Lancaster v Hyde
[2016] ACTSC 50
•1 April 2016
SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
Case Title: | Lancaster v Hyde |
Citation: | [2016] ACTSC 50 |
Hearing Date: | 23 April 2015 |
DecisionDate: | 1 April 2016 |
Before: | Refshauge J |
Decision: | 1. The appeal is dismissed. 2. The finding of guilt and sentence of the Magistrates Court are confirmed. 3. The parties be heard as to any consequential orders. |
Catchwords: | APPEAL – Jurisdiction, practice and procedure – appeal from Magistrates Court – appeal against conviction – re-hearing – reliance on written evidence – unsafe and unsatisfactory decision – adverse inference drawn from failure to give evidence APPEAL – Jurisdiction, practice and procedure – CRIMINAL LAW – Jurisdiction, practice and procedure – ‘move on’ notice – fighting in a public place – self defence – defendant bears onus of proving self defence – initial aggressor may later act in self defence – consensual fighting – consent exceeded – no evidence of self defence |
Legislation Cited: | Crime Prevention Powers Act 1998 (ACT), ss 4 Crimes Act 1900 (ACT), s 391 |
Cases Cited: | Azzopardi v The Queen [2001] 205 CLR 50 Brooks v McShane (1996) 89 A Crim R 195 |
Parties: | Douglas Lancaster (Appellant) Geoffrey Hyde (Respondent) |
Representation: | Counsel Mr K Archer (Appellant) Mr M Reardon (Respondent) |
| Solicitors Kamy Saeedi Law (Appellant) ACT Director of Public Prosecutions (Respondent) | |
File Number: | SCA 92 of 2014 |
Decision under appeal: | Court: ACT Magistrates Court Before: Magistrate Doogan Date of Decision: 24 September 2014 Case Title: Geoffrey Hyde v Douglas Lancaster Court File Number: CC 1917 of 2014 |
REFSHAUGE J:
Shortly after 1:00 am on 20 December 2013, a fight broke out between what appeared to be two groups of males on the footpath of London Circuit, close to Hobart Place and opposite the car park adjacent to the Magistrates Court Building in Civic, ACT.
Staff of the Uni Pub called police. The Uni Pub is a converted bank building containing a public bar, restaurant and function areas, located at the corner of London Circuit and University Avenue, further south from where the groups were fighting.
By the time police attended, the fight had broken up and one group of participants was in the car park outside the Magistrates Court and the other had walked from there, where the fight had ended, to the eastern side of Civic.
Police officers approached the persons in the car park and one officer, Senior Constable Geoffrey Hyde, the respondent, gave the Appellant, Douglas Lancaster, a “move on” notice under s 4 of the Crime Prevention Powers Act 1998 (ACT), directing him to leave the vicinity specified in the notice. The area from which Mr Lancaster was directed to move from was, in fact, not an area in which he was at the time, nor in which the fight had occurred, but portion of the eastern side of Civic.
Later, Mr Lancaster was found by police within the area the subject of the “move on” notice and was arrested for breaching the direction in the notice, contrary to s 4 of the Crime Prevention Powers Act.
On 18 February 2014, police also preferred a further charge of fighting in a public place against Mr Lancaster. It is not clear why this charge was laid so late; perhaps it arose out of a further consideration of the information available to police, but the statements of witnesses included in the police brief of evidence were not taken until March and April 2014.
The latter offence is contrary to s 391 of the Crimes Act 1900 (ACT) which prohibits a person from fighting another person in a public place.
Mr Lancaster pleaded not guilty to both these offences and the charges were set for hearing on 24 September 2014.
Following the hearing on that day, the learned Magistrate acquitted Mr Lancaster of the charge of failing to comply with the direction to move on but found him guilty of the charge of fighting in a public place.
He has now appealed from that finding of guilt. The prosecution has not challenged the acquittal of Mr Lancaster of the other charge.
Jurisdiction
This Court is given jurisdiction under Pt 3.10 of the Magistrates Court Act 1930 (ACT) to hear and determine appeals from decisions in the criminal jurisdiction of the Magistrates Court. In particular, s 208(1) of that Act sets out the decisions that may be subject to an appeal. Included in that section is s 208(1)(b) of that Act which permits an appeal by a person convicted by that Court of an offence dealt with summarily under Pt 3.6 of the Act.
Both of the offences were summary offences and dealt with under Pt 3.6 of the Magistrates Court Act.
That Mr Lancaster was ultimately sentenced to a non-conviction order under s 17 of the Crimes (Sentencing) Act 2005 (ACT) does not seem to me to undermine the fact that, at law, and in the context of s 208 of the Magistrates Court Act, the acceptance of the court of a finding of guilt amounted to a conviction for the purposes of his right to appeal. See R v Meyboom (2012) 256 FLR 450 at 456; [31]. The respondent did not submit that the Court had no jurisdiction to hear the appeal.
The appeal is in the nature of a re-hearing on the evidence before the Magistrates Court and any further evidence that this Court, on hearing the appeal, permits to be adduced. No application was sought for the admission of any further evidence.
I have described a re-hearing in Theodorelos v Nexus Projects Pty Ltd [2009] ACTSC 149 at [78] as follows:
Appeal by way of rehearing is also one where the appeal court must determine whether the decision of the body from which the appeal is taken is wrong, by that body falling into error of law, making a finding of fact that is clearly wrong or exercising a discretion on a wrong principle or in a way that is clearly wrong. Ordinarily, however, facts found based on the assessment of witnesses will not lightly be overturned. The appeal court usually has power to receive further evidence, though this is ordinarily subject to some restrictions. The appeal court may also draw inferences itself from primary facts found by the body from which the appeal is taken. The decision, however, is not restricted to making the decision that should have been made by the body from which the appeal is taken but in determining it the appeal court must have regard to the circumstances which exist at the time of the appeal and by making its own decision on these circumstances.
In this case, however, the evidence was, apart from a small portion of oral evidence, all given by written statements taken by police and other documents tendered and admitted into evidence. Thus, it is not necessary to refer in greater detail to the judicial restraint properly to be exercised to give due deference to the advantage a lower court has of seeing and hearing the witnesses given evidence.
The Evidence
There were differences between some of the evidence given in the admitted statements and the absence of cross-examination makes it harder to make findings where there are such differences, though, in the end, they may not matter much, with one significant exception.
There were three parts to the relevant events of the evening and it is convenient to deal with each separately.
(a) The events at the Uni Pub
Prior to the fight referred to above (at [1]), an incident occurred at the Uni Pub. The time of the incident was unclear from the statements of the witnesses; a security guard (presumably sober) put it at 2:00 am, two other staff of the Uni Pub (also presumably sober) put it at 1:00 am and a lay witness (who admitted to being “7-8/10 drunk”) put it at 12:00 am midnight. The call to police about the subsequent fight was made at about 1:30 am, so the incident was likely to have occurred at about 1:00-1:15 am.
In this incident, a male was removed from the Uni Pub. He then tried to re-enter, but was refused entry.
He became aggressive, swearing and demanding to be allowed to go back into the bar. He continued to complain and then punched the security guard in the jaw, which later required some surgical stitches at hospital. Another staff member attended and punched the male, felling him to the ground. A male friend of the felled male tried to intervene and said that he had videoed the event with his phone. That video was not produced at the hearing.
When the aggressive male calmed down, he was allowed up from the ground and the security guard told him to leave and not return to the Uni Pub. The security guard saw the male and his friend walk along London Circuit towards Northbourne Avenue and, when they were about to enter Hobart Place, the security guard saw another incident.
The prosecution appeared to submit that the male involved in this incident with the security guard was Mr Lancaster. The defence contended otherwise.
The learned Magistrate found that it was not Mr Lancaster. Her Honour said, during the hearing:
... and I don’t have to find that he [Mr Lancaster] started it because I’m happy to accept that Mr Burke [the security guard], based on his description, and maybe all that means is that he wasn’t very clear as to who he saw, but based on his description your client does not appear to be the one that he describes in that paragraph 4 [in which he described the fight referred to above (at [1])], but who else knows how it escalated and what happened?
In her final reasons, her Honour made no reference to this issue, satisfying me that she did not waver from this finding.
There was no cross-appeal. Thus, this finding remains unchallenged. Despite this, the respondent did make submissions to me intended to show that there was sufficient evidence to find that the person involved in the altercation at the door of the Uni Pub was Mr Lancaster.
In the light of what her Honour said and the absence of any challenge to that finding in a Notice of Contention or cross-appeal or other appropriate process, I do not consider that this fact is in issue in the appeal. Having reviewed the evidence, I am satisfied that Mr Lancaster was not the person who punched the security guard.
In any event, I am concerned that the use to which the prosecution appeared to want to put the alleged involvement of Mr Lancaster in these events may have meant that the evidence was not admissible.
It was not entirely clear how this incident was said to have been part of the prosecution case theory. If the description given by the security guard was accepted, then it seems to have little relevance.
In submissions, however, the prosecutor seemed to suggest that it showed that Mr Lancaster was aggressive, relevant to whether he was, in fact, later involved in fighting in a public place. This seems to me dangerously close, if not amounting, to using the evidence as tendency evidence, even though the requirements of s 97 of the Evidence Act 2011 (ACT) had not been met. That meant that, without the defendant’s consent, the evidence was inadmissible for that purpose. This was not, however, a ground of appeal.
There may, however, have been another basis for the admission of this evidence. Certain other evidence was given by other witnesses, not entirely consistently with the evidence of the security guard and other staff member.
These witnesses referred to two groups of males outside the Uni Pub, at this time, being aggressive to each other. It was said that they moved off down London Circuit towards Northbourne Avenue after the disturbance at the Uni Pub and that this was the genesis of the subsequent brawl, the subject of the second charge against Mr Lancaster.
Mr Michael Lee, the General Manager of the Uni Pub, who also gave evidence to this effect, did not connect it at all with the incident of the Uni Pub involving the male and his altercation with the security guard, as had been corroborated by another staff member in his statement.
One other witness had described the event in a way that was more consistent with the evidence of the security guard and the staff member. He, however, only gave evidence of the person, who must have been the male, “mouthing off” and his description of the subsequent fight described two men as ”really aggressive”, neither of whom was Mr Lancaster.
The prosecution did not, however, seem to rely on this incident as the start of the fight the subject of the charge against Mr Lancaster, that most witnesses said occurred near Hobart Place, about fifty to sixty metres from the Uni Pub.
(b) The Brawl
The prosecution did not rely on the punch that it said Mr Lancaster inflicted on the security guard as the fighting in a public place. As noted above (at [24]-[27]), I am satisfied that the assertion of the prosecution that Mr Lancaster punched the security guard cannot be sustained. The relevant incident was, instead, a fight, indeed a brawl, that the witnesses seemed all to say occurred on the London Circuit footpath further north from the Uni Pub and then over London Circuit into the car park, as I have referred to above (at [1]).
The genesis of that fight or brawl was not clear on the evidence and there were different versions of it.
The security guard described it as follows:
16.Male one [who appeared to be the man who punched the security guard] was with male two entering Hobart Place. Someone walked past him heading towards Uni Pub. He said something to them. They reacted aggressively and male one and the person began pushing and shoving each other.
17.People started to crowd around. There were at least eighteen people. I saw one female watching. The rest were males and they all started getting involved in the fight. I saw punching, kneeing and fly kicks. At this time Mitchell Lee, the General Manager of Uni Pub called the police to report the fight.
He gave no evidence of any punch or kick that Mr Lancaster delivered.
This was similar to the evidence of one of the staff members of the Uni Pub. He said the same “male one” (who had punched the security guard) walked along London Circuit meeting two groups of males when “words were exchanged” and voices got louder. He gave no evidence of any particular person punching or kicking. He only described “[o]ne of the males throw a punch at another”, “a male [came] running in from the group on the right and jumped with a flying knee strike at a person from the other group” and that “then it became a free for all”.
The General Manager, Mr Lee, saw a couple of males pushing and shoving but he did not identify them. He said that “the punches started being thrown” and that “[i]t became an all in brawl”.
Another witness, Mark Graham, described seeing two groups arguing, screaming and taunting each other. He then described the fight breaking out between the two groups and that it was “a brawl”. He said that it then moved over the road to the car park. He identified no particular people as involved nor that all the people at the scene were involved. He was concerned “that someone could have been seriously injured in the fight”. Mr Graham had accompanied Isaac Cregan, another witness, to the spot and the evidence of Mr Cregan was to similar effect.
Mr Cregan gave a statement to police. His evidence was:
4.I was about 100m away from Unipub when I saw about 15 blokes arguing on the London Circuit footpath.
5.One of the blokes arguing was my cousins [sic] boyfriend Dylan. His last name starts with JANC or something like that.
6.The argument escalated from both sides with no one backing down or trying to diffuse it.
7.I don’t know who started it but males from both sides of the argument started fighting. It was an all in brawl.
8.I did not see any person trying to break it up or pull their friends away. I didn’t want to get involved as I would have got hurt.
9.As the fight progressed the males moved across the road towards the car park. They were still fighting.
A further witness, Daniel Stippler, who was accompanied by five others, said that, after the two males had been ejected from the Uni Pub, Mr Stippler was part of a group which was involved in an argument with the males ejected and a further group of males who turned up. He said he walked away and tried to get his friends to come with him. He said that the interaction resulted in him and five friends facing about twelve other males, some distance from the Uni Pub. He described two very aggressive males, neither of whom appeared to be Mr Lancaster. He described being punched by someone but could not describe who had done so. He did not identify Mr Lancaster as a fighter.
A companion of this witness, Paul Hartwig, gave a somewhat different version, however, stating that he walked along London Circuit from the Uni Pub and then saw a group of his friends talking to about six people ten metres ahead of him, about fifty metres from the Uni Pub. He heard the two groups “mouthing off at each other”. He tried to break it up but no-one would leave. He saw some punching and wrestling and was hit in the head, but did not identify any particular person as his assailant.
Another companion, Nicholas Markakis, referred to the incident I have described outside the Uni Pub (at [19]-[22]), and he said that, as he was walking past the two males who had been ejected from the Uni Pub, they swore at him and his companions, being about ten to twelve males in the group. He did not identify which of these males said anything, though he stated that “they were all aggressive”. He identified one as “more aggressive”, but his description did not fit Mr Lancaster. He was trying to drag his friends away when he was punched in the jaw by, his friends later told him, the man whom he had identified as more aggressive. He then said punches were thrown by “everyone” but did not identify anyone in particular as punching.
A third companion, Dylan Stippler, brother of Daniel Stippler, also made a statement, though he was quite drunk and placed the time of the original incident at the Uni Pub at 12:00 pm midnight. He also put the fight at about ten metres from the Uni Pub. He identified two males involved in the fight, neither of whom was Mr Lancaster. He said:
8. Everyone started throwing punches.
9. I got hit from the side which knocked me over.
10. I got up and started hitting the male who had punched me.
11.I remember another male who was Caucasian, early 20’s, tall, skinny with thin moustache and short brown hair [not Mr Lancaster]. This male hit me a few times.
12.My friends and the other group were all fighting, punching each other. No one was trying to drag people away and everyone was just swinging punches.
13.The fight died down.
He did not identify Mr Lancaster.
Matthew Doblinger, a fourth companion, also gave a statement which placed the start of the incident outside the Uni Pub, when the two males who had been ejected and punched the security guard came over to him and “started arcing up”. They were joined by some other males, but Mr Doblinger and his friends walked away. He stated that, by this time, there were about ten males in the group who were “all fired up”. He referred to one of his group being punched and then another and he was later hit on the side of the face. He saw who hit him; it was not Mr Lancaster. He pushed the man and they both fell over. He got back on his feet but was hit again, but not by Mr Lancaster. He then ran across to the car park and later crossed Northbourne Avenue.
A woman, Stephanie De Smeth, who had been out with Mr Lancaster and his friends, also made a statement. She made no mention of Mr Lancaster being ejected from the Uni Pub or getting into a fight with the security guard there, which, in the circumstances, is odd if it had happened. She said, however, that she and Mr Lancaster were walking along London Circuit together when she saw a fight, she said about twenty metres from the Uni Pub. She saw some of her friends in the vicinity of the fight. She spoke with one of them, Fraser Kemp, and was then approached by “a male from the other group” who asked her what was going on. She told him she did not know.
She said that she had no recollection of any details of the fight. After some time, she noticed that the fight had moved across London Circuit to the car park. She said that Mr Lancaster “had been somehow involved as he was sitting in the car park along with several other people”.
Mr Kemp also made a statement. He worked in the same company as Mr Lancaster. He said that he and three friends walked out of the Uni Pub at the same time, with Mr Lancaster and two others ahead of them. Again, he did not mention Mr Lancaster having been removed from the Uni Pub or engaging in a fight with the security guard. He saw the brawl but did not see how it started. He saw Mr Lancaster fighting “another group”. He stood back from the fight, he said he did not want to fight. Indeed, he stopped another male getting involved.
Another of Mr Lancaster’s friends, Dylan Jancevski, also made a statement. He was, he said, “really drunk” by the time of the fight. He stated that he left the Uni Pub and ran into Mr Cregan, his girlfriend’s cousin. He started walking towards Hobart Place. He then stated:
7. I saw a group of about 7-8 males.
8.The males were picking on two little young guys. They were shoving them and getting in their face.
9.I walked over and said relax [sic].
10.One of the males started pushing me and then another joined in.
11.I saw my mates walk over.
12.The males were going off at me. I said something like ‘you’re a hero, what are you doing, just relax man’.
13.One male was pushing me and another male took a swing at me which I saw coming and ducked.
14.I fell on the ground and there were 3-4 blokes punching me in the head and body. I remember taking a good hit in the back.
15.I got up and started swinging at the males.
16.I saw Doug [Mr Lancaster] fighting a male one on one. Another male came and punched Doug in the back of his head knocking him to the ground.
17.I tripped over someone and when I got to my feet everyone had split up.
18.I followed the males over to the car park.
(c) The arrival of the police
After the telephone call to Police Operations made by Mr Lee, General Manager of the Uni Pub, a number of police attended the scene of the fight.
The principal police evidence was given by the informant, Senior Constable Geoffrey Hyde. In his statement, he stated that he received a message from Police Operations at about 1:35 am on 20 December 2014 about the fight and he drove to the location specified, by which time the fight had moved over the road to the car park. He saw two groups of males running across the car park, one behind and following the other.
In the second group was Mr Lancaster and a friend. They had their shirts off. Other police then arrived.
Senior Constable Hyde stated that he saw two males on the opposite footpath and he stopped the car and the other police officer in the vehicle spoke to them. They said to him, “Those guys attacked us”. The statement did not make it clear who was being referred to by the reference to “those guys”, considering that there were apparently two groups in the car park, but, in oral evidence, Senior Constable Hyde said that he was told it was the second group of males, those who stayed in the car park and included Mr Lancaster.
By this time, Senior Constable Hyde stated, the second group, which had approached the Vernon Circle side of the car park, had turned around, heading back across the car park.
Senior Constable Hyde left his partner speaking to the males on the footpath and walked to the car park. He approached Mr Lancaster and his companion. He then received a message from Sergeant Alexander Gibson, who had spoken to members of the first group of males, who were on the eastern side of Northbourne Avenue. The evidence did not take that any further.
Senior Constable Hyde then saw Constable Luke Johnston speaking to Mr Lancaster and Mr Jancevski. He saw Mr Jancevski starting to talk to another male, Lewis Holland. Mr Holland said, “I was throwing punches like bam, bam, bam”, while adopting “a wide stance and punching three times”.
Senior Constable Hyde cautioned Mr Holland and asked what happened. He was told, “I was just walking through the car park”. He also spoke to Mr Cregan, who said that he was walking past and saw Dylan Stippler fighting and tried to stop it. Senior Constable Hyde then spoke to Mr Graham, who said that, as he was walking, he saw a scuffle but did not know anyone involved.
He spoke again to Mr Holland, who said that he had walked out of the Uni Pub and had seen his friends fighting. He had tried to break it up. He was walking through the car park and “the blokes came up to them”.
Senior Constable Hyde stated that he had observed that Mr Lancaster had marks on his face and hands consistent with fighting. In his oral evidence, he described these as “red marks on his face and his fists”. He also stated that he formed the view that Mr Lancaster was moderately intoxicated, but that he was able to converse with him and that he understood directions.
Senior Constable Hyde formed the belief that Mr Lancaster, Mr Jancevski and Mr Holland had been engaged in “violent conduct”. He stated that he “observed other persons involved in the fight run into the City CBD”. He considered that, in order to avoid further violent conduct, he should give Mr Lancaster and the other two males a direction to “move on from the vicinity of the City entertainment precinct”.
He then gave the direction, but it specified an area which did not include the area in which Mr Lancaster was then located. Indeed, it specified an area some distance from where he was, making it impossible for Mr Lancaster to leave that area as he was not in it.
He said that he saw Mr Lancaster move south in the direction of City Police Station. He later saw him sitting on the edge of a planter box outside the City Police Station.
Sometime after this, Sergeant Gibson saw Mr Lancaster and his companion ahead of him on Alinga Street suddenly change direction and walk into Verity Lane. Sergeant Gibson followed them and stopped and spoke to them. He then contacted Senior Constable Hyde and requested him to attend, which he did.
When he arrived at Verity Lane, Senior Constable Hyde spoke to Mr Lancaster and his companion and asked them why they were there and Mr Lancaster said, “I wanted to get a drink of water”. Senior Constable Hyde then arrested Mr Lancaster for failing to comply with the direction to move on.
Other police witnesses gave evidence in their statements about these matters, but their statements were relevantly consistent, though mostly considerably briefer than the description given by Senior Constable Hyde.
The direction to move on
As noted above (at [9]), Mr Lancaster was acquitted of the charge of failing to comply with the direction to move on. With respect, that acquittal was entirely appropriate.
The direction had been given under s 4 of the Crime Prevention Powers Act, which relevantly provides:
(1)This section applies if there are reasonable grounds for a police officer to believe that a person in a public place has engaged, or is likely to engage, in violent conduct in that place.
(2)The police officer may direct the person to leave the vicinity of the public place.
The area which the direction required Mr Lancaster to leave was, in fact, a quite separate area from the place where the fight had occurred and where Mr Lancaster was spoken to by police. It was, in fact, an area bounded by Northbourne Avenue, London Circuit, Petrie Plaza and Bunda Street, the nearest part of which was probably 50 to 100 metres from where Mr Lancaster was when given the Notice.
The public place referred to in the section seems to me to be required to be the place where the violent conduct had occurred, that is, in this case, on London Circuit between University Avenue and Hobart Place and in the opposite car park, all areas not included in the area to which the direction applied.
The direction did not direct Mr Lancaster “to leave the vicinity of the public place”; indeed, he was, by the direction, quite able to remain in the public place and its vicinity where the violent conduct had taken place.
It was, therefore, not a direction under s 4 of the Crimes Prevention Powers Act, as the learned trial Magistrate correctly found.
The Magistrate’s Decision
The learned trial Magistrate, however, found Mr Lancaster guilty of fighting in a public place.
In the circumstances of the appeal, it is appropriate to set out the findings of the learned Magistrate in full. Her Honour’s reasons were as follows:
HER HONOUR: ... the defendant has pleaded not guilty to one charge that he, on 20 December, did fight with another person, being namely unknown persons, in a public place, London Circuit in Civic. There is sufficient evidence, overwhelming evidence, in my view, of the fact that the defendant was certainly involved in a fight with a person or person unknown in a public place over and above the various witness statements which identify to some extent the defendant, the observations that were not challenged of Constable Hyde.
As I say, when he saw him he was dishevelled, he had bruised knuckles, he was obviously involved in a fight. It’s quite obvious that he’s not the only one who was involved in this fight, there seem to have been quite a number of people involved, and I’m, not going to go through again and say how disturbing it is for people in this community to be constantly confronted by violence of young people. They’re killing each other because of their drunkenness and their stupidity and the actions that they engage in once they have far too many drinks onboard.
The disturbing thing is that they usually start drinking at home then move into Civic and then move from pub to pub, and the streets aren’t safe for decent people to even walk around and have dinner in Civic some nights when you see them hanging out of the pubs, and I say that because in my view it’s a serious offence. He’s not the only one who was involved, but he certainly was one who was unlucky enough to be caught, so maybe he should consider himself a little bit misfortunate in that regard, but it’s certainly not unjust that he was caught because he was there. He did fight and that’s the very basic aspect of the charge.
The issue of self-defence was raised, and I note, and I’ve already said the defendant doesn’t have to give evidence, but he gave no evidence, so it’s very difficult from a mixture of information contained in all these various statements for the court to be satisfied one way or the other, but I’m certainly satisfied that no issue of self-defence has been raised. He was at various times the aggressor, and if he was the victim that’s because he was the aggressor, and other people were aggressors and they were victims. Everybody was an aggressor and a victim at various times, and most of them were too drunk to even know what was happening.
As I said, I suspect that’s the reason the defendant hasn’t given any evidence, because he quite clearly doesn’t remember or may not remember what exactly happened on that particular night. The behaviour, the fighting, fighting people, punching out people, I mean everybody knows, there’s been so much in the news of late, and from many years ago. I remember many, many years ago not long after I came to Canberra, and that’s a long time ago, a young man was killed by a king hit, and this was one of the first shocking things that ever happened here in this town, at a nightclub outside of Civic which was then known as the Private Bin.
He was there out celebrating his 18th birthday, he was king hit, fell to the ground and smashed his head on a slab stone and died, and young men sadly have been dying ever since because of the dangerous behaviour that they engage in when they go out and get drunk, but it’s their choice. But I’m certainly satisfied that this defendant on this particular night fought in a public place, I’m satisfied beyond a reasonable doubt that he did and I find the offence proved.
It is important to note, too, that the learned Magistrate did engage extensively with counsel during submissions and, to some extent, it is appropriate to have regard to what her Honour there said. I have referred to one example above (at [24]).
In particular, on the issue of self-defence and Mr Lancaster’s participation in the brawl, her Honour had two relevant comments during defence counsel’s submissions. The first was as follows:
HER HONOUR: Out of the 20 exhibits, if there are 17 statements or 15 statements of accounts, they’re all different, they’re all a little bit different as to what people see and what people don’t see. ... I’m not going to find, and I don’t have to necessarily find, that your client was the one who started this brawl between 20 people. Why did he get involved at all in any of it at any part of it, and it’s quite obvious to me that he did become involved. He got involved in the fight. Now, he has chosen not to give any evidence, and he doesn’t have to give any evidence, he doesn’t have to prove that he didn’t do something, the prosecution has to prove that he did, but it is really difficult to raise self-defence when you have 15 statements that all say something different that all identify different people.
Everybody here, apart from perhaps the bouncers, appears to be seriously intoxicated, who knows what’s happening. I suspect the reason he can’t give any evidence is because he doesn’t really remember what happened, but if he’s not going to get into the witness box and say, “I acted in self-defence, I did this because they were attacking me or attacking my friends, or doing this,” then, you now, to push a self-defence argument on the basis of contradicting statements I’m just letting you know now is going to be a difficult task for you ...
The second passage was as follows:
HER HONOUR: Now you’re switching it from defending himself, and there’s nothing in any of this to say that he’s defending himself or acting in self-defence, defence of another. Just looking at that one statement, Mr Jancevski’s statement, “I got up and started swinging at the males.” It was quite disturbing reading all of this, can I tell you, through the luncheon adjournment. Then number 16:
I saw Doug fighting a male one-on-one. Another male came and punched Doug in the back of his head knocking him to the ground. I tripped over someone.
How from that can you extrapolate that your client went in to help Mr Jancevski? I don’t accept that. He doesn’t say that, “He came in to try to help me and was pulling these males off me.” That’s not in there. He said, and this when he’s drunk and stupid, can I say, after he admits to being drunk – and I don’t know which one of them admits to starting drinking at 2 o’clock in the afternoon and being really drunk by the time they even got into Civic – but this one says, “I saw Doug fighting a male one-on-one.”
There’s nothing there to suggest defence of another, so if you’ve got another statement to take me to please do, but I certainly reject that out of Mr Jancevski’s statement, he was too drunk to know what he was doing, that there’s anything about your client coming in to help him, so please take me to another one. You’re the one saying that he acted in self-defence or defence of another.
The Appeal
The Notice of Appeal originally raised two grounds of appeal. It was, however, amended to conform with the conduct of the appeal. The Amended Notice of Appeal pleaded five grounds of appeal as follows:
(a)The finding of guilt was contrary to the evidence and otherwise unsafe and unsatisfactory.
(b)The Learned Magistrate impermissibly drew an adverse inference from the defendant’s failure to give evidence.
(c)Her Honour gave insufficient reasons for her decision.
(d)Her Honour misapplied the law in relation to self defence.
(e)Her Honour took into account irrelevant considerations in determining the appellant’s guilt.
Consideration
Despite the terms of the Amended Notice of Appeal, the real issue in this appeal centred on the question of self-defence and, as a subsidiary to that, the adequacy of the reasons for the findings made by the learned Magistrate.
There is no reasonable basis for challenging the findings that there had been a brawl on the footpath of London Circuit along from the Uni Pub, approximate to Hobart Place, and which spilled over to the car park outside the Magistrates Court.
Nor can there be a serious challenge to the finding that Mr Lancaster was involved in that brawl in some way. There was evidence, indeed, the direct evidence of two of his friends, Mr Jancevski and Mr Kemp, that he was involved in the fighting and Senior Constable Hyde saw marks on him consistent with that finding. This was consistent with inferences that could reasonably be drawn from other statements, such as that of Ms De Smeth.
Self-defence
Both parties accepted that, if Mr Lancaster was acting in self-defence, he would not be guilty of the offence of fighting in a public place. While I am happy to accept that as the basis on which the appeal is considered, I make no final finding about that issue as it was not argued before me. It has an apparent persuasive validity, but my decision cannot be taken as a formal finding of law to that effect.
Turning to the issue of self-defence, then, the way in which a court must approach it is well-known. The High Court has set it out clearly the relatively simply the test to be applied when, in Zecevic v Director of Public Prosecutions (Vic) (1987) 162 CLR 645 at 661, Wilson, Toohey and Dawson JJ said:
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 and is not limited to cases of homicide.
Self-defence, however, is not a matter for a defendant to prove; the prosecution bears the onus of proving beyond reasonable doubt that the question posed by the High Court could not be answered in the affirmative. That is to say, if the evidence shows that it is open to be found that there is or could be an affirmative answer to the question posed by the High Court, then the prosecution will not have proved beyond reasonable doubt that Mr Lancaster was not acting in self-defence.
There must, however, be some evidence that raises the issue of self-defence. That is to say, the defendant bears an evidentiary onus: R v Youssef (1990) 50 A Crim R 1 at 3. In R v Bonnick (1978) 66 Cr App R 266 at 269, Stephenson LJ, Milmo and Peter Pain JJ in the UK Court of Appeal explained:
When is evidence sufficient to raise an issue, for example, self-defence, fit to be left to a jury? The question is one for the trial judge to answer by applying common sense to the evidence in the particular case. We do not think it right to go further in this case than to state our view that self-defence should be left to the jury when there is evidence sufficiently strong to raise a prima facie case of self-defence if it is accepted. To invite the jury to consider self-defence upon evidence which does not reach this standard would be to invite speculation.
This approach was adopted in this Court by Gray J in R v Rao [2008] ACTSC 17 at [90]. His Honour there went further, at [93], and accepted what was said in R v Youssef at 3, finding:
that there must be evidence from which it would be inferred that there is a reasonable possibility that the act of the accused was of such a nature [i.e. inter alia, done in self-defence].
His Honour further accepted in R v Rao at [94] that, if the evidence reaches this level, it may not be necessary for an accused or a defendant to give evidence. While, in many cases, it may be at least desirable, if not necessary, for a defendant to give evidence of his or her belief and the basis for it, that is clearly not necessary if other evidence properly raises the issue including, perhaps especially, the evidence adduced by the prosecution or adduced by cross-examination of witnesses called by the prosecution.
Given the problems with the evidence in this case – the paucity of direct, clear evidence of the commencement of the fight and its progress – it is worth noting that a defendant who is an initial aggressor may, thereafter, act in self-defence in appropriate circumstances. Thus, it was further pointed out in Zecevic v Director of Public Prosecutions (Vic) at 663:
Where an accused person raising a plea of self-defence was the original aggressor and induced or provoked the assault against which he claims the right to defend himself, it will be for the jury to consider whether the original aggression had ceased so as to have enabled the accused to form a belief, upon reasonable grounds, that his actions were necessary in self-defence. For this purpose, it will be relevant to consider the extent to which the accused declined further conflict and quit the use of force or retreated from it, these being matters which may bear upon the nature of the occasion and the use which the accused made of it.
This has been further explained by the Court of Appeal in Massey v The Queen [2013] ACTCA 5 at [104], where the Court said:
InR v Nguyen(1995) 36 NSWLR 397 at 407 Priestley JA, with whom Smart and Ireland JJ agreed, said that self-defence, as a justification or excuse, for killing had a starting point of a person who, not wanting to fight, was attacked or threatened with attack in a way that lead him or her to believe that self-defence was necessary to protect him or her from harm. He continued:
Such situations do not include those where what is going on is a fight which the fighters have willingly joined in, whether to carry on or settle a quarrel, or for some other reason. Once such a fight is under way, the person who has, ex hypothesi, got into it for reasons other than self-defence, may often, because of the nature of fighting, be suddenly faced with injury or death, and to prevent that, self-defence in one sense will be necessary, which may lead to the injury or death of the opponent. That sort of self-defence, if it ends in the killing of the opponent, is not the sort of self-defence that the Crown must negative in showing (when the issue arises) that the killing has been unlawful. The last sentence may need qualification in some circumstances, as for example, if a fight is going on according to broadly understood conventions intended to prevent serious harm and one fighter suddenly breaks the conventions by producing a lethal weapon. That kind of possible qualification does not arise in the present case.
(emphasis in original)
Of course, these principles have to be applied to the actual charge before the court. In the case of Zecevic v Director of Public Prosecutions (Vic), Massey v The Queen and R v Nguyen (1995) 36 NSWLR 397, the offence was murder. Such an offence involves a discrete act or acts.
The offence of fighting in a public place is not so limited. It includes a number of acts and, perhaps, statements. Thus, having regard to the concept of an “original aggressor” as referred to in Zecevic v Director of Public Prosecutions (Vic), such a person would, in my view, be fighting. If it was in a public place, then the offence proscribed by s 391 of the Crimes Act would be committed. That he or she thereafter ceased to be an aggressor and became a victim of aggression by another would not negate the earlier commission of the offence of fighting.
It is clear from R v Nguyen that persons who engage consensually in a fight cannot rely on self-defence unless the conduct of the fight goes beyond what may be contemplated by the consent. Consent may be a somewhat hypothetical concept, for it is unlikely to have been articulated. Where, however, opposing parties are acting aggressively, taunting each other and what is colloquially known as “spoiling for a fight”, consent may be inferred.
If the actions of a participant in such a fight then become defensive because what was contemplated by the consent has been exceeded, such as with the production of a weapon, that may afford him or her justification, by way of self-defence, to specific acts then taken which may otherwise constitute offences, such as homicide, assaults, serious or not, or other offences. It may also mean that, if the justification of self-defence is then applied, he or she was no longer fighting – that the offence here involved was no longer being committed, that is he or she was earlier fighting, committing that offence, but may have ceased committing the offence once he or she was protecting himself or herself or someone else (self-defence including, of course, defence of another as well as defence of self) against the attacks then made on them. This, of course, assumes, as I have done above (at [85]), that self-defence applies to negative a charge of fighting in a public place.
As can be seen from the extracts of the reasons for decision of the learned Magistrate set out above (at [77]-[79]), there was not an analysis of these issues in any detail.
On the other hand, the learned Magistrate did advert to the possibility of the changing situation of a person who was involved in such fighting, referring, as her Honour did, to Mr Lancaster being:
at various times the aggressor, and if he was the victim that’s because he was the aggressor and other people were aggressors and they were victims. Everybody was an aggressor and a victim at various times ...
While this was rather inelegantly expressed, it was part of an ex-tempore decision and it seems to me clear what was meant, which is the analysis I have given.
In my view, there was no evidence that raised the issue of self-defence so far as Mr Lancaster’s participation in the fight was concerned.
The highest the evidence came was that of Mr Jancevski, which is relevantly set out in full at [53]. This evidence, however, did not go so far as to ground a reasonable inference that Mr Lancaster was fighting in the belief that it was reasonably necessary for him to engage in the actions he took in order to protect himself or anyone else. There is a speculative possibility that this is a scenario that could be the situation, but I do not consider it a reasonable possibility.
It shows that there was some “shoving ... and getting in [the] ... face of some little young guys”. It does not show that it was necessary to punch anyone to protect those “young guys”. It does not suggest or imply that Mr Lancaster was part of this response or, indeed, anywhere near it when it began.
He suggested there to be then an escalation whereby Mr Jancevski was approached aggressively and someone threw a punch at him which missed him when he ducked. It does not indicate that Mr Lancaster did, or had to, attack anyone to protect Mr Jancevski. If he could have said that, he was not called to give oral testimony to adduce that evidence.
Indeed, his description of the fight seems to show that Mr Jancevski was able to give as good as he got. The description is of something of a brawl in which Mr Lancaster was involved, consistently with the other evidence.
I have some hesitation in accepting Mr Jancevski’s evidence, in any event, because of his intoxication and the significant differences between it and the evidence of the other witnesses.
Thus, for example, the evidence of the entirely sober security guard, as set out above (at [38]), showed quite a different genesis to the fight, that it started with abuse of one party by another. This was more consistent with the evidence of the other staff member, also above (at [40]), where he suggested that the two groups fought, not that one group directed aggression particularly at the other. This evidence is consistent with the evidence of Mr Graham, which I have also summarised above (at [42]), and that of Mr Cregan, part of which I also set out above (at [43]).
Mr Hartwig, perhaps associated with the other group, gave a similar version, which I also summarised above (at [45]). This was similar to the version given by Mr Markakis, referred to above (at [46]).
Mr Doblinger, whose evidence is summarised above (at [49]), somewhat like Daniel Stippler, whose evidence is summarised earlier (at [43]), seemed to describe the aggression between the parties as having started with the earlier fight outside the Uni Pub.
Given the consistency of this evidence with that given by the staff of the Uni Pub, I prefer the evidence that suggests there was an aggressive confrontation between two groups, probably starting outside the Uni Pub and moving up to Hobart Place and which became violent and ended as a brawl. The aggression was initially verbal and then physical and I do not consider that it is sufficient to raise the issue of self-defence. These descriptions would negative the issue of self-defence.
Nevertheless, even if Mr Jancevski’s evidence is taken at its highest, without any oral evidence supplementing his written statement, it does not seem to me that it meets the relevant threshold to require any prosecution to negative self-defence.
It seems to me that two groups of males, at least some of whom, probably at least the majority, if not all, were well affected by alcohol, became aggressive and verbally abusive to each other and that erupted into a fight, called by a number of witnesses, a brawl. I am satisfied that Mr Lancaster participated in the brawl. It is not possible to say who started the physical violence, but, in my view, that does not matter. The verbal aggression, called by some witnesses “taunting”, was the real start of the aggression and, once it was followed by physical violence, that was, in effect, a continuation of the confrontation. The fight that followed such taunting was engaged in consensually in the relevant sense.
This is consistent with the comment from the judgment of Wilson, Toohey and Dawson JJ in Zecevic v Director of Public Prosecutions (Vic) at 663, to which I have referred above (at [90]).
I do not consider that one can micro-analyse such an event, by ignoring the initial verbal aggression, and then say that the first punch entitles the other party or parties to rely on self-defence when they join in the brawl. That is too late. The initial aggression has, in effect, amounted to a consent to fight. The alternative is to cease the verbal aggression and to leave the area. In that event, if the other party then attacked, it may have been different. There was no suggestion on the evidence that this happened.
In my view, this ground of appeal is not made out.
Inadequate Reasons
A further challenge by Mr Lancaster to the proceedings in the Magistrates Court was that the reasons of the learned Magistrate were inadequate. Both parties accepted that the Court of Appeal had set out the obligation to give adequate reasons in O’Brien v Noble [2012] ACTCA 13 at [20] as follows:
A trial judge’s obligation to give reasons for his or her decision is well recognised. For present purposes the authorities can be summarised as follows:
(a) Judges at first instance, as part of the exercise of their judicial office, have a duty to state the findings and reasons for decision adequately to enable a proper understanding of the basis on which the verdict has been reached. Failure to fulfil this judicial obligation may constitute an error of law: Pettitt v Dunkley[1971] 1 NSWLR 376 at 382 per Asprey JA.
(b) An appeal court should not be left to speculate from collateral observations as to the basis of any particular finding: Soulemezis v Dudley (Holdings) Pty Ltd(1987) 10 NSWLR 247 at 280 per McHugh JA.
(c) Although the obligation does not require the spelling out of every detail of the process of reasoning, the reasons must resolve critical points in contest and facilitate appellate review: Kendirjian v Ayoub[2008] NSWCA 194 at [169] per McColl JA.
(d) Awards for damages should not be arrived at intuitively, but a process of methodical consideration must be undertaken in: Gamser v Nominal Defendant[1977] HCA 7; (1977) 136 CLR 145 at 149, Stephen J said:
[R]easons should condescend to some degree of particularity concerning the process by which the particular award of damages has been arrived at
...
An award of damages is not, nor should it ever be, arrived at intuitively.
(e) Merely stating a preference for particular evidence as opposed to a competing body of evidence is not sufficient. In Goodrich Aerospace Pty Ltd v Arsic [2006] NSWCA 187; (2006) 66 NSWLR 186 at 191; [28], Ipp JA said:
It is not appropriate for a trial judge to merely set out the evidence adduced by one side, then the evidence adduced by another, and then assert that having seen and heard the witnesses he or she prefers or believes the evidence of one and not the other. If that were to be the law, many cases could be resolved at the end of the evidence simply by the judge saying: ‘I believe Mr X but not Mr Y and judgment follows accordingly’. That is not the way in which our legal system operates.
These general comments, however, have to be applied practically and in the context of the relevant proceedings. Thus, in Brooks v McShane (1996) 89 A Crim R 195 at 208, the Court said of a Magistrate dealing summarily with proceedings:
The learned magistrate had a duty, as part of the exercise of his judicial office, to adequately state the findings of fact and reasons for his decision for the purpose of enabling a proper understanding of the basis upon which the findings of guilt were reached: see Pettit v Dunkley [1971] 1 NSWLR 376 at 382. That duty did not require laborious attention to detail and minute explanations of every step in the reasoning process that led to the eventual conclusion that the respective charges were proved. But the duty ‘at least obliges a judge to state generally and briefly the grounds which have led him or her to the conclusions reached concerning disputed factual questions and to list the findings on the principal contested issues’: see Soulemezis v Dudley (Holdings Pty Ltd (1987) 10 NSWLR 247 at 259.
After considering the relevant authorities, I concluded in O’Connell v McMennemin [2014] ACTSC 112 at [77]:
As many of these decisions make clear, the reasons, especially in a summary jurisdiction do not need to be elaborate or lengthy, though they must articulate the essential ground or grounds on which the decision rests. A detailed explanation may not be required, but some explanation is required. Thus, whether there is an error of law will depend on the circumstances of each case.
The consequences of a failure to give proper or any reasons would normally appear to be a requirement for a retrial. In this case, however, the trial was conducted almost entirely on statements and there was little controversial oral evidence so that the usual deference to the trial judge is not required and this Court is in as good a position to determine the case as the trial court.
Nevertheless, it is incumbent upon a court to provide adequate reasons for its decision. The question then is whether adequate reasons were given.
Taking the ultimate expression of those reasons as set out above (at [77]), it is likely that these would be regarded as inadequate if they stood alone.
Her Honour addressed the issue of self-defence and correctly noted that Mr Lancaster did not give evidence but that this was not necessary. Her Honour also correctly pointed out that this made it more difficult to ascertain what he believed, though it would not be impossible. Her Honour then found that Mr Lancaster was an aggressor at various times, though he was obviously a recipient of physical violence (which is what I understand her Honour meant by calling him also “a victim”). That is, as I have indicated, a correct statement of the position.
There was direct evidence of Mr Lancaster’s participation in the brawl, as I have mentioned above (at [52]-[53]), but no evidence of how he became initially involved. Having regard to the description of how the brawl commenced, with verbal aggression or taunting, it does not leave open a reasonable possibility that Mr Lancaster, especially in an intoxicated state as he was, only entered the fight in order to defend himself or another.
Her Honour did not conduct an evaluation of the evidence in detail, as I have done, or analyse the situation in the terms I set out earlier (at [111]). That is not necessary, so long as her Honour addressed the relevant issues and her reasons were able to be understood.
Taken with the earlier comments of her Honour, as set out above (at [77] and [79]), however, it is clear that her Honour did address the relevant issues and make appropriate findings. Her Honour addressed the evidence most favourable to Mr Lancaster, indeed on which much of the appeal was based, namely the statement of Mr Jancevski. Her Honour found, as I have done, that it did not discharge the evidential onus imposed on Mr Lancaster.
In my view, when her Honour said, “I’m certainly satisfied that no issue of self-defence has been raised”, that must mean that Mr Lancaster has not discharged the evidential onus on him to raise an issue on the evidence that a true question of self-defence was raised. It is only then that the prosecution bears an onus to negative the question.
In my view, the reasons of the learned trial Magistrate, taken as a whole, were adequate. It is a counsel of perfection to say that her Honour should have repeated the earlier analysis she gave during submissions or expressly referred to it in her final reasons, such as by adding appropriately “for the reasons I have addressed in argument”. I am prepared, in the circumstances, to read them in that way. Mr Lancaster can have no doubt as to the reasons why he was found guilty.
This ground is not made out.
Unsafe and Unsatisfactory
Although the hearing of the appeal primarily addressed the grounds with which I have dealt above, none of the pleaded grounds were abandoned and, so far as they remain alive, it is appropriate that I should mention them and evaluate them, albeit briefly. See Christie v The Queen [2005] WASCA 55 at [221].
The first such ground, which was addressed in the written submissions, was that the decision of the learned trial Magistrate was unsafe and unsatisfactory.
It is unclear whether such a ground is available in an appeal from a conviction in the Magistrates Court. In Upton v Cowling [2001] ACTSC 116 at [5], Miles CJ held that it was not.
His Honour had relied on a passage from Massey v The Queen [2001] FCA 1558 where the Full Court said, inter alia, at [41]-[42]:
41 The “unsafe and unsatisfactory” ground is concerned with the soundness of a verdict which, of its nature, in the case of a jury trial, cannot be scrutinised for its validity in terms of reason and logic. The inscrutable verdict of a jury contrasts with a finding of guilt made by a trial judge which must be supported by reasons exposed in a judgment. In civil cases, where an appeal court is in as good a position to draw inferences from primary facts found by the trial judge, the appeal court will substitute its own findings based on those inferences for the findings of the trial judge: Warren v Coombes (1979) 142 CLR 531.
42 It appears to us, for the purpose of the present appeal, that it is unnecessary to decide whether s 24 of the Federal Court Act requires this Court to choose between an “unsafe and unsatisfactory” approach, or a Warren v Combes approach, in an appeal against conviction by a judge sitting without a jury. If the latter approach were taken, we would not decide that the trial judge fell into any error of law or fact, for the reasons already given.
The issue does not seem to have been addressed in this jurisdiction since then in any depth. In Mapham v Bannerman [2013] ACTSC 157 at [58]-[60], Penfold J said:
58.Miles CJ’s decision in Upton v Cowling to dismiss the appeal was appealed to the Full Court of the Federal Court. That Court also dismissed Mr Upton’s appeal (Upton v Cowling [2002] FCAFC 134), but after a substantive consideration of his claims of error on the part of the Magistrate. No comment was made on Miles CJ’s rejection of “unsafe and unsatisfactory” as a possible ground of appeal from a Magistrate’s decision.
59.I have found very few decisions on appeals from the ACT Magistrates Court raising “unsafe and unsatisfactory” as an appeal ground either before or since Massey v The Queen and Upton v Cowling were decided (although I have dealt with one such appeal myself, Bullman v Debnam [2010] ACTSC 97, where the ground was relied on by the appellant, albeit unsuccessfully, without opposition from the respondent). On the other hand, it seems that the availability of an “unsafe and unsatisfactory” ground of appeal from a decision of a Magistrate has been regularly assumed in various other Australian jurisdictions; (Ross v Munns [1998] NTCA 33, per Thomas J, Priestley J; Rasoolifard v Nicol [2001] WASCA 180 at [24] and [25]; Anderson v Davis [2009] WASC 38 at [78] to [80]; Yassir v Bone [2010] QDC 11 at [154]; Ibrahim v Police [2012] SASC 231 at [142]).
60.In the absence of any statutory exclusion of such a ground in the ACT, it is hard to see why a common law ground of appeal apparently accepted in a number of other Australian jurisdictions should not also be available in this jurisdiction. This is especially so given that the comments of the Full Federal Court in Massey v The Queen about the availability of the appeal ground in relation to a decision of a judge alone (at [42], quoted at [57] above) were by no means as definitive as Miles CJ suggested in Upton v Cowling (at [56] above).
As the appeal is a re-hearing, it may be that the review necessary for that will equate to the evaluation of the ground that a conviction is unsafe and unsatisfactory. See Martin v Department of Transport, Energy and Infrastructure [2010] SASC 141 at [36]-[39].
The grounds of appeal that a verdict of a jury is unsafe and unsatisfactory is to be approached in the way the plurality of the High Court explained in M v The Queen (1994) 181 CLR 487 at 493, namely:
Where, notwithstanding that as a matter of law there is evidence to sustain a verdict, a court of criminal appeal is asked to conclude that the verdict is unsafe or unsatisfactory, the question which the court must ask itself is whether it thinks that upon the whole of the evidence it was open to the jury to be satisfied beyond reasonable doubt that the accused was guilty.
It may be that the re-hearing requires a not dissimilar assessment of the evidence as there stipulated.
In this case, I have already generally addressed the evidence and the ways in which I consider it should be approached.
I would not rely on the evidence of Mr Jancevski, especially as to the genesis of the fight in which Mr Lancaster was involved or as to how Mr Lancaster became involved. In my view, the weight of the evidence, especially as it is corroborated by the evidence of the staff of the Uni Pub, who were not affected by alcohol, shows that the two groups became verbally aggressive, actions that would be provocative, and that this led to physical violence in which, undoubtedly, Mr Lancaster engaged. I consider that, in any event, the evidence of Mr Jancevski must be approached with considerable caution because of his admitted state of drunkenness. I also consider that the evidence of Mr Jancevski was not ultimately supportive of the challenge to the conviction.
The evidence that I prefer and all the evidence satisfies me that the conviction was neither unsafe nor unsatisfactory.
Adverse inference as to the failure to give evidence
The second such ground was that the learned Trial Magistrate impermissibly drew an adverse inference from the failure of Mr Lancaster to give evidence.
As a general principle, the failure of an accused person to give evidence cannot be a relevant matter in criminal proceedings and, indeed, there are strict limits on what a trial judge can say to a jury about such a matter.
In Azzopardi v The Queen [2001] 205 CLR 50 at 64, Gaudron, Gummow and Kirby and Hayne JJ said:
The fundamental proposition from which consideration of the present matters must begin is that a criminal trial is an accusatorial process, in which the prosecution bears the onus of proving the guilt of the accused beyond reasonable doubt. It is, therefore, clear beyond doubt that the fact that an accused does not give evidence at trial is not of itself evidence against the accused. It is not an admission of guilt by conduct; it cannot fill in any gaps in the prosecution case; it cannot be used as a make-weight in considering whether the prosecution has proved the accusation beyond reasonable doubt. Further, because the process is accusatorial and it is the prosecution that always bears the burden of proving the accusation made, as a general rule an accused cannot be expected to give evidence at trial.
(Footnotes omitted)
See also HML v The Queen (2008) 235 CLR 334 at 438; [303] and Dyers v The Queen (2002) 210 CLR 285 at 292, 305, 328; R v RPS (2000) 199 CLR 620 at 632-3; [27]-[29].
This general principle can give way to other considerations from time to time. In Weissensteiner v The Queen (1993) 178 CLR 217, for example, the High Court held that, in the circumstances of that case, the failure of the accused to give evidence was very relevant.
In this case, the learned trial Magistrate did make reference to the failure of Mr Lancaster to give evidence. Indeed, her Honour did so more than once.
An important issue, however, was the question of self-defence. In the consideration of such a question, a defendant has an evidential burden which frequently is sought to be discharged by the evidence of the defendant himself or herself.
As I have noted above (at [90]) that is not necessary, but it can be more difficult for the burden to be discharged without it. So much is a matter of general common sense. To mention it, however, is not to rely on that fact impermissibly.
A careful reading of her Honour’s comments make it clear that she was acutely aware that Mr Lancaster had no obligation to prove anything at all. Her Honour said as much. Her comment about Mr Lancaster not giving evidence was no more than a recognition of the fact of the evidential onus on the defendant and of the difficulty for a decision that the absence of that evidence may bring.
A careful consideration of her Honour’s words does not lead to the conclusion that her Honour impermissibly relied on the absence of evidence given by Mr Lancaster for an improper purpose. Her Honour, in my view, did not breach the general prohibition outlined by the High Court in decisions such as Azzopardi v The Queen.
Taking account of irrelevant considerations
The Amended Notice of Appeal pleaded that her Honour took into account irrelevant considerations in determining the guilty of Mr Lancaster, but did not particularise the irrelevant consideration. Neither the written submissions nor the oral submissions of counsel for Mr Lancaster addressed this point.
The respondent’s submissions proceeded on the basis that the irrelevant considerations were the subject of the learned trial Magistrate’s references to unrelated assaults, being what her Honour said were other acts of violence by other young people more generally.
While it seems to me to be inappropriate for a court to dilate on any perceived general lawlessness in the community when considering the decision on whether to convict an offender or not (it being otherwise on sentencing in proper circumstances), it does not seem to me that her Honour used any such comment in the process of assessing the evidence or coming to a finding on the issue of whether Mr Lancaster was guilty or not, much less in an impermissible way. It would have been better had her Honour not have said it, but it did not improperly infect her reasoning or her decision.
I see no substance in this ground of appeal.
Conclusion
There was no appeal from the sentence, an order under s 17 of the Crimes (Sentencing) Act.
I have found that none of the grounds of appeal have been made out.
The appeal must, accordingly, be dismissed. In accordance with what I said in Hall v CL (No 2) [2015] ACTSC 294 at [19], I shall confirm the orders of the Magistrates Court. I shall hear the parties on any consequential orders.
| I certify that the preceding one hundred and fifty-five [155] numbered paragraphs are a true copy of the Reasons for Judgment of his Honour Justice Refshauge. Associate: Date: 31 March 2016 |
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