Hill v Richman - [2001] TASSC 148

[2001] TASSC 148

CITATION: Hill v Richman [2001] TASSC 148

PARTIES:  HILL, Alan James
  v
  RICHMAN, Matthew

TITLE OF COURT:  SUPREME COURT OF TASMANIA
JURISDICTION:  APPELLATE
FILE NO/S:  LCA 37/2001
DELIVERED ON:  20 December 2001
DELIVERED AT:  Hobart
HEARING DATES:  30 November 2001
JUDGMENT OF:  Evans J

CATCHWORDS:

Criminal Law - General matters - Criminal liability and capacity - Defence matters - Self-defence and other forms of self-defence - Generally - Onus of proof.
Criminal Code Act 1924 (Tas), s46.

Walsh (1991) 60 A Crim R 419, applied.
Aust Dig Criminal Law [649].
Appeal and New Trial - Appeal - Practice and procedure - Tasmania - Powers of court - New trial.
Bedelph v Weedon [1963] Tas SR 69; Burston v Brooks A91/1996, considered.
Aust Dig Appeal and New Trial [391].

REPRESENTATION:

Counsel:
           Applicant:  J S Wilkinson
           Respondent:  F C Neasey
Solicitors:
           Applicant:  Wallace Wilkinson and Webster
           Respondent:  Director of Public Prosecutions

Judgment Number: [2001] TASSC 148
Number of Paragraphs: 10

Serial No 148/2001
File No LCA 37/2001

ALAN JAMES HILL v MATTHEW RICHMAN

REASONS FOR JUDGMENT EVANS J
20 December 2001

The applicant appeals against his conviction on two charges of assault, contrary to the Police Offences Act 1935, s35(1). The charges relate to an incident which occurred outside the Great Lake Hotel on the afternoon of 16 January 2000, when it is alleged that the applicant struck each of the complainants, Anthony Hayes and Timothy Neil, in the face with a revolver.

It was not disputed that the applicant struck the complainants. The issue at trial was whether the prosecution had established beyond reasonable doubt that the blows were unlawful, that is, that the applicant was not acting in self-defence.

In summary, the evidence established that on the day in question the complainants were in an intoxicated state when they arrived at the Great Lake Hotel. After obtaining one or two drinks, Mr Neil was refused further service. This led to the complainants becoming involved in an altercation outside the hotel in the course of which they pushed, shoved and shouted at each other. Apparently, Mr Hayes was endeavouring to persuade Mr Neil not to drive his motor vehicle. The applicant, who was in a nearby store, had his attention drawn to the altercation. At the time the applicant was a police officer. Although on duty, the applicant was not wearing his uniform or regulation police equipment such as a Glock pistol, baton, handcuffs and capsicum spray. The applicant was wearing his personal 357 magnum revolver.

The applicant's evidence was that he approached the complainants to quieten them down. He said they were aggressively drunk and shouting and abusing each other. He identified himself to them as a police officer and enquired what was going on. After an exchange which concluded with the applicant warning the complainants that if they did not desist they would be arrested, they turned on the applicant and threatened and abused him. He told them they were arrested for fighting and exposed…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Hill v Richman

Details

AGLC: Hill v Richman [2001] TASSC 148
Case: [2001] TASSC 148
Decision Date: 20 December 2001

CaseChat Overview and Summary

In the matter of Hill v Richman, the applicant, Alan James Hill, appealed his conviction on two counts of assault under the Police Offences Act 1935, s35(1). The conviction stemmed from an altercation outside the Great Lake Hotel on 16 January 2000, where Hill allegedly struck the complainants, Anthony Hayes and Timothy Neil, with a revolver. Hill, a police officer off-duty but in possession of his service weapon, claimed he acted in self-defence when the complainants, in an intoxicated state, turned on him after he attempted to intervene in their dispute. The crux of the trial was whether Hill's actions were justified under self-defence provisions.

The court had to determine whether Hill's belief in the necessity of using force was genuine and whether the force he used was reasonable under the circumstances he perceived. The magistrate accepted Hill's subjective belief in the need for self-defence but concluded that the force used was excessive. This conclusion was based on an objective assessment of the situation rather than the subjective belief Hill held. Furthermore, the magistrate erroneously placed an onus on Hill to demonstrate the reasonableness of his actions, which is not required under the law. These errors led to the magistrate's decision being flawed.

Following the identification of these errors, the appeal was allowed. The court quashed Hill's conviction and sentence, finding that the magistrate's approach to the self-defence claim was incorrect. Instead of dismissing the complaint outright, the court opted to order a retrial by a different magistrate to ensure the process was free from any perceived bias or taint resulting from the initial magistrate's flawed reasoning.

Orders