Hopkinson v Wilkie - [2020] TASSC 32

[2020] TASSC 32

COURT: SUPREME COURT OF TASMANIA

CITATION: Hopkinson v Wilkie [2020] TASSC 32

PARTIES:  HOPKINSON, Michael John
  v
  WILKIE, Scott

FILE NO:  LCA 521/2020
DELIVERED ON:  3 July 2020
DELIVERED AT:  Hobart
HEARING DATES:  12 June 2020 and 24 June 2020
JUDGMENT OF:  Wood J
CATCHWORDS:

Criminal Law – Particular offences – Assault – Consent – Assault occurred in a domestic setting – Where magistrate expressed the view that consent does not provide a defence to assaults upon victims of family violence – Open on evidence for magistrate to find that no consent was given by the complainant.

Police Offences Act1935 (Tas), s 35(1).
Criminal Code (Tas), ss 2A and 182(4).
R v Holmes (1993) 2 Tas R 232; Lane v Purcell [2011] TASMC 19, referred to.
Aust Dig Criminal Law [2214]

REPRESENTATION:

Counsel:
             Appellant:  K Baumeler
             Respondent:  V Dawkins
Solicitors:
             Respondent:  Director of Public Prosecutions

Judgment Number: [2020] TASSC 32
Number of paragraphs: 40

Serial No 32/2020
File No LCA 521/2020

MICHAEL JOHN HOPKINSON v SCOTT WILKIE

REASONS FOR JUDGMENT WOOD J

3 July 2020

The applicant, Michael John Hopkinson, was charged with assaulting his partner on 3 September 2019 and he pleaded not guilty. After a hearing, the learned magistrate, Mr CP Webster, found him guilty. The defendant seeks to review that conviction. The single ground of review is that "the learned magistrate erred in law in finding that the complainant to the assault allegation was unable to consent to the assault taking place, thereby convicting the applicant". The ground is ambiguously worded, it is not, as the ground might suggest, concerned with the complainant's capacity to consent. Rather, it relates to the legal ambit of the defence of consent. The alleged assault took place in a domestic setting when the complainant and the defendant were in a relationship. The magistrate stated that the defence of consent does not have application to that situation. That is said to be the error of law. It is argued that the defence of consent has application generally, including to cases of family violence.
The charge is one of common assault contrary to s 35(1) of the Police Offences Act 1935. The particulars are that he unlawfully assaulted Rebecca Jones by: "punching her to the head; pulling her hair; dragging her from the couch."
There were three witnesses called for the prosecution: the complainant Rebecca Jones, also known as Rebecca Brown, an eye-witness Gaylene Shelton, and a police officer, Constable Brendan Sumpton, who attended the address after the assault. The applicant participated in a police interview during which he was asked about the allegations and he made no comment. At one point of the interview, the allegation of a punch was put to him and he denied punching the complainant.
The following is a summary of the evidence of the three witnesses for the prosecution. The applicant did not give or adduce evidence.

The complainant’s evidence

As noted, Rebecca Brown is the applicant's partner. They have been in a relationship for seven years. On 3 September 2019, she was at her friend Lisa Shelton's house in Lutana. She was trying to sell a mobile phone that belonged to her and the applicant. She had put it on Facebook for sale. The applicant came around that night and "there was a little bit of an argument" over the phone. She gave him the phone and he left. During the argument, she kicked him.
A statutory declaration made by the complainant was tendered during her evidence. It provided that "Michael came to Lisa's house and Lisa let him in". He was yelling at her "Give me the phone". She was not going to give it to him, "so he hit me with his fists to the right cheekbone area".
When asked whether she agreed that that happened she said no. She gave evidence that she kicked Michael first and he tried to hold her down. "Michael didn't punch me – full on punch me". She added if she had any marks on her it was because Michael was trying to calm her and he held her down. She said he did not strike her or punch her. She was never "force punched".
She gave evidence that apart from the reference to the punch, other parts of her statutory declaration were true. She agreed with the content of her statutory declaration that Michael had grabbed her by the hair and ripped some out and tried to pull her off the couch. That was when she kicked him and, in doing so, her pyjama pants were ripped.
In cross-examination, she maintained she had kicked the applicant and also agreed that she was "hitting him", although there was no detail given by her as to the nature of the hitting. The following exchange occurred:
"MS BAUMELER: Right. Okay. All right. So in terms of the summary of what's going on, both of you were involved in an altercation?
BROWN: Yeah.
MS BAUMELER: In a fight between the – over the phone?
BROWN: Yeah
MS BAUMELER: You're trying to stop him from getting the phone. He's trying to get the phone from you?
BROWN: He never forced himself onto me to get the phone.
MS BAUMELER: No, but that's what he's grabbing for; is that right?
BROWN: Yeah
MS BAUMELER: Yep. And - ?
BROWN: (indistinct words)
MS BAUMELER: Yep. And were you consenting to be involved in this fight?
BROWN: Yep
MS BAUMELER: Yep. Okay. And then he gets the phone and leaves; is that right?
BROWN: No, I give him the phone."
She agreed that she was involved in a "mutual argument" with Michael.
This part of the cross-examination is heavily relied on in this appeal. It can be seen that the cross-examination regarding the "argument" or "fight over the phone" did not involve the applicant punching the complainant or the other allegations of assault as particularised in the charge.

Gaylene Shelton

Ms Shelton, Lisa Shelton's mother, was present at the house when "Michael barged in". She saw him in the lounge-room abusing the complainant calling her a "slut"; he wanted the phone. She ended up throwing the phone and he punched her with a closed fist to the head. She described the blow as involving "fair force", she heard the thump. Then he picked up the phone and left. She followed him out and he was yelling that he was going to go and get a gun and come back and blow her head off.
In cross-examination, she agreed that there was a verbal argument between them about the phone, and that was when he was calling her a slut. It was then that he leaned over and punched her. She agreed that she saw a movement of the applicant's arm, she heard the connection but did not see it.

Constable Brendan Sumpton

Constable Sumpton went to the address and spoke to the complainant. The complainant stated that the applicant had turned up to the address, assaulted her, ripped her pyjamas, taken her phone and pulled her off the couch. He took a statutory declaration from her. He observed she had some redness to her right cheek and a rip in her pyjamas.
In closing, Ms Baumeler, counsel for the applicant, submitted that the court could not rule out that there was a mutual fight between the complainant and the applicant. She highlighted that the complainant agreed that she kicked the applicant and that the evidence of Ms Shelton was that she had witnessed a verbal argument and she did not corroborate the allegations of assault apart from the punch, and she did not see the punch connect.

The decision

The learned magistrate gave an ex tempore oral decision:
"HIS HONOUR: Okay. Well I find the case of the assault proved to the extent that I'm satisfied beyond reasonable doubt that the defendant punched the – Gaylene – sorry, not Gaylene Shelton, Rebecca Jane Brown to the head in the manner described by Ms Shelton. I thought that Ms Shelton was an impressive witness, stated no more than she saw, and she saw, in her evidence, the defendant force his way into the house. He was abusing the person – the victim. 'He's called me a slut', and he threw – he punched her to the head. She saw a punch being thrown. She heard the hit, perhaps the strike.
I infer that – well, I come to the conclusion that he actually struck her. And although I don't accept Ms Brown as a witness of the truth, except where corroborated by others, of course she does corroborate that because she does say, 'I was struck to the head by the defendant'. So that's corroboration of the assault and I don't accept that there was consent. Indeed, I don't even know – I know your case on that, Ms Baumeler. I've ruled against you once before. I ruled against you when you used the same (indistinct words) and – but that applied to fights between brothers, and when they're agreed to have a fight. It applied to prize fights.
It doesn't apply to victims of domestic violence, I'm sure, where the victims have agreed to be punched. It would be completely against public policy. Anyway, there's no evidence that she was punched by her consent, and I inferred (indistinct word) and I (indistinct word) from all the circumstances in that the defendant was angry because she'd taken the phone. He pushed through the door. She tried to stop him, and she went to the couch, but there was no consent in there."
It can be seen that the only particular of assault found proved was the punching to the head, as described by Ms Shelton.

The law regarding assault and consent

The Police Offences Act, s 35, relevantly provides:
"35 Common assault and aggravated assault
(1) A person shall not unlawfully assault another person."
There is no definition of common assault.
Section 36 of the Acts Interpretation Act 1931 provides:
"36 Crimes and offences where similar to be similarly dealt with
(1) Where an act or omission constitutes a crime under the provisions of any Act and the like act or omission constitutes an offence punishable summarily under the provisions of some other Act, the principles of criminal responsibility applicable in relation to such crime shall be applied in relation to such offence, and all terms and expressions used in relation to such offence shall have the same meaning and construction as when similarly used in relation to such crime.
(2) In any such case as aforesaid, the provisions of the Criminal Code, so far as the same are applicable and to the extent hereinbefore provided, shall be applied in relation to any such offence."
This leads to the definition of assault in the Criminal Code, s 182:
"182 Definition of assault
(1) An assault is the act of intentionally applying force to the person of another, directly or indirectly, or attempting or threatening by any gesture to apply such force to the person of another if the person making the attempt or threat has, or causes the other to believe on reasonable grounds that he has, present ability to effect his purpose; or the act of depriving another of his liberty.
(2) Words alone cannot constitute an assault.
(3) An act which is reasonably necessary for the common intercourse of life if done only for the purpose of such intercourse, and which is not disproportionate to the occasion, does not constitute an assault.
(4) Except in cases in which it is specially provided that consent cannot be given, or shall not be a defence, an assault is not unlawful if committed with the consent of the person assaulted unless the act is otherwise unlawful, and the injury is of such a nature, or is done under such circumstances, as to be injurious to the public, as well as to the person assaulted, and to involve a breach of the peace."
Consent is defined in s 2A of the Code:
"2A Consent
(1) In the Code, unless the contrary intention appears, 'consent' means free agreement.
(2) Without limiting the meaning of 'free agreement', and without limiting what may constitute 'free agreement' or 'not free agreement', a person does not freely agree to an act if the person –
(a) does not say or do anything to communicate consent; or
(b) agrees or submits because of force, or a reasonable fear of force, to him or her or to another person; or
(c) agrees or submits because of a threat of any kind against him or her or against another person; or
(d) agrees or submits because he or she or another person is unlawfully detained; or
(e) agrees or submits because he or she is overborne by the nature or position of another person; or
(f) agrees or submits because of the fraud of the accused; or
(g) is reasonably mistaken about the nature or purpose of the act or the identity of the accused; or
(h) is asleep, unconscious or so affected by alcohol or another drug as to be unable to form a rational opinion in respect of the matter for which consent is required; or
(i) is unable to understand the nature of the act.
(3) If a person, against whom a crime is alleged to have been committed under chapters XIV or XX , suffers grievous bodily harm as a result of, or in connection with, such a crime, the grievous bodily harm so suffered is evidence of the lack of consent on the part of that person unless the contrary is shown."
In R v Holmes (1993) 2 Tas R 232, Wright J referred to English and Canadian decisions and adopted the common law principle that valid consent could not be given to force which is intended to and does cause bodily harm. In that case, his Honour identified the essential question for the jury as being whether they were satisfied beyond reasonable doubt that the blows struck by the accused were likely to or were intended by him to cause bodily harm to the complainant. His Honour noted that 'bodily harm' in this context has its usual meaning and includes any hurt or injury which interferes with the health or comfort of the complainant. It need not be permanent but it must be more than transient or trifling. Wright J noted that if the jury were so satisfied, any consent, whether express or implied, becomes irrelevant.
As a consequence of this approach, the defence of consent has a very limited application. It means that most fights are unlawful regardless of consent.
In the trial of State of Tasmania v KA Palmer and ME Palmer, 22 October 2010, it was argued by Crown counsel that in light of the terms of s 182(4) and that the exception of 'bodily harm' is not mentioned, R v Holmes should not be followed.
The trial judge in Palmer, Blow J (as he then was) ruled as follows:
"I think that Wright J made a mistake in Holmes and that the common law, that because of the wording of our Criminal Code there is no place for a direction to the jury in this State that an assault that is consented to is unlawful if it was intended or likely to cause bodily harm and does cause bodily harm. If – I think the law must be found in the provisions of the Code that Ms Rudolf has referred to s (182) subs (4) and s (53)."
His Honour then enquired whether the Crown sought a direction in terms of s 182(4) and heard from defence counsel on this point. His Honour then continued:
"I'm not persuaded that this is a proper case for giving a direction about the final limb of s182(4), that is about the situation where the Act is otherwise unlawful and the injury is of such a nature or is done under such circumstances as to be injurious to the public as well as to the person assaulted and to involve a breach of the peace. So I will direct the jury in accordance with paragraph 6(a) of the memorandum but not (b) or (c) and I'll change the memorandum so that 6 simply reads:
If two or more people willingly take part in a fight then the use of physical force does not amount to an unlawful assault unless the degree of force used is more than the participants by their words or conduct consented to."
This ruling has not been published and I have been referred to the trial transcript. It may be noted that the ruling was referred to in the Magistrates Court decision of Lane v Purcell [2011] TASMC 19. In that case, Magistrate C P Webster did not need to decide which decision to follow because the exception in s 182(4) applied and consent was not available.
In this appeal, there is no suggestion that s 182(4) has application with the effect of excluding consent. Assuming Palmer represents the law in Tasmania, the defence of consent will still not avail the applicant if, as highlighted in the ruling, there either was no consent or if there was, the complainant did not consent to the degree of force involved in the assault.
While the arguments before this Court noted the dichotomy in the rulings, detailed argument was not presented on the question of the correct position. The contentions for the applicant assumed that Palmer represents the law in Tasmania, and focussed on whether the defence of consent is excluded in cases of family violence, arguing that it is not. The contentions of the respondent noted that Holmes has not been overturned and highlighted that the law in Tasmania is uncertain and so is the meaning of "otherwise unlawful" in s 182(4). The submissions for the respondent rest on the findings of the magistrate.

Submissions on review

It is submitted for the applicant that once consent is raised, this provides a defence to an assault provided that the act constituting the assault was not otherwise unlawful, and that the injury was not of such a nature or committed in such circumstances as to be injurious to the public as well as the person assaulted, and amounted to a breach of the peace. It is submitted that regardless of the context of an assault, the defence of consent is available provided the conduct is not caught by the exception in s 182(4) of the Code. It is submitted that the learned magistrate erred in ruling that consent was not available with regards to victims of domestic violence.
Further, it was submitted that the evidence of Ms Shelton left open a mutual fight which was consented to. Ms Shelton's evidence did not exclude consent. The only conclusion was that there was a mutual argument over the phone, that both parties were engaged in and consenting to this altercation, and that any assault that occurred was within the bounds of what was consented to. Section 182(4) was enlivened in that consent was available and was not excluded, and the complaint should have been dismissed.
The respondent highlighted that the complainant was not accepted by the magistrate as a truthful witness. Her evidence in cross-examination that she consented to an altercation must be seen in the context of her evidence that she was not punched to the head. The magistrate was entitled to reject the complainant's evidence both as to what occurred and whether she consented. Ms Shelton's evidence demonstrates that there was no consent. It can be seen from the learned magistrate's ruling that he dismissed the defence of consent on the basis that it did not arise on the facts as he found them.
It was argued for the respondent that consent under s 182(4) of the Code applies to situations where a person participates in a contact sport and impliedly consents to the use of some degree of force. It was argued that in many family violence scenarios, consent will not amount to free agreement under s 2A of the Code. It was noted that if Holmes is correct, then consent will have limited availability in domestic settings. It was noted to be contrary to the contemporary objects of Family Violence legislative schemes to apply the defence of consent to a family violence context.

Discussion

The question of the ambit of s 182(4) and the boundaries of consensual violence as a defence is a matter of statutory construction which involves a consideration of the text, context and purpose. It can be seen that there is no carve-out in the section for any category or class of cases such as domestic violence cases. There could be no warrant for introducing words that are not in the section based on current legislative policy discerned from legislation such as the Family Violence Act 2004. Equally, the section does not confine the availability of the defence of consent to prize fights or sporting scenarios.
The reach of s 182(4) in terms of the limits of the defence of consent is an interesting but academic question in this appeal. It can be seen from the learned magistrate's decision set out above at [16] that his observations about public policy were not determinative of the case. Having made observations about public policy, the learned magistrate stated: "Anyway, there's no evidence that she was punched by her consent …".

His Honour found on the evidence that there was no consent to the assault that he found proved, namely the punch. While this conclusion and the findings of fact that underpin it are not challenged on appeal, I make the following comments. It was entirely open to his Honour to find the punch occurred, based on Ms Shelton's evidence and the evidence of the red mark observed by Constable Sumpton. An inference could reasonably be drawn from Ms Shelton's observations that the applicant delivered a punch that connected with the complainant's face. As the learned magistrate observed, the complainant's statutory declaration supported that finding. It was open to his Honour to reject the complainant's evidence that the punch did not occur, and for him to find that she was punched as described by Ms Shelton.
It was open to the learned magistrate to reject the complainant's evidence as to what happened, and also to reject her evidence that she "consented" to an altercation. Even if his Honour had accepted her evidence, the complainant did not give evidence that supported the proposition that she consented to a physical fight involving an exchange of blows, let alone an application of force involving being punched to the head. The cross-examination of the complainant regarding consent was confined to an altercation, an argument, and at most the applicant's violence involved him grappling for the phone. She agreed that during the altercation she had kicked the applicant and she had "hit" him at some point in some unspecified way.
"Consent" to the assault was evidently the defence case theory and was propounded during cross-examination and closing submissions. But even if the learned magistrate had accepted that the complainant consensually participated in a verbal altercation and some physical grappling over the phone, that is a long stretch from the proposition that she consented to a physical exchange of blows and being punched to the head.
In any event, the findings of fact of the learned magistrate rejecting the complainant's evidence and accepting Ms Shelton's evidence leave no room open for consent. The applicant entered the lounge room, abused the complainant, called her a slut and then punched her with force to the face. Having so found, the theory, or suggestion of consent was excluded. It was reasonably open for the magistrate to conclude that it was proved beyond reasonable doubt that the complainant did not consent to violence being inflicted upon her and the assault was unlawful. Indeed, it was the only reasonable conclusion given the findings of fact made by the learned magistrate.
The motion to review is dismissed.