HUNTER v Police

Case [2011] SASC 233

SUPREME COURT OF SOUTH AUSTRALIA

(Magistrates Appeals: Criminal)

HUNTER v POLICE

[2011] SASC 233

Judgment of The Honourable Justice White

16 December 2011

EVIDENCE - WITNESSES - HOSTILE WITNESSES

CRIMINAL LAW - GENERAL MATTERS - CRIMINAL LIABILITY AND CAPACITY - DEFENCE MATTERS - DEFENCE OF PERSONS OR PROPERTY - REASONABLE BELIEF IN NECESSITY OF RESPONSE

CRIMINAL LAW - EVIDENCE - JUDICIAL DISCRETION TO ADMIT OR EXCLUDE EVIDENCE

EVIDENCE - WITNESSES - REFRESHING MEMORY - GENERALLY

The appellant was convicted of the offence of assault causing harm - the Magistrate rejected the appellant's defence of self-defence and defence of another.

Whether the Magistrate erred in declaring a witness to be a hostile witness and permitting the prosecutor to cross-examine him - whether one witness' evidence should have been preferred over that of other witnesses - whether the Magistrate had considered appropriately the effect of the appellant's intoxication - whether the Magistrate should not have been satisfied that the prosecution had excluded as a reasonable possibility the defence of self-defence and defence of another.

Held:  appeal dismissed - although the Magistrate had erred in declaring a witness to be hostile and there were other irregularities in the examination-in-chief of this witness, CCTV footage provided incontrovertible evidence of the incident - the Magistrate appropriately considered the effect of the appellant's intoxication - on any view, the appellant's punch to the complainant was neither reasonable nor necessary and was disproportionate to any threat the appellant believed to exist.

Criminal Law Consolidation Act 1935 (SA) s 20(4); Evidence Act 1929 (SA) s 27, referred to.
Hetherington v Brooks (1963) SASR 321; O'Sullivan v Waterman (1965) SASR 150; State Rail Authority of New South Wales v Earthline Constructions Pty Ltd (in liq) (1999) 73 ALJR 306, considered.

HUNTER v POLICE
[2011] SASC 233

Magistrates Appeal

  1. WHITE J.             At about 3.00 am on 5 June 2010, the appellant and others were outside the Highlander Hotel on Main North East Road at Gilles Plains.  The appellant punched the complainant to the face, causing a fracture of his jaw.  The punch was in the nature of a “king hit”. 

  2. The appellant was charged with the offence of assault causing harm.[1]  He admitted punching the complainant but raised the defence of self‑defence and the defence of another.[2]  The Magistrate was satisfied that he was not acting in self‑defence and convicted him.

    [1]    Criminal Law Consolidation Act 1935 (SA) (CLCA) s 20(4).

    [2]    CLCA s 15.

  3. The appellant appeals against that conviction.  He contends first that the Magistrate should not have rejected his evidence and that of one of his companions, a Mr Wood, who was called as a prosecution witness.

  4. The appellant contends secondly that the Magistrate failed in her consideration of the defence of self‑defence and defence of another.  In particular, the appellant contends that the Magistrate did not consider the impact of his own intoxication on his state of mind, and that the Magistrate erred in her consideration of whether his conduct was reasonably proportionate…

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HUNTER v Police [2011] SASC 233
Case
[2011] SASC 233
Decision Date

CaseChat Overview and Summary

The case of Hunter v Police involved the appellant, who was convicted of assault causing harm. The appellant challenged the conviction on the basis of the Magistrate's handling of witness testimony and the consideration of the defence of self-defence and defence of another. The central issues were whether the Magistrate correctly declared a witness to be hostile and allowed the prosecutor to cross-examine the witness, whether the Magistrate appropriately considered the appellant's intoxication, and if the Magistrate correctly assessed the proportionality of the appellant's actions to any perceived threat.

The court found that although the Magistrate had erred in declaring a witness to be hostile and there were irregularities in the examination-in-chief, these did not affect the outcome due to the incontrovertible CCTV evidence of the incident. The court also held that the Magistrate had appropriately considered the impact of the appellant's intoxication and that, regardless of the intoxication, the appellant's actions were neither reasonable nor necessary, and were disproportionate to any perceived threat.

The appeal was dismissed. The court reaffirmed that the CCTV footage clearly demonstrated the appellant's actions, and that the appellant's punch was excessive and not justified by the circumstances as perceived by the appellant.

Orders

Orders of the court

Full text does not contain this section.

Background

Background to the litigation

The appellant contends secondly that the Magistrate failed in her consideration of the defence of self‑defence and defence of another. In particular, the appellant contends that the Magistrate did not consider the impact of his own intoxication on his state of mind, and that the Magistrate erred in her consideration of whether his conduct was reasonably proportionate to the circumstances as he perceived them to be.Background The appellant’s punch of the complainant was recorded by the Hotel’s CCTV. The CCTV footage shows the complainant entering the driver’s side rear passenger seat of a car which had stopped in the bottle department driveway. At the same time, the appellant and a friend of his, Mr Wood, are standing together in the middle of the driveway, about six metres away from the car and at an angle of approximately 45° to it. They are both looking in the direction of the complainant. The complainant is then seen stepping out of the car and walking in a manner (described by the Magistrate as “steadily and purposefully”) directly towards Mr Wood. He is not running, he does not have anything in either hand, and his arms are not raised. As the complainant approached Mr Wood, the appellant stepped forward from the complainant’s left and, using his right fist, struck the complainant forcefully on the left side of his face. The complainant took no evasive action. He was not looking in the direction of the appellant and may well not have seen the punch coming. The complainant fell to the ground. A melee then occurred, in the course of which the appellant had to be restrained and the complainant shepherded away from him. The oral evidence at the trial established that the complainant had been at the Hotel from around 6.30-7.00 pm the previous evening and had consumed 12 or so glasses of beer. The complainant is a big man – some 5ft 9ins in height and weighing at the time more than 135kgs. Mr Wood was called by the prosecution at trial. He admitted that he had “mouthed off” to the complainant as he had moved to get into the car, making a gratuitously offensive remark. The complainant said that he had heard some abuse, had alighted from the car and walked towards the speaker to “find out what they had said”. The complainant had had no prior contact with either Mr Wood or the appellant, nor had they with him. In addition to the complainant and Mr Wood, the prosecution led evidence from the complainant’s two companions, Ms Benson and Ms Cartwright, and from two employees of the hotel, Ms Snoad and Ms Sullivan. The appellant gave evidence himself and called evidence from a friend, Mr Burbridge, who had been close by at the time. The appellant’s evidence was to the following effect. He had seen the complainant while standing outside the Hotel and considered him to be “clearly drunk”. The complainant was kicking a white sedan and then stopped to enter the back seat of another car. The appellant heard Mr Wood make his offensive remark and his heart dropped because he thought that Mr Wood was picking a fight with the biggest person there. After Mr Wood’s remark, the complainant “just charged” towards Mr Wood and him, making a “beeline” to Mr Wood. The appellant could not see the complainant’s eyes clearly but thought that he looked angry. The appellant was scared because the complainant could have “destroyed” Mr Wood and he punched him instinctively. He had not intended to cause permanent damage to the complainant and regretted that that had occurred.

Evidence

Evidence Before The Court

The Magistrate went on to hold that even if the appellant did have a genuine belief that his punch was necessary and reasonable for a defensive purpose, the prosecution had proved beyond reasonable doubt that it was not reasonably proportionate to any threat which the appellant had believed to exist.[5] [5] CLCA s 15(1)(b).The Magistrate’s Rejection of Mr Wood’s Evidence The appellant made two submissions regarding the Magistrate’s rejection of Mr Wood’s evidence: first, that the Magistrate had erred in declaring him to be a hostile witness and then permitting the prosecutor to cross-examine him; secondly, that his evidence should in any event have been preferred over that of the other prosecution witnesses. The prosecution called Mr Wood. A number of irregularities occurred during the course of his evidence-in-chief. The prosecutor seemed disconcerted by Mr Wood’s evidence that he could not remember anyone else, including the appellant, “mouthing off” at the complainant and by his evidence that the appellant had reached over his shoulder from a position behind him to strike the complainant. The transcript of the evidence indicates that the prosecutor engaged in a form of cross-examination of Mr Wood about these and other matters. This occurred without objection by the appellant’s trial counsel (who was not counsel on the appeal) and without any intervention by the Magistrate. In my opinion, the leading questions by the prosecutor in the nature of cross-examination of Mr Wood on these topics should not have been permitted. By asking leading questions, the prosecutor elicited an answer from Mr Wood to the effect that he would have remembered if the appellant had made any denigratory remark to the complainant. The transcript then records:[Prosecutor] requests permission to lead the witness through his statement.[Defence Counsel] objecting.Leave granted to show witness’ statement.Witness shown statement. The transcript does not record any prior reference to a statement by Mr Wood. Later evidence indicates that the statement to which this passage refers was a statement made by Mr Wood to the police on 1 February 2011, some four months before the trial. The basis upon which the prosecutor sought permission to show Mr Wood his statement is not revealed by the transcript. The fact that the prosecutor sought permission from the Magistrate to do so could imply that the prosecutor wished Mr Wood to refresh his memory from the statement. However, the conditions discussed by Travers J in Hetherington v Brooks[6] and by Mayo J in O’Sullivan v Waterman[7] which warrant a grant of permission for a witness to refresh his or her memory from an out-of-court statement had not been established. There was no attempt to establish that Mr Wood’s memory of relevant events unassisted by his out‑of‑court statement had been exhausted. Further, on any view, Mr Wood’s statement to the police on 1 February 2011 was not made contemporaneously with the incident on 5 June 2010. In these two respects, the prosecutor had failed to establish the circumstances necessary to warrant a grant of permission to Mr Wood to refresh his memory by reference to the out-of-court statement, and the Magistrate should not have granted permission on this basis. [6] (1963) SASR 321 at 323-6.[7] (1965) SASR 150 at 157.

Decision

Reasons for decision

WHITE J
In cross-examination the appellant said that there was “no stopping” the complainant and “there [was] nothing else I could do”.The Magistrate’s Decision The Magistrate based much of her findings on the CCTV footage. Her Honour regarded both the complainant and Ms Benson as credible and reliable witnesses; Ms Cartwright’s evidence as departing in significant respects from what was recorded on the CCTV footage; Ms Snoad’s evidence as being generally reliable; and Ms Sullivan’s evidence as being unreliable to the extent that it differed from the CCTV footage. The Magistrate did not regard the evidence of either Mr Wood or Mr Burbridge as being reliable. In relation to Mr Wood the Magistrate said:Wood was not a particularly impressive witness. He mumbled and gave the impression that he really did not want to be there. I was not confident that he was honestly answering the questions posed to him and formed the impression that he was tailoring his evidence so as to paint his friend, the defendant, in the best possible light.In relation to Mr Burbridge, the Magistrate said:I cannot be confident in the truth of what Burbridge said not only about his recollection of the events leading up to the first punch and its aftermath but of what he says he saw the complainant allegedly do in the carpark shortly prior to being hit by the defendant. The Magistrate regarded much of the appellant’s evidence as being inconsistent with the CCTV footage and with other evidence which she regarded as reliable. The Magistrate adopted the technique of making findings of fact beyond reasonable doubt about nearly all of the circumstances leading up to, and surrounding, the punch. It was of course not necessary for the Magistrate to do so. It is the elements of the offence charged about which a court must be satisfied beyond reasonable doubt, not each of the factual circumstances related to those findings.[3][3] Shepherd v The Queen (1990) 170 CLR 573 at 579-80; Edwards v The Queen (1993) 178 CLR 193 at 202. The Magistrate found that the prosecution had excluded as a reasonable possibility any belief by the appellant that his safety, or that of Mr Wood, was threatened by the complainant, or that his conduct in striking the complainant was “necessary and reasonable for a defensive purpose”.[4] This finding was sufficient to exclude self‑defence as rendering lawful what was otherwise an established assault on the complainant.[4] CLCA s 15(1)(a). The Magistrate went on to hold that even if the appellant did have a genuine belief that his punch was necessary and reasonable for a defensive purpose, the prosecution had proved beyond reasonable doubt that it was not reasonably proportionate to any threat which the appellant had believed to exist.[5] [5] CLCA s 15(1)(b).The Magistrate’s Rejection of Mr Wood’s Evidence The appellant made two submissions regarding the Magistrate’s rejection of Mr Wood’s evidence: first, that the Magistrate had erred in declaring him to be a hostile witness and then permitting the prosecutor to cross-examine him; secondly, that his evidence should in any event have been preferred over that of the other prosecution witnesses.

Ratio Decidendi

Legal Principle Established

Established by: WHITE J

This ground of appeal fails. Consideration of Self-defence Counsel for the appellant submitted that a number of circumstances, considered in combination, meant that the Magistrate should not have been satisfied that the prosecution had excluded either limb of the defence of self‑defence under s 15(1). The submission was that the appellant had heard his friend make the offensive remark to the complainant; it was reasonable for him to suppose that the remark had angered the complainant; he had seen the complainant alight from the car and walk purposefully towards Mr Wood; the complainant was a large man, much bigger than both Mr Wood and himself; the complainant did not pause or hesitate in his approach; having regard to the manner and direction of the complainant’s approach, it was reasonable for him to suppose that, at the least, the complainant intended to instil fear; if the complainant had intended only to talk or remonstrate he could have done so from his seated position in the car; his (the appellant’s) own ability to assess the situation sensibly was affected by the alcohol which he had consumed; so that in these circumstances it was reasonable for him to be afraid of the complainant and to have taken preventative action. There are, however, countervailing considerations. The Magistrate considered that the CCTV footage did not contain any indication of fear in the appellant. I agree. The appellant does not baulk, flinch or take any form of evasive action of the kind which might be seen in a person in fear, or put his hands up to fend off the complainant. Indeed, as the complainant approached Mr Wood, the appellant is seen, in an apparently relaxed fashion, to draw on his cigarette. Further, after the initial punch, the appellant approached the complainant on two further occasions. Those approaches are inconsistent with the appellant having been afraid of the complainant. The Magistrate also considered that the appellant had sought to overstate the effect of his own alcohol consumption, finding that he had not been intoxicated to a level that he did not know what he was doing. It is pertinent to note again that, although approaching purposefully, the complainant had walked towards Mr Wood (and not charged at him) and that at all times his arms were at his side. He was not showing any sign of an intention to strike Mr Wood. His manner of approach appears to be that of a man intending to remonstrate with Mr Wood following his offensive remark. At worst it is likely to have given rise to no more than some pushing and shoving, especially as security staff engaged by the Hotel were in close proximity. The CCTV footage is much more suggestive of the appellant having imposed himself opportunistically and aggressively into the situation. I consider it very understandable that the Magistrate considered that the prosecution had excluded as a reasonable possibility that the appellant had genuinely believed that it was necessary and reasonable to punch the complainant to defend himself or Mr Wood.