males and why she suggested to Constable O’Neill that they should attend. It was consistent with the evidence of Mr Newcombe. I accept that this happened.
(6) The altercation was heated and it was clear that there was a disagreement between the parties. Again, this was the evidence of Constable Hawke and, though there was some different evidence of other witnesses, it was consistent with the evidence. Mr Ellis acknowledged it became heated. It was also consistent with inferences that could be drawn from his evidence. For example, Mr Ellis said to Mr Starke at some stage, perhaps before Mr Starke walked back to where Mr Gibbs and Mr Bass were, “Come on, let’s go”, strongly suggestive that Mr Starke was intent on following up his question of “Do you have a problem?”, which itself was clearly an act that risked some heated response. Mr Ellis, later confirmed this, when stating that he said “Come on, don’t worry about it, let’s go and get some chicken”, again strongly suggestive that the incident was getting heated. Further, Mr Ellis intervened between Mr Starke and Mr Bass, again suggestive that things were becoming heated and that there was a risk of escalation. Mr Newcombe also described the “conversation” as becoming heated and that “things got a little nasty”. I am satisfied that the altercation was heated and that there was disagreement between the parties.
(7) There was pushing and shoving. The evidence of Mr Starke, Mr Ellis and Mr Newcombe was that there was none. The evidence of Mr Gibbs and Mr Bass was that there was physical contact. The evidence of Constable Hawke was that there was pushing and shoving. She was the only sober witness. I accept that there was pushing and shoving.
(8) It was obvious that a fight was going to happen. This was the evidence of Constable Hawke. It was consistent with the evidence of Mr Newcombe. I am satisfied that this was the situation.
(9) Mr Gibbs said to Constable O’Neill immediately, upon being approached, that “We had an altercation with two males – wanted to kick my arse”. Again, that was unchallenged evidence by an independent, sober witness, and I accept it as stating what happened.
It seems to me that these findings are inevitable on the evidence. They take account of the findings of the learned Magistrate about the reliability or credibility of the witnesses whom, of course, she has had the advantage of seeing and hearing herself.
Mr Purnell submitted, on the basis of this evidence, that Mr Gibbs was entitled to believe that there was likely to be a fight and that Mr Bass was likely to be hit. That Mr Gibbs could not remember the actual words of threat does not seem to me to be a necessary or reasonable basis for rejection of this submission.
Similarly, it seems to me that her Honour placed too much weight on the possibility of retreat. Her Honour said:
If, as [Mr Gibbs] appears to be claiming, he felt threatened but cannot remember why, he simply could have left the scene and taken his heated, aggressive friend with him.
There are real difficulties with this statement. In the first place, it does not follow from the fact that Mr Gibbs could not remember what was said that he could have retreated. Secondly, retreat is not necessarily required. As Wilson, Dawson and Toohey JJ said in Zecevic at 663:
There is, however, no longer any rule that the accused must have retreated as far as possible before attempting to defend himself. It is a circumstance to be considered with all the others in determining whether the accused believed upon reasonable grounds that what he did was necessary in self-defence.
Thirdly, it does not take account of the particular circumstances – the pushing and shoving, the fact that Mr Starke and Mr Ellis were bigger than Mr Bass, that Mr Starke had approached Mr Bass and Mr Gibbs, while asking a question that was at least provocative if not aggressive.
Then, her Honour said that “there was no fight except the one sided part on Mr Bass’ behalf”. That, again, fails to give due allowance to what I have found above at [128] as the circumstances that pertained.
Thus, the finding of the learned Magistrate that there was an unprovoked attack has to be evaluated in the context of the circumstances and must allow for the perceptions of the parties.
The question of self-defence had to be considered. Mr Purnell submitted that her Honour erred in the test to be applied. Her Honour said:
The defendant cannot claim as he did in his evidence in October, or this month rather, that he felt threatened and feared for his safety when six months earlier in his record of interview and an hour and a half after the incident, he told police that he did not feel fear for himself.
That, however, ignores the evidence of Constable O’Neill who recorded contemporaneously exactly that fear, though Mr Gibbs later directed it to fear for Mr Bass. Fear of attack on another is a legitimate basis for self-defence; it does not need only to be a fear of violence to the accused. In R v Portelli at 292-3, it was accepted that:
any apparent limitation to the right or privilege of a person to respond to the attack of another should not be confined to attacks directed at the accused or a person in some defined relationship to the accused, but should be equally applicable whenever response is made to an attack upon any person, whether relative, friend or stranger, so long as it is understood that the claimed right, the exercise of which the Crown must negative, remains based on what is perceived to be reasonably necessary by the accused in all the circumstances which may, but not necessarily will, be affected by the possible lack of immediacy of that threat. Nor should there be any difference if the offence charged (as in the presence case) is less than homicide.
The question then became whether self-defence had been raised and negatived. This required a consideration of s 33 of the Criminal Code, which provides relevantly:
33 Intoxication - relevance to defences
(1) If any part of a defence is based on actual knowledge or belief, evidence of intoxication may be considered in deciding whether the knowledge or belief exists.
(2) However, if -
(a) each physical element of an offence has a fault element of basic intent; and
(b) any part of a defence is based on actual knowledge or belief;
evidence of self-induced intoxication cannot be considered in deciding whether the knowledge or belief exists.
(3) If any part of a defence is based on reasonable belief, in deciding whether the reasonable belief exists, regard must be had to the standard of a reasonable person who is not intoxicated.
...
Section 33 must be considered with s 31, which provides:
31 Intoxication - offences involving basic intent
(1) Evidence of self-induced intoxication cannot be considered in deciding whether a fault element of basic intent exists.
Note A fault element of intention in relation to a result or circumstance is not a fault element of basic intent (see s 30 (1), def fault element of basic intent).
(2) This section does not prevent evidence of self-induced intoxication being considered in deciding whether conduct was accidental.
(3) This section does not prevent evidence of self-induced intoxication being considered in deciding whether a person had a mistaken belief about facts if, when carrying out the conduct making up the physical element of the offence, the person considered whether or not the facts existed.
(4) A person may be taken to have considered whether or not facts existed when carrying out conduct if -
(a) the person had considered, on a previous occasion, whether the facts existed in the circumstances surrounding that occasion; and
(b) the person honestly and reasonably believed that the circumstances surrounding the present occasion were the same, or substantially the same, as the circumstances surrounding the previous occasion.
Mr Purnell submitted these provisions did not relevantly apply. He referred to a decision of Crispin J, JA v Goldsmith [2004] ACTSC 79 at [25], where his Honour addressed the issue as follows:
It may be noted that s 33(1) of the Criminal Code provides that, if any part of a defence is based on actual knowledge or belief, evidence of intoxication may be considered in deciding whether the knowledge or belief exists. On the other hand, s 33(3) provides that if any part of a defence is based on reasonable belief, then in deciding whether the reasonable belief existed, regard must be had to the standard of the reasonable person who was not intoxicated. However, whilst frequently referred to as a defence, the ultimate onus of proof rests on the Crown and once the evidence discloses the possibility that the relevant act was done in self-defence the issue must be considered even if not raised by the accused: Zecevic v Director of Public Prosecutions (VIC) at 657.
He submitted that Mr Gibbs had clearly articulated a number of times that he believed that it was reasonably necessary for him to do what he did in order to protect Mr Bass from what he perceived was a likely violent attack. There was no direct challenge to that in cross-examination.
He submitted that, on all the evidence, the prosecution had not proved that Mr Gibbs was not acting in self-defence.
He further relied on the character evidence that had been given about Mr Gibbs. It is summarised above (at [99]-[100]). Such evidence is relevant both to the credibility of Mr Gibbs and also to the likelihood of guilt. As a five-member court of the New South Wales Court of Criminal Appeal said in R v Murphy (1985) 4 NSWLR 42 at 54:
This line of authority shows that, whilst the primary significance of evidence of good character is upon the unlikelihood of guilt, there is a corollary to the effect that evidence of good character can be used with reference to credibility of the accused in his denial of the charge, and hence the unlikelihood of his guilt. The omission to give a specific direction on the credibility aspect may or may not be regarded as resulting in a miscarriage, according to the particular circumstances of the case in hand.
Her Honour did not refer to this evidence at all.
Mr Purnell also referred to CTM v the Queen (2008) 236 CLR 440. This addressed the issue of mistaken belief and it was said (at 447; [8]):
Where it is a ground of exculpation, the law in Australia requires that the honest and reasonable, but mistaken, belief be in a state of affairs such that, if the belief were correct, the conduct of the accused would be innocent. In that context, the word ‘innocent’ means not guilty of a criminal offence. In the case of an offence, or a series of offences, defined by statute, it means that, if the belief were true, the conduct of the accused would be ‘outside the operation of the enactment’ [Proudman v Dayman (1941) 67 CLR 536 at 541]. As explained in He Kaw Teh v The Queen [(1985) 157 CLR 523 at 534-535], the evidentiary onus of raising the ground of exculpation is on the accused, but, once that occurs, the ultimate legal onus of displacing the ground lies on the prosecution. The concept of evidentiary onus itself needs to be understood in the light of the subject matter to which it applies; here, honest and reasonable belief, a concept that has a subjective element of a kind that ordinarily is peculiarly within the knowledge of the accused, and an objective element that must be capable of being measured against the evidence by a tribunal of fact.
He made, however, limited oral submissions about this issue and how it should apply in this case.
THE APPEAL SUBMISSIONS – THE RESPONDENT
Ms K Mackenzie, who appeared for the Respondent, provided helpful and comprehensive written submissions following the oral submissions of Mr Purnell. She set out in appropriate detail her summary of the evidence.
There were matters in her summary, however, which seemed to me not supported by the actual evidence. For example, she submitted that Mr Ellis “could not say who had walked to whom”. In his evidence, Mr Ellis was clearer than that; he said “[Mr Starke] didn’t have to walk too far back to them”, clearly accepting that he did walk back.
Ms Mackenzie acknowledged that there were no issues about identification or whether Mr Gibbs punched Mr Starke. The issues were whether the prosecution had proved that Mr Gibbs was not acting in self-defence and what effect his intoxication had on that issue.
The offence of common assault, with which Mr Gibbs was charged, is an offence of basic intent. She acknowledged, however, that, in the circumstances, it was not necessary to address s 31 of the Criminal Code. She did submit, however, that s 33 of the Code applied.
She submitted that self-defence is “a defence” within the meaning of s 33. She did not address what Crispin J said in JA v Goldsmith, but referred to an identified page in the decision of Zecevic. I could not find on that page any reference to self-defence as “a defence” in these terms. She cited no specific part of the page in the judgment to which she referred. No sentence on that page appeared to say what she cited it to support. I note, however, that Deane J (at 675) referred to “[t]he defence of self-defence” in that case.
She submitted that, applying s 33, it was clear that Mr Gibbs had, on his own evidence, undermined his reliance of self-defence, for he said:
if I was sober and my judgment wasn’t affected that wouldn’t be what I would do.
This, she submitted, meant that, applying s 33, the disregard required of the self-induced intoxication would leave Mr Gibbs not having reasonable grounds for believing that it was necessary to do what he did.
As to the question of mistake, Ms Mackenzie submitted that the submission that had been put to the learned Magistrate, namely that Mr Gibbs believed he was engaging in a consensual fight due to the aggressive demeanour of Mr Starke, was not supportable.
Ms Mackenzie submitted that it was not enough for Mr Gibbs to raise the issue of mistake of fact; there had to be additional evidence to support it. She said that, indeed, Mr Gibbs’ own evidence that Mr Ellis had intervened and that Mr Bass had thrown the first punch, contradicted this. The latter was, of course, somewhat speculative on the part of Mr Gibbs. There was, she submitted, also Mr Newcombe’s evidence of the “defensive stance” of Mr Starke, compared to the “aggressive stance” of Mr Gibbs. She submitted that no-one remembered any threats being made.
CONSIDERATION
The correct test for self-defence
The first issue is whether her Honour applied the correct test for self-defence. I have noted above (at [124]) my concern that her Honour appears to have, on a number of occasions, reversed the onus of proof. During argument on the appeal, I indicated that her Honour’s reformulation of the test, set out above (at [113]), was wrong.
It seems to me that her Honour, in paraphrasing, was not wholly incorrect, for the amount of force used must be proportionate and that includes a consideration of reasonableness. See R v Portelli at 296; [26]; 298; [31].
Nevertheless, as the Victorian Court of Appeal has said in R v Hendy (2008) 191 A Crim R 81, the question of the conduct of the accused, here Mr Gibbs, is not subject to a reasonableness test. Maxwell P, with whom Ashley JA and Lasry AJA agreed, said (at 89; [21]):
Nevertheless, and notwithstanding my conclusion in the present case, it would be preferable if the model charge contained no reference at all to the reasonableness of the accused’s conduct. It is not, after all, the correct test. If – in a different case – there were a real risk that a jury so directed had applied an objective test of reasonableness to the accused’s conduct, as distinct from his/her belief, then it is likely that the trial would be viewed as having miscarried. A simple amendment of the model charge would remove, altogether, the possibility of that unintended consequence.
Had her Honour reverted to the actual test, it may have been easier to be assured that she had applied the correct test; cf R v Hendy at 87-9; [11]-[20].
Given the apparent reversal of the onus of proof and the incorrect articulation of the test, I consider that her Honour erred.
Application of s 33(2)-(3) of the Criminal Code to self-defence
The next issue is the question of whether s 33(2) and (3) of the Criminal Code applies to the question of self-defence. I am in the fortunate position of having guidance from the Court of Appeal. In Dal Cortivo v the Queen (2010) 204 A Crim R 55, the court addressed this very issue.
This fortunately relieves me of deciding the issue of whether “self-defence” is a “defence” when referred to in s 33 of the Criminal Code. The issue was not addressed in the Criminal Law Officers Committee, Model Criminal Code. Final Report: Chapter 2 General Principles of Criminal Responsibility (Commonwealth, 1993) from which the Criminal Code was drafted. A guide was published: Attorney-General’s Department, The Commonwealth Criminal Code. A Guide for Practitioners (Commonwealth Attorney-General’s Department at AIJA, 2002). It refers
(at p 159) to “defences” such as “[r]easonable mistake of fact, self defence, duress and sudden or extraordinary emergency...” and clearly includes self-defence in that list, suggesting that it is “a defence”. The Guide for Practitioners also refers (at p 229), in commentary to s 10.4 of the Commonwealth Code (equivalent to s 42 of the Criminal Code, namely the provision for self-defence), to “the application of the defence [of self-defence]” quite explicitly. See also Stephen Odgers, Principles of Federal Criminal Law (Lawbook Co, 2nd ed, 2010) at p 133, where it is stated “Section 10.4 [of the Commonwealth Code] creates a defence of self-defence.” It brings the “defence” into line with the common law to some extent by providing in s 13.3 (equivalent to s 58 of the Criminal Code) that any burden of proof on the accused is an evidential burden only.
I should simply remark that at present (and until at least 1 July 2013), these provisions do not apply to the charge of common assault, a pre-2003 offence, and this may have supported the approach of Crispin J in JA v Goldsmith. It appears, however, that for those offences to which s 42 of the Criminal Code applies, it is now to be considered a defence.
Ultimately, the real issue may simply be the question of which party bears the onus of proof and what onus that is. That is beyond doubt at common law and also well be so under the Criminal Code.
In any event, the Court considered, in Dal Cortivo v the Queen, the interaction of s 33 of the Criminal Code and self-defence. The Court said (at 62; [42], [44]-[45]):
The fact of intoxication cannot be ignored in determining whether, as a matter of fact, the knowledge or belief existed. Whether it is a reasonable belief may, of course, be adjudged according to the standard of a person not intoxicated.
...
In the present case, it was, in our view, necessary to consider the role of “belief” in assessing the existence of reasonable grounds. Whether there are reasonable grounds for a relevant belief is an objective test but how the accused actually perceived those grounds is a question of fact.
In the present case, it seems to us to have been misleading to ask whether by the standards of a sober person there were reasonable grounds for the appellant to consider that it was necessary for him to act in self-defence. Rather, the jury should have been directed that unless they were to reject the evidence both of the complainant and the appellant as to what the complainant said, they could not be satisfied that there were no reasonable grounds for a belief that the appellant needed to act as he did in self-defence.
Thus, in order to discharge its onus of proof, the prosecution must show, not only that Mr Gibbs did not actually believe that it was necessary to do what he did to protect Mr Bass, but that there were no reasonable grounds for the belief of Mr Gibbs to do what he did. That is to say, the prosecution had to prove beyond reasonable doubt that there were no such grounds and, in deciding whether the prosecution has discharged that onus, the court is required not to ask whether a reasonable sober person would have thought that there were reasonable grounds for that belief, but whether it was reasonably possible that there were grounds for such a belief. This is the objective part of the test, not dependent on the sobriety or otherwise of the accused or defendant.
The question of whether Mr Gibbs, when sober, would have done what he did is not determinative of whether the belief he had at the time was reasonable. It is an objective test. That he says he would not have acted in this way is a relevant factor, but cannot decide the issue. After all, Mr Gibbs was a police officer, with training in issues of street violence and the appropriate approach to such issues. That is by no means necessarily the knowledge or approach of the hypothetical reasonable, sober person, even though that person must be taken to be aware of the circumstances as Mr Gibbs perceived them.
It seems to me that her Honour failed to address the evidence which, not relying on Mr Gibbs or Mr Bass, whose credibility her Honour rejected, showed that the situation was aggressive and heated and likely to result in a fight.
Her Honour was critical of Mr Gibbs for not remembering what threats were said to him. Her Honour, however, completely ignored the fact that Mr Starke was unable to recall what was said that caused him to say “What’s your problem?”. It could have been, in reality, a completely innocuous remark to which the admitted “What’s your problem?” was a threatening response to Mr Bass.
Certainly, her Honour did not refer to the evidence of Mr Ellis and Mr Newcombe, on whom she was prepared to rely, which showed that Mr Starke walked back up to Mr Bass and Mr Gibbs. That, in itself, with a further aggressive request of “What’s your problem?”, would have reasonably been perceived as aggression. Her Honour said that it was unclear about whether there was pushing and shoving. Contrary to that, it was clear from the evidence of Constable Hawke, who was not only sober but on patrol in the city area and therefore on the watch for trouble, that it happened. Her evidence on this point was not the subject of challenge. Her Honour accepted her evidence. That pushing and shoving is indicative of an escalation of the incident.
While Mr Newcombe did not see any pushing and shoving, he did see what he said was Mr Gibbs “provoking” Mr Starke, but this was, he said, after the blow was struck. He said that earlier the conversation had turned “heated”, with Mr Gibbs in an “aggressive stance” and Mr Stark taking “a defensive stance”. It is not clear what this actually meant. It does not seem to me any of this evidence rises to proof beyond reasonable doubt that there was no heated altercation between two tall men and a shorter man. Such an altercation was, on the evidence of an experienced police officer, likely to end in a fight.
Actual belief that the conduct was required to protect Mr Bass
The next question, then, is whether Mr Gibbs actually held the belief that he had to do what he did to protect Mr Bass. That question had to take into account Mr Gibbs’ intoxication: Dal Cortivo v the Queen at 62; [42].
Although Mr Gibbs gave evidence to that effect, the learned Magistrate rejected him as a credible witness. Presumably, that may include rejecting his repeated assertions of his honest belief.
It is, of course, difficult for an appellate court to overturn such a finding, which is based on the demeanour and presentation of the witness.
In this context, I am mindful of what Lord Atkin said in Société d’Avances Commerciales v Merchants’ Marine Insurance Co [1924] 20 Ll L Rep 140 at 152:
... I think that an ounce of intrinsic merit or demerit in the evidence, that is to say, the value of the comparison of evidence with known facts, is worth pounds of demeanour.
While this passage was cited with approval by the High Court in Fox v Percy (2003) 214 CLR 118 (at 129; [30]) per Gleeson CJ, Gummow and Kirby JJ, it does not seem to me wholly inconsistent with Lord Atkin’s references to “the initial advantage of the judge who saw and believed” in Powell v Streatham Manor Nursing Home [1935] AC 243 (at 255), also cited with approval by the High Court in Warren v Coombes (1979) 142 CLR 531 (at 539) per Gibbs ACJ, Jacobs and Murphy JJ.
There is no doubt that virtually the first words said by Mr Gibbs to police showed that he expected that Mr Starke was about to be violent. He repeated those fears in the interview with police shortly afterwards.
Notwithstanding her Honour’s rejection of the credibility of Mr Gibbs – and, indeed, of Mr Bass - it seems to me that the immediate, contemporaneous comments cannot be so readily rejected.
In any event, the issue of self-defence may sufficiently and properly be raised on the evidence even if the court rejects the evidence of the accused or defendant. Indeed, it is clear from R v Rao at 23-5; [89]-[95], that even where an accused actually gives no evidence at all, the evidence adduced in the trial may raise the issue, including the belief of the accused.
In that case, as here, statements were made to other people who recounted them. They are part of the evidence which must be taken into account.
Taking all these matters into account, I do not consider that the prosecution in this case has proved beyond reasonable doubt that Mr Gibbs did not have a belief that he had to do what he did in order to protect Mr Bass from what he saw as threatened violence, and I do not consider that the prosecution have proved beyond reasonable doubt that there were reasonable grounds for such a belief.
In the circumstances, I do not have to consider the issues of consent or mistake of fact, neither of which were much argued before me by Mr Purnell.
CONCLUSION
Accordingly, the appeal should be upheld. The conviction of the Magistrates Court quashed and the sentence set aside. A verdict of acquittal should be entered.
I shall so order.
I certify that the preceding one hundred and eighty-three (183) numbered paragraphs are a true copy of the Reasons for Judgment herein of his Honour, Justice Refshauge.
Associate:
Date: 22 February 2013
Counsel for the appellant: Mr J Purnell SC
Solicitor for the appellant: Porters Lawyers
Counsel for the respondent: Ms K Mackenzie
Solicitor for the respondent: ACT Director of Public Prosecutions
Date of hearing: 5 May 2009
Date of judgment: 22 February 2013
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