Lever v Ilievski
[2015] ACTSC 103
•8 May 2015
SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
Case Title: | Lever v Ilievski |
Citation: | [2015] ACTSC 103 |
Hearing Date(s): | 4 March 2015 |
DecisionDate: | 8 May 2015 |
Before: | Burns J |
Decision: | The appeal will be dismissed. |
Category: | Principal Judgment |
Catchwords: | CRIMINAL LAW – Particular Offences – offences against the person – assault occasioning actual bodily harm. APPEAL – Appeals From and Control Over Magistrates – whether the finding of guilt was unsafe and unsatisfactory – whether the Magistrate erred in not applying the correct test for self defence – whether the Magistrate misdirected himself as to the use of good character – whether the sentence was manifestly excessive – appeal dismissed. |
Legislation Cited: | Crimes Act1900 (ACT) s 24 Criminal Code 2002 (ACT) ss 31, 33 |
Cases Cited: | Dal Cortivo v The Queen (2010) 204 A Crim R 55 Gibbs v Willis [2013] ACTSC 26 |
Parties: | Cameron Lever (Appellant) Christopher Ilievski (Respondent) |
Representation: | Counsel Mr P Edmonds (Appellant) Mr J Walker (Respondent) |
| Solicitors Paul Edmonds Solicitor (Appellant) Director of Public Prosecutions (Respondent) | |
File Number: | SCA 96 of 2014 |
Decision under appeal: | Court/Tribunal: ACT Magistrates Court Before: Special Magistrate Cush Date of Decision: 17 October 2015 Case Title: Ilievski v Lever Court File Number: CC13/10395 |
Burns J:
Background
On 17 October 2014, the appellant was convicted after a contested hearing in the ACT Magistrates Court of one charge of assault occasioning actual bodily harm contrary to s 24 of the Crimes Act1900 (ACT). Upon conviction, a Good Behaviour Order for a period of 12 months was imposed.
By an Amended Notice of Appeal, the appellant appeals from the finding of guilt and the penalty imposed on the following grounds:
(a)the finding of guilt was unsafe and unsatisfactory;
(b)the Magistrate erred in not applying the correct test for self defence;
(c)the Magistrate misdirected himself as to the use of the appellants good character; and
(d)the sentence was manifestly excessive.
At the hearing of the appeal, the appellant abandoned the appeal against sentence, which was clearly unsustainable in any event.
For the reasons I will give, the appeal must be dismissed, and the conviction and sentence imposed by the Magistrate confirmed.
The hearing before the Magistrate
The charge arose out of an incident which occurred early in the morning of 25 August 2013 at a fast food restaurant in Civic. The appellant and his male companion entered the restaurant as the complainant and his friends, including two females, were leaving. The Magistrate found that the appellant made a derogatory remark or remarks towards the group including the complainant. A verbal altercation then occurred between the complainant and the appellant. The Magistrate was satisfied that the complainant suggested to the appellant that they “go outside”, either orally or by a gesture. There was also some pushing between the complainant and the appellant. The complainant moved away from the appellant, but then returned in response to a further comment made by the appellant. The complainant had food in his left hand, and his right hand was not clenched into a fist. The Magistrate was satisfied that the appellant then moved forward into a fighting stance and struck the complainant in the face. The complainant fell to the ground and the appellant continued his attack. The incident was recorded on CCTV, so that the Magistrate was able to view and review the incident in its entirety, although there was no sound recording.
The Magistrate gave the following description of the relevant events as depicted on the CCTV recording:
The CCTV, to me, shows the following: that something was said to the complainant which made him stop and turn around. He came back about five paces close to the defendant, he remonstrated with him for a number of seconds. He was, at that time one would say, in his face. The defendant was telling him to leave, to go, if I accept his actions of the hand, which I do. The defendant then pushed the complainant. The defendant’s friend pushed the complainant. The complainant raised both his hands. There was some talk between the two of them. The complainant puts his hand out again in respect to the defendant pushing him first. The complainant may (sic) something like, “Come outside” and gestures with his hands, but he does so as he walks away. The complainant then comes back in response to apparent comments. The defendant moves away from the counter area towards the complainant. The defendant then faces him and pushes him. The complainant moves away. The complainant has his right hand across his chest, he has food in his left hand. He is not in a position to strike. My observations are that his fist was not clenched. The defendant moves forward and takes a fighting stance. The defendant strikes the complainant in the face. The complainant stumbles backward. The defendant comes forward, at least attempting to strike again. The complainant falls to the ground. At that time, the defendant grabs the complainant around the head and chin area and seems to shake his head violently. Mr Foley strikes the [complainant] at or shortly before this time and the defendant at the time is shaking and grabbing at the complainant’s head, dragging him along the ground as the head seems to be thrashing from side to side.
Having viewed the CCTV footage on a number of occasions, I am satisfied that this is an essentially accurate description of the events as shown on that footage.
The appellant gave evidence before the Magistrate that, immediately before he struck the complainant, the complainant said to him, “I’m going to smash you, cunt”. The Magistrate did not accept the appellant’s evidence that this was said, as, in a prior recorded interview with police, the appellant had made no mention of any such alleged statement by the complainant. When asked by police in that interview whether the complainant had made any threats to him, the appellant said, “I assume so, I think so, but like I said, I’m hazy on specifics”. In his evidence before the Magistrate, the appellant sought to explain differences between his statements in the interview with the police and his evidence on the basis that he was tired when he participated in the interview with police. That interview took place some weeks after the incident of 25 August 2013, and the Magistrate did not accept the appellant’s explanation for the apparent discrepancies between what he said to police in the interview and what he said at trial about this incident. In my opinion, the Magistrate was entitled to reject the explanation given by the appellant for these discrepancies, particularly noting that the appellant made no complaint to police at the time of the interview that he was tired. The Magistrate also noted that it was not suggested to the complainant in cross-examination that he had said those words to the appellant, and that the appellant’s friend, Adam Foley, who was with him that night and gave evidence for the prosecution, did not give evidence of having heard those words. The Magistrate also noted that it was not suggested to Mr Foley in cross examination that the complainant had said those words.
The Magistrate assessed the complainant as “a reasonable witness”. It is clear that he did not form the same opinion of the appellant, particularly taking into account the significant differences between the appellant’s account of events to the police and his account of events in his evidence.
In his evidence, the appellant essentially argued that he had acted in self defence. The Magistrate, in considering whether the prosecution had disproved self defence, was clearly alert to the proposition that he was required to consider the evidence of the appellant’s intoxication at the time of the incident on 25 August 2013. There was contradictory material before the Magistrate on the issue. When spoken to at the scene by police, he was observed to be cordial, polite, calm and rational, and able to express his thoughts clearly. The police officer who spoke to him said he had a very coherent conversation with the appellant and he did not think that the appellant was greatly affected by alcohol. In his interview with police, the appellant on a number of occasions told police that he did not have a good recollection of the events because he was “fairly intoxicated” or pretty intoxicated”. In contrast, in the proceedings before the Magistrate, the appellant professed to have a good recollection of events and denied any significant intoxication. He told the Magistrate that he was intoxicated, but his judgment was not impaired. He gave the Magistrate a detailed account of events and of his thought processes during the physical attack on the complainant. This may be contrasted with his professed lack of memory in the interview with police. While the Magistrate made no specific finding about the level of the appellant’s intoxication, he observed that the evidence was “somewhat consistent with a situation where someone who is intoxicated misreads the cues”.
Consideration
Whether the Magistrate erred in not applying the correct test for self defence
The Magistrate correctly identified the relevant law concerning self defence, setting out the test expounded by the High Court in Zecevic v Director of Public Prosecutions (Victoria) (1987) 162 CLR 645. The Zecevic test is comprised of two limbs, at least one of which must be negatived by the prosecutor beyond a reasonable doubt in order to disprove self defence:
(a)first, that a defendant believed that their actions were necessary in self defence; and
(b)secondly, that the defendant’s belief was based on reasonable grounds.
In relation to the first limb, the Magistrate made no clear finding that he was satisfied beyond reasonable doubt that the prosecution had proved that the appellant did not believe that it was necessary for him to do what he did in self defence. As such, the Magistrate must be taken to have found that the appellant did believe that it was necessary for him to do what he did in self defence. This is consistent with his Honour’s observation that the evidence was “somewhat consistent with a situation where someone who is intoxicated misreads cues”. In coming to that conclusion, I think that it is clear that the Magistrate found that the appellant was intoxicated to a degree, and took that into account. The Magistrate then went on to say:
Finally, it seems to me, then, striking [the complainant] in the manner in which he did, that is attempting to strike him again as [the complainant] fell backwards and then engaging with him on the floor in the manner in which he did was not a reasonable response to the circumstances.
I am satisfied that the Magistrate was satisfied beyond reasonable doubt that the prosecution had proved that there were no reasonable grounds for the appellant’s belief that what he did was necessary in order to defend himself, being the second limb of the test in Zecevic. As such, he was satisfied that the appellant was not acting in self defence at the time that he struck the complainant.
Much of the appellant’s argument concerning the proposition that the verdict was unsafe or unsatisfactory focused on the effect of the appellant’s intoxication on the first limb of the test in Zecevic. When read in their entirety, the reasons of the Magistrate reveal that he did take into account the fact that the appellant was, to some degree, intoxicated at the time of these events, and that he was not satisfied that the prosecution had proven that the appellant did not hold a genuine belief that it was necessary for him to do what he did in self-defence. The appellant cannot complain if the Magistrate was unable to determine his precise degree of intoxication at the time those events occurred, because the appellant himself had made contradictory statements about this matter.
The appellant’s next complaint was that the Magistrate misapplied the second limb of the test in Zecevic, in that he applied a completely objective test “rather than a partly subjective and objective test”.
Recently, in Gibbs v Willis [2013] ACTSC 26, Refshauge J had occasion to consider the correct test in relation to self defence where intoxication of the alleged offender was an issue. After referring to ss 31 and 33 of the Criminal Code2002 (ACT), his Honour said:
Thus, in order to discharge its onus of proof, the prosecution must show, not only that Mr Gibbs did not actually believe that it was necessary to do what he did to protect Mr Bass, but that there were no reasonable grounds for the belief of Mr Gibbs to do what he did. That is to say, the prosecution had to prove beyond reasonable doubt that there were no such grounds and, in deciding whether the prosecution has discharged that onus, the Court is required not to ask whether a reasonable sober person would have thought that there were reasonable grounds for that belief, but whether it was reasonably possible that there were grounds for such belief. This is the objective part of the test, not dependent on the sobriety or otherwise of the accused or defendant.
I respectfully adopt what his Honour said, with one caveat. His Honour has treated the two limbs of the test in Zecevic as conjunctive, in the sense that for the prosecution to prove that the accused was not acting in self defence, it had to negative both limbs of the test. In fact, in order to negative self-defence the prosecution need only prove either that an accused did not, as a question of fact, believe that it was necessary for him or her to do what they did in self-defence, or that there were no reasonable grounds for that belief. If the prosecution negatives either of the limbs of the test, then self defence has been negatived.
I can find nothing in the reasons of the Magistrate to suggest that he approached the question of whether the prosecution had negatived self defence in this case in any way differently to that expounded by Refshauge J. I am not satisfied that the Magistrate applied the test for self defence incorrectly.
Whether the Magistrate misdirected himself as to the use of the appellant’s good character
This ground was not addressed in the appellant’s written submissions and was only briefly mentioned in oral submissions. In the course of delivering his reasons for finding the offence proved, the Magistrate said, “I have taken into account the good character of Mr Lever and that his actions that night seem to be out of character, and one would not have expected him to act in the manner in which he did.” The appellant submitted that this passage suggested that the Magistrate failed to take the appellant’s undoubted prior good character into account in determining what weight was to be given to his evidence: see R v Murphy (1985) 63 ALR 53. I do not accept that to be the case. The Magistrate who conducted these proceedings was very experienced in the criminal law, so it is improbable that, having adverted to the need to take into account the appellant’s good character, he would have confined its effect in the way now suggested by the appellant.
Whether the decision of the Magistrate was unsafe or unsatisfactory
Turning now to the submission that the conviction was unsafe or unsatisfactory, the focus of the appellant’s submission was very much on the evidence he gave before the Magistrate. It is clear that the Magistrate did not find the appellant to be a satisfactory witness, and rejected much of what he asserted. The appellant’s submissions again focused significantly on the proposition that the Magistrate had not specifically found that he had not formed a genuine belief that it was necessary for him to do what he did in self defence. As I have already noted, it must be taken from the reasons of the Magistrate that he was not satisfied that the prosecution had proven that the appellant did not hold this belief. However, it is clear that the Magistrate was satisfied that there were no reasonable grounds for the appellant to hold this belief.
A further submission made by the appellant regarding the suggestion that the verdict was unsafe or unsatisfactory was that the evidence did not establish that the complainant had not consented to engaging in a physical fight with the appellant. The basis for this submission, as I understand it, was the finding of the Magistrate that the complainant had motioned for the appellant to “come outside”. The appellant submitted that this was a clear invitation by the complainant to the appellant to fight him, strongly indicating consent by the complainant to engage in a physical altercation with the appellant.
The prosecutor who appeared in the Magistrates Court proceedings did not directly ask the complainant whether he had consented to the appellant striking him, but the inevitable inference from the evidence of the complainant is that he did not. To the extent that the invitation to the appellant from the complainant to “come outside” may be seen as indicating a willingness on the part of the complainant to fight the appellant, it was an invitation to fight at a different time and place. The invitation to “come outside” cannot be seen as an invitation by the complainant to fight the appellant there and then. The pre-emptive attack by the appellant was clearly outside the parameters of any invitation to fight by the complainant, and this must have been apparent to the appellant. In that regard, this was a very different case to Dal Cortivo v The Queen (2010) 204 A Crim R 55, cited by the appellant, where the alleged offender reasonably perceived a statement made to him by the complainant as an invitation to immediately engage in a fight. An invitation to fight at a different time and place does not justify an immediate attack by the party to whom the invitation is given, except in so far as that party may then be acting in self defence.
Decision
I may say that, having viewed the CCTV footage of this incident, I am left in no doubt that the decision of the Magistrate was correct and that the prosecution had proven beyond reasonable doubt that the appellant was not acting in self defence when he struck the complainant. I am not satisfied that the verdict was unsafe or unsatisfactory.
The appeal will be dismissed.
| I certify that the preceding twenty-four [24] numbered paragraphs are a true copy of the Reasons for Judgment of his Honour Justice Burns. Associate: Date: 8 May 2015 |
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