MAY -v- THOMAS [2014] WASCA 176

Jurisdiction:	SUPREME COURT OF WESTERN AUSTRALIA	Citation No:	[2014] WASCA 176
Court:	THE COURT OF APPEAL (WA)
Case No:	CACV:78/2012	Heard:	11 FEBRUARY 2014
Coram:	MARTIN CJ BUSS JA CHANEY J	Delivered:	19/09/14
No of pages:	46	Judgment Part:	1 of 1
Result:	Appeal allowed Decision of primary judge set aside Matter remitted for rehearing to District Court differently constituted
Category:	B
PDF Version

Parties:	MARK CHRISTOPHER MAY ANTHONY TREVOR THOMAS
Catchwords:	Torts Trespass to the person Assault Applicability of common law and Criminal Code (WA) defences Torts Trespass to the person Assault Selfdefence and defence of others Necessity of findings as to nature of threat and response Necessity of findings as to defender's state of mind Appeal Error of law Deficiencies in reasons of trial judge Failure to make findings of fact as to elements of defences Appeal General principles Interference with judge's findings of fact Whether finding reasonably open on evidence
Legislation:	Criminal Code (WA), s 1, s 222, s 244, s 248, s 250, s 254 Criminal Code Act 1913 (WA), s 5
Case References:	Briginshaw v Briginshaw [1938] HCA 34; (1938) 60 CLR 336 Fox v Percy [2003] HCA 22; (2003) 214 CLR 118 Gibbs v Willis [2013] ACTSC 26 Hooper v The Queen [2003] WASCA 179 Leason v Attorney-General [2013] NZCA 509; [2014] 2 NZLR 224 May v Thomas [No 2] [2012] WADC 96 Meeks v Kirkham [2000] WASCA 94 Powell v The Queen (Unreported, WACCA, Library No 4004, 2 December 1980) Quartermaine v The State of Western Australia [2008] WASCA 22 R v Dietz [2009] QCA 392 R v Green [2013] QCA 24 R v Hung [2012] QCA 341; [2013] 2 Qd R 64 R v Portelli [2004] VSCA 178; (2004) 10 VR 259 R v Trieu [2008] QCA 028 Watkins v Victoria [2010] VSCA 138 West Australian Newspapers Ltd v Bridge (1979) 141 CLR 535 Zecevic v Director of Public Prosecutions (Vic) [1987] HCA 26; (1987) 162 CLR 645

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA TITLE OF COURT : THE COURT OF APPEAL (WA) CITATION : MAY -v- THOMAS [2014] WASCA 176 CORAM : MARTIN CJ

BUSS JA

CHANEY J

HEARD : 11 FEBRUARY 2014 DELIVERED : 19 SEPTEMBER 2014 FILE NO/S : CACV 78 of 2012 BETWEEN : MARK CHRISTOPHER MAY

Appellant

AND

ANTHONY TREVOR THOMAS

Respondent

ON APPEAL FROM:

Jurisdiction : DISTRICT COURT OF WESTERN AUSTRALIA

Coram : FENBURY DCJ

Citation : MAY -v- THOMAS [No 2] [2012] WADC 96

File No : CIV 2394 of 2004

Catchwords:

Torts - Trespass to the person - Assault - Applicability of common law and Criminal Code (WA) defences

Torts - Trespass to the person - Assault - Selfdefence and defence of others - Necessity of findings as to nature of threat and response - Necessity of findings as to defender's state of mind

Appeal - Error of law - Deficiencies in reasons of trial judge - Failure to make findings of fact as to elements of defences

Appeal - General principles - Interference with judge's findings of fact - Whether finding reasonably open on evidence

Legislation:

Criminal Code (WA), s 1, s 222, s 244, s 248, s 250, s 254

Criminal Code Act 1913 (WA), s 5

Result:

Appeal allowed

Decision of primary judge set aside
Matter remitted for rehearing to District Court differently constituted

Category: B

Representation:

Counsel:

Appellant : Mr T H Offer

Respondent : Mr T F Percy QC & Mr S D Hubbard

Solicitors:

Appellant : Vertannes Georgiou

Respondent : DLA Piper Australia

Case(s) referred to in judgment(s):

Briginshaw v Briginshaw [1938] HCA 34; (1938) 60 CLR 336
Fox v Percy [2003] HCA 22; (2003) 214 CLR 118
Gibbs v Willis [2013] ACTSC 26
Hooper v The Queen [2003] WASCA 179
Leason v Attorney-General [2013] NZCA 509; [2014] 2 NZLR 224
May v Thomas [No 2] [2012] WADC 96
Meeks v Kirkham [2000] WASCA 94
Powell v The Queen (Unreported, WACCA, Library No 4004, 2 December 1980)
Quartermaine v The State of Western Australia [2008] WASCA 22
R v Dietz [2009] QCA 392
R v Green [2013] QCA 24
R v Hung [2012] QCA 341; [2013] 2 Qd R 64
R v Portelli [2004] VSCA 178; (2004) 10 VR 259
R v Trieu [2008] QCA 028
Watkins v Victoria [2010] VSCA 138
West Australian Newspapers Ltd v Bridge (1979) 141 CLR 535
Zecevic v Director of Public Prosecutions (Vic) [1987] HCA 26; (1987) 162 CLR 645

MARTIN CJ

Summary

1 The appellant, Mr Mark Christopher May, appeals from the decision of a judge of the District Court dismissing his claim for damages in respect of the personal injuries which he alleges he suffered as a consequence of being struck by the respondent, Mr Anthony Trevor Thomas, during the course of a party which took place on the evening of 2 March 2001. At trial Mr Thomas admitted that he struck Mr May, but denied that the blow was the cause of Mr May's injuries. Mr Thomas also asserted that he was acting in defence of either himself or another, or of the property to which Mr May was seeking entry. He relied upon a number of statutory defences provided by provisions of the Criminal Code (WA) then in force, together with defences at common law.

2 In order to resolve the issues raised at trial, it was necessary for the trial judge to make detailed findings with respect to the precise nature of the blow struck by Mr Thomas; the circumstances in which the blow was delivered, including the actions of Mr May in the seconds preceding delivery of the blow; the threat or threats which Mr Thomas actually apprehended at the time he delivered the blow; whether Mr Thomas believed that the blow which he struck was necessary to avert the threat or threats which he apprehended; and the reasonableness of Mr Thomas' beliefs. The reasons given by the trial judge do not enunciate the particular findings of fact which had to be made in order to resolve the issues at trial, or illustrate the process of reasoning which he adopted in order to arrive at his conclusion that Mr May's claim should be dismissed with sufficient particularity to enable appellate assessment of whether findings of fact made, or the reasoning process applied, were flawed by error. It follows that his decision must be set aside.

3 Given the very considerable period of time which has elapsed since the events giving rise to Mr May's claim, it would have been highly desirable if this court could have substituted its own findings of fact and reasoning for those recorded by the trial judge. However, the nature of the case, in particular the conflict between the testimony given by the witnesses to the critical events, precludes that course. Regrettably, a re-trial is the only course which is consistent with the provision of justice to both parties.

Non-contentious facts

4 The factual context in which the altercation between Mr May and Mr Thomas took place was not contentious. On the evening of 2 March 2001 a party was held at the Mount Claremont home of Mr and Mrs Raymond Sadgrove, to celebrate the engagement of their daughter Rochelle to Mr Zeffron Reeves. Their house is at the rear of a duplex block configured in a manner often described as 'battle-axe'. The house was accessible from the road by means of a sealed driveway adjacent to the fence line. Although there was some security lighting in the vicinity of the driveway, it was not brightly lit on the evening in question. The driveway led to the carport from which a gate led to the rear patio and garden. Most of the party guests were in that area during the evening.

5 Ms Kate Chadbourne is an old school friend of Ms Rochelle Sadgrove. She was invited to the party. She brought with her Mr May, who was then her partner. Apparently he did not know any of the other guests at the party prior to the evening in question. Mr May is about 200 cm tall and at the time was well built - weighing over 100 kg. On their way to the party Mr May purchased a carton of beer. It is not clear on the evidence precisely how much of that beer Mr May drank over the course of the evening, but there is no doubt that it was a considerable amount. The evidence of Dr Mead was to the effect that a 'mildly conservative' estimate of Mr May's blood alcohol content at the time of the altercation, derived from blood samples taken after Mr May was admitted to hospital the following the day, would have been around 0.218 g per 100 mL.1 There is no doubt that he was heavily intoxicated at the time he suffered his injuries.

6 Mr May behaved very poorly at the party. He was verbally abusive to Ms Chadbourne in front of other guests. He used crude language in a loud voice. He persistently abused Mr Sadgrove and a number of his friends. Eventually Mr Sadgrove asked him to leave. Mr Reeves noticed this, and escorted Mr May to the garden area at the front of the property. There were conflicting accounts as to the readiness with which Mr May agreed to leave, but at all events he left peacefully.

7 Mr May left the property and walked a short distance down the road to the car in which he had arrived. It seems that he expected to meet Ms Chadbourne by the car in order that she could drive him home. She was not at the car, and did not come out to meet him at the car. After a short while, Mr May decided to re-enter the property to find Ms Chadbourne. During this time, Mr Reeves had remained on the driveway at the front of the property.

8 At this time Mr Thomas was with other party guests in the garden at the rear of the Sadgrove's house. Mr Thomas is about 182 cm tall. He was an experienced rugby player and amateur boxer. Mr Thomas left the garden area through the gate into the carport and walked down the driveway in order to assist Mr Reeves. At some point there was an altercation involving Mr May and Mr Thomas on the driveway towards the front of the property. There were conflicting accounts given as to the presence and location of Mr Reeves at the time of the altercation. There were also conflicting accounts of the events which took place during the altercation. There was also conflicting evidence as to whether Ms Chadbourne was in a position to view the altercation. It will be necessary to review the evidence on these topics in detail in due course. At all events, Mr May fell to the ground.

9 Mr May was unconscious. Other guests at the party assisted to partly lift and partly drag him toward a car driven by Ms Chadbourne's father, who had arrived in the meantime in order to pick them up and take them home. During this process Mr May was dropped onto the ground. However, he was eventually placed in the car. Mr Chadbourne took him home, but due to the difficulty of moving such a large man, left him in the car overnight. It seemed to have been assumed by all that his lack of consciousness was due to his excessive alcohol consumption. However, during the following morning Mr May suffered a seizure and was taken to hospital.

10 As a result of medical attention provided at the hospital it was discovered that the back of Mr May's skull had been fractured and that he had suffered a serious brain injury. As a consequence of that injury Mr May has suffered a range of debilitating effects and is unable to work. The parties agree that the amount which would appropriately compensate Mr May for his injuries is $770,000.

The issues at trial

The pleadings

The statement of claim

11 In the statement of claim it is alleged that Mr Thomas assaulted Mr May by punching him in the corner of the mouth, causing him to fall backwards and to strike the back of his head on a concrete driveway.

The defence

12 In the defence it is asserted that Mr Sadgrove and Zeffron Reeves directed Mr May to leave the premises because he was extremely drunk and was acting in an aggressive and abusive manner towards guests at the engagement party. It is further asserted that he was induced to leave the premises by Rochelle Sadgrove, who falsely informed him that Ms Chadbourne was waiting outside for him. It is asserted that Mr May was escorted from the property by Ms Sadgrove and Mr Reeves.

13 It is further asserted in the defence that Mr May returned to the property walking onto the driveway screaming 'where the fuck is Kate', when he was again asked to leave the premises by Ms Sadgrove and Mr Reeves. The defence asserts that Mr May continued to scream and yell abuse, and refused to leave the premises, indicating an intention to return to the rear of the premises where the party was being held. It is asserted that Mr Reeves asked Ms Sadgrove to go back to the party to get help, which she did, asking Mr Thomas to assist Mr Reeves to remove Mr May from the premises.

14 In the defence it is asserted that Mr Thomas went to the driveway and heard Mr Reeves ask Mr May to leave, to which Mr May refused and screamed abuse at both Mr Reeves and Mr Thomas, and indicated an intention to return to the party. It is asserted that Mr Thomas then asked Mr May to leave, after which Mr May rushed towards both Mr Reeves and Mr Thomas with his arms raised and his fists clenched, indicating an intention to strike Mr Thomas and to return to the party at the rear of the premises.

15 In the defence it is asserted that Mr Thomas responded by raising his left arm for the purpose of fending off Mr May and by pushing Mr May in the chest using such force as was reasonable in all the circumstances. It is further asserted that Mr Thomas' actions in that regard, or in the alternative, if he did punch Mr May in the face, were done in defence of Mr Reeves, who he reasonably feared might be assaulted by Mr May, and to stop Mr May from returning to the part of the premises where the party was being held, and for the purpose of ejecting him from the premises.

16 In the defence it is further asserted that if Mr Thomas did either push or punch Mr May, neither caused Mr May's injuries which were the consequence of him losing his balance due to intoxication, or, in the alternative, as a result of him falling over, either once, or alternatively on two occasions upon which he had attempted to stand up after falling to the ground.

The written submissions on behalf of Mr Thomas

17 Prior to the commencement of the trial an outline of written submissions was filed and served on behalf of Mr Thomas. Those submissions amplified to some extent the facts alleged in the defence, and asserted that Mr Thomas formed the view that Mr May was about to hit either him or Mr Reeves when he raised his right arm to a position just above the horizontal and pushed Mr May away.

18 The outline of written submissions also addressed the legal issues which were said to arise in the case, and asserted that Mr Thomas was acting lawfully in self-defence, or in the defence of Mr Reeves, or in defending the premises against invasion by Mr May, or in evicting Mr May from the premises. In that context reference was made to s 5 of the Criminal Code Act 1913 (WA), and to ss 244, 248, 250 and 254 of the Criminal Code as they were at the time of the altercation. In the written submissions reliance is also placed upon the common law defences of self-defence or defence of another.

19 No objection was taken to this enunciation of the legal issues arising in the case, nor is it suggested that Mr Thomas abandoned any of the lines of defence identified in the written outline of opening submissions during the course of the trial.

The defences under the Criminal Code2

20 Section 5 of the Criminal Code Act 1913 (WA) provided as follows:

When, by the Code, any act is declared to be lawful, no action can be brought in respect thereof.

Except as aforesaid, the provisions of this Act shall not affect any right of action which any person would have had against another if this Act had not been passed; nor shall the omission from the Code of any penal provision in respect of any act or omission, which before the time of the coming into operation of the Code constituted an actionable wrong, affect any right of action in respect thereof.

21 It is well established that this section provides a defence against civil proceedings brought in respect of an act which is declared by the Criminal Code to be lawful.3 It is also established that the section does not otherwise alter the common law, so that defences available at common law are unaffected.4 To put it another way, if an act is declared lawful by a provision of the Criminal Code, the effect of s 5 of the Criminal Code Act is to provide a statutory defence in addition to any existing common law defences.

22 On behalf of Mr Thomas it was asserted that there were four sections of the Criminal Code which potentially had the effect of declaring his actions to be lawful. They were:

244. Defence against home invasion

(1) It is lawful for a person ('the occupant') who is in peaceable possession of a dwelling to use any force or do anything else that the occupant believes, on reasonable grounds, to be necessary -

(a) to prevent a home invader from wrongfully entering the dwelling or an associated place;

(b) to cause a home invader who is wrongfully in the dwelling or on or in an associated place to leave the dwelling or place;

(i) attempting to wrongfully enter the dwelling or an associated place; or

(ii) wrongfully in the dwelling or on or in an associated place;

(d) to prevent a home invader from committing, or make a home invader stop committing, an offence in the dwelling or on or in an associated place.

(2) A person is a '

home invader

' for the purposes of subsection (1) if the occupant believes, on reasonable grounds, that the person -

(a) intends to commit an offence; or

(b) is committing or has committed an offence,

in the dwelling or on or in an associated place.

(3) The authorisation conferred by subsection (1)(a), (b) or (d) extends to a person assisting the occupant or acting by the occupant's authority.

(4) Section 250 applies to the authorisation conferred by subsection (1)(c).

(5) This section has effect even if the conduct it authorises would not otherwise be authorised under this Chapter.

(6) In this section -

associated place

' means -

(a) any place that is used exclusively in connection with, or for purposes ancillary to, the occupation of the dwelling; and

(b) if the dwelling is one of 2 or more dwellings in one building or group of buildings, a place that occupants of the dwellings use in common with one another;

'offence' means an offence in addition to any wrongful entry;

'place' means any land, building or structure, or a part of any land, building or structure.

...

248. Self-defence against unprovoked assault

When a person is unlawfully assaulted, and has not provoked the assault, it is lawful for him to use such force to the assailant as is reasonably necessary to make effectual defence against the assault, provided that the force used is not intended, and is not such as is likely, to cause death or grievous bodily harm.

If the nature of the assault is such as to cause reasonable apprehension of death or grievous bodily harm, and the person using force by way of defence believes, on reasonable grounds, that he cannot otherwise preserve the person defended from death or grievous bodily harm, it is lawful for him to use any such force to the assailant as is necessary for defence, even though such force may cause death or grievous bodily harm.

...

250. Aiding in self-defence

In any case in which it is lawful for any person to use force of any degree for the purpose of defending himself against an assault, it is lawful for any other person acting in good faith in his aid to use a like degree of force for the purpose of defending such first-mentioned person.

...

254. Defence of property against trespassers: Removal of disorderly persons

(1) For the purposes of this section and section 255, the term 'place' means any land, building, structure, tent, or conveyance, or a part of any land, building, structure, tent, or conveyance.

(2) It is lawful for a person ('the occupant') who is in peaceable possession of any place, or who is entitled to the control or management of any place, to use such force as is reasonably necessary -

(a) to prevent a person from wrongfully entering the place;

(b) to remove a person who wrongfully remains on or in the place; or

provided that the force used is not intended, and is not such as is likely, to cause death or grievous bodily harm to the person.

(3) The authorisation conferred by subsection (2), as limited by the proviso to that subsection, extends to a person acting by the occupant's authority except that if that person's duties as an employee consist of or include any of the matters referred to in subsection (2)(a), (b) or (c) that person is not authorised to use force that is intended, or is likely, to cause bodily harm.

23 Other provisions of the Criminal Code which were relevant to the operation of those sections include s 222, which defined 'assault' as follows:

222. 'Assault', definition of

A person who strikes, touches, or moves, or otherwise applies force of any kind to the person of another, either directly or indirectly, without his consent, or with his consent if the consent is obtained by fraud, or who by any bodily act or gesture attempts or threatens to apply force of any kind to the person of another without his consent, under such circumstances that the person making the attempt or threat has actually or apparently a present ability to effect his purpose, is said to assault that other person, and the act is called an assault.

The term 'applies force' includes the case of applying heat, light, electrical force, gas, odour, or any other substance or thing whatever if applied in such a degree as to cause injury or personal discomfort.

24 Further, at the relevant time, the expression 'grievous bodily harm' was defined in the Criminal Code to mean:

[A]ny bodily injury of such a nature as to endanger, or be likely to endanger life, or to cause, or be likely to cause, permanent injury to health.

Self-defence against unprovoked assault - s 248

25 In order to successful invoke the statutory defence provided by s 248 of the Criminal Code6 it was necessary for Mr Thomas to establish that:7

(a) Mr May unlawfully assaulted Mr Thomas;

(b) Mr Thomas did not provoke that assault;

(d) the force used by Mr Thomas was not intended, nor was it such as was likely, to cause death or grievous bodily harm or, if it was, the nature of Mr May's assault was such as to cause reasonable apprehension of death or grievous bodily harm, and Mr Thomas believed, on reasonable grounds, that he could not preserve himself from death or grievous bodily harm otherwise than by using the force which he used.

Aiding in self-defence - s 250

26 In order to invoke the defence provided by s 250 of the Criminal Code, on the basis that Mr Thomas's actions were justified in defence of Mr Reeves, it was necessary for Mr Thomas to establish that:

(a) Mr May unlawfully assaulted Mr Reeves;

(b) Mr Reeves did not provoke that assault;

(c) the force used by Mr Thomas was reasonably necessary to make an effective defence against the assault upon Mr Reeves; and

(d) the force used by Mr Thomas was not intended nor was it such as was likely to cause death or grievous bodily harm, or if it was, the nature of Mr May's assault upon Mr Reeves was such as to cause reasonable apprehension of death or grievous bodily harm, and that Mr Thomas believed, on reasonable grounds, that he could not preserve Mr Reeves from death or grievous bodily harm otherwise than by using the force which he used.

27 The same basic structure applies to the statutory defence of self-defence, and the statutory defence of defence of another. In each case the first element of the defence requires that it be established that Mr May assaulted either Mr Thomas or Mr Reeves. The second element of the defence requires that it be established that the assault was not provoked. The third element requires it be established that the force used by Mr Thomas was reasonably necessary to make effective defence against the assault. That question is to be assessed objectively and is not concerned with the state of mind of Mr Thomas.8

28 The fourth element of each defence contains a number of sub-elements, and merits detailed analysis. The first sub-element is the proviso to the effect that the conduct is not lawful if it was intended, or such as was likely, to cause death or grievous bodily harm. The first aspect of that proviso of the defence is subjective, and requires a finding of fact as to the actual intention of Mr Thomas. The second aspect of that proviso of the defence requires an objective determination of the likely effect of the force which he used.9

29 In the circumstances of the present case, it could not be suggested that Mr Thomas intended to cause the death of Mr May, or that the force which he used was likely to have that consequence. Accordingly, that aspect of the proviso can be excluded from further consideration. However, Mr May asserted that Mr Thomas punched him in the head with force on a concrete driveway. Regrettably, serious and sometimes fatal injuries can be sustained when a single blow to the head is applied with force to a person standing on a hard surface. Convictions for unlawfully causing grievous bodily harm have been obtained in similar circumstances,10 although much will depend upon the particular circumstances.11 In the circumstances of this case there were live issues as to whether:

(a) Mr Thomas intended to cause Mr May bodily injury of such a nature as to endanger or be likely to endanger life, or to cause or be likely to cause permanent injury to health; or

(b) Mr Thomas used force of a kind likely to cause any bodily injury of such a nature as to endanger or be likely to endanger life, or to cause or be likely to cause permanent injury to health.

30 If it was found that either Mr Thomas intended to cause grievous bodily harm to Mr May, or that he used force which was likely to have that effect, the statutory defences can nevertheless be invoked if Mr Thomas establishes a number of things.

31 First, it must be established that the nature of Mr May's assault upon Mr Thomas or Mr Reeves was such as to cause a reasonable apprehension of grievous bodily harm. That issue has to be assessed objectively by reference to the nature of the assault.

32 Second, it must be established that Mr Thomas believed that he could not preserve himself or Mr Reeves from grievous bodily harm otherwise than by using the force which he used. This issue is to be assessed subjectively - that is by reference to Mr Thomas' actual state of mind.

33 Third, it must be established that Mr Thomas had reasonable grounds for that belief. This issue is to be reached both subjectively, by reference to the circumstances as Mr Thomas believed them to be, and objectively by reference to the reasonableness of the belief in the circumstances that Mr Thomas believed to exist.

34 Analysed in this way, in the circumstances of this case, it can be seen that the issue which I described as the fourth element of the defences provided by s 248 and s 250 of the Criminal Code requires determination of the following specific issues:

(a) did Mr Thomas intend to cause grievous bodily harm to Mr May?, or

(b) was the force used by Mr Thomas likely to cause grievous bodily harm to Mr May?;

and if either of those questions is answered in the affirmative;

(c) was the nature of Mr May's assault upon Mr Thomas or Mr Reeves such as to cause a reasonable apprehension of grievous bodily harm?; and, if so

(d) did Mr Thomas believe that he could not preserve himself or Mr Reeves from grievous bodily harm other than by using the force which he used?; and, if so

(e) did Mr Thomas have reasonable grounds for that belief?

Defence against home invasion - s 244

35 In order to invoke the defence provided by s 244 of the Criminal Code relating to a defence against home invasion, it was necessary for Mr Thomas to establish that:

(a) Mr Thomas was authorised by Mr or Mrs Sadgrove to prevent Mr May from re-entering their property;

(b) Mr Thomas believed that Mr May either had committed or was committing an offence, or intended to commit an offence, in addition to wrongful entry, on the property occupied by Mr and Mrs Sadgrove; and, if so

(d) Mr Thomas believed that the force which he used was necessary:

(i) to prevent Mr May from wrongfully entering Mr and Mrs Sadgrove's property; or

(ii) to cause Mr May, who was wrongfully on Mr and Mrs Sadgrove's property, to leave the property; or

(iii) to make effectual defence against violence used or threatened by Mr May who was attempting wrongfully to enter Mr and Mrs Sadgrove's property or was wrongfully on their property; or

(iv) to prevent Mr May from committing, or to make Mr May stop committing, an offence on Mr and Mrs Sadgrove's property; and, if so

(e) Mr Thomas had reasonable grounds for that belief.

Defence of property against trespassers: removal of disorderly persons - s 254

36 In order to successfully invoke the statutory defence provided by s 254 of the Criminal Code, it was necessary for Mr Thomas to establish that:

(a) he was authorised by Mr or Mrs Sadgrove to prevent Mr May from wrongfully entering their property;

(b) Mr Thomas used only such force as was reasonably necessary to prevent Mr May from wrongfully entering the property;

(d) the force used by Mr Thomas was not such as was likely to cause grievous bodily harm to Mr May.

The common law defences

37 Self-defence at common law was succinctly described by Wilson, Dawson & Toohey JJ:

[T]he law of self-defence requires no set words or formula. The question to be asked in the end is quite simple. It is whether the accused believed upon reasonable grounds that it was necessary in self-defence to do what he did.

38 The defence was explained in the civil context by the Court of Appeal of Victoria:

There are two elements to this test. In the context of a civil proceeding, the defendant must have believed at the time when he committed the relevant act that what he was doing was necessary; and that belief must have been based on reasonable grounds. The second element does not involve a test about what a hypothetical reasonable person might have believed in the circumstances, but rather whether the defendant had reasonable grounds for his belief, in the circumstances as he perceived them to be.

In determining whether the defendant believed that the force used was necessary, consideration should be given to the fact that a person who has reacted instantly to imminent danger cannot be expected to weigh precisely the exact measure of self defensive action which is required.13

39 So, in order to establish self-defence at common law, it was necessary for Mr Thomas to establish many of the elements which were relevant to the statutory defences upon which he relied. In the circumstances of this case, the defence would be successfully invoked if Mr Thomas establishes that:

(a) Mr Thomas believed that Mr May was about to assault him;

(b) Mr Thomas believed that the force which he used was necessary in order to defend himself from Mr May's attack; and

40 As with the statutory defence, the last element of the common law defence has components which are both subjective and objective. The element is subjective, in the sense that it turns upon the circumstances as Mr Thomas perceived them to be, and is objective in the sense that the grounds for belief must be reasonable.

41 The common law position with respect to defence of others is less clear. However, in R v Portelli14 the Court of Appeal of Victoria held that despite a degree of uncertainty in the previous authorities, it should be concluded that the same principles should be applied to defence of another at common law as apply to self-defence. A similar approach has been taken in the Court of Appeal of New Zealand15 and in the Supreme Court of the Australian Capital Territory.16 I propose to take the same approach. It follows that in order to successfully invoke the common law defence of defending another, it is necessary for Mr Thomas to establish that:

(a) he believed that Mr May was about to assault Mr Reeves;

(b) he believed that the force which he used was necessary to defend Mr Reeves from Mr May's attack; and

The evidence

42 It is clear from this analysis of the defences advanced by Mr Thomas that the case turns upon the findings of fact properly made with respect to the altercation between Mr May and Mr Thomas, including the events which took place immediately before that altercation, the altercation itself, Mr Thomas' state of mind at the time, and, because of the issue raised in relation to causation, the evidence relating to Mr May's departure from the scene. The evidence relating to the altercation came from five witnesses - Mr Thomas, Mr Reeves, Ms Sadgrove, Mr May and Ms Chadbourne. Because Mr Thomas admitted on the pleadings that he had assaulted Mr May, it was common ground that he bore the onus of proving the various defences which he had advanced, and for that reason, the evidence in support of his defences was led first.

Mr Thomas

43 In his evidence-in-chief, Mr Thomas stated that although he saw Mr May at the party, he did not speak to him prior to the altercation. According to Mr Thomas, he had three or four beers during the course of the evening and at around midnight was inside having a hot drink - either tea or coffee. He walked out to the patio at the rear of the house, where he saw a number of women consoling Ms Chadbourne. Ms Sadgrove appeared agitated and upset, and asked Mr Thomas if he would go to the front of the property and check on Mr Reeves as she was concerned for Mr Reeves' safety. At that time Mr Thomas did not know that Mr May was involved.

44 According to Mr Thomas, he walked through the gate and down the driveway where he saw two men. He saw Mr Reeves and a person who he learnt later was Mr May. He heard raised voices - 'there was argument occurring'.17 The lighting was pretty poor.

45 According to Mr Thomas, he heard Mr Reeves say words to the effect of 'leave the property, walk away, you're not invited' to which Mr May responded 'tell Kate to get out here - get out here now, otherwise I'm going to fucking kill her'.18

46 Later in his evidence Mr Thomas paraphrased Mr May's words in slightly different terms:

Tell that bitch to come out here. Tell Kate to come out here. I'm going to fucking kill her if she doesn't come out. I'm coming in to get her.

According to Mr Thomas, the words were spoken in a very aggressive and hostile manner, in a reasonably loud volume, just below shouting.

47 As Mr Thomas approached the two men, according to him Mr May turned to him and told him to 'fuck off', saying 'it's nothing to do with you, piss off'.20 At another point in his evidence-in-chief Mr Thomas stated that Mr May told him to 'go back and get Kate'.21

48 When asked to describe his assessment of the situation at that stage, Mr Thomas replied:

Just that Mark May was very agitated, irate, angry, being very aggressive and - [I] was a bit concerned for Zeff's safety.

49 According to Mr Thomas, he then said words to the effect of 'you've been asked to leave. Go away, get off the property, you're not welcome'.23

50 Mr Thomas did not notice Mr May to be affected by alcohol and had not seen how much he had had to drink during the evening - the only thing he noticed was that Mr May was 'so angry and aggressive'.24

51 According to Mr Thomas, Mr Zeffron Reeves was standing to his left. Then:

Mark May was still being verbally aggressive and telling us he was going to come into the property and get Kate. And then, all of a sudden, he's sort of raised his arms to clench fists and lunged towards us to push past - as if to push past us and - - -

What do you remember the last thing that was said before he did that?---'I'm going to the property. I'm going to get her. Get out of my way.'

'I'm going on the property. I'm going to'---'Get Kate.'

…

Did you know who he was referring to, at that stage?---Yes.

As best you knew, where was Kate, at that stage?---On the patio area with Rochelle and Jodie.25

52 According to Mr Thomas, Mr May then 'raised his arms and lunged towards us' with clenched fists, although not in a fighting stance. Mr May's hands were at shoulder or face height. He was about a metre or a metre and a half away from Mr Thomas.26 According to Mr Thomas:

I believed he was coming towards - over to push us out of the way or hit us, either myself or Zeffron, and force his way back into the property.

So what did you do?---The instinctive reaction was to raise my right hand and fend him off as he was coming towards us.27

53 According to Mr Thomas, his hand was open and he pushed Mr May away, in the nature of a fend.28 According to Mr Thomas, his hand made contact with Mr May's chest, with enough force to stop his momentum. He described it as the sort of manoeuvre one might use in rugby.

54 When asked whether he had formed any view as to whether he was more in jeopardy than Mr Reeves, Mr Thomas replied:

He tends to lunge more towards my - my side, as opposed to Zeffron. But it could have been either one of us he was going to hit, or - or attempted to break through.

Mr Thomas denied that his hand was ever closed into a fist at any stage.

He denied that he punched Mr May with a clenched fist.

55 As far as Mr Thomas could recall, Ms Chadbourne was on the patio at the rear of the house when the altercation took place.31

56 According to Mr Thomas, his contact with Mr May stopped his momentum and he staggered backwards, falling onto his backside, into a seating position. Mr Thomas asserted that when Mr May attempted to stand up he fell backwards and rolled onto his back, on the driveway.32 He could not recall whether he hit his head. However, he was staggering and trying to right himself, and this caused Mr Thomas to come to the conclusion that 'he was very intoxicated'.33 Mr Thomas then returned to the party, leaving Mr Reeves and Mr May on the driveway. According to Mr Thomas, he saw Ms Chadbourne coming through the gate from the patio to the driveway as he walked back.34 Mr Thomas left the party about an hour later.

57 During cross-examination Mr Thomas confirmed that when Mr May approached him with clenched fists his palms were facing towards Mr Thomas. He described Mr May's stance as threatening, and retracted his evidence-in-chief to the effect that he was not in a fighting stance, although he agreed that it was not a 'classical fighting stance'.35

58 During cross-examination Mr Thomas confirmed that as he approached Mr Reeves, he and Mr May were exchanging words. Mr Reeves was asking Mr May to leave, and Mr May was adamant that he wanted to re-enter the property to find Ms Chadbourne. Mr Thomas repeatedly denied stepping towards Mr May, and reiterated that Mr May was about one and a half metres from him at the time of the altercation.36 He stated that he believed that he was in imminent danger of being hit by Mr May.37 He maintained the position that he fended Mr May off, which halted his momentum and caused him to stagger back a few paces, falling onto his bottom. After that Mr May tried to get up but fell down again.

59 During cross-examination it was put to Mr Thomas that he thought Mr Reeves was in imminent danger and that Mr May was trying to get back into the property. He agreed with both propositions.

60 During cross-examination a video recorded interview of Mr Thomas by police was put to him. The interview took place on 28 March 2001, a little over three weeks after the incident. During that interview he told police that when he was in the backyard at the party Ms Sadgrove had asked him to go to the front of the house because 'Zeff needs a bit of a hand, there's a bit of a problem out there'.

61 Mr Thomas told police that he left the backyard through a gate to the carport and walked down the driveway where he saw Mr May and Mr Reeves. He could see that Mr May was trying to get past Mr Reeves and get into the house. He said he could hear shouting and abuse, and that he heard Mr May shout, about his girlfriend Kate:

If she doesn't come out now she'll get what she fucking deserves. And she'll get what she got last time.

to which Mr Reeves responded:

You've been asked to leave. Please leave. Kate will be out soon.

62 Mr Thomas told police that he joined Mr Reeves and asked Mr May to leave and to calm it down and 'just behave yourself'. He told police that he offered to call a cab for Mr May.

63 Mr Thomas told police:

All of a sudden he just sort of - Zeff and myself were just sort of talking - and he's just come towards us both - his arms in the air like he was just sort of rushing, trying to make a rush to get past us or through us, I don't know.

And that was it. I just saw him coming, stuck a hand up … [Mr Thomas then showed his right arm raised with his palm open at shoulder height] … and he's run into it. Sort of to push him away. Just like that.

Next thing I know he stumbled back and had fallen on his arse, and that was it.

64 At another point during the interview, Mr Thomas told police:

He went to make a rush. I think he went to make a rush to get past us. So his arms were flailing. He had arms raised in the air, he was still shouting and screaming … the reaction was to fend him off and push him away.

65 Mr Thomas denied to police that he had punched Mr May, and asserted that any contact was with an open palm to Mr May's chest or higher - perhaps to his throat or face.

66 Later in the interview when police asked Mr Thomas what he thought was going to happen he said:

I don't know. I didn't even think, it was a natural instinct; a reflex instinct just to stick your arm up to push him away. I don't know if he was coming at us throwing punches, his arms were in the air. He was shouting and - more of he was just trying to get past us, I dunno I couldn't tell you, it was just a reflex action of just sticking your arm up and pushing him away.

67 Later he told police 'it just seemed like all of a sudden he was there in your face and I was trying to keep him away'.

68 Mr Thomas told police that he had taken a six pack of beers with him to the party and he had drunk them by the time of the altercation.

69 Later again in the interview when police asked Mr Thomas why he put his arm up, he replied:

Self-defence, basically. To keep him away. I didn't - well I just thought maybe he might have thrown a punch at me. I just didn't want to … I wanted to keep him at arms-length.

70 Mr Thomas showed police how Mr May had raised his arms, depicting open hands at about face height, facing inwards, although he briefly clenched one fist when depicting Mr May's stance. He told police that Mr May was angry and aggressive. He told police that Mr May was threatening Ms Chadbourne and Mr Reeves.

71 Towards the conclusion of the interview, Mr Thomas reiterated that he did not punch Mr May and explained his physical contact 'because he was coming towards me, and I - towards myself and Zeff - it was self-defence … my reaction was just to fend him off and keep him away from us'.

72 Mr Thomas was cross-examined in relation to some inconsistencies between the evidence he had given and the statements he made to police. He accepted that there were some inconsistencies, but generally maintained the position which he had taken during his evidence-in-chief.

Mr Reeves

73 During his evidence-in-chief Mr Reeves stated that late in the evening he was advised that Mr Sadgrove wished one of the guests to leave because of his obnoxious behaviour. He went to an area where Mr Sadgrove was sitting. Mr Sadgrove asked him to ask Mr May to leave and he did so. Mr May initially refused, but after Ms Sadgrove intervened he got up and walked out through the side gate to the driveway. Mr Reeves and Ms Sadgrove followed him down the driveway. Mr May was asking after Ms Chadbourne and wanted her to leave with him. Mr Reeves believed that she was inside the house.

74 Mr Reeves followed Mr May down the driveway and saw him leave the property and move on to the street. However, Mr May returned. Although initially Mr Reeves stated that he thought Ms Sadgrove had left by this time, later he stated that she was with him when Mr May returned. Mr Reeves formed the opinion that Mr May was likely to try and get back into the party so he asked Ms Sadgrove to go and get help. Mr May was 'still screaming out for Kate'.38 Mr Reeves was starting to worry 'about potentially getting hit ... or in a physical altercation'.39

75 After Ms Sadgrove left, Mr Reeves was alone with Mr May. Mr Reeves probably swore at Mr May or told him to 'fuck off'. Mr May was aggressive and seemed 'hell bent on - on just getting back in to get Kate, or whatever was going through his mind at the time. I don't know'.40 They probably made physical contact and then Mr Thomas joined them. They both talked to Mr May trying to get him to leave.

76 According to Mr Reeves, Mr Thomas was on his left hand side. Mr May kept advancing and raised a fist towards both of them - a right fist - and 'just sort of lurched forward to throw a punch'.41 Mr Reeves was getting ready to defend. He and Mr Thomas were so close as to be touching shoulders and Mr May came at both of them.42 There was contact between Mr May and Mr Thomas which looked to Mr Reeves like pushing into each other, after which Mr May fell down onto his backside. Mr Reeves thought that Mr Thomas had put his hands up to stop Mr May from coming at him - 'to push him away sort of thing'.

77 It seems from the transcript that Mr Reeves simulated the stance adopted by Mr Thomas, which involved holding two hands out in front, without a clenched fist. When it was put to Mr Reeves that Mr Thomas punched Mr May, he replied that if it happened he did not see it, and he was standing right next to Mr Thomas. He denied that it had occurred.

78 Mr Reeves could recall hearing Mr May's head hitting the ground but could not recall whether that was from the fall when Mr May made contact with Mr Thomas, or when he subsequently fell after trying to get to his feet. Mr Reeves could remember him hitting his head on the driveway after rocking on his haunches.43 By this stage Mr Thomas had left and returned to the party. According to Mr Reeves, the only people present at the time of the altercation were Mr May, Mr Thomas and himself - neither Ms Sadgrove nor Ms Chadbourne were present, nor within viewing distance. However, Ms Chadbourne came to the front of the property some minutes later, with Rochelle Sadgrove and another.

79 About an hour or so later Ms Chadbourne's father arrived with a car to take Mr May and Ms Chadbourne home. A group of people tried to lift Mr May to the car. According to Mr Reeves, during that process he was dropped.

80 During cross-examination Mr Reeves confirmed that Mr May rushed towards him with his right fist clenched, his arm elevated and appeared to be shaping to throw a punch.44 However, he did not see Mr May throw a punch.45

81 During cross-examination Mr Reeves accepted that Mr May may have fallen backwards flat on his back after making contact with Mr Thomas, and that he may have hit his head on that occasion. Then Mr Thomas left and Ms Chadbourne and others arrived.

82 Mr Reeves did not get the impression that Mr May was trying to do anything other than get Ms Chadbourne.46

83 Mr Reeves was definite that Mr Thomas had placed both hands in front of himself in order to stop Mr May coming towards him.47

84 Mr Reeves assisted to get Mr May into Mr Chadbourne's car and was confident that he did not hit his head in the course of that process.48

Ms Sadgrove49

85 Ms Sadgrove heard her father ask Mr May to leave. She and Mr Reeves also asked him to leave. He did not really resist. She did not know where Ms Chadbourne was at this stage - she assumed that she was still inside. She and Mr Reeves then walked Mr May off the property. As they were walking out Mr May asked where Ms Chadbourne was. Ms Sadgrove told him that she had already left.

86 She and Mr Reeves saw Mr May walk down the street and Ms Sadgrove walked back up the driveway in order to return to the party. However, she heard Mr May calling out for Ms Chadbourne, and turned to see that he had returned. Mr Reeves asked her to go and get help. She returned to the party and saw Mr Thomas walking past her down the driveway. She saw Ms Chadbourne on the patio. She could hear Mr May screaming for Ms Chadbourne. She held on to Ms Chadbourne because she did not want her to leave - she wanted her to stay the night.

87 A little later Ms Sadgrove went through the gate and down the driveway. Ms Chadbourne was behind her. She saw Mr May on the ground and there were two people next to him - Mr Thomas and Mr Reeves. She did not see what had preceded. Ms Sadgrove was emphatic that Ms Chadbourne had not left the party area and gone to the driveway before her.50

88 During cross-examination Ms Sadgrove confirmed what was implicit in her evidence-in-chief, to the effect that she did not ask Mr Thomas to go and assist Mr Reeves, because he was already on the way.51 During cross-examination she reiterated, emphatically, that Ms Chadbourne was not in a position to see what happened because she was at the party at the rear of the house when the altercation occurred.52

Mr May

89 Mr May recalled Mr Sadgrove asking him to leave the party. He walked down the driveway and waited by the car thinking that Ms Chadbourne was going to come out. She did not come so he walked back up the driveway to get the keys. According to him, he walked all the way up the driveway to the carport and asked someone on the other side of the gate if they could go and get Kate. He waited just the other side of the carport. According to Mr May he was standing on the grass near the carport when he saw Kate and some other girls. The next thing he can recall is being hit by somebody. It was a strong blow to his chin, powerful enough to knock him out.53 He has a scar on his chin from the blow.

90 Mr May is 6 foot 5 inches in height and weighed 105 kg at the time.

91 During cross-examination Mr May conceded that for months after the incident he remembered nothing of it. However, he asserted that he had recently gained a recollection of the events. He denied that he was aggressive or belligerent that evening.

Ms Chadbourne

92 Ms Chadbourne recalls that Mr May was asked to leave the party, and that he left. She then learnt, somehow, that he wanted to see her out the front of the house. According to her, she went out through the gate and down the driveway. She saw Mr May standing on the driveway. According to Ms Chadbourne, someone walked past her and went up to Mr May and punched him, and then Mr May fell backwards and hit his head. The punch was a punch with the fist to Mr May's face. Ms Chadbourne believed that the person who delivered the punch was Mr Thomas. Ms Chadbourne stated she was only a few metres away when the punch was thrown. Mr May fell backwards and hit his head on the concrete, and then turned a little to his side.

93 During cross-examination Ms Chadbourne admitted that she had told police that Mr May left in the company of Ms Sadgrove. She maintained her evidence to the effect that a person walked past her as she was walking towards Mr May and punched him. She did not recall seeing Mr May in a verbal confrontation with others.

94 Ms Chadbourne was also involved in the steps that were taken to put Mr May into her father's car. She recalled that the people who were carrying Mr May staggered and Mr May fell back on to the ground during that process. She accepted that she told police that Mr May hit his head on the cement driveway when he was dropped. However, during cross-examination she asserted that his whole body was not off the ground, and that it was more like he was being dragged. She could not remember whether he was being held face down or face up.54

The reasons of the trial judge

95 The reasons of the trial judge commence with a summary of the substantive issues in the case, and references to s 5 of the Criminal Code Act and s 248, s 250 and s 254 of the Criminal Code. He then referred to the difficulty of factual assessment caused by the significant delay since the events in question, the consumption of alcohol by many of the witnesses on the night in question, and the inherent difficulty of factual determination in assault cases.55

96 The trial judge then referred to the facts established by the non-contentious evidence, in similar terms to those which I have set out above.

97 The trial judge then addressed the evidence given by the four witnesses to the critical events around the time of the altercation, namely Mr May, Mr Thomas, Mr Reeves and Ms Chadbourne.

98 The trial judge expressed concern with respect to Mr May's reliability as a witness, having regard to the extent of his intoxication on the night in question and the brain injury which he sustained, and the probability that he had absorbed the version of events related to him by Ms Chadbourne. He concluded that 'Mr May is not a witness whose evidence can be given much weight'.

99 The trial judge then referred to aspects of the evidence given by Mr Thomas. He expressed surprise at Mr Thomas' evidence to the effect that he could not recall whether Mr May had hit his head, given that a number of other witnesses said that they heard Mr May's head hit the ground, with the result that an ambulance was called.

100 The trial judge also noted differences between the evidence given by Mr Thomas and the statements he made to police 25 days after the incident. He then observed:

It is very difficult to reconcile Mr Thomas' description of what he did to Mr May, and what the result of it was, with the very significant injury suffered by Mr May.

101 The trial judge also observed that it was difficult to follow Mr Thomas' evidence to the effect that he turned around and left the area and went back inside the house as soon as he pushed Mr May 'if Mr Thomas' version of merely pushing Mr May is accepted'. I digress to observe that the process of reasoning underpinning that observation is not self-evident, but I assume that the trial judge meant that it is unlikely that Mr Thomas would have returned to the house unless and until Mr May's attempts to re-enter the premises had been completely rebuffed, which was inconsistent with the evidence of a mere push.

102 The trial judge then referred to lines of cross-examination based on the different stances which Mr Thomas was said to have adopted in relation to the litigation over the years and declined to review in any detail the substance of those assertions because by at least the time of his interview with police, Mr Thomas made reference to acting in self-defence.57

103 The trial judge then referred to the evidence given by Mr Reeves. He referred to the difference in the evidence given by Mr Reeves as to the relative positions of himself and Mr Thomas, as compared to the evidence given by Mr Thomas, and to the difference between the statement which Mr Reeves made to police three and a half weeks after the incident and the evidence which he gave at trial. In the statement given to police Mr Reeves said:

[T]he two of them came together, I didn't see either person throw a punch, however Mark fell backwards flat onto his back. I think he hit the back of his head.

However the trial judge noted that at trial Mr Reeves asserted that Mr May sat down on his bottom after being pushed by Mr Thomas.

104 After referring to further portions of Mr Reeves' evidence the trial judge observed:

Given Mr Reeves' proximity and, inferentially, what would have been his intense focus on the matter in hand, it is surprising he does not know how it came to be that Mr May went to ground backwards without breaking his fall. A man in a tense, if not dangerous, situation, where a threat has developed such that assistance is called for, would, I think, have adrenaline running through his veins and be on alert for any action. Mr Reeves was apprehensive. He would have been hyper vigilant. Yet he does not know if his friend, standing shoulder to shoulder by his side, who had come to his rescue, threw a punch to knock down the aggressor. This is implausible I think.

105 It is however to be remembered that Mr Reeves expressly rejected the proposition that Mr Thomas had punched Mr May.60

106 The trial judge then referred to the evidence given by Ms Chadbourne, and the statements which she made to police. He described her recollection as 'poor' but observed that she was adamant that she remembered that the man who walked past her, who was Mr Thomas, punched Mr May.61 The trial judge noted that she made no reference in her evidence-in-chief to the presence of Mr Reeves until after the incident had occurred, and that her evidence with respect to the circumstances surrounding the blow was bare of detail. He observed:

The circumstances of course are that Ms Chadborne [sic] was mistreated by Mr May earlier that night. She too had been drinking. She knew or would have known as she was walking towards Mr May that he was very drunk. She knew that he was causing trouble out the front of the house. She would have felt great embarrassment at his behaviour. It seems to me that she would have been focusing on how he was behaving, and perhaps not so much on what others were saying to him or he to them. It also is possible she was not close enough to hear at the time whatever was said.

107 The trial judge then referred to the aspects of the evidence given by Rochelle Sadgrove which bore upon the capacity of Ms Chadbourne to have observed what she claimed to have seen. The descriptions of that evidence are cast in terms which connote suspicion arising from a motivation to assist Mr Thomas. The trial judge observed:

I would not have thought she would have been likely, particularly, to have noted exactly where it was that Kate Chadborne [sic] was at any particular time, it not being a significant matter on the night in question. True it is that 3 1/2 weeks later she is certain about where Kate Chadborne [sic] was but I do think the circumstances need to be carefully weighed.

On the other hand, Kate Chadborne [sic] saw something happen on the night in question and articulated it the very next day. Of course she, too, would be likely to have been inclined to help the cause of her seriously injured partner.63

108 The trial judge then referred to the onus and standard of proof, reiterating that the onus of proof of self-defence rested upon Mr Thomas. He then adopted the principles enunciated in Briginshaw v Briginshaw64 relating the standard of proof to be applied in cases in which serious allegations are made.

109 The trial judge then turned to express his findings on the nature of the assault to Mr May. He commenced by referring to Ms Chadbourne's evidence to the effect that she saw Mr Thomas punch Mr May and noted that she had been consistent in this respect since her statement to police the day after the incident.

110 The trial judge then referred to the medical records maintained by the hospital to which Mr May was admitted which recorded an observation to the effect that there was 'blood around the mouth and swollen lips'. He referred also to evidence, including the statement made by Mr Reeves in his original statement to police, to the effect that after being assaulted Mr May fell backwards flat onto his back hitting his head on the ground. The trial judge expressed the view that such an event was consistent with a punch and inconsistent with a mere push, given the size and weight differences between Mr May and Mr Thomas. The trial judge also placed weight on the fact that Mr Thomas was a relatively experienced boxer who, by inference, knew how and where to punch. In that context he observed that 'a good crisp blow to the point of the jaw delivered by an experienced pugilist would be more likely to cause the event that occurred, I think, than a mere push or thrust with one hand out delivered by a stationary man'.65

111 The trial judge concluded that 'Mr Thomas punched Mr May in the jaw ... causing Mr May to fall backwards and he hit his head on the bitumen'.66

112 The trial judge then turned his attention to the circumstances in which the punch was delivered. He observed that although he had not accepted the evidence of Mr Thomas with respect to the nature of the blow which he delivered, that did not preclude him accepting other evidence which Mr Thomas gave with respect to the circumstances in which Mr May was assaulted. In that context the trial judge observed '[t]he only evidence as to what was said or done at the critical moment comes from Mr Thomas and Mr Zeffron Reeves'.67

113 However, somewhat inconsistently, shortly thereafter the trial judge observed:

On the question of what passed between Mr May and Mr Thomas in the moment before the blow, the only witness for Mr May, Ms Chadborne, says Mr Thomas 'walked straight up to' Mr May and punched him. She makes this observation as she is proceeding up the driveway towards Mr May. She cannot say whether or not, or what, was said.

114 The trial judge summarised the evidence of Mr Reeves and Mr Thomas to the effect that:

Mr May, full of rage and alcohol, came at them hand or hands raised perhaps to barge through them, to try and return to the party to get his girlfriend.

This observation is expressed in terms of a summary of the evidence given by Mr Reeves and Mr Thomas, rather than a finding of fact. He described this evidence as 'a scenario giving rise to self-defence issues'.

115 The trial judge then observed that Mr May's case, based upon Ms Chadbourne's evidence, was to the effect that:

[T]he punch was delivered unlawfully, without preamble, not in defence of anybody and inferentially it was, in effect, summary punishment for obnoxious behaviour.

The trial judge expressed the view that this version of events was 'not impossible', given the extent of Mr May's obnoxious drunken boorish behaviour at the party. The trial judge then observed:

However I do not think it is likely a some-time amateur boxer with no criminal convictions at all would assault and knock down a man who has offered him no threat or insult.

Conversely it is plausible an angry and intoxicated freshly ejected misled party guest would seek to force re-entry by physical means of some kind.

On the balance of probabilities, I think it more likely than not that Mr May posed a threat justifying a physical response.

In order to defend himself and/or Zeffron Reeves and/or to prevent him from re-entering the party, Mr Thomas punched Mr May once in the jaw and knocked him down.72

116 The trial judge then addressed '[t]he question whether the punch to the jaw was a reasonable response in the circumstances'.73 After referring to a number of authorities on the subject of self-defence the trial judge held:

In the circumstances of this case obviously there was a major problem in the driveway with Mr May's drunken obnoxious behaviour and he was a very large man, angry, and wanting his girlfriend to come with him.

His girlfriend, Ms Chadborne, had been inside the house in tears as a result of his earlier conduct.

Zeffron Reeves and later Mr Thomas went out there to try and keep Mr May away from coming back inside the house. It is unarguable that their presence there was for the purpose of preventing another breach of the peace and further disturbance in the party.

It seems to me that accepting Mr Reeves' and Mr Thomas' account of the critical seconds before a punch was delivered which account is not contraverted [sic] by other evidence, that what was done was reasonably necessary to make effectual defence in all the circumstances.

Consequently Mr May's claim for damages must be dismissed.74

Analysis of the reasons given by the trial judge

117 One thing is pellucidly clear from the reasons of the trial judge. He found that Mr Thomas punched Mr May in the jaw, causing him to fall backwards and strike his head on the bitumen and, inferentially, causing the injuries suffered by Mr May. However, with respect to the trial judge, ascertainment of the other facts which he found is much harder, given the terms in which his reasons are expressed.

118 Viewed from the perspective of chronological sequence, the first relevant fact which had to be determined was the nature of the threat posed by Mr May, viewed objectively. On this subject, as I have noted, the trial judge contrasts the evidence given by Ms Chadbourne to that given by Mr Thomas and Mr Reeves. His summary of the latter evidence which I have set out above75 refers to Mr May, in a rage and intoxicated, coming at the men with a hand or hands raised - perhaps to barge through them, to try and return to the party to get his girlfriend. Significantly, in the course of enunciating his process of reasoning, the trial judge makes no reference to any evidence given by either Mr Thomas or Mr Reeves to the effect that Mr May's actions conveyed a threat that either man would be punched by Mr May. Perhaps the closest reference to any such evidence is the oblique reference to their evidence describing 'a scenario giving rise to self-defence issues'.76

119 In his assessment of the likely scenarios, the trial judge expressed the view that it was 'plausible' that Mr May 'would seek to force re-entry by physical means of some kind'.77 However, no reference is made, and in particular no finding of fact is made as to the physical means which Mr May was likely to have used - whether it was to be by pushing aside Mr Reeves and Mr Thomas or by attacking them.

120 As I have noted, on this topic the reasons given by the trial judge take the course of referring to the conflict in the evidence given by the various witnesses, and an expression of view as to the probabilities of the situation. The only portion of this section of the reasons expressed as a finding of fact on this topic is:

On the balance of probabilities, I think it more likely than not that Mr May posed a threat justifying a physical response.

121 The obvious difficulty with a finding cast in such general terms is that it is impossible to identify the nature of the threat or the nature of the physical response which is said to have been justified. In particular, read in the context of the trial judge's summary of the evidence given by Mr Thomas and Mr Reeves, the terms in which the finding is expressed do not reveal whether the trial judge found that Mr May was threatening to strike Mr Thomas, or Mr Reeves, and if so which, or both, or whether his actions were only consistent with a desire to push his way past the men so that he could re-enter the party. The difference between those alternative findings of fact is obviously critical to the various defences invoked by Mr Thomas.

122 The uncertainty is compounded by the sentence which immediately follows this finding in the reasons given by the trial judge, namely:

In order to defend himself and/or Zeffron Reeves and/or to prevent him from re-entering the party, Mr Thomas punched Mr May ... .

123 As expressed, the sentence refers to the motivation of Mr Thomas and as such, seems to relate to Mr Thomas' state of mind. However, it follows immediately upon the finding of fact made with respect to Mr May's actions without any indication that a different topic was being addressed. In addition to the difficulty of ascertaining whether this statement is to be taken as a finding of fact with respect to Mr May's actions, or a finding of fact with respect to Mr Thomas' state of mind or purpose, the double use of the conjunctive/disjunctive 'and/or' makes it impossible to ascertain which of the various possible permutations of fact has been found by the trial judge. As expressed, it is possible that the trial judge found that Mr Thomas punched Mr May for any of the following reasons, or perhaps in any of the following circumstances:

• in order to defend himself;

• in order to defend himself and to prevent Mr May re-entering the party;

• in order to defend Mr Reeves;

• in order to defend Mr Reeves and to prevent Mr May from re-entering the party;

• in order to defend himself and Mr Reeves;

• in order to defend himself and Mr Reeves and to prevent Mr May from re-entering the party; and

• in order to prevent Mr May from re-entering the party.

124 In the next section of his reasons, which were ostensibly directed to the question of whether 'the punch to the jaw was a reasonable response in the circumstances', the trial judge appears to accept 'Mr Reeves' and Mr Thomas' account of the critical seconds before a punch was delivered'.80 On its face, this appears to be a finding of fact based upon an acceptance of the evidence given by Mr Reeves and Mr Thomas as to Mr May's conduct prior to the blow being struck by Mr Thomas. However, there are a number of difficulties with a finding expressed in those terms. The first is that the evidence given by Mr Reeves and Mr Thomas with respect to Mr May's conduct was not entirely consistent, either within itself, or with the evidence given by the other. At different points in the evidence given by each, different descriptions were given of Mr May's conduct, and those descriptions differed in some significant respects from the statements which each had made to police in the weeks following the incident. Further, generally speaking, the descriptions of Mr May's conduct by Mr Reeves differed in some significant respects from the descriptions of Mr May's conduct given by Mr Thomas.

125 It seems a fair inference that by expressing his acceptance of the account given by Mr Reeves and Mr Thomas of the critical seconds before the punch was delivered, the trial judge was indicating his acceptance of his earlier summary of that evidence to the effect that:

[T]he gist of what is said by both these men is that Mr May, full of rage and alcohol, came at them hand or hands raised perhaps to barge through them, to try and return to the party to get his girlfriend.

However, as I have already noted, the difficulty with that summary of the evidence is that it makes no reference to the physical means which Mr May was likely to have used apart from the possibility that 'perhaps' he may have barged through the two men. That view of the findings made by the trial judge is consistent with his later reference to the plausibility of 'an angry and intoxicated freshly ejected misled party guest' seeking 'to force re-entry by physical means of some kind', without any identification of the physical means which were to be used, or which Mr Thomas might have apprehended were to be used. However, if this is the extent of the findings of fact made by the trial judge, it is difficult to see how a finding limited to 'barging through' or 'forc[ing] re-entry by physical means of some kind' could sustain a finding that a punch to the jaw with sufficient force to cause Mr May to fall backwards and strike his head on the bitumen was 'reasonably necessary to make effectual defence in all the circumstances'.

126 Turning from the findings which were necessary with respect to the conduct of Mr May, to those which were necessary with respect to the actions of Mr Thomas, as will be clear from my analysis of the statutory and common law defences, it was necessary for the trial judge to make findings with respect to the subjective intention of Mr Thomas, and his subjective beliefs as to the circumstances with which he was confronted, and findings with respect to whether there were reasonable grounds for those beliefs, viewed objectively, and to the extent that there were, whether Mr Thomas' response was reasonable, viewed objectively, and as to the likely consequences of the force which Mr Thomas used. The reasons of the trial judge do not specifically address any of these issues.

127 The reasons of the trial judge do not separately address any of the four statutory defences, or the common law defences, or make specific findings with respect to the elements of those defences which had to be established by Mr Thomas. A comparison of those elements, identified in the analysis at [25] - [41] above, with the reasons given by the trial judge reveals the many omissions from those reasons.

Self-defence and aiding in self-defence - s 248 and s 250

128 The defences provided by s 248 and s 250 of the Criminal Code can be conveniently considered together. The first element of each defence required Mr Thomas to establish that Mr May unlawfully assaulted either Mr Reeves or himself. As an assault is committed by any bodily act or gesture which involves a threat to apply force of any kind to another person without that person's consent, it seems clear that the trial judge would have found this element of each defence satisfied, assuming he can be taken to have found that Mr May came at both men with 'hand or hands raised perhaps to barge through them'.

129 The second element of each defence required Mr Thomas to establish that the assault was not provoked. Although not specifically addressed by the trial judge, it seems reasonable to infer that he would have found this element of each defence to be established, given the lack of any evidence to the effect that either Mr Thomas or Mr Reeves provoked Mr May.

130 The third element of each defence required Mr Thomas to establish that the force which he used was reasonably necessary to make an effectual defence against the assault by Mr May. In relation to this element of each defence, it is clear that the trial judge found that Mr Thomas punched Mr May on the jaw with sufficient force to cause him to fall to the ground and strike his head. However, as I have already noted, because of the uncertainty in relation to the findings of fact made by the trial judge with respect to the nature of the assault which Mr May had committed, and in particular, whether the assault took the form of pushing his way back into the party or alternatively threatening to punch either Mr Thomas or Mr Reeves or both, it is impossible to assess whether the trial judge has erred in his apparent conclusion that this element of each defence had been made out.

131 The fourth element of each defence required the trial judge to determine whether Mr Thomas intended to cause grievous bodily harm to Mr May and whether the force used by Mr Thomas was likely to cause grievous bodily harm to Mr May. The trial judge made no finding on either issue. If a positive finding had been made with respect to either issue, it would then have been necessary for the trial judge to assess whether:

(a) the nature of Mr May's assault upon Mr Thomas or Mr Reeves was such as to cause a reasonable apprehension of grievous bodily harm; and, if so

(b) whether Mr Thomas believed that he could not preserve himself or Mr Reeves from grievous bodily harm other than by using the force which he used; and, if so

The trial judge made no findings with respect to any of these matters.

Defence against home invasion - s 244

132 The trial judge made no findings directed specifically to the elements of the defence provided by s 244 of the Criminal Code. In particular, the trial judge made no finding as to whether:

(a) Mr Thomas was authorised by Mr or Mrs Sadgrove to prevent Mr May from re-entering their property;

(d) Mr Thomas believed that the force which he used was necessary:

(i) to prevent Mr May from wrongfully entering Mr and Mrs Sadgrove's property; or

(ii) to cause Mr May, who was wrongfully on Mr and Mrs Sadgrove's property, to leave the property; or

(iii) to make effectual defence against violence used or threatened by Mr May who was attempting wrongfully to enter Mr and Mrs Sadgrove's property or was wrongfully on their property; or

(iv) to prevent Mr May from committing, or to make Mr May stop committing, an offence on Mr and Mrs Sadgrove's property; and, if so

(e) Mr Thomas had reasonable grounds for that belief,

although it seems clear that the trial judge did find that Mr Thomas believed that Mr May was attempting to wrongfully enter the property and had reasonable grounds for that belief.

Defence of property against trespassers - removal of disorderly persons - s 254

133 Similarly, the trial judge made no express findings with respect to any elements of the statutory defence provided by s 254 of the Criminal Code. In particular, the trial judge made no findings as to whether:

(a) Mr Thomas was authorised by Mr or Mrs Sadgrove to prevent Mr May from wrongfully entering their property;

(b) Mr Thomas used only such force as was reasonably necessary to prevent Mr May from wrongfully entering the property;

(d) the force used by Mr Thomas was not such as was likely to cause grievous bodily harm to Mr May.

The common law defences

134 The reasons given by the trial judge draw no distinction between the statutory defences and the common law defences upon which Mr Thomas relied, although, as I have noted, there is a significant overlap between the elements of those defences. The first two elements of the common law defences required the trial judge to make findings with respect to Mr Thomas' subjective beliefs as to whether Mr May was about to assault him or Mr Reeves, and whether the force which he used was necessary in order to defend himself or Mr Reeves from Mr May's attack. The third element of the common law defences required the trial judge to make findings as to whether Mr Thomas had reasonable grounds for those beliefs, in the circumstances as he perceived them to be. As I have noted, the trial judge made no findings with respect to Mr Thomas' subjective state of mind, or with respect to the existence of reasonable grounds for that state of mind, and it is impossible to infer such findings from the reasons which he gave.

The grounds of appeal

135 There are seven grounds of appeal. Five of those grounds (grounds 1 - 4 and ground 7) complain of the deficiencies in the reasons given by the trial judge, and in particular his failure to specifically address the various defences upon which Mr Thomas relied, and his failure to make the findings of fact necessary to assess whether those defences had been made out. It is unnecessary to set those grounds out in any detail as it will be apparent from the matters I have already addressed that these grounds must be upheld. I will return to the issue of the appropriate disposition of the appeal, in the light of the success of those grounds, following consideration of the remaining two grounds of appeal, and of the notice of contention.

Ground 5

136 Ground 5 is in the following terms:

In light of the testimony of Ms Kate Chadbourne as to the events immediately before the respondent's punch, the learned trial judge erred in fact in finding that the respondent's and Zeffron Reeves' account of the critical second before a punch was delivered was not controverted by other evidence.

137 It should first be noted that, having regard to my conclusion that the reasons given by the trial judge, and in particular those aspects of the reasons relating to the conduct of Mr May prior to being struck by Mr Thomas are deficient, the success of this ground of appeal would have no significant effect upon the disposition of the appeal. It can therefore be addressed quite briefly.

138 As I have already noted, there is an apparent inconsistency between the observation by the trial judge to the effect that the only evidence as to what was said or done at the critical moment was that provided by Mr Thomas and Mr Reeves, and his observations shortly thereafter to the effect that Ms Chadbourne's evidence was that 'Mr Thomas "walked straight up to" Mr May and punched him'.83 However, this apparent inconsistency is more semantic than substantive when regard is paid to the evidence given by Ms Chadbourne with respect to the seconds preceding the delivery of the punch which she described.

139 During her evidence-in-chief Ms Chadbourne was not specifically asked whether she saw Mr May gesturing towards either Mr Thomas or Mr Reeves prior to the punch which she saw delivered, nor was she asked whether she heard any discussion between the men concerned. During cross-examination, when asked whether Mr May was behaving in a belligerent manner, or whether he was engaged in a verbal confrontation with the other men, her evidence was consistently expressed in terms of 'I don't know', 'I don't recall' or 'not in my memory'.84

140 In his assessment of Ms Chadbourne's evidence, the trial judge observed, correctly in my view, that she was not able to say whether there was or there was not any verbal exchange or contact prior to the punch which she observed. He also noted that it was possible she was not close enough to hear what was being said at the time. In the light of those observations, evaluation of the reasons given by the trial judge as a whole suggests that he did not construe the evidence of Ms Chadbourne as being inconsistent with the evidence given by Mr Reeves and Mr Thomas as to the events prior to the punch, essentially because her evidence was to the effect that did not know or could not recall what occurred immediately prior to the delivery of the blow. That finding was open on the evidence. It follows that ground 5 should be dismissed.

Ground 6

141 Ground 6 is in the following terms:

The learned trial judge erred in fact in finding that the respondent's punch was 'reasonably necessary to make effectual defence in all the circumstances' given:

(a) the respondent did not know whether he was about to be hit or whether the appellant wanted to push past him;

(b) the appellant's stance or body position was not suggestive of imminent attack;

(d) the respondent was skilled in restraining people;

(e) the respondent was skilled in evading or defending against impending blows;

(f) there was ample opportunity to escape, evade or avoid the appellant;

(g) the respondent himself did not seek to justify such a level of force;

(h) Mr Zeffron Reeves did not seek to apply such a level of force or indeed any force.

142 It should first be noted that this ground is materially different to the other grounds of appeal, all of which are directed to alleged deficiencies and inconsistencies in the reasons given by the trial judge. This ground is directed to the finding made by the trial judge to the effect that Mr Thomas' response was reasonably necessary to make effectual defence. Because of the nature of the appellate process, this ground could only succeed if, on the evidence, such a finding was not open or was contrary to compelling inferences, incontrovertible facts or uncontested testimony.85 It follows that if this ground of appeal were to succeed, a question would arise to whether the appropriate disposition of the case would be to award judgment in favour of Mr May. That question would require an assessment of the impact which a finding of fact to the effect that a punch to the jaw was not reasonably necessary to make effectual defence would have upon the various defences invoked by Mr Thomas.

143 It also follows from the nature of this ground that, unlike the other grounds, its assessment requires attention to be focused upon the evidence, rather than upon the reasons given by the trial judge. As I have noted, Mr Thomas gave evidence to the effect that he believed Mr May was coming towards him and Mr Reeves 'to push us out of the way or to hit us'.86 Although the statement made by Mr Thomas to police was cast in somewhat different terms, in that statement he referred on two occasions to self-defence. Mr Thomas also gave evidence to the effect that Mr May approached him with clenched fists and with a stance which he described as threatening.87 He also gave evidence to the effect that he thought Mr Reeves was in imminent danger.

144 Mr Reeves gave evidence to the effect that Mr May was aggressive and raised a fist towards both him and Mr Thomas and 'just sort of lurched forward to throw a punch',88 and that he appeared to be shaping to throw a punch.89

145 This evidence was capable of sustaining a finding to the effect that, as a matter of objective fact, Mr May assaulted either or both of Mr Thomas and Mr Reeves by adopting gestures which suggested that he was about to punch one or other of them and that Mr Thomas believed, on reasonable grounds, that such an assault was imminent, and that punching Mr May to the face was reasonably necessary to make an effective defence against that assault. On the evidence, it was also open to find that the force used by Mr Thomas was not intended nor was it such as was likely to cause grievous bodily harm to Mr May. It follows that it was open, on the evidence, to find that either of the statutory defences provided by s 248 and s 250 of the Criminal Code, or the common law defences were made out. It follows that ground 6 must be dismissed.

146 Of course these observations are not intended to suggest in any way the findings which should have been made on the evidence. Clearly on the evidence there were a range of findings open with respect to the nature of Mr May's conduct prior to the altercation, as to the beliefs of Mr Thomas, as to the grounds for those beliefs, and as to whether the force used by Mr Thomas was intended or such as was likely to cause grievous bodily harm to Mr May. This ground of appeal could only succeed if the only finding reasonably open on the evidence was to the effect that the force used was not reasonably necessary to make effectual defence. That proposition must be rejected.

The notice of contention

147 The notice of contention is in the following terms:

1. The learned trial judge erred in fact in finding ... that Kate Chadbourne witnessed the respondent assault the appellant.

2. The learned trial judge erred in fact in finding ... that the respondent punched the appellant to the face, rather than finding that the respondent pushed the appellant.

148 During the hearing of the appeal counsel for the respondent properly conceded that the first ground of contention was insufficient, of itself, to sustain the conclusion of the trial judge to the effect that Mr May's claim should be dismissed and should properly be construed as an aspect of the second ground. Thus construed, the essence of the notice of contention is the proposition that the conclusion of the trial judge to the effect that Mr May's claim should be dismissed should be upheld on the ground that the trial judge should have found that Mr Thomas did not punch Mr May in the face, but merely pushed him away.

149 The well established principles governing the appellate process are relevant to the assessment of that proposition. Those principles include the obligation of the appellate court to give the judgment which ought to have been given at first instance, while observing the natural limitations which attach to an appellate court proceeding wholly on the record, including the disadvantages of the appellate court as compared to the trial judge when evaluating the credibility of witnesses or the 'feeling' of a case.90

150 The first aspect of the notice of contention concerns the evidence given by Ms Chadbourne to the effect that she observed Mr Thomas punch Mr May. It is contended that it should have been found that Ms Chadbourne was not in a position to witness the incident, based upon the testimony of Ms Sadgrove and Mr Reeves.

151 The fundamental difficulty with this proposition is that Ms Chadbourne gave clear and unequivocal evidence to the effect that she saw Mr Thomas punch Mr May. As the trial judge noted, that evidence was consistent with a statement which she made to police the day after the incident. It was open to the trial judge to accept that evidence, as he apparently did, notwithstanding the reservations which he expressed with respect to the paucity of detail in Ms Chadbourne's evidence. The evidence given by Ms Chadbourne was not glaringly improbable, nor contrary to compelling inferences, or incontrovertible facts or uncontested testimony.91 Ms Chadbourne's evidence was, of itself, if accepted, sufficient to sustain a finding to the effect that Mr Thomas punched Mr May in the face. It follows that the notice of contention must be rejected.

152 However, for completeness, it is appropriate to briefly refer to the other main argument advanced in support of the notice of contention, which was to the effect that the injuries sustained by Mr May were consistent with him having been pushed, rather than punched, and the contrary conclusion of the trial judge was erroneous. This proposition must also be rejected, for the following reasons.

153 The evidence established that when Mr May presented at Fremantle Hospital the morning after the incident there was dried blood around his mouth and nose, and he had swollen lips.92 Further, a photograph of Mr May taken the day after the incident by police clearly shows a cut on his chin.93 There was evidence to the effect that these injuries were consistent with being punched in the mouth, and that the fracture to the rear of his skull was consistent with Mr May having fallen backward after being punched and hitting his head on the ground. Dr Fong gave evidence to the effect that the injury sustained by Mr May was consistent with a fall backwards from a standing position,94 and that it was unlikely to be caused by Mr May having been dropped while being carried unless he was being carried at an unusual height,95 that height being approximately 1.5 m or shoulder height.96

154 Thus the evidence clearly established that Mr May had experienced injuries to the front and to the back of his head. The injury to Mr May's face could only have been caused by him being dropped while being carried to Mr Chadbourne's car if he was being carried face down. That seems improbable, and there was no evidence to that effect. Further, having regard to Dr Fong's evidence, the injury to the back of Mr May's head could only have been caused as a result of him being dropped while being carried to Mr Chadbourne's car if he had been dropped from about shoulder height. There was no evidence to the effect that Mr May was being carried at that height, and there was evidence to the contrary - namely, to the effect that he was in essence being dragged to the car. Given Mr May's size and weight, it seems improbable that he would have been carried at such a height that a drop from that height could have caused the severe injury to his skull.

155 Dr Fong gave evidence to the effect that the injury to Mr May's skull could have been caused if he had fallen straight backwards after being punched - which the judge described, with Dr Fong's agreement, as dropping 'like a tree'.97 This is effectively what the trial judge found occurred, after Mr Thomas punched Mr May to the face. That finding was open on the evidence. This is another reason why the notice of contention must be dismissed.

The appropriate disposition of the appeal

156 For the reasons I have given, the grounds of appeal relating to the deficiencies in the reasons and findings of the trial judge must be upheld. However, the only ground of appeal which might have resulted in a verdict for Mr May must be dismissed, and the notice of contention, which if successful might have resulted in a verdict for Mr Thomas, must also be dismissed. The question which thus arises is whether this court can make its own assessment of the facts based upon the record of the trial, and substitute its conclusions for those of the trial judge, or whether the matter must be remitted to the District Court for re-trial. That question is to be resolved by reference to the interests of justice, having regard to the all the circumstances of the case.

157 In the circumstances of this case, it would be highly desirable to avoid a re-trial if at all possible, consistently with the interests of justice. The events in question took place more than 13 years ago, and the effluxion of such a substantial period of time necessarily impedes the reliability of the trial process. However, there is a great deal at stake for both Mr May and Mr Thomas. The outcome of these proceedings necessarily depends upon the resolution of contentious issues of fact with respect to the actions of each of Mr May and Mr Thomas, and in the case

of Mr Thomas, an assessment of his state of mind at the relevant time. Findings with respect to those matters can only be made, consistently with the interests of justice, after a careful evaluation of the conflicting evidence given by the various witnesses to those matters, in the context of a trial, and taking proper account of their demeanour and reliability. In my view it would not be consistent with the interests of justice to attempt to undertake that task entirely upon the basis of the written record. For that reason, I have concluded, with regret, that the only course open, consistent with the interests of justice, is to set aside the decision of the trial judge and to remit the matter to the District Court differently constituted for re-hearing.

158 Although I would hear from the parties as to the precise orders properly made to give effect to these reasons, in general terms I would allow the appeal, dismiss the notice of contention, set aside the decision of the trial judge and remit the matter to the District Court differently constituted for re-hearing.

159 BUSS JA: This appeal from a judgment of Fenbury DCJ, after a trial in the District Court, should be allowed. I agree with the reasons of Martin CJ.

160 CHANEY J: I agree for the reasons given by Martin CJ that the appeal should be allowed and the notice of contention should be dismissed. I also agree that the matter should be remitted to the District Court differently constituted for rehearing.

______________________________________

1 ts 269.
2 All references to legislation in these reasons are references to the legislation in force on 3 March 2001.
3West Australian Newspapers Ltd v Bridge (1979) 141 CLR 535.
4West Australian Newspapers Ltd v Bridge (540) (Barwick CJ), (544 - 545) (Jacobs J, Stephen J agreeing); Meeks v Kirkham [2000] WASCA 94 [9] (Kennedy J, Ipp & Wallwork JJ agreeing).
5Criminal Code s 1.
6 Read with s 5 of the Criminal Code Act.
7 It was common ground that Mr Thomas bore the onus of proof of establishing both the statutory and common law defences (ts 4 - 5).
8Quartermaine v The State of Western Australia [2008] WASCA 22 [38] (Beech J, Pullin & Miller JJA agreeing).
9 For discussion of the meaning of 'likely', see R v Hung [2012] QCA 341; [2013] 2 Qd R 64; R v Trieu [2008] QCA 028.
10R v Dietz [2009] QCA 392; R v Green [2013] QCA 24 [16].
11 See for example Hooper v The Queen [2003] WASCA 179 - a case in which the victim was struck once to the face causing him to fall directly backwards, hit his head on the brick driveway and died. In the first trial the accused was convicted of grievous bodily harm but following a re-trial, was acquitted on that count, apparently on the basis of accident, but convicted of assault occasioning bodily harm.
12Zecevic v Director of Public Prosecutions (Vic) [1987] HCA 26; (1987) 162 CLR 645, 661.
13Watkins v Victoria [2010] VSCA 138 [71] - [72] (Ashley JA & Beach AJA, Mandie JA agreeing).
14R v Portelli [2004] VSCA 178; (2004) 10 VR 259.
15Leason v Attorney-General [2013] NZCA 509; [2014] 2 NZLR 224 [52].
16Gibbs v Willis [2013] ACTSC 26 [137].
17 ts 26.
18 ts 26.
19 ts 26.
20 ts 27.
21 ts 29.
22 ts 29.
23 ts 29 - 30.
24 ts 30.
25 ts 30.
26 ts 31.
27 ts 31.
28 ts 31 - 32.
29 ts 32.
30 ts 32.
31 ts 33.
32 ts 33.
33 ts 34.
34 ts 39.
35 ts 50 - 51.
36 ts 73.
37 ts 75.
38 ts 164.
39 ts 163.
40 ts 164.
41 ts 165.
42 ts 166.
43 ts 169.
44 ts 186.
45 ts 187.
46 ts 190.
47 ts 191.
48 ts 194.
49 Ms Sadgrove gave evidence under her married name of Reeves.
50 ts 215.
51 ts 229.
52 ts 234, 237.
53 ts 287.
54 ts 371.
55 Referring to Powell v The Queen (Unreported, WACCA, Library No 4004, 2 December 1980).
56May v Thomas [No 2] [2012] WADC 96 [53] (Reasons).
57 Reasons [59].
58 Reasons [65].
59 Reasons [70].
60 See above [77].
61 Reasons [82].
62 Reasons [87].
63 Reasons [97] - [98].
64Briginshaw v Briginshaw [1938] HCA 34; (1938) 60 CLR 336, 350 (Rich J), 362 (Dixon J).
65 Reasons [112].
66 Reasons [114].
67 Reasons [118].
68 Reasons [120].
69 Reasons [119].
70 Reasons [121].
71 Reasons [121].
72 Reasons [123] - [126].
73 Reasons [129].
74 Reasons [134] - [138].
75 At [114] above.
76 Reasons [121].
77 Reasons [124].
78 Reasons [125].
79 Reasons [126].
80 Reasons [137].
81 Reasons [119].
82 Reasons [137].
83 Reasons [118], [120].
84 ts 360.
85Fox v Percy [2003] HCA 22; (2003) 214 CLR 118 [28] - [29].
86 ts 31.
87 ts 51.
88 ts 165.
89 ts 186.
90Fox v Percy [23].
91 See Fox v Percy [28] - [29].
92 See the patient care record and medical report, GAB 70 - 71.
93 GAB 56.
94 ts 329.
95 ts 329.
96 ts 334.
97 ts 330.