Hone v Police - [2013] SASC 41

SUPREME COURT OF SOUTH AUSTRALIA
(Magistrates Appeals: Criminal)
HONE v POLICE
[2013] SASC 41
Judgment of The Honourable Justice David
26 March 2013
MAGISTRATES - APPEAL AND REVIEW - SOUTH AUSTRALIA - APPEAL TO SUPREME COURT
CRIMINAL LAW - PARTICULAR OFFENCES - OFFENCES AGAINST THE PERSON - ASSAULT
CRIMINAL LAW - GENERAL MATTERS - CRIMINAL LIABILITY AND CAPACITY - DEFENCE MATTERS - SELF-DEFENCE AND OTHER FORMS OF DEFENCE
Appeal against conviction – appellant found guilty by Magistrate of one count of assault – the charge arose from an altercation between the appellant and another male, during which the appellant applied three distinct acts of force to the male: (1) the appellant grabbed and held the other male by the neck, (2) the appellant punched him once to the face and (3) the appellant wrestled him and held him to the ground – the appellant raised a defence of self defence – the Magistrate found that a defence of self defence was precluded as the appellant’s punch to the male’s face was not a reasonably proportionate response to the threat that the appellant genuinely believed was posed by the male – whether the Magistrate erred in his assessment of the proportionality of the appellant’s punch
Held: appeal dismissed – the Magistrate was not required to specifically direct himself as to the requirement of s 15B of the Criminal Law Consolidation Act 1935 (SA), nor does it follow from the omission of any specific reference to s 15B that the Magistrate failed to consider s 15B in arriving at his finding as to the proportionality of the appellant’s punch – when the Magistrate’s reasons are read as a whole it is clear that he did not err in his application of the test of reasonable proportionality under s 15(1)(b) of the Criminal law Consolidation Act 1935 (SA) – the use of force in defence is not reasonably proportionate to a perceived threat merely because the force used is equal to the force that was threatened; the response, although equal in force to the threat, may be found to be disproportionate if the circumstances are such that a lesser alternative use of force was available and could have been used just as effectively to forestall the threatened use of force.
Criminal Law Consolidation Act 1935 (SA) s 15, s 15B, referred to.
R v Edwards [2007] SASC 202; Morgan v Coleman (1981) 27 SASR 334, considered.

HONE v POLICE
[2013] SASC 41
Magistrates Appeal: Criminal

DAVID J: The appellant was charged with assault causing harm, contrary to s 20(4) of the Criminal Law Consolidation Act 1935 (SA) (“CLCA”). The particulars of the offence are that on 9 March 2012 at Mount Barker, the appellant assaulted Dwight Todd Ware and thereby caused harm to him.
The appellant pleaded not guilty to the charge, raising a defence of self defence under s 15 of the CLCA. It was for the prosecution to disprove that defence beyond reasonable doubt.[1]
[1] Criminal Law Consolidation Act 1935 (SA) s 15(5).
Following a trial, the Magistrate held that the prosecution had proven beyond reasonable doubt that a punch delivered by the appellant, which struck Ware on the face, was not reasonably proportionate to the threat that the appellant genuinely believed was presented by Ware. This finding precluded the defence of self defence and the appellant was found guilty of the charge. He now appeals against that finding of guilt, seeking to have it set aside.
Trial
At trial, there was no dispute that at about 5:30pm on 9 March 2012, an altercation between the appellant and Ware occurred at the business premises of Dutton Motors at Mount Barker, from which Ware sustained serious injuries.
The background to this incident was a continuing legal dispute concerning the premises at Mount Barker, then occupied by Dutton Motors. On the same date as the altercation, the appellant, as landlord of the premises, had been granted an injunction against Dutton Motors to prevent the removal of certain property from the premises in the course of the tenant’s departure. Some evidence was led at trial in connection to this continuing legal dispute, but it was ultimately not necessary or possible for the Magistrate to deal with this matter further.[2]
[2] Police v Hone (Mr Bennett SM, 13 December 2012, unreported) at [80].
Prosecution case
The prosecution called three witnesses, including the victim, Dwight Ware.
At the relevant time, Ware was employed by Dutton Motors as a Service Manager. At about 5:20pm on 9 March 2012, Ware finished work and had started to have an after-work drink with some of the Dutton Motors mechanics. Ware went to close the roller-doors at the entrance of the service workshop and, upon returning, he saw the appellant in the showroom looking around. Ware recognised the appellant as the landlord, having seen him at the premises before.
Ware had previously been informed by his supervisor, Damien Dowling, that the appellant had attended the premises that morning enquiring about the removal of an air conditioner. Ware was asked by Dowling to telephone him if the appellant returned. Upon sighting the appellant, Ware telephoned Dowling and he was instructed to tell the appellant to leave.
Ware observed the appellant exit the showroom, retrieve an electronic tablet device from his vehicle and return to the showroom. It looked like the appellant was preparing to take photographs with the device as Ware approached him. On Ware’s evidence, he asked the appellant, in a professional manner, “Can I help you?” To this the appellant responded with verbal abuse and he began to take photographs with the device. After a few minutes, Ware asked the appellant to leave the premises. On Ware’s evidence, the appellant again verbally abused him. At this point, Ware noticed that a Dutton Motors sales consultant, Tim Glover, was speaking with a client in another area of the showroom and so he suggested to the appellant that they talk further outside. Ware led the appellant outside and, immediately upon exiting the building, the appellant continued to verbally abuse him.
It is Ware’s evidence that the appellant then walked back to his vehicle. Ware said that, at this point, he again telephoned Dowling to inform him that the appellant was leaving and that he was going to call the police. As Ware was about to call the police, he saw the appellant exit his vehicle and begin “charging” towards him. Ware stated that the appellant came right up to his face, with his fists clenched and breathing heavily. He saw the appellant raise his fists at the side of his body to the height of mid-torso. Ware said words to the effect of “Hit me” or “Hit me if it makes you feel better” in, what he said, was an attempt to call the appellant’s bluff and regain some control of the situation. Ware said he put his forearm up and pivoted to the side to create some space between himself and the appellant. After no reaction from the appellant, Ware said he smirked and began to turn away when he was unexpectedly punched by the appellant. Ware was struck on the right side of his chin by a “round arm swing”.
Ware said he regained consciousness on the ground. He rolled over and saw the appellant lunge towards him. Ware maintains that, while on the ground, he was punched a second time by the appellant to the left side of his face. Ware remembers regaining consciousness for a second time with pressure around his neck and throat, and hearing someone saying “Get off him”.
Ware sustained two fractures to the right side of his jaw, requiring the surgical insertion of two metal plates.
The medical evidence received by the Court was in the form of a statement by Dr Sambrook, tendered by consent (P6). The report was compiled by Dr Sambrook with the aid of contemporaneous notes from Ware’s treatment at the Royal Adelaide Hospital; he did not personally treat Ware. It states, contrary to Ware’s evidence, that he told hospital staff that he suffered “a king hit” and that he did not lose consciousness at any stage during the incident. Dr Sambrook concluded that Ware’s injuries were consistent with “a punch” to his face.
Ware also gave a statement to the police on 15 March 2012. He was cross‑examined in some detail about inconsistencies between his in-court evidence and this earlier statement to police. These included the fact that he originally told police that he was holding a battery charger, winding up the power cord, when he was first hit by the appellant. He also told police that the appellant’s first punch struck him on the left side of the face, not the right. Ware maintained that these inconsistencies could be explained by the fact that the police misinterpreted him. He said that at the time of giving his statement, he was “having trouble communicating” because of his injuries, he was nervous as he had never given a police statement before, and he just wanted to get out of the uncomfortable situation. Indeed, the great difficulty that Ware had in speaking at this time was observed by the police officer who took his statement, Constable Eales.[3]
[3] Exhibit P9, statement of Constable Nathan Eales, dated 12 June 2012, at [9].
The Court also heard evidence from Joanne Pridham. Ms Pridham was present at the Dutton Motors showroom on the evening of 9 March 2012 with her son, Alex Pridham. They were discussing the purchase of a new car for Mr Pridham with a Dutton Motors Sales Assistant, Tim Glover.
They were sitting, speaking with Glover at a desk in the showroom when Ms Pridham noticed two men arguing in another area of the showroom. One of the men was obviously a Dutton Motors employee. Ms Pridham observed the employee and another male exit the showroom together. Ms Pridham said she moved closer to the door to observe the men outside. Once outside she saw the men talking and heard the employee say something similar to “Punch me”, “Are you going to punch me?” She saw the employee get “grabbed” by the other male, moments before the employee was punched in the jaw by him. The men then wrestled on the ground. On Ms Pridham’s evidence, the employee was struck by only a single punch. Glover then intervened to separate the men.
The evidence of Tim Glover was largely consistent with that of Ms Pridham. He was seated with the Pridhams when he noticed the appellant, who was known to him, enter the showroom and start taking photographs. He observed Ware, a work colleague of his, approach the appellant and ask him to leave. Glover and the Pridhams remained seated while Ware and the appellant walked outside. Once the men were outside, he noticed that the voices of the two men got louder. Glover’s view of the men outside was obscured to the extent that he could not see Ware and could only partially see the back of the appellant. He saw the appellant’s right arm draw back and then move forward in a punching motion. He did not see the punch connect, but heard the impact. After the punch, he ran outside to find Ware on the ground and the appellant on top of him. He shouted for the appellant to get off of Ware and saw the appellant’s hand around Ware’s throat. Glover grabbed the appellant in an attempt to remove him from Ware. Moments later the appellant let go of Ware and stood up. The appellant walked away and drove off. Glover helped Ware into the showroom and rang an ambulance for him.
A statement of Mr Pridham, was also tendered by consent (P7), as well as a record of interview involving Mr Pridham, conducted by a defence investigator as part of the defence case (P8).
Mr Pridham’s version of events was also consistent with those of Ms Pridham and Glover, aside from a few variations. Mr Pridham apparently only noticed the two men once they had exited the showroom. One of the men was obviously a Dutton Motors employee and Mr Pridham was informed by Glover that the other man was the owner of the premises. Outside of the main entrance to the showroom, Mr Pridham observed the employee yelling at the landlord as he was walking away and getting into his vehicle. Mr Pridham then saw the landlord exit his vehicle and approach the Dutton Motors employee, yelling back at him. He saw the landlord punch the employee once with his right hand. Mr Pridham said that it was after the punch that he, Ms Pridham and Glover got up from their positions at Glover’s desk and went outside to where the men were on the ground.
Two statements of Constable Nathan Eales were also tendered by consent (P9, P10). He conducted the interview of the appellant, attended the scene following the incident, and subsequently took Ware’s statement in connection to the incident.
Defence Case
The appellant chose not to give evidence, however, his record of interview (‘ROI’) with the police (transcript and audio-visual recording), which was conducted shortly after the incident when the appellant presented himself at Mount Barker Police Station, was tendered by consent in the course of the prosecution case (P1).
It was also agreed that the appellant had no prior convictions and two character references for the appellant were tendered by consent (D1, D2).
The appellant’s version of events, as detailed in the ROI, were considered by the Magistrate as out-of-court statements. The appellant said that he went to Dutton Motors on 9 March 2012 to take photographs in connection to the ongoing legal dispute regarding the premises. A male Dutton Motors employee immediately walked up to him, asking “What can I do for you?” before slapping the camera down and pushing him. The male smelt like alcohol, and when the appellant asked him about it, he said that he had consumed a couple of beers. On the appellant’s version, he left the showroom and walked outside to his vehicle.
When he was in his vehicle about to drive off, he overheard the male talking loudly on the phone, saying “I got rid of him”, “It was easy” and “He’s gone”. The appellant said that he then got out of his vehicle and approached the male, enquiring as to whom he was talking to. On the appellant’s account, the male was the aggressor, getting up in his face, saying “You want to hit me, come on hit me”. The appellant grabbed him around the neck and pushed him back to keep him away. The male then was ‘lunging’ at him, ‘grabbing’ at him and looking as if he was going to hit him. The appellant made a “split decision” in the circumstances and punched the male. The male fell down and the appellant fell backwards onto his elbows. The male got up and tackled the appellant, and the appellant managed to place the male in a headlock on the ground. When Glover arrived, he released his hold on the male.
Relevant Legislation
I set out the relevant parts of s 15 of the CLCA referred to at trial and in argument before me.
(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
(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.
(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)     to prevent or terminate the unlawful imprisonment of himself, herself or another.
(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.
Magistrate’s reasons
The Magistrate found Ware to be a most unconvincing witness who was unreliable and, on at least one occasion, untruthful. He found that parts of Ware’s evidence gave the clear impression that he sought to minimise any suggestion that his conduct was aggressive or provocative. This assessment led to the Magistrate’s conclusion that he would place little weight on Ware’s evidence unless it could be corroborated by other reliable evidence.[4]
[4] Police v Hone (Mr Bennett SM, 13 December 2012, unreported) at [62]-[63].
The Magistrate’s assessments of the other prosecution witnesses were more favourable. Ms Pridham was found to be an honest witness despite her nervousness and, at times, vague evidence.[5] Glover, although limited in what he saw of the incident, was thought to be an impressive witness, in his matter-of-fact manner and his ability to answer questions without hesitation.[6]
[5] Police v Hone (Mr Bennett SM, 13 December 2012, unreported) at [65].
[6] Police v Hone (Mr Bennett SM, 13 December 2012, unreported) at [67].
After carefully considering the witnesses and their evidence, the Magistrate, at [77], found the following facts proven beyond reasonable doubt:
(i)The [appellant] attended at Dutton Motors showroom at about 5:30pm on 9 March 2012 for the purpose of taking photographs in relation to an ongoing legal dispute with Dutton Motors;
(ii)Before he could take any photographs, the [appellant] was confronted by Mr Ware;
(iii)A heated dispute between the two ensued, with the [appellant] at times being abusive and Mr Ware provocative;
(iv)At least on one occasion Mr Ware stood in front of the [appellant], an action which had the consequence of preventing him from taking photographs;
(v)At one point whilst they were inside the showroom the [appellant] made a comment to Mr Ware querying whether he had been drinking (alcohol);
(vi)At Mr Ware’s suggestion, the two males left the showroom;
(vii)The [appellant] got into his vehicle which was parked outside. Mr Ware commenced a call on his mobile phone, loud enough for the [appellant] to hear;
(viii)The [appellant] got out of his vehicle and approached Mr Ware. Both were yelling, with Mr Ware saying (words to the effect) “hit me…you want to hit me…if it makes you feel better, hit me”;
(ix)As the heated confrontation continued, the [appellant] grabbed Mr Ware in the neck area and, shortly after, punched him once to the jaw;
(x)A struggle then ensued with the [appellant] holding Mr Ware in a headlock, or similar, and ultimately positioned over Mr Ware holding him forcefully to the neck or head (with his back on the ground);
(xi)Mr Glover then intervened, grabbing the [appellant]. The [appellant] and Mr Ware separated, with the [appellant] leaving the scene shortly after in his vehicle;
(xii)Mr Ware suffered injuries as a result of the punch by the [appellant]: pain, bleeding, headache and two breaks to his jaw requiring surgery and the insertion of two metal plates and eight screws. The [appellant] suffered abrasions to both elbows as a result of the incident;
(xiii)The [appellant] gave a ROI on 9 March 2012, whilst Mr Ware provided a statement to police on 15 March 2012.
In addition to these facts found proven beyond reasonable doubt, the Magistrate also found the appellant’s version of events as stated in his ROI, in particular what happened before and during the altercation with Ware, to be a reasonable possibility (except where accepted in his findings beyond reasonable doubt, as stated above).
The Magistrate then considered these findings of fact in relation to the law of self defence. He distilled the elements of the defence under s 15(1) of the CLCA as:
(i)Did the [appellant] genuinely believe the conduct to which the charge relates was necessary and reasonable;
(ii)Was the conduct for a defensive purpose;
(iii)If “yes” to (i) and (ii), was the conduct, in the circumstances as the [appellant] genuinely believed them to be, reasonably proportionate to the threat that the [appellant] genuinely believed to exist.

In response to the first element, (i), the Magistrate found that the prosecution did not disprove beyond reasonable doubt that the appellant genuinely believed his actions were necessary and reasonable.[7] At [84], the Magistrate found that it was a reasonable possibility that the appellant genuinely believed in the circumstances that Ware was about to hit him at any moment, as stated in his ROI. The Magistrate was further satisfied that it was a reasonably possibility that the appellant genuinely believed he had to grab, punch and wrestle Ware in order to defend himself from this perceived threat of an imminent punch from Ware. On this basis, the Magistrate held that it was a reasonable possibility that the appellant genuinely believed that his response was necessary and reasonable to the threat posed by Ware.
[7] Police v Hone (Mr Bennett SM, 13 December 2012, unreported) at [87].
As to the second element, (ii), the Magistrate was satisfied that it was a reasonable possibility that the appellant’s grab, punch and wrestle of Ware was for a defensive purpose.[8] The fact that the appellant had the opportunity to leave the premises and the confrontation with Ware when he initially returned to his vehicle was not fatal to this element.
[8] Police v Hone (Mr Bennett SM, 13 December 2012, unreported) at [91].
In consideration of the third and final element of the defence, (iii), the Magistrate divided the appellant’s conduct into three distinct uses of force against Ware: the appellant’s initial holding or grabbing of Ware by the neck, the appellant’s punch to Ware’s face and the appellant’s wrestling and holding of Ware to the ground. The Magistrate found that the appellant’s first action of grabbing Ware by the neck to keep him away was a reasonably proportionate reaction to the advances of Ware, who he believed was about to hit him. The Magistrate also found that the appellant’s final action of wrestling Ware and holding him to the ground was a reasonably proportionate response to being tackled by Ware. However, the Magistrate found the proportionality of the appellant’s punch to Ware “more troubling”. The Magistrate found that, in the circumstances where the appellant believed that Ware was about to hit him at any moment, and having already initially grabbed Ware by the neck to keep him some distance away from him, a subsequent, reasonably proportionate action would have been to “forcefully grab, hold or restrain” Ware such as the appellant did following the punch. Given this available alternative means of forestalling an attack from Ware, the appellant’s pre-emptive punch to Ware was held not to be a reasonably proportionate response to the threat posed by Ware.
It is on this basis that the Magistrate held that a defence of self defence was precluded in relation to the single punch delivered by the appellant to Ware’s face and was satisfied that the prosecution proved the charge of assault causing harm against the appellant in relation to this use of force.
Appeal
I set out the grounds of appeal.
1.The learned Special Magistrate erred in failing to apply Section 15B of the Criminal Law Consolidation Act 1935 (SA).
(i)    The Magistrate failed to consider in assessing reasonable proportionality, as the appellant believed to exist, that the force can exceed the force used against him.
2.The learned Special Magistrate erred in applying the test of reasonable proportionality.
(i)    The Magistrate accepted that the genuine belief of the appellant was that he was going to be hit. Having accepted that as his genuine belief he then applied the wrong test, in that he applied the test objectively to the force actually used up to that point and not [to] the genuine belief of the accused as to the force he believed to be applied – namely a hit.
(ii)     The Magistrate erred in finding that the appellant was only permitted to ‘grab hold or restrain’ the victim when he had already accepted that the appellant had a genuine belief he was about to be hit. In other words, it can not be disproportionate to hit someone who you genuinely believe is about to hit you.
3.The learned Special Magistrate erred in all the circumstance[s] in finding that the actions of the [appellant] were disproportionate to the threat which he faced.
I will deal with each ground in turn.
Ground 1 – The learned Special Magistrate erred in failing to apply s 15B of the CLCA
Section 15B of the CLCA relevantly provides:
A requirement under this Division that the defendant’s conduct be (objectively) reasonably proportionate to the threat that the defendant genuinely believed to exist does not imply that the force used by the defendant cannot exceed the force used against him or her.
Mr Boucaut submits that the Magistrate failed to consider s 15B. He argues that the omission of any specific reference to s 15B in the Magistrate’s judgment indicates that the Magistrate failed to consider and apply the provision in the course of arriving at his finding.
I reject that argument. The Magistrate was not required to explicitly direct himself as to the effect of s 15B. Section 15B is a provision which is supplementary to s 15 (and 15A, which is not applicable to the present case). Section 15 requires that the force used in defence be (objectively) reasonably proportionate to the threat or perceived threat. Section 15B merely clarifies that requirement,[9] making it clear that, even though the requirement is assessed objectively, an individual’s use of force is not automatically disproportionate simply because it exceeds the initial use of force against that individual.
[9] South Australia, Parliamentary Debates, Legislative Council, 26 May 2003, 2393 (P. Holloway, Minister for Agriculture, Food and Fisheries).
Although the appellant’s punch to Ware plainly exceeded any initial use of force against the appellant (Ware’s ‘grabbing’ of the appellant), there was no suggestion that his Honour’s ultimate conclusion as to the proportionality of the punch was determined upon this fact alone, contrary to s 15B. In fact it is evident from the Magistrate’s reasons that this was not the case.
His Honour clearly identified the appellant’s subjective genuine belief as fearing an imminent punch from Ware, and logically surmised, at [97], that it would have been a reasonably proportionate response to this threat to “forcefully grab, hold or restrain Mr Ware (such as he did after punching him)”. The punch, however, was found not to be reasonably proportionate because it was excessive. The Magistrate’s use of the word ‘excessive’ in this context does not solely refer to the force of the appellant’s punch being in excess of Ware’s initial ‘grabbing’ of the appellant. Rather, it also refers to the fact that the punch was found to be in excess of what response was reasonably necessary by the appellant in order to defend himself from an imminent punch from Ware.
The Magistrate’s understanding of the effect of s 15B is apparent from the fact that his reasoning is not limited to the force of the appellant’s punch exceeding that of Ware’s ‘grabbing’. His Honour proceeded to properly consider the proportionality of the appellant’s punch pursuant to s 15(1)(b) in the context of the appellant’s genuine belief. Given this clear understanding of the effect of s 15B, his Honour was not required to refer to the specific provision of s 15B or use the exact words of s 15B in the course of his reasons. Indeed, a trial Judge in summing up to a jury does not need to use the exact words of s 15B in his or her charge if it is clear that the effect of the provision is understood.[10]
[10] R v Edwards [2007] SASC 202, at [110]-[112].
I dismiss this ground of appeal.
Ground 2 – The learned Special Magistrate erred in applying the test of reasonable proportionality
Mr Boucaut argues that the Magistrate erred in his application of the test of reasonable proportionality under s 15(1)(b) of the CLCA. The argument consists of two parts. I will deal with each in turn.
Firstly, Mr Boucaut contends that the Magistrate, having made a finding as to the appellant’s genuine belief of the threat posed by Ware, subsequently did not assess the proportionality of the appellant’s punch in the context of this subjective belief. He submits that the Magistrate erred by either completely disregarding this subjective belief of the appellant and adopting an objective view of the circumstances in his assessment, or by using a subjective belief of the appellant, different to his earlier findings on the topic.
As a basis for these submissions, Mr Boucaut relied on comments made by the Magistrate at [96]-[97] of his judgment. I set these paragraphs out in full:
[96]The actions of persons concerned to defend themselves should not be measured with artificial precision. The test is whether the force used was reasonably, not exactly proportionate. In a heated confrontation people often act on a ‘split decision’ (as the [appellant] put it – P1, p17, [11]). However, I consider the forceful punch delivered to Mr Ware’s face to be a substantial escalation of, what had been to this point, mostly a verbal confrontation. Though the [appellant] said Mr Ware was angry, in close proximity and grabbing at him, neither the [appellant] (nor other evidence) suggested Mr Ware had clenched fist(s) or moved his arm(s) in any way as if to punch or swing at him.
[97]In those circumstances, given the threat perceived by the [appellant], it would have been reasonably proportionate to forcefully grab, hold or restrain Mr. Ware (such as he did after punching him). But in delivering a forceful punch, sufficient to cause injury to Mr. Ware, I consider Mr Hone “plainly overstepp(ed) (sic) the mark” (Morgan v Coleman Wells J at 336). It was an act of excessive self defence. I am satisfied that the prosecution have disproved beyond reasonable doubt that the [appellant’s] action in punching Mr. Ware once to the face was reasonably proportionate to the threat as he believed it to be.
Mr Boucaut submits that the Magistrate’s description of the appellant’s punch as “a substantial escalation of…a verbal confrontation” indicates that the Magistrate erred by failing to consider the proportionality of the appellant’s punch in the context of the appellant’s subjective belief of the threat posed by Ware. Mr Boucaut argues that the Magistrate considered the proportionality of the punch as against the actual force that had been used against the appellant (Ware’s ‘grabbing’ of the appellant), rather than against the greater threat, as genuinely perceived by the appellant, that Ware was about to punch him at any moment.
Further, Mr Boucaut submits that the Magistrate’s subsequent remark that there was no suggestion that Ware had “clenched fist(s) or moved his arm(s) in any way as if to punch or swing” at the appellant casts further doubt over the Magistrate’s application of the test of reasonable proportionality. He argues that the Magistrate, having found at [84] that it was a reasonable possibility that the appellant genuinely believed that he would be hit by Ware if he made a single movement, could not subsequently adopt a lesser threat as the genuine belief of the appellant when it came to assessing the proportionality of the appellant’s punch. Mr Boucaut contends that the Magistrate’s consideration of the fact that Ware had unclenched fists and stationary arms immediately before the punch, did exactly that: lessened the threat as found by the Magistrate to be genuinely perceived by the appellant by suggesting, for example, that the punch from Ware was less immediate.
It is unfortunate that certain aspects of the Magistrates reasons at [96]-[97], when isolated, are capable of causing confusion about the proper application of the objective test of proportionality under s 15(1)(b) of the CLCA. However, I am not satisfied that they alone indicate an error in the Magistrate’s reasoning. When the Magistrate’s reasons in [96]-[97] are read in their entirety, and in conjunction with the judgment as a whole, it is clear that the Magistrate understood the requirement under s 15(1)(b) of the CLCA to assess the proportionality of the appellant’s punch in the context of the appellant’s subjective belief, and it is apparent that he in fact did so.
It is on this basis that I reject that argument.
The second part of this ground of appeal concerns the Magistrate’s finding that the reasonably proportionate response to the threat that the appellant genuinely perceived was to forcefully grab, hold, or restrain Ware, as the appellant did following the punch. Mr Boucaut argues that it cannot be disproportionate for the appellant to have punched Ware, genuinely believing that Ware was about to punch him.
This argument cannot be accepted. It cannot be said that in every case where an individual genuinely perceives an immediate threat of a punch from another individual, that it would be deemed reasonably necessary in every such case for that individual to protect him or herself by pre-emptively punching that other individual. Regardless of the equal use of force, it is well established that “in the long run, every case must depend on its own particular facts”.[11]
[11] Morgan v Coleman (1981) 27 SASR 334, 337.
In the present case, the Magistrate closely considered the appellant’s version of events so as to carefully discern the appellant’s genuine perception of the threat posed by Ware. His Honour even later revisited the appellant’s version of events (at [96]-[97]) in order to be certain as the exact immediacy and circumstances of the threat posed by Ware. It is after this careful consideration that the Magistrate concluded that the reasonably proportionate response by the appellant, in the circumstances and facing the threat posed by Ware as the appellant perceived, was to forcefully grab, hold, or restrain Ware, rather than punch him. There is no basis to interfere with the Magistrate’s finding as to proportionality in this respect.
I reject this argument and dismiss this ground of appeal.
Ground 3 – The learned Special Magistrate erred in all the circumstances in finding that the actions of the [appellant] were disproportionate to the threat which he faced.
This ground is largely dispensed with by my dismissal of the preceding two grounds of appeal. I can find no further basis for interfering with the Magistrate’s finding as to proportionality. For this reason, and those reasons already stated, I dismiss this ground of appeal.
Conclusion
I dismiss the appeal.