JAMES v Police - [2005] SASC 372

SUPREME COURT OF SOUTH AUSTRALIA
(Magistrates Appeals: Criminal)
JAMES v POLICE
Judgment of The Honourable Justice Duggan
29 September 2005
CRIMINAL LAW - APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION - APPEAL AND NEW TRIAL - INTERFERENCE WITH DISCRETION OR FINDING OF JUDGE
Appeal against conviction imposed by magistrate for offence of assault - whether magistrate erred in assessing the evidence - whether the finding by the magistrate that the appellant was not acting in self-defence was against the weight of the evidence - whether magistrate's reasons for rejecting self-defence were adequate - appeal dismissed.
Criminal Law Consolidation Act 1935 s 15, referred to.
M v The Queen (1994) 181 CLR 487, applied.

JAMES v POLICE
[2005] SASC 372
Magistrates Appeal

DUGGAN J. The appellant has appealed against the finding of a magistrate that he was guilty of the offence of common assault.
It was alleged that the appellant assaulted Anton Balk on 24 November 2004 at Penola. The appellant and Mr Balk had been friends for some time. At the time of the alleged offence the appellant was the manager of the Penola Caravan Park. Mr Balk is an electrician and he had been asked to do some electrical work at the caravan park. According to his evidence, he went to the caravan park on the day of the offence and discovered that some of the work which he had been asked to do had already been carried out by someone else. He was upset at this discovery and spoke to the appellant’s wife saying “Tell Geoff (the appellant) he’s a fucking arsehole for doing what he’s done”.
Mr Balk lives approximately 500 metres from the caravan park and he returned home after speaking to the appellant’s wife. He said that, a short time after he returned, he saw the appellant drive his vehicle into Mr Balk’s property. When he saw this he went over to his shed with the intention of giving to the appellant some of the appellant’s belongings which were stored there. He said before he got to the shed door he heard the appellant say, in an angry voice, “No-one speaks to my wife like that”. Mr Balk said he turned around and the appellant started to punch him in the face. He said they grappled with one another and ended up on the ground. Mr Balk then went to the police station and reported the matter.
The appellant gave evidence before the magistrate. He said that on the day of the incident he went to the caravan park and was told by his wife that the appellant had been to the caravan park and had hurt her arm when slamming the door of her car. She was upset and crying. The appellant said he then drove to Mr Balk’s property. He said they met near the shed on the property. Mr Balk was trying to open the lock on the door of the shed. He said he asked Mr Balk “What his fucking story was”. The appellant said in evidence that he wanted to know why his wife was crying. He said Mr Balk swung around in an aggressive manner with his arms raised at about chest height. His fists were clenched. The appellant said that, although Mr Balk did not strike him, he felt he was going to do so. He said he defended himself by striking Mr Balk three times in the face. He said he acted in this way because he felt threatened. He told Mr Balk to leave his wife and family alone and he got in his car and drove away.
The magistrate gave extempore reasons for his decision. He said he formed a most favourable impression of Mr Balk as a witness. He found that the version of the incident given by Mr Balk was accurate and reliable. He said he rejected the appellant’s evidence that Mr Balk had raised his arms with clenched fists as he turned around to face the appellant. He rejected the claim of self-defence and found the charged proved.
The first ground of appeal complains that the magistrate erred by taking into account in his assessment of the evidence the prompt report of the assault by Mr Balk to the police.
At an early stage in his remarks the magistrate referred to four documentary exhibits, namely, three photographs of the injuries to Mr Balk, a statement of Constable Larder who interviewed the appellant and the statements of the appellant’s wife and Mr Balk to the police. Mr Balk’s statement was referred to in cross-examination and tendered by defence counsel. After mentioning these exhibits the magistrate said:
I refer to the exhibits because the victim was very prompt in reporting the alleged assault to the police and the police were prompt in seeking out the defendant. I have also a statement from Mrs James.
Later in his reasons at [22] the magistrate said:
I hasten to add that I put to one side the prompt reporting of the assault by the victim because I am relying for all my findings on the quality of the victim’s evidence in court today.
Mr Boucaut, for the appellant, also drew attention to the following passage in the evidence where the magistrate questioned Mr Balk after he said he went straight to the police:
HIS HONOUR
Q     To police where?
A     In Penola.
Q     Thank you.
A     Penola police.
Q     So is it your evidence, you went forthwith to the police station and reported this?
A     Yes.
Mr Boucaut argued that the magistrate’s remarks and his questioning of the witness indicate that he took the promptness of the victim’s report to the police into account when assessing his credibility.
I cannot agree. In my view, the statement at [22] indicates that the magistrate did not rely on the prompt reporting of the assault in reaching his conclusion that Mr Balk’s evidence was accurate and reliable. The statement that he referred to the exhibits because the victim was prompt in reporting the assault and the police were prompt in seeking out the defendant is somewhat curious, but it does not suggest that the promptness was taken into account in an inappropriate way. The questioning of Mr Balk by the magistrate which is quoted above provides no support for the appellant’s argument.
The next ground of appeal asserts that the magistrate erred when he said at [8]:
The defendant is obviously aware of his responsibilities to co-operate as he has in the giving of evidence today and I am bound to take that into consideration as I consider all the evidence, and in accordance with the authority of Papps v Police 77 SASR 210 and section 15. (emphasis added)
Mr Boucaut argued that the magistrate was implying that the appellant was under a duty to co-operate in some way. While it is difficult to understand what point the magistrate was making, his remarks appear to reflect favourably on the appellant and what he said could hardly give rise to any miscarriage of justice.
A further ground of appeal states that the magistrate did not direct himself on self-defence and, in particular, failed to consider the appellant’s subjective belief.
Section 15(1) of the Criminal Law Consolidation Act 1935 (“the Act”) provides as follows:
(1)     It is a defence to a charge of an offence if -
(a)   the defendant genuinely believed the conduct to which the charge relates to be necessary and reasonable for a defensive purpose; and
(b)   the conduct was, in the circumstances as the defendant genuinely believed them to be, reasonably proportionate to the threat that the defendant genuinely believed to exist.
The magistrate said he took into account the provisions of s 15. It would have been appropriate to go further and state in his reasons how he applied the provisions of the section to the facts of the case as he found them.
Nevertheless, the factual findings which were made left no room for a reasonable possibility that the appellant was acting in self-defence as defined in s 15 of the Act.
The only basis for self-defence which presented itself on the evidence was the appellant’s claim that Mr Balk turned around in an aggressive manner with his arms raised and fists clenched when the appellant confronted him at the door of the shed.
The magistrate made the following findings on the evidence:
I find not only on all the victim’s evidence but on all of the evidence that I do not disbelieve the victim’s evidence as to how he was assaulted. That is I find that as he turned around he was struck and assaulted by the defendant.
. . . . . . . . . . . .
I must make it clear because it is implicit, but I make it explicit that I reject the defendant’s testimony about how the assault occurred where it is at variance with the victim’s evidence. More particularly I reject beyond reasonable doubt the defendant’s evidence that the victim had his arms raised with clenched fists as he turned around to face the defendant and that the defendant got in first. As far as the phrase “got in first” is concerned, that is correct as the defendant did get in first, but that the victim I find was no threat at any relevant time to the defendant. I am inevitably driven to this finding on the quality of the victim’s evidence.
. . . . . . . . . . . .
There is nothing I find in any of the defendant’s evidence which would support any act of self-defence when the defendant assaulted the victim who I find was at no time a threat whatsoever to the defendant. I repeat that I find that the victim was on his own property at his shed trying to open a shed door with his back to the approaching defendant. Mr Balk I find did no more than turn around when he was assaulted by the defendant using closed fists to the region of the victim’s face.
These findings were fatal to the claim of self-defence. The magistrate rejected the appellant’s version and applied the appropriate standard of proof in making his findings.
It was necessary for the magistrate to consider whether, as a reasonable possibility, the appellant genuinely believed that his actions were necessary and reasonable for a defensive purpose. However, that question was answered by the rejection of the factual basis upon which the appellant said his belief was based.
Mr Boucaut argued that the appellant’s belief could have been based on the victim’s angry manner without regard to the alleged raising of the arms and the clenched fists. However, that is not a proper reflection of the appellant’s evidence. It is clear that the claim of raised arms and clenched fists was central to the defence of self-defence. An angry expression, for example, would not have provided the basis for any genuine belief that the appellant was entitled to attack the victim in the way in which he did for a defensive purpose.
The final ground of appeal states that the finding that the appellant was not acting in self-defence was against the weight of the evidence.
This was a case which depended to a large extent on the assessment of the witnesses. Mr Boucaut referred to discrepancies between the evidence of the victim at the trial and the version he gave to the police. As the magistrate pointed out, the version contained in the victim’s statement to the police was quite brief. In all the circumstances, any discrepancies which were present were not of such a nature as to justify a rejection of the victim’s version.
I have followed the approach to be taken by an appellate court in considering a ground of this nature: M v The Queen (1994) 181 CLR 487 at 493. However, I am satisfied that, upon the whole of the evidence it was open to the magistrate to be satisfied beyond reasonable doubt that self-defence was disproved and that the charge was proved.
The appeal against conviction will be dismissed.