Millington v Police - [2022] SASC 19

SUPREME COURT OF SOUTH AUSTRALIA
(Magistrates Appeal: Criminal)
MILLINGTON v POLICE
[2022] SASC 19
Judgment of the Honourable Justice Blue
7 March 2022
CRIMINAL LAW - APPEAL AND NEW TRIAL
CRIMINAL LAW - APPEAL AND NEW TRIAL - APPEAL AGAINST SENTENCE
At trial, the appellant admitted punching the complainant and that the punches caused harm. The appellant relied on self defence. His case was that the complainant struck him first and he punched the complainant in self-defence. The Magistrate found that the appellant punched the complainant in the head at least twice. The Magistrate rejected the defence of self defence.
The appellant appeals against his conviction on the grounds that the Magistrate erred in finding that self defence was disproved beyond reasonable doubt and in the alternative that the Magistrate erred in finding that harm was caused to the complainant solely by the appellant’s conduct that was found not to be in self defence. The appellant contends that the Magistrate’s reasons, properly construed, show that the Magistrate was not satisfied beyond reasonable doubt that he was not acting in self defence when he swung the first punch, but was satisfied beyond reasonable doubt that he was not acting in self defence when he swung the second punch.
The respondent contends that the Magistrate’s reasons, properly construed, show that the Magistrate was satisfied beyond reasonable doubt that the appellant was not acting in self defence when he swung both punches.
The Magistrate recorded a conviction and released the appellant on his entering into a bond to be of good behaviour for two years. It was ordered that the appellant pay compensation to the complainant of $4,081. The appellant appeals against sentence on the ground that the Magistrate erred in recording a conviction and erred in ordering compensation when he had no reasonable capacity to pay.
Held:
1Some passages from the Magistrate’s reasons support the construction advanced by the appellant; other passages support the construction advanced by the respondent; the two constructions are fundamentally inconsistent with each other; and the passages supporting each construction are intertwined with passages supporting the opposing construction (at [30]).
2It cannot be determined with confidence which construction is correct. The inconsistency between the passages supporting each construction renders the reasons fundamentally inadequate and defective (at [31]).

3 Appeal allowed, conviction set aside and matter remitted for a fresh trial (at [33]).
Criminal Law Consolidation Act 1935 (SA) s 15 and s 20(4), referred to.

MILLINGTON v POLICE
[2022] SASC 19

BLUE J: The appellant, Samuel Joel Millington, appeals against his conviction and sentence for assault causing harm.[1]
[1] Criminal Law Consolidation Act 1935 (SA) section 20(4).
At trial, the appellant admitted punching the complainant, C, and that the punches caused harm. The appellant relied on self defence. His case was that C struck him first and he punched C believing it to be necessary and reasonable to defend himself and his conduct was reasonably proportionate to the threat he believed to exist.[2] The Magistrate found that the appellant punched C in the head at least twice and this finding is not challenged on appeal. The Magistrate rejected the defence of self defence and this is challenged on appeal.
[2] Criminal Law Consolidation Act 1935 (SA) section 15.
The appellant appeals against his conviction on the grounds that the Magistrate erred in finding that self defence was disproved beyond reasonable doubt or in finding that harm was caused to C by conduct found not to be in self defence.
The appellant contends that the Magistrate’s reasons, properly construed, show that the Magistrate was not satisfied beyond reasonable doubt that he was not acting in self defence when he swung the first punch, but was satisfied beyond reasonable doubt that he was not acting in self defence when he swung the second punch.
On the appellant’s construction, he contends that the Magistrate made two errors. First, having found that self defence arose in relation to the first strike, given the proximity of the two strikes, it was not open to the Magistrate to find in relation to the second strike that the perceived threat had ceased and that the second strike was not reasonably proportionate to the perceived threat (ground 1). Secondly, it was not open to the Magistrate to exclude as a reasonable possibility that the harm suffered by C was caused by the lawful first strike (ground 2).
By contrast, the respondent contends that the Magistrate’s reasons, properly construed, show that the Magistrate was satisfied beyond reasonable doubt that the appellant was not acting in self defence when he swung both punches. The respondent contends that the premise for the appellant’s two grounds is therefore not established. The respondent contends in the alternative that, if that premise is established, it was open to the Magistrate to make each of the two impugned findings.
The Magistrate recorded a conviction and released the appellant on his entering into a bond to be of good behaviour for two years. The Magistrate ordered that the appellant pay compensation to C of $4,081.
The appellant appeals against sentence on the ground that the Magistrate erred in recording a conviction (ground 1) and erred in ordering compensation when he had no reasonable capacity to pay (ground 2).
Background
On 27 June 2020 the appellant and C both attended a birthday party. At about midnight, the appellant punched C in the head at least twice. As a result of the punches, C lost one incisor and other incisors were loosened. The punches were the subject of the charge of assault causing harm. The appellant’s defence was that he was acting in self defence,[3] C having swung a punch at him first.
[3] The appellant also relied on the “defence” of consent, but this defence was rejected by the Magistrate, that rejection is not the subject of appeal and it can be ignored.
The background to the incident was that, on the night of 13-14 June 2020, C kissed a girl, G. The appellant considered that he was in a relationship with G at the time. He was told that C kissed her and he got mad. On that same night, the appellant sent a text message to C saying “[c]an’t wait to see you next bruz”. Three days later, on 17 June 2020 he attempted to call C and then sent a text message to him saying “[p]ick up ya little pussy” and “[b]e a big man”. Three days later, on 20 June 2020 he sent a text message to C that included the words “[a]ww did you get scared and tell [G] ya fkn pussy”.
On 27 June 2020 between 9.00 and 10.00 pm, C arrived at the birthday party. There were a group of people around the fire, including C and the appellant. The appellant told C to “fuck off” and C moved away from the fire area and went to the front of the property. There was a dispute on the evidence about what (if anything) led to this occurring.
C remained at the front of the property talking to another person. After some time, the appellant approached them. There was a dispute on the evidence about what led to the appellant punching C.
C gave evidence that the appellant asked him if he had problem, he replied that he did not and he put up his hands to indicate that he did not have a problem. He said that he did not hit, or attempt to hit, the appellant. A witness called by the prosecution, W1, gave evidence that he followed the appellant when the appellant walked towards the front of the property, and he saw the appellant punch C twice using ‘roundhouse’ or ‘hay-maker’ punches. He said that he did not see C swing at the appellant before this, and that he was approximately five metres away from the parties and had a good view.
The appellant gave evidence that he and C approached each other, he felt a strike to his jaw (although he did not see a strike come from C) and he punched C back straight away. He said that he swung back one, two or maybe three times. A witness called by the defence, W2, gave evidence that he followed the appellant at a distance while talking on his phone when the appellant walked towards the front of the property. He saw C and the appellant standing face to face apparently having an argument. He said that he saw the appellant’s head go back and inferred that the appellant must have been hit by C but he did not see a blow. He saw the appellant punch C, who went to the ground.
C was taken to the emergency department of the Riverland General Hospital and later treated by a dentist and referred to an endodontist for the damage to his teeth.
On 28 June 2020 commencing at 12.25 am the appellant sent text messages to a friend saying “[h]e said something and I lost my [a]nger”; “I didn’t mean to hurt him that bad”; “…I feel like shit”; “I know it’s completely my fault and there’s nothing more I can say I shouldn’t of did what I done”; and “[h]e swing first man idc”.
Commencing at 3.13 am on that morning, the appellant was interviewed by a police officer. He said “we stepped closer to each other and he went to swing a punch and then I swung back and I hit him in the head”. When asked how many times he swung back, the appellant said “more than once, probably three times, two”.
The Magistrate’s reasons
The trial proceeded on 3 and 4 June 2021. The Magistrate reserved judgment and delivered reasons for verdict on 15 July 2021.
In her reasons, the Magistrate summarised the evidence. Although the Magistrate did not make an affirmative finding that C initially swung at the appellant, the Magistrate was not satisfied beyond reasonable doubt that that did not occur and therefore proceeded on the basis that it did. The Magistrate was satisfied beyond reasonable doubt that C at all times attempted to avoid the appellant and any confrontation with him and any punch thrown by him was merely to forestall the attack that he perceived the appellant was about to make on him.
The Magistrate was satisfied beyond reasonable doubt that the appellant punched C at least twice. The Magistrate did not say that she was satisfied beyond reasonable doubt that the appellant punched C three times, but merely referred to “two or three” punches. There is no challenge on appeal to the finding of two punches; nor any contention by the respondent that the Magistrate should have been satisfied beyond reasonable doubt that there were three punches. For ease of reference, I proceed on the simple basis that the appellant punched C twice and ignore references to the possibility that it was three times.
The Magistrate identified the issue as being self defence.[4] The Magistrate did not regard it as being in issue whether actual harm was caused. The Magistrate gave reasons which are set out below for concluding that the appellant was guilty as charged.
[4] As observed above, the Magistrate also addressed the issue of consent but that issue does not arise on appeal.
Construction of the Magistrate’s reasons
The first issue on appeal involves the proper construction of the Magistrate’s reasons and whether the Magistrate found that the first punch was in lawful self defence (or, strictly, was not proved beyond reasonable doubt not to have been in lawful self defence) or whether the Magistrate was satisfied beyond reasonable doubt that both punches were not in lawful self defence.
There is of course a third possibility, namely that the Magistrate’s reasons are inadequate to determine which of those alternative possible findings was made by the Magistrate, in which event the appeal must be allowed, the conviction set aside and the matter remitted for a fresh trial.
The relevant passages of the Magistrate’s reasons are as follows:
20I am satisfied beyond reasonable doubt [C] at all times had attempted to avoid the defendant and to avoid any confrontation with him. When the defendant saw [C] he was angry. I proceed on the basis [C] swung at the defendant when the defendant approached him in an angry way.
…
22There can be no doubt [C] has suffered significant injuries as a result of this incident, but I note the medical reports do not offer any opinion as to how many blows would have been needed to inflict those injuries… The number of blows is not determinative of whether a person is acting in self-defence.
…
25… On all the evidence before me it is apparent [C] was attempting to avoid any confrontation with the defendant. As already indicated given the fact I am unable to make a definitive conclusion as to whether or not [C] struck the defendant first I proceed on the basis most beneficial to the defendant that that did in fact occur… The defendant approached with a group of other young men although the defendant had pulled ahead of them. The defendant acknowledges he was angry as he approached. The defendant had sent to [C] the threatening text messages and had earlier in the evening told [C] to ‘fuck off”. In those circumstances any blow struck by [C] would appear to have been peremptory of attack by the defendant.
…
33I am satisfied beyond reasonable doubt the defendant wanted to confront [C], that he wanted to fight him and approached him at the front of the house with the intention of doing so.
…
39… That he was angry does not of itself vitiate that he was acting in self-defence. However anger may play a significant part in the force which he used. At worst [C] had struck him a glancing blow to the jaw. The defendant to use his own words ‘reacted’. Had it been only one blow I would not have been satisfied beyond reasonable doubt he was not acting in self-defence. However the defendant himself acknowledges he hit [C] two to three times and from the medical evidence he caused significant injuries. Other witnesses confirm it was more than once. He struck those blows at a time when his friends were in the near vicinity and there is no evidence from any witness that after the first blow [C] again attempted to strike the defendant. I am satisfied beyond reasonable doubt any blows struck by the defendant after the first were struck in anger and were not struck in self-defence. I am satisfied beyond reasonable doubt striking [C] two to three times with significant force was excessive and was as a result of anger on the part of the defendant and was not necessary for the purpose of self-defence.
40The defendant was keen to engage in a fight with [C] and approached him with the intention of doing so. I am satisfied beyond reasonable doubt [C] on the other hand did not want to engage in any fight with the defendant. I am satisfied beyond reasonable doubt any punch thrown by [C] was in order to forestall the attack he perceived the defendant was about to make upon him. I am satisfied beyond reasonable doubt the force used by the defendant was not reasonably proportionate to any threat the defendant believed to exist.
41Proceeding on the basis [C] swung a glancing blow at the defendant the defendant has struck [C] at least twice with significant force. [The defendant’s] own friends at that time were in close vicinity. He made no attempt to call for their assistance. He did not step back from [C]. He did not cry out for assistance to his friends, the force he used was excessive and beyond self-defence.
42I am satisfied beyond reasonable doubt he was not acting in self-defence at the time when he struck [C] the subsequent blow or blows I am satisfied those blows to [C] were as a result of his pent-up anger and not because of any threat on the part of [C] to him.
43Accordingly I find the defendant guilty as charged.
On the one hand, there are passages from the Magistrate’s reasons that support the respondent’s contention that the Magistrate was satisfied beyond reasonable doubt that the appellant was not acting in lawful self defence when he struck C with both punches. The Magistrate’s satisfaction beyond reasonable doubt expressed at paragraphs [33] and [40] that “the defendant wanted to confront [C], that he wanted to fight him and approached him at the front of the house with the intention of doing so” and that “[t]he defendant was keen to engage in a fight with [C] and approached him with the intention of doing so” is inconsistent with lawful self defence existing in respect of either punch.
The following passages from the Magistrate’s reasons also support the respondent’s contention:
… the defendant himself acknowledges he hit [C] two to three times and from the medical evidence he caused significant injuries. Other witnesses confirm it was more than once.
…I am satisfied beyond reasonable doubt striking [C] two to three times with significant force was excessive and was as a result of anger on the part of the defendant was not necessary for the purpose of self-defence.
…
…I am satisfied beyond reasonable doubt the force used by the defendant was not reasonably proportionate to any threat the defendant believed to exist.
Proceeding on the basis [C] swung a glancing blow at the defendant the defendant has struck [C] at least twice with significant force. [The defendant’s] own friends at that time were in close vicinity. He made no attempt to call for their assistance. He did not step back from [C]. He did not cry out for assistance to his friends, the force he used was excessive and beyond self-defence.
The respondent’s contention is also supported by the fact that, if the Magistrate had accepted that self defence applied to the first punch but not to the second punch, it would have been essential to address the question whether it was proved beyond reasonable doubt that the actual harm suffered by C (the damage to his teeth) was caused by the second punch as opposed to the first punch. The fact that the Magistrate did not address that question suggests that it did not arise because the Magistrate found that self defence did not apply to either punch.
Although not as strong, the respondent’s contention is also supported by the fact that, if the Magistrate had accepted that self defence applied to the first punch but not to the second punch, it may be expected that the Magistrate would have addressed the question whether the very short time that elapsed between the two punches was sufficient for the appellant to have realised that he was no longer in danger. The fact that the Magistrate did not address that question tends to suggest that it did not arise because the Magistrate found that self defence did not apply to either punch.
On the other hand, there are other passages from the Magistrate’s reasons that support the appellant’s contention that the Magistrate was not satisfied beyond reasonable doubt that the appellant was not acting in lawful self defence when he struck C with the first punch and was only so satisfied in respect of the second punch. Those passages are:
…Had it been only one blow I would not have been satisfied beyond reasonable doubt he was not acting in self-defence. …there is no evidence from any witness that after the first blow [C] again attempted to strike the defendant.
…I am satisfied beyond reasonable doubt any blows struck by the defendant after the first were struck in anger and were not struck in self-defence.
…
I am satisfied beyond reasonable doubt he was not acting in self-defence at the time when he struck [C] the subsequent blow or blows I am satisfied those blows to [C] were as a result of his pent-up anger and not because of any threat on the part of [C] to him.
The passages relied on by the respondent support the construction it advances; the passages relied on by the appellant support the construction he advances; the two constructions are fundamentally inconsistent with each other; and the passages supporting each construction are intertwined with passages supporting the opposing construction.

In these circumstances, it cannot be determined with confidence which construction is correct. The inconsistency between the passages supporting each construction renders the reasons fundamentally inadequate and defective.
It follows that the conviction cannot stand; it must be set aside and the matter remitted to the Magistrates Court for a fresh trial. In these circumstances, the appeal against sentence does not arise.
Conclusion
I allow the appeal, set aside the conviction and remit the matter to the Magistrates Court for a fresh trial. I will hear the parties concerning costs.