Jessen v Police - [2011] SASC 209

SUPREME COURT OF SOUTH AUSTRALIA
(Magistrates Appeals: Criminal)
JESSEN v POLICE
[2011] SASC 209
Judgment of The Honourable Justice White
2 December 2011
CRIMINAL LAW - PARTICULAR OFFENCES - OFFENCES AGAINST PEACE AND PUBLIC ORDER - AFFRAY, RIOT, UNLAWFUL ASSEMBLY AND LIKE OFFENCES - AFFRAY
CRIMINAL LAW - GENERAL MATTERS - CRIMINAL LIABILITY AND CAPACITY - DEFENCE MATTERS - DEFENCE OF PERSONS OR PROPERTY - GENERALLY
The appellant was convicted of the offence of affray in contravention of s 83C of the Criminal Law Consolidation Act 1935 (SA) (CLCA) - the conviction arose from an altercation between two groups of men in a public street.
The Magistrate accepted that the appellant may have believed that his actions were necessary and reasonable for a defensive purpose, but considered that the conduct was not reasonably proportionate to the threat which the appellant genuinely believed to exist.
The appellant appealed, submitting that the Magistrate had wrongly decided the issue of self-defence.
Held: appeal dismissed - whilst there is no rule that persons must retreat to the fullest extent possible before attempting to defend theselves, the possibility of retreat is a relevant consideration in relation to self-defence - self-defence will not be available as a defence where an accused has engaged willingly in combat - as the altercation was entered into vountarily by the appellant, he could not claim to have been acting in self-defence - in any event, if he had been acting for a defensive purpose, the Magistrate was correct in concluding that his actions were not reasonably proportionate to the threat that the appellant perceived.
Criminal Law Consolidation Act 1935 (SA) s 83C, Sch 11(1)(20); Statutes Amendment (Public Order Offences) Act 2008 (SA), referred to.
R v Mapstone [1964] 1 WLR 439; Taylor v Director of Public Prosecutions [1973] AC 964; R v Pulham [1995] Crim LR 296; R v Honeysett (1988) 34 A Crim R 277; Zecevic v Director of Public Prosecutions (Vic) (1987) 162 CLR 645; R v Howe (1958) 100 CLR 448; R v Fricker (1986) 42 SASR 436; R v Nguyen (1995) 36 NSWLR 397; Morgan v Coleman (1981) 27 SASR 334, considered.

JESSEN v POLICE
[2011] SASC 209
Magistrates Appeal

WHITE J. The appellant was convicted by a Magistrate of the offence of affray, a contravention of s 83C of the Criminal Law Consolidation Act 1935 (SA) (CLCA). The offence was committed on 12 April 2010. Both the circumstances alleged against the appellant, and his submissions at trial, raised the issue of self-defence.
The Magistrate accepted that the appellant may have believed that the conduct alleged against him was necessary and reasonable for a defensive purpose, but considered that the prosecution had established beyond reasonable doubt that that conduct was not reasonably proportionate to the threat which the appellant genuinely believed to exist.
The appellant appeals against the conviction. The sole ground of appeal relates to the Magistrate’s consideration of the issue of self-defence.
The Offence of Affray
Section…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Jessen v Police

Details

AGLC: Jessen v Police [2011] SASC 209
Case: [2011] SASC 209
Decision Date: 2 December 2011

CaseChat Overview and Summary

The appeal in Jessen v Police involved the appellant, who was found guilty of affray by the Magistrates Court. The appeal was dismissed by the Supreme Court of South Australia, which upheld the original conviction. The central issue before the court was whether the defence of self-defence could be applied to the offence of affray, particularly in light of the appellant's conduct and the opportunity to retreat from the situation. The court had to determine if the appellant's response was reasonably proportionate to the perceived threat, considering both the statutory defence under s 15 of the Criminal Law Consolidation Act 1935 (SA) and the common law principles.

The court examined the appellant's conduct in the context of the incident, noting that he and his companions had anticipated an attack and prepared themselves for it. The footage from CCTV cameras showed the appellant and his companions limbering up and waiting for the confrontation. Despite the appellant's argument that he had a right to defend himself, the court held that the appellant could have adopted less violent alternatives, such as leaving the area or seeking help from the police, rather than engaging in the affray. The court concluded that the appellant's decision to use violence to repel the anticipated attack was not reasonably proportionate to the threat, as he had ample opportunity to retreat.

The Supreme Court found that the Magistrate's decision was correct in rejecting the defence of self-defence. The court emphasised that the appellant's conduct, along with his companions, constituted a willingly participated affray, which was not a reasonably proportionate response to the perceived threat. The appeal was dismissed, affirming the original conviction of the appellant for the offence of affray. The final orders of the court were that the appeal against conviction and sentence be dismissed.

Orders

Orders of the court

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Background

Background to the litigation

Both s 15 of the CLCA and the requirement in s 83C that the violence be unlawful indicate that self-defence may be raised in relation to an offence of affray. The same view was taken in the authorities concerning the former common law offence of affray: Taylor v Director of Public Prosecutions;[4] R v Pulham;[5] and R v Honeysett.[6][4] [1973] AC 964 at 981, 989 and 991.[5] [1995] Crim LR 296.[6] (1988) 34 A Crim R 277 at 279.Background The evidence before the Magistrate comprised only agreed facts and documentary evidence. The latter included three DVDs containing footage taken from CCTV cameras in Hindley, Rosina and Currie Streets in the City of Adelaide. The videos commence at about 1.30 am on 12 April 2010. Exhibit P3 shows the appellant and up to four others standing outside a tattooing establishment in Hindley Street. At about 1.30 am, four or five other men approached the appellant’s group. Some form of exchange, including the pushing of one man, occurred before the other men departed. The appellant was close by but not involved in the exchange. Over the next 20 minutes or so, the video shows the appellant and his companions outside (for the most part) the tattooing establishment. The Magistrate considered that the video showed the appellant and his companions limbering up, as though preparing for physical activity. The Magistrate accepted that the appellant had limbered up less actively than had his companions. At about 1.50 am, the CCTV camera panned to follow two other men on the opposite side of Hindley Street. By the time it panned back to the appellant’s group a large group of men had approached and a fight then broke out. What followed was described by the Magistrate in the following passages:[7]At 1.50 am the camera pans back to view the Ink Central tattoo parlour and a large group of men have approached the defendant and his companions and a fight has broken out. The defendant and his companions were outnumbered but vigorously defended themselves against the attack. Several assaults occurred. The defendant can be seen swinging his right arm as if to strike another man on at least two occasions. He appears to throw a right-handed punch. Chairs were thrown and some bars were used as weapons. Violence was threatened and used. The melee spilled out from the footpath onto the street and the defendant and his two companions disengaged and retreated across Hindley Street towards Rosina Street. A separate camera in Rosina Street shows that more men were waiting for them at Rosina Street. One of the defendant’s party was taken to the ground and assaulted with a bar but rolled free and fled down Rosina Street. He was hit across the back with the bar as he did so. The other evaded his assailants and made his way up Rosina Street. The defendant was tackled at the entrance to Rosina Street but shrugged his assailant off. At this point a chain with attached padlock fell to the ground. The defendant made his way up Rosina Street and another camera shows him and his companions making off along Currie Street. Police arrived almost immediately. [8]In the event there were many large men involved in violent assaults, bars were used and chairs were thrown. A person of reasonable firmness in the vicinity would have been put in fear for his or her personal safety.

Evidence

Evidence Before The Court

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Decision

Reasons for decision

WHITE J

If the matter is approached in the manner adopted by the Magistrate, I consider that the appellant’s response cannot be regarded as reasonably proportionate to the perceived threat. The appellant had ample opportunity in which to adopt a less violent response to the anticipated attack.Conclusion For the reasons given above, I consider that the appeal should be dismissed.

Ratio Decidendi

Legal Principle Established

Established by: WHITE J

It can be seen that the Magistrate found that the appellant and his companions had, from the time of the incident at 1.30 am, expected the attack which eventuated at about 1.50 am; that they had sought to prepare themselves for the attack by limbering up and by other conduct; and that in this context, the appellant’s conduct taken together with those with him was not reasonably proportionate to the perceived threat. This was because the appelllant could have adopted less violent alternatives, for example, by leaving the area, or by going into locked premises, or by going to the police. Instead, by waiting and relying on their own resources to use violence to repel the expected attack, the appellant and his companions willingly participated in the affray. Doing so was not, in the Magistrate’s opinion, a reasonably proportionate response.Consideration The appeal raises issues concerning the availability of the defence of self‑defence as well as the opportunity for retreat in relation to the defence. Differing views had been expressed in the authorities concerning opportunities for retreat before the enactment of s 15. In Zecevic v Director of Public Prosecutions (Vic),[7] Wilson, Dawson and Toohey JJ said:Indeed, even in circumstances in which the accused was not the original aggressor, retreat in the face of a threat of violence before resort to force may be relevant to the belief of the accused or the reasonableness of the grounds upon which the accused based his belief. There is, however, no longer any rule that the accused must have retreated as far as possible before attempting to defend himself. It is a circumstances to be considered with all the others in determining whether the accused believed upon reasonable grounds that what he did was necessary in self-defence …[8](Citations omitted)This passage suggests that an opportunity for retreat may be relevant to both limbs of the defence of self-defence established by s 15(1).[7] (1987) 162 CLR 645.[8] Ibid at 663. In the earlier case of R v Howe,[9] Dixon CJ said:[T]here can be no doubt at this stage that whether a retreat could and should have been made is an element for the jury to consider as entering into the reasonableness of the defendant’s conduct.[10]This passage appears to suggest that an opportunity to retreat may be more pertinent to the second limb of the s 15 defence, ie, whether a defendant’s 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. King CJ appears to have taken a similar view in R v Fricker[11] when he said:It was established by The Queen v Howe that to retreat before employing force is not an independent or imperative condition of the success of a plea of self‑defence but that opportunity to retreat is merely an element for the jury to consider on the question of the reasonableness of the conduct of the accused. It is material to the question of whether the force used was reasonably proportionate to the danger which the appellant believed himself to be facing. If an appellant knows that he can avoid danger by departing the scene, that knowledge is a material factor in deciding whether the use of force was justified.[12][9] (1958) 100 CLR 448.[10] Ibid at 463.[11] (1986) 42 SASR 436.[12] Ibid at 441.