HONSON v Police - [2005] SASC 232

SUPREME COURT OF SOUTH AUSTRALIA
(Magistrates Appeals: Criminal)
HONSON v POLICE
Judgment of The Honourable Justice Duggan
30 June 2005
CRIMINAL LAW - APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION - APPEAL AND NEW TRIAL
CRIMINAL LAW - PARTICULAR OFFENCES - OFFENCES AGAINST THE PERSON
Appeal against conviction for assault - appellant claimed self-defence pursuant to Criminal Law Consolidation Act 1935 s 15 - whether magistrate properly considered the issue of self-defence - in light of magistrate's findings on the facts the rejection of the defence of self-defence was inevitable - whether magistrate failed to have regard to the presumption of innocence in context of defence of self-defence - whether verdict unsafe and unsatisfactory - finding of guilt beyond reasonable doubt was open to the magistrate - appeal dismissed.
Criminal Law Consolidation Act 1935 s 15, referred to.
R v Petty and Maiden (1991) 173 CLR 95; M v The Queen (1994) 181 CLR 487, applied.

HONSON v POLICE
[2005] SASC 232
Magistrates Appeal

DUGGAN J. This is an appeal against a conviction for assault recorded against the appellant in the Port Pirie Magistrates Court. The central issue in the summary trial was whether the appellant was acting in self-defence.
The appellant was charged with assaulting Christopher Plane contrary to s 39(1) of the Criminal Law Consolidation Act 1935 (“the Act”) at Morphettville on 12 December 2003. At the time of the alleged offence Mr Plane was living with Melissa Garrard who had been involved in a relationship with the appellant. Ms Garrard and the appellant have two daughters who were living with the appellant at the time of the incident.
According to the prosecution case, the appellant arrived at Mr Plane’s premises late in the evening of 12 December and knocked loudly on the door. Mr Plane and Ms Garrard were in bed. Ms Garrard went to the door and Mr Plane followed her. When Mr Plane went outside he saw the appellant chasing one of their dogs across the yard. The appellant then attacked Mr Plane and held him down whilst gouging him in the vicinity of his eyes. One of the dogs then commenced to attack the appellant while the two men were on the ground. Ms Garrard went to telephone the police. She then came outside and hit the appellant on the back with a piece of wood while he was grappling with Mr Plane. Mr Plane gave evidence that during the alleged attack upon him the appellant threw him against a wall so that he injured his head. He also said that the appellant kicked him.
Ms Garrard described the appellant’s original approach to Mr Plane as “flying” at him. Eventually the appellant left the premises and the police arrived.
The appellant said in evidence that he had brought his two daughters to Adelaide from Port Broughton for a short stay and they were staying at Campbelltown. He said that on the morning of 12 December he spoke to Ms Garrard over the telephone and arranged for her to drive him and the girls back to Port Broughton. He said that at about 7.30 or 8.00 pm that evening he received a telephone call from Ms Garrard who said she could not drive them to Port Broughton because Mr Plane was unhappy about the arrangements. He said Mr Plane then came to the telephone and began abusing him before inviting him to come over to discuss the matter. The appellant said that after the telephone conversation he thought about what had happened and decided to go over to Mr Plane’s house for a further discussion. He said he got a taxi and went to Morphettville.
The appellant said that when he went into the yard Mr Plane was there with his two dogs. Mr Plane called out “fix him up” and the dogs went towards the appellant. One of them began biting him. The appellant gave evidence that Mr Plane then came at him swinging punches and hitting him in the face. Mr Plane grabbed him and the two men struggled with each other. Ms Garrard also hit him with a wooden object. Eventually, he left the premises and returned to Campbelltown.
The learned magistrate made the following findings of fact:
Having listened carefully and observed both the victim and Melissa I have found each of them to be far more credible and believable witnesses than the defendant. The defendant’s version of arriving to have a conversation or discussion, is a version which I reject. He had, in his own mind at least, reason to feel aggrieved. I am satisfied that he was feeling aggrieved. I am satisfied that at the time he arrived at the property in question he was agitated. I am satisfied that, at that time, both the victim and Melissa Garrard were in bed. I find the incident occurred at about midnight or shortly afterwards. I find that he did bang on the sliding door. I find that Melissa spoke to him and asked him to leave, but he did not do so. I find that Plane was a little slower in getting dressed and going outside than was Melissa. I find that when Plane did go outside that he was attacked physically by the defendant who tackled him to the ground, who got on top of Plane, who did endeavour to gouge at his eyes, who struck blows at him and that he thrust his body, the victim’s body, towards a wall causing his head to come into contact with that hard surface which resulted in a cut and bleeding from the head. I find that the injuries sustained by the defendant were largely sustained as a result of dog bites. I reject the defendant’s evidence that either Plane or Melissa encouraged the dog to attack him. It was, I find, something that did occur but not out of the realm of what one might expect when a dog sees its master, or somebody it knows well, apparently being attacked by another party. I find that there may well have been some minor injury to the defendant, but that was as a result of Plane using reasonable force to protect himself from the assault upon him by the defendant.
The magistrate rejected the appellant’s claim of self-defence and found the charged proved.
The first ground of appeal complains that the magistrate did not properly consider the issue of self-defence and that his reasons on this issue were inadequate.
The facts of the case came within a narrow compass and the application of the test for the statutory defence of self-defence to the facts did not give rise to any particular difficulty. It was clear enough that, if the prosecution witnesses were accepted beyond reasonable doubt, the appellant could not have been acting in self-defence. On the other hand, if the appellant’s version was reasonably possible it followed that he had been acting in self-defence.
The magistrate did not go into detail when dealing with self-defence in his extempore reasons. However, at the outset of his reasons he stated that he bore in mind the provisions of s 15 of the Act and continued:
Pursuant to subsection (1) thereof it is a defence to a charge if the defendant genuinely believed that the conduct to which the charge relates was necessary or reasonable for a defensive purpose and that the conduct was reasonably proportionate to the threat that the defendant genuinely believed to exist. I agree that in this matter the defendant has raised that defence. Subsection (5) of the same section provides that 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.
At the conclusion of his reasons he said:
Accordingly I find the charge to be established beyond reasonable doubt. I reject the defendant’s suggested defence. I am satisfied beyond reasonable doubt that this was not a case of self defence. It was a case of deliberate assault by the defendant upon the victim. Accordingly the case against the defendant is found to the [sic] proven.
In my view it is apparent from the magistrate’s reasons that he had a proper understanding of the defence and that he applied it to the facts of the case. In the light of his findings on the facts the rejection of the defence was inevitable. The ground of appeal relating to self-defence must be dismissed.
The next ground of appeal arises from a comment by the magistrate in his reasons concerning the appellant’s interview with the police. The appellant was not interviewed until 19 September 2004. When the allegation of assault was put to him he said “I protected myself”. When the specific allegations of the prosecution witnesses were put to him and he was asked for his comment he gave the following answers:
Police officer,              PLANE alleges that he lived at that address, 15 Owen Street, MORPHETTVILLE with a Melissa GARRARD. And it is my understanding that Melissa is your ex partner?
Appellant,‘Yes’.
Police officer,              ‘He says that you attended at the house and punched him in the head numerous times. Have you any comment to make about that?
Appellant,‘Ah. No not really.’
Police officer,              ‘He said that you kicked him in to stomach and threw him against a brick wall. And his head was spilt [sic]. Have you any comment to make about that?’
Appellant,‘I can’t really say.’
Police officer,              ‘He says, he says he is suffering or suffered bruising and an inch long split to the top of the head. Any comment to make about that?’
Appellant,‘Not really.’
Police officer,              ‘He says that you ‘eye gouged’ him. Any comment to make about that?’
Appellant,‘No. Not really.’
When asked to give his version of what happened he said:
I got to Chris’s. I caught a taxi, I got to Chris’ place I opened the side gate of his house which is the way that you get into the door. As I walked in Chris came out, two dogs one which names Floyd and the others names Axle, they came out Chris souled them onto me. As the dog were chewing on my legs he came in and started punching into me. I have got scars up here on my eyebrows where he was hitting me and in the process I grabbed hold of Chris and what ever happened after that. I cant really tell you, all I know is that I went home later on. I have got scars all over both of my legs, scars on my eyebrows from where the dog and Chris both attacked me. All three of them. All’s I was doing was defending myself. And Melissa came out and hit me across the back with a lump of wood and after that about ½ a dozen people from Chris’ neighbourhood came in, started yelling and screaming. They rang the Police, I walked out. I went to a phone box, I rang a Taxi and I went back home. Back to Melissa’s sister’s house.
When commenting on the interview the trial judge said:
I mention briefly the record of interview P1, between the defendant and the police officers who interviewed him some nine months later. The answers given by the defendant to the assertions made by the prosecution and his invitation to make any comment were an opportunity to him to put forward his version of what occurred. His answers I agree are ambivalent, saying ‘I can’t really say’ or ‘not really’ or expressions that nature. So there are no actual admissions as such, but it is surprising that he did not take the opportunity that he then had of putting forward his explanation.
The complaint made in relation to this comment in the relevant ground of appeal is that it indicates that the magistrate failed to have regard to the presumption of innocence and that he failed to properly apply the onus of proof in the context of the defence of self-defence. In the course of argument Mr Rainford, for the appellant, submitted that the comments disclosed a failure to pay proper regard to the right to silence.
If the appellant had exercised his right to silence and said nothing at all in answer to the allegations it would have been wrong to infer anything adverse to his case in general and the defence of self-defence in particular. However, in those cases in which a suspect does submit to interview and answers the allegations it may be of significance that he does not mention some important matters which he raises subsequently: R v Petty and Maiden (1991) 173 CLR 95 at 102-103.
That having been said, I think there was little, if any, significance in the early answers given by the appellant in his interview. When read as a whole the interview discloses that the appellant did indicate he was acting in self-defence and he gave brief details of the circumstances. The magistrate’s comment that “it is surprising that he did not take the opportunity that he then had of putting forward his explanation” is open to question. However, I think it is properly regarded as a comment in passing as opposed to a circumstance to which the magistrate attached significance.
The next issue raised on appeal concerns the finding that the incident occurred at about 12.00 to 12.15 pm. The magistrate had this to say on this aspect:
There appears to be no dispute, and I find it to be the fact, that the incident in question occurred at about 12.00 to 12.15 a.m. on the 12 December 2003. I should identify that I am giving these reasons ex-tempore. As such I reserve the right to edit them for grammatical or other minor errors. I mention now that probably my summary just given did itself contain an error. Whilst I am satisfied that the incident in question did occur at around about midnight or some time between midnight and 12.15, that actually is a finding which I make, which is contrary to the evidence of the defendant. The defendant’s evidence to me was that he had caught a taxi and he caught the taxi between 10 and 10.15 p.m. He caught the taxi to the home where he knew he would find Christopher Plane and his former partner Melissa Garrard. I am satisfied that the incident which occurred did occur at about midnight, because I am satisfied that the evidence of both Melissa Garrard and Christopher Plane is to be accepted that the incident occurred after they had gone to bed. I also have no hesitation in accepting the evidence of Melissa Garrard, which is direct evidence, but which is supported by the evidence of Plane, that during the course of the incident (to use a neutral expression) involving the defendant and Plane, that Melissa phoned the police. Both Melissa Garrard and the victim say that the police arrived shortly after the incident came to an end.
At the end of the prosecution case I was informed that there were certain facts that were agreed and facts which obviated the need for the calling of a couple of police witnesses. I was told it was agreed that a Constable Holmes in company with a Constable Wood attended at the address of the premises where the incident occurred at about 12.15. It is very probable that there would have been, as the 2 prosecution witnesses have said, a quick police response to a call of the sort deposed to by Melissa Garrard. Everything in my view points to the incident occurring shortly before the police arrived and at about the time identified by Miss Garrard and Plane, viz at about 12 midnight or a little after that. This little point has some significance. It is the defendant’s case that his attendance at these premises upon this occasion were an attendance by him in response to a suggestion made earlier that day by phone that he should come and talk to Plane (and presumably Melissa Garrard) about some on-going issues to do with contact, in particular between the defendant, the defendant’s former partner Melissa and the 2 children who were in the care of the defendant at that time. It is one proposition to say that a visit at 10.00 or 10.15 might feasibly and reasonably be thought to be a visit to talk over a problem, although this is rather late, but the suggestion that this was a visit with that innocent purpose at 12 midnight or shortly after that, to my mind is a much less probable and much more difficult proposition to accept.
In my view these findings were open on the evidence.
Mr Plane said that the knocking on the door occurred just after midnight. Ms Garrard said it was “around midnight”. It would appear that the police arrived not long afterwards and in cross-examination Mr Rainford put to the witnesses that they gave their statements at approximately 12.15 am. He was cross-examining from the police statements and it appears to have been common ground that the interviews took place at about this time.
The appellant said he got the taxi at about 10.00 or 10.15 pm from the other side of the city and went to Morphettville. If this was so he would have arrived at about 10.30 or 10.45 pm.
The point made by the magistrate was that it would have been strange for the appellant to visit at a late stage in the evening in order to discuss the problem with the transport. The magistrate acknowledged the different versions as to time but accepted the prosecution witnesses. As I have said, it was open to him to do so.
Mr Rainford drew attention to a series of discrepancies in the evidence of the prosecution witnesses. I have considered each of them, but I am satisfied that they are not of such a nature as to give rise to significant concern in relation to the veracity of the prosecution witnesses.
The grounds of appeal allege that the verdict was unsafe and unsatisfactory. I have read the evidence in its entirety and considered it in accordance with the requirements referred to in M v The Queen (1994) 181 CLR 487. After conducting this independent assessment of the evidence, I have reached the conclusion that the finding of guilt beyond reasonable doubt was open to the magistrate.
In my view the grounds of appeal are without merit. The appeal will be dismissed.