Kok v Lomax & Anor
[2017] VSCA 366
•12 December 2017
SUPREME COURT OF VICTORIA
COURT OF APPEAL
S APCI 2017 0045
| AUGUSTINUS KOK | Applicant |
| v | |
| DARREN JOHN LOMAX | First Respondent |
| and COUNTY COURT OF VICTORIA | Second Respondent |
---
| JUDGES: | TATE, McLEISH and ASHLEY JJA |
| WHERE HELD: | MELBOURNE |
| DATE OF HEARING: | 15 November 2017 |
| DATE OF JUDGMENT: | 12 December 2017 |
| MEDIUM NEUTRAL CITATION: | [2017] VSCA 366 |
| JUDGMENT APPEALED FROM: | [2017] VSC 82 (Emerton J) |
---
JUDICIAL REVIEW – Summary offence of resisting arrest – Whether judge sitting alone hearing appeal on summary charges required to deal with any defence raised on the evidence – Whether self-defence raised on the evidence – Whether finding that accused’s fear was unreasonable open on the evidence – Pemble v The Queen (1971) 124 CLR 107 distinguished – Zecevic v Director of Public Prosecutions (1987) 162 CLR 645 applied – Summary Offences Act 1966, s 52(1) – Leave to appeal granted – Appeal dismissed.
---
| APPEARANCES: | Counsel | Solicitors |
| For the Applicant | Mr G Nash QC | Chester Metcalfe & Co |
| For the First Respondent | Ms C A Boston | John Cain, Solicitor for Public Prosecutions |
| For the Second Respondent | No appearance |
TATE JA
McLEISH JA
ASHLEY JA:
Introduction and summary
Mr Augustinus Kok (‘Kok’) was found guilty in the County Court of resisting arrest when a police officer, Senior Constable Darren Lomax (‘Lomax’), sought to execute a warrant for Kok’s arrest.[1] Kok gave evidence that he resisted because he believed he would be put into the back of a police divisional van, known as the ‘pod’, and he feared for his safety due to his medical conditions. He did not rely on the defence of self-defence or lawful excuse. He brought a proceeding in the Supreme Court on the basis that the judge in the County Court ought to have considered self-defence and/or lawful excuse because it was open on the evidence, although he did not rely on it. A judge of the Trial Division of this Court rejected Kok’s challenge and dismissed the proceeding.[2] Kok now seeks leave to appeal from that decision.
[1]Kok v Lomax (Unreported, County Court of Victoria, Judge Murphy, 19 May 2016) (‘County Court reasons’).
[2]Kok v Lomax [2017] VSC 82 (Emerton J) (‘Supreme Court reasons’).
For the reasons that follow, we would grant leave to appeal but dismiss the appeal.[3]
[3]In what follows on most occasions we refer simply to ‘the appeal’.
The attempt to execute the warrant
The events giving rise to the proceeding occurred on 22 March 2013. Kok was due to appear in the Korumburra Magistrates’ Court on 28 February 2013 on charges of contravening an interim personal safety intervention order and stalking. He failed to appear. It seems Kok was unable to attend because he had suffered a major medical emergency on that day and was admitted to hospital. He could not contact the relevant people to inform them he could not appear. A warrant was issued for his arrest.
When Kok was later released from the hospital, he was discharged on crutches.
On 22 March 2013, Lomax went to the caravan park operated by Kok in Port Welshpool to execute the warrant. Kok lived in the office/residence at the caravan park. Lomax knocked on at least two doors of the office/residence attempting to locate Kok. Lomax had parked the police van at the back of the office/residence. The office opens out onto a verandah. What took place then was later summarised by Judge Murphy of the County Court in this way:
I find that [Kok] opened the office door and called out to the informant Officer Lomax. Mr Lomax then attended at the door. I am satisfied that [Kok] did not set foot on the verandah. As indicated in his evidence, by Officer Lomax, [Kok] stood on the door step. Officer Lomax I am satisfied had the warrant in his hand and he proceeded to tell [Kok] that he was here to execute the warrant and to take him to Foster to arrange a new court date. [Kok] knew there was a warrant outstanding for his arrest, and in his own evidence he admitted that Officer Lomax said ‘I’ve got a warrant you’re coming with me’. Under cross-examination Officer Lomax said [Kok] said ’I’m not going anywhere with you’. At that point Officer Lomax grabbed the front shirt of [Kok]. On Officer Lomax’s evidence [Kok] pulled back, pulling Officer Lomax a couple of steps into the office by [Kok] retreating into his office. On his own evidence [Kok] said he blocked himself from being pulled out by Officer Lomax. Officer Lomax said he only recalled seeing [Kok] using one crutch although he may have had 2 crutches. I am satisfied that [Kok] following his discharge from the hospital in fact did have 2 crutches.
Lomax gave evidence that, being unable to arrest Kok, he rang another police officer for assistance, Leading Senior Constable Heywood (‘Heywood’), whom Kok knew. Kok spoke to Heywood. Lomax and Kok then waited for about 20 minutes for Heywood to arrive. Lomax handed the warrant to Heywood and he read the contents of the warrant to Kok in the presence of Lomax. Kok agreed to accompany Heywood to Foster police station in Heywood’s police vehicle. Lomax followed in his police van. At Foster police station Kok’s bail was renewed and a new court date was set.
Magistrates’ Court hearing
On the renewed date of hearing in the Magistrates’ Court, 6 March 2015, Kok was acquitted of the charge of breach of the interim personal safety intervention order and acquitted of stalking. However, on the basis of the events that occurred on 22 March 2013 he was found guilty on the charge of resisting a member of the police force in the execution of his duty (‘resisting arrest’), pursuant to s 52(1) of the Summary Offences Act 1966. Relevantly, s 52(1) then provided:
52 Assaulting or resisting constables etc
(1) Any person who assaults resists obstructs hinders or delays or incites or encourages any other person to assault resist obstruct hinder or delay any member of the police force or a protective services officer in the execution of his duty under this Act or otherwise, or any person lawfully assisting any such member or officer in the execution of his duty under this Act, or any member of the staff of the local authority in the execution of his duty under this Act shall be guilty of an offence.
Penalty: 25 penalty units or imprisonment for six months.
No conviction was recorded. Kok was ordered to be of good behaviour for a period of one year:
COURT ORDER
Without conviction, Adjourned to LATROBE VALLEY MAGISTRATES’ COURT on 04/03/2016 at 9:30 am.
Accused released upon giving an Undertaking starting on 06/03/2015.
To appear before adjourned date if called upon during period of adjournment.
Accused to be of good behaviour during the period of adjournment.
Kok appealed to the County Court, pursuant to s 254(1) of the Criminal Procedure Act 2009.
County Court appeal
The County Court appeal was conducted as a re-hearing of the charge of resisting arrest.[4] Judge Murphy delivered ex tempore reasons, recorded in the transcript of hearing. He held that the ‘key point of dispute’ was whether ‘Lomax expressly gave [Kok] the impression that he was to accompany him to Foster in the back of the Divisional van’. He was satisfied that Lomax did say to Kok ‘you are coming to Foster in the van’. However, he found that this may have been in the passenger seat, and not in the pod. Critically, he found that there was no discussion about where Kok would sit in the police van. There was no challenge to this finding.[5] It was later relied upon as significant by Emerton J. Judge Murphy said:
I am satisfied that Officer Lomax did say you are coming to Foster in the van. However as Officer Lomax said that would not necessarily have been in the pod, it may have been in the passenger seat. On Officer Lomax’s version, which I accept, that matter never got to the point of discussion in the circumstances.
[4]Pursuant to s 256(1) of the Criminal Procedure Act. It took place on 19 May 2016.
[5]Indeed, none of the findings made by Judge Murphy is challenged on the basis that it is wrong by reason of incontrovertible facts or uncontested testimony, or that it is glaringly improbable or contrary to compelling inferences: Robinson Helicopter Co Inc v McDermott (2016) 331 ALR 550, 558–9 [43].
Judge Murphy accepted that the reason Kok refused to go into the police van was because Kok believed that he was going to be put into the pod and he had a genuine belief that his health conditions meant this was unsafe for him. He rejected Kok’s evidence that he communicated this to Lomax. He said:
[Kok] gave evidence that why he refused to accompany Officer Lomax was because he believed he would be in the pod, which for him was unsafe because of his medical conditions and he feared for his safety. He maintained his evidence that he told Officer Lomax that it was an inappropriate form of transport. I don’t accept that that conversation occurred at that point. I am satisfied that [Kok] reached the conclusion that he was going in the pod of the van and on that basis he refused to accompany Officer Lomax.
He considered whether the competing evidence of Lomax and Kok ‘gives rise to any reasonable doubt as to whether [Kok] has resisted Officer Lomax in the execution of the warrant’. In that context he described the nature of the case put in Kok’s defence. Counsel for Kok relied upon Mastwyk v DPP.[6] Mastwyk was concerned with an alleged contravention of s 49(1)(e) of the Road Safety Act 1986 which rendered it an offence to refuse to comply with a police officer’s requirement, made under s 55(1) of that Act, that a person accompany a police officer to a designated place for the purpose of providing a sample of his or her breath for analysis. The Court[7] held that where a driver was otherwise willing to accompany a police officer to a designated place but unwilling to be transported by means of travel that was objectively unreasonable, a refusal to travel was not, without more, a contravention of s 55(1). Judge Murphy considered Mastwyk to be irrelevant and held that Kok was not justified in resisting the arrest:
I do not see that decision [Mastwyk] as being of assistance. The warrant in this case requires police officers to arrest [Kok] and take him to a bail justice. An arrest is effected by some form of restraint on [Kok], which in this case was Officer Lomax grabbing [Kok’s] shirt when he said to the Officer that he would not go anywhere with him. I am satisfied that he said that. The fact that [Kok] believes subjectively that his health condition was such that he should not be placed in a police van, or alternatively that the matter should be dealt with by arrangements with the Werribee station, does not, in my opinion, provide any basis to find that the actions of [Kok] in blocking himself, to use his own words, or in the words of Mr Lomax, ‘pulling back’, as a justification for the conduct.
[6](2010) 27 VR 92 (Court of Appeal) (‘Mastwyk’).
[7]Nettle and Redlich JJA (Maxwell P dissenting).
Judge Murphy observed that it was necessary to be attentive to the precise offence with which Kok was charged:
If the charge was refusing to accompany a police officer to the Foster police station and the requirement was placed on [Kok] to be in the pod then given his medical circumstances he may have had a basis to refuse. That is not the charge he is facing. In the circumstances where the requirement was that he be arrested I am satisfied that his actions in pulling back into the office did amount to resisting the arrest by Officer Lomax. I don’t have any reasonable doubt about that and on that basis notwithstanding that it is unchallenged [Kok] is a man of good character, of mature years and has no prior convictions or matters outstanding against him I am satisfied that the charge is proved.
He set aside the orders of the magistrate and in their place made an order that the charge was proven and ordered that Kok be released without conviction on an adjourned undertaking to be of good behaviour from 19 May 2016 to 18 November 2016.
Kok filed an originating motion in the Supreme Court seeking judicial review of Judge Murphy’s decision. There has been no further reliance upon Mastwyk to justify Kok’s conduct.
Supreme Court judicial review
Emerton J summarised the substance of the grounds for judicial review relied upon by Kok as follows:
(1) The judge erred in failing to direct himself as to whether:
(a) Kok acted without lawful excuse;
(b) Kok acted in self-defence;
(c) Kok intended to resist arrest.
(2)It was not open to the judge on the findings of fact made by him to find each of the elements of the offence charged proven where:
(a) Kok had raised a defence of lawful excuse and/or self-defence and no evidence or argument had been advanced to rebut those defences;
(b) the judge found that Kok had pulled back from Lomax’s grasp out of fear for his physical safety; and
(c) the judge made no finding that Kok intended to resist arrest or even avoid arrest.
(3) The judge erred in failing to make any determination in relation to the question of lawful excuse or self-defence.
(4) The judge failed to give adequate reasons for finding that Kok had acted without lawful excuse or otherwise than in self-defence.[8]
[8]Supreme Court reasons [12].
Her Honour noted that, before her, senior counsel for Kok encapsulated the complaint in a single ground:
[He] reduced these grounds to the single complaint that Mr Kok had raised an issue of ‘self-defence or necessity’ and, although Mr Kok’s reason for acting as he did was accepted by the County Court judge, his Honour made no finding as to whether self-defence or necessity had been established.[9]
[9]Ibid [13].
The alleged error was that of an error of law on the face of the record, the record including the reasons of the judge as recorded in the transcript.[10]
[10]See Administrative Law Act 1978 s 10.
Senior counsel for Kok reiterated before Emerton J that Kok’s defence was that his conduct in ‘blocking himself’ and thereby resisting arrest by Lomax was justified by his genuine belief or fear of travelling in the pod of the police van given his medical problems. As her Honour put it, ‘Senior Counsel submitted that Mr Kok was acting in self-defence in that he was “self-defending himself” from the injury that he would inevitably suffer in the pod’.[11] Kok accepted that self-defence was not raised in terms before Judge Murphy but submitted that the evidence about Kok’s belief, accepted by the judge, raised self-defence. This required the judge to have gone on to assess whether Kok’s belief was reasonable for the purposes of self-defence, and this the judge failed to do. He submitted that Judge Murphy erred in that he made no finding as to whether Kok’s belief was reasonable or unreasonable in circumstances where it was only a finding that Kok’s belief was unreasonable that could have permitted him to accept that the charge was proven.
[11]Supreme Court reasons [17].
Lomax emphasised before her Honour that the only defence raised by Kok was based upon Mastwyk which was considered and rejected by the judge. Self-defence was not raised and had it been, arguments could have been made by both parties about whether the defence had been made out in the circumstances. There was no obligation on Judge Murphy to go ‘fossicking around’[12] the evidence to determine if defences other than that relied upon could be made out.
[12]Ibid [19].
Her Honour rejected the proposition that self-defence was raised on the evidence:
I do not accept that Mr Kok’s evidence of his fear of being transported in the pod amounted to raising a defence of self–defence (or ‘necessity’) such that the County Court judge was required to expressly consider such a defence and give reasons for rejecting it. In Perkins v County Court of Victoria, Buchanan JA said:
The extent of the duty to give reasons will depend upon the way in which the case has been conducted. A judge may properly limit himself to determining facts which are in issue and dealing with the points which have been taken and the submissions made in relation to them.
The County Court judge was required to deal with the defence that was raised by Mr Kok and he did.[13]
[13]Ibid [21]–[22] (citation omitted).
She then observed that, in any event, Judge Murphy had in substance dealt with the issue of the reasonableness of Kok’s fear because he made findings that led inexorably to the conclusion that Kok’s fear was, in the circumstances, unreasonable:
In any event, in the Reasons, the County Court judge addressed the reasonableness of Mr Kok’s fear that he would be injured as a result of being placed in the pod, albeit not in the context of self-defence or necessity. His Honour made findings of fact leading inexorably to the conclusion that Mr Kok’s belief in the threat to his safety was not based upon reasonable grounds. His Honour found that while Officer Lomax said, at the outset, that Mr Kok had to go with him in the van, there was no discussion about where in the van Mr Kok would sit. His Honour rejected Mr Kok’s evidence that he told Officer Lomax that the van was an inappropriate form of transport.[14]
[14]Ibid [23] (emphasis added).
Her Honour’s analysis of Judge Murphy’s reasons led her to the significant conclusion that the judge considered Kok’s response to the attempted arrest to be premature and unjustified, and that it was open to him to so find:
It is plain from the Reasons that his Honour considered Mr Kok’s response to Officer Lomax to be premature. His Honour found, in effect, that Mr Kok jumped to a conclusion about how he would be transported to the police station and did not inform Officer Lomax of his medical circumstances. His Honour said:
I am satisfied that [Mr Kok] reached the conclusion that he was going in the pod of the van and on that basis he refused to accompany Officer Lomax.
Based on his findings of fact, it was open to the County Court judge to find that the physical acts of Mr Kok in ‘blocking’ or pulling back were not a justified response to the situation that presented itself. In the absence of any discussion about where he would or should be seated in the police van, Mr Kok’s fear of injury was not reasonable and his actions in resisting arrest were not justified.[15]
[15]Ibid [24]–[25] (emphasis added). Her Honour also held that the reasons of Judge Murphy were adequate.
Her Honour held that the alleged error of law had not been made out and she dismissed the application for review.
Kok now seeks leave to appeal against the decision of Emerton J.
Application for leave to appeal
Kok relies on two proposed grounds of appeal in support of his application for leave to appeal:
Ground 1: The Judge erred in holding that the defence of lawful excuse was not raised before the County Court Judge and that he was therefore not required to consider it.
Ground 2: The Judge erred in holding that Kok’s fear of being transported in the pod of the police was not reasonable.[16]
[16]Kok seeks to have the orders made by Emerton J set aside and in their place an order made in the nature of certiorari quashing Judge Murphy’s orders made on 19 May 2016. He also seeks to have the matter remitted to the County Court to be determined according to law.
Senior counsel for Kok confirmed at the hearing of the appeal that he only sought to argue that the judge had erred in holding that self-defence was not raised in the County Court and that the language of ‘lawful excuse’ had been used in the grounds of appeal because self-defence is one form of lawful excuse.
Ground 2 requires reformulation to make the nature of the challenge apparent, namely, that the judge erred in holding that Judge Murphy found that Kok’s fear of being transported in the pod of the police car was not reasonable. Kok contends that there was no such finding. Interspersed with this was a submission that, in any event, it was not open for Judge Murphy (or Emerton J) to hold that Kok’s fear was not reasonable.
The grounds give rise to three issues: (1) Does a judge sitting alone, hearing an appeal on summary criminal charges, have an obligation to deal with any defence raised on the evidence? (2) Was self-defence raised on the evidence? (3) Did Judge Murphy find that Kok’s fear was unreasonable and was such a finding open on the evidence?
(1)Does a judge sitting alone, hearing an appeal on summary criminal charges, have an obligation to deal with any defence raised on the evidence?
Kok submits that a judge sitting alone hearing an appeal on summary criminal charges[17] has an obligation to identify and deal with a defence that arises on the evidence, regardless of whether a defendant expressly relies on that defence or indeed abandons it. He points to the observations of Barwick CJ in Pemble v The Queen[18] affirming the obligation at common law on a judge to give directions to the jury where a defence is not raised at trial, but there is material upon which the jury could properly find such a defence:
Whatever course counsel may see fit to take, no doubt bona fide but for tactical reasons in what he considers the best interests of his client, the trial judge must be astute to secure for the accused a fair trial according to law. This involves, in my opinion, an adequate direction both as to the law and the possible use of the relevant facts upon any matter which the jury could in the circumstances of the case upon the material before them find or base a verdict in whole or in part.
...
Here, counsel for the defence did not merely not rely on the matters now sought to be raised; he abandoned them and expressly confined the defence to the matters he did raise. However, in my opinion, this course did not relieve the trial judge of the duty to put to the jury with adequate assistance any matters on which the jury, upon the evidence, could find for the accused.[19]
[17]And, it follows, a magistrate hearing such charges.
[18](1971) 124 CLR 107 (‘Pemble’).
[19]Ibid 117–8.
In Pemble Menzies J also remarked that: ‘counsel for the defence cannot effectively disclaim a defence open to the accused upon the evidence. The judge must submit that defence to the jury.’[20]
[20]Ibid 133.
The common law obligation recognised in Pemble was abolished by the Jury Directions Act 2013 with respect to a judge’s obligation to direct a jury.[21] If directions have not been requested, a trial judge must now only give a direction to a jury if there are substantial and compelling reasons for doing so, by virtue of s 16(1) of the Jury Directions Act 2015. However, Kok submits, neither the Jury Directions Act2013 nor the Jury Directions Act 2015 has displaced what he claims is the common law obligation on a judge sitting alone hearing summary criminal charges to deal with any defence open on the evidence, whether the defence is expressly relied upon or not.[22]
[21]See Jury Directions Act 2013 s 16(1), Jury Directions Act 2015 s 17, note 3.
[22]But see, since 1 October 2017, s 4A of the Jury Directions Act 2015, extending the operation of that legislation to criminal proceedings heard without a jury.
Kok supports his submission by reference to Stokes v The Queen.[23] In Stokes the two accused, Stokes and Difford, were jointly charged with maliciously inflicting grievous bodily harm on another prisoner with intent thereby to do such harm. Stokes was convicted by a jury of that offence while Difford was convicted, as an accessory, of the lesser offence of maliciously inflicting grievous bodily harm. On Stokes’ appeal, it was argued that the judge erred in not directing the jury that, in considering whether the Crown had established the specific intention required, the Crown had to remove any reasonable doubt about the existence of that intention which may have been raised by the evidence of Stokes’ intoxication. In his unsworn statement Stokes said he was a ‘pretty quiet bloke’ who minded his own business but on the day in question he had had a gaol brew and had become ‘pretty drunk’. Formal concessions were made by counsel that drunkenness was not being raised as a ‘defence’. The trial judge told the jury that the question of whether Stokes ‘was affected by intoxicating liquor is not a matter for you to consider in this trial’.[24]
[23](1990) 51 A Crim R 25 (New South Wales Court of Criminal Appeal) (‘Stokes’).
[24]Ibid 31.
Hunt J (Wood and McInerney JJ agreeing) held the judge had erred by failing to give the proper direction to the jury on the issue of intoxication, because it was raised on the evidence, even though this may have weakened another part of Stokes’ defence:
It is reasonably obvious why counsel then appearing for the appellants wished to avoid the usual direction concerning the relationship of intoxication to the formation of a specific intention ... Whatever benefit that direction could possibly have given Stokes upon the issue of his specific intention, it would no doubt also have considerably weakened his denials that he had kicked Partlic and speared him headfirst onto the concrete floor if the jury had been warned that, in many cases, intoxication does no more than remove inhibitions of self-restraints and induce a sense of self-confidence and (sometimes) of aggressiveness ... The judge did, quite properly, suggest that intoxication may be an explanation for what had happened, but that suggestion would not have caused the damage to Stokes’s denials which the full warning would have caused.
The disavowal by counsel then appearing for the appellants that intoxication was being raised as an issue, though no doubt made for tactical reasons which were bona fide thought to be in the best interests of their clients, did not relieve the judge of the duty to give directions in relation to that issue in this case: Pemble ... Counsel cannot concede a matter of law to the disadvantage of the accused. The judge must comply with his duty to put to the jury any issue sufficiently raised by the evidence even if that issue gives an air of unreality to the case sought to be made by the accused in relation to some other issue. ...
An error of law has therefore been established by Stokes, in that the judge erred in acceding to the request of his own counsel, made for tactical reasons to benefit the appellant’s own case, not to put intoxication to the jury as being relevant to an issue which the Crown had to establish. The irony of such a conclusion — that the judge erred by doing precisely what the appellant had asked him to do — is even greater because, had the direction been given which Stokes now says should have been given, it would have been likely to weaken his case.[25]
[25]Ibid 32 (citations omitted).
Ultimately the Court held that the appeal against conviction should be dismissed on the basis that the finding of guilt against Stokes would have been inevitable even if a proper direction had been given to the jury on the issue of intoxication.
In response to Kok’s reliance upon Pemble, and Stokes, Lomax submits that the justification for the common law obligation recognised in Pemble lay in the fact that members of the jury are not legally trained whereas a legally trained judge can be assumed to be alert to any defence that reasonably arises on the evidence. Lomax submits that Judge Murphy was not required to consider the defence of self-defence, or to give reasons for rejecting it, in circumstances where Kok’s counsel had not relied upon the defence. For that proposition Lomax relies on the authority of Perkins v County Court of Victoria,[26] as extracted above.[27]
[26](2000) 2 VR 246 (‘Perkins’).
[27]See [21] above.
In our view, Perkins does not stand for the broad proposition for which Lomax contends. The decision of the Court of Appeal in Perkins was concerned with the issue of the adequacy of reasons in a narrow sense, namely, whether the brief comments furnished by a County Court judge in finding the accused guilty of resisting police in the execution of their duty adequately disclosed a path of reasoning to support the convictions. The Court of Appeal held that they did.[28] In particular, Buchanan JA observed:
In the present case the judge said that the justification for handcuffing the appellant lay in his actions. The grounds for his decision appear, for he described those actions. Similarly, the judge’s stated findings as to the appellant’s appearance and actions reveal the grounds for his finding that the police believed on reasonable grounds that it was necessary to arrest the appellant to ensure his appearance before a court. ... [W]hile different views might be held as to whether the finding was correct, the judge did express adequately the basis of his finding.[29]
[28]In doing so, they affirmed the decision of the judge below who had dismissed a judicial review application against the decision of the County Court judge.
[29](2000) 2 VR 246, 273–4 [64] (with whom Phillips and Charles JJA relevantly agreed).
It was within the context of considering a challenge to the judge’s reasons based on the ground of their failure adequately to disclose a path of reasoning that Buchanan JA went on to remark that the extent of the duty will depend upon how the case was conducted. He was not considering the separate question of whether a judge hearing a summary criminal prosecution has a duty at common law to consider what defences the evidence raises.
In any event, it can be accepted that Pemble has no direct application here. Pemble, like Stokes, was concerned with the directions which a judge must give to a jury and it is artificial to consider that a judge must rehearse for himself or herself any defence that might arise on the evidence in relation to a summary prosecution despite there having been no reliance on that defence before the court. To that extent Lomax’s submissions about the significance of a jury being composed of lay members, by comparison with a legally trained judge, has some force. However, it is necessary to recall that the common law obligation in Pemble is addressed to the need ‘to secure for the accused a fair trial according to law’.[30] It is in that context that, in our view, a judge hearing the criminal prosecution of a summary offence must be alert to a defence which is raised on the evidence whether or not that defence is relied on by the accused. Where the evidence genuinely raises a defence which ought be considered to ensure that an accused receives a fair trial, in our view, a judge hearing a summary criminal prosecution must then deal with that defence in arriving at a decision.
[30]See [30] above.
(2) Was self-defence raised on the evidence?
Kok submits that self-defence was raised on the evidence before Judge Murphy and this is apparent from the finding made that Kok subjectively held a belief that his health conditions meant he should not be conveyed in the pod. Kok submits that this necessarily raised the question of self-defence, and it is irrelevant that Kok’s counsel did not specifically raise self-defence in terms.
Lomax responds by submitting that the reasons of Judge Murphy do not establish that self-defence was raised by the evidence. In making this submission Lomax emphasises the need for a reviewing court to confine itself to the record of the court below, including, as noted, the reasons. He distinguishes such an exercise from that which ordinarily applies in criminal appeals where the merits, and all of the evidence below, may be fully explored. Moreover, he submits that it is rare for self-defence to be raised in response to conduct that is lawful.[31]
[31]Zecevic v DPP (1987) 162 CLR 645, 663-4 (‘Zecevic’). For all offences alleged to have been committed on or after 1 November 2014, the defence of self-defence does not apply to a response to lawful conduct where the accused knows that the conduct is lawful: see Crimes Act 1958 ss 322L, 623. This applies to all offences in Victoria, whether enacted or at common law: see Crimes Act 1958 s 322G.
In Zecevic the test for self-defence at common law was reaffirmed as having both a subjective and an objective element. The test as re-stated by Wilson, Dawson and Toohey JJ is relevant to both the issue of whether self-defence was raised and the third issue of whether Judge Murphy found that Kok’s fear was unreasonable. Their Honours said:
[A]n explanation of the law of self-defence requires no set words or formula. The question to be asked in the end is quite simple. It is whether the accused believed upon reasonable grounds that it was necessary in self-defence to do what he did. If he had that belief and there were reasonable grounds for it, or if the jury is left in reasonable doubt about the matter, then he is entitled to an acquittal. Stated in that form, the question is one of general application ...[32]
[32]Ibid 661 (emphasis added). Mason CJ agreed with Wilson, Dawson and Toohey JJ (at 654), as, relevantly, did Brennan J (at 666). Deane and Gaudron JJ were in dissent.
In our view, although self-defence was not squarely raised on the evidence, Kok’s evidence, as accepted by Judge Murphy in his reasons, was capable of satisfying the first element of the defence of self-defence, namely, did Kok have the relevant belief, that is, did he believe that it was necessary in self-defence to do what he did?
The relevant evidence, as extracted in Judge Murphy’s reasons, is as follows:
[Kok] gave evidence that why he refused to accompany Officer Lomax was because he believed he would be in the pod, which for him was unsafe because of his medical conditions and he feared for his safety.[33]
[33]See [11] above.
On the basis of this, his Honour arrived at the relevant findings that:
I am satisfied that [Kok] reached the conclusion that he was going in the pod of the van and on that basis he refused to accompany Officer Lomax.[34]
[34]Ibid.
We consider that the subjective belief of Kok for resisting arrest by Lomax was relevant to the first element of the defence of self-defence and disclosed the possibility that Kok’s resistance was based in self-defence. In our view Judge Murphy ought to have considered in terms whether self-defence was made out in the circumstances of the case. We differ from Emerton J in that respect.
In arriving at this conclusion we are mindful that we are assessing the evidence before Judge Murphy, as revealed in his reasons, from the perspective of an appellate court and removed from the context of a busy trial court where a judge is ordinarily entitled to rely upon the expertise of trial counsel in identifying the relevant defences. However, Pemble indicates that there is an independent onus on the judge (or magistrate) to identify the issues.
The all-important question then is the issue of the reasonableness of Kok’s subjective belief and if, and how, that was dealt with. If the issue of the reasonableness of Kok’s belief was appropriately dealt with by Judge Murphy, it is not material that self-defence was not addressed by his Honour expressly or under that rubric.
(3) Did Judge Murphy find that Kok’s fear was unreasonable and was such a finding open on the evidence?
Kok submits that Judge Murphy, in not appreciating that self-defence was raised on the evidence, failed to assess whether Kok’s belief was reasonable; that is, he failed to apply the second limb of the test in Zecevic. Kok maintains that Judge Murphy made no finding that Kok’s belief was unreasonable, and that Emerton J erred in concluding that the findings Judge Murphy did make ‘inexorably’ led to the conclusion that Kok’s fear for his safety was not based upon reasonable grounds.
Furthermore, Kok submits that the approach taken by Emerton J impermissibly shifted the burden of proof; he submits that her Honour’s observations were contrary to the principle that when self-defence is raised, the burden of disproof lies on the prosecution. He submits that her Honour approached the task by considering that it was for Kok to prove that he had no reasonable grounds for believing he would suffer injury, thereby shifting the burden of proof. In addition, he submits that her Honour reached her conclusions on the reasonableness of Kok’s fear by adopting a wholly objective test, rather than determining whether Kok held a reasonable belief in all the circumstances.
In support of the proposition that the burden of proof for self-defence lies on the prosecution, Kok relies upon what was said by Wilson, Dawson and Toohey JJ in Zecevic, speaking within the context of a jury trial for homicide:
Although self-defence is still commonly referred to as a defence, the ultimate onus of proof with respect to self-defence does not rest on the accused. Since Woolmington v Director of Public Prosecutions, it has been clearly established that once the evidence discloses the possibility that the fatal act was done in self-defence, a burden falls upon the prosecution to disprove that fact, that is to say, to prove beyond reasonable doubt that the fatal act was not done in self-defence. The jury must be instructed accordingly whether or not the plea is actually raised by the accused: Director of Public Prosecutions v Walker.[35]
[35](1987) 162 CLR 645, 657 (citations omitted).
Kok also points to remarks in Zecevic in support of his submission that the test of reasonableness is not wholly objective; the remarks are to the effect that in the context of self-defence, in assessing whether an accused had reasonable grounds for his or her belief:
proper weight [should be given] to the predicament of the accused which may have afforded little, if any, opportunity for calm deliberation or detached reflection.[36]
[36]Ibid 662–3.
At one stage in the hearing of the appeal, senior counsel for Kok submitted that reasonableness should be assessed entirely from the point of view of the accused but ultimately he accepted that it is not simply a matter of what an accused believed; rather, there is an objective assessment of reasonableness to be made but it should be made taking into account the whole of the surrounding circumstances including the perspective of the accused.[37]
[37]R v Hendy [2008] 191 A Crim R 81, 87 [10], R v Portelli (2004) 10 VR 259, 272–3 [27]–[28].
Lomax submits that Emerton J was correct to recognise that Judge Murphy did address the reasonableness of Kok’s belief that he would be injured as a result of being placed in the pod and that he found, taking into account the whole of the evidence, that Kok’s genuine fear provided no justification for his resistance, the fear not being founded on a reasonable basis.
We agree. In our view, the critical findings made by Judge Murphy were, as recognised by Emerton J, that Kok did not communicate his fear to Lomax and there was no discussion between Kok and Lomax about where Kok would sit in the van.[38] Kok thus had no proper basis for his belief that he would be injured if he complied with Lomax; rather, he jumped to a conclusion about how he would be transported without that conclusion being properly informed. In effect, Kok assumed that it would be inevitable that he would be transported in the pod. As Emerton J correctly put it, Judge Murphy considered that Kok’s response to Lomax was premature.[39] We agree with her Honour’s characterisation of Judge Murphy’s reasoning and with the observation that these factual findings were open to his Honour. We also agree that these findings led inexorably to the conclusion that Kok’s belief that it was necessary for him to resist arrest to defend himself against injury was not based upon reasonable grounds; these findings dictate the result that would have been arrived at had self-defence been relied upon.
[38]See [11] and [22] above.
[39]See [23] above.
We consider that in arriving at these findings Judge Murphy took full account of the circumstances from Kok’s perspective and the background of his earlier medical emergency. He well understood that it was because of Kok’s medical conditions that Kok ‘believe[d] subjectively that his health condition was such that he should not be placed in a police van’ yet because there was no requirement that he be placed in the pod of the van, that belief could ‘not ... provide any basis to find that the actions of [Kok] in blocking himself ... [were] a justification for the conduct’.[40] We consider that Emerton J was correct in concluding that the finding of a lack of justification was open to his Honour.[41]
[40]See [12] above.
[41]See [23] above.
Furthermore, we do not consider that Emerton J, in her discussion of Judge Murphy’s findings on the reasonableness of Kok’s belief, reversed the burden of proof which lies on the prosecution to disprove self-defence. Once Judge Murphy rejected Kok’s evidence that he told Lomax that riding in the back of a police van was an inappropriate form of transport because of his medical conditions,[42] and there was no conversation about where Kok would sit, there could be no real contest about whether Kok’s conduct was reasonable, regardless of where the onus of proof lay. On any view, given that: (1) there was objectively no requirement for Kok to be transported in the pod of the van; (2) Lomax never told Kok that he would be transported in the pod of the van; and (3) Kok never inquired about whether he would be placed in the pod of the van, the conclusion was inescapable that Kok’s belief, that it was necessary for him to protect himself from injury arising from being transported in the pod of the van by resisting arrest, was unreasonable.
[42]See [11] above.
In our view, the findings made by Judge Murphy reveal precisely the basis upon which he would have rejected the defence of self-defence had it been raised in terms, and Emerton J was correct in concluding that this was so. If self-defence had been relied upon, it would have made no material difference to the result. It was thus inconsequential that self-defence was not considered by Judge Murphy in terms as he addressed both elements of the defence of self-defence and the conclusions he arrived at were open to him.
We see no material error in the reasons of Judge Murphy or those of Emerton J.
We reject the grounds of appeal.
Conclusion on the application for leave to appeal
We would grant leave to appeal on the basis that there were real prospects of success of the appeal; that is, the prospects of success were not fanciful.[43]
[43]Supreme Court Act 1986 s 14C, Kennedy v Shire of Campaspe [2015] VSCA 47 [12].
Conclusion on the appeal
We would dismiss the appeal.
- - -
0
6
0