Lindner v Police No. Scgrg-00-762

LINDNER v POLICE
[2000] SASC 308

Magistrates Appeal (ex tempore)

1................ DUGGAN J....... The appellant was found guilty of the offence of doing an act which was likely to cause harm to another. The information alleged that on 26 March 2000 at Plympton Park, without lawful excuse, the appellant did an act, namely, reversing a motor vehicle into Richard William Gerrard knowing that the act was likely to cause harm and intending to cause such harm or being recklessly indifferent as to whether such harm was caused contrary to s 29(3) of the Criminal Law Consolidation Act (1935). The appellant was convicted and fined the sum of $1,500. He was disqualified from holding or obtaining a driver’s licence for a period of 10 weeks. He now appeals against conviction and sentence.

The charge was laid following an incident which was alleged to have taken place in the course of a dispute about the termination of the tenancy of a flat owned by the appellant at Plympton Park. The flat was tenanted by Mr Wayne Gerrard and his girlfriend Jane Summerton. Mr Wayne Gerrard and his girlfriend wished to vacate the flat but the appellant was insistent that he be given the 21 days notice to which he was entitled under the tenancy agreement. A meeting was arranged between the appellant and the Gerrards at the flat on Sunday 26 March. Mr Wayne Gerrard made an arrangement with his father, Mr Richard Gerrard, to attend the flat on that occasion, apparently to provide him with some support.
Mr Richard Gerrard and his wife arrived at the flat before the appellant. He parked his car at the front of the flats and the appellant arrived shortly afterwards. Mr Richard Gerrard introduced himself to the appellant who told him that he did not want him there and to get off the property. Mr Richard Gerrard replied that he was allowed to be there. The appellant said “Well either you leave or I leave”.
At this stage Mr Wayne Gerrard and Jane Summerton arrived. Mr Richard Gerrard got into his car and drove it behind the appellant’s vehicle. He then approached the appellant who said that he was going to call the police. Mr Richard Gerrard took out a mobile telephone and said “Well let’s call them”. Mr Richard Gerrard then called the police number and moved to the rear of the appellant’s car while he made the call. While he was talking to the police he heard the appellant’s car start.
It became apparent that it was the appellant’s intention to drive away in his vehicle. The appellant drove his car forward to the left and then started to manoeuvre his vehicle so as to reverse out without hitting Richard Gerrard’s vehicle. Mr Richard Gerrard was standing in the path of the appellant’s vehicle as it backed out. Mr Richard Gerrard gave evidence that as the vehicle approached him it came to a halt. He tapped the boot and shortly thereafter the appellant’s vehicle accelerated rapidly in reverse. Mr Gerrard was lifted off his feet and thrown onto the boot of the vehicle. The vehicle reversed across the width of the street before it stopped and Mr Gerrard fell off. Mr Wayne Gerrard and Miss Summerton were standing in the vicinity during this incident. Indeed Miss Summerton took hold of Richard Gerrard as he was forced onto the boot of the vehicle and tried to hold him as the vehicle reversed across the street. Mr Richard Gerrard, Mr Wayne Gerrard, Jane Summerton and Mr Richard Gerrard’s wife gave evidence.
Mr Richard Gerrard said in evidence that while the appellant was backing towards him he looked in the back window of the car and saw the appellant looking over his left shoulder. Mr Wayne Gerrard said in his evidence:
“I saw through the back window when he started to reverse he actually looked back through the back window and he would have got probably half-way between where he was and the position of my father and then he changed to check his driver’s side mirror and then he looked into his rear vision mirror as he collected my father and kept going backwards.”
The appellant said that when the altercation commenced he decided to leave. The learned magistrate summarised the appellant’s evidence in the following passage:
“He said he looked to his left, outside rear vision mirror and saw that Mr Richard Gerrard had parked his vehicle right behind the defendant’s. He said that when reversing it was his practice only to ever use his side mirrors because he was a truck driver and the central mirror in a truck is no good because of the load behind. He said it was not his practice when driving his motor car, which had a central rear vision mirror and vision through the rear window, to use those facilities. He said using the side mirrors he firstly drove his car forward and then reversed. He said he used his left side mirror only initially and briefly and then relied on his right-hand side mirror to back out past the post of the carport. He said as soon as he realised that he was through the gap he accelerated quickly, his wheels spun on the gravel and he heard a loud bang. He did not know what it was. He continued to reverse across the road. When he reached the other side of the road he stopped. At this stage he said he did look in his rear vision mirror and saw that Mr Gerrard was spread-eagled across his boot and he then and only then realised that he had hit him. He said he was so shaken by what had occurred that he accelerated away and drove to his friend’s place. He said he later returned to the flat and police arrested him.”
The learned magistrate described Mr Richard Gerrard as “a reasonably good witness”. He said he was satisfied that Mr Gerrard went to the flat not intending to make trouble, but being prepared to meet trouble if it arose. The magistrate also found that he intentionally blocked the appellant’s car with his own and intentionally stood behind it as it reversed in order to stop the appellant from leaving. The magistrate described Jane Summerton as a good witness. He was not so impressed with the evidence of Wayne Gerrard. He said he did not find him a very compelling witness and that he was only prepared to accept his evidence where it was supported in some material particular by another witness. Richard Gerrard’s wife did not see as much of the incident as did the others. The magistrate was unimpressed with the appellant’s evidence. He said:
“He gave answers that, because of his truck driving experience, he did not look back over his shoulder to look through his rear window. He said he did not use his central rear vision mirror to look back, but that he only used his side mirrors. However, he said, curiously, that he had not seen Miss Summerton, and Miss Summerton must have been immediately to the left of his vehicle as he began to reverse. It simply does not make sense. If he used his side mirror, it is almost certain that he would have seen her. He gave me various differing accounts about why he did not use his central rear view mirror and why he did not look behind him. He got into a lot of trouble trying to explain how it was that he had backed across Jordan Street without checking the traffic. I thought his explanations in this regard were nonsensical and I frankly did not believe them.”
The magistrate went on to find in favour of the prosecution evidence on the issue of where the appellant was looking as he reversed out. He said:
“The evidence of Mr Gerrard and Wayne Gerrard and, to a lesser extent, Miss Summerton, was that the defendant had looked back over his shoulder as he began to reverse. I think it is almost certain that he did that. In the circumstances that he found himself in, it seems inconceivable that he simply backed out using only his right rear vision mirror. As he said, he is an experienced driver and even though he might well have been frightened, it makes no sense that he should have been so reckless as to reverse back rapidly and quite blindly.”
The magistrate summarised his findings in the following passage:
“It follows from what I have said, and it does not require much further discussion, that I find the charge proven. Quite clearly the defendant realised that he was reversing his vehicle. He knew that continuing to do so, or reversing rapidly, might cause harm to Mr Richard Gerrard, who was in his way. He continued to do so, being recklessly indifferent as to whether he hit Mr Richard Gerrard and caused him harm or not. He did that because he was frightened. I think he genuinely believed that he had to get away. However, he obviously never believed that he had to reverse rapidly in Mr Gerrard’s direction to do so. He said he did not know Mr Gerrard was there. In any event, as I have already said, the action would have been quite disproportionate to any threat he may have faced. Accordingly I find the charge proven and proven beyond reasonable doubt.”
There is a challenge to the magistrate’s finding that the appellant looked at the victim through the rear window of the vehicle while he was reversing. There was clear evidence from Mr Richard Gerrard and his son that the appellant did look through the rear window while he was reversing. The issue was one of credibility and the finding made by the learned magistrate is one which was open to him. The magistrate analysed the evidence very carefully in his judgment. He obviously considered the appellant’s explanation that he relied on his experience as a truck driver to use the rear vision mirrors when reversing. Nevertheless his evidence was rejected. The appellant’s counsel, Mr Caldicott, has not been able to point to any defect in the process of reasoning whereby his Honour reached his conclusions on this issue.
Next it was argued that the appellant was acting in self-defence and the learned magistrate should have so found. His Honour directed his attention to this issue. He said:
“For the purpose of proving the case under Section 29(3) the prosecution must prove beyond reasonable doubt that the act, in this case the reversing of the motor vehicle, was done without lawful excuse. For the purpose of this case lawful excuse can only arise in a self-defence situation. I will have more to say about that in a minute, but the evidence discloses that there very likely was the reasonable possibility that Mr Lindner genuinely believed that the Gerrards were either about to attack him or to detain him against his will. Such attack or detention would clearly have been unlawful in the circumstances. If I am of the opinion that the defendant genuinely believed that he was in that situation and genuinely believed that it was necessary for him to act in the way that he did to prevent himself from being attacked or detained, then he has a defence. The prosecution must negative that defence beyond reasonable doubt, but he only has a defence if I am satisfied that, given the circumstances in which the defendant genuinely believed that he found himself, the conduct was reasonably proportionate to the threat that he believed to exist.”
His Honour returned to this issue towards the end of his judgment when he said:
“Mr Lindner was frightened. He felt that he had to go. His fear was exacerbated by the fact that Mr Gerrard reversed his car out and then parked it behind Mr Lindner’s car, effectively blocking him in. Mr Gerrard then stood behind Lindner’s car, blocking the other avenue of departure. Mr Lindner was determined to go. He reversed slowly backwards. He saw Gerrard standing in the way. I suspect he panicked at that stage, but whatever happened he accelerated rapidly. Perhaps he hoped Mr Gerrard would jump out of the way. In the event, he did not. He was carried on the boot across the street and then the defendant sped away. Mr Lindner did not believe that it was necessary to reverse into Mr Gerrard in order to get away and hence no defence situation arises. If I am wrong about that then his actions were wholly disproportionate to the danger he thought he faced.”
These findings are not open to criticism. On the appellant’s own version he was not using force in order to meet a threat of force. He simply wanted to leave the premises so as to avoid further involvement in the altercation. But, even if the appellant did intend to reverse into the victim in the way in which he did, I agree with the view of the learned magistrate that the actions which he undertook were quite disproportionate to the danger he thought he faced. In my view, those findings are not open to justifiable criticism.
Mr Caldicott directed my attention to s 15 of the Criminal Law Consolidation Act, which provides the defence of self-defence and he directed my particular attention to s 15(3)(b), which includes, as one of the defensive purposes for which the section is designed, “preventing or terminating the unlawful imprisonment of an accused person, or another”.
In order for that defence to apply, there must be a reasonable possibility that the appellant genuinely believed the conduct to which the charge relates to be necessary and reasonable for a defensive purpose and that “the conduct was, in the circumstances as the defendant genuinely believed them to be, reasonably proportionate to the threat that the defendant genuinely believed to exist”.
In the present case, that defence runs into difficulty at the outset, because it was not the appellant’s belief as he explained it in his evidence that the conduct to which the charge relates was necessary and reasonable for a defensive purpose. In other words, he did not suggest that he drove deliberately towards the victim because he thought that it was necessary for a defensive purpose, namely, to escape unlawful imprisonment.
Even if the magistrate had decided that the appellant’s actions were carried out for a defensive purpose, the question would remain whether what he did was “reasonably proportionate to the threat that he genuinely believed to exist”. Mr Caldicott has said that there was reasonable proportion, or at least a reasonable possibility of that, because of the situation in which the appellant found himself, namely, with his car blocked off and he being unable to remove himself quickly from the altercation which he wished to avoid.
In such a case, there has to be a balancing exercise and that was carried out by the learned magistrate. He found that conduct of this nature was wholly disproportionate to the danger which the appellant thought he faced. In my view that finding by his Honour should be upheld. It is true that the actions of Mr Richard Gerrard were quite provocative and it also seems clear that he wished to prevent the appellant from leaving the area if that were possible. On the other hand, no actual violence had taken place, and there was not any real risk of threatened violence by the time the appellant decided to drive away from the area.
When one considers the quite dangerous conduct of driving deliberately towards a person and committing the acts which are proscribed by s 29 of the Criminal Law Consolidation Act, it is difficult to suggest that there was any reasonable proportion between the actions of the appellant and the danger which he believed he faced at that time. I think the learned magistrate was correct in rejecting the defence of self-defence in these circumstances.
For these reasons the appeal against conviction will be dismissed.
There remains the question of penalty. Whilst one can sympathise with the appellant’s position when faced with the provocative actions of the victim, it must be said that he pursued an extreme course of action in reversing his vehicle towards the victim and not stopping until he reached the other side of the road. Due consideration must be given to the appellant’s age and the fact that he had no convictions prior to this incident. It is also relevant, as Mr Caldicott has pointed out in the course of his submissions, that the appellant is a truck driver and would be expected to lose income during the period of disqualification. But the fact remains that in the heat of the moment the appellant committed a reasonably serious offence.
The penalty imposed must be considered against the spectrum within which the learned magistrate was required to sentence and which involved, at one end, a sentence of imprisonment of five years. In my view, the fine and disqualification period were well within the sentencing discretion and could not be described as being manifestly excessive. The appeal against sentence will also be dismissed.

[2000] SASC 308

7 September 2000