KOAY v Police - [2015] SASC 158

SUPREME COURT OF SOUTH AUSTRALIA
(Magistrates Appeals: Criminal)
KOAY v POLICE
[2015] SASC 158
Judgment of The Honourable Justice Vanstone
7 October 2015
MAGISTRATES - APPEAL AND REVIEW - SOUTH AUSTRALIA - APPEAL TO SUPREME COURT
CRIMINAL LAW - PARTICULAR OFFENCES - OFFENCES AGAINST THE PERSON - ASSAULT
CRIMINAL LAW - GENERAL MATTERS - CRIMINAL LIABILITY AND CAPACITY - DEFENCE MATTERS - SELF-DEFENCE AND OTHER FORMS OF DEFENCE
APPEAL AND NEW TRIAL - APPEAL - GENERAL PRINCIPLES - RIGHT OF APPEAL - WHEN APPEAL LIES - ERROR OF LAW - PARTICULAR CASES INVOLVING ERROR OF LAW - FAILURE TO GIVE REASONS FOR DECISION - ADEQUACY OF REASONS
Appeal against conviction for assault - whether magistrate properly analysed evidence in terms of the requirements of self-defence - whether adequate reasons given for decision.
Held: appeal dismissed.
Criminal Law Consolidation Act 1935 (SA) s 15, s 20(3), referred to.

KOAY v POLICE
[2015] SASC 158
Magistrates Appeal
Criminal

VANSTONE J: This is an appeal, filed slightly out of time, against conviction for aggravated assault, contrary to s 20(3) of the Criminal Law Consolidation Act 1935 (“CLCA”). The victim was the appellant’s husband, Mr Deng.
The appellant and Mr Deng are ethnic Chinese. They met in March 2011 and were married about 12 months later. At the time of the incident they were somewhat estranged; still living together in a unit in Morphett Vale, but sleeping in different bedrooms. The prosecution case was that the appellant entered the bedroom of Mr Deng in the early hours of 6 April 2014 and punched him to the chest and scratched him on the arms and torso.
On 29 April 2015 the appellant entered a plea of not guilty to the charge in the Christies Beach Magistrates Court and a one day trial ensued. Both the appellant and Mr Deng gave evidence. The appellant acknowledged some physical contact with Mr Deng but claimed that she had acted in self-defence. Tendered in evidence were a short video of the incident taken by Mr Deng on his mobile phone and photographs subsequently taken by police of the scratches inflicted on him. The magistrate delivered his verdict on 12 June 2015, finding the appellant guilty. In his reasons the magistrate said that he found Mr Deng to be an impressive witness. He found the appellant to be a poor witness and her evidence in many respects to be untrue. The magistrate dealt with the offending by imposing a two year bond to be of good behaviour in the amount of $500, a term of which required the appellant to come up for conviction and sentence if called upon.
By notice of appeal filed 6 July 2015, the appellant seeks to challenge the magistrate’s finding of guilt. The appellant contends that the magistrate failed to correctly apply s 15 of the CLCA in determining whether the appellant was acting in self-defence, and that he failed to give adequate reasons for his conclusions.
Background
Evidence at the trial revealed that the appellant came to Australia on a work visa to pursue a job opportunity as an engineer in Canberra. Mr Deng was born in Beijing. He immigrated to Australia and took Australian citizenship in 2007. He now works as a school teacher.
The appellant and Mr Deng met in 2011 through an online dating agency. In that same year the appellant returned to Malaysia, but over the next year both she and Mr Deng would travel to visit each other. They married in 2012, by which time the appellant was living with Mr Deng in his unit in Morphett Vale. She had a spousal visa. The marriage was not successful, and by the time of this incident Mr Deng said he had resolved not to renew his sponsorship of the appellant’s visa.
Mr Deng said that it was well after midnight on 6 April 2014 when the appellant came into the bedroom he was occupying. He said that she simply opened the door and came in. He was trying to sleep and had turned the light off. He asked her to leave and she did not respond. He said that, because she had previously come into his room and harassed him, he was apprehensive and tried to turn on the light and record what she did with his mobile telephone. He said she commenced to punch him or push him away from the light switch which was next to the bed. They were grappling over the light switch, he turning it on and she then turning it off a number of times. He said that she scratched him on his left arm and also on his body as well as punching him. He said he asked her to leave the room on a number of occasions. He was trying to protect himself by blocking her punches. Although she said nothing during the incident, he believed that she was angry because he did not allow her to sleep in his room. Eventually he left the room and called the police. Police attended at the unit at about half past two in the morning. He showed police his injuries and photographs were taken.
In cross-examination it was put to Mr Deng that the appellant had come into his room to discuss her visa with him. It was suggested that it was he who started pushing the appellant, trying to propel her out of the room. Mr Deng refuted those suggestions, as well as the suggestion that he had been violent towards the appellant on occasions in the past. Counsel suggested to him that his motivation for the incident on this night was that he wished to extract himself from the relationship and retain monies previously paid to him by the appellant.
The appellant gave evidence consistent with the instructions that had been put to Mr Deng. She said that when she first opened the door she stood at the entrance and watched Mr Deng to see what he would do. She said she was scared of him because he had previously been violent to her. She asserted that her reason for going to his bedroom at that time was to discuss with him the problem she had with her visa. She agreed that before she said anything Mr Deng asked her to leave his room. He repeated that request a number of times during the interaction. She agreed there was a struggle over the light switch. She said she tried to turn the light off so that he could not film her on his mobile phone. She did not like being filmed on any occasion. She said that he initiated the physical contact by pushing her and that led to her trying to defend herself. She said that he had told her “Stop punching me” and she thought that was strange, because she was not punching him.
Photographs of Mr Deng’s quite minor injuries were tendered, as was the mobile phone recording. The recording was brief and primarily shot in darkness. Mr Deng can be heard speaking in English several times saying things like “Can you please get out of my room” and “Stop that”. Although the appellant is momentarily visible in the footage, there is no clear vision of any physical contact.
Arguments on appeal
The appellant argues that her plea of self-defence was rejected without the analysis required by s 15 of the CLCA. She argues that the magistrate failed to take into account the appellant’s evidence that she was subject to violent conduct by Mr Deng, not only on this occasion, but previously as well. It is put that the magistrate erred in restricting his analysis to the events of the night and he should have had regard to and made findings about her evidence of previous violence, placing in context her account of this incident. This much was required by s 15 of the CLCA. The appellant also argues that her evidence was unfairly criticised for being vague in relation to the claim of self-defence. It was put that her evidence was no more vague than Mr Deng’s.
Ground 2, which complained that no interpreter was provided to assist the appellant, was abandoned.
The appellant applied to amend the notice of appeal to add a further ground, being that the magistrate failed to give adequate reasons for his decision. The matters about which the magistrate did not make findings and which the appellant argues were important in the reasoning process included that, in detailed emails which had passed between the appellant’s father and Mr Deng, no mention was made by Mr Deng of earlier assaults on him; the fact that Mr Deng agreed that after this incident he had written in an email that, should the appellant agree to settling out of court for a reasonable amount, he would withdraw the intervention order and assault charges; the appellant claimed that Mr Deng had previously been violent towards her and his motive for making up this allegation was that he wished to retain the assets of the marriage to which the appellant had contributed.
Consideration
The two versions of this event had some central facts in common. It was notable that, immediately before it began at about 2 o’clock, Mr Deng had been in his bedroom with the light out, trying to sleep. It was common ground that the appellant came in, uninvited, without knocking, and was told to leave by Mr Deng several times. There was a struggle over the light switch, he trying to turn it on to assist in filming with his mobile phone, and she turning it off. The only physical contact initiated by Mr Deng was his pushing her wrists away from him or, on her version, his pushing of the appellant out after she had been asked to leave and had not. Both witnesses agreed that Mr Deng had told the appellant “Stop punching me”. The only injuries suffered by either of them and drawn to the attention of police were scratches to both Mr Deng’s arms. The incident finished when Mr Deng ran away out of the room. All this was common ground.
These undisputed facts were an unpromising backdrop for the appellant’s claim that she acted in self-defence. However, there were also some issues which were disputed and which the magistrate considered in reaching his view about the credibility of both persons. These included her reason for coming into Mr Deng’s bedroom and the reason for the struggle over the light switch. Then, to the extent that the recording assisted, it supported Mr Deng, as did the photographs of the scratches he sustained.
In his reasons the magistrate made the point that the appellant’s claim to have been frightened of Mr Deng was inconsistent with her decision to enter his room in the middle of the night and to remain there in the face of his demands that she leave. The magistrate said it was difficult to accept that the reason for her going there was to discuss her visa. He had difficulty accepting the appellant’s assertion that this was the most convenient time to do so. The magistrate also remarked on a general inconsistency in her evidence about her visa, the appellant on the one hand saying in evidence that she had no real interest in staying in Australia, but on the other hand being determined to remain in this country.
The magistrate then turned to the issue of self-defence and it is to this paragraph, which I shall set out, which much of the appellant’s criticism on the appeal has been directed.
¹⁸Her evidence about her conduct in self defence is vague. She simply claims to push him back after he pushed her in the face and shoulder. She does not explain why she believed the conduct to which the charge relates including scratching [Mr Deng], was necessary and reasonable for a defensive purpose. On her evidence, she was unaware of any scratching.
While the appellant’s counsel upon the appeal criticised the magistrate’s description of the appellant’s evidence that she acted in self-defence as being vague, in my view there is force in that observation. If the claim of self-defence was to have any prospect of success the appellant needed to set out in her evidence the precise circumstances which faced her, the reasons why it was necessary to use force to defend herself and why the force employed was, in her mind, reasonable. In her evidence there was simply no attempt to address these issues. Rather, the appellant justified her struggle with Mr Deng over the light switch by reference to her wish not to be filmed. She made no attempt to justify her continued presence in Mr Deng’s bedroom. She did not explain why, in the face of his disinclination to have any conversation with her, she did not simply turn around and leave. In other words, no foundation was laid for the claim that she acted in self-defence. I consider the magistrate’s allusion to her not explaining the circumstances in which she scratched Mr Deng to be telling. If the scratches were supposed to be inflicted in self-defence, then she should have been able to describe the circumstances in which she felt impelled to inflict them. If they had been inflicted inadvertently, then she should have said so.
As to the appellant’s complaint that the incident was not assessed in its full context, I would say this. The magistrate had before him a certain amount of evidence, particularly from the appellant, as to previous instances of violence allegedly directed against her by Mr Deng, as well as allegations going the other way. However, it would have been most unwise for the magistrate to have made findings about those previous incidents. They were not fleshed out in detail. The full description of those previous events was not put to the respective witnesses. What was suggested to be confirmation of one such incident in an emailed apology by Mr Deng to the appellant was of unknown age and not at all specific. The allegation was simply lifted from an email message, the full text of which was not before the magistrate, let alone the entirety of the thread. But more importantly, there was nothing in the appellant’s description of the previous alleged violence which actually bore on the physical interaction between them on this occasion. Indeed, as the magistrate observed, if the appellant were frightened of Mr Deng, then she chose to approach him at a time which was not propitious; and she chose to stay when told to leave. Apart from that, the allegations of previous violence were all but irrelevant.
For similar reasons the appellant’s contention that the genesis of the incident lay in disputes over monies and Mr Deng’s wish to leave the relationship in a financially advantaged position added very little to the narrative. The suggestion that Mr Deng had contrived the incident to assist in his claim upon joint assets was extremely weak in face of the fact that it was the appellant who had not only approached him, but persisted when told to leave.
These matters of history put in support of the appeal were certainly before the magistrate and were part of the material going to assist in the resolution of the issues of credibility. However, they were not such as to raise an obligation upon the magistrate to deal with them, one by one, in his reasons.
I consider, with respect, that the magistrate’s reasons were cogent, concise and telling. They were directed to the important factual issues and to the features which enabled discernment of the truth. There was no necessity, and nor was it appropriate, to undertake a mechanistic audit of all the various points raised in cross-examination of the witnesses, or to provide an analysis of the legal requirements of self-defence, so as to catalogue the hurdles upon which the appellant fell. In my view the magistrate’s reasons for decision clearly disclosed his reasoning. As I said, the evidence put forward in support of self-defence was weak in the extreme. I would agree with the magistrate’s description of it as “vague”.
Conclusion
For these reasons the appeal must be dismissed.
The orders I make are as follows:
1.the time within which to appeal is extended to 6 July 2015;
2.the notice of appeal is amended to add ground 3:
The Court failed to adequately give reasons on the issues and/or evidence presented at trial;
3. the appeal is dismissed.