James v Sievwright

[2003] WASCA 251

JAMES -v- SIEVWRIGHT [2003] WASCA 251

Jurisdiction:	SUPREME COURT OF WESTERN AUSTRALIA	Citation No:	[2003] WASCA 251
Case No:	SJA:1057/2003	Heard:	13 AUGUST 2003
Coram:	BARKER J	Delivered:	17/10/03
No of pages:	20	Judgment Part:	1 of 1
Result:	Appeal dismissed
Category:	A
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Parties:	PAUL BRIAN JAMES JUDITH ANNE SIEVWRIGHT
Catchwords:	Appeal Justices Act 1902 (WA) Assault in home Biting portion of ear Home invasion defence Elements of defence Whether action made lawful by s 244 Criminal Code Whether appellant actually held belief that force used necessary Question of fact
Legislation:	Criminal Code, s 244, s 246, s 248, s 317(1) Justices Act 1902 (WA)
Case References:	James v Sievwright [2002] WASCA 343 Knight v The Queen (1992) 175 CLR 495 Marwey v The Queen (1977) 138 CLR 630 Minniti v The Queen [2001] WASCA 148 The Queen v Muratovic [1967] Qd R 15 The Queen v Gray (1998) 98 A Crim R 589 Whitehorn v The Queen (1983) 152 CLR 657 Barca v The Queen (1975) 133 CLR 82 Plomp v The Queen (1963) 110 CLR 234

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA

IN CIVIL

CITATION : JAMES -v- SIEVWRIGHT [2003] WASCA 251 CORAM : BARKER J HEARD : 13 AUGUST 2003 DELIVERED : 17 OCTOBER 2003 FILE NO/S : SJA 1057 of 2003 BETWEEN : PAUL BRIAN JAMES

Appellant

AND

JUDITH ANNE SIEVWRIGHT
Respondent

Catchwords:

Appeal - Justices Act 1902 (WA) - Assault in home - Biting portion of ear - Home invasion defence - Elements of defence - Whether action made lawful by s 244 Criminal Code - Whether appellant actually held belief that force used necessary - Question of fact

Legislation:

Criminal Code, s 244, s 246, s 248, s 317(1)

Justices Act 1902 (WA)

Result:

Appeal dismissed

(Page 2)

Category: A

Representation:

Counsel:

Appellant : Mr J G Kitto
Respondent : Mr B E F Tooker

Solicitors:

Appellant : Kitto & Kitto
Respondent : State Director of Public Prosecutions

Case(s) referred to in judgment(s):

James v Sievwright [2002] WASCA 343
Knight v The Queen (1992) 175 CLR 495
Marwey v The Queen (1977) 138 CLR 630
Minniti v The Queen [2001] WASCA 148
The Queen v Muratovic [1967] Qd R 15
The Queen v Gray (1998) 98 A Crim R 589
Whitehorn v The Queen (1983) 152 CLR 657

Case(s) also cited:

Barca v The Queen (1975) 133 CLR 82
Plomp v The Queen (1963) 110 CLR 234


(Page 3)

BARKER J:

Introduction

1 This is an appeal by the appellant under the Justices Act 1902 (WA) against his conviction in the Court of Petty Sessions at Perth on 30 April 2003 for assault occasioning bodily harm contrary to s 317(1) of the Criminal Code.

2 The appellant was charged that on 22 December 2001 at Marangaroo he unlawfully assaulted Aaron Alexander Stuart Owens and thereby did him bodily harm contrary to s 317(1) of the Criminal Code.

3 The matter proceeded to hearing in the Court of Petty Sessions before Mr G Calder SM on 26 and 27 June and 6 August 2002. The evidence lead suggested the appellant had bitten off part of one of Owens' ears and his Worship so found. As a result, his Worship found the appellant guilty as charged.

4 The appellant then successfully appealed to this Court against that conviction: James v Sievwright [2002] WASCA 343. McKechnie J found that the learned Magistrate had failed to consider the "defence" against home invasion created by s 244 of the Criminal Code and remitted that matter to the Magistrate for consideration.

5 The matter came on again before the learned Magistrate on 30 January 2003. His Worship then heard detailed submissions from both parties before reserving his decision. He delivered written reasons for decision dated 30 April 2003, in which he concluded that:

"The action of the defendant in biting off a part of Owens' ear was not made lawful by the provisions of s 244 of the Code."

It is from that decision that the appellant now appeals.

Section 244 of the Criminal Code

6 An account of the facts relating to the complaint adduced in evidence before the learned Magistrate is contained in the reasons for decision of McKechnie J in the earlier appeal. Suffice it to say that the events in question arose from an altercation which occurred at the appellant's house during the course of a Christmas party. Questions of self-defence, provocation and defence against home invasion were raised before the learned Magistrate.

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7 In particular, the Magistrate at the initial hearing held that the provisions of s 244 of the Criminal Code dealing with "defence against home invasion" had no application. On the appeal before McKechnie J, the respondent conceded and his Honour held that s 244 of the Code was capable of applying to the facts before the learned Magistrate.

8 Section 244(1) of the Code provides as follows:

"244. Defence against home invasion

(1) It is lawful for a person ('the occupant') who is in peaceable possession of a dwelling to use any force or do anything else that the occupant believes, on reasonable grounds, to be necessary ¾


(a) to prevent a home invader from wrongfully entering the dwelling or an associated place;

(b) to cause a home invader who is wrongfully in the dwelling or on or in an associated place to leave the dwelling or place;

(c) to make effectual defence against violence used or threatened in relation to a person by a home invader who is ¾


(i) attempting to wrongfully enter the dwelling or an associated place; or

(ii) wrongfully in the dwelling or on or in an associated place;

or


(d) to prevent a home invader from committing, or make a home invader stop committing, an offence in the dwelling or on or in an associated place."

9 Before McKechnie J the respondent argued that there was no evidence of belief. McKechnie J rejected this submission and, at [25], noted as follows:

"The respondent argues there was no evidence of belief. The evidence, such as it is, appears from the appellant. He described how he heard a growl and then was hit by Mr Owens

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on the side of the head with a chain. He threw the chain away and to Mr Owens said: 'You're going to fight like a bitch. I'll teach you how to fight like a bitch.' He then said:

'He was doing the growling thing, and carrying on. He just - - honestly, I believe he just lost the plot. I really do. And I just grabbed him down and threw him down on the ground, and I come down on top of him. He was on his back, and he was scratching up at me, and I was grabbing him, and that's when - - before then Rod had charged through the gate and shut the gate behind him, very hard, and he was leaning over and punching me, and I bit Aaron in the ear.

MR PRIMERANO: All right. Why did you grab him and throw him to the ground?---Because he hit me with the chain more than anything, and he still was still coming at me. So - -

Right. Were you - - what type of emotion were you experiencing at that time?---I was very upset. I couldn't be totally accurate. I'd say I was probably furious.

All right. So your evidence was you were on the ground?---Yes. Aaron was on his back, facing up at me. I was on top of Aaron.

Right?---Pretty much like on my knees and over the top of Aaron, grappling with Aaron, and Rod, he jumped in. He was just like pounding the shit out of my head - like hitting pretty hard - and, yeah, and there, that's when I bit Aaron in the ear. I'm not denying biting him. I definitely bit him. Yes.

All right. So Rod was hitting you, and again can you explain what Aaron was doing?---He was like reaching up at me, sort of making those growling noises, and like scratching at me and grabbing at me, pulling at me. And, yes, just - - I don't know what you could call it, what way you could call it fighting, because it wasn't like throwing punches or anything.

All right. What happened next?---Well, Rod was hitting me and I was like grappling with Aaron, and how I bit him I don't know. I just know I did bite his ear. I can remember

(Page 6)

biting his ear. I certainly didn't bite it off, but I can remember biting it. Because he was trying to bite me, and I just went - -

He was trying to bite at you?---Yes.

Can you explain that?---And I know … (indistinct) … Well, he was trying to reach up, grabbing at me and all of that, and he was like scratching and trying to bite like he was on my back before.

When he was doing that, how far away were you from his face?---Probably there.

How many centimetres would you - - ?---Probably six inches.

Six inches away from his face?---Yes.

And he was trying to bite you?---Yes.

So then what did you do?---When Aaron, I was on top of him, like getting hit, like ducking, trying to dodge - Rod hit me from behind - and I know I just bit his ear. I honestly can't tell you why I did it, but I bloody did it and I regret doing it.'"

10 McKechnie J, at [26], noted that the Magistrate had found, on the evidence of the appellant, that:

"His own evidence - that is, the defendant's evidence - was that he bit - - let me correct myself. His comment during the interview was that he bit pretty hard. I think that is the section that I have referred to. Yes. 'I bit pretty hard. There was a lot of blood.' I infer from his comment that he was going to teach Owens to 'fight like a bitch' to mean that the was going to do something which he perhaps considered a man wouldn't do in the course of a fight, and that was to bite someone on the ear."

11 As to the availability of the defence afforded by s 244 of the Criminal Code, McKechnie J at [27] - [29] stated that:

"Code s 244 in its present form was inserted into the Criminal Code in 2000. It has expanded the rights of householders in peaceable possession of their dwelling to use any force or do

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anything else necessary to repel a home invasion and make effectual defence against violence used or threatened. Previous limitations as to the degree of force sanctioned by the law have gone. However, the lawfulness of the use of force is conditioned on the belief on reasonable grounds, by the occupant, that any force used is necessary.

Code s 244 determines the status of a home invader in a most unusual way, not by reference to any fact or circumstance but simply upon a further belief of the occupant, albeit on reasonable grounds, that a person intends to commit an offence or is committing, or has committed an offence.

In order for an occupant to establish the lawfulness of their conduct, it is necessary for evidence to be led, either directly or by inference, of two reasonable beliefs:

• that a person is a home invader

• that any force used is necessary.

Once there is evidence of such a reasonably held belief the prosecution must negative that belief."

12 On the evidence of the appellant referred to above, McKechnie J found that there was evidence that the appellant believed on reasonable grounds that Mr Owens was a home invader. Owens had committed an assault by striking the appellant with the chain in the appellant's home. His Honour then stated at [31]:

"Once there is evidence of a reasonable belief as to necessary force which the prosecution is unable to disprove, the actions of the householder become lawful. A court must analyse the question of belief critically. The section is not designed to provide a lawful occasion on which an angry person might assault another. Here, although there was no direct evidence as to the appellant's belief, the evidence I have outlined is capable of giving rise to the existence of a belief on reasonable grounds. Whether in fact the appellant actually held such a belief was a matter to be determined on an overall assessment of all the evidence at the trial. If there is evidence of actual belief, then it is also for the trial court to determine whether that belief was in the circumstances held on reasonable grounds."

(Page 8)

13 McKechnie J then remitted the matter to the learned Magistrate for him to consider two specific questions, namely:

(1) whether there is in fact evidence that the appellant used any force that he believed on reasonable grounds to be necessary:

(a) to prevent a home invader from wrongfully entering the dwelling or an associated place;

(b) to cause a home invader who is wrongfully in the dwelling or on or in an associated place to leave the dwelling or place; and

(c) to make effectual defence against violence used or threatened in relation to a person by a home invader who is:


(i) attempting to wrongfully enter the dwelling or an associated place; or

(ii) wrongfully in the dwelling or in an associated place; or


(d) to prevent a home invader from committing, or making a home invader stop committing, an offence in the dwelling or on or in an associated place.

(2) If there is such evidence, to consider whether the prosecution has negatived such evidence beyond reasonable doubt.

14 The two questions posed by McKechnie J are premised on an understanding of the way s 244 is intended to operate when compared with other "defences" contained in the Code.

15 To some extent, the terms of the second paragraph of s 248 dealing with self-defence against unprovoked assault are similar to those used in s 244. Section 248 provides as follows:

"When a person is unlawfully assaulted, and has not provoked the assault, it is lawful for him to use such force to the assailant as is reasonably necessary to make effectual defence against the assault, provided that the force used is not intended, and is not such as is likely, to cause death or grievous bodily harm.

If the nature of the assault is such as to cause reasonable apprehension of death or grievous bodily harm, and the person

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using force by way of defence believes, on reasonable grounds, that he cannot otherwise preserve the person defended from death or grievous bodily harm, it is lawful for him to use any such force to the assailant as is necessary for defence, even though such force may cause death or grievous bodily harm."

16 Whereas the first paragraph of s 248 speaks in terms of "such force … as is reasonably necessary", the second paragraph of s 248 provides a defence, inter alia, if "the person using force by way of defence believes, on reasonable grounds, that he cannot otherwise preserve the person defended from death or grievous bodily harm".

17 In terms not dissimilar to the second paragraph of s 248, s 244(1) makes it lawful for the occupant of a dwelling "to use any force or do anything else that the occupant believes, on reasonable grounds, to be necessary" for the purposes set out in pars (1)(a) - (d).

18 The provision of the Criminal Code of Queensland equivalent to the second paragraph of s 248 was considered in Marwey v The Queen (1977) 138 CLR 630. A number of members of the Court there approved what Gibbs J (as he then was) had said in The Queen v Muratovic [1967] Qd R 15 at 18 - 19, to the effect that all that was necessary to establish a defence under the provision in question was that the accused had an honest and reasonable belief that the nature of the unprovoked assault upon him might cause him to be killed or suffer grievous bodily harm and he honestly and reasonably believed that he could not preserve himself otherwise than by the use of force against his attacker. In that event, such use of force was lawful, although it, in turn, caused death or grievous bodily harm to the other person.

19 In Marwey v The Queen at 637 Barwick CJ, when referring to the use of the word "necessary" in the second paragraph, said that this meant simply "requisite" or "needful". His Honour stated:

"What the second paragraph requires is that the accused believes on reasonable grounds when he does the fatal act (or, as in this case, the act which causes grievous bodily harm) that it must be done if he is to survive the assault made upon him. The element of reasonableness is supplied by the need for the belief to be founded on reasonable grounds. If there are such reasonable grounds - a matter for the determination of the jury - the self-defence will itself have been reasonable."

(Page 10)

20 The decision in Marwey v The Queen governs the law in this State: see Minniti v The Queen [2001] WASCA 148 per Murray J, with whom the Chief Justice agreed.

21 Similar observations concerning the equivalent provision of the second paragraph of s 248 found in the Criminal Code of Queensland,were also made in the Court of Appeal of Queensland in The Queen v Gray (1998) 98 A Crim R 589. McPherson JA, with whom Davies JA and Fryberg J agreed, stated at 593:

"There is plainly a difference between the mental condition predicated of a defender under section 271(1) and under section 271(2). In the case of section 271(1), the degree of force used must be 'reasonably necessary' to make 'effectual defence' against the assault. The criterion in that instance is objective and does not concern itself with the defender's actual state of mind. In the case of section 271(2), it is, at least in part, subjective. The defender must believe that what he is doing is the only way he can save himself or someone else from the assault. He must hold that belief 'on reasonable grounds'; but it is the existence of an actual belief to that effect that is the critical or decisive factor. There is no additional requirement that the force used to save himself or someone else must also be, objectively speaking, 'necessary' for the defence. If this has the effect of writing out of section 271(2), by excluding from it any requirement which at first sight appears to be imposed by, the words 'necessary for defence' in that subsection, then it is a result that is dictated by authority which is binding on this Court."

22 In my view, the same observations should be made of s 244(1) of the Criminal Code in this State as have been made in respect of the second paragraph of s 248. That is to say, there is no requirement in order to make out the "defence" against home invasion for the occupant to show that the force he or she used was "reasonably necessary" to prevent a home invader from wrongly entering the dwelling or the other purposes referred to in s 244(1)(a) - (d). Unlike the first paragraph of s 248, which establishes a criterion which is objective and does not concern itself with a defender's actual state of mind, s 244(1), like the second paragraph of s 248, is, at least in part, subjective. The occupant must believe that what he or she is doing is necessary to prevent a home invader from wrongfully entering a dwelling, etcetera. The occupant must hold that belief "on reasonable grounds", but it is the existence of an actual belief to that effect

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that is the critical or decisive factor. There is no additional requirement that the force used to prevent a home invader from wrongfully entering a dwelling, etcetera, must also be, objectively speaking, "necessary" for the defence to apply.

23 Thus, it is important to emphasise, as did McKechnie J, at [31] of his reasons in the earlier appeal, that the trier of fact must analyse the question of belief critically. As McKechnie J noted, s 244 of the Code is not designed to provide a lawful occasion on which "an angry person might assault another". Nonetheless, an "angry person" may still be entitled, in an appropriate situation, to the benefit of the "defence".

24 McKechnie J plainly accepted that the evidence already adduced before the learned Magistrate was "capable of giving rise to the existence of a belief on reasonable grounds". The question which remained, in effect, was whether in fact the appellant actually held such a belief. As his Honour directed, that was a matter to be determined by the learned Magistrate after an overall assessment of all the evidence at the trial, bearing in mind that the respondent remained at all times obliged to negative the "defence" beyond reasonable doubt.

Reasons for decision of the Magistrate of 30 April 2003

25 When the learned Magistrate further considered the questions identified by McKechnie J, he accepted that Owens became a home invader who was wrongfully in the dwelling. His Worship expressly found that:

"Whilst he (Owens) was in the course of removing himself from the premises, which he was obliged to do upon being told to go, Owens informed the intention to assault the defendant with the chain. He then put that intention into effect. From the moment when he formed the intention to assault the defendant and began to carry out that intention he became a person who was in the dwelling for an unlawful purpose. For the purposes of sub-section 244(1), the defendant was entitled to use any force or do anything else to Owens which the defendant believed on reasonable grounds was necessary to cause Owens to leave the dwelling, it having been made abundantly clear to the defendant by the actions of Owens that Owens was not about to simply leave, as he was, by then, obliged to do, forthwith."

26 The learned Magistrate therefore found that the appellant was entitled to grab hold of Owens subject, however, to the proviso that he

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believed on reasonable grounds that the application of any force was necessary to achieve the objective of causing him to leave the dwelling.

27 The learned Magistrate also found that, after the appellant had been assaulted, and after he believed that he was about to be again assaulted by Owens, the appellant was entitled to make effectual defence against violence both used and threatened by Owens who was at that time wrongfully in the dwelling.

28 Further, the learned Magistrate found that the appellant was entitled to apply force of the type permitted by s 244(1)(d) to prevent Owens from committing a further offence or assault against him.

29 The learned Magistrate then reviewed the evidence of the appellant and his earlier findings in respect of it. He noted that he had previously found that the appellant "did intend to bite Owens' ear". He confirmed his earlier finding that the appellant "intended to bite it very hard and that he did so" and that "he intended to maintain his bite on it for as long as he did." He noted that the appellant "was really unable to explain why he did that". The learned Magistrate stated that the appellant "did not expressly say that he believed that it was necessary to bite off a piece of the ear in order to achieve the objectives which are set out in s 244(1)." While the Magistrate accepted that belief may be inferred from proven primary facts, he concluded:

"I am satisfied that the reason that the defendant bit off a piece of Owens' ear was not because he believed that it was necessary to do so in order to bring about any of the results contemplated in paragraphs (b), (c) or (d) of the sub-section. During the recorded interview he said that he had bitten Owens 'because he was still having a go at me and I was very angry. The reason I did was that he was fighting like a bitch and I wanted to show him how to fight like a bitch'."

30 The learned Magistrate concluded that the appellant did not believe it was necessary to bite off Owens' ear in order to achieve any one of the outcomes set out in s 244(1), but had a "different purpose in mind being a purpose which did not fall within s 244 and which was not otherwise authorised or excused or justified by the law." The other and different purpose to which the learned Magistrate referred appears to be encapsulated in the following expression of opinion of the learned Magistrate:

(Page 13)

"In my opinion the reason for the defendant biting off part of Owens' ear is constituted by a number of factors. He was extremely angry, not only at the assault and threatened assault with the chain but also because of the inappropriate behaviour of Owens during most of the evening. He wanted to teach him a lesson for the manner in which Owens had jumped on his back and been growling like a dog and, to the belief of the defendant, biting him during the earlier incident when the defendant was fighting with McCallum. Although McCallum was punching the defendant in the head while the defendant was keeping Owens down and on his back on the ground, the defendant, being considerably larger and stronger than Owens and less affected by alcohol than Owens, was easily able to and had overpowered Owens. In the position in which he then was Owens posed very little physical threat to the defendant, even though he was behaving in a manner which suggested that there was a possibility that he may bite or scratch the defendant. Although, the intervention of McCallum, by punching a [sic] defendant in the head at that time, did make the objective of the defendant in maintaining his physical control over Owens more difficult and did to an extent increase the possibility that Owens may be able to cause him some injury."

The grounds of appeal

31 On 28 May 2003, I granted leave to appeal against the conviction of the appellant recorded on 30 April 2003. The grounds are lengthy and are annexed to these reasons. At the hearing of the appeal, the primary submission made by counsel for the appellant was that the learned Magistrate's inference that the appellant's actions in biting Owens' ear resulted from his anger ignored the other inferences which were equally available to him and which were consistent with innocence, namely, that the appellant's actions were based on the appellant's belief that his action was necessary for the purposes of s 244(1)(b), (c) or (d).

32 Put shortly, the submission made on behalf of the appellant is that a finding that the appellant was angry at the time and acted out of anger when he bit Owens' ear does not necessarily exclude a finding that the appellant also held the belief necessary to exonerate him under s 244 in respect of the conduct complained of.

33 More particularly, counsel for the appellant submits that a finding that the appellant was angry with Owens and wanted to "teach him a

(Page 14)

lesson" does not necessarily mean that the appellant could not also hold the belief referred to in s 244(1) of the Code.

34 As a result, counsel for the appellant submits that the Magistrate failed to answer the first question posed by McKechnie J.

35 Further, counsel for the appellant submits that the learned Magistrate did not determine that the prosecution had negatived the existence of a belief by the appellant that the appellant's actions were necessary in the circumstances, as required by the second question posed by McKechnie J.

36 Counsel for the respondent accepts that, at all times, the prosecution bore the burden of proving each of the elements of the offence of assault occasioning bodily harm beyond reasonable doubt.

37 The respondent further submits that, so far as the "defence" afforded by s 244 of the Code is concerned, the appellant bore an evidential burden of proof to raise the defence. Counsel for the respondent contends McKechnie J recognised this in the earlier appeal at [29], and also when his Honour concluded, at [31], that there was evidence that was "capable of giving rise to the existence of a belief on reasonable grounds".

38 The respondent submits that it is implicit in the reasons of the learned Magistrate that he also accepted that the evidential burden required to raise the s 244 "defence" had been discharged by the appellant. In this regard, counsel for the respondent referred to the submission made on behalf of the appellant before the learned Magistrate on 30 January 2003, that the learned Magistrate's "sole function was to investigate whether the prosecution had negatived" the defence under s 244. Counsel for the respondent contends that the learned Magistrate must have accepted that particular submission because his Worship stated, following this submission, that "the only question which I have to decide is whether or not he in fact held that belief".

39 In this context, counsel for the respondent says the respondent concedes that the Magistrate's approach to the first question posed for the Magistrate by McKechnie J was "flawed". As I understand it, the concession is made on the basis that the learned Magistrate did not, as a matter of form, separately answer the two questions posed by McKechnie J. However, counsel for the respondent submits that, in effect, the learned Magistrate in a sense rolled the two questions together, accepted the appellant had discharged the evidential burden so as to require his consideration of the s 244 "defence", and then approached the issue of the "defence" on the basis that there was only one question for

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him to determine, namely, whether he was satisfied, beyond reasonable doubt, that the appellant did not in fact hold the actual belief that it was necessary for him to bite off Owens' ear in order to achieve one of the outcomes set out in s 244(1).

40 As a matter of form, at least, the first question posed by McKechnie J was noted in the reasons of the learned Magistrate, as was the second question. The Magistrate was required, firstly, to determine whether there was in fact evidence that the appellant used any force that he believed on reasonable grounds to be necessary for one or other of the purposes set out in s 244(1). It was for the appellant, if he wished to make out the defence afforded by s 244, to lead or point to some evidence of the reasonably held belief in the first instance and discharge the evidential burden carried by him in that respect. Once the evidential burden was discharged, unless the respondent satisfied the Magistrate beyond reasonable doubt that the appellant did not hold that belief - which onus the respondent bore - the appellant was entitled to be acquitted.

41 In this case, when one considers the substance of the learned Magistrate's reasons, he plainly accepted McKechnie J's direction that there was evidence capable of raising the "defence" under s 244. He then critically examined the evidence to decide if the appellant held an actual belief that the forced used was for a purpose set out in s 244(1)(b) - (d) and determined he did not.

42 His Worship obviously accepted and understood McKechnie J's injunction at [31] that the trial court must analyse the question of belief critically. That is not to say, however, that a person might not act with anger as well as with the belief on reasonable grounds that it is necessary to use force for one or other of the purposes set out in s 244(1) of the Code. It is a question of fact in each case whether the belief referred to in s 244(1) is actually held. Nothing said by his Worship suggests he understood or thought otherwise.

43 In my view, the learned Magistrate did not deny the proposition that a person might both act with anger and also make out on the evidence his or her entitlement to the "defence" afforded by s 244 of the Code. However, in this case, in my view, the Magistrate, for the reasons he gave, was not satisfied that the appellant in fact held the belief it was necessary to bite off part of Owens' ear to achieve one of the relevant s 244(1) purposes. Rather, he found, as a matter of fact, the appellant used the force in question because he "wanted to teach him [Owens] a lesson" for

(Page 16)

the manner in which Owens had previously assaulted him and had otherwise been conducting himself up to that point.

44 I consider the learned Magistrate in fact asked and answered the critical question concerning the appellant's actual belief. In posing the question and answering it in the way he did, he necessarily excluded the possibility that the appellant was both angry and possessed of the relevant actual belief at the time he bit off part of Owens' ear.

45 The learned Magistrate expressly stated that he was " … satisfied that the reason that the [appellant] bit off a piece of Owens' ear was not because he believed that it was necessary to do so in order to bring about any of the results contemplated in paragraphs (b), (c) or (d) of the section".

46 In making this finding, the learned Magistrate did not state that his satisfaction was "beyond reasonable doubt". However, that his satisfaction was beyond reasonable doubt is, I think, sufficiently clear from the context in which this finding appears. Having expressly found that s 244 did not make the appellant's conduct lawful, the Magistrate further stated that: "I find that the prosecution has proved beyond a reasonable doubt that the [appellant] committed the offence … " I consider this statement discloses the learned Magistrate was aware of the requisite standard and applied it. His earlier recitation of the two questions posed by McKechnie J also tends to confirm his appreciation of the requisite standard. Moreover, counsel for the appellant had emphasised this same "criminal standard" in relation to the respondent's obligation to negative the "defence" in submissions to the learned Magistrate on 30 January 2003, and there is nothing to suggest this submission was rejected by his Worship.

47 To the extent that the appellant also complains that the learned Magistrate made errors of fact in his findings, I am satisfied that his findings on the facts were open to him on the evidence.

48 There was abundant evidence to support the inference drawn by the learned Magistrate that the appellant "wanted to teach Owens a lesson". The evidence supporting that inference includes the following:

(1) during his video record of interview the appellant said that he had bitten Owens' ear, "because he was fighting like a bitch and I wanted to show him how to fight like a bitch";

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(2) in his evidence-in-chief the appellant admitted saying to Owens, "You're going to fight like a bitch. I'll teach you how to fight like a bitch";

(3) the appellant described his emotional state as "very upset", "probably furious". In his video interview and in cross-examination he admitted to being "very angry";

(4) prior to the biting incident, Owens had struck the appellant with a heavy chain;

(5) earlier on in the evening, the appellant had been attacked by Owens. During that attack, Owens was apparently growling like a dog and biting and scratching the appellant's neck.

49 On this evidence, it was reasonably clear that the appellant had got the "upper hand" in the fight when he bit Owens, as the learned Magistrate suggested. The appellant's evidence was that he had grabbed the chain and thrown it away. He had thrown Owens to the ground and was on top of him.

50 This is one of those cases where an appellate court should be careful not to substitute its own view of the evidence for the view formed by the trier of fact: Knight v The Queen (1992) 175 CLR 495 at 511. The Magistrate had the considerable advantage, when compared with this Court on appeal, of hearing and seeing all of the witnesses and forming his own impression as to what they did and why: Whitehorn v The Queen (1983) 152 CLR 657 at 687.

Conclusion and order

51 In these circumstances, although it may be said that the learned Magistrate could have more adequately expressed himself, I consider it is sufficiently clear from the substance of his reasons that his Worship fully appreciated the respondent bore the burden of negativing the availability of the "defence" of s 244 of the Criminal Code. His Worship considered the evidence critically, as he was directed to do by McKechnie J, and was satisfied beyond reasonable doubt that the appellant did not have an actual belief that the force used - biting off a part of Owens' ear - was necessary for any of the purposes set out in s 244(1)(b) - (d). In my view, such a finding of fact was open to his Worship and should not be disturbed on appeal. As a result, it follows that his Worship did not err in any of the material ways alleged by the applicant in the grounds of appeal.

52 For these reasons, the appeal should be dismissed.

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