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…

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 Hone v Police

Details

AGLC: Hone v Police [2013] SASC 41
Case: [2013] SASC 41
Decision Date: 26 March 2013

CaseChat Overview and Summary

In the matter of Hone v Police, the appellant contested his conviction for assault, which arose from an incident involving an altercation with another male. The appellant was found guilty by a Magistrate of one count of assault, having applied three distinct acts of force to the male. The appellant argued that he acted in self-defence, a claim that was ultimately rejected by the Magistrate, who determined that the appellant's actions were not reasonably proportionate to the threat he believed was posed by the other male. The Supreme Court of South Australia heard the appeal against the conviction, focusing on whether the Magistrate erred in his assessment of the proportionality of the appellant's actions.

The central legal issue in this appeal was whether the Magistrate correctly assessed the proportionality of the appellant's response in the context of self-defence. The court considered whether the appellant's actions, particularly the punch to the male's face, were reasonably proportionate to the perceived threat. The test for proportionality under s 15(1)(b) of the Criminal Law Consolidation Act 1935 (SA) was applied, which requires that the force used in defence must not be greater than what is necessary under the circumstances. The court examined whether the Magistrate's findings were consistent with this statutory requirement.

The Supreme Court found that the Magistrate's assessment of the proportionality of the appellant's actions was not erroneous. The court held that the Magistrate had correctly applied the statutory test for proportionality and that the appellant's actions were not reasonably proportionate because a lesser force could have been used to defend against the perceived threat. The omission of a specific reference to s 15B of the Criminal Law Consolidation Act 1935 (SA) did not indicate that the Magistrate failed to consider the relevant legal principles. The court concluded that the Magistrate's overall reasoning demonstrated a proper understanding and application of the proportionality test.

The appeal was dismissed, affirming the Magistrate's conviction. The court determined that there was no basis for interfering with the Magistrate's findings, and the appeal was consequently rejected. The Supreme Court's decision underscores the importance of a balanced approach to self-defence claims, where the proportionality of the response must be carefully evaluated in the context of the perceived threat and available alternatives.

Orders

Orders of the court

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.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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.

Ratio Decidendi

Legal Principle Established

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