McWhirter v Smith - [2015] WASC 160

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CRIMINAL

CITATION: McWHIRTER -v- SMITH [2015] WASC 160

CORAM: BEECH J

HEARD: 28 APRIL 2015

DELIVERED : 11 MAY 2015

FILE NO/S: SJA 1093 of 2014

BETWEEN: NEIL EDWARD McWHIRTER
Appellant
AND
MICHAEL NICHOLAS ADRIAN SMITH
Respondent

ON APPEAL FROM:
Jurisdiction              :  MAGISTRATES COURT OF WESTERN AUSTRALIA
Coram  :MAGISTRATE E A HAMILTON
File No  :MJ 498 of 2012

Catchwords:

Criminal law - Unlawful wounding - Appeal against conviction - Magistrate found that self-defence excluded - Whether any grounds to interfere with findings by magistrate - Turns on own facts

Legislation:

Criminal Code (WA), s 248

Result:

Appeal dismissed

Category: B

Representation:

Counsel:

Appellant: Mr M J Joubert
Respondent: Ms S E Wisbey

Solicitors:

Appellant: Emeris Lawyers Pty Ltd
Respondent: Director of Public Prosecutions (WA)

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

Chamberlain v The Queen (No 2) [1984] HCA 7; (1984) 153 CLR 521
City of Stirling v Tremeer [2006] WASCA 73; (2006) 32 WAR 155
Clarke v BHP Billiton Direct Reduced Iron Pty Ltd [2009] WASCA 134
CSR Ltd v Della Maddalena [2006] HCA 1
Fox v Percy [2003] HCA 22; (2003) 214 CLR 118
Goodwyn v The State of Western Australia [2013] WASCA 141; (2013) 45 WAR 328
BEECH J:

Introduction

The appellant appeals against his conviction for unlawful wounding.
At trial, it was not in doubt that the appellant wounded the complainant, Mr Daniel Fox, by striking him in the forehead with a machete. In his interview with police, the appellant said that the complainant had threatened to kill him, that he feared for his life and had acted in self‑defence. The magistrate was satisfied beyond reasonable doubt that in striking the complainant with a machete more than once, the appellant's conduct was not an objectively reasonable response, so that self‑defence was excluded.
For the reasons that follow, I would dismiss the appeal.

Overview of the trial

The prosecution called four witnesses: the complainant, the complainant's wife, Mrs Sarah Fox; and two others who had been present on the day, Jason Taylor and Shane Robinson. The magistrate outlined their evidence in her reasons, to which I will come shortly.
The prosecution tendered a number of photographs[1] of the complainant's wounds. A number of the photographs[2] were taken before medical treatment was given. Those photographs show the complainant with an open wound to his forehead, a wound on his left arm with blood above and below the wound covering his forearm, and a wound on his right hand. Photographs were also taken after treatment.[3] They show the complainant with his head wound cleaned and his left arm and right arm bandaged.
[1] Exhibit P2.
[2] LDS 1 ‑ 12.
[3] MRD 1 - 3.
The prosecution also tendered a DVD record of the police interview of the appellant.[4]
[4] Exhibit P3A.
In summary in the course of the interview, the appellant said that:
(a)the complainant abused and threatened him;
(b)when the appellant went to his car, the complainant stopped him getting in the car, started hitting him from behind, and said he would kill him. The complainant hit him many times, at least 18 times, some to the back and some to the head;
(c)the appellant was 'in fear for [his] life';
(d)the appellant was unable to fight back;
(e)the complainant was trying to pull the appellant out of the car, to 'smash him'; the appellant 'couldn't get him off' and the complaint was 'just on me'. The appellant reached into his car to get something to defend himself with;
(f)he struck the complainant with the machete in self‑defence;
(g)he struck only one blow;
(h)he had no other means of defending himself, as he is physically incapable of fighting back; and
(i)he called the police straight after the incident.
The appellant did not give evidence at trial. The defence tendered a number of medical reports relating to the appellant.[5] The reports were tendered by consent.[6] The defence also tendered a statement and a medical report, both dated 19 December 2012, by Dr Vesely, who was the attending doctor when the complainant went to hospital after the incident.[7]
[5] Exhibit ANM 1 ‑ 9.
[6] ts 20 November 2013, 6.
[7] Exhibit D3A; Exhibit D3B.

The magistrate's reasons

After some uncontroversial introductory observations, the learned magistrate gave a detailed outline of the evidence of each of the witnesses. It is not necessary to reproduce that detailed outline.
Her Honour's outline of the evidence of Mr Taylor included the following:
(a)Mr Taylor was at a friend's place in Northcliffe. The accused was also present. Late in the morning they left and went to the general store and returned to the property at about lunch time, where they had a few beers and some smokes. The complainant and his wife then arrived, with Shane Robinson. The group sat out the back of the house;[8]
(b)after a while, the complainant started abusing the appellant. He said 'I really don't like you, c'mon, let's have a go; I'll give you a first free hit';[9]
(c)after a while the owner of the property told the complainant that he should leave but the complainant did not do so;[10]
(d)after further abuse, the accused got up, walked around to the front of the house where his car was parked;[11]
(e)Mr Taylor then heard screaming and yelling, two people yelling at each other.[12] As he was heading around towards the back of the house he heard a crack. When he got there he saw the appellant with a machete in his right hand and the complainant running away with his hands over his face.[13] He saw a big split in the complainant's forehead and lots of blood;
(f)he asked the appellant if he hit him with a machete to which the accused replied yes;[14]
(g)he did not see any other injuries on the complainant.[15]
[8] ts 9 January 2014, 4.
[9] ts 9 January 2014, 4 - 5.
[10] ts 9 January 2014, 5.
[11] ts 9 January 2014, 5.
[12] ts 9 January 2014, 5, 7.
[13] ts 9 January 2014, 5.
[14] ts 9 January 2014, 6.
[15] ts 9 January 2014, 7.
The magistrate's outline of the evidence of the complainant included his account of what happened immediately before he was struck, as follows:
I was holding the door with my right hand. He was angled towards the front of his vehicle. There was a tussle between both of us. His arms were moving. I knew he had something in his hand. I tried to block it and I got cuts on my left arm and right hand near the little finger. It happened that quick I didn't know it was a machete. I stepped back, trying to go back and block it in one motion. And then I was hit in the face and I spun around about six times.[16]
[16] ts 9 January 2014, 10 ‑ 11.
In cross‑examination, the complainant denied that he had pinned the appellant to his vehicle and commenced punching him in the back.[17] He also denied that he punched the accused in the head or in the kidney area.[18] The complainant denied that the injuries to his left arm were self‑inflicted.[19]
[17] ts 9 January 2014, 13.
[18] ts 9 January 2014, 13.
[19] ts 9 January 2014, 15.
The complainant's wife gave evidence that when she was in the car with the complainant on the way to hospital she saw a gash on his arm which was wide.[20] Mr Robinson also gave evidence that he noticed a cut to the complainant's left arm in the car on the way to the hospital.[21]
[20] ts 9 January 2014, 17.
[21] ts 9 January 2014, 20.
The magistrate identified that there were factual issues relating to the number and timing of the injuries suffered by the complainant, and the number of blows struck by the appellant.[22] The magistrate identified that the critical issue was that of self‑defence.
[22] ts 9 January 2014, 22 ‑ 23.
Her Honour set out relevant passages of appellate judgments related to s 248 of the Criminal Code including the decision of the Court of Appeal in Goodwyn v The State of Western Australia,[23] to which I will come.
[23] Goodwyn v The State of Western Australia [2013] WASCA 141; (2013) 45 WAR 328.
No complainant is made about the magistrate's statement of the relevant law.
The magistrate identified that the questions for her included whether the appellant subjectively believed that his harmful act was necessary to defend himself from another's harmful act, whether his conduct in using the machete was a reasonable response to the circumstances as he believed them to be, and whether these were reasonable grounds for his belief as to what the circumstances were.[24]
[24] ts 9 January 2014, 23.
No complaint is made in relation to her Honour's identification of these questions.
In assessing these questions her Honour observed that she could take into account the evidence of the other witnesses, the video record of interview and the medical reports relating to the appellant.[25] Her Honour outlined the effect of the medical reports as follows:
And in those circumstances, [I] again consider the evidence of the other witnesses, the record of interview and the medical information as it relates to the accused that was tendered into evidence by consent as to the injury he had sustained while serving in the military, being a right foot crush injury which had resulted in the development of reflex sympathetic dystrophy, a condition - according to the medical report of Dr Huan Wyn - that causes chronic pain that may affect any part of the body, especially the limbs.
That the accused had longstanding shoulder pain and radiological imaging revealed degenerative disease, bursitis and tendinopathy on both says, that he also has a limited ability, in the opinion of the doctor, to defend himself with his arms. Of course, all of this must be read in light of the fact that albeit these exhibits were tendered by consent, there was no opportunity to cross‑examine the writer of these reports.
As well as that information there was also information from a counselling service where Mr McWhirter had been treated since August 2007 that sets out and repeats those injuries referred to by Dr Wyn that they had caused a significant depressed mood of the accused, who has severe levels of anxiety. He continues to experience high levels of physiological arousal. He continues to report having any outbursts and acting aggressively when threatened and that he has an alcohol dependency problem.[26]
[25] ts 9 January 2014, 25.
[26] ts 9 January 2014, 25 ‑ 26.
Her Honour's treatment of the medical evidence is the subject of ground 1.
Her Honour made the following findings:
(a)she accepted Mr Taylor's evidence that the complainant was behaving obnoxiously towards the appellant and challenged the accused to a fight after the accused asked the complainant to leave;[27]
(b)the appellant decided to leave and went around the front to his vehicle. The complainant followed him there intending to 'sort the [appellant] out';[28]
(c)there was a verbal stoush between them at the appellant's vehicle. This escalated into a physical altercation. The appellant was trying to get into his vehicle and leave but the complainant was intent on continuing the altercation;[29]
(d)in those circumstances the appellant reached into his vehicle and picked up the machete;[30] and
(e)the appellant did this in order to stop the assault upon him in circumstances where his physical condition meant he could not defend himself.[31]
[27] ts 9 January 2014, 27.
[28] ts 9 January 2014, 27.
[29] ts 9 January 2014, 27.
[30] ts 9 January 2014, 27.
[31] ts 9 January 2014, 27.
The magistrate referred again in this context, to the medical reports tendered by the appellant.[32]
[32] ts 9 January 2014, 27.
The magistrate referred to the repeated statements by the appellant in his record of interview that he only struck the complainant once, that he was facing into the vehicle, with the complainant behind him striking him to his head, shoulders and kidney area and that he reached into the vehicle to find something to fend the complainant off with.[33]
[33] ts 9 January 2014, 27.
The magistrate made findings to the contrary. She found that the appellant and the complainant were involved in a physical tussle, and that the appellant was facing the complainant with the machete in his hands and inflicted all of the complainant's injuries upon him with the machete.[34]
[34] ts 9 January 2014, 28.
The magistrate rejected the suggestion that the complainant inflicted the wounds to his hand and arm upon himself, referring to the fact that those wounds were consistent with the complainant's evidence that he put his arms out to block the blow.[35]
[35] ts 9 January 2014, 28.
The magistrate found that the omission in the medical report to mention the injury to the complainant's left arm was an oversight, and that injury was there when the complainant was treated at the hospital. That finding is the subject of ground 3.
The magistrate found that the appellant struck the complainant more than once and, on the complainant's evidence, accepted that the injury to his face was not caused by the first blow.[36]
[36] ts 9 January 2014, 28.
The magistrate accepted that the appellant subjectively felt he had no option but to use the weapon in circumstances where he feared for his life.[37] However, she did not accept his statement in the record of interview that the complainant was intent on carrying out a threat to kill him, although he may well have said words to that effect.
[37] ts 9 January 2014, 28.
She found that given the appellant used the machete while facing the complainant, and used it more than once, striking the complainant in the forehead with the machete was not an objectively reasonable response to the circumstances as the appellant believed them to be.[38] Consequently, self‑defence was negatived.
[38] ts 9 January 2014, 29.

Grounds of appeal

The appellant appeals on the following four grounds:
(1)The learned magistrate failed to give adequate, or any, weight to the evidence of the appellant regarding his physical impairments and the injuries he received from the complainant.
(2)The learned magistrate found that the appellant struck the complainant three times with a machete when the evidence supported the complainant being struck once with a machete.
(3)The learned magistrate inferred that the treating emergency doctor failed to notice or to record the injury to the complainant's left arm at the elbow in his report when that was not the only reasonable inference to draw in the circumstances.
(4)The decision of the learned magistrate is accordingly unsafe.

Self‑defence - legal principles

Section 248 provides:
(1)In this section -
harmful act means an act that is an element of an offence under this Part other than Chapter XXXV.
(2)A harmful act done by a person is lawful if the act is done in self‑defence under subsection (4).
...
(4)A person's harmful act is done in self-defence if
(a)the person believes the act is necessary to defend the person or another person from a harmful act, including a harmful act that is not imminent; and
(b)the person's harmful act is a reasonable response by the person in the circumstances as the person believes them to be; and
(c)there are reasonable grounds for those beliefs.
The effect of s 248(4) was summarised by Buss JA in Goodwyn v The State of Western Australia:
… s 248(4) enumerates four elements. First, the accused (subjectively) believes the harmful act is necessary to defend the accused or another person from a harmful act, including a harmful act that is not imminent (s 248(4)(a)). Secondly, the accused's harmful act is a reasonable (objective) response by the accused in the circumstances as the accused (subjectively) believes them to be (s 248(4)(b)). Thirdly, there are reasonable (objective) grounds for the accused's (subjective) belief that the harmful act is necessary to defend the accused or another person from a harmful act, including a harmful act that is not imminent (s 248(4)(a) read with s 248(4)(c)). Fourthly, there are reasonable (objective) grounds for the accused's (subjective) belief as to the circumstances (s 248(4)(b) read with s 248(4)(c)).
If the accused satisfies the evidential onus in relation to self-defence then the burden is on the State to negative the defence by excluding at least one of its elements beyond reasonable doubt.[39]
[39] [2013] WASCA 141; 45 WAR 328 [95] ‑ [96].
In the circumstances of this case, as the magistrate found, the following issues arose in relation to s 248(4):
(1)did the appellant subjectively believe that striking the complainant in the head with the machete was necessary to defend himself from a harmful act, including a harmful act that was not imminent (s 248(4)(a))?
(2)was the appellant's striking of the complainant in the head with a machete objectively a reasonable response by the appellant in the circumstances as the appellant subjectively believed them to be (s 248(4)(b))?
(3)were there, objectively, reasonable grounds for each of the subjective beliefs of the appellant stated in s 248(4)(a) and s 248(4)(b)?
The second issue requires a determination of what the appellant's perception of the circumstances were, and an assessment of the reasonableness of his actions in light of that determination.[40]
[40] Goodwyn v State of Western Australia [172] (Mazza JA).

General observations

The magistrate made important factual findings about the number of blows struck by the appellant, and the circumstances in which the blow or blows were struck.
The magistrate was satisfied that the appellant struck two blows, and did so while the two men were facing each other. Once those findings were made, the conclusion that the appellant's response was not reasonable was unsurprising, if not inevitable. Unless those findings are overturned, the appeal must fail. In oral submissions on the appeal, counsel for the appellant rightly accepted that that was so.[41]
[41] Appeal ts 9.
In his police interview, the appellant was adamant that he had struck the complainant only once. A significant impediment to acceptance of that version of events was that the complainant had wounds to his head, right hand, and left arm. The appellant sought to overcome that obstacle by asserting that the complainant's wounds to his left arm were self‑inflicted. That assertion is the subject of ground 3, with which it is convenient to begin.

Ground 3 - the injury to the complainant's left arm

Ground 3 complains that the magistrate wrongly inferred that the treating emergency doctor failed to notice or record the injury to the complainant's left arm when that was not the only reasonable inference to draw in the circumstances.
This ground is founded on a misconception. The ground assumes that the inference that the treating doctor had failed to record the injury could only be drawn if it was the only reasonable inference in light of the evidence as a whole.[42] That test applies to the drawing of an inference of guilt. The inference about the significance of the omission by the treating doctor to mention a wound on the left arm is not of that character. That inference did not relate to an element of the offence, or to an indispensable link in a chain of reasoning leading to an inference of guilt. The court's inference about the treating doctor arose from its assessment of direct oral evidence of witnesses that the wound occurred before the complainant went to the hospital.
[42] Appellant's submissions dated 13 April 2015 [3b] referring to Chamberlain v The Queen (No 2) [1984] HCA 7; (1984) 153 CLR 521, 536 (Gibbs CJ and Mason J).
In any event, on the whole of the evidence there was ample support for the conclusion reached by the magistrate. Indeed, it seems to me to have been the only conclusion reasonably open on the evidence.

The appellant submits that:
(a)no person at the farm where the incident took place noticed any wound on the complainant's left elbow area;[43]
(b)the complainant took pictures of his wound to his head and circulated it to friends via mobile phone and there was no picture of the wound to his left arm;[44] and
(c)the attending doctor made note of two slight injuries to the fingers of the right hand and so it is inconceivable that he would have missed a 5 cm wound to the left arm that was bleeding profusely.[45]
[43] Appellant's submissions dated 13 April 2015 [3b(i)].
[44] Appellant's submissions dated 13 April 2015 [3b(ii)].
[45] Appellant's submissions dated 13 April 2015 [3b(iii)].
The fact that no‑one at the farm where the incident took place noticed a wound to the complainant's left elbow is not a matter of any great significance. The evidence is that the complainant was holding his hands up to his head with blood streaming from the head wound.[46] It would not be surprising if people's attention was focused on the wound to the head, which was obviously the most serious wound.
[46] ts 31 October 2013, 9, 19.
Nothing turns on the fact that the photographs taken by the complainant of the wound to his head did not include pictures of the wound to his left arm.[47] The evidence was that the photographs on the mobile phone were taken after he was treated and after the wounds had been cleaned.[48] By then, there is no doubt that the wound to the left arm was present. That much is apparent from the photographs taken before the wounds were cleaned.[49]
[47] Exhibit D2A; Exhibit D2B.
[48] ts 31 October 2013, 42.
[49] Exhibit P2.
The extent of the significance of the omission of the attending doctor to mention the cut to the left arm had to be assessed in the context of the whole of the evidence, not in isolation. The possibility of an omission by a doctor, in writing a report three months after examining a patient, cannot be excluded in the abstract.
The appellant's case appears to be that the wound to the complainant's left arm was self‑inflicted, and that the complainant did this sometime after his initial presentation at hospital, when he was seen by the attending doctor who provided the report. It was open to the magistrate to accept the complainant's evidence that his left arm was injured when he was hit by the machete, and that he first noticed that injury when he was in the car with his wife and Mr Robinson.[50] That evidence was supported by evidence from both the complainant's wife and from Mr Robinson, both of whom said they noticed the injury to his arm on the trip to Pemberton District Hospital.[51] That evidence was not challenged in cross‑examination.
[50] ts 31 October 2013, 30.
[51] ts 31 October 2013, 55, 74.
Further, the photographs taken at the hospital show that the complainant had a wound to his left arm while he was a patient at the hospital, and prior to his wounds being cleaned. Assuming in favour of the appellant that the attending doctor saw the complainant before his wounds were cleaned, it would appear that the appellant's case must be that the complainant inflicted the wound on his left arm between when the attending doctor saw him and when the photographs were taken at hospital. That is a fanciful suggestion.
The finding that the complainant's wound on his left arm was caused by a blow from the machete, and was present when the attending doctor examined the complainant, but was inadvertently not mentioned in the report, was well and truly open to the magistrate.
For these reasons ground 3 fails.
I turn to ground 2.

Ground 2 - findings as to a number of blows struck

Ground 2 complains that the magistrate erred in finding that the appellant struck the complainant three times with a machete when the evidence supported the complainant being struck once with a machete.
The first fundamental difficulty with this ground is that the magistrate did not find that the appellant struck the complainant three times. Rather, the magistrate made a finding that the appellant struck the complainant with a machete more than once.[52]
[52] ts 9 January 2014, 29.
That finding was well open to the magistrate. It was supported by the evidence of the complainant and by the objective fact that the complainant received wounds to three separate parts of his body, namely the forehead, the right hand and the left arm.
The effect of the complainant's evidence was that there was more than one blow struck. He tried to block the first blow or blows and in doing so sustained the cuts to his hand and to his arm. Then he stepped back and that was when the appellant struck the blow to the his forehead.[53] That evidence is consistent with the complainant's injuries.
[53] ts 31 October 2013, 29.
The magistrate had the advantage of seeing and hearing the witnesses. An appellate court will not interfere with findings of fact based on credibility unless the findings are glaringly improbable, contrary to incontrovertible evidence or compelling inferences, or unless the judicial officer has failed to use or palpably misused the advantage of seeing and hearing the witnesses.[54] The magistrate was entitled to accept the complainant's evidence as to how the injuries were sustained, and to be satisfied that more than one blow was struck.
[54] Fox v Percy [2003] HCA 22; (2003) 214 CLR 118 [27] ‑ [31] (Gleeson CJ, Gummow & Kirby JJ); CSR Ltd v Della Maddalena [2006] HCA 1 [21] (Kirby J, Gleeson CJ agreeing); City of Stirling v Tremeer [2006] WASCA 73; (2006) 32 WAR 155 [33] (McLure JA, Steytler P & Roberts‑Smith JA agreeing); Clarke v BHP Billiton Direct Reduced Iron Pty Ltd [2009] WASCA 134 [86] ‑ [87] (Buss JA, Pullin & Newnes JJA agreeing).
Ground 2 fails.

Ground 1 - the weight given to evidence concerning the appellant's physical and mental impairments

The appellant fixes on the learned magistrate's observation relating to the medical reports that 'there was no opportunity to cross‑examine the writer of these reports'.[55] The appellant submits that this reveals that the magistrate discounted the medical reports. I do not accept that submission. It involves reading the observation of the magistrate in isolation and out of context. Reading the magistrate's reasons as a whole, it is clear that, far from discounting the various medical reports, her Honour specifically took them into account in answering the questions which arose for determination. Her Honour said, three times, that the medical material bore upon the questions for decision.[56] For example, her Honour specifically said that the medical material relating to the appellant was to be taken into account in considering what his subjective belief was and the necessity for him to act as he did.[57]
[55] ts 9 January 2014, 26.
[56] See ts 9 January 2014, 25 ‑ 27.
[57] ts 9 January 2014, 26.
The appellant submits that a victim of an attack who has the mental and physical infirmities referred to in these reports would have been substantially more afraid of an attack from a known aggressor than a person without such infirmities. That may be accepted. Nothing in the learned magistrate's reasons or reasoning is inconsistent with that.
Further, the magistrate found, in accordance with what the appellant had said in his record of interview, that he reached into the vehicle and grabbed the machete 'to stop the assault upon him in circumstances where his physical state did not mean he could defend himself'.[58] That is a further indication that the magistrate took into account and accepted the medical evidence relating to the appellant.
[58] ts 9 January 2014, 27.
Ground 1 is without merit.

Ground 4

This ground does not assert any separate error, but relies on the success of one or more of the preceding grounds. Grounds 1 to 3 having failed, ground 4 also fails.

Other matters

In written submissions on the appeal, the appellant made a fleeting reference to a defence of home invasion.[59] However, no ground of appeal raised any argument in that respect, and none was raised at trial. The appellant's counsel made clear in oral submissions that he did not rely on any contention based on a home invasion defence.[60]
[59] Appellant's submissions dated 15 April 2015 [4b].
[60] Appeal ts 17.

Conclusion

For these reasons I would not grant leave to appeal on any of the grounds, and would dismiss the appeal.