HUNTER v Police - [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

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”.
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.
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.
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.
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.
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.
Alternatively, the prosecutor may have been purporting to act under s 27 of the Evidence Act 1929 (SA). Section 27 provides:
A party producing a witness shall not be allowed to impeach his credit by general evidence of bad character; but if the judge is of opinion that the witness is adverse, the party may—
(a) contradict the witness by other evidence; or
(b) with the permission of the judge, prove that the witness has made, at any other time, a statement inconsistent with his present testimony: Provided that, before giving such last-mentioned proof, the circumstances of the supposed statement sufficient to designate the particular occasion, must be mentioned to the witness, and he must be asked whether or not he has made the statement.
As can be seen, s 27 allows a party, with the permission of the Judge or Magistrate, to contradict an adverse witness by other evidence or to prove that the witness has previously made a statement inconsistent with his present testimony.
It may be that in the present case, the prosecutor wished to invoke s 27(b) and, in order to comply with the proviso in that sub-paragraph, wished to put Mr Wood’s previous statement to him. However, if so, having obtained the grant of permission the prosecutor went well beyond that purpose. She did not ask Mr Wood any questions directed to having him acknowledge his previous statement. Instead, the prosecutor immediately asked Mr Wood to read passages from his statement and then engaged in a form of cross-examination of him about those passages. The “examination” which occurred immediately after the grant of permission was as follows:
QIn relation to my question of saying anything, would you please read para 5 in its entirety on page 2 of your affidavit dated 1/2/11. Could you please read para 5 in its entirety.
A“Continue to watch the male with [the appellant]. I also had a smoke, a short time later both [the appellant] and I began to stare at the male. I said something similar to “You’re a fat fuck, just get in the car and leave”. [The appellant] also said something to the male, but I’m not sure exactly what he said.”
QCould you please repeat the last sentence of that paragraph.
A“[The appellant] also said something to the male, but I’m not sure exactly what he said, but it is similar to what I said.”
QSo you made that statement on Tuesday, 1 February this year and that’s different to what you say today. I ask you to clarify your evidence today that [the appellant] didn’t say anything in your evidence.
AI can’t remember.
QYou can’t remember.
AYeah.
QBut you remembered on 1 February.
AYou see this – I wrote this.
The transcript then shows a form of continuing “cross-examination” by the prosecutor of Mr Wood, apparently in an endeavour to have him acknowledge that the appellant too had made an offensive remark to the complainant and that, instead of being behind him, the appellant had been alongside him when he threw the punch. In addition, the prosecutor invited Mr Wood to “clarify” differences between his evidence-in‑chief and the contents of his out-of-court statement. On two occasions the appellant’s trial counsel objected to the prosecutor’s questions but those objections were overruled.
In my opinion, the prosecutor should not have been permitted to examine, in effect, to cross-examine, in this way. The grant of permission to have Mr Wood refresh his memory from his out-of-court statement (if that is what it was) did not warrant the prosecutor’s cross-examination of a witness whom he had called. Similarly the prosecutor went well beyond the course of action contemplated by s 27 of the Evidence Act. The Magistrate should not have permitted this to occur either.
The prosecutor may have recognised that the questioning went beyond acceptable limits. She asked to have Mr Wood declared a hostile witness. Over the objection of the appellant’s counsel, the Magistrate made the declaration saying:
I will allow it because we’ve also got the benefit of the CCTV footage, so what he can recall now and what he could recall a couple of months ago are one thing. What everyone can see on the CCTV footage is another, so I will allow it.
As I understand this passage, the Magistrate was indicating that, quite apart from the inconsistencies between Mr Wood’s in-court evidence and his out‑of‑court statement, the inconsistencies between his evidence and what was shown on the CCTV footage justified the declaration. For the reasons I will give shortly, I regard that conclusion as wrong.
I note that the Magistrate made the declaration that Mr Wood was a hostile witness without conducting a voir dire on the topic and without giving the appellant’s trial counsel any opportunity to examine Mr Wood on that question.[8]
[8] Cf Price v Bevan (1974) 8 SASR 81 at 92.
The prosecutor then cross-examined Mr Wood by reference to the inconsistency between his statement to the police that the appellant had made a remark to the complainant which was similar to his own, and his evidence that he could not remember such a remark. Mr Wood maintained that he had no memory of the appellant making such a statement. He was then cross-examined to the effect that he was colouring his evidence so as to show the appellant (who was his friend) in a better light.
The appellant submitted that the Magistrate had been wrong in declaring Mr Wood a hostile witness. Counsel for the respondent on the appeal conceded, quite properly and fairly, that the Magistrate had erred in this respect. That concession was appropriate.
The circumstances in which a witness should be declared hostile are limited. King CJ summarised the position in R v Hutchison:[9]
[T]he correct test … is whether the witness is deliberately withholding material evidence by reason of an unwillingness to tell the whole truth at the instance of the party calling him or for the advancement of justice. The test so formulated does not depend upon the motive of the witness in withholding evidence or, of course, giving false evidence. … If a witness gives false evidence or withholds evidence by reason of an unwillingness to tell the truth or the whole truth at the instance of the party calling him or for the advancement of justice, it matters not whether his motive is hostility to the cause of the party calling him, sympathy for the cause of that party’s opponent, desire to advance and protect his own interests in some way, or some other motive. The crucial consideration is that the party calling the witness is unable, by reason of the witness’ unwillingness to tell the truth or the whole truth, to elicit the true facts by non-leading questions.[10]
[9] (1990) 53 SASR 587.
[10] Ibid at 592.
In the earlier case of McLellan v Bowyer,[11] Dixon CJ, Kitto and Taylor JJ stated the position in the following passage:
[H]is Honour should not have given leave to treat the witness as hostile unless he came affirmatively to the conclusion that the witness was deliberately withholding material evidence.[12]
King CJ referred to this statement in R v Hutchinson.[13]
[11] (1961) 106 CLR 95.
[12] Ibid at 104.
[13] (1990) 53 SASR 587 at 592.
These statements of principle indicate that the circumstances in which a court will find it proper to declare a witness hostile are likely to be rare.
In my opinion, the circumstances before the Magistrate did not warrant Mr Wood being regarded as a hostile witness. As noted earlier, the Magistrate appears to have relied on the inconsistencies between Mr Wood’s evidence, on the one hand, and his statement to the police and the CCTV footage, on the other. Insofar as the Magistrate relied upon inconsistencies between Mr Wood’s evidence and his out-of-court statement, it is commonplace in prosecutions for there to be some inconsistency of that kind. Witnesses are commonly taxed with such inconsistencies in their cross-examination. Such inconsistencies do not, generally, give rise to a circumstance in which the witness may be declared hostile. That is because there may be a number of reasons for the inconsistency, apart from a lack of willingness by the witness to tell the truth, or the whole truth, in response to non-leading questions.

In the present case some 12 months had elapsed from the incident on 5 June 2010 to the trial. In those circumstances some impairment of the witness’ memory was almost inevitable. Some four months had elapsed from the time Mr Wood had made his statement to the police. Again, the lapse of time made some impairment of his memory understandable. A process of unconscious reconstruction could also have accounted for the differences and Mr Wood’s recollections at the time he made his out-of-court statement may themselves have been unreliable. The inconsistencies between Mr Wood’s evidence, on the one hand, and his out-of-court statement, on the other, were of course material[14] but they did not indicate necessarily, or even with some certainty, that Mr Wood was deliberately withholding evidence. Before a witness is declared hostile, the Court must usually be satisfied of the evidence of other matters, besides inconsistency, which indicate that the witness is unwilling to tell the truth. The Magistrate did not identify any such matters.
[14] Cf McLellan v Bowyer (1961) 106 CLR 95 at 103.
Mr Wood did have a motive, as the Magistrate noted in her later published reasons, to withhold evidence, ie, to protect the appellant who was his friend. However, the Magistrate did not refer to this nor to any other considerations when she directed that Mr Wood be regarded as hostile. It is pertinent to note that the prosecution must have considered that Mr Wood was capable of giving credible and reliable evidence despite his friendship with the appellant.
The occasions upon which the courts are provided with video or audio evidence of the commission of an offence, or the circumstances surrounding the commission of an offence, are becoming more frequent. Again, the experience of the courts is that it is not uncommon for the oral evidence of witnesses to differ, sometimes markedly, from that contained in the video or audio record. The fact that a witness’ evidence differs in this way is not usually sufficient to indicate that the witness is unwilling to tell the Court the truth, or the whole truth, concerning the incident. Again, other factors indicating an unwillingness to tell the truth must usually be present before that conclusion may be made. Differences between the video footage and the evidence will usually of course indicate that the witness’ evidence is unreliable, but that is a different matter.
On the appeal, the appellant complained only of the Magistrate’s decision that Mr Wood be treated as a hostile witness. He did not complain of the other irregularities during the course of the evidence-in-chief.
The errors which occurred during the course of Mr Wood’s evidence do not mean necessarily that a miscarriage of justice has occurred. Before considering the effect of the errors, it is appropriate to consider the remaining grounds of appeal.
Rejection of the Appellant’s Evidence
Counsel for the appellant recognised the usual appellate restraint in overturning findings made at first instance which depended upon an assessment of the quality and reliability of the evidence.
Counsel sought to overcome these difficulties by reference to the judgment of Kirby J in State Rail Authority of New South Wales v Earthline Constructions Pty Ltd (in liq).[15]Kirby J referred to the increasing knowledge of the limitations in making assessments of the reliability of witnesses on the basis of their appearance or demeanour and insisted that appellate courts should discharge the duty imposed on them:
to make up their own mind; to conduct appeals on the facts by way of rehearing; to draw inferences from the facts for themselves; [and] to give the judgment and make orders that should have been given at trial …[16]
(Citations omitted)
[15] (1999) 73 ALJR 306 at 327.
[16] Ibid at [86], 327.
However, the task of this Court on appeal is well settled. The Court must conduct a real review of the evidence, making due allowance for the advantage of the Magistrate in seeing and hearing the evidence given at trial. When there are incontrovertible facts, or uncontested testimony, or the Magistrate’s conclusion is glaringly improbable, the Court will, despite a Magistrate’s preference for the evidence of a particular witness, intervene and substitute its own judgment. Further, if the question is one of inferences to be drawn from facts found or from evidence accepted by a Magistrate, this Court can substitute its decision if it comes to a different conclusion as to the correct inference to be drawn.[17]
[17] Fox v Percy [2003] HCA 22 at [25]-[29]; (2003) 214 CLR 118 at 126-8; Warren v Coombes (1979) 142 CLR 531 at 551.
In the present case, the CCTV footage provided a firm foundation for many of the Magistrate’s findings. It is entirely understandable that the Magistrate used the CCTV footage in this way. Indeed, on the appeal, the appellant sought to rely upon that footage in the same way.
The Magistrate’s assessment of the evidence of Messrs Wood and Burbridge and of the appellant himself is not glaringly improbable or inconsistent with incontrovertible facts. Subject to a consideration of the effect of the irregularities which occurred in the course of Mr Wood’s evidence-in-chief, I do not consider that there is a basis upon which this Court should interfere with the Magistrate’s findings in this respect.
The Appellant’s Intoxication
The appellant contended that the Magistrate had not considered appropriately the effect of his own intoxication in considering whether he had at the time believed that the punch was necessary and reasonable for a defensive purpose, and in whether it was a reasonably proportionate response to the situation which he perceived.
The appellant’s consumption of alcohol was a matter for the Magistrate to consider. In Bedi v The Queen,[18] Duggan J said:
The appellant’s intoxication was also relevant to the defences of self‑defence and defence of property which he raised. In deciding whether the prosecution had negatived a genuine belief that the actions taken by the appellant were necessary and reasonable in defence of himself or his property it was necessary for the jury to consider the effect of the consumption of alcohol and marijuana on his perception of events.
[18] (1993) 61 SASR 269.
A review of the Magistrate’s reasons indicates that she did have appropriate regard to the appellant’s alcohol consumption. The Magistrate referred to the appellant’s evidence that he had consumed four to five drinks of bourbon and his explanation that he had not attempted to stop the complainant’s approach by speaking to him because he was “drunk”. The Magistrate concluded that the appellant’s evidence that he was “drunk” was implausible saying:
While he may have been slightly intoxicated, to suggest otherwise would seemingly be in contradiction to his own evidence as to what he said he drank during the night.
Later, the Magistrate expressly found that the defendant was intoxicated “but not to the level that he did not know what he was doing”.
It is true that when considering the two limbs of s 15(1) of the CLCA, the Magistrate did not again refer expressly to the appellant’s consumption of alcohol or to his intoxication. However, having regard to the fact that the Magistrate had referred expressly to that consumption and its effects in her summary of the evidence and again in her findings of fact, it should not be concluded, in my opinion, that the Magistrate overlooked the appellant’s intoxication when considering the s 15(1) criteria. It is instead reasonable to suppose that the Magistrate made the summary and the findings because she was alert to the possible forensic significance of the appellant’s intoxication in the context of s 15(1).
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.
However, the irregularities which occurred during Mr Wood’s evidence‑in‑chief make it undesirable, in my opinion, for the appeal to be determined on this basis. The manner in which Mr Wood’s evidence-in-chief was taken, as outlined earlier, may well have coloured the Magistrate’s assessment of Mr Wood’s evidence, and this may in turn have influenced her assessment of the appellant’s evidence as to his belief. This is material, because the first limb of the defence of self-defence (and defence of another) under s 15(1) involves an assessment of the defendant’s subjective state of mind.
I consider it appropriate to consider therefore whether the evidence of the appellant and of Mr Wood taken at face value, to the extent that it is not inconsistent with the CCTV footage and other evidence which appears reliable, could have given rise to a reasonable doubt about the first limb of the s 15(1) defence.
The important elements of Mr Wood’s evidence were as follows: he had been drinking at the Hotel with the appellant and others; he described himself as “very drunk”; while waiting outside just before 3.00 am he had seen the complainant “carrying on” and “pushing this bloke around” but did not know whether the complainant was being aggressive or playful; the complainant had also been kicking a friend’s car; he (Mr Wood) had “mouthed off” at the complainant; he did not know whether anyone else had “mouthed off” at the complainant; the complainant had “stormed” over towards him “like he was going to do something to me”; he could not remember whether the complainant’s arms were raised; the appellant was behind him and had reached over him to punch the complainant; he (Mr Wood) had been waiting to see what the complainant was going to do when the appellant punched the complainant; and he had not been sure what the complainant was going to do.
Except in limited respects, Mr Wood’s evidence was not materially different from that of the other prosecution witnesses and the events recorded on the CCTV footage. Mr Wood’s evidence that the complainant had been pushing others around was denied by the complainant and was not supported by other prosecution witnesses. In particular, Ms Snoad did not see any such conduct or the complainant kicking a car, as described by Mr Wood and the appellant. Ms Snoad’s evidence was important, as the Magistrate observed. Ms Snoad was sober, and standing close by as part of her employment duties to observe the patrons as they left the Hotel. She was in as good a position as Mr Wood and the appellant to observe any pushing or shoving by the complainant or any kicking of a vehicle. By reason of her employment duties she was alert to the possibility of conduct of that kind occurring. It may be putting Ms Snoad’s evidence too high to say that it was incontrovertible, but it was nevertheless very persuasive.
In short, the appellant’s and the complainant’s evidence on this topic was not supported by a sober and alert witness who was in the immediate vicinity and had an interest in looking out for such conduct.
The evidence of the appellant and Mr Wood that the complainant had “charged” or “stormed” towards them is contradicted by the CCTV footage. In this respect their evidence was inconsistent with other evidence incontrovertibly established.
The Magistrate was not satisfied that the appellant had “mouthed off” at the complainant as the prosecutor had wrongly endeavoured to elicit from Mr Wood in the course of his evidence-in-chief. The appellant himself did not claim to have made such a statement. Mr Wood’s out-of-court statement to the effect that the appellant may have made such a statement was not therefore used to the appellant’s disadvantage. At the most, it could have been used only to undermine Mr Wood’s credit.
The CCTV footage shows that Mr Wood was mistaken as to the appellant’s position when he threw the punch. However, in my opinion, nothing much turned on that discrepancy.
Taken at face value, Mr Wood’s evidence does not support the appellant’s claim that he believed it reasonably necessary to punch the complainant to defend himself or Mr Wood. Mr Wood acknowledged that he had not known what the complainant was intending to do and was prepared to wait to find out. He was the person whom the complainant was approaching in apparent response to his offensive remark, and yet he had not thought it necessary to push or grapple with the complainant, let alone to punch him.
On this review of the evidence, I consider that while the appellant may have considered it reasonable to take some action in response to the complainant’s approach, the prosecution did exclude, as a reasonable possibility that he believed a punch in the form of a “king hit” to be both necessary and reasonable. However, it is not necessary to determine the appeal on that basis.
Even if the appellant did have such a genuine belief, I agree with the Magistrate that the appellant’s conduct was not reasonably proportionate to any threat which he may have believed to exist. The Magistrate’s reasons appear in the following paragraph:
It was not reasonable for the defendant to punch the complainant with the force that he did and to such a vulnerable area of the body (being the face). His conduct was in excess of what the circumstances required. He could have spoken to the complainant to diffuse any perceived situation. He could have put up his hands in a motion to the complainant to back off and explain that Wood meant nothing by his comments. He (and Wood) could have stepped away. As the defendant had the strength to punch the complainant so hard that he fell to the ground, he could have instead used that strength to push or shove the complainant away.
One could add to that list of alternatives the simple expedient of seeking assistance from the Hotel security staff who were close by.
On any view, the appellant’s punch of the complainant in the circumstances was a wholly unnecessary and unreasonable action. The disproportionality of the appellant’s conduct is underlined by the fact that the complainant was seemingly unaware that the punch was coming, and took no action to protect himself.
Conclusion
For the reasons given above, I dismiss the appeal.