Morrison v Chiera [No 2]
[2020] WASC 253
•1 JULY 2020
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CRIMINAL
CITATION: MORRISON -v- CHIERA [No 2] [2020] WASC 253
CORAM: DERRICK J
HEARD: 1 JULY 2020
DELIVERED : 1 JULY 2020
FILE NO/S: SJA 1003 of 2020
BETWEEN: ROBERT FRANK MORRISON
Appellant
AND
CHRISTOPHER CHIERA
Respondent
ON APPEAL FROM:
Jurisdiction : MAGISTRATES COURT OF WESTERN AUSTRALIA
Coram: MAGISTRATE A LONGDEN
File Number : MH 5192 of 2018
Catchwords:
Criminal law - Appeal against conviction - Appellant convicted of unlawful wounding - Whether magistrate made an error in finding that the accused was not acting in self-defence
Legislation:
Criminal Appeals Act 2004 (WA)
Criminal Code (WA)
Evidence Act 1906 (WA)
Result:
Appeal dismissed
Category: B
Representation:
Counsel:
| Appellant | : | Mr S B Watters |
| Respondent | : | Ms G N Beggs |
Solicitors:
| Appellant | : | Mark Andrews Legal |
| Respondent | : | Director of Public Prosecutions (WA) |
Case(s) referred to in decision(s):
Collard v The State of Western Australia [2016] WASCA 135; (2016) 51 WAR 1
Gallager v The State of Western Australia [2016] WASCA 54
Goodwyn v The State of Western Australia [2013] WASCA 141; (2013) 45 WAR 328
Hawke v The State of Western Australia [2017] WASCA 40
Higgins v The State of Western Australia [2016] WASCA 142
KNY v The State of Western Australia [2019] WASCA 89
Liyanage v The State of Western Australia [2017] WASCA 112; (2017) 51 WAR 359
O'Neill v The State of Western Australia [2013] WASCA 158
Samuels v The State of Western Australia [2005] WASCA 193; (2005) 30 WAR 473
DERRICK J:
(This judgment was delivered extemporaneously and has been edited from the transcript).
Introduction
On 8 September 2018 the appellant was charged with one offence of unlawfully wounding Mr Reece Bool contrary to s 301(1) of the Criminal Code (WA) (Code). The appellant pleaded not guilty to the charge.
The appellant's trial took place before Magistrate Longden on 18 and 21 November 2019. At the conclusion of the trial her Honour reserved her decision.
On 22 November 2019 the magistrate delivered her detailed oral reasons for decision. Her Honour found the appellant guilty of the charged offence and recorded a judgment of conviction against him. Her Honour adjourned the sentencing of the appellant until 10 January 2020.
On 10 January 2020 the magistrate sentenced the appellant to 11 months' imprisonment for the offence. Her Honour made the appellant eligible for parole.
The appellant now applies for leave to appeal against his conviction on the following single ground:[1]
The learned Magistrate erred when she failed to adequately consider the defence of self-defence;
Particulars:
Her Honour failed to consider and positively exclude the application of the subjective nature of the defence if the appellant was acting in relation to a perceived imminent assault.
[1] The application is made under div 2 of pt 2 of the Criminal Appeals Act 2004 (WA) (CAA), the ground of appeal alleging an error of law as permitted by s 8(1)(a)(i).
On 20 April 2020 the Principal Registrar ordered that the application for leave to appeal be heard together with the appeal.
Leave to appeal - principles
The court must not give leave to appeal on a ground of appeal unless the ground has a reasonable prospect of success.[2] The ground of appeal will not have a reasonable prospect of success if it does not have a rational and logical prospect of succeeding.[3] If leave to appeal is refused on a ground of appeal the ground is taken to be dismissed.[4]
[2] CAA, s 9(2).
[3] Samuels v The State of Western Australia [2005] WASCA 193; (2005) 30 WAR 473 [56].
[4] CAA, s 9(3).
The facts of the offence
The facts of the appellant's offence as found by the magistrate are as follows.[5]
[5] ts 15, 22 November 2019; ts 98 ‑ 99, 10 January 2020.
On Friday 7 September 2018 the appellant and Mr Bool were at the Ravenswood Hotel. They had both been drinking alcohol.
At around 10.30 pm the appellant entered the hotel's toilet and stood towards the left hand end of the urinal. Mr Bool entered the toilet a short time after the appellant and stood at the right hand end of the urinal, approximately one metre away from the appellant.
There were other people in the toilet area at the time. One of these people was Mr Richard Lucas. Mr Lucas entered the toilet after Mr Bool and was standing closer to the door.
While he was standing at the urinal Mr Bool made a comment to the appellant about the way in which he was urinating. A short verbal altercation ensued.
Following the verbal altercation the appellant turned away. Mr Bool was still standing at the urinal at this time.
As he turned away the appellant deliberately struck Mr Bool with force to the head with a glass bottle. The appellant had either been holding the bottle throughout the entire incident or had grabbed the bottle as he turned away. The blow struck by the appellant caused the bottle to break. This in turn resulted in glass falling onto the floor and being embedded in Mr Bool's skin and clothing. Mr Bool began bleeding immediately.
At the time that the appellant struck the blow Mr Bool posed no physical threat to him.
After being struck Mr Bool observed the broken bottle in the appellant's hand. Mr Bool believed he was about to be struck again. Mr Bool grabbed the appellant and the two of them ended up scuffling and wrestling on the floor. Punches were thrown.
Eventually others who were present intervened and the appellant and Mr Bool were separated. Mr Bool was escorted out of the toilet followed by the appellant.
As a result of the blow struck by the appellant with the bottle Mr Bool suffered two lacerations to his scalp, measuring 6 cm and 8 cm in length, and one laceration to an area just below his ear. All three lacerations required stapling.
The evidence adduced at trial
The prosecution called six witnesses at trial. The six witnesses were Mr Bool, Mr Lucas, Mr Dean Boaler, first class constable Paul Terry, detective constable Christopher Chiera and senior detective Wesley Bunn. Mr Lucas was an independent witness. Mr Boaler was a friend of Mr Bool. Officer Terry was one of the first officers to attend the scene and was the officer who arrested the appellant. Officers Chiera and Bunn were the investigating officers.
The prosecution tendered as part of its case the visually recorded interview conducted with the appellant by officers Chiera and Bunn in the early morning hours of 8 September 2018 following his arrest.[6]
[6] Exhibit 6 at trial; Exhibit 1 on the appeal.
The appellant elected to give evidence in his defence. He called one witness, Mr Tosh Sutcliffe.
Apart from Mr Bool and the appellant, Mr Lucas was the only witness called to give evidence who observed the actual incident the subject of the charge.
At the commencement of the trial the appellant made a formal admission pursuant to s 32 of the Evidence Act 1906 (WA) that Mr Bool was wounded.[7]
[7] ts 3, 18 November 2019.
The evidence relevant to the ground of appeal
It is convenient to at this point set out the evidence given at trial that is relevant to the ground of appeal. The evidence relevant to the ground of appeal was given by Mr Bool, Mr Lucas, Mr Boaler, the appellant and Mr Sutcliffe. The relevant evidence also included the interview conducted with the appellant.
Mr Bool
In his evidence‑in‑chief Mr Bool said the following.[8]
[8] ts 8 ‑ 22, 18 November 2019.
On the evening of 7 September 2018 he went with his partner Kelly to the Ravenswood Hotel to see the bands that were playing.[9]
[9] ts 8, 18 November 2019.
During the night at the hotel he met up with Dean Boaler and Scott Bowsis who were old friends of his.[10] He drank five to six schooners of mid strength beer.[11] The beer was served to him in plastic cups because the event was a glass free event.[12] Given the amount of beer he drank he would not have been able to drive.[13] However, he 'knew what was going on'.[14]
[10] ts 10, 18 November 2019.
[11] ts 9, 18 November 2019.
[12] ts 9, 18 November 2019.
[13] ts 9, 18 November 2019.
[14] ts 9, 18 November 2019.
The bands finished playing at around 10.00 pm.[15] When the bands finished playing he decided to go to the toilet on his way out of the hotel.[16] The toilet was a tiled room with a urinal and some toilet cubicles. As he walked in the door to the toilet the urinal was on the right.[17]
[15] ts 10, 18 November 2019.
[16] ts 10, 18 November 2019.
[17] ts 10, 18 November 2019.
When he entered the toilet he had nothing in his hands.[18]
[18] ts 13, 18 November 2019.
On entering the toilet he walked to and stood at the right end of the urinal.[19] The appellant was already standing to his left to the left end of the urinal.[20]
[19] ts 11-12, 18 November 2019.
[20] ts 12, 18 November 2019.
The appellant was urinating and 'spraying his wee everywhere'.[21] He said to the appellant something like, 'Mate, I think you're getting some piss on my shoes'.[22] The appellant immediately replied, 'Fuck you' and was in his face and angry.[23] He said the same words back to the appellant.[24] The appellant then turned away towards the door as if he was about to leave.[25] He then noticed a rapid flash of movement to his left.[26] He felt an immediate blow to the left side of his head.[27] He had not seen anything in the appellant's hands before that point.[28] He immediately felt liquid running down his head and face which he initially thought was beer.[29] He took a step back and saw the appellant standing front on to him 'ready to have a go with a bottle in his hands still'.[30] The appellant came at him.[31] He grabbed the appellant and they ended up in a scuffle on the floor.[32] A couple of punches were thrown and there was some wrestling on the floor.[33] At this point someone grabbed him and said that he needed an ambulance.[34] He could see blood and glass on the floor.[35] He was taken out of the venue, placed in an ambulance and taken to hospital.[36]
[21] ts 13, 18 November 2019.
[22] ts 13, 18 November 2019.
[23] ts 14, 18 November 2019.
[24] ts 14, 18 November 2019.
[25] ts 14, 18 November 2019.
[26] ts 14, 18 November 2019.
[27] ts 15, 18 November 2019.
[28] ts 15, 18 November 2019.
[29] ts 15, 18 November 2019.
[30] ts 16, 18 November 2019.
[31] ts 16, 18 November 2019.
[32] ts 16, 18 November 2019.
[33] ts 16, 18 November 2019.
[34] ts 16, 18 November 2019.
[35] ts 16, 18 November 2019.
[36] ts 16, 18 November 2019.
He did not know the appellant before the incident.[37] He had never seen the appellant before.[38]
[37] ts 22, 18 November 2019.
[38] ts 22, 18 November 2019.
He did not raise a hand to the appellant before the appellant struck him.[39]
[39] ts 22, 18 November 2019.
In cross‑examination Mr Bool maintained his account of events. In addition he said the following.
He and Kelly arrived at the hotel at around 6.00 pm ‑ 6.30 pm.[40]
[40] ts 23, 18 November 2019.
He and his friends sat at a table inside the hotel before the bands started playing.[41] However, once the bands started playing they went outside to watch the bands.[42] There were no tables outside.[43] Therefore they did not sit at a table while watching the bands.[44]
[41] ts 24, 18 November 2019.
[42] ts 24, 18 November 2019.
[43] ts 24, 18 November 2019.
[44] ts 24, 18 November 2019.
He did not, while sitting at a table outside with his friends, aggressively warn off the appellant and the appellant's friend.[45] He did not aggressively stare at the appellant while the bands were playing.[46] He was not looking for trouble that night.[47]
[45] ts 25 - 27, 18 November 2019.
[46] ts 27, 18 November 2019.
[47] ts 27, 18 November 2019.
He did not follow the appellant into the toilet looking for trouble.[48] He was not the one who struck the first blow by striking the appellant over the head with a beer bottle.[49] He did not kick and punch the appellant while the appellant was on the ground.[50]
[48] ts 27, 18 November 2019.
[49] ts 29, 18 November 2019.
[50] ts 33, 18 November 2019.
After the appellant had struck him with the bottle, the bottle smashed. There were pieces of the bottle down his shirt and bits went onto the floor.[51] The appellant was still hanging onto part of the bottle.[52]
[51] ts 28, 18 November 2019.
[52] ts 28, 18 November 2019.
He had not seen the appellant before the incident in the toilet.[53]
[53] ts 33, 18 November 2019.
In re‑examination Mr Bool confirmed that he was never sitting at an outside table.[54] He said that he did not remember seeing tables outside and that from what he could remember the outside tables had been moved to make more room for people to watch the bands.[55]
Mr Lucas
[54] ts 37, 18 November 2019.
[55] ts 36, 18 November 2019.
In his evidence‑in‑chief Mr Lucas, a 47‑year‑old paramedic, said the following.[56]
[56] ts 44 ‑ 56, 18 November 2019.
He arrived at the Ravenswood Hotel at about 7.00 pm. He was at the hotel to see the bands play.[57]
[57] ts 44, 18 November 2019.
He went to the toilet at around 10.30 pm. He thinks that this was after the bands had finished.[58]
[58] ts 47, 18 November 2019.
When he entered the toilet he saw a couple of blokes arguing.[59] He saw a stockier guy with a tattoo sleeve (the appellant) standing and arguing with a smaller bald guy (Mr Bool).[60] Although he could hear the arguing he could not understand what the argument was about.[61] He was waiting to urinate but the two men were taking up all of the available room.[62] They were arguing, he thought, for a couple of minutes.[63] They were in each other's face.[64] The smaller guy, who was standing further away from him, was trying to get around the stockier guy, but the stockier guy was blocking the smaller guy's path.[65]
[59] ts 48, 18 November 2019.
[60] ts 48 - 49, 18 November 2019.
[61] ts 49, 18 November 2019.
[62] ts 49, 18 November 2019.
[63] ts 50, 18 November 2019.
[64] ts 51, 18 November 2019.
[65] ts 50, 18 November 2019.
The next thing that happened was that he heard a loud crash of a bottle.[66] It all happened so quickly.[67] He saw the stockier guy raise his arm above his head, but did not see the bottle crash onto the smaller guy's head.[68] He saw blood coming from the smaller guy's head.[69] There was glass everywhere.[70] He left the toilet and called security.[71] He did not go back into the toilet because there 'was a bit of a scuffle in there'.[72] Security went into the toilet while the two men were wrestling.[73]
[66] ts 51, 18 November 2019.
[67] ts 51, 18 November 2019.
[68] ts 51, 18 November 2019.
[69] ts 51, 18 November 2019.
[70] ts 52, 18 November 2019.
[71] ts 52, 18 November 2019.
[72] ts 52, 18 November 2019.
[73] ts 53, 18 November 2019.
He did not see the smaller guy do anything before he heard the glass smash.[74] He did not see the smaller guy raise his hands or do anything like that.[75]
[74] ts 53, 18 November 2019.
[75] ts 53, 18 November 2019.
In cross‑examination Mr Lucas maintained the version of events given by him in examination‑in‑chief.
Mr Boaler
In his evidence‑in‑chief Mr Boaler said the following.
He was at the Ravenswood Hotel.[76] He arrived at the hotel at about 6.00 pm.[77] He was at the hotel with his wife, his best mate Scott Bowsis and others.[78] He had met up with his friend Mr Bool unexpectedly and they spent time together on and off during the night.[79]
[76] ts 65, 18 November 2019.
[77] ts 65, 18 November 2019.
[78] ts 65, 18 November 2019.
[79] ts 65, 18 November 2019.
He spent most of the evening inside the hotel but when the bands came on he went outside.[80] He had no problems throughout the night.[81]
[80] ts 66, 18 November 2019.
[81] ts 66, 18 November 2019.
In cross‑examination Mr Boaler said that he had not sat outside at a table during the evening.[82]
The appellant
[82] ts 73, 18 November 2019. It is to be noted that it was not suggested to Mr Boaler during cross‑examination that he had at some point during the evening, while sitting at an outside table, joined with Mr Bool in aggressively telling the appellant and the appellant's friend to leave the table.
In his evidence‑in‑chief the appellant said the following.
He arrived at the Ravenswood Hotel with his friend Tosh Sutcliffe at about 7.30 pm.[83] He and Tosh were at the hotel to see the bands.[84]
[83] ts 118, 21 November 2019.
[84] ts 118, 21 November 2019.
He and Tosh went outside to the beer garden to where the bands were playing.[85] Nearly every table was gone so they joined the end of a table. He was listening to the music.[86] Tosh started talking to a girl on the table.[87]
[85] ts 118, 21 November 2019.
[86] ts 118, 21 November 2019.
[87] ts 118, 21 November 2019.
Within the group on the table were some men.[88] One of the men, who he subsequently ascertained was Mr Bool, said that all of the girls on the table were married.[89] He responded by saying, 'No, that's fine mate. I'm not here for anything like that'.[90] Mr Bool then said, 'Well, if you want trouble you've come to the right boy'.[91] He responded by putting his hands up and saying that he did not want any trouble at all.[92] At this point another of the men at the table, who he subsequently ascertained was Mr Boaler, told him to 'fuck off' in a very aggressive fashion.[93] It was a 'very heated moment'. He then grabbed Tosh and the two of them walked away.[94]
[88] ts 118, 21 November 2019.
[89] ts 118, 21 November 2019.
[90] ts 118, 21 November 2019.
[91] ts 118, 21 November 2019.
[92] ts 118, 21 November 2019.
[93] ts 119, 21 November 2019.
[94] ts 119, 21 November 2019.
During the rest of the evening the group on the table continued to stare at them.[95] He and Tosh made sure that they avoided the group for the rest of the night.[96]
[95] ts 119, 21 November 2019.
[96] ts 120, 21 November 2019.
Shortly before closing time he went to the toilet.[97] While he was urinating Mr Bool came in and stood right next to him and 'bumped into him a little bit'.[98] Mr Bool immediately started attacking him regarding his penis size.[99] A heated argument took place.[100] He then turned away to the door.[101] As he turned away he was hit by a bottle.[102] He believes the bottle was a glass bottle 'because there was no glass and then there was glass there'.[103]
[97] ts 120, 21 November 2019.
[98] ts 121, 21 November 2019.
[99] ts 121, 21 November 2019.
[100] ts 121, 21 November 2019.
[101] ts 121, 21 November 2019.
[102] ts 121, 21 November 2019.
[103] ts 121, 21 November 2019.
After being struck he fell to his hands and knees.[104] He scuffled around a little bit.[105] There was glass there because he had cuts on his fingers and hands.[106] He was punched and kicked.[107] It felt like the punches and kicks were coming from more than one person.[108] The punches and kicks were coming fast and hard.[109] He was worried so he started swinging and doing whatever he could to protect himself.[110] He does 'not really know' if he had anything in his hand at this time.[111] Everything happened 'very, very quickly'.[112]
[104] ts 121, 21 November 2019.
[105] ts 121, 21 November 2019.
[106] ts 121, 21 November 2019.
[107] ts 121, 21 November 2019.
[108] ts 121, 21 November 2019.
[109] ts 121, 21 November 2019.
[110] ts 121, 21 November 2019.
[111] ts 121, 21 November 2019.
[112] ts 121, 21 November 2019.
The next thing he remembers is security coming into the toilet and taking Mr Bool out of the toilet.[113]
[113] ts 121, 21 November 2019.
He could not comment on whether Mr Bool had been hit.[114] Everything 'was like a frenzy'.[115] Once he had been hit and knocked down everything was crazy for 15 or 20 seconds.[116] He did not have anything on him to protect himself.[117] He felt that his safety was at risk.[118]
[114] ts 123, 21 November 2019.
[115] ts 123, 21 November 2019.
[116] ts 123, 21 November 2019.
[117] ts 123, 21 November 2019.
[118] ts 125, 21 November 2019.
During the night he had about five or six standard drinks.[119]
[119] ts 125, 21 November 2019.
In cross‑examination the appellant maintained the version of events given by him during examination‑in‑chief. In addition he said the following.[120]
[120] ts 126 ‑ 152, 21 November 2019.
He would say that he was at 'a lower level of intoxication' but that he was not intoxicated to the point that he could not remember what had occurred.[121]
[121] ts 128, 21 November 2019.
He is not sure if he had a bottle in his hand when he went to the toilet.[122]
[122] ts 139, 21 November 2019.
When he was on his hands and knees he was being hit in the head, the back of his head and 'all over'.[123] He does not know how many times he was struck.[124] The blows just kept on coming.[125]
[123] ts 140, 21 November 2019.
[124] ts 141, 21 November 2019.
[125] ts 141, 21 November 2019.
He received a wound on his head that was not overly deep.[126] He had black eyes, bruises and a torn shoulder ligament.[127]
[126] ts 141, 21 November 2019.
[127] ts 142 - 143, 21 November 2019.
He did exchange words with Mr Bool in the toilet.[128]
[128] ts 144, 21 November 2019.
He cannot recall if he had anything in his hands at the time that he was defending himself and trying to get up.[129] He cannot recall seeing anything in Mr Bool's hands.[130]
[129] ts 147, 21 November 2019.
[130] ts 147, 21 November 2019.
The incident in the toilet occurred approximately three hours after the incident that occurred at the table outside in the beer garden.[131]
[131] ts 149, 21 November 2019.
He does not remember seeing blood on Mr Bool's face.[132]
[132] ts 149, 21 November 2019.
He does not know if he hit Mr Bool.[133] He cannot say that he did and he cannot say that he did not because he was just protecting himself.[134]
Mr Sutcliffe
[133] ts 152, 21 November 2019.
[134] ts 152, 21 November 2019.
In his evidence‑in‑chief Mr Sutcliffe said the following.
He and the appellant arrived at the Ravenswood Hotel at about 7.15 pm ‑ 7.30 pm.[135] After buying a drink they walked around.[136] At some stage during the night they stepped outside.[137] It was busy.[138] They looked around for a table to sit and stand at.[139] They walked over to a table that had a free end.[140] There were a couple of ladies and a few men at the table.[141] He started talking to one of the ladies at the table.[142] He heard one of the men at the table tell the appellant that the ladies were married and that they might like to move on and pick another table.[143] He and the appellant started to walk off.[144] At this stage the men at the table started swearing at them saying something along the lines of, 'Yeah you boys want to fuck off. You're fucking with the wrong boys. Please, yeah, fucking move on'.[145]
[135] ts 158, 21 November 2019.
[136] ts 158, 21 November 2019.
[137] ts 158, 21 November 2019.
[138] ts 158, 21 November 2019.
[139] ts 158, 21 November 2019.
[140] ts 158, 21 November 2019.
[141] ts 158 ‑ 159, 21 November 2019.
[142] ts 159, 21 November 2019.
[143] ts 159, 21 November 2019.
[144] ts 159, 21 November 2019.
[145] ts 159 - 160, 21 November 2019.
He and the appellant went and found another table.[146] They noticed that the group at the table they had left were still staring and glaring at them.[147] He and the appellant kept clear of the group for the rest of the night.[148]
[146] ts 160, 21 November 2019.
[147] ts 160, 21 November 2019.
[148] ts 160, 21 November 2019.
In cross‑examination Mr Sutcliffe said that the day after the appellant had been charged the appellant told him that the name of the other person involved in the incident in the toilet was Reece Bool.[149] He said that they looked Mr Bool up on Facebook and that when he saw Mr Bool's image he recognised him as one of the men who had been abusive towards him and the appellant at the table in the hotel beer garden.[150]
[149] ts 167 ‑ 169, 21 November 2019.
[150] ts 167 ‑ 169, 21 November 2019.
In cross‑examination Mr Sutcliffe denied that his story about what had occurred in the hotel’s beer garden had been made up.[151]
The interview
[151] ts 169, 21 November 2019.
The appellant was interviewed in the early morning hours of Saturday 8 September 2018.
During the interview the appellant repeatedly claimed that he had been attacked in a urinal.
The appellant said that he had been having a toilet break when some guy said something about his dick size. He said he retaliated by saying something like 'whatever, whatever' and then returned to looking down into the urinal.
The appellant said that the guy then came from behind and hit him over the head with a bottle. He said that he got hit on the left hand side of his head, that he did not see the blow coming and that he fell into the urinal. He said he remembered glass smashing and blood pouring down his face.
The appellant said that he was swinging wildly to try and protect himself but that he did not punch the man. He said, 'I've got up and he started hitting me in the fucking head and I've attacked him to try and protect myself'. He said that he was not sure what he hit but that he admitted to hitting 'things'.
When the appellant was asked whether he had used any bottles to help protect himself he said that he did not know, that he did not know what had happened, that he did not know what he had swung with, that he was protecting himself and that he was using equal force. He said that he was not sure if he had a bottle and that it was not usual for him to go into a toilet with a bottle. He said he could not recall if he used a bottle to retaliate.
When the detective put Mr Bool's account to the appellant, the appellant said the account was '100 % a lie' and that 'at the end of the day whatever I did to defend myself in the current situation, I did'.
The magistrate's reasons for decision
The magistrate commenced her reasons for decision by referring to the presumption of innocence and the burden and standard of proof.[152] Her Honour then noted that the identity element of the charged offence was not in dispute, and that an admission had been made in relation to the wounding element.[153] Her Honour identified the element of the charged offence that was in dispute to be the unlawfulness element.[154] In this context her Honour made the point that the appellant's position was that if he did inflict the injuries suffered by Mr Bool he did so in the course of defending himself from Mr Bool.[155]
[152] ts 2, 22 November 2019.
[153] ts 2, 22 November 2019.
[154] ts 3, 22 November 2019.
[155] ts 3, 22 November 2019.
The magistrate then proceeded to accurately summarise the material evidence given by the witnesses and the appellant.[156]
[156] ts 3 ‑ 8, 22 November 2019.
Having summarised the evidence given by the witnesses and the appellant the magistrate said the following:[157]
In short summary, then, the prosecution case is that after a night with no known conflict, the complainant walked into the toilet, approached the urinal and made a comment to the accused about how he was urinating. A short verbal altercation ensued. The accused made as if to leave. The complainant was then struck suddenly on the head with a bottle by the accused. Both end up in a scuffle. The complainant ends up with serious lacerations caused by a strike from the accused.
The defence case is not terribly different. The defence case is that the complainant walked into the urinal, made a comment to the accused about his penis size. A short, verbal altercation ensued. But then the accused said it was the complainant who, without warning, struck him on the head with a bottle, which broke, and then a scuffle ensued. So the defence and prosecution cases are at total odds when it comes to the most crucial point and are completely contrary as to that point.
There's no room for both to be right, no room for mistake in this case, no room to say one or the other if they must be confused or mistaken [sic]. They are two completely conflicting versions as to who instigated the physical contact, who made the first strike. I will repeat again that, having said that, it's not a question, then, of choosing between the prosecution and defence cases. Where, as in this case, an accused person gives an explanation, the issue is not whether I prefer that, the evidence of the prosecution, or vice-a-versa.
It is whether, in light of the accused's evidence, the prosecution has proved its case beyond reasonable doubt. It's not enough to say I reject the defence case or the accused's evidence. I can only convict if I positively believe the prosecution case beyond reasonable doubt. Still, though, the first step is to make clear, in this case, my assessment of the accused's version of events. I listened carefully to the electronically recorded interview and the accused's account in court.
[157] ts 8 ‑ 9, 22 November 2019.
At this point in her reasons the magistrate proceeded to explain why she was satisfied beyond reasonable doubt that the prosecution had proved beyond reasonable doubt its version of events. It is not necessary, in order for me to deal with the ground of appeal, to set out in detail the reasons stated by her Honour for coming to this conclusion. It suffices for me to say that the reasons given by her Honour were, in summary, as follows:
1.The account given by the appellant during the interview was (for reasons that her Honour stated) vague, lacking in detail, did not make logical sense and was not credible; [158]
2.The appellant's evidence was (for reasons that her Honour stated) unconvincing and not credible; [159]
3.The appellant's account was inconsistent with the objective evidence, in particular the nature and extent of Mr Bool's injuries and the nature and extent of his injuries;[160]
4.Mr Bool's evidence was (for reasons that her Honour stated) credible, convincing and truthful;[161] and
5.Mr Bool's evidence was supported by the evidence of the independent witness, Mr Lucas who was (for reasons stated by her Honour) 'an extremely capable and compelling witness'.[162]
[158] ts 9 ‑ 10, 22 November 2019.
[159] ts 10 ‑ 11, 22 November 2019.
[160] ts 11, 12, 14, 22 November 2019.
[161] ts 11 ‑ 12, 22 November 2019.
[162] ts 12 ‑ 13, 22 November 2019.
It is to be noted that in the course of stating her reasons for finding that the prosecution had proved its version of events, the magistrate found that although the appellant and Mr Sutcliffe may at some point during the evening have been involved in a hostile exchange with a group sitting at a table in the hotel's beer garden, that exchange was not with Mr Bool or his friends.[163]
[163] ts 11, 22 November 2019.
Her Honour, having given her reasons for finding that the prosecution had proved its version of events, stated the facts that she found had been proved beyond reasonable doubt.[164] Her Honour's stated factual findings were as I have set out earlier in these reasons.[165]
[164] ts 15, 22 November 2019.
[165] See [10] ‑ [19] above.
Having made her findings as to what had occurred between Mr Bool and the appellant, the magistrate turned to consider whether the prosecution had negated any possible defences, or to state the matter more accurately, whether the prosecution had proved that the appellant's wounding of Mr Bool was unlawful.
The magistrate first dealt with s 23A(2) and s 23B(2) of the Code. Her Honour found that given that the prosecution had proved that the appellant had deliberately struck Mr Bool's head with the bottle, the appellant's act of striking Mr Bool did not occur independently of the exercise of his will within the meaning of s 23A(2).[166] Her Honour further found that the wounding of Mr Bool would 'plainly reasonably have been foreseen by an ordinary person' as a consequence of the appellant striking Mr Bool in the head with the bottle.[167] Accordingly, her Honour found that the appellant's wounding of Mr Bool was not an event that occurred by accident within the meaning of s 23B(2) of the Code.[168]
[166] ts 16, 22 November 2019.
[167] ts 16, 22 November 2019.
[168] ts 16, 22 November 2019.
After dealing with s 23A(2) and s 23B(2) the magistrate made the point that provocation under s 245 of the Code did not apply to a charge of unlawful wounding, but nevertheless went on to say that there was 'no wrongful act or insult to justify the [appellant's] actions'.[169]
[169] ts 16, 22 November 2019.
Finally, the magistrate turned to the issue of self‑defence. In relation to this issue her Honour said the following:[170]
The final defence to be considered is self-defence under section 248. The accused did not claim that he struck the complainant on the head with a bottle in self-defence at the outset. He denied that he had struck the complainant and claimed that he was the victim.
I've already indicated I do not accept he was truthful about that. No reasonable grounds existed for the accused to have believed that circumstances were such to make his act reasonable. Even if the complainant had earlier been threatening and abusive, and I do not find that he was, in the accused's electronically recorded interview, he did not say that he saw the complainant and became fearful or that any motion had been made towards him, and he said he didn't recognise him at all.
Even in his evidence in court, he did not claim to have recognised the complainant until the next day, when he put it together with his friend. If, as the accused claimed, the complainant was the one to strike him with the bottle and then the complainant was injured by the accused after that point, the question of self-defence would require serious consideration. But as I've already indicated, I'm satisfied that the accused was not needing to defend himself from the complainant's harmful act.
Rather, he acted deliberately in anger in striking the complainant, who, by that point, posed absolutely not [sic] threat. On the facts as I've found them, no verbal or physical threat was made by the complainant. No reasonable grounds, then, exist for believing that the striking of him was necessary. The prosecution have, to the extent the issue was raised, excluded beyond reasonable doubt that the accused was acting in self-defence. Accordingly, I find the accused guilty of the offence of unlawful wounding and will record a conviction.
[170] ts 16, 22 November 2019.
The parties' submissions
The appellant submits that the magistrate made an error of law by failing to consider whether the State had proved, on the facts as found by her Honour (specifically, that the appellant struck the first blow) that the appellant was not acting in self‑defence. The appellant submits that the magistrate erred by 'not turning her mind to the subjective beliefs of the appellant even if he struck first' and by failing to positively decide that the appellant did not act in response to what he perceived to be an imminent assault upon himself.[171] The appellant submits that the magistrate 'failed to reasonably consider the defence of self‑defence by not adequately considering the appellant's belief of the need to defend himself'. [172] The appellant submits that the magistrate 'did not conclude that the appellant had no belief he was about to be attacked' and 'failed to evaluate the appellant's reasonable belief that he was about to be attacked'.[173] The appellant's position is summarised in par 22 of the written submissions filed on his behalf in the following terms:
What the appellant essentially contends is that whilst her Honour may have made certain findings concerning the factual way in which the incident unfolded, those findings did not extinguish the need for her to then go on and properly consider the issue of whether the prosecution had negated beyond reasonable doubt whether the appellant had a subjective belief at the time he struck the victim that underpinned the applicability of self-defence as articulated above.
[171] Appellant's submissions dated April 2020 (Appellant's submissions) [16].
[172] Appellant's submissions [20].
[173] Appellant's submissions [20].
The respondent submits, in essence, that given that the magistrate rejected in its entirety the version of events given by the appellant there was no evidentiary or factual basis that enlivened for consideration the issue of self‑defence.[174]
[174] Respondent's submissions dated 22 May 2020 [20].
Self-defence, the evidential onus and the burden of proof
Under s 248(2) of the Code, if a person believes that an act is necessary to defend himself from a harmful act, including a harmful act that is not imminent, and the person's act is a reasonable response in the circumstances as the person believes them to be and there are reasonable grounds for the beliefs of the person, then the person's act is done in self-defence and is lawful. Therefore, an act is done in self‑defence if:
1.the person believes that the act is necessary to defend himself from a harmful act including a harmful act that is not imminent;
2.the person's act is a reasonable response by the person in the circumstances as the person believes them to be; and
3.there are reasonable grounds for the person's beliefs.
So far as is relevant in the present case, a person does a harmful act to another person if they unlawfully assault that other person.[175] The term assault is, of course, defined in s 222 of the Code.
[175] Code, s 248(1), 248(5).
In order for self‑defence to be relied upon by an accused there must, at the close of the evidence, be some evidence which, taken at its highest in favour of the accused, could lead a reasonable trier of fact, properly instructed, to have a reasonable doubt as to whether the prosecution had negated self‑defence.[176] However, and notwithstanding that s 248(2) is often referred to as creating the 'defence' of self‑defence, once an accused discharges this evidential onus, it is for the State to prove that an accused was not acting in self‑defence.[177]
[176] O’Neill v The State of Western Australia [2013] WASCA 158 [15] ‑ [16], [77] ‑ [78]; Collard v The State of Western Australia [2016] WASCA 135; (2016) 51 WAR 1 [104] ‑ [105]; KNY v The State of Western Australia [2019] WASCA 89 [43]; Hawke v The State of Western Australia [2017] WASCA 40 [100] ‑ [101]. See also Higgins v The State of Western Australia [2016] WASCA 142; (2016) 263 A Crim R 474, [81] – [82], a case in which the appellant had been convicted of offences of unlawful and indecent assault and in which the issue on appeal was whether the trial judge had erred in failing to direct the jury in relation to s 24 of the Code.
[177] Liyanage v The State of Western Australia [2017] WASCA 112; (2017) 51 WAR 359 [68].
It follows from what I have said that in the circumstances of the present case, and on the assumption that the appellant satisfied the evidential onus in relation to self‑defence, the prosecution, in order to discharge its burden of proving that the appellant's conduct in wounding Mr Bool, in the manner and circumstances found by the magistrate, was not excused by the law of self‑defence, needed to prove any one or more of the following four things:[178]
1.The appellant did not subjectively believe that it was necessary for him to strike Mr Bool with the bottle in order to defend himself from a harmful act by Mr Bool, including a harmful act that was not imminent; or
2.The appellant's act of striking Mr Bool with the bottle was not an objectively reasonable response in the circumstances as he subjectively believed them to be to the harmful act; or
3.There were no objectively reasonable grounds for the appellant's subjective belief that his act of striking Mr Bool with the bottle was necessary to defend himself from the harmful act; or
4.There were no objectively reasonable grounds for the appellant's subjective belief as to the circumstances surrounding his striking of Mr Bool with the bottle.
[178] Goodwyn v The State of Western Australia [2013] WASCA 141; (2013) 45 WAR 328 [95]-[96], [170] ‑ [174]; O'Neill v The State of Western Australia [79] ‑ [95], [121];Gallager v The State of Western Australia [2016] WASCA 54 [20]; Liyanage v The State of Western Australia [69].
Analysis and decision
The appellant’s ground of appeal relates to the first of the above identified four elements of self‑defence. The ground and the argument advanced in support thereof must be considered by reference to the evidence that the magistrate accepted, not the evidence that she rejected.
In the evidence that was accepted by the magistrate, upon which her Honour based her material findings of fact as to what occurred during the evening and in the toilet (this evidence coming from Mr Bool, Mr Lucas and Mr Boaler), there was no evidence, taken at its highest in favour of the appellant, that the appellant subjectively believed that it was necessary for him to strike Mr Bool with the bottle in order to defend himself from a harmful act by Mr Bool comprised of an 'imminent assault'. More specifically, there was nothing in the facts as found by the magistrate on the basis of the evidence that she accepted that provided any basis for her Honour to infer that the appellant held such a belief. The magistrate rejected the evidence given by the appellant that Mr Bool, on entering the toilet and approaching the urinal, had 'bumped into [the appellant] a little bit' and had started attacking the appellant about the size of his penis. Further, although the magistrate found that there had been a verbal altercation between the appellant and Mr Bool in the toilet in the moments before the appellant struck Mr Bool, her Honour also found that Mr Bool did not make any verbal or physical threat to the appellant and that Mr Bool posed 'absolutely no threat' to the appellant. In these circumstances the magistrate did not err by failing to 'adequately [consider] the appellant's belief of the need to defend himself' from an imminent assault because there was, quite simply, no evidence of any such belief nor any factual basis for inferring the existence of such a belief. It would have been an entirely speculative exercise for the magistrate to consider and determine if the prosecution had proved that the appellant did not believe that he needed to defend himself from a harmful act of Mr Bool, when there was no foundation in the evidence that was accepted by the magistrate for such a belief to have existed.[179]
[179] O'Neill v The State of Western Australia [16], [25], [122].
Further, even on the appellant's evidence, which was in any event rejected by the magistrate, there was no basis for inferring that he subjectively believed that it was necessary for him to strike Mr Bool with the bottle in order to defend himself from an imminent assault. The appellant’s evidence, as I have pointed out, was that Mr Bool was the aggressor, that Mr Bool struck him in the head with a bottle, and that it was only from this point onwards that he struggled with Mr Bool in an attempt to defend himself.
In summary, on the evidence accepted by the magistrate the issue of self‑defence did not in truth arise for consideration. The appellant did not, on the evidence accepted by the magistrate, discharge his evidential onus of adducing or pointing to evidence on which the magistrate, acting reasonably, might fail to be satisfied beyond reasonable doubt that he did not subjectively believe that it was necessary for him to strike Mr Bool with the bottle in order to defend himself from a harmful act by Mr Bool. The fact that the magistrate in her reasons, out of an apparent abundance of caution, turned her mind to self-defence and found that it had been negated by the prosecution because the prosecution had proved that there were no objectively reasonable grounds for any subjective belief on the part of the appellant that it was necessary for him to strike Mr Bool to defend himself does not alter the position that there was in fact no evidence that the appellant had any such subjective belief.
The ground of appeal is without merit.
Conclusion
For the reasons I have given I refuse the application for leave to appeal and dismiss the appeal.
I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.
CP
Associate to the Honourable Justice Derrick3 JULY 2020
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