McDonald v Stevenson

[2005] WASC 293

MCDONALD -v- STEVENSON [2005] WASC 293

Jurisdiction:	SUPREME COURT OF WESTERN AUSTRALIA	Citation No:	[2005] WASC 293
Case No:	SJA:1035/2005	Heard:	16 DECEMBER 2005
Coram:	HASLUCK J	Delivered:	16/12/05
No of pages:	17	Judgment Part:	1 of 1
Result:	Appeal against conviction allowed No order as to appeal against sentence
Category:	B
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Parties:	ALAN WILLIAM MCDONALD MARK EDWARD STEVENSON
Catchwords:	Criminal law Assault Self-defence Provision of aid by onlooker Degree of force issue Defence of honest and reasonable but mistaken belief Failure to address and resolve certain issues Appeal against conviction allowed
Legislation:	Criminal Code (WA) s 24, s 248, s 249, s 250, s 313
Case References:	Davis v Egan, unreported; SCt of WA; Library No 960659; 15 November 1996 Devries v Australian National Railways Commission (1993) 177 CLR 472 Garrett v Nicholson (1999) 21 WAR 226 Glennon v The Queen (1994) 179 CLR 1 Harling v Hall (1997) 94 A Crim R 437 Lomans v Morony [2000] WASCA 90 M v R (1994) 181 CLR 487 R v Payne [1970] Qd R 260 Randle v The Queen (1995) 15 WAR 26 Verhoeven v Ninyette (1998) 101 A Crim R 24 Whitehead v Procopis [2005] WASC 195 Betts v Hardcastle 120 A Crim R 463 Fox v Percy (2003) 214 CLR 118 Griekspoor v Scott (2000) 23 WAR 530 Harper v Page [2004] WASCA 267 Koenig v Ryan [2001] WASCA 339 Lean v The Queen (1989) 1 WAR 348 Milstead v Cream, unreported; SCt of WA; (Walsh J); Library No 8648; 19 December 1990 Neale v Sloan (1997) 27 MVR 246 Pemble v The Queen (1971) 124 CLR 107 R v Tognini (2000) 22 WAR 291 Riley v Gill, unreported; SCt of WA; (Parker J); Library No 970731; 8 December 1997

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA

IN CIVIL

CITATION : MCDONALD -v- STEVENSON [2005] WASC 293 CORAM : HASLUCK J HEARD : 16 DECEMBER 2005 DELIVERED : 16 DECEMBER 2005 FILE NO/S : SJA 1035 of 2005

SJA 1056 of 2005

BETWEEN : ALAN WILLIAM MCDONALD

Appellant

AND

MARK EDWARD STEVENSON
Respondent

ON APPEAL FROM:

Jurisdiction : MAGISTRATES COURT OF WESTERN AUSTRALIA

Coram : MAGISTRATE T J MCINTYRE

File No : RO 4093 of 2004

Catchwords:

Criminal law - Assault - Self-defence - Provision of aid by onlooker - Degree of force issue - Defence of honest and reasonable but mistaken belief - Failure to address and resolve certain issues - Appeal against conviction allowed

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Legislation:

Criminal Code (WA) s 24, s 248, s 249, s 250, s 313

Result:

Appeal against conviction allowed

No order as to appeal against sentence

Category: B

Representation:

Counsel:

Appellant : Mr M J Bowden
Respondent : Mr T C Russell

Solicitors:

Appellant : Cannon Bowden & Co
Respondent : State Solicitor's Office

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

Davis v Egan, unreported; SCt of WA; Library No 960659; 15 November 1996
Devries v Australian National Railways Commission (1993) 177 CLR 472
Garrett v Nicholson (1999) 21 WAR 226
Glennon v The Queen (1994) 179 CLR 1
Harling v Hall (1997) 94 A Crim R 437
Lomans v Morony [2000] WASCA 90
M v R (1994) 181 CLR 487
R v Payne [1970] Qd R 260
Randle v The Queen (1995) 15 WAR 26
Verhoeven v Ninyette (1998) 101 A Crim R 24
Whitehead v Procopis [2005] WASC 195





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Case(s) also cited:

Betts v Hardcastle 120 A Crim R 463
Fox v Percy (2003) 214 CLR 118
Griekspoor v Scott (2000) 23 WAR 530
Harper v Page [2004] WASCA 267
Koenig v Ryan [2001] WASCA 339
Lean v The Queen (1989) 1 WAR 348
Milstead v Cream, unreported; SCt of WA; (Walsh J); Library No 8648; 19 December 1990
Neale v Sloan (1997) 27 MVR 246
Pemble v The Queen (1971) 124 CLR 107
R v Tognini (2000) 22 WAR 291
Riley v Gill, unreported; SCt of WA; (Parker J); Library No 970731; 8 December 1997


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HASLUCK J:

Introduction

1 There are two appeals before me arising out of rulings made in the Magistrates Court at Rockingham on 21 January 2005 and 28 February 2005. The appeals concern an altercation that occurred outside the Vibe Nightclub in Railway Terrace, Rockingham, at about 2 am on Sunday, 1 August 2004. The appeal against conviction (SJA 1056/2005) is subject to an application for an extension of time for leave to appeal being allowed. I will return to this aspect of the matter later.

2 The appellant, Alan William McDonald, was charged that on 1 August 2004 at Rockingham he unlawfully assaulted Dean Jade Cone contrary to s 313 of the Criminal Code. I note in passing that by s 313 of the Code any person who unlawfully assaults another is guilty of a simple offence. Absent circumstances of aggravation an offender is liable to imprisonment for 18 months and a fine of $18,000.

3 The term "assault" is defined in s 222 of the Criminal Code. A person who strikes or applies force of any kind to the person of another without his consent is said to assault that person. A definition of this kind clearly allows for the possibility that a single blow or a flurry of blows could be characterised as a series of discrete assaults. However, the decided cases indicate that ultimately the question of whether one continuous assault has occurred or whether there are separate assaults is a matter for applying a commonsense approach to the facts: Lomans v Morony [2000] WASCA 90; Whitehead v Procopis [2005] WASC 195.

4 On 21 January 2005 the appellant was convicted of unlawful assault contrary to s 313 of the Code. Some weeks later, on 28 February 2005, he was sentenced to a fine of $1250. On 19 July 2005 the appellant was granted leave to appeal against sentence on the ground that the learned Magistrate erred in law in not having regard to the provisions of s 45(1) of the Sentencing Act 1995 (WA) and in deciding that a spent conviction was not appropriate.

5 On 19 July 2005 an order was made in SJA 1056 of 2005 for the application for an extension of time within which to appeal against conviction to be heard in conjunction with the appeal. The appellant was granted leave to appeal against conviction on the grounds that the Magistrate erred in law in certain respects. I will come to these grounds of appeal shortly.

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6 Let me first turn to the appeal against conviction being the matter with which I am principally concerned.

The appeal against conviction

7 The prosecution evidence can be summarised in this way. The complainant, Dean Cone, was called as the main witness for the prosecution. He said that he was at the Vibe Nightclub with his partner, Rose Kavanagh, his brother in law Andrew Kavanagh, and the latter's girlfriend Donna Jeffs. He acknowledged that he had had a lot to drink.

8 The group was sent outside after an incident, and it seems that Mr Cone finished up on the ground fighting with another man by the name of Shepherd. Mr Cone was eventually in a position of being on top of his adversary. Mr Cone gave evidence to the effect that he then received a couple of good blows to the side of his head. He agreed that the man he was on top of could have been calling out for help.

9 I pause here to say that the tenor of Mr Cone's evidence is somewhat unclear and he does not always say expressly what seems to be implied in certain of his assertions. However, overall it seems to emerge from his evidence that the so-called blows to the head were blows or force applied by the appellant, being the matters complained of by Mr Cone, and being matters that caused pain and injury to him.

10 Rose Kavanagh said in evidence that Dean and a male were having a fight on the ground and someone came over and started kicking at the former's face. She identified the appellant as the assailant. She accepted that Dean, that is Dean Cone, was on top of the other guy when he was kicked.

11 Donna Jeffs said that she saw Dean on the floor with another guy and she accepted that Dean Cone had been wrestling with the other guy for about two minutes. Andrew Kavanagh's evidence was that he saw Mr Cone on the ground fighting with someone and then he saw a man run up and kick Mr Cone in the face while he was on the ground, and then step back and kick him again.

12 When it came to the defence case, Mr McDonald said that he did security work and normally finished at 12.30 am. He arrived at the nightclub at approximately 1 am. As he was heading out he saw a melee, he heard a scream for help and noticed Danny's brother on the ground with a man on top of him. The man had Danny's brother in a headlock and with his other hand was hitting him. Mr McDonald yelled out, "Get

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off my mate." He said that he feared for his friend's life. He said that he had pulled his shoulder out at football and had no strength in it. He used the sole of his foot on the complainant, that is Mr Cone, and pushed him.

13 I pause here to go to the transcript at 46, being page 68 of the appeal book, in which Mr McDonald under cross-examination said this about the circumstances confronting him:

"Well, I don't think so, because at that time I saw it, I reacted straight away at the time, but I - - I'm not sure what the state of Lee would have been. He could have been for all I knew knocked out. He could have been - - he might have been dead, to the extreme - he obviously wasn't - - and the time it would have taken to call - - get Jason's attention to get him to come to my assistance would have been too much longer. I reacted when I realised it was my - - my friend's brother."

14 There is a central assertion in that passage that Mr McDonald, being the appellant in these proceedings, reacted quickly and, it seems, took action by way of aid when he realised the person in need of assistance was his friend's brother. The evidence suggests that his action and determination to aid was an impulsive or spontaneous reaction.

15 The appellant relied also upon the evidence of the defence witness Paul Gastarov. The latter described the events I have just mentioned. He said that the man on top in the wrestling match was bigger than the other man. Mr Gastarov said that the appellant reached out with his foot, gave the man a nudge and did that on two occasions.

16 Lee Shepherd said in evidence that he was face down in the middle of the road. He was actually in a headlock. He could not move. He had been in a headlock for about 30 seconds. He called out, "Help, Danny" a couple of times. Finally, a Mr Stewart gave evidence of good character on behalf of the appellant.

The reasons for decision

17 The learned Magistrate commenced his reasons for decision (as appears at page 94 of the appeal book) by noting that the prosecution have to prove each of the elements of the subject offence beyond reasonable doubt and negate any matter of excuse beyond reasonable doubt. He noted that in effect the defence was that the defendant - that is, the appellant in these proceedings - was excused from liability, in that he

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came to the aid of Shepherd who was wrestling with the complainant Dean Cone.

18 The learned Magistrate concluded that the appellant's evidence was untenable and lacked credibility because the appellant was at pains to point out that he never at any point in time overreacted. The learned Magistrate, in essence, rejected the appellant's evidence that he had simply shoved Mr Cone with his shoe. The learned Magistrate found that the complainant Cone had suddenly gone from a wrestling, functioning fighter to somebody who was semiconscious and bleeding extensively. This suggested that sudden force had been applied to Cone by the appellant.

19 The learned Magistrate pointed out that it was essentially a choice as to whether what happened was a kick or whether it was a push and he found that the evidence established that there were two kicks to the head, not pushes. The critical passage of his reasons for decision in that respect are to be found at page 75 of the transcript, being page 97 of the appeal book, where the learned Magistrate said that at the end of the day the issue, in his view, came down to a simple resolution of the question of whether or not it was a kick or whether it was a shove.

20 The learned Magistrate reviewed the evidence bearing upon what he had identified as a crucial issue and ultimately concluded that the presence of the bleeding was inconsistent with a nudge of the kind described by the appellant. The learned Magistrate was therefore satisfied on the evidence that the appellant kicked the complainant Cone on two occasions and the prosecution had negated the issue raised by way of defence. Thus one finds this conclusion expressed at page 99 of the appeal book at the end of his Honour's reasons for decision:

"I am satisfied on the evidence that the defendant kicked Cone on two occasions and therefore that the prosecution have negated the issue which is raised by way of defence."

21 Again, it is apparent from the way in which this view is expressed that the learned Magistrate clearly concluded that there was a central issue and the resolution of the case depended upon the resolution of that issue, namely the so-called "kick or shove" issue, or what might be otherwise characterised as the degree of force issue.

22 I pause here to observe that although the learned Magistrate obviously had in mind certain provisions of the Criminal Code concerning criminal responsibility and self-defence as a matter of excuse, he did not

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refer to the relevant provisions explicitly. It will assist in an orderly exposition if I do so now.

The statutory provisions

23 Section 317 of the Code requires that the assault complained of be unlawful. Section 223 of the Code provides that an assault is unlawful and constitutes an offence unless it is authorised or justified or excused by law.

24 This is followed by certain provisions concerning self-defence which define circumstances in which it will be lawful to use force against another. Section 250 provides that 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.

25 It is clearly this provision that the learned Magistrate had in mind in assessing the line of defence being relied upon by the appellant in the subject proceedings.

26 It is apparent from s 250 that in the circumstances of the present case one must transfer one's attention to s 248 and s 249 of the Code dealing with self-defence against unprovoked and provoked assaults. I will not traverse these provisions in their entirety.

27 By s 248 the general principle is that the accused person may use such force as is reasonably necessary to make effectual defence against an assault. An objective test is to be applied as to whether the force used was reasonable. The second part of the provision concerns circumstances where the person being assaulted has a reasonable apprehension of death or grievous bodily harm. I do not see that as applying here.

28 Section 249 concerns the situation in which the accused person has initiated the conflict by provoking an assault. It emerges that he may still rely on self-defence where there is a prospect of death or bodily harm or that is apprehended. Again, that does not seem to apply here.

29 It was with these provisions in mind, and especially s 250 concerning aid, that the learned Magistrate addressed the issues before him. I pause to note that there was compelling evidence before him that the complainant Cone was on top of Shepherd at the moment of intervention. That seems to be acknowledged by the learned Magistrate in his reasons.

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The issues

30 As I have indicated, his Honour reviewed the evidence and sought to define the issues and make findings. In the end, he sought to reduce the matters before him to a single central issue; that is, the degree of force issue.

31 The learned Magistrate noted that there was no real dispute that Cone was wrestling on the ground with Shepherd. It was in that context that the appellant intervened and allegedly assaulted the complainant Cone by using his foot. However, there was a conflict on the evidence between the various witnesses as to whether the appellant kicked the complainant Cone or simply shoved him with his foot.

32 The learned Magistrate said that at the end of the day the issue in his view came down to a simple resolution of the question of whether or not it was a kick or a shove. Having reviewed the credibility of the witnesses, the learned Magistrate concluded that the appellant had given two kicks to the head and exaggerated the supposed impending harm to Shepherd. It was against that background that he finished up by saying that he was satisfied on the evidence that the appellant kicked Cone on two occasions and therefore the prosecution had negated the issue which was raised by the defence. It was against the background of that final finding that the learned Magistrate proceeded to convict the appellant.

33 It is significant that the learned Magistrate did not mention the crucial elements of the defence of self-defence by reference to the specific statutory provisions I have mentioned. The tenor of his Honour's reasons clearly suggests that he was of the view that if the appellant used kicks then this was a disproportionate use of force and unreasonable in the circumstances, with the result that the defence of providing aid did not apply.

34 I feel obliged to break off here to observe also that the learned Magistrate did not refer and did not appear to take account of another provision of the Criminal Code concerning criminal responsibility, which arguably has a bearing on the issues in the present case. I am referring to s 24 of the Criminal Code concerning mistake which is of general application throughout our criminal law.

35 Section 24 is to the effect that a person who does or omits to do an act under an honest and reasonable but mistaken belief in the existence of any state of things is not criminally responsible for the act or omission to

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any greater extent than if the real state of things had been such as he believed to exist.

36 According to Kenny: "An Introduction to Criminal Law", (6th ed) at par 13.100, a mistake of fact by an accused in respect of the amount of force required will enable reliance to be placed upon s 24 of the Code.

37 It is against this background that I come now to the grounds of appeal. As to the appeal against conviction in SJA1056/2005, the grounds of appeal are:

"The Learned trial Magistrate erred in law in:

a) Failing to determine whether the prosecution had proved beyond reasonable doubt that the force the Learned Magistrate found the applicant to have used, was not force used by the applicant in aiding another person in their self defence.

b) Failing to determine whether the prosecution had proven beyond reasonable doubt that the applicant did not honestly reasonably, but mistakenly believe that the force, which the Learned Magistrate found him to have used, was force necessary to aid another person in their self defence.

c) Deciding that the issue to be determine [sic] was whether the force used by the applicant was 'a kick or whether it was a shove or push with the sole of the foot'."

38 Before dealing with these grounds of appeal, it will be useful to look at the legal principles bearing on an appeal of this kind and the issues before me.

Legal principles

39 Appeals from courts of summary jurisdiction were formerly governed by the Justices Act 1902 (WA) but are now covered by Pt 2 of the Criminal Appeals Act 2004 (WA). By section 4 of the latter act the Supreme Court may dismiss or allow the appeal or set aside or vary the decision or remit the case for rehearing. Further, if the court considers that no substantial miscarriage of justice has occurred it may dismiss the appeal notwithstanding that a ground of appeal has been decided in favour of the appellant.

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40 By s 39 an appeal court must decide the appeal on the evidence and material that were before the lower court. That does not prevent consideration of any evidence that the lower court refused to admit. By s 40 an appeal court may admit any other evidence.

41 The Magistrate is generally required to set out the relevant findings of fact and the reasons for his or her decision. The reasons must disclose adequately the intellectual process which has resulted in a particular determination: Garrett v Nicholson (1999) 21 WAR 226.

42 A finding of guilt is not to be reached simply by rejecting the case put forward by the accused. The Court has to positively believe beyond reasonable doubt the evidence presented by the prosecution: Harling v Hall (1997) 94 A Crim R 437.

43 Where an appeal is made against findings of fact which depend upon a view taken as to the credibility of witnesses an appellate court will refrain from interfering with those findings of fact unless it appears that the judicial officer has failed to use or palpably misused the advantage of seeing and hearing the witnesses or acted on evidence which was inconsistent with facts incontrovertibly established by the evidence or which was glaringly improbable:

44 Devries v Australian National Railways Commission (1993) 177 CLR 472 at 479.

45 If the appellate Court, having made its own independent assessment of both the sufficiency and quality of the evidence, is left with a reasonable doubt and that is a doubt which the primary Court ought to have had and the appellate Court will usually provide relief, especially where findings depend on credibility: M v R (1994) 181 CLR 487, Glennon v The Queen (1994) 179 CLR 1.

46 The relief may take the form of remitting back to the Court below unless the appellate Court considers that no substantial miscarriage of justice has occurred. The task is to balance the public interest and the conviction of a wrongdoer, the interests of an accused person and the pragmatic considerations of cost and efficiency in the administration of justice. Where the error is fundamental the interests of justice may be best served by quashing the conviction and sentence and substituting a verdict of acquittal: Verhoeven v Ninyette (1998) 101 A Crim R 24.

47 Let me now proceed to some further observations about the present case concerning the issues of providing aid and mistake.

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48 As to aid, I begin by noting that in determining whether an assault is authorised, justified or excused by law by reason of self-defence the question is whether the person believed on reasonable grounds that it was necessary in self-defence to act as he did: Randle v The Queen (1995) 15 WAR 26 at 23.

49 To be lawful, the force used by a person acting in self defence of another must be of a like degree to that which that other person was entitled. A person acting in self-defence of another can have no greater right than the person in whose aid he acts: Davis v Egan, unreported; SCt of WA; Library No 960659; 15 November 1996.

50 A useful summation of the law bearing upon this line of defence is to be found in Kenny: "Introduction to Criminal Law" at par 13.101. It is said there that s 250 of the Criminal Code enables a person to use force in defence of another under the relevant provision. If it is lawful for a person to use an amount of force in self-defence, anyone helping that person in good faith may use the same amount of force to defend that person. The person assisted must have been actually threatened because it is such a threat which would justify that person using force in self-defence. There is no requirement that there be any special relationship between the person accused of applying force and the person assisted.

51 I note in passing that in the present case several of the witnesses spoke of Shepherd calling out for help, and that is evident in the passage I referred to earlier. There was clearly a basis for concluding that the appellant acted in good faith. As it happened, the learned Magistrate did not directly address this issue in his reasons for decision.

52 As to s 24 of the Criminal Code, the position is that to be relevantly mistaken the person must have had a positive belief, an honest belief and a belief based on reasonable grounds. An honest belief which is not based on reasonable grounds is not enough. The effect of s 250 is that if another person acting in good faith comes to the aid of a person lawfully defending himself, the actions of the person providing aid will be lawful.

53 However, as s 24 is of general application, it is obviously material to establish what the state of belief of the accused person was if that was raised as an issue or was a matter to which consideration should have been given.

54 I am conscious that in the present case the appellant by himself or by counsel did not specifically raise matters of this kind in his evidence or in

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the course of submissions. Issues of the kind reflected in s 24 are not expressly addressed by the learned Magistrate in the course of his reasons.

55 Lucas J said in R v Payne [1970] Qd R 260 at 264:

"It is of course true that a Judge is bound to direct the jury as to a defence which is supported by the evidence but is not advanced by the accused - see for example Mancini v Director of Public Prosecutions (1942) AC 1 - but this does not mean that a judge must search his mind for fanciful interpretations of the evidence in order to put them to the jury as possible defences, particularly if he is not asked to do so by counsel for the accused."

56 In Payne's case (supra), it seems that a question was raised as to whether the learned Judge erred in not directing the jury's attention to the operation of s 23 of the Queensland Criminal Code in relation to a particular interpretation of the facts which was neither suggested by the evidence nor advanced by counsel as possible hypotheses.

57 This case and other cases like it indicate that a presiding judicial officer must not cast around for fanciful interpretations of the evidence with a view to covering all sorts of matters which cannot be regarded as truly issues thrown up by the evidence before him. However, at the same time, it is clear that there is a duty upon a judicial officer to give consideration to issues which might truly be regarded as available or open on the evidence, notwithstanding that he may not have been pressed specifically to deal with such issues.

58 It emerges, then, that the fact that an issue concerning mistake was not raised directly before the Magistrate in the present case does not of itself dispose of the matter if there was evidence which called for its consideration by the learned Magistrate.

The appellant's submissions

59 The appellant's principal submission on appeal, as reflected in his written submissions, was to this effect: a finding that the evidence led by the appellant was exaggerated as to the supposed impending harm does not answer either the question as to whether the force used was used in aiding another person in their self-defence or whether or not the force used by the appellant was honestly believed by him to be force that was necessary to aid another person in their self-defence, and whether on the objective standard that was a reasonable belief.

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60 Further, the appellant contended by counsel, it is not sufficient to say that the appellant exaggerated the impending harm. It was submitted that there must be a finding of fact as to the impending harm facing Shepherd and the accused's belief in the degree of impending harm faced by Shepherd.

61 It is only when these crucial questions are answered, and the degree of force used by the appellant is ascertained, that the magistrate could find the prosecution had proved beyond reasonable doubt that the force used was either not used by the appellant in aiding another person in self-defence or was not honestly and reasonably but mistakenly believed by him to be necessary to aid another person in this self-defence.

62 It was said also that the repeated reference by the learned Magistrate to the question being of whether or not it was a kick or a shove or a push with the sole of the foot was an error. That was only one step. The issues to be determined were the degree of force used by the applicant, the reasons for the force being used by the appellant, and whether or not the prosecution has proved that the appellant did not honestly, reasonably but mistakenly believe that the force used was necessary to aid another person in this self-defence and whether or not the prosecution proved beyond reasonable doubt that the appellant was not aiding another person in his self-defence.

63 In essence then, counsel for the appellant accepted that the degree of force issue; that is, the so-called "kick or shove issue", was certainly one of the matters that had to be resolved. However, importantly, findings had to be made also as to certain other related issues. It is said that the learned Magistrate erred in failing to address such issues. In other words, the learned Magistrate did not make an express finding as to the extent of the harm to which Shepherd was exposed and the proportionality of the action taken by the appellant.

64 The failure to make findings upon the additional issues and the concentration upon a single issue, it is said, tainted the finding actually made by the learned Magistrate as to the degree of force or the kick or shove issue.

Findings

65 I see merit in the submissions made on behalf of the appellant. It emerges from my review of the relevant principles and the evidence before the learned Magistrate that there was a basis for concluding that the appellant was nearby while Cone and Shepherd were wrestling on the

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ground. The decided cases show that a single blow or a flurry of blows can constitute an assault.

66 Cone finished up on top of Shepherd and seemed likely to proceed with a fresh assault upon him. The appellant had some connection to Shepherd and was minded to come to his aid. He did so quickly by using his foot to apply force to Cone. In a situation of this kind it was necessary for the learned Magistrate, having regard to the relevant provisions of the Code, to make findings of fact as to whether Shepherd was the subject of an assault or actual or apprehended harm inflicted or about to be inflicted by Cone, and whether Shepherd was involved in an endeavour to defend himself lawfully by using such force to the assailant Cone as was necessary to make effective defence.

67 If findings to this effect were made, it was then necessary to determine whether the appellant intervened in good faith in seeking to provide aid and whether he used a like degree of force for the purpose of defending Shepherd, that is, reasonable and proportionate force.

68 I am of the view that in circumstances of ambiguity arising out of a fast moving altercation and a rapidly shifting scene, where there was a reasonable possibility of bystanders acting pursuant to somewhat blurred or imprecise perceptions, the learned Magistrate could reasonably be expected to give consideration to the defence of honest and reasonable but mistaken belief as allowed for by s 24 of the Criminal Code, that is, that the person providing aid - in this case the appellant - had an honest and reasonable but mistaken belief about the state of affairs presented to his gaze and as to the amount of force that was appropriate in providing aid.

69 It is apparent from the learned Magistrate's reasons that he did not address all of the issues I have identified, although it will be apparent from the review of the evidence I gave earlier that it was open to him to make findings in favour of the appellant in respect of all these matters, notwithstanding his reservations about the appellant's credibility.

70 The learned Magistrate sought to reduce all the issues to a central issue, namely, whether the appellant used his foot to kick or shove Cone. To my mind a reduction of the issues in this way had the effect not only of removing various important issues and necessary findings from consideration but also of giving undue weight to the adverse finding made against the appellant in respect of credibility.

71 The kick or shove issue coloured the evidence as a whole and affected the outcome. The degree of force to be used must obviously have

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been determined and considered in the context of the evidence as a whole and the nature of the melee. By isolating the kick or shove issue in the way he did, the approach adopted by the learned Magistrate, to my mind, obscured other issues and amounted to an error of law in that the learned Magistrate did not properly determine whether the prosecution had negated the defence available to the appellant as to the provision of aid.

72 It meant also that consideration which ought to have been given to the defence of mistaken belief was not given, bearing in mind that in my view that matter was open upon the evidence. Even if it had been held that the force applied by the appellant was a kick, his action might nonetheless have been characterised as lawful pursuant to an honest and reasonable but mistaken belief that he was providing aid in good faith in circumstances where the use of his foot in that manner was necessary.

73 In other words, even if it be held that a kick was excessive force in the circumstances, such an action might nonetheless be lawful if there was an honest and reasonable but mistaken belief as to the degree of force required to provide the aid. In the case of a drunken melee late at night outside a nightclub, such a finding appears to have been open on the evidence.

74 I feel obliged to say finally that if it be thought that the learned Magistrate must have given attention to the matters I have mentioned, and must have assumed that the facts simply did not warrant the force used, it is clear that he did not fulfil the requirements referred to in the decided cases of providing reasons disclosing the intellectual process by which he arrived at his conclusion. That in itself can be regarded as an error of law.

75 When I apply these general observations to the grounds of appeal I consider that each of the grounds have been made out. This is not a case in which it can be said that there is no substantial miscarriage of justice notwithstanding the errors made.

76 This conclusion as to the merits of the appeal leads me to a further conclusion that the extension of time applied for should be allowed. In addition I am of the view that a sufficient explanation for the delay in initiating the appeal against conviction has been provided.

77 It follows from all of this that I consider that the conviction must be quashed and the matter remitted to the Magistrates Court for rehearing before a different Magistrate. This conclusion seems to make it unnecessary and inappropriate for me to proceed to a ruling as to the spent conviction issue, being the matter principally in issue in respect of the

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appeal against sentence (SJA 1035 of 2005). I will hear from counsel as to the precise form of orders and directions to be made.