James v Sievwright

[2002] WASCA 343

JAMES -v- SIEVWRIGHT [2002] WASCA 343

Jurisdiction:	SUPREME COURT OF WESTERN AUSTRALIA	Citation No:	[2002] WASCA 343
Case No:	SJA:1104/2002	Heard:	26 NOVEMBER 2002
Coram:	MCKECHNIE J	Delivered:	13/12/02
No of pages:	12	Judgment Part:	1 of 1
Result:	Appeal allowed Remitted to Magistrate to be dealt with in accordance with these reasons
Category:	A
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Parties:	PAUL BRIAN JAMES JUDITH ANNE SIEVWRIGHT
Catchwords:	Criminal law Assault in home Biting portion of ear Whether force disproportionate to provocation Whether reasonable force for self­defence Home invasion Defence Elements of defence
Legislation:	Criminal Code (WA), s 244, s 245, s 246, s 248
Case References:	Masciantonio (1995) 183 CLR 58 Stingel (1990) 171 CLR 312 R v Johnson [1964] Qd R 1 Verhoeven v Ninyette (1998) 101 A Crim R 24

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA CITATION : JAMES -v- SIEVWRIGHT [2002] WASCA 343 CORAM : MCKECHNIE J HEARD : 26 NOVEMBER 2002 DELIVERED : 13 DECEMBER 2002 FILE NO/S : SJA 1104 of 2002 BETWEEN : PAUL BRIAN JAMES

Appellant

AND

JUDITH ANNE SIEVWRIGHT
Respondent

Catchwords:

Criminal law - Assault in home - Biting portion of ear - Whether force disproportionate to provocation - Whether reasonable force for self­defence - Home invasion - Defence - Elements of defence

Legislation:

Criminal Code (WA), s 244, s 245, s 246, s 248

Result:

Appeal allowed

Remitted to Magistrate to be dealt with in accordance with these reasons

(Page 2)

Category: A

Representation:

Counsel:

Appellant : Mr J G Kitto
Respondent : Ms K S Hitchins

Solicitors:

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

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

Masciantonio (1995) 183 CLR 58
Stingel (1990) 171 CLR 312

Case(s) also cited:

R v Johnson [1964] Qd R 1
Verhoeven v Ninyette (1998) 101 A Crim R 24

(Page 3)

1 MCKECHNIE J: The appellant was charged that on 22 December 2001, at Marangaroo, he unlawfully assaulted Aaron Alexander Stuart Owens and thereby did him bodily harm. The events in question arose from an altercation which occurred at the appellant's house during the course of a Christmas party.

2 The matter proceeded to trial before Mr Calder SM, following which the appellant was convicted.

3 There are a number of grounds of appeal, several of which are interlinked.

Was a piece of the complainant's ear bitten off?

4 In ground A, the appellant challenges a key finding by the Magistrate to the effect that during the altercation the appellant bit off a piece of Mr Owens' ear. This was a significant finding as it affected the Magistrate's consideration of the reasonableness and proportion of the appellant's response to a provocative assault.

5 At the commencement of the trial the prosecution admitted in evidence with the consent of the appellant, a medical report by Dr Richard Hay about his examination of Mr Owens, which read as follows:

"He had allegedly been in a fight with his boss at a work party the previous night. He alleged that his boss had bitten his left ear resulting in a piece of his left ear being torn off.

On examination he was noted to have a soft tissue defect involving the posterior rim of the ear, extending from the apex of the ear to the ear lobe, with involvement of the underlying cartilage.

The wound was cleaned and dressed with saline soaked gauze. The patient was given a script for oral antibiotics. The patient's injury was discussed with the on call Plastic Surgery Registrar at Royal Perth Hospital and it was arranged for the patient to be reviewed in the Plastic Surgery Dressings Clinic at 8.30am the next morning for further management.

The nature of the injuries could be consistent with having been inflicted as alleged. The nature of the injury did interfere with the health and comfort of the patient. However the injury did

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not endanger the life of the patient and was unlikely to cause permanent injury to his health."

6 The appellant argues that this report provides no evidence that any part of the ear had been bitten off. However, with respect, it appears plain to me that the effect of the report is that the appellant had lost a piece of his ear. The use of the expression "soft tissue defect" and the sentence "the nature of the injuries could be consistent with having been inflicted as alleged" is evidence that a piece of ear was missing.

7 Mr McCallum was a witness called for the prosecution. He had joined in the fight, punching the appellant on the head. Portion of his evidence was:

"Then what did you see?---Well, him trying - - ripping like that like a dog on Aaron's ear.

Okay. What did you do?---I started punching him in the side of the head.

What was Paul doing while you were doing this?---He was still ripping Aaron's ear.

…

He's still biting?---Yeah. He's torn - - he's finally torn the piece of ear off.

Okay?---He stood up and spat it in my direction and then we left.

Where did it land?---On the ground somewhere. We didn't really hang around to look for it."

Ms Law-Dodd, another prosecution witness, gave evidence:

"… Rod and I tried to pull Paul off of Aaron, and when finally it was - - the fight broke up, Paul - - well, we all stood up and Paul spat a piece of ear which hit Rod in the chest, by that stage we were all backing off down the driveway, just scattering to run out of there. …"

8 At the conclusion of the trial, and just prior to delivering his reasons, the Magistrate viewed the complainant's ear. He explained that he did not particularly take notice of it while the complainant was in the witness box. He noted:

(Page 5)

"… my observation is that the - - I'll just call it the back part of his ear, on the left side has a significantly different shape from his right ear … and that the photographs … are consistent with what I have just seen as to the shape of his left ear. …

I will hear you if either of you want to address me about it but it seems to me that it's open to me to draw an inference that that difference in the shape of the two ears came about as a consequence of a piece being bitten off by the defendant."

9 The Magistrate did not generally accept the evidence of McCallum and Law-Dodd, especially as to their version of the events of the night. However, in respect to this issue he accepted their evidence as to their observations. Their evidence was direct evidence that the appellant had bitten off a piece of Mr Owens' ear.

10 The Magistrate was entitled to supplement the evidence of Dr Hay, Mr McCallum and Ms Law-Dodd by his own observation of the complainant's ear. It was a matter for the Magistrate which portions of the evidence of McCallum and Law-Dodd to accept and it was open for him to accept the portion relating to the ear while rejecting their testimony in other areas. That is a common function of fact-finders.

11 It was open for the Magistrate to be satisfied beyond reasonable doubt that the appellant had indeed bitten the complainant with such force that a piece of his ear was removed.

12 Accordingly, grounds B and C fail.

The test for self defence

13 Ground D asserts that the Magistrate erred in law by applying the wrong legal test on the question of the appellant's self-defence.

14 The Magistrate set out his findings of fact, preferring generally the evidence of the appellant and his witnesses to that of the prosecution witnesses. He summarised the evidence by noting that the night had turned sour and that the appellant and McCallum had come to blows, following which McCallum and the complainant were ordered to leave. He specifically found:

"There was the unprovoked attack with the chain from behind whereby he was struck and I am satisfied that Owens was going to have another go at him - I accept his evidence in that regard -

(Page 6)

with the chain. By 'having a go at him' I mean to physically assault him again. I am satisfied that within the meaning of the provisions of section 245 and 246 of the Code he was provoked into reacting as he did by grabbing Owens and throwing him to the ground and generally grappling with him."

15 In relation to self-defence he found:

"At that stage - that is, before he grabbed Owens and threw him to the ground - I find that he believed that he would be struck again by the chain, that he was entitled to act in self-defence and that he did act in self-defence. It is a combination of provocation therefore and self-defence."

16 Applying Code s 246, the Magistrate was required to focus on the proviso whether the force was not disproportionate to the provocation. Under Code s 248 the Magistrate was required to focus as to whether the force used was "as is reasonably necessary to make effectual defence against the assault." To some extent the Magistrate blurred these two matters. He found:

"… I find, however, that biting his ear to the extent that a piece of it came off was unreasonable, was disproportionate to both the provocation and to the threat of any harm that might have ensued had he been struck again by Owens with the chain or had Owens done anything else which may have constituted an assault."

17 He also said:

"What he did say was his face was about 6 inches away from that of Owens, that he thought Owens was trying to bite him, scratch him, and the prosecution hasn't negatived that beyond a reasonable doubt and I proceed on the basis that it wasn't an unreasonable thought in his mind that he might be bitten by Owens.

Nevertheless, in my view, that of itself is insufficient to justify biting his ear in the first place and, secondly, biting it so hard that a piece came off. Again, as I have said, that's something which is entirely disproportionate. There were any number of options that he had. He certainly didn't have to open his mouth and bite him. I find that he deliberately did that. It wasn't a case of Owens' ear suddenly being up against his mouth or his

(Page 7)

lips and all he had to do was open his mouth. It was a deliberate action to get hold of his ear with his teeth and squeeze so hard and hang on so long that a piece came off.

For those reasons I find that the prosecution has negatived beyond a reasonable doubt the defences both of provocation and self-defence on the basis that the conduct of the defendant, the reaction of the defendant, by biting part of the ear off was disproportionate."

18 In the circumstances I consider the Magistrate has correctly addressed his mind both to the question of the reasonableness of the force necessary under Code s 248 and the proportion of the response necessary under Code s 246. He has not misunderstood or misapplied either test. There is no evidence of any special characteristics of the appellant that would have a bearing on the question of proportionality; cf Stingel (1990) 171 CLR 312; Masciantonio (1995) 183 CLR 58. I do not uphold this ground of appeal and therefore the ground fails.

McCallum's involvement

19 Ground E relates to the attack by Mr McCallum and whether that attack could constitute any lawful excuse for the appellant's actions in biting off a piece of the ear. The Magistrate dealt with this by saying:

"It can't be said, in my view, that any conduct on the part of McCallun (sic) by hitting him when he had Owens on his back on the ground constituted any lawful cause or excuse for him leaning down and biting Owens on the ear. His evidence was that he bent down to avoid the punches. He didn't go on to say, not surprisingly, 'I bit him on the ear because McCallun (sic) was punching me'."

20 The appellant argues that the Magistrate ought to have considered that the attack on the appellant was a joint unlawful attack in the appellant's home wherein were his wife and two children.

21 However the Magistrate was aware of the circumstances. He had outlined them in detail during the course of his reasons. It was open for him to reach the conclusion expressed above.

(Page 8)

Defence against home invasion

22 The Magistrate held that the provisions of Code s 244: "Defence against home invasion" had no application.

23 The respondent concedes that the section was capable of applying to the facts. I agree. Therefore, there has been a miscarriage of justice and the appeal should be allowed unless the respondent establishes that there has been no substantial miscarriage of justice. The respondent must show that the appellant has not lost a chance of acquittal fairly open to him.

24 The respondent points to the requirement under Code s 244(1) that the occupant may use any force that the occupant believes on reasonable grounds to be necessary:

"(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 on or in an associated place. …"

25 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 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.

(Page 9)

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 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.

(Page 10)

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."

26 The Magistrate found:

"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."

27 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 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.

28 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.

29 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.

30 In the present case, there is evidence that the appellant believed on reasonable grounds that Mr Owens was a home invader. Owens had

(Page 11)

committed an assault by striking the appellant with the chain in the appellant's home.

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.

32 The learned Magistrate gave Code s 244 no consideration because of his erroneous view that it had no application.

33 I can see no reason why the matter should not be returned to him so that he may receive submissions on this sole issue and then make a determination. His findings on the other matters do not preclude him from determining this separate question on the evidence. Accordingly, I allow the appeal on ground F alone and remit the matter back to the Magistrate to consider:

(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

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(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.