Kelly v Rigby
[2021] NTSC 25
•11 March 2021
CITATION:Kelly v Rigby [2021] NTSC 25
PARTIES:KELLY, Eric Allan
v
RIGBY, Kerry Leanne
TITLE OF COURT: SUPREME COURT OF THE NORTHERN TERRITORY
JURISDICTION: APPEAL from LOCAL COURT exercising Territory jurisdiction
FILE NO:LCA 43 of 2020 (22012645)
DELIVERED: 11 March 2021
HEARING DATE: 15 February 2021
JUDGMENT OF: Brownhill J
CATCHWORDS:
CRIMINAL LAW AND PROCEDURE – Appeal and review – Appeal from Local Court to Supreme Court – By person convicted against conviction - Conviction unreasonable and not supported on the evidence – Hearing Judge erred in finding defensive conduct disproved beyond reasonable doubt – Appeal dismissed.
CRIMINAL LAW AND PROCEDURE - Unlawful entry – Intent to commit offence therein – Necessity to specify offence – Criminal Code (NT) s 214 - Establishment of intention to commit specific offence not required.
CRIMINAL LAW AND PROCEDURE – Evidence – Credibility and reliability – Whether evidence of complainant must be assessed by hearing Judge as credible and reliable for charge to be proven beyond reasonable doubt – Hearing Judge’s approach consistent with the principles in Liberato and Douglass and does not disclose error – Hearing Judge’s findings supported by the evidence.
Criminal Code (NT) 29, 213, 214
Douglass v The Queen (2012) 86 ALJR 1086; Zecevic v Director of Public Prosecutions (Vic) (1987) 162 CLR 645; Liberato v The Queen (1985) 159 CLR 507, applied.
Bartusevics v Fisher (1973) 8 SASR 601; BCM v The Queen (2013) 88 ALJR 101 R; Bird v Peach (2006) 17 NTLR 230 at [13]; Carruthers v Griffis (2000) 111 A Crim R 477; Gibson v Firth & Harland [2019] NTSC 26; Kenwright v Hales (2000) 155 FLR 259; Libke v The Queen (2007) 230 CLR 559; Lillias v Pryce & Green (unreported) NTSC 27 February 1998; M v The Queen (1994) 181 CLR 487; Pell v The Queen (2020) 94 ALJR 394; Pell v The Queen at [43]-[45]; Politis v Federal Commissioner of Taxation [1988] FCA 446; PW v The Queen [2020] NTCCA 1; R v Tait & Anor (1979) 46 FLR 386; Salmon v Chute (1994) 94 NTR 1; SKA v The Queen (2011) 243 CLR 400; Thyer v Whittington [2017] NTSC 66, referred.
REPRESENTATION:
Counsel:
Appellant:M Jehne
Respondent: S Ozolins
Solicitors:
Appellant:Northern Territory Legal Aid Commission
Respondent: Office of the Director of Public Prosecutions
Judgment category classification: B
Judgment ID Number: Bro2107
Number of pages: 26
IN THE SUPREME COURT
OF THE NORTHERN TERRITORY
OF AUSTRALIA
AT DARWINKelly v Rigby [2021] NTSC 25
No. LCA 43 of 2020 (22012645)
BETWEEN:
ERIC ALLAN KELLY
Appellant
AND:
KERRY LEANNE RIGBY
Respondent
CORAM: BROWNHILL J
REASONS FOR DECISION
(Delivered 11 March 2021)
On 28 October 2020, in the Local Court, the appellant pleaded not guilty to four charges, as follows:
(a)trespass on the property at 104 Chinner Road (‘the property’) (Count 1);
(b)unlawful entry of a building, the residence on the property (‘the residence’), with the intention to commit the offence of assault (Count 2); and
(c)assault committed against each of the occupants of the residence, Patrick Harney (Count 3) and Irene Jones (Count 4).
The hearing Judge found each of the charges proved. The appellant has appealed against the convictions on each count on the grounds that the convictions are unreasonable and not supported having regard to the evidence (ground 1) and that the hearing Judge erred in finding defensive conduct had been disproved beyond reasonable doubt (ground 2).
The charges arose out of an incident that occurred at the property on 16 April 2020. It was common ground that the appellant, Mr Harney and Ms Jones were known to one another and had once been on good terms. Their relationship had soured after a number of incidents that occurred in March 2019, including physical altercations between the appellant and Mr Harney. Both the appellant and Mr Harney asserted that the other was the aggressor in the March 2019 incidents.
At the hearing, the Crown called evidence from Mr Harney and Ms Jones, and tendered some exhibits by consent. The appellant gave evidence.
The appellant’s evidence was to the effect that, on the evening of 16 April 2020, he had approached the residence to speak with Mr Harney and Ms Jones and talk their problems out.[1] He said that, in his approach to the residence, he did not make his presence known because he feared an assault upon him by Mr Harney as had happened in March 2019. He saw a light on in the bedroom and the bedroom door ajar, so he entered the residence through an open sliding door into the lounge area. He felt a presence behind him and turned to see Mr Harney approaching him with his hands raised as if to assault him. He feared Mr Harney would assault him as he had done in March 2019, so he threw a number of punches in self-defence. Mr Harney fell to the ground bleeding. Ms Jones emerged from her room, grabbed his beard and yanked it, so he slapped her to the face with an open hand.
Mr Harney’s evidence was to the effect that he had been outside, entered the residence, crossed the lounge room and turned to see the appellant advancing on him, and that the appellant then punched him, head butted him, and when he fell to the ground, banged his head on the floor.[2]
Ground 1: Conviction was unreasonable and not supported on the evidence
In support of this ground, the appellant advanced three core particulars:
(a)The findings of fact of the hearing Judge were inconsistent with proof that the appellant entered the residence with intent to commit an offence of assault, which is an element of the offence in Count 1.
(b)Given the hearing Judge’s negative comment on the credibility and reliability of Mr Harney, the Court must have entertained a reasonable doubt as to proof of each of Counts 1, 2 and 3 after hearing the appellant’s evidence.
(c)The finding of guilt on Count 4 was unreasonable and not supported on the evidence.
The test for an unsafe or unsatisfactory verdict is whether the court thought that, upon the whole of the evidence, it was open to the jury (or, here, the hearing Judge) to be satisfied beyond reasonable doubt that the accused was guilty.[3]
Legal principles
In most cases, a doubt experienced by an appellate court will be a doubt which a jury (or hearing Judge) ought also to have experienced and it is only where a jury’s (or hearing Judge’s) advantage in seeing and hearing the evidence is capable of resolving a doubt experienced by an appeal court that the court may conclude that no miscarriage of justice occurred.[4] So, where the evidence lacks credibility for reasons which are not explained by the manner in which it was given, a reasonable doubt experienced by the court is a doubt which a reasonable jury (or hearing Judge) ought to have experienced.[5] If the evidence, upon the record itself, contains discrepancies, displays inadequacies, is tainted or otherwise lacks probative force in such a way as to lead the appeal court to conclude that, even making full allowance for the advantages enjoyed by the jury (or the hearing Judge), there is a significant possibility that an innocent person has been convicted, then the court is bound to act and set aside a verdict based upon that evidence.[6]
The appeal court must make its own independent assessment of the evidence and determine whether it would be dangerous in all the circumstances to allow the verdict to stand,[7] paying full regard to the consideration that the jury (or hearing Judge) is the body entrusted with the primary responsibility of determining guilt or innocence, and the consideration that the jury has had the benefit of having seen and heard the witnesses.[8] The appeal court must weigh the whole of the evidence, in particular, the competing evidence.[9] However, the performance by an appeal court of its functions does not involve the substitution of trial by an appeal court for trial by jury (or hearing Judge) so, generally speaking, the appeal court should not seek to duplicate the function of the jury in its assessment of the credibility of the witnesses where that assessment is dependent upon the evaluation of the witnesses in the witness box.[10] Further, the assessment of the weight to be accorded to a witness’ evidence by reference to the manner in which it was given by the witness has always been, and remains, the province of the jury (or the hearing Judge).[11]
The test as to whether it was open to the jury (or the hearing Judge) to be satisfied of guilt beyond a reasonable doubt has been re-expressed as “whether the jury must, as distinct from might, have entertained a doubt about the appellant’s guilt”.[12] The High Court has recently accepted that this re-expression is consistent with the expression of the test set out in paragraph [7] above.[13]
Unless there is demonstrable error, the presumption is that there is no error.[14] Further, an appeal court should approach the task of reading reasons at first instance “sensibly and in a balanced way, not reading passages from the reasons for decision in isolation from others to which they may be related or taking particular passages out of context of the reasons as a whole”.[15]
Of ex tempore reasons, it has been held that such reasons delivered in the course of a busy listing schedule cannot be assessed in accordance with the counsel of perfection, and it is inappropriate to attempt to dismember them and subject them to a vigorous analysis.[16] While the reasons given in this matter were not ex tempore, they were delivered some 14 days after the hearing of the evidence and oral submissions and delivered orally in the course of a busy listing schedule. The observations about ex tempore reasons remain applicable in these circumstances, albeit to a lesser degree.
It has long been held that courts such as the Local Court are very busy courts, allowances have to be made when considering, on appeal, everything that has fallen from the hearing Judge when delivering reasons and, just because some matters that ought to have been considered were not mentioned, that does not necessarily mean that it would be proper to infer that they were not considered.[17] The principle is that an appellate court will usually assume that the hearing Judge has considered all matters which are necessarily implicit in any conclusions which she or he had reached, which principle is not confined to sentencing matters.[18]
Ground 1, 1st particular: findings inconsistent with entry with intention to assault
The appellant’s evidence was that he went to the property with the intention of talking to Mr Harney and Ms Jones and asking them to stop the aggravation they were causing between him and them.[19]
The appellant argued that an intention to commit an assault when entering the residence is an element of the offence in Count 2, the hearing Judge did not make any positive finding of fact that the appellant entered the residence with that intention nor make any reference to the intention element, and the hearing Judge made a positive finding that it was not precisely clear why the appellant “attended the premises” that evening.[20] The appellant argued this is inconsistent with proof of Count 2. It was argued the hearing Judge’s other findings (as to the appellant attending with no lawful purpose and not in good faith) were insufficient to establish the requisite element. This was said to make the finding of guilt on Count 2 unsafe and unsatisfactory.
The hearing Judge’s findings were (relevantly) expressed as follows:[21]
Despite being under no obligation to do so, [the appellant] also gave evidence. [His] evidence sought to provide definite context to and explain his actions on 16 April, including by reference to the incident of March 2019. …
[Reference is made to the appellant’s evidence about being assaulted by Mr Harney in the March 2019 incidents, which included his allegation of being approached from behind and slapped on both ears.] [The appellant’s] evidence to the court in relation to the incident of 16 April, was that [Mr] Harney had approached him again from behind with his hands outstretched preparatory to slapping him simultaneously with both hands across his ears or onto his ears.
That’s the context to which I refer, in terms of [the appellant’s] evidence seeking to reference the connection between the March 2019 and April 2020 incidents. [The appellant’s] evidence also included that he went to 104 Chinner Road on 16 April, “To tell them to stop sending people around to get me bashed.”… [Reference was made to evidence about the appellant being “bashed”.]
[The appellant] also conceded that he had some time before 16 April, said to [Mr] Harney at the Rum Jungle Hotel, “You’re going to pay for what you’ve done to me.” Despite [the appellant’s] frankness in some respects, his evidence was exaggerated to assist his position and understated in some areas, which could not assist him. Most relevantly, I reject his evidence concerning the peaceful purpose – I refer to that in a general way, that he swore to in attending 104 Chinner Road on 16 April.
I also reject his account as to how he ended up in a physical altercation with [Mr] Harney on that night. It is not precisely clear why [the appellant] attended the premises that evening, however, I have no reasonable doubt that his attendance was not for any lawful purpose and that he did not attend in good faith.[22] [The appellant] parked at the entrance of the property, some 200 metres down from the residence, and I note that the residence is screened by fairly dense bushland between the entrance. So the beginning of the driveway and the house itself.
And [the appellant] parked there rather than driving up the 200 metre driveway. He walked up the driveway to the house. It was either on his account twilight or after sun down. If I needed to make a finding, I would conclude it was after sun down… [The appellant] walked up the driveway, as I said, he did not call out. He did not knock. He did not make his presence known. In my view, his total approach and presence was by stealth.
Having regard to the principles from Liberato[23] and then also, Douglas[24], I do consider that the evidence of [Mr] Harney, concerning the incident of 16 April, should be accepted and does prove beyond reasonable doubt that [the appellant], first of all, trespassed. Then entered 104 Chinner Road unlawfully. And then assaulted [Mr] Harney… [emphasis added]
The respondent argued that the positive finding referred to by the appellant can be construed as a reference to the appellant’s entry upon the property (that is, why he went to the property in the first place), as distinct from his entry into the residence (which is the relevant intention forming the element of the offence), and that it should be inferred from his finding of the offence proven that the hearing Judge was satisfied that the appellant’s entry of the residence with the intention to commit the offence of assault was proven beyond reasonable doubt. The respondent submitted that there was evidence upon which the hearing Judge could conclude that the appellant had the intention to commit assault, namely the objective evidence about his stealthy approach to the residence, his threat to Mr Harney in March 2019 that Mr Harney would pay for what he had done to the appellant, and the fact that the appellant did assault Mr Harney inside the residence.
The complaint charging the appellant with Count 2 identified the intention element as an intention to commit the offence of assault. Both the prosecution[25] and the defence[26] made submissions about the requisite intention, and there was no resistance from the hearing Judge when the prosecution, in submissions on sentence immediately after the rulings about guilt, said that by the finding of guilt in relation to the trespass and the unlawful entry, the hearing Judge had found that the appellant did so without a lawful purpose and with an intention to assault Mr Harney.[27]
Shortly thereafter, the hearing Judge said:[28]
As I said in my findings, I don’t know why [the appellant] was there. All I can conclude and infer is that it was for an unlawful purpose because of the mode by which he went there.
In my view, even applying the principles referred to in paragraphs [12]-[14] above, given the hearing Judge’s statements, it cannot be accepted that the hearing Judge was or could be satisfied beyond reasonable doubt that the appellant entered the residence with the intention to commit an assault. It would be incongruous and implausible for the hearing Judge, in finding the offence of unlawful entry with intent to commit an assault proven, to refer expressly to the appellant’s intention in going to the property (which is not the relevant entry) but not refer expressly to the appellant’s intention in entering the residence. The most likely explanation of the hearing Judge’s statement that it is not precisely clear why the appellant “attended the premises” is that the hearing Judge was referring to the appellant’s intention in entering the residence.
However, in my view, that is not determinative of this aspect of the appeal.
Count 2 is a charge of conduct contrary to s 213(1) and (2) of the Criminal Code. Section 213(1) provides that any person who unlawfully enters a building with intent to commit any offence therein is guilty of an offence. The other subsections of s 213 address the applicable penalty, which depends upon the kind of offence the person intends to commit in the building.
Section 214 of the Criminal Code is in the following terms:
214 Uncertainty as to offender’s intent, &c.
(1) If it is proved that a person has unlawfully entered a building with intent to commit an offence therein, but the evidence cannot establish whether it is a summary offence or an indictable offence, he shall be found guilty of unlawful entry with intent to commit a summary offence.
(2) If it is proved that a person has unlawfully entered a building with intent to commit an indictable offence therein, but the evidence cannot establish which, he shall be found guilty of unlawful entry with intent to commit an indictable offence for which the maximum penalty is not greater than 3 years imprisonment.
(3) Proof of the fact that a person has unlawfully entered a building is evidence that he did so with intent to commit an offence therein.
The effect of s 214 appears to be that an offence against s 213 can be established without proof of an intention to commit a specific offence. Indeed, s 14 appears to provide that it can be established by nothing more than proof of the fact that the accused has unlawfully entered a building, because that supplies the evidence that he did so with intent to commit an offence and, without more, s 214(1) would allow the person to be found guilty of unlawful entry with intent to commit a summary offence.
I have located two authorities regarding the operation of s 214. The first is Lillias v Pryce& Green (unreported, NTSC, Martin CJ, 27 February 1998), in which Martin CJ was dealing with, inter alia, a guilty plea to a charge of unlawful entry into a residence with intent to commit a crime, but the facts were that there was no associated offending, the accused simply entered the residence, had a look around and left. His Honour noted that, by s 214(3), proof of the fact that a person has unlawfully entered a building is evidence that he did so with intent to commit a simple offence or a crime. This decision is of little assistance in the present context.
The second authority is Kenwright v Hales (2000) 155 FLR 259, in which Mildren J held that s 213 had no application to regulatory offences, such as the offence of trespass. His Honour reached that view (at 262-263) because (relevantly) it seemed unlikely the legislature had dealt, in s 214, so comprehensively with simple offences (now, summary offences) and crimes (now, indictable offences) but had omitted any reference to regulatory offences. The decision is not of great assistance here, but it does confirm that s 214 has an effect on the scope and operation of s 213.
While the hearing Judge made no reference to the terms of ss 213 and 214, he was clearly satisfied that the appellant entered the residence (a building) for an unlawful purpose, which was, by s 214(3), evidence of the appellant’s intention to commit an offence and, by s 214(1) enabled a finding that the appellant intended to commit a summary offence, thereby permitting the finding that the appellant unlawfully entered the residence with an intent to commit any offence within s 213(1).
The appellant argued that, by making express reference in the complaint and closing submissions to the offence of assault, the prosecution was tied to the specific offence upon which it had run its case. That outcome is inconsistent with the terms of s 214, which clearly contemplate uncertainty in the evidence defeating the establishment of an intention to commit a specific offence.
Consequently, the hearing Judge’s finding of uncertainty as to the offence the appellant intended to commit upon his entry to the residence does not establish that the hearing Judge must have entertained a doubt about the appellant’s guilt, and thus the verdict of guilty on Count 2 is unsafe or unsatisfactory.
Ground 1, 2nd particular: Negative comment on Mr Harney’s credibility and reliability
The appellant argued that it is a necessary condition for a charge to be proven beyond reasonable doubt that the evidence of the complainant was assessed by the jury (or the hearing Judge) to be credible and reliable, that the hearing Judge made negative comments about Mr Harney’s credit and reliability and made no finding that his evidence was credible and reliable, that the necessary condition was not fulfilled, that the negative comment about Mr Harney’s evidence meant it was not open to the hearing Judge to reject the appellant’s account of how the physical altercation the subject of Count 3 started (i.e. who was the aggressor) unless he could have been satisfied it was not reasonably possibly true, and that he could not be so satisfied, notwithstanding his adverse findings about the appellant’s credibility.
Essentially, this argument boils down to the propositions that, when a case turns on a conflict between the evidence of a prosecution witness and the evidence of a defence witness, even if a jury (or a hearing Judge) is not persuaded by the defence witness’s account, they cannot find the accused guilty solely by rejecting the evidence of the defence witness, and can only do so if they:
(a)are satisfied the defence witness’s account is not reasonably possibly true;[29] and
(b)accept and believe the evidence of the prosecution witness.[30]
As appears in the extract set out in paragraph [17] above, the hearing judge: (a) noted the appellant’s frankness in some respects; (b) noted his exaggeration to assist his position and his understating of evidence which could not assist him; (c) rejected his evidence concerning the peaceful purpose he swore to in attending the property; (d) rejected his account of how he ended up in a physical altercation with Mr Harney; and (e) having regard to the principles in Liberato and Douglass, accepted the evidence of Mr Harney.
As regards Mr Harney’s evidence, the hearing Judge held as follows:[31]
[Mr] Harney presented as someone who might be described as eccentric. Aspects of his evidence were exaggerated and his perspective was certainly self-orientated. However, he did make various concessions and I do consider that he sought to give honest evidence, albeit coloured with his particular perspective. And that his evidence was generally accurate. In my view, the most glaring difficulties with Mr Harney’s evidence concerned the March 2019 incident, which incident occupied a significant proportion of his cross-examination. And noting that that is also the case in relation to evidence of other witnesses.
On the basis of these observations, the appellant submits that the hearing Judge could not have been satisfied that the appellant’s account of how he and Mr Harney ended up in a physical altercation when the appellant entered the residence was not reasonably possibly true, and could not have accepted and believed the evidence of Mr Harney.
As I have described it in paragraph [33] above, the hearing Judge’s approach is orthodox, consistent with the principles in Liberato and Douglass and does not disclose error. Nor are the hearing Judge’s observations set out in paragraph [34] above inconsistent with acceptance and belief of Mr Harney’s evidence, particularly given that the hearing Judge found that Mr Harney tried to give honest evidence, and that it was generally accurate, specifically in relation to the relevant issue, namely how the appellant and Mr Harney ended up in a physical altercation on the night of 16 April 2020.
The appellant also argued, in submissions which did not appear in the written submissions filed in accordance with the Court’s timetabling orders, that this Court should review all of the evidence for itself and conclude that the hearing Judge’s findings about the honesty and reliability of Mr Harney’s evidence were erroneous. In support of this argument, the appellant handed up a four page “skeleton” of submissions pointing to “inconsistencies, discrepancies and inadequacies” in Mr Harney’s evidence. These included: (a) inconsistencies or discrepancies between his evidence and the evidence of Ms Jones, or documentary evidence such as Police notebooks; (b) internal inconsistencies or contradictions in Mr Harney’s evidence; and (c) its general implausibility in various aspects. The bulk of this evidence related to the various events in March 2019. In addition, reference was made to ways in which Mr Harney’s description of aspects of the assault by the appellant on 16 April 2020 were not supported by: (a) certain medical records of his injuries; (b) body worn video footage of the appellant immediately after the assault[32]; and (c) any mention in Ms Jones’s evidence. The appellant did not take the Court to any of the documentary evidence or footage that was before the hearing Judge to make good any of these submissions.
By way of example, it was submitted by the appellant that Mr Harney’s account of a physical incident on 14 March 2019, in which he described being taken to ground by the appellant in a rugby tackle and then getting to his feet before the appellant was said to be “fanciful” given Mr Harney’s claimed medical conditions and the nature of the assault. Unlike the hearing Judge, I was in no position to assess the relative physical sizes, statures, capacities, strengths or weaknesses of Mr Harney and the appellant. The same observation applies to assessing the evidence given by Mr Harney about the assault on 16 April 2020. The short point is that the assessment of the weight of much of the evidence referred to is dependent upon an evaluation of the witnesses in the witness box.
These “inconsistencies, discrepancies and inadequacies” were put to the hearing Judge. It must also be noted that the March 2019 events were some 18 months prior to the hearing and there were no contemporaneous documentary records by which any of the participants could refresh their memories. In such a context, some inconsistencies and discrepancies are to be expected.
Making full allowance for the advantages enjoyed by the hearing Judge, they do not lead to a conclusion that the hearing Judge’s findings about Mr Harney’s evidence, which are set out in paragraph [34] above, are unsupported by the evidence and erroneous such that there is a significant possibility that an innocent person has been convicted.
The appellant argued that the finding in relation to Count 3 was determinative in relation to the finding of unlawful entry in relation to Counts 1 and 2, meaning guilty verdicts on those Counts were also not open if a guilty verdict on Count 3 was not open. I have rejected the argument that a guilty verdict on Count 3 was not open, making this argument strictly unnecessary to consider. In any event, I reject it. The hearing Judge made a separate finding about the appellant’s purpose in attending and entering the property, which rested not only on the evidence of Mr Harney, but also upon the appellant’s evidence about his approach to the property and the residence. As can be seen in the extract set out in paragraph [17] above, it was those aspects in particular that led the hearing Judge to conclude that “the appellant’s total approach and presence was by stealth”, and so to conclude he was satisfied beyond reasonable doubt that the appellant trespassed on the property and unlawfully entered the residence.
Ground 1, 3rd particular; Ground 2: assault on Ms Jones not self defence
The third particular of ground 1 is that the hearing Judge’s finding that the assault on Ms Jones was proven beyond reasonable doubt was unreasonable and not supported having regard to the evidence. Ground 2 is that the hearing Judge erred in finding defensive conduct disproven because his finding that the appellant’s open handed slap to her face was disproportionate and not a reasonable response to her grabbing and pulling his beard was erroneously founded on: (a) her being no physical threat to him; and (b) other remedial action being available to him. The argument in support of the Ground 1 particular was the same as the argument in support of Ground 2, just leading to the different conclusion.
Ms Jones gave evidence that she had gone to sleep in her bedroom when she heard Mr Harney calling out her name, so she got up, went into the lounge room and saw him lying on the floor, the appellant standing over the top of him, and he was “all messed up on his face” with a lot of blood and bruising.[33] She said she told the appellant that Mr Harney had had enough and that the appellant should leave him alone.[34] She said the appellant said that Mr Harney had not had enough yet.[35] The appellant’s evidence in cross-examination was consistent with Ms Jones’s evidence.[36]
Ms Jones’s evidence was that she pulled down on the appellant’s beard and that he struck her to the cheekbone on the right side of her face with an open hand.[37] In cross-examination, she denied that he had asked her to let go of his beard or that he had grabbed her hand and tried to remove it from his beard.[38]
The appellant’s evidence in chief was as follows:[39]
[Ms Jones] come up and grabbed me by the beard and started yanking at me, carrying on. And I asked her to let go of my beard, and she wouldn’t. So I put my hand on her hand on my beard and tried to peel it off, and she still wouldn’t do it. And I said, “Let go of my beard,” and she started yanking it like it was a toilet chain or a church bell or something, and pulling my head down, and up and down. So give her a slap and peeled her hand off. And the slap wasn’t a violent slap, it was only to distract her.
The hearing Judge found[40] that Ms Jones gave honest and accurate evidence despite her memory not being as good as it may have been, she freely conceded aspects put to her in cross-examination and she was “clearly a witness of truth”. As regards the alleged assault on Ms Jones, the hearing Judge concluded as follows:[41]
…The assault on [Ms] Jones is different in analysis. But it is also proven beyond reasonable doubt.
That finding clearly must contemplate the response of [the appellant] to [the] acknowledged application of force by [Ms] Jones to his beard, so to his person, by no stretch on any view could [the appellant’s] response be objectively reasonable, even having regard to the circumstances as he perceived them. Ms Jones may have been causing him discomfort or pain, but she was no physical threat to him in any other way, to strike her to the face, rather than to take some other remedial action, was disproportionate, unreasonable on any view, and was an assault.
In those circumstances, I do not consider that the nuances contained in s 29 [of the Criminal Code], as to precisely how [the appellant’s] actions should be viewed, are found to be necessary or relevant to address.
Section 29(2) of the Criminal Code provides that a person engages in defensive conduct only if: (a) the person believes that the conduct is necessary: (relevantly) (i) to defend himself or herself or another person; and (b) the conduct is a reasonable response in the circumstances as the person reasonably perceives them. Section 29(5) provides that a person does not engage in defensive conduct if: (a) he or she is responding to the lawful conduct of another person; and (b) he or she knows that the other person’s conduct is lawful.
The appellant argued that it was not open to the hearing Judge to find that Ms Jones was “no physical threat” to the appellant in circumstances where it was common ground that she had yanked his beard and was holding it at the time of the slap.
It was not suggested that the finding was not open as a matter observable by the hearing Judge (based on their respective physical characteristics) and as a matter of their evidence as to all of the circumstances (for example, she was not holding a weapon). Rather, the argument is that the fact that she was not a physical threat to the appellant was no answer to the fact that she was applying physical force to his body.
The finding that Ms Jones was no physical threat to the appellant “in any other way” was not made as the foundation for the conclusion that the slap to the face was an unreasonable response to her pulling his beard; rather, it was simply confirmatory of that finding. In other words, the finding was that the slap to the face was an unreasonable response to Ms Jones pulling the appellant’s beard, and there was no other physical threat she posed which would otherwise make that response reasonable.
The appellant argued that the finding of availability of other remedial action was contrary to authority, which establishes that: (a) the hearing Judge failed to give proper weight to the predicament of the appellant, which gave him little opportunity for consideration of other remedial action; and (b) the availability of some other remedial action does not preclude resort to defensive conduct. In Zecevic v Director of Public Prosecutions (Vic) (1987) 162 CLR 645, Wilson, Dawson and Toohey JJ held (at 662-663) as follows:
…[I]n the context of self-defence, [the jury] should approach its task in a practical manner and without undue nicety, giving proper weight to the predicament of the accused which may have afforded little, if any, opportunity for calm deliberation or detached reflection.
…
…[E]ven 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 defence himself. It is a circumstance 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…
This extract makes it plain that whether retreat from violence, or other remedial action, was available to the appellant in the circumstances was a relevant matter to be considered by the hearing Judge in determining whether the appellant believed, on reasonable grounds, that his slap to Ms Jones’s face was necessary in self-defence. Given that the hearing Judge found Ms Jones to be a witness of truth, and her evidence was that the appellant had not asked her to let go of his beard, and had not tried to remove her hand from his beard, there is no demonstrated error in the finding that the slap to the face was a disproportionate and unreasonable response, such that the defence of self-defence was disproven beyond reasonable doubt. Again, the weight to be given to the predicament of the appellant depended, in part, on the hearing Judge’s observations of the witnesses in the witness box, particularly their relative physical attributes and demeanour.
The appellant also argued that finding that the slap was disproportionate was unsupported by the evidence given the absence of evidence of any injury caused to Ms Jones by the slap. I do not accept that evidence of an injury is a necessary condition for a finding that an assault purportedly in self-defence was disproportionate, whether generally speaking or in this case in particular. Whether an assault is proportionate or not depends upon a consideration of both the nature and force of the assault and the nature and force of the threat the accused is said to be reasonably defending themselves from. The appellant’s evidence was that Ms Jones had “pulled a big heap of hair out of my head”.[42] Ms Jones’s evidence about her pulling the appellant’s beard[43] included hand actions demonstrating what she had done. There is nothing about the whole of that evidence which suggests that the hearing Judge’s finding about proportionality was erroneous, particularly given his characterisation of Ms Jones as a witness of truth and his reference to the appellant’s tendency to exaggerate his evidence to suit his position.
In any event, the record includes a reference to evidence given at the sentencing stage that Ms Jones did suffer injury in the form of bruising to her face as a result of the slap.[44]
The appellant initially complained that the matters in s 29(5) of the Criminal Code were not put to the appellant in cross-examination, but this was withdrawn in oral submissions. In short, the matters in s 29(5) have no bearing where the conduct is not defensive conduct because s 29(2)(b) is not satisfied.
Disposition
None of the appellant’s grounds of appeal have been made out. The appeal is dismissed. I will hear the parties as to costs.
-----------------------------------
[1] Transcript of Proceedings, Police v Eric Kelly (Local Court of the Northern Territory, Macdonald J, 8, 12 and 22 October 2020) (‘Transcript’), pp 74, 84.
[2] Transcript, pp 11-12.
[3] M v The Queen (1994) 181 CLR 487 at 493; PW v The Queen [2020] NTCCA 1 at [107]-[108] per Kelly J and Riley AJ.
[4] M v The Queen at 494.
[5] Ibid.
[6]Ibid.
[7] Ibid at 492-493.
[8] Ibid at 493.
[9] SKA v The Queen (2011) 243 CLR 400 at [24] per French CJ, Gummow and Kiefel JJ, endorsed in BCM v The Queen (2013) 88 ALJR 101 at [31] per Hayne, Crennan, Kiefel, Bell and Keane JJ.
[10] Pell v The Queen (2020) 94 ALJR 394 at [37] per Kiefel CJ, Bell, Gageler, Keane, Nettle, Gordon and Edelman JJ.
[11] Ibid at [38].
[12] Libke v The Queen (2007) 230 CLR 559 at [113] per Hayne J (Gleeson CJ and Heydon J agreeing). This re-expression has been adopted by intermediate courts of appeal across numerous jurisdictions.
[13] Pell v The Queen at [43]-[45] per Kiefel CJ, Bell, Gageler, Keane, Nettle, Gordon and Edelman JJ.
[14] Gibson v Firth & Harland [2019] NTSC 26 at [27] per Barr J, citing R v Tait & Anor (1979) 46 FLR 386 and Salmon v Chute (1994) 94 NTR 1 at 24-25.
[15] Thyer v Whittington [2017] NTSC 66 at [23] per Grant CJ, citing Politis v Federal Commissioner of Taxation [1988] FCA 446, and applying the observations to the reasons of the Local Court.
[16] Ibid at [22], citing Bird v Peach (2006) 17 NTLR 230 at [13].
[17] Carruthers v Griffis (2000) 111 A Crim R 477 at [22] per Mildren J.
[18] Ibid, citing Bartusevics v Fisher (1973) 8 SASR 601 per Bright J; Gibson v Firth & Harland at [27] per Barr J, also citing Bartusevics v Fisher.
[19] Transcript, pp 74, 75, 84, 85.
[20]Ibid, p 129.
[21] Ibid, pp 128-129.
[22] This is the positive finding referred to by the appellant.
[23] This is a reference to the observations in Liberato v The Queen (1985) 159 CLR 507 (‘Liberato’) at 515 per Brennan J.
[24] This is a reference to Douglass v The Queen (2012) 86 ALJR 1086 (‘Douglass’).
[25] Transcript, p 90.
[26] Ibid, p 115.
[27]Ibid, p 132.
[28] Ibid, p 133.
[29] Douglass at [13], citing Liberato at 515 per Brennan J.
[30] See Liberato at 515 per Brennan J; Thyer v Whittington at [40] per Grant CJ.
[31] Transcript, p 128.
[32] Who exhibited no physical signs of having head butted Mr Harney.
[33] Transcript, pp 40-42.
[34] Ibid, p 41.
[35] Ibid.
[36] Ibid, pp 87-88.
[37]Ibid, p 42.
[38] Ibid, pp 52-53.
[39] Ibid, pp 75-76.
[40] Ibid, pp 127-128.
[41]Ibid, p 129.
[42] Ibid, p 88.
[43] Ibid, pp 41-42, 52-53.
[44] Ibid, p 133.
0
1
0