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

1. 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.

2. 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.

3. 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

4. Section 83C was introduced into the CLCA by the Statutes Amendment (Public Order Offences) Act 2008 (SA). It came into operation on 8 June 2008. Section 83C provides:

   (1)A person who uses or threatens unlawful violence towards another and whose conduct is such as would cause a person of reasonable firmness present at the scene to fear for his or her personal safety is guilty of affray.

   Maximum penalty:

   (a)     for a basic offence—imprisonment for 3 years;

   (b)     for an aggravated offence—imprisonment for 5 years.

   (2)If 2 or more persons use or threaten the unlawful violence, it is the conduct of them taken together that must be considered for the purposes of subsection (1).

   (3)     For the purposes of this section, a threat cannot be made by the use of words alone.

   (4)No person of reasonable firmness need actually be, or be likely to be, present at the scene.

   (5)     Affray may be committed in private as well as in public places.

   (6)A person is guilty of affray only if the person intends to use or threaten violence or is aware that his or her conduct may be violent or threaten violence.

   …

5. The offence of affray as established by s 83C is different in some respects from the former common law offence of affray.[1]  The essence of the common law offence was the involvement of two or more persons in a fight in a way which would frighten a person of reasonably firm character.  This is evident from a jury direction of Paull J in R v Mapstone[2] which was approved (save for one aspect) by the Court of Appeal in Attorney-General’s Reference (No 3 of 1983):[3]

   “Affray” is an old English word, not one we use very often today, but what it means is this:  that a number of people, two will do, start fighting in a public road or place in such a way that people who may be present may well get frightened.  The old English word used to be “terrified”.  So what the prosecution has to prove … is, first of all, that the accused person took part in a fight in a public place … Secondly, that the fighting that went on was such as might well frighten any ordinary person passing by.  The prosecution has not got to prove that anyone was frightened; the prosecution has not got to prove that someone was passing by; but the prosecution must prove that the character of the fighting which was going on was such that it might well frighten.

   Later authorities indicated that the fighting constituting an affray may be in a private place as well as a public place.

   [1]    Abolished by Sch 11 to the CLCA, Item 1(20).

   [2] [1964] 1 WLR 439.

   [3] [1985] 1 All ER 501 at 503.

6. Unlike the common law offence of affray, the offence under s 83C may be committed by one person acting alone but, by sub‑s (2), if two or more persons are involved, it is the conduct of them taken together which must be considered.

7. In the present case, the prosecution did not allege that the appellant had committed the offence by making threats.  It alleged only that he was one of two or more persons who had used unlawful violence towards another.  Accordingly, the elements of the offence which the prosecution had to establish were:

   (1)that the appellant had, with at least one other person, used violence towards another (sub-ss (1) and (2));

   (2)    that the appellant’s conduct was voluntary;

   (3)that the appellant had intended to use violence or at least was aware that his conduct may be violent (sub‑s(6));

   (4)that the violence used by the appellant and the others with him was unlawful (sub-ss (1) and (2)); and

   (5)that the conduct was such that it would have caused a person of reasonable firmness present at the scene to fear for his or her personal safety (sub-s (1)).

8. 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

9. 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.

10. 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. 

11. 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.

12. 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. 

13. Based on these findings, the Magistrate was satisfied that there had been an affray.

    [9]This was an affray and the defendant was an active participant in it.  Clearly the defendant and his companions were not the aggressors.  They were defending themselves against attack.

14. The appellant’s participation in the affray was, on the Magistrate’s findings, the swinging of his right arm as though to punch on at least two, and possibly three occasions.  I consider that Exhibit P3 also shows the appellant using a chair to hit one of the attacking group over the head. 

15. As can be seen from [9] of the Magistrate’s reasons, he accepted that the appellant and his companions were not the aggressors in the affray, and that they had been defending themselves against an attack.  Thus, the issue of self‑defence was raised.

16. The appellant did not dispute at trial that the other elements of the offence of affray had been established.

17. Section 15 of the CLCA provides (relevantly):

    (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.

    …

    (3)For the purposes of this section, a person acts for a defensive purpose if the person acts—

    (a)     in self defence or in defence of another; or

    (b)     to prevent or terminate the unlawful imprisonment of himself, herself or another.

    …

    (5)If a defendant raises a defence under this section, the defence is taken to have been established unless the prosecution disproves the defence beyond reasonable doubt.

    …

    (Notes omitted)

18. The Magistrate accepted that the prosecution had not excluded as a reasonable possibility that the appellant had genuinely believed that his conduct constituting the offence of affray was necessary and reasonable for a defensive purpose (s 15(1)).  However, he considered that the prosecution had established, beyond reasonable doubt, that the appellant’s conduct was not, in the circumstances as he genuinely believed them to be, reasonably proportionate to the threat which the appellant genuinely believed to exist.  The Magistrate’s reasons as to reasonable proportionality appear in the following passage:

    [12]I find that the defendant and his companions expected the attack.  I infer this from the limbering up they did between the incident at 1.30 am until the attack occurred.  The fact that defendant remained and prepared himself for the impending attack implies that he may have had a genuine belief that his conduct was necessary and reasonable (in his view of the world) for a defensive purpose.  However, I find the prosecution have established that the conduct was not reasonably proportionate to the circumstance and threat that he may have genuinely believed to have existed.  The concept of reasonable proportionality introduces a community standard into the situation.  A reasonable man or woman on the King William Street tram, faced with the knowledge of an impending attack outside premises in Hindley Street, would have considered and taken credible alternatives to physical self-defence in the twenty minutes during which the defendant and his companions prepared themselves.  The reasonable person, representative of community standards, would have considered leaving the area, or going inside and locking the door, or going to a nearby police station.  By relying upon their own resources to use violence to repel an expected attack the defendant and his companions willingly participated in the affray that occurred.  This was not in the terms of s 15(1)(b) a reasonably proportionate response.  The violence they used was unlawful.

19. 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

20. 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. 

21. 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.

22. 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.

23. The Magistrate’s approach in the present case is consistent with that adopted by King CJ in Fricker.

24. It is appropriate to construe s 15 consistently with the common law authorities on this topic.  That is to say s 15 does not require a defendant to have exhausted the opportunities for retreat before engaging in the charged conduct.  However, the opportunities for retreat are likely to be relevant to both limbs of the defence of self-defence.

25. In my opinion, there is a real question as to whether self‑defence was available in the present circumstances at all.  That is because the appellant’s group was prepared to fight in the event that another group wished to confront them. 

26. The CCTV footage suggests that there were two groups of men in Hindley Street in the early hours of 12 April 2010:  the appellant’s group and the group which engaged in the fight with them at 1.50 am.  The appellant’s group gave the appearance, as the Magistrate found, of expecting an attack.  This may have been because of the incident which occurred at 1.30 am, or because of other circumstances not disclosed in the evidence.  The appellant’s group spent much of the time between 1.30 am and 1.50 am looking in one direction only, ie, west along Hindley Street.  This suggests that the appellant’s group knew the direction from which an attack may come. 

27. The Magistrate’s description of the appellant’s group as “limbering up” is, in my opinion, somewhat benign:  their activities, postures and movements are all suggestive of persons wishing to make manifest their toughness, and readying themselves for physical confrontation.  The group shows a readiness and apparent willingness to deal with any challenge to their “territory”.  The behaviour and presentation of the group is quite different from a group of men who were simply passing time by engaging in idle conversation.

28. In my opinion, the Magistrate’s finding that the appellant and his companions were expecting an attack was well justified.  I would be prepared to go further and conclude that the appellant’s group was ready and willing to engage in a fight with the group which did, at 1.50 am, confront them.  This view of the matter is supported by the fact that one of the appellant’s group made a “come on” gesture towards the attacking group as it approached, and that some in the group had armed themselves with rods or bars and other equipment adapted for use in a physical confrontation.

1. These are not circumstances in which a defence of self‑defence is available.  The following passage from the judgment of Priestley JA in R v Nguyen[13] makes this plain:

   [S]elf‑defence has as its starting point a person who, not wanting to fight, is attacked or threatened with attack in a way leading the person to believe self‑defence is necessary for the person’s own protection from harm.  Such situations do not include those where what is going on is a fight which the fighters have willingly joined in, whether to carry on or settle a quarrel, or for some other reason.  Once such a fight is under way, the person who has, ex hypothesi, got into it for reasons other than self-defence, may often, because of the nature of fighting, be suddenly faced with injury or death, and to prevent that, self‑defence in one sense will be necessary, which may lead to the injury or death of the opponent.  That sort of self-defence, if it ends in the killing of the opponent, is not the sort of self-defence that the Crown must negative in showing (when the issue arises) that the killing had been unlawful.  The last sentence may need qualification in some circumstances, as for example, if a fight is going on according to broadly understood conventions intended to prevent serious harm and one fighter suddenly breaks the conventions by producing a lethal weapon.[14]

   (Emphasis added)

   In Morgan v Coleman,[15] Wells J expressed the position succinctly when he said:

   Defence means defence; a person who claims to have been acting in justifiable self‑defence must have acted, and believed himself to have been acting, in defence.  To engage willingly in combat is not acting in self‑defence.[16]

   [13] (1995) 36 NSWLR 397.

   [14] Ibid at 407.

   [15] (1981) 27 SASR 334.

   [16] Ibid at 336.

2. In my opinion, circumstances of the kind described by Priestley JA and Wells J were shown to exist in the present case.  For this reason, I consider that the present appeal should fail. 

3. However, the Magistrate did not deal with the matter on this basis.  Instead he concluded that the appellant’s conduct was not reasonably proportionate to the threat that the defendant genuinely believed to exist.  Even if this approach be correct, I still consider that the appeal should fail.

4. The Magistrate’s approach requires close consideration of the “threat” that the appellant believed to exist.  That threat in the circumstances was the possibility of attack by another group of men acting in unison.  It was unlikely that an individual or a small group of men would launch such an attack.  Between 1.30 am and 1.50 am, the threat was potential only, but nevertheless real.  As the second group of men approached the first appellant’s group, the potential for (if not probability of) an attack became more real.  As noted above, one of the appellant’s group appears to have invited the attack, by making a “come on” gesture.

5. The appellant and his group had the ability between 1.30 am and 1.50 am to have retreated, by taking one or other of the forms of action outlined by the Magistrate.  He still had that opportunity when the attacking group first approached.  This was not a circumstance in which the appellant was set upon by the second group without any forewarning, and without an opportunity to avoid conflict or to protect himself by means other than engaging in the conduct which was the subject of the charge.

6. 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

7. For the reasons given above, I consider that the appeal should be dismissed.