HEINRICH v Police - [2004] SASC 283

SUPREME COURT OF SOUTH AUSTRALIA
(Magistrates Appeals: Criminal)
HEINRICH v POLICE
Judgment of The Honourable Justice Nyland
16 September 2004
CRIMINAL LAW - APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION - APPEAL AND NEW TRIAL - INTERFERENCE WITH DISCRETION OR FINDING OF JUDGE
Appeal against conviction - appellant convicted of assault - self-defence - discrepancies between evidence of witnesses - ex tempore reasons - finding of credibility with respect to prosecution witness - no error demonstrated - appeal dismissed
Criminal Law Consolidation Act 1935, ss 15, 39(1), referred to.
Taleporos v SA Police (1994) 176 LSJS 314, applied.

HEINRICH v POLICE
[2004] SASC 283
Magistrates Appeal: Criminal

NYLAND J: This is an appeal against conviction. The appellant was charged on complaint that on 9 November 2002, at Adelaide, he assaulted Raymond Holloway, contrary to the provisions of s 39(1) Criminal Law Consolidation Act 1935 (“CLCA”). The appellant pleaded not guilty to the charge. The matter came on for trial before a stipendiary magistrate in the Adelaide Magistrates Court on 31 May 2004. At the conclusion of the evidence, the learned magistrate delivered ex tempore reasons for his decision. He found the prosecution case proved beyond reasonable doubt. The appellant has appealed against his conviction on the ground that it is unsafe and unsatisfactory, namely:
1.Significant discrepancies in the evidence of the accused and that of the prosecution.
2.The lack of corroborative witnesses to support the prosecution case.
3.The correct test for self-defence.
On the hearing of the appeal, Mr Richards appeared as counsel for the appellant. He was also counsel for the appellant in the course of the trial. Mr Stevens appeared on the appeal as counsel for the respondent.
The offence which was the subject of the charge arose out of an incident which occurred on 9 November 2002, which was the day of the Christmas pageant. Mr Holloway said he attended the pageant with his wife and granddaughter. They were standing on the footpath of King William Street, just outside Trims when the appellant walked past with a female person who had an alsatian puppy. The appellant and his companion stopped outside Trims and the dog sat down on its haunches. When they went to move forward, the dog sat back on its haunches whereupon the appellant kicked the dog at the back. Mr Holloway described it as a hard kick. He said he heard the dog yelping and the appellant then picked the dog up by its skin with his hand, lifted it about 18 inches and threw it back down on the footpath and then stomped on it twice with his right foot. Mr Holloway walked towards the appellant and said “Hey, don’t hurt that dog”. The appellant told him to “Get fucked, it’s my dog, I’ll do what I fucking like”.
Mr Holloway said that he stopped about five metres away from the appellant and that as the appellant spoke to him his right arm was raised and his fist clenched. Mr Holloway feared that the appellant was going to strike at him so he grabbed the appellant’s right wrist with his left hand. The appellant said “Let go of my arm. Let go of my fucking arm, fuck you”. Mr Holloway said he immediately felt a hard blow to the right side of his face which forced him back on to the window of Trims and he “half slumped to the footpath”. He was dazed for three or four seconds, and started bleeding heavily from the nose and mouth area. He saw people running to get police officers, and ambulance personnel eventually attended the scene. Mr Holloway suffered damage to his mouth and the loss of four teeth.
Mr Holloway was examined by his dentist, Dr Alfred Vaskas, on 6 December 2002 who said he had suffered several fractured and mobile teeth. An X-ray indicated broken roots in the molar area (upper left first and second molars) and a fractured central incisor. Mr Vaskas considered the injuries to be consistent with either accident or trauma and said “it would have to be a significant blow to break the roots of a molar tooth”. He said the teeth were “pretty much ruined and the only thing left to do was take the teeth out” so he extracted them, and replaced the extracted teeth with a partial denture. Sometime later it was necessary to make a full denture.
The appellant also gave evidence. His version of what happened with the dog is somewhat different from that of Mr Holloway. He said that the dog had attempted to bite someone, so he gave the dog a little kick, whereupon he heard some lady start yelling out “RSPCA RSPCA. Cruelty to animals”. He said he looked over and saw a lady with “blondish, whitish boofy hair” standing near the lights. He turned around to her and said “Shut up. Fuck off. Mind your own business. This is my family”. He denied stomping on the dog and said the dog was not injured. The appellant said that after he swore at the person shouting out “Cruelty to animals”, he saw the lady’s husband, ie Mr Holloway, coming up to where he was standing. He said that the man was looking directly at him and walked straight up into his face to say something to him. The appellant said that he was boxed in by the windows and clothing racks of Trims, the dog and his girlfriend. He said Mr Holloway came up with his chest about an inch away from that of the appellant. The appellant said that he thought he was going to be punched in the mouth so he pushed Mr Holloway away by the shoulders. He said that Mr Holloway then grabbed him around the left hand wrist and snapped his bracelet, following which the appellant hit him. The appellant said that he felt threatened, that Mr Holloway was coming in towards him again and he had nowhere to go.
In the course of the interview with police the appellant admitted that he had “cracked” Mr Holloway in the mouth and then stood back to see what would happen. When he gave evidence he was asked his reason for hitting Mr Holloway and he said (Tr 29):
“A.Because I felt threatened. He approached me in a threatening manner which looked like he was going to assault me. It did. Or he was going to do something really bad like try and take my dog away from me.
Q.If you felt threatened why do you think your actions are bloody stupid and wrong.
A.Because he is 72 year old and when you have time to think about it you think ‘Well hold on, I have just hit a 72 years old guy. Geez what an idiot I am’.
Q.But you knew that before you hit him because you made an association between him being old connected with his wife and there were no other old people around.
A.Technically yes, technically no because I hadn’t hit him yet and I hadn’t thought about hitting him and nothing violent had happened. All I had done was associated him with his wife, all right.
Q.I put it to you that you were angry with your dog.
A.Yes.
Q.That you became angrier still when Mr Holloway butted his way into your own business and that is why you punched him in the face.
A.No, well that’s not true. No.”
Kate Morris also gave evidence on behalf of the appellant. She was the woman with the appellant at the relevant time, although she was no longer in a relationship with him when she gave evidence. She said that the dog had snapped at someone and been reprimanded. She said the appellant grabbed the dog and gave him a very “very minor kick up the bum” but had not stomped on him. She said a lady started yelling out “RSPCA” and having a go at the appellant, and the lady and man then approached them. Ms Morris heard the appellant say “Fuck off” to the lady, and then saw the man approach the appellant as if he was going to hit him or have a go at him, and backed him into the corner. She said the man got “right in [the appellant’s] face” and the appellant pushed him. The man grabbed the appellant’s right arm, and then with his left hand the appellant hit the man.
The magistrate was also provided with an affirmation of Constable Will who attended the scene and interviewed the appellant. In that interview, the appellant was asked why he hit Mr Holloway and he said “Because I felt threatened and he was in my personal space”. When asked whether Mr Holloway had objected to him kicking the dog, the appellant responded:
“I don’t know, someone did. I think it was him. I turned around to see an old lady, I think it was his wife. She was yelling across to me while the male was walking over to me. I told her to mind her own business and to fuck off. When I said it he got fired up even more because I had told his missus to fuck off. So he got up right into my personal space. I pushed him back to get him out of my space. I pushed him back with my right hand and he grabbed hold of it and pulled me back in. So I gave him one with my left.” (emphasis added)
The appellant described his actions as “bloody stupid”. He said “I just hit a sixty, seventy year old guy. I’m sorry you know it’s bloody wrong”.
The magistrate was also provided with a statement from Mr Desmond Johnston, of St John Ambulance, who treated Mr Holloway for a blood nose and injury to his top lip and chin.
The learned magistrate found there was a prima facie case made out on the evidence. He considered the appellant’s version to be in contrast with that of Mr Holloway. The learned magistrate briefly summarised the evidence of the appellant which included the assertion that he feared that he would be hit. The learned magistrate commented, however, that this had not been mentioned by the appellant to Constable Will when interviewed at the scene. The learned magistrate assessed that as being a significant discrepancy. The learned magistrate did not accept that the appellant reasonably feared for his personal safety. He said:
“Realistically, retreat was a clear option, although the evidence is that the defendant was somewhat wedged between a plate glass window and a clothing rack. The reality is that the defendant could well have defused the situation by retreating.”
The magistrate went on to say that he was particularly impressed by the evidence of the prosecution witness, Mr Holloway, whom he found to be a witness of truth. Wherever there was a variation he accepted Mr Holloway’s evidence in preference to that of the appellant. He therefore found the appellant guilty of the charge against him.
On appeal, Mr Richards was critical of the comment made by the magistrate that there was a significant discrepancy between the record of interview and the evidence given by the appellant on the topic of his fear of being hit. Mr Richards suggested this was an error made by the magistrate in the consideration of the evidence as there were two statements made in the record of interview in which the appellant said that he felt threatened. I do not, however, think that was overlooked by the magistrate. His comment was directed at the lack of any statement by the appellant to the police that he feared being hit. The emphasis in the appellant’s statements to the police was on Mr Holloway being “in his personal space”. The magistrate clearly considered that if the appellant had acted out of fear of an assault it was surprising that he did not say so to the police at that time.
Mr Richards in his submissions referred to the lack of witnesses to support the prosecution case. He suggested that the prosecution should have called Mrs Holloway as well as some other witness to support Mr Holloway’s evidence about what he described as the assault on the dog. Mr Richards suggested that the failure to call Mrs Holloway or any other of the people who were watching the pageant was a matter that should have been taken into account by the magistrate on the issue of whether or not the prosecution had discharged their onus of negating the issue of self-defence.
The thrust of his submission with respect to self-defence was that the magistrate had erred in rejecting the account given by the appellant, supported as it was by Ms Morris, particularly given the absence of corroboration for Mr Holloway’s account of what occurred. Mr Richards submitted that Mr Holloway had behaved in an aggressive manner towards the appellant. The appellant had then been placed in the situation in which he had no means of effecting a retreat. It was only after he was grabbed by Mr Holloway that the appellant had struck out. Mr Richards referred to the fact that the appellant had only struck one blow and had thereafter remained to speak to the police and had indicated his contrition for what he had done.
The defence of self-defence is contained in s 15 CLCA and provides:
“(1)       It is a defence to a charge of an offence if -
(a)     the defendant genuinely believed the conduct to which the charge relates to be necessary and reasonable for a defensive purpose; and (my underlining)
(b)    the conduct was, in the circumstances as the defendant genuinely believed them to be, reasonably proportionate to the threat that the defendant genuinely believed to exist ¹.
(2)   …
(3)For the purposes of this section, a person acts for a "defensive purpose if the person acts -
(a)   in self defence or in defence of another; or
(b)    …
(4)    …
(5)If a defendant raises a defence under this section, the defence is taken to have been established unless the prosecution disproves the defence beyond reasonable doubt.”
The submissions made by Mr Richards on the hearing of appeal focused on the provisions of s 15(1)(a), which is the subjective part of the test. Section 15(1)(b), however, refers to reasonable proportionality or what can be described as the objective part of the test, although it is still based on the facts as the appellant genuinely believed them to be.
In this case, the appellant was a young man, whereas Mr Holloway appeared to be in his seventies. There does not appear to have been any direct evidence about Mr Holloway’s age but the appellant appears to have been alert to it as he mentioned it to the police in his interview and also when he gave evidence.
Mr Holloway’s evidence, which was accepted by the magistrate, was that he stopped about a metre short of the appellant at which point the appellant raised his right arm with a clenched fist. Mr Holloway feared that he would be struck and grabbed the appellant’s right wrist to stop himself being assaulted. The appellant told Mr Holloway to let go of his arm and then he struck Mr Holloway with his left fist to the face.
It is evident from the evidence of Dr Vaskas that the blow caused significant injuries which could only have been the result of a blow administered with considerable force. Such a blow could not, in my opinion, on any view of the matter, be regarded as reasonably proportionate to any threat which the appellant may have genuinely perceived to be emanating from Mr Holloway.
The magistrate found that retreat was a clear option. It may have been that the appellant was in a situation in which he could not have physically moved very far but that was not the only means of retreating. The appellant could have pushed Mr Holloway away without hitting him with such force, but the appellant commented “You only have to push someone once. You don’t need to keep pushing them away just to get away from them”. The appellant could have reasoned with Mr Holloway or simply turned away to diffuse the situation.
The learned magistrate did not give any particular reason for preferring the evidence of Mr Holloway over that of the appellant and Ms Morris, but it must be remembered that these were ex tempore remarks delivered at the end of what appears to have been a relatively short trial. The question of what exactly happened with the dog is to some extent a collateral issue and did not require the prosecution to call any corroborative evidence. In any event, the criticisms made by Mr Richards on appeal concerning the prosecution case and such matters as the failure by the prosecution to call Mrs Holloway or anyone else, were all matters which were undoubtedly the subject of submissions to the magistrate at the trial and it can be assumed that he had regard to all of those matters before reaching a conclusion as to the relative credibility of the witnesses.
In Taleporos v SA Police[1], Olsson J referred to the approach to be taken by this court in discharge of its appellate function. He said (at p315):
[1] (1994) 176 LSJS 314
“It is timely to record that, in a case of this nature, the approach to be adopted by this Court, in discharge of its appellate function, is that adverted to by the High Court in Warren v Coombes (1979) 142 CLR 531 at 537 et seq and reiterated in authorities such as Brunskill and Anor v Sovereign Marine and General Insurance Co Ltd and Ors (1985) 59 ALJR 842 at 844, Abalos v Australian Postal Commission (1990) 171 CLR 167 at 178 and Devries and Anor v Australian National Railways Commissioner and Anor (1993) 177CLR 472.
Those pronouncements derive from what was pointed out by Lord Sumner in SS Hontestroom v SS Sagaporack (1927) AC 37 at 47 in these terms:-
‘… not to have seen the w0itnesses puts appellate judges in a permanent position of disadvantage as against the trial judge, and, unless it can be shown that he has failed to use or has palpably misused his advantage, the higher Court ought not to take the responsibility of reversing conclusions so arrived at, merely on the result of their own comparisons and criticisms of the witnesses and of their own view of the probabilities of the case. The course of the trial and the whole substance of the judgment must be looked at, and the matter does not depend on the question whether a witness has been cross-examined to credit or has been pronounced by the judge in terms to be unworthy of it. If his estimate of the man forms any substantial part of his reasons for his judgment the trial judge's conclusions of fact should, as I understand the decisions, be let alone.’
As was stressed by the High Court in Brunskill and Anor v Sovereign Marine and General Insurance Co Ltd and Ors (at 844):-
‘The authorities have made clear the distinction which exists between an appeal on a question of fact which depends upon a view taken of conflicting testimony, and an appeal which depends on inferences from uncontroverted facts.’
In Warren v Coombes the High Court drew a very careful distinction between those types of case in which the question at issue is the proper inference to be drawn from facts which are not in doubt, on the one hand, and those in which the trial judge has come to a conclusion upon the question of which of the witnesses, whom he has seen and heard, are trustworthy and which are not. In the latter case the situation is that referred to by Lord Atkin in Powell v Streatham Manor Nursing Home (1935) AC 243 at 255, who commented that a Court of Appeal:-
‘must recognize the onus upon the appellant to satisfy it that the decision below is wrong: it must recognize the essential advantage of the trial judge in seeing the witnesses and watching their demeanour. In cases which turn on the conflicting testimony of witnesses and the belief to be reposed in them an appellate court can never recapture the initial advantage of the judge who saw and believed.’
That approach has strongly been re-inforced by the dictum of Brennan, Gaudron and McHugh JJ in the recent case of Devries and Anor v Australian National Railways Commission and Anor (supra), found at page 479 of the relevant report, to the effect that:-
‘More than once in recent years, this Court has pointed out that a finding of fact by a trial judge, based on the credibility of a witness, is not to be set aside because an appellate court thinks that the probabilities of the case are against - even strongly against - that findings of fact. If the trial judge's findings depends to any substantial degree on the credibility of the witness, the findings must stand unless it can be shown that the trial judge “has failed to use or has palpably misused his advantage” or has acted on evidence which was “inconsistent with facts incontrovertibly established by the evidence” or which was “glaringly improbable”.’”

In this case the learned magistrate had the advantage of seeing all of the witnesses. He was impressed by the evidence of Mr Holloway. Having assessed him as a credible witness, the learned magistrate was entitled to act upon what he said. It is evident from the reasons of the learned magistrate that he rejected the evidence of the appellant as to his state of belief. In any event, there was ample evidence upon which the learned magistrate could find that, even if the appellant had a genuine belief that it was necessary and reasonable to act as he did, his act was disproportionate to any perceived threat.
There can be no doubt that immediately after this incident the appellant was contrite and regretted acting as he did. That, however, does not amount to self-defence. In my opinion, no error has been demonstrated on the part of the learned magistrate which would require this court to interfere. The appeal against conviction is dismissed.